MEMORANDUM OPINION

Appellant H.A. Lacey (Lacey) appeals a summary judgment granted against Lacey

and Hollis Petroleum, Inc. (L&HP) and its officers and directors individually for civil and administrative penalties resulting from violations of an Agreed Order (the Order) between L&HP and the Texas Natural Resource Conservation Commission1 regarding the operation of underground storage tanks. Lacey asserts that the trial court erred in granting the summary judgment against him because the evidence presented a fact issue of whether or not he was an officer or director of L&HP at the time of the Order or anytime thereafter. He requests that the summary judgment against him

individually be reversed and that the case be remanded to the trial court. We reverse and remand the case to the district court for further proceedings.

judgment against L&HP and each of the officers in their individual capacity for the violations of the Order.

Lacey appeals the judgment arguing that the trial court erred in granting traditional

summary judgment against him because a genuine issue of material fact exists regarding whether or not he was an officer or director of L&HP after December 1993. We hold that a genuine issue of material fact does exist regarding his position in the company and reverse the summary judgment and remand the cause for further proceedings.

DISCUSSION

The standard of review for a traditional summary judgment is well established: (1) the movant bears the burden of conclusively showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a genuine issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in its favor. Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the movant establishes a right to summary judgment, the burden shifts to the non-movant who must present summary judgment evidence to the trial court raising a genuine issue of material fact to preclude summary judgment. Cannon v. Texas Indep.

Bank, 1 S.W.3d 218, 223 (Tex. App.—Texarkana 1999, pet. denied). If the evidence raises no more than a surmise or suspicion of a fact in issue, no genuine issue of fact exists to defeat summary judgment. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.—Dallas 2005, no pet.)

(citing Wiggins v. Overstreet, 962 S.W.2d 198, 200 (Tex. App.—Houston [14th Dist.] 1998, writ denied)). We review the trial court’s decision to grant summary judgment de novo. Natividad v. Alexsis, 875 S.W.2d 695, 699 (Tex. 1994).

The State, as movant, bore the burden of establishing its entitlement to a summary judgment by conclusively establishing that Lacey was an officer of L&HP when the Order was violated. Nixon, 690 S.W.2d at 548; Missouri-Kansas-Texas R.R. Co. v. City of Dallas, 623 S.W.2d

296, 298 (Tex. 1981). The State asserts that L&HP’s 1992 public information report, which listed

Lacey as an officer of the corporation, conclusively establishes his role as officer from 1995-1996.

For support the State cites only Jonnet v. State, a factually similar case in which we held that two

old reports, an expired public information report and a report filed with the Railroad Commission, presented convincing evidence of the identity of the directors of a corporation. 877 S.W.2d 520, 524

(Tex. App.—Austin 1994, writ denied). However, there are two substantial differences between the evidence presented in Jonnet and the evidence the State presented against Lacey. First, the Jonnets

“produced no evidence that they resigned or were otherwise removed as corporate officers or directors of [the corporation]. [T]he only evidence in the record [an expired public information report and a Railroad Commission form P-5] indicate[d] that the Jonnets were officers and directors when the Commission issued its order.” Id. at 524 (emphasis added). Lacey, in contrast, presented evidence that he was not an officer or director at the relevant time. Lacey introduced his own affidavit in which he states that in December of 1993 he told another officer of L&HP that he was

“resigning as an officer and director and separating [him]self from all affiliations with [L&HP],” and that he then moved to North Carolina and had no further contact with the corporation.^[3] A “direct and unequivocal” affidavit from an interested party that specifically states facts within the affiant’s

personal knowledge can be sufficient to raise a fact issue. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Tex. R. Civ. P. 166(a). Second, the Railroad Commission form P-5, the second document on which we relied in Jonnet, requires more stringent reporting than does the public information report on which Lacey’s liability is being based. The P-5 must be amended immediately

if there are any substantive changes, such as resignation of officers and if no new officers are named, it is presumed that the old officers continue. Id. (citing 16 Tex. Admin. Code § 3.1 (1993)).

Although the tax code requires that corporations update the public information report annually, there is no requirement that all changes be noted immediately and no presumption of continuity of officers

is raised if later reports are not filed. Tex. Tax Code Ann. §§ 171.203-171.255. Further, the information in the L&HP report, which expired three years before the Order was violated, is more likely to be outdated than the information in the Jonnet reports which had expired less than a year before the event in question. Id. The 1992 report filed by L&HP is not conclusive summary judgment evidence of Lacey’s status as an officer or director of L&HP at the time that the company violated the order.

The State argues that Lacey failed to produce any corroborating evidence of his resignation and thus failed to raise a fact issue that would preclude summary judgment against him.

However, Lacey had no duty to produce corroborating documents; rather, the burden rested on the State, as movant, to conclusively establish that no issue of fact exists. Missouri-Kansas-Texas R.R.

Co., S.W.2d at 298; Nixon, 690 S.W.2d at 548. The State did not meet this burden. As stated above, the 1992 report is not conclusive evidence of Lacey’s position as an officer or director of L&HP at the relevant time, and the State presented no other evidence controverting Lacey’s statement that he resigned from the corporation in 1993. However, even if the 1992 report had raised a presumption

that Lacey was an officer or director of L&HP in 1995-96, Lacey’s affidavit would raise an issue of fact sufficient to preclude summary judgment on the issue. An affidavit from an interested party can

be sufficient to raise a question of fact if it sets forth direct and unequivocal facts, admissible in evidence, that show the existence of a dispute as to a material issue of fact, and if perjury can be

assigned to it. Brownlee, 665 S.W.2d at 112; Tex. R. Civ. P. 166(a). Lacey sets out clear and specific facts relating to his resignation and subsequent move to North Carolina. Lacey avers that

he resigned by telling another officer of L&HP that he “was resigning as an officer and director and separating [him]self from all affiliations with [L&HP],” and that “since December 1993 [he] ha[s]

not attended any meetings, signed any documents, or taken part in any decisions, operations or actions related to [L&HP], other than [his] involvement with this lawsuit;” A verbal resignation from his office in 1993 would be sufficient to release him from liability for violations of the Order in 1995-96. “Resignation from a corporate position is not required to be in writing, nor is it required

to be in any special form . . . .” Bell v. Texas Employers’ Assoc., 43 S.W.2d 290, 293 (Tex. Civ. App.—Dallas 1931, writ dismissed).4 Whether Lacey actually told the other officer that he was resigning as officer and director is an issue appropriate for a fact-finder.

After reviewing all of the evidence and taking all evidence favorable to the nonmovant as true, we conclude that the State failed to meet its burden to conclusively establish that

Lacey was an officer or director of L&HP at the time of the violations, and therefore hold that the issue should be tried before a fact-finder.

CONCLUSION

Having sustained the appellant’s sole issue, we reverse the district court’s summary judgment and remand cause for further proceedings.