Koerselman v. Rhynard

• Decision Date: 10 March 1994
• Docket Number: No. 13-93-587-CV,13-93-587-CV
• Citation: 875 S.W.2d 347
• Parties: 91 Ed. Law Rep. 433 Herbert L. KOERSELMAN, Appellant, v. Maurice L. RHYNARD and Wife, Rebecca M. Rhynard, Appellees.
• Court: Texas Court of Appeals

Page 347

875 S.W.2d 347

91 Ed. Law Rep. 433

Herbert L. KOERSELMAN, Appellant, v. Maurice L. RHYNARD and Wife, Rebecca M. Rhynard, Appellees.

No. 13-93-587-CV.

Court of Appeals of Texas Corpus Christi.

March 10, 1994.

Kelli Hamm Karczewski, Asst. Atty. Gen., Dan Morales, Atty. Gen., Will Pryor, First Asst. Atty. Gen., Mary F. Keller, Deputy Asst. Atty. Gen., Jorge Vega, Chief, Gen. Litigation Div., Austin, for appellant.

Ann Chrane, Huntsville, Joe Hall, Huntsville, for appellees.

Before GILBERTO HINOJOSA, KENNEDY and YANEZ, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

This is an appeal from the trial court's denial of a motion for summary judgment filed by appellant, Herbert L. Koerselman. Appellant's sole point of error on appeal is that the trial court erred in not granting summary judgment based on his affirmative defense of official immunity. We reverse the trial court's ruling.

In 1984, appellee, Maurice L. Rhynard, was employed as an interim faculty member by the music department of Sam Houston State University ("SHSU"). In 1988, he was placed on a tenure track. Dr. Rhynard became eligible for tenure in April 1990.

The tenure process called for a probationary faculty member's performance to be evaluated by the students, tenured faculty, and the department chair. At the time he or she was considered for tenure, the tenure committee would take this information into consideration in determining whether to grant tenure. Appellant Koerselman, as Chair of the music department, was responsible for placing these evaluations in the candidate's file and conducted the tenure elections of each candidate for tenure.

In Dr. Rhynard's first tenure election, held on April 5, 1990, the tenured faculty inquired about rumors of sexual harassment charges against Dr. Rhynard. Dr. Koerselman said that this information was "confidential and privileged." Subsequent to the election, Dr. Koerselman wrote a letter, dated April 11, 1990, to Dean Richard Cording recommending that Dr. Rhynard be denied tenure. Dr. Koerselman stated in the letter that students had complained about inappropriate comments made by Dr. Rhynard because some comments had sexual overtones. The committee, however, decided not to render a decision regarding tenure because the committee found that Dr. Koerselman failed to place the requisite evaluation summaries in Dr. Rhynard's tenure file. Dean Cording advised appellant to place the evaluation summaries in Dr. Rhynard's tenure file before further consideration by the tenure committee. Appellant complied and placed some evaluations in the file. A second tenure election was held and Dr. Rhynard was denied tenure by the tenure committee.

As a result of the tenure committee's action in denying him tenure, Dr. Rhynard brought suit against the Board of Regents of the Texas State University System, Sam Houston State University, Sam Houston State University Faculty Tenure Hearing Committee, Martin J. Anisman (individually and as president of SHSU), B.K. Marks (vice-president of SHSU), Richard Cording (Dean of the College of Arts and Sciences at SHSU), Herbert Leroy Koerselman (individually and as Chair of the Department of Music at SHSU), and Jerry L. Dowling (individually and as Chair of the Faculty Tenure Hearing Committee of SHSU). Dr. Rhynard brought an action for violations of his constitutional rights to due process and equal protection, breach of contract, tortious interference with contract, and defamation of character and sought relief in the form of damages and injunctive and declaratory relief.

Defendants filed a motion for summary judgment asserting sovereign and official immunity which the trial court granted against all defendants except Dr. Koerselman, individually. The trial court severed Dr. Koerselman from the other defendants in the lawsuit, thus rendering the partial summary judgment final. Appellant Koerselman, in his individual capacity, reasserted the original motion for summary judgment which the trial court again denied. Appellant appeals from this interlocutory order.

By his sole point of error, appellant claims that the trial court erred in denying his motion for summary judgment and that he is entitled to official immunity.

