Gonzalez v. Heard, Goggan, Blair & Williams

• Decision Date: 02 May 1996
• Docket Number: No. 13-93-453-CV,13-93-453-CV
• Citation: 923 S.W.2d 764
• Parties: Rosa GONZALEZ and Cruz Gonzalez, Appellants, v. HEARD, GOGGAN, BLAIR & WILLIAMS, Appellee.
• Court: Texas Court of Appeals

Page 764

923 S.W.2d 764

Rosa GONZALEZ and Cruz Gonzalez, Appellants, v. HEARD, GOGGAN, BLAIR & WILLIAMS, Appellee.

No. 13-93-453-CV.

Court of Appeals of Texas,

Corpus Christi.

May 2, 1996.

Rehearing Overruled May 30, 1996.

John F. Hood, Brownsville, Carter C. White, Austin, for appellants.

Christopher L. Phillippe, Brownsville, Karl E. Hays, San Antonio, for appellee.

Before DORSEY, DALLY ¹, and BASS ², JJ.

OPINION ON MOTION FOR REHEARING

DORSEY, Justice.

On original submission we affirmed the grant of summary judgment for appellee. Upon reconsideration we grant rehearing, reverse the judgment below, and remand for trial.

This is an appeal from a summary judgment based on sovereign immunity. The theory is that the law firm representing a governmental entity is shielded from suit by the same immunity that protects the unit of government. Appellee, Heard, Goggan, Blair and Williams, is a law firm collecting delinquent ad valorem taxes for Cameron County, the City of Harlingen and the Harlingen Independent School District. Cruz and Rosa Gonzalez, appellants, were taxpayers who owed delinquent ad valorem taxes to those taxing entities. Their property was scheduled to be sold at auction at a certain date for the delinquencies. Appellants allege that an attorney with the law firm extended the deadline for payment and promised them that their home would not be sold as scheduled if the delinquencies were paid. Although the Gonzalezes paid their delinquent taxes as agreed, their home was nonetheless sold at the originally scheduled auction.

The Gonzalezes sued the law firm asserting several causes of action. The law firm moved for summary judgment on the basis of sovereign immunity and the trial court granted it. Appellants perfected their appeal.

The sole ground asserted in appellee's motion for summary judgment is that the appellee's actions are protected by sovereign immunity. The law firm relies on language in the case of City of Houston v. First City, 827 S.W.2d 462 (Tex.App.--Houston [1st Dist.] 1992, writ denied). The court, after recognizing that collection of taxes is a governmental activity for a municipality and thus clothed with sovereign immunity, said:

It does not matter whether the attorney is a payroll employee of the governmental unit or a private attorney. Both are agents representing the governmental unit. Since the intended purpose of section 101.055 was to insure immunity to the taxing unit while performing the governmental function of collecting revenue, imposing personal liability upon its agent while performing this governmental function would be contrary to public policy.

Id. at 481.

Attached to the motion were copies of the contracts between the law firm and the City of Harlingen and Cameron County, and the plaintiff's original petition.

After the motion for summary judgment was filed, appellants amended their petition, alleging causes of action sounding in negligence, negligent misrepresentation, constructive fraud, and breach of an oral contract. As alternative claims for relief, appellants pleaded negligence and negligent misrepresentation under the Tort Claims Act. In their response to the motion for summary judgment, appellants argued that the law firm has not established as a matter of law agency with the governmental units, and that the firm's true relationship is one of independent contractor. As an independent contractor, the firm is not entitled to the defense of sovereign immunity. The response also distinguished the City of Houston case relied on by the appellee.

The test for granting a summary judgment is whether a material issue of fact exists and, if not, whether the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); R.I.O. Systems, Inc. v. Union Carbide Corp., 780 S.W.2d 489, 490 (Tex.App.--Corpus Christi 1989, no writ). The burden is on the movant to establish its entitlement to summary judgment.

Sovereign immunity is the doctrine through which the government is not answerable to suit or to damages in its own courts unless it consents to be sued. The immunity is that of a government or its subdivision and is an incident of sovereignty; that is, the power and right to govern. Sovereignty has not resided in a person in Texas since independence from the Spanish monarchy in 1821.

The immunity from suit that applies to individuals who are officials of the government is "official immunity," not sovereign immunity. Perry v. Texas A & I University, 737 S.W.2d 106, 109 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.). The summary judgment could not have been based on sovereign immunity of an individual or law firm.

In their response to the motion for summary judgment appellants argued the law firm was an independent contractor of the city and school district and the firm was not an employee or agent. The summary judgment evidence, sparse as it is, includes the contracts between the firm and the units of government. In its motion for summary judgment, the law firm did not argue that the taxing authorities had the right to control the details of the work or other criteria that would distinguish the relationship of employee from that of independent contractor.

An analogous line of highway construction cases presents persuasive reasoning for not allowing the law firm...