Cuellar v. City of San Antonio

• Decision Date: 09 October 1991
• Docket Number: No. 04-91-00062-CV,04-91-00062-CV
• Citation: 821 S.W.2d 250
• Parties: Adolfo CUELLAR, Sr., Alicia Cuellar, and Norma Jean Olivares, as next friend for Angelica Calderon, Appellants, v. CITY OF SAN ANTONIO, Appellee.
• Court: Texas Court of Appeals

Page 250

821 S.W.2d 250

Adolfo CUELLAR, Sr., Alicia Cuellar, and Norma Jean Olivares, as next friend for Angelica Calderon, Appellants, v. CITY OF SAN ANTONIO, Appellee.

No. 04-91-00062-CV.

Court of Appeals of Texas San Antonio.

Oct. 9, 1991.

Rehearing Denied Nov. 25, 1991.

Thomas C. Hall, Law Office of Tom Hall, P.C., San Antonio, for appellants.

Charles S. Frigerio, Hector X. Saenz, City Attorney's Office, Trial Section, San Antonio, for appellee.

Before CHAPA, BIERY and CARR, JJ.

OPINION

CHAPA, Justice.

Appellants, Adolfo Cuellar, Sr., Alicia Cuellar, and Norma Jean Olivares, as next friend for Angelica Calderon, appeal a summary judgment granted in favor of appellee, the City of San Antonio. The cause of action arose as a result of allegations that San Antonio police officer Stephen Smith shot and killed Adolfo Cuellar Jr., without justification or excuse, while Cuellar was in his front yard.

The issue is whether the trial court committed reversible error in granting the summary judgment.

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); TEX.R.CIV.P. 166a(c). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon, 690 S.W.2d at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311.

In reviewing summary judgment evidence, it is well established that sworn pleadings and denials to requests for admissions are not summary judgment evidence in Texas. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980); Hidalgo v. Surety Sav. and Loan Ass'n, 462 S.W.2d 540, 545 (Tex.1971). As such, a motion for summary judgment is a pleading and may not be considered as summary judgment evidence, Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex.App.--Houston [1st Dist.] 1988, no writ), nor is a response to summary judgment competent summary judgment evidence. Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 264 (Tex.App.--Fort Worth 1986, no writ). However, affidavits, depositions, interrogatories, and admissions are proper summary judgment evidence when referred to or incorporated in the motion for summary judgment, Stewart v. U.S. Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.--Houston [1st Dist.] 1985, no writ), citing First Fed. Sav. & Loan Ass'n v. Bustamante, 609 S.W.2d 845, 849 (Tex.Civ.App.--San Antonio 1980, no writ), but the trial court may not receive extrinsic evidence, either oral or documentary, at the hearing on the motion for summary judgment. State v. Easley, 404 S.W.2d 296, 297 (Tex.1966); Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.). Statements contained in a brief also do not constitute summary judgment proof. Nationwide Fin. Corp. v. English, 604 S.W.2d 458, 463 (Tex.Civ.App.--Tyler 1980, dism'd as moot).

If the judgment granting the motion for summary judgment does not specify upon which ground it is based, the appellant must show that all of the independent grounds alleged are insufficient to support the judgment in order to obtain reversal. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied).

Supporting and opposing affidavits must be made on personal knowledge and set forth facts which would be admissible in evidence. TEX.R.CIV.P. 166a(f). Statements in an affidavit which are mere conclusions or which represent the affiant's opinion are insufficient. See Wise v. Dallas Southwest Media Corp., 596 S.W.2d 533, 536 (Tex.Civ.App.--Beaumont 1979, writ ref'd n.r.e.). The affidavit must set forth facts, not legal conclusions. Beta Supply, Inc. v. G.E.A. Power Cooling Sys., Inc., 748 S.W.2d 541, 542 (Tex.App.--Houston [1st Dist.] 1988, writ denied); Harbour Heights Dev., Inc. v. Seaback, 596 S.W.2d 296, 297 (Tex.Civ.App.--Houston [14th Dist] 1980, no writ). Hearsay statements contained in an affidavit are not sufficient controverting evidence. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex.1962); Lopez v. Hink, 757 S.W.2d 449, 451 (Tex.App.--Houston [14th Dist.] 1988, no writ); Butler v. Hide-A-Way Lake Club, Inc., 730 S.W.2d 405 411 (Tex.App.--Eastland 1987, writ ref'd n.r.e.).