Denial of a motion for summary judgment is an interlocutory order which ordinarily cannot be appealed. However, one may assert such an appeal if it is based on a claim of immunity by an individual who is an officer or employee of the state. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1994); see City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993). Thus the appeal is properly before this court.

The standard for reviewing a motion for summary judgment is well established. In order for the motion to be granted, appellant must conclusively prove all elements of his affirmative defense as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Garza v. Smith, 860 S.W.2d 631, 634 (Tex.App.--Corpus Christi 1993, no writ); Villarreal v. Martinez, 834 S.W.2d 450, 452 (Tex.App.--Corpus Christi 1992, no writ). 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 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). A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for a summary judgment. Albright v. Texas Dep't of Human Serv., 859 S.W.2d 575, 578 (Tex.App.--Houston [1st Dist.] 1993, no writ); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991). The non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement and he must present summary judgment proof when necessary to establish a fact issue. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Albright, 859 S.W.2d at 579.

Official immunity is an affirmative defense. Kilburn, 849 S.W.2d at 812 n. 1. Under the doctrine of official immunity, state employees are immune from being personally liable in tort actions for discretionary acts performed in good faith within the scope of their employment. Albright, 859 S.W.2d at 579; Austin v. Hale, 711 S.W.2d 64, 66 (Tex.App.--Waco 1986, no writ); Torres v. Owens, 380 S.W.2d 30, 33 (Tex.Civ.App.--Corpus Christi 1964, writ ref'd n.r.e.). Officials are not held liable for honest mistakes of law or judgment. Torres, 380 S.W.2d at 35. Thus, three factors constitute the doctrine of official immunity: (1) the official acts within his scope of employment; (2) the official performs a discretionary, not ministerial, act; and (3) the official acted in good faith.

The issue here is whether Dr. Koerselman is immune from suit because of his status as an official and because the cause of action arose as a result of his official activities on behalf of SHSU. Dr. Koerselman claims that he had conclusively established all elements of the defense of official immunity and that there are no genuine issues of material fact. Dr. Rhynard, on the other hand, contends that appellant acted in bad faith and outside the scope of his authority by failing to place evaluation summaries in his file since this was a mandatory, not discretionary, act.

Scope of Employment

We look first to determine whether Dr. Koerselman was acting within his scope of employment when he failed to provide the evaluation summaries. A person acts within the scope of his authority when he performs his official duties. The fact that a specific act that forms the basis of the suit may have been wrongly or negligently performed does not take it outside of the scope of authority. Edgar v. Plummer, 845 S.W.2d 452, 453 (Tex.App.--Texarkana 1993, no writ); Baker Hotel of Dallas v. Rogers, 157 S.W.2d 940, 943 (Tex.Civ.App.--Dallas 1941), writ ref'd w.o.m. per curiam, 138 Tex. 398, 160 S.W.2d 522 (1942). In Edgar, a motorist filed suit against a police officer alleging he was illegally stopped and detained. The court found that the officer had probable cause to stop the motorist. Nevertheless, the court held that even if the officer had been mistaken in detaining the motorist, he was performing his official duty of enforcing traffic laws and therefore acted within the scope of his authority. 845 S.W.2d at 453.

Here, Dr. Koerselman's official duties included overseeing the tenure election process. Dr. Koerselman, in carrying out these official duties, failed to place evaluations in the files of candidates for tenure and instead allowed the candidates to create their own tenure files. Even though such an act may have been wrong, it was done in connection with his official duty as the department chair to oversee the tenure election process; therefore, Dr. Koerselman was acting within his scope of employment.

Discretionary or Ministerial Acts

We will now determine whether the faculty handbook's requirement of placing evaluations in a tenure file is a discretionary or ministerial duty. Discretionary actions are those requiring personal deliberation, decision and judgment. Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex.1992) (Cornyn, J., concurring); Albright, 859 S.W.2d at 579; Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex.App.--San Antonio 1992, writ dism'd w.o.j.). Investigating and acting on gathered facts has been designated as quasi-judicial actions involving the exercise of discretion. Albright, 859 S.W.2d at 579. Discretionary acts are acts which involve determining what the policies of a governmental unit are but do not extend to the carrying out of the specifics of those policies. Salvatierra, 846 S.W.2d at 22. Ministerial acts are those where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Travis, 830 S.W.2d at 102 ...