Cameron County v. Alvarado

Decision Date18 May 1995
Docket NumberNo. 13-94-534-CV,13-94-534-CV
Citation900 S.W.2d 874
PartiesCAMERON COUNTY, et al., Appellants, v. Crox ALVARADO, et al., Appellees.
CourtTexas Court of Appeals

J. Arnold Aguilar, Lisa M. Mount, Willette & Aguilar, Brownsville, Jack K. Smith, Dallas, for appellants.

Susan Anne Allen, Law Office of Windle Turley, Dallas, David R. Weiner, Law Offices of Windle Turley, P.C., Dallas, for appellees.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and CHAVEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Appellees brought suit against Cameron County, Sheriff's Deputies Arnold Flores and Lt. George Gavito, and others under Texas Civil Practice & Remedies Code § 71.001-.011 ("Wrongful Death Act"), § 71.021 ("Survival Act") and § 101.001 et seq. ("Tort Claims Act") in connection with a high-speed police chase. Appellants moved for summary judgment on the basis of official immunity. The trial court denied appellants' motion for summary judgment. By interlocutory appeal, appellants challenge the trial court's ruling. We affirm.

The present lawsuit arises from an automobile accident that occurred in Brownsville and which resulted in the deaths of Brenda Lee Alvarado and Maria De Jesus Alvarado, two passengers in a vehicle driven by Crox Alvarado. Three other passengers, Monica Arlene Alvarado, Sandra Vasquez, and Yasmine Alvarado, incurred injuries. Appellees, including the surviving passengers of the vehicle, next friends, and heirs at law of the two decedents, sued Jose B. Jimenez, Federal Signal Corporation, Rio-Radio Supply, Inc., and appellants. Federal Signal and Rio-Radio Supply manufactured and sold the light-bar and siren-speaker system installed in the sheriff's units driven by Officers Gavito and Flores.

The record reveals that, on June 4, 1989, a Cameron County Sheriff's Department dispatcher received a 9-1-1 call concerning a car theft. The officer then dispatched the information over the county's two-way radio system. Deputies Gavito and Flores, driving separate sheriff's units, acknowledged the dispatch and proceeded to the intersection of Highway 48 and Highway 511. Flores observed the suspect driving the described stolen Ford pick-up truck on Highway 48, activated his lights and siren, and attempted to stop the suspect. Before the suspect arrived at the intersection of Highway 48 and Highway 802, Gavito joined the pursuit. The suspect continued to drive at a high rate of speed and against traffic through a red light at the Highway 802 intersection. Flores, with Gavito following behind, came to a stop at the intersection because of traffic congestion, and the suspect increased the distance between him and the pursuing officers.

As he approached the intersection of Highway 48 and Price Road, Flores kept the suspect in sight but decreased his speed due to traffic congestion and because the chase was then occurring in a residential area. At the Price Road intersection, the suspect again ran a red light and collided with the vehicle driven by Alvarado. Alvarado and three passengers incurred injuries as a result of the accident, and two passengers died. Before Deputies Flores and Gavito arrived at the scene, the suspect abandoned the stolen vehicle and fled the scene. Police officers subsequently apprehended the suspect, identified as Jose Jimenez, on the roof of a house in a nearby neighborhood and arrested him. Criminal charges were brought against Jimenez, and he was convicted of two counts of first degree murder and sentenced to 100 years in prison.

Appellees thereafter brought suit against appellants Cameron County, Lt. Gavito and Deputy Flores. Appellees asserted claims against Cameron County for the county's own negligence. In addition, appellees alleged that appellants' violations of local and state traffic laws constituted negligence per se. Specifically, appellees alleged that appellants had failed to use emergency lights and/or sirens and had violated TEX.REV.CIV.STAT.ANN. art. 6701d, §§ 24, 75 and 124 (Vernon 1977 & Supp.1995). Appellees also alleged that appellants had failed to institute safe pursuit procedures, had failed to adequately train and instruct its employees in safe pursuit procedures, and had authorized the pursuit of Jimenez without reasonable justification. Appellees further alleged that Lt. Gavito and Deputy Flores had failed to terminate the chase in a timely fashion and that Lt. Gavito had failed to properly supervise the conduct of the case.

Appellants filed a joint motion for summary judgment. 1 Gavito and Flores asserted official or qualified immunity. 2 Cameron County asserted sovereign immunity based on its employees' official immunity. In their response to appellants' motion for summary judgment, appellees moved to strike the affidavits of David Salmon and John Sexton on the grounds that these affiants had failed to state whether the facts contained in their respective affidavits were true and correct and that their "belief" that appellants had acted in good faith was of no probative force at summary judgment. Appellees further asserted that material fact issues remained concerning whether the officers were acting in good faith. By order dated October 10, 1994, the trial court denied appellants' motion for summary judgment. By three points of error, appellants complain that the trial court erred by denying their joint motion for summary judgment.

Under Texas procedure, appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985) (orig. proceeding); Aldridge, 400 S.W.2d at 895. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (Vernon Supp.1995) specifically allows appeal of various interlocutory orders, including an order that "(5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state[.]" The supreme court has held that § 51.014(5) provides that the denial of a summary judgment motion may be appealed if it "is based on an assertion of" qualified immunity. City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993) (per curiam) (emphasis in original); City of Mission v. Ramirez, 865 S.W.2d 579, 581-82 (Tex.App.--Corpus Christi 1993, no writ).

Under the Texas Tort Claims Act, a governmental entity may bear liability for its employees' torts if, among other things, "the employee would be personally liable to the claimant according to Texas law...." TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(1) (Vernon 1986). Conversely, if qualified immunity protects the employee from liability, then the governmental entity's sovereign immunity remains intact. Kilburn, 849 S.W.2d at 812. See, e.g., Carpenter v. Barner, 797 S.W.2d 99, 102 (Tex.App.--Waco 1990, writ denied); Wyse v. Department of Pub. Safety, 733 S.W.2d 224, 227-28 (Tex.App.--Waco 1986, writ ref'd n.r.e.). To that extent, a sovereign immunity claim may be "based on" an individual's assertion of qualified immunity and falls within the scope of § 51.014(5). Kilburn, 849 S.W.2d at 812; Ramirez, 865 S.W.2d at 582.

We address the trial court's denial of summary judgment of the deputies' qualified immunity defense and the County's sovereign immunity defense based on the deputies' qualified immunity claim. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1995); Kilburn, 849 S.W.2d at 812; Ramirez, 865 S.W.2d at 582. We do not address the trial court's denial of summary judgment of the County's sovereign immunity defense against appellees' claims arising out of the County's performance of a governmental function or from the County's method of providing police protection because we do not have authority to do so.

A motion for summary judgment must expressly state the grounds upon which it is made. McConnell v. Southside Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993); TEX.R.CIV.P. 166a(c). Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 518 (Tex.App.--Austin 1991, writ denied); Dhillon v. General Accident Ins. Co., 789 S.W.2d 293, 295 (Tex.App.--Houston [1st Dist.] 1990, no writ). See Ramirez, 865 S.W.2d at 581. A motion for summary judgment must stand or fall on the grounds expressly presented in the motion, and a court may not rely on briefs or summary judgment evidence in determining whether grounds are expressly presented. McConnell, 858 S.W.2d at 339. However, a non-movant does not need to respond to a motion for summary judgment to complain on appeal that the motion was insufficient as a matter of law to support summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 678.

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden 1) to establish as a matter of law that there remains no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or 2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. Once the movant establishes an...

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