City of Harlingen v. Vega

• Citation: 951 S.W.2d 25
• Decision Date: 22 May 1997
• Docket Number: No. 13-97-027-CV,13-97-027-CV
• Parties: CITY OF HARLINGEN, Texas, Timoteo Flores, and Matthew Charles Manning, Appellants, v. Rosa Mata VEGA, Appellee.
• Court: Texas Court of Appeals

Page 25

951 S.W.2d 25

CITY OF HARLINGEN, Texas, Timoteo Flores, and Matthew Charles Manning, Appellants, v. Rosa Mata VEGA, Appellee.

No. 13-97-027-CV.

Court of Appeals of Texas Corpus Christi.

May 22, 1997.

Rehearing Overruled July 10, 1997.

Roger W. Hughes, Charlie J. Cilfone, Adams & Graham, Harlingen, for Appellants.

Seferino I. Trevino, Jr., Harlingen, for Appellee.

Before DORSEY, FEDERICO G. HINOJOSA, Jr. and RODRIGUEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This is an interlocutory appeal from the denial of a motion for summary judgment. By three points of error, appellants complain that the trial court erred by denying their motion for summary judgment and by considering appellee's summary judgment evidence over their objections. We affirm the trial court's order denying appellants' motion for summary judgment.

Background

The parties agree on a limited number of facts. Following a minor hit-and-run accident in April 1995, Harlingen police officers Timoteo Flores and Matthew Charles Manning stopped Rosa Mata Vega on U.S. Highway 77. The officers subsequently arrested Vega for driving while intoxicated.

Almost every other fact surrounding the stop and arrest is disputed. Both officers contend that Vega was drunk, combative, and uncooperative. Vega claims that she did not fight but was forced into the back of the police car, face down on the floorboard, and unnecessarily struck in the back and head.

Vega sued the City of Harlingen and officers Flores and Manning. Flores and Manning were sued individually and in their official capacity as police officers for assault, battery, conspiracy, and negligence. Vega's petition also alleged a 42 U.S.C. § 1983 claim against Flores, Manning, and the City for violating her Fourth, Fifth, and Fourteenth Amendment civil rights. Appellants moved for summary judgment on immunity grounds. Flores and Manning claimed that they were entitled to "qualified immunity" against Vega's civil rights claim and "official immunity" against her tort claims. ¹ The City claimed governmental immunity under state law.

After considering appellants' motion for summary judgment, appellee's response, appellants' reply, and the summary judgment evidence presented, the trial court denied appellants' motion for summary judgment. The trial court found that material issues of fact needed to be decided by a jury.

Jurisdiction

Vega contends that we do not have jurisdiction to hear this appeal because the denial of the summary judgment was based on the trial court's finding that material facts exist. ² Appellants admit that this is an appeal from an interlocutory order, but argue that the order is appealable because the motion for summary judgment was based on the affirmative defenses of official and qualified immunity asserted by Flores and Manning and the assertion of governmental immunity by the City of Harlingen.

A. Vega's Claims Against Flores and Manning

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); Cameron County v. Alvarado, 900 S.W.2d 874, 878 (Tex.App.--Corpus Christi 1995, writ dism'd w.o.j.). 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; Alvarado, 900 S.W.2d at 878. Section 51.014 of the Civil Practice and Remedies Code specifically allows "a person" to appeal 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[.]" TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1997). The supreme court has held that section 51.014(5) provides that the denial of a summary judgment motion may be appealed if it "is based on an assertion of" official 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). We conclude that we have jurisdiction to review the appeal of Flores and Manning.

B. Vega's Claims Against the City Under State Law

The City of Harlingen asserts that it enjoys sovereign immunity under the Texas Tort Claims Act against claims arising from "the failure to provide or the method of providing police or fire protection." TEX. CIV. PRAC. & REM.CODE ANN. § 101.055(3) (Vernon Supp.1997). Under the 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 official 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 official immunity and falls within the scope of section 51.014(5). Kilburn, 849 S.W.2d at 812; Ramirez, 865 S.W.2d at 582. Therefore, we have jurisdiction to review the City's appeal concerning the sovereign immunity claim that is "based on" Flores' and Manning's assertion of official immunity.

C. Vega's Claims Against the City Under Federal Law

In a federal civil rights action under section 1983, the U.S. Supreme Court has made it clear that neither a municipality's sovereign immunity nor "good faith" is recognized as a defense. Owen v. City of Independence, Missouri, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); Daniels v. Williams, 474 U.S. 327, 333-35, 106 S.Ct. 662, 666-67, 88 L.Ed.2d 662 (1986). Furthermore, municipalities do not enjoy qualified immunity from section 1983 suits as a "person." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). Finally, the political subunit of a state has no protection based on the qualified immunity of its officials or employees in a civil rights action as the doctrine of qualified immunity is applicable only to an individual's liability. Alberti v. Sheriff of Harris County, 978 F.2d 893, 895 (5th Cir.1992), cert. denied, Richards v. Alberti, 509 U.S. 905, 113 S.Ct. 2996, 2996, 125 L.Ed.2d 690 (1993). Therefore, the City's defense of governmental immunity against Vega's section 1983 claims cannot be based on Flores' and Manning's affirmative defense of qualified immunity. Accordingly, the City's governmental claim does not fall within the scope of section 51.014(5), and we have no jurisdiction to review that portion of the City's appeal.

Appellants' Objections to Vega's Summary Judgment Proof

By their third point of error, appellants contend that the trial court erred in considering the appellee's affidavit as summary judgment evidence despite their objections to it.

In response to appellants' motion for summary judgment, Vega asserted that her sworn affidavit constituted evidence of appellants' violation of her constitutional rights. Appellants objected to the trial court's consideration of this evidence on the ground that it contained legal conclusions that Vega was not qualified to reach. They further objected that Vega was not an expert and that the evidence she presented was not "clear, positive and direct [not] otherwise credible [nor] free from contradictions and inconsistencies." See TEX.R. CIV. P. 166a(c). Appellants did not obtain a written order overruling their objections to Vega's affidavit.

Appellants specifically object to Vega's use of the terms "excessive force" and "resisting arrest." Proper use of either term, appellants contend, requires knowledge of their legal constitution and no evidence establishes that Vega has either background or education to draw such legal conclusions. Appellants cite us to four cases to support their contention that Vega's affidavit is inadequate summary judgment proof.

In Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984), the husband submitted as summary judgment evidence an affidavit which stated only that the agreement at issue had been modified and presented no facts, such as the exact nature of the modification, which would have defeated the grant of summary judgment. The court held this to be no more than a legal conclusion, and that affidavits consisting only of conclusions are insufficient to raise an issue of fact. Id.

Carrozza's affidavit in Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994), contained only aversions of subjective belief; he asserted no facts that formed the basis of his beliefs. The court held that subjective beliefs or statements of knowledge without indication of the factual basis are no more than conclusions and are not competent summary judgment evidence. Id. (citations omitted); see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996)(mere expressions of belief do not positively and unqualifiedly represent that the "facts" disclosed are true). Carrozza also did not deny or contradict the facts in support of the motion for summary judgment. Carrozza, 876 S.W.2d at 314.

In Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex.1988), even though the appellant's affidavit contained assertions of fact, it did not disclose the basis upon which appellant had personal knowledge of the facts asserted. Id. Rule 166a(e) provides that affidavits submitted in support of or in opposition to a motion for summary judgment "shall be made on personal...