Delcourt v. Silverman
| Decision Date | 07 March 1996 |
| Docket Number | No. 14-94-00579-CV,14-94-00579-CV |
| Citation | 919 S.W.2d 777 |
| Parties | . Dr. Edward SILVERMAN, Ph.D. and Norma Levine Trusch, Appellees. Court of Appeals of Texas, Houston (14th Dist.) |
| Court | Texas Court of Appeals |
Karen Ann Delcourt, Houston, pro se.
Katrina D. Packard, Houston, Jolene Wilson-Glah, Houston, for appellees.
Before YATES, FOWLER and O'NEILL, JJ.
Karen Ann Delcourt, appellant, appeals from summary judgments in favor of Dr. Edward Silverman, Ph.D., and Norma Levine Trusch, appellees, in a suit arising out of a child custody dispute. Delcourt brings nine points of error alleging the trial court erred in granting the summary judgments. We affirm.
On May 17, 1988, Delcourt and Tony Moreland were divorced. Moreland was named managing conservator of the couple's minor child, Tiffany; Delcourt was granted visitation. On February 17, 1989, Moreland filed a motion to modify asking the court to restrict Delcourt's access to Tiffany. Delcourt filed a motion asking to be appointed sole managing conservator. Following a jury trial, Moreland was removed as sole managing conservator, and Delcourt was appointed sole managing conservator.
In March 1990, Moreland moved to modify custody based on allegations that Tiffany's "present environment may endanger her physical health or significantly impair her emotional development." The trial court held a hearing and issued temporary orders removing Delcourt as the sole managing conservator and appointing Moreland temporary managing conservator. Delcourt, though served with notice, did not appear at the hearing. In the same order, the trial court appointed Dr. Edward Silverman, Ph.D., a psychologist, to evaluate Tiffany, Delcourt, and Moreland. The order required Silverman to interview and evaluate the parties, and file a written report with the trial court. A few days later, the trial court appointed Norma Levine Trusch as guardian ad litem for Tiffany.
In October 1990, a jury trial was held to determine the custody issue. The jury found Delcourt should be removed as sole managing conservator and Moreland should be appointed. The trial court entered an order based on the jury's verdict.
On October 1, 1992, Delcourt filed the present suit against Silverman and Trusch. Delcourt filed several amended petitions alleging numerous causes of action. Silverman and Trusch filed motions for summary judgment arguing that as a matter of law: (1) they owed no duty to Delcourt; and (2) they were protected by judicial immunity for actions taken within the scope of their appointments. The trial court granted the motions for summary judgment.
Summary judgment for a defendant is proper where the summary judgment evidence negates an essential element of the plaintiff's cause of action as a matter of law or establishes all elements of an affirmative defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). The Texas Supreme Court has clearly articulated the appropriate standards to be used when reviewing summary judgments:
1. the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law;
2. in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
3. every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex.App.--Houston [14th Dist.] 1992, writ denied).
When an order granting summary judgment does not specify the grounds upon which it is granted, as in the present case, the judgment will be affirmed on appeal if any of the grounds raised in the motion are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). The two grounds for summary judgment urged by Silverman and Trusch were: (1) no duty; and (2) judicial immunity. Delcourt has contested the summary judgments both substantively and procedurally. We will first address the procedural issues, then consider appellees' affirmative defense of judicial immunity.
In her first point of error, Delcourt claims the trial court erred in granting the summary judgments for Silverman and Trusch because their motions for summary judgment failed to address all of the causes of action alleged by Delcourt in her Third Amended Original Petition. Delcourt's claim is apparently based on the fact that Silverman and Trusch filed their motions before Delcourt filed her Third Amended Original Petition. Although there is some dispute in this case as to whether the Second or Third Amended Original Petition was the live pleading at the time of the hearing on the motions for summary judgment, it is immaterial because the same causes of action are raised in both petitions: (1) negligence; (2) fraud; (3) civil conspiracy; and (4) intentional infliction of severe mental distress.
In her brief, Delcourt argues that her Third Amended Original Petition alleged claims for: (1) breach of common law duty; (2) breach of court appointed duty; (3) negligence; (4) fraud; (5) violation of her constitutional and parental rights; (6) civil conspiracy; (7) tortious interference with custodial and parental rights; (8) intentional infliction of severe mental distress; and (9) failure to provide standard of care. However, we have closely reviewed Delcourt's Third Amended Original Petition and find she did not allege all of the causes of action she claims in her appellate brief. Nowhere does Delcourt allege "tortious interference with custodial and parental rights," even if such a cause of action was recognized in Texas. Although Delcourt does summarily state she was denied "her constitutional right to due process," she fails to articulate facts supporting such a claim. Further, several of the causes of action that Delcourt claims she alleged are not specifically recognized in Texas and are merely permutations of ordinary negligence, e.g., breach of common-law duty, breach of court-appointed duty, and failure to provide standard of care. A careful examination of Delcourt's Third Amended Original Petition shows she pled the four legally cognizable causes of action stated above: (1) negligence; (2) fraud; (3) civil conspiracy; and (4) intentional infliction of severe mental distress.
The motions for summary judgment filed by Silverman and Trusch allege they are entitled to judgment as a matter of law because: (1) they owed no duty to Delcourt, an argument relevant to those causes of action involving an element of duty; and (2) they are entitled to judicial immunity, an argument relevant to all of the causes of action alleged by Delcourt. Thus, the motions address all causes of action alleged in the Third Amended Original Petition. Delcourt's first point of error is overruled.
In her second point of error, Delcourt argues the trial court erred in granting summary judgment in favor of Trusch because Trusch served her with a response during the hearing on the motion for summary judgment. This response allegedly contained additional affidavits as summary judgment evidence. In view of our decision in points three through eight, discussed below, we find this point of error meritless. The summary judgment evidence attached to Trusch's amended motion for summary judgment was sufficient to entitle her to prevail, therefore, whether the response containing the additional affidavits was untimely is immaterial. Appellant's second point of error is overruled.
In points of error three through five and nine, Delcourt essentially contends the trial court should not have granted summary judgment in favor of Silverman and Trusch because: (1) there was a material fact issue regarding the existence of a duty; and (2) appellees were not entitled to absolute immunity. We will first address whether Silverman and Trusch were entitled to summary judgment based on their affirmative defense of absolute immunity.
This case presents questions of first impression in Texas: whether a psychologist, appointed under Rule 167a(d)(1) in a case arising under Title II of the Texas Family Code, and a guardian ad litem, appointed under article 11.10 of the Texas Family Code, are entitled to absolute immunity for actions taken pursuant to their appointments.
It is well-established that judges are absolutely immune from liability for judicial acts that are not performed in the clear absence of all jurisdiction, no matter how erroneous the act or how evil the motive. Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir.), cert. denied, 492 U.S. 921, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989); Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, 423 (1961). Judges are granted this broad immunity because of the special nature of their responsibilities. Kegans, 870 F.2d at 995. Judicial immunity, which is firmly established at common law, protects not only the individual judges, but benefits the public "whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences." Bradley v. Fisher, 80 U.S. (13 Wall) 335, 350, 20 L.Ed. 646 (1871) (citations omitted).
When judges delegate their authority or appoint others to perform services for the court, the judicial immunity that attaches to the judge may follow the delegation or appointment. Byrd v. Woodruff, 891 S.W.2d 689, 707 (Tex.App.--Dallas 1994, writ denied). Officers of the court who are integral parts of the judicial process, such as court clerks, law clerks, bailiffs, constables issuing writs, and court-appointed receivers and trustees are entitled to judicial immunity if they actually function...
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