Harris County v. Walsweer
| Decision Date | 11 July 1996 |
| Docket Number | No. 01-94-00005-CV,01-94-00005-CV |
| Citation | 930 S.W.2d 659 |
| Parties | HARRIS COUNTY, Appellant, v. Harry WALSWEER, Appellee. Harry WALSWEER, Appellant, v. HARRIS COUNTY, Ed "Tracy" Maxon, Brian Black, Tim Martin, John Schlein, Corey Burhalter, The Honorable Jon Lindsay, Tommy Tompkins, Katy Caldwell, The Honorable El Franco Lee, The Honorable Jim Fonteno, The Honorable Steve Radack, The Honorable Jerry Eversole, and The Honorable Glen Cheek, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Frank Sanders, Sandra D. Hachem, Houston, for Appellant.
Wayne Fisher, Denice Smith, Olan J. Boudreaux, Houston, for Appellees.
Before WILSON, HUTSON-DUNN and O'CONNER, JJ.
OPINION ON MOTION FOR REHEARING
Harris County's motion for rehearing is denied. However, we withdraw our opinion of March 7, 1996, and substitute this opinion in its place.
Two separate appeals have arisen in this case. Harris County appeals a summary judgment granted in favor of Harry Walsweer (Walsweer). Walsweer appeals the denial of a writ of mandamus to compel Harris County officials to pay a 1988 judgment rendered against Constable Ed Maxon and his deputy constables.
On September 14, 1984, Walsweer's daughter, Sharri, and her estranged husband, Mike, got into a heated argument at her parents' home. Walsweer and his wife, Sherron, asked Mike to leave and escorted him outside. Sharri called the Houston Police Department and a friend called the Harris County Constable's Office. When he came back into the house, Walsweer told the others that Mike had left.
A little while later, Sharri saw someone with a gun at the kitchen window. She thought it was Mike, dropped to her knees, and shouted to the others that Mike had returned with a gun. Walsweer's wife got a pistol and went to the front door. When she opened the door to see whether Mike was outside, she saw movement from underneath a bush and dived to the ground. Walsweer was standing behind her, about nine feet from the entry way, when he was hit by bullets fired by four deputy constables. At least 15 shots were fired, and Walsweer was hit five times. Walsweer was hospitalized for more than eight months and is confined to a wheelchair.
This is the third appeal of this case. Originally, Walsweer brought suit in 1985 against Harris County, Constable Maxon, and the four deputy constables, Brian Black, Tim Martin, John Schlein, and Corey Burhalter. Walsweer alleged that the defendants, under color of law, deprived him of his constitutional rights in violation of 42 U.S.C. § 1983.
The original trial and first appeal
The case was tried in 1988. At the close of all the evidence, the trial court granted an instructed verdict in favor of Harris County. The remainder of the case against the other defendants was submitted to the jury. The jury found that (1) the deputy constables deprived Walsweer of his constitutional rights by shooting at him recklessly and with conscious disregard of a substantial and unjustifiable risk of injury or death; (2) such action was the proximate cause of his injury; (3) the deputy constables were grossly negligent; (4) their gross negligence was the proximate cause of the shooting; (5) serious incompetence or misbehavior was general or widespread throughout the precinct; (6) such incompetence or misbehavior was known by Harris County; (7) Constable Maxon had an official policy or custom of providing inadequate training to deputy constables in his precinct; (8) this official policy or custom constituted gross negligence and was a proximate cause of the shooting; and (9) Walsweer was damaged in the amount of $5,067,338.
After the jury returned a verdict for Walsweer, the trial court rendered judgment on March 31, 1988, against Constable Maxon and the four deputy constables "in their official capacities" for $5,799,101, plus prejudgment interest in the amount of $478,103.20.
On August 23, 1990, the Eleventh Court of Appeals reversed the instructed verdict against Harris County and remanded; however, the court affirmed the official-capacity judgment against the other defendants. 1 See Walsweer v. Harris County, 796 S.W.2d 269, 276 (Tex.App.--Eastland 1990, writ denied), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991).
