City of Alamo v. Holton, 13-96-064-CV

• Decision Date: 31 October 1996
• Docket Number: No. 13-96-064-CV,13-96-064-CV
• Citation: 934 S.W.2d 833
• Parties: The CITY OF ALAMO, Appellant, v. Leo HOLTON, Appellee.
• Court: Texas Court of Appeals

Page 833

934 S.W.2d 833

The CITY OF ALAMO, Appellant, v. Leo HOLTON, Appellee.

No. 13-96-064-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 31, 1996.

Rehearing Overruled Dec. 19, 1996.

Thomas Clayton Hollis, Brownsville, Gina Fantasia, Tipton & Gilbert, J. Preston Wrotenbery, Magenheim, Bateman, Robinson, Wrotenbery & Helfand, Houston, for Appellant.

Aaron Pena, Jr., Edinburg, for Appellee.

Before YANEZ, CHAVEZ and RODRIGUEZ, JJ.

OPINION

CHAVEZ, Justice.

The City of Alamo appeals from an interlocutory order denying its motion for summary judgment based on qualified immunity. Appellee contends that this court is without jurisdiction to consider the appeal because it never sued an individual, and only an individual could assert the defense of qualified immunity. Appellee further asserts that, even if we assume jurisdiction over this appeal, the appeal should be limited to the issue of immunity. We affirm.

Leo Holton was hired by the City of Alamo in 1991 following a shift in control of the city commission after a new mayor was elected. Holton contends that at his job orientation with the city manager, he was instructed that part of his job duties involved "writing up" and firing six employees who had been identified with the political opposition. He refused to do so. After being on the job and observing the work performance of the six employees, Holton found no justification for their termination. Holton claims the city manager then "wrote up" Holton for not carrying out his orders and again directed him to fire the six employees. Again, Holton refused. Afterwards, Holton believed that the city manager was misappropriating funds and reported this activity to the city attorney and the city commission. Subsequently, the city manager fired Holton.

Holton brought his lawsuit in 1992 against the City of Alamo. In July 1994, the City filed its motion for summary judgment which was denied on January 17, 1996. ¹ The case was scheduled for trial on February 12, 1996. The City, however, filed its notice of interlocutory appeal under the provisions of Section 51.014(5), Texas Civil Practice and Remedies Code, on February 5, 1996. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1996). Because of the filing of the notice of appeal, the case was continued.

Appellee contends that this court does not have jurisdiction over this appeal because it is not from a final judgment. Appellant admits that this is an appeal from an interlocutory order, but argues that the order is appealable because the motion was based on qualified immunity. Accordingly, we begin our analysis by first determining if the order denying appellant's motion for summary judgment is an appealable order.

An interlocutory order denying a motion for summary judgment is generally neither final nor appealable. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994); Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). An appeal from an interlocutory order is only permitted by special statute. Gonzalez v. Avalos, 907 S.W.2d 443 (Tex.1995). Section 51.014(5) provides that a person may appeal an interlocutory order from a district court that denies a motion for summary judgment 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. See Koerselman v. Rhynard, 875 S.W.2d 347, 349 (Tex.App.--Corpus Christi 1994, no writ).

The pleadings in the record show that Holton brought suit only against the City of Alamo. The City contends that since its employee's actions, which are protected by the doctrine of qualified immunity, ² were involved in the termination, then it follows that the City's sovereign immunity remains intact. Appellant cites City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993) in support of its argument. In Kilburn, the plaintiff brought suit against the city and an individual employee. The city filed a motion for summary judgment and only asserted the affirmative defense of sovereign immunity. The officer never asserted the affirmative defense of qualified immunity and never filed his own motion for summary judgment. The trial court denied the city's motion for judgment, and the city appealed. The supreme court denied writ on the procedural posture of the case because the city had not based its motion on an assertion of qualified immunity (so as to bring it under the provisions of Section 51.014(5)). Id. at 812. Here, the City of Alamo contended that it was entitled to summary judgment, not only based on its claim of sovereign immunity as a governmental entity, but also based on the qualified immunity claim its employees would enjoy. The Texas Supreme Court has recently held that a governmental entity is not liable for the negligence of its employee where the employee has no liability because of official immunity. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995). Thus, in instances where the claimant elects not to make the governmental employee, upon whose actions the claim is based, a party to the case, the governmental entity may, nevertheless, rely on its employee's qualified immunity as an affirmative defense. City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995). By doing so, the city preserves its right to an interlocutory appeal if its motion for summary judgment is denied. Accordingly, we find that the order denying the City's motion for summary judgment is an appealable order.

Holton contends that, even if jurisdiction of this appeal is accepted by the court, Section 51.014(5) limits the review to the merits of the city's immunity defense. Boozier v. Hambrick, 846 S.W.2d 593, 596 (Tex.App.--Houston [1st Dist.] 1993, no writ) (appellant does not have standing to appeal any ground set out in her motion for summary judgment except that of immunity). We agree. Accordingly, we will only consider appellant's point of error four which contends that the trial court erred in denying its motion for summary judgment because the city manager's decision to terminate Holton was discretionary and protected by qualified immunity.

Government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). Official immunity is an affirmative defense and the burden of proof is upon the defendant. Id.

In support of its immunity claim, the city contends that the city manager's decision to terminate Holton was discretionary and protected by qualified immunity, and that Holton was a probationary, at-will employee to whom no recognized exception to the at-will doctrine applies. Holton testified in his deposition that he had no contract of employment, had been hired on a six month probationary basis and that his termination came after being on the job for about ninety days. Holton also testified that, since he was a probationary employee, he could be terminated at any time and that it was not necessary for the city manager to give him any reason for his termination. According to Holton, however, the city manager told Holton that he was not satisfied with him. Holton contends that the reasons for his termination were different from those given to him by the city manager. In the affidavit filed in support of his response to the city's motion for summary judgment, Holton asserts that he was terminated for reporting the activities of the city manager, which he in good faith believed...