In the present case, appellants filed a cause of action against the appellee pursuant to 42 U.S.C. 1983 contending "that Stephen Richard Smith, as an employee or agent of the Defendant City of San Antonio, operating under color of statute, ordinance, regulation, custom, or usage, deprived the Plaintiffs' Decedent [appellant] of rights, privileges, or immunities secured by the Federal Constitution or Federal Law" when Adolfo Cuellar was shot and killed by Smith. Appellants' further contended that the appellee, acting though its agent Smith, proximately caused the death of Cuellar as follows:

1. The Defendant City of San Antonio failed to adequately psychologically train and/or psychologically evaluate Stephen Richard Smith for fitness as a Police Officer, or, in the alternative, were grossly negligent in the psychological training and psychological evaluation of Stephen Richard Smith;

2. Defendant City of San Antonio, acting by and through its Principals or Vice Principals had actual knowledge of the unfitness of Stephen Richard Smith as a Police Officer prior to the death of Adolfo Cuellar, Jr. No action, or insufficient action, was taken in face of the knowledge of the facts made known to the Defendant City of San Antonio. The actions of Stephen Richard Smith, and others, in regard to the deprivation of rights, privileges, or immunities secured by the Federal Constitution, particularly the Fifth and Fourteenth Amendment's guarantee to be secure from the deprivation of life, liberty, or property without due process of law, amounted to a policy of the Defendant.

Appellee filed a motion for summary judgment, contending that it was entitled to judgment as a matter of law because 1) "if Stephen Smith was the sniper who intentionally killed Adolfo Cuellar, Jr. that said act on the part of Stephen Smith could not have been taken 'under color of law,' as a matter of law"; 2) "the City of San Antonio is immune from liability pursuant to the Texas Tort Claims Act, Chapter 101, Section 101.056 and Section 101.057, as a matter of law"; 3) and, because of "the defense of res judicata and collateral estoppel pursuant to federal lawsuit Civil No. SA-86-CA-1680 which was a class action, and all the issues alleged in the case at bar have been disposed of pursuant to the federal lawsuit in favor of the Defendant City of San Antonio."

In support of the summary judgment, appellee attached the affidavit of Albert Ortiz stating that he is "over the age of eighteen and ... capable of making this affidavit"; that he is a lieutenant with the San Antonio Police Department in charge of Homicide; that he has reviewed "numerous investigative files from the San Antonio Police Department, the Texas Rangers and the Federal Bureau of Investigation with regard to the Stephen Smith investigation subsequent to his [Smith's] death on August 18, 1986"; that he "was accepted by Circuit Judge Henry Politz as an expert in the field of criminal investigation and testified at the trial"; that he has "reviewed the criminal murder case of Adolfo Cuellar Jr. which occurred on August 31, 1985 between the hours of 02:50 AM and 03:05 AM"; that "after a thorough review of the facts of the case, the following issues are undisputed: At the time of the murder of Adolfo Cuellar Jr. mentioned above, Stephen Smith was off-duty from his patrol shift"; "[h]is working hours were from 15:00 until 23:00 according to the Log Sheets of the San Antonio Police Department"; that the weapon used in the murder of Adolfo Cuellar Jr., which was found in Smith's apartment following his death, "was never the property of the City of San Antonio Police Department"; and, that the San Antonio Police Department has never stocked nor owned the type of weapon used in the murder of Cuellar. However, as required by TEX.R.CIV.P. 166a(f), Ortiz's affidavit fails to reflect that the affidavit was "made on personal knowledge."

Appellants responded by contradicting appellee's allegations and produced a supporting affidavit by their attorney which stated that he is not disqualified to make the affidavit; that he has "personal knowledge of the facts contained herein and they are true and correct"; that he is the attorney of record in this case and did not represent any of the claimants in federal lawsuit No. SA-86-CA-1680 or participate therein; that the federal lawsuit was originally certified as a class action, but later decertified as a class action prior to trial; that he is familiar with the evidence presented in said federal lawsuit; that it is anticipated that there will be a difference in the evidence presented in the federal lawsuit and this case, and a difference in the admissibility of the evidence because of the different rules of evidence; that some items of evidence are not available to date, but will possibly be vital evidence in the future; and, that the claimants herein were not represented in the federal lawsuit and did not testify therein.

The record further contains the affidavit of Rudy Vasquez, which states that he is not disqualified from executing the affidavit, that he has "personal knowledge of the facts contained herein and they are true and correct," and that the copies attached "are true and correct copies of documents produced by The City of San...