The remand and second appeal
On remand, Walsweer filed a motion to enforce the judgment and alternatively, a motion for summary judgment, arguing that because the Eleventh Court of Appeals affirmed the judgment against the constable and the deputies in their official capacities, judgment should be rendered against Harris County as a matter of law. The trial court granted the summary judgment. Harris County appealed.
In an unpublished opinion issued November 24, 1992, the Sixth Court of Appeals reversed the summary judgment and remanded to the trial court. 2 Harris County v. Walsweer, No. 6-92-079-CV, slip op. at 5 (Tex.App.--Texarkana 1992, no writ) (not designated for publication). The court of appeals stated:
No evidence whatsoever is attached or in any manner incorporated [to Walsweer's motion for summary judgment]. When this case was previously appealed, the court of appeals reversed the instructed verdict in favor of Harris County because there were factual questions as to whether Constable Maxon was the county's policy maker, as to whether the commissioner's court was the policy maker as to hiring and training deputy constables, and about the custom of Harris County in training deputies. Upon the initial remand, these questions remained. In that [Walsweer] produced no summary judgment evidence to establish that any factual issues were established as a matter of law, the trial court erred in entering the summary judgment.
The second remand and this appeal
After remand, on June 25, 1993, Walsweer again filed a motion for summary judgment, arguing that Harris County was liable by virtue of the official-capacity judgment rendered against the constable and the deputies, and that Harris County was collaterally estopped from relitigating the issue of its liability. Walsweer also filed a motion for issuance of a writ of mandamus asking the trial court to direct Harris County to pay the official-capacity judgment. On November 10, 1993, the trial court granted the motion for summary judgment and denied the motion for mandamus relief. This appeal resulted.
We will first address Harris County's appeal in which it contends the trial court erred in granting summary judgment in favor of Walsweer.
Standard of review
Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact, and therefore, the movant is entitled to judgment as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Long v. State Farm Fire & Casualty Co., 828 S.W.2d 125, 126-27 (Tex.App.--Houston [1st Dist.] 1992, writ denied). When a plaintiff moves for summary judgment, it must prove it is entitled to summary judgment as a matter of law on each element of its cause of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). In reviewing the summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.--Houston [1st Dist.] 1993, writ denied).
If the trial court's order does not state the grounds on which summary judgment was granted, we will affirm the summary judgment if any of the theories advanced are meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex.App.--Houston [1st Dist.] 1993, no writ).
The law of the case doctrine
In point of error one, Harris County contends that the trial court erred in granting summary judgment because in doing so, it disregarded the law of the case decided in the previous appeals of this case.
The "law of the case" doctrine is that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986); Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex.1978). "By narrowing the issues in successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency." Hudson, 711 S.W.2d at 630. The doctrine only applies to questions of law and does not apply to questions of fact. Id. Moreover, the doctrine does not necessarily apply when either the issues or the facts presented in successive appeals are not substantially the same as those involved in the first trial. Id.
Harris County contends that the Sixth Court of Appeals decided, adversely to Walsweer, the legal question of whether a judgment against the constable and the four deputies in their official capacities resulted in automatic liability against Harris County; it contends that the court of appeals reversed and remanded the case because it found fact issues existed precluding summary judgment. We disagree.
The Sixth Court of Appeals held that Walsweer's summary judgment motion was deficient because he did not support the motion with any summary judgment evidence. Walsweer, slip op. at 5. The court concluded that because Walsweer did not produce any evidence to establish any fact issues as a matter of law, the trial court erred in entering summary judgment. Id. The court of appeals then reversed and remanded the summary judgment. The court of appeals held only that the motion filed by Walsweer was defective; it did not adjudicate the issue of whether Harris County could be held liable in this case. The opinion did not set a "law of the case" that precluded Walsweer from filing a motion for summary judgment on remand.
Harris County also contends...
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