Davis v. James West

• Decision Date: 09 March 2010
• Docket Number: No. 01-08-01006-CV.,01-08-01006-CV.
• Citation: 317 S.W.3d 301
• Parties: Veronica L. DAVIS, Appellant,v.James WEST, Henry Radoff and Prosperity Bank, Appellees.
• Court: Texas Court of Appeals

317 S.W.3d 301

Veronica L. DAVIS, Appellant,v.James WEST, Henry Radoff and Prosperity Bank, Appellees.

No. 01-08-01006-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 31, 2009.

Rehearing Overruled March 9, 2010.

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Veronica L. Davis, West Columbia, TX, pro se.

Cynthia Lea Jones, Gerald Scott Siegmyer, Siegmyer, Oshman & Bissinger LLP, John P. Scott, Cruse, Scott, Henderson & Allen, Houston, TX, for Appellees.

James A. West, Houston, TX, pro se.

Panel consists of Justices KEYES, ALCALA and HANKS.

OPINION

GEORGE C. HANKS, JR., Justice.

Appellant, Veronica Davis, complains that the trial court improperly granted summary judgment dismissing her claims against Henry V. Radoff and Prosperity Bank (“the Bank”). We affirm.

Background

In 2004, Houston Reporting Service, (“Houston Reporting”) filed a suit on a sworn account against Davis, an attorney who used Houston Reporting's services during a past deposition. The suit was filed in Justice Court in Harris County. In its suit, Houston Reporting sought payment of $1083.98 plus attorney's fees, interest and costs. A default judgment was entered against Davis. After the default judgment became final, Houston Reporting began efforts to collect the amount owed. The justice court entered a written order, signed on June 27, 2006, appointing Radoff as receiver and including a turnover order commanding that Radoff take possession of “all ... monies on deposit in financial institutions, financial accounts (bank accounts), certificate of depositions, money market accounts, accounts held by any third party....” Pursuant to the court's order, Radoff was required to post a bond in the sum of $100.00. The turnover order did not state the total amount of the judgment serving as the basis for the receivership, nor did it include any statement as to the costs, fees or interest awarded in that underlying judgment. The underlying default judgment was not attached to the turnover order and it does not appear in the record of this appeal.

On July 24, 2006, Radoff sent Davis a letter informing her that he had been named receiver and asking that she turn over any nonexempt property to satisfy the judgment against her. On July 25, 2006, the Bank received a faxed letter from Radoff, stating that he had been appointed receiver and empowered to seize funds belonging to Davis. Radoff demanded that all accounts in Davis's name be frozen and he stated that the amount due was $3,400. A copy of the turnover order appointing Radoff as receiver was attached to this faxed letter. On July 26, Radoff sent a second letter to the Bank stating that the amount to be turned over was $4,144.91. The Bank released the sum of $4,144.91 to Radoff. This sum was used to satisfy the judgment owed to Houston Reporting and the receivership was then closed. That same day, the Bank sent Davis a letter informing her that it had received the order from Radoff and that her account had been frozen.

On October 9, 2006, Davis filed this action in district court in Brazoria County against Houston Reporting, its attorney, Radoff and the Bank. Davis asserted a challenge to the receivership, a claim for abuse of process against Radoff, and claims for breach of contract and breach of fiduciary duty against the Bank. Davis also alleged that the Bank had released personal information to Radoff without her permission.

On August 24, 2007, Radoff filed a motion for summary judgment. On February 1, 2008, the trial court granted summary judgment in Radoff's favor on the grounds that he was entitled to derived judicial immunity and dismissed Davis' claims regarding the insufficiency of his bond. The trial court denied Radoff's no-evidence motion.

On July 21, 2008, the Bank sought summary judgment, arguing that Davis had no evidence to support her claims and that, as a matter of law, it was insulated from any liability by statute. The Bank's motion also argued that Davis could not present any evidence that its failure to demand a certified copy of the turnover order, rather than a faxed copy, was the proximate cause of any of Davis's damages.

Davis filed a response to the Bank's motion and her own cross-motion for summary judgment against the Bank on August 8, 2008. Davis's response to the Bank's motion alleged that the Bank's motion should not be granted due to the fact that the Bank's notice of the hearing failed to give adequate notice and because an adequate time for discovery had not yet elapsed. In her cross-motion, Davis asked that the court grant her summary judgment on her breach of contract claim against the Bank.

On August 12, 2008, the trial court granted the Bank's motion for traditional and no-evidence summary judgment. The trial court denied Davis's motion for summary judgment on October 6, 2008. On November 11, 2008, the trial court entered an order severing Davis's claims against Radoff and the Bank from her claims against Houston Reporting and its attorney. This appeal by Davis followed.

Analysis

On appeal, Davis complains that the trial court erred by rendering summary judgment on her claims against Radoff and the Bank. As to Radoff, Davis contends the trial court erred by rendering summary judgment in Radoff's favor because Radoff does not enjoy derived judicial immunity nor did Radoff have any “authority to act at all in this case” because the order under which he acted was invalid. As to the Bank, Davis argues the trial court erred by granting the Bank's motion for summary judgment because (1) the Bank released funds from her account to Radoff without demanding a certified copy of the turnover order, (2) the order appointing Radoff was invalid, and (3) the Bank was not served with the order at its registered address. Davis also complains that she did not receive proper notice of the hearing on the Bank's motion for summary judgment under Rule 21a of the Texas Rules of Civil Procedure.

Standard of Review

Radoff and the Bank moved for summary judgment on both traditional and no-evidence grounds, and Davis sought a traditional summary judgment on her breach of contract claim. Thus, we apply the familiar standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor. See, e.g., Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004) (traditional summary judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (no-evidence summary judgment).

When both parties to a suit move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When the trial court grants one party summary judgment and denies the other, we review both parties' summary judgment evidence, determine all questions presented, and render the judgment the trial judge should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). When the trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed on any meritorious ground expressly presented in the motion and which is preserved for appellate review. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

I. Did the trial court err in granting Radoff's Motion for Summary Judgment?A. Radoff's Derived Judicial Immunity

In her first issue, Davis contends that the trial court erred in granting Radoff's motion for summary judgment because he does not enjoy derived judicial immunity and the Texas Civil Practice and Remedies Code specifically allows suits against receivers.¹

A person entitled to derived judicial immunity receives the same absolute immunity from liability for acts performed within the scope of his jurisdiction as a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex.2002). Judicial immunity can attach to certain non-judges because the policy reasons for judicial immunity-protection of individual judges and of the public's interest in an independent judiciary-are also implicated when judges delegate their authority, appoint another to perform services for the court, or allow another to otherwise serve as an officer of the court. Id. In those circumstances, the immunity attaching to the judge follows the delegation, appointment, or court employment. Id. The person acting in such a capacity thus also enjoys absolute immunity, which is known as derived judicial immunity. Id.

Texas uses a “functional approach” to determine whether someone is entitled to derived judicial immunity. Id. at 556-57. The “functional approach looks to whether the person seeking immunity is intimately associated with the judicial process” and whether “that person exercises discretionary judgment comparable to that of the judge.” Id. at 554 (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex.App.-Houston [14th Dist.] 1996, writ denied)). The functional approach focuses on the nature of the function performed, not the identity of the actor, and considers whether the court officer's conduct is like that of the delegating or appointing judge. Id. at 555.

Radoff contends that, as a court-appointed receiver acting within the scope of his authority, he is entitled to derived judicial immunity. We agree. “Like a court-appointed bankruptcy trustee acting within his authority as trustee, a court-appointed receiver acts as an arm of the court and is immune from liability for actions grounded in his conduct as receiver.” Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex.App.-Austin 2009, pet. denied) (mem. op.) (citing Clements v. Barnes, 834 S.W.2d 45, 46 (Tex.1992) (court-appointed bankruptcy trustees acting within scope of authority entitled to derived judicial immunity); Alpert v. Gerstner, 232 S.W.3d 117, 130-31 (Tex.App.-Houston [1st Dist.] 2006, pet....