McCartney v. May

• Decision Date: 07 June 2001
• Citation: 50 S.W.3d 599
• Parties: (Tex.App.-Amarillo 2001) DAVID L. MCCARTNEY, M.D., DARRYL M. WILLIAMS, M.D., AND DORMA KOHLER, APPELLANTS v. DONALD R. MAY, M.D., APPELLEE NO. 07-00-0034-CV
• Court: Texas Court of Appeals

Page 599

50 S.W.3d 599 (Tex.App.-Amarillo 2001)

DAVID L. MCCARTNEY, M.D., DARRYL M. WILLIAMS, M.D., AND DORMA KOHLER, APPELLANTS v. DONALD R. MAY, M.D., APPELLEE

NO. 07-00-0034-CV

COURT OF APPEALS OF TEXAS, AMARILLO

JUNE 7, 2001

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 95-550,816; HONORABLE JIM B. DARNELL, JUDGE

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] John Cornyn, Atty. Gen. (Merle Hoffman Dover, Asst.Atty.Gen.), Austin, Jones, Flygare, Brown & Wharton (Larry Wharton) Lubbock, for appellant.

Dorsey & Whitney (Roy A. Ginsburg, Joseph W. Hammell, James D. Kremer), Mpls., MN, Floyd D. Holder, Jr., Law Firm of Floyd D. Holder, Lubbock, for appellee.

Before BOYD, C.J., REAVIS, J., and DICKENSON, SJ.¹

John T. Boyd, Chief Justice

Appellants David L. McCartney, M.D., Darryl Williams, M.D., and Dorma Kohler bring this appeal from the denial of summary judgment in a suit brought by appellee Donald R. May, M.D. This interlocutory appeal presents questions as to sovereign immunity, official immunity, and qualified immunity. For reasons we later recount, we affirm in part and reverse and remand in part.

This interlocutory appeal is authorized by Texas Civil Practice and Remedies Code section 51.014(5) (Vernon Supp. 2001), which permits such appeals from denial of a motion for summary judgment based upon claims of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.

BACKGROUND

Dr. May was hired as a tenured professor and chairman of the Department of Ophthalmology at the Texas Tech Health Sciences Center in September 1989. He served in that position until April 7, 1994, when Darryl Williams, Dean of the medical school, removed May as chair of the department and offered him a six-month position as Associate Dean for Special Projects. Williams's letter stated the action did not affect May's status as a tenured professor, but the new position included no clinical responsibilities. Dr. McCartney was subsequently selected to replace May as chair of the department.

May filed suit on March 31, 1995, asserting claims for defamation, self-defamation, intentional interference with contract, intentional interference with prospective contractual relations, intentional infliction of emotional distress, substantive due process violations under 42 U.S.C. § 1983, procedural due process violations under 42 U.S.C. § 1983, and due course of law violations under article 1, section 19 of the Texas state constitution. The claims were asserted against Bernard T. Mittemeyer, M.D., Donald Haragan, Ph.D., David McCartney, M.D., Darryl M. Williams, M.D., and Dorma Kohler.

May included Dr. Mittemeyer, then Dean of the Texas Tech University Health Sciences Center, as a party for the purpose of seeking injunctive relief under 42 U.S.C. § 1983, the Due Process Clause of the fourteenth amendment to the federal constitution and article 1, section 19 of the Texas constitution. In his second amended original petition, May substituted Dr. Joel Kupersmith as a party defendant in place of Mittemeyer because he had succeeded Mittemeyer as Dean of the Texas Tech University Health Sciences Center School of Medicine (TTUHSC). In the same petition, May also substituted Dr. David R. Smith for Dr. Donald Haragan because he had succeeded Dr. Haragan as President of Texas Tech University and TTUHSC.

After two attempts to remove the case to federal court, a defense motion for summary judgment on which the trial court took no action, and two prior motions for summary judgment, the defendants filed an additional motion for summary judgment in September 1999. The grounds asserted in this motion were that there was no evidence supporting May's claims and the claims were barred by the doctrines of sovereign immunity, official immunity, and qualified immunity. The trial court disposed of that motion by sustaining Drs. Smith and Kupersmith's claims of sovereign immunity and dismissed them from the case. It also granted summary judgment in favor of the remaining defendants McCartney, Williams and Kohler, on May's claim for intentional interference with contract, denied the motion as to his remaining claims against appellants in their individual and official capacities for defamation, self-defamation, and intentional interference with prospective contractual relations. It also expressly overruled appellants' assertion of affirmative defenses to May's claims under 42 U.S.C. § 1983. Unaddressed in the court's order were May's claims for intentional infliction of emotional distress and violation of due course of law. Denial of summary judgment on those claims is implicit in the court's order. Hence, this appeal by appellants as the remaining defendants.

In mounting their challenges, appellants present four issues for our determination. They are: 1) whether May's tort claims against them in their official capacities should be dismissed because they are entitled to sovereign immunity; 2) whether May's intentional tort claims against appellants in their individual capacities should be dismissed because May did not overcome their entitlement to official immunity; 3) whether May's due process claims under 42 U.S.C. § 1983 for monetary damages against appellants in their official capacities should be dismissed because they are entitled to sovereign immunity; and 4) whether May's due process claims under 42 U.S.C. § 1983 against appellants in their individual capacities should be dismissed because May did not overcome their entitlement to qualified immunity.

DISCUSSION

Initially, May contends that we lack jurisdiction over this appeal. He argues that the issues asserted in appellants' third motion for summary judgment were considered and rejected by the trial court on January 20, 1998. Because they did not take a timely appeal from that denial, he posits that this appeal is untimely and we have no jurisdiction to consider it. In advancing that argument, May places primary reliance upon the court's decision in Cameron County v. Carrillo, 7 S.W.3d 706, 708-09 (Tex.App.--Corpus Christi 1999, no pet.). However, Texas Rule of Civil Procedure 166a does not limit the number of times a motion for summary judgment may be filed. Tex. R. Civ. P. 166a. The general rule is that denial of a summary judgment is interlocutory and is in no way final. De Los Santos v. S.W. Texas Methodist. Hosp., 802 S.W.2d 749 (Tex.App.--San Antonio 1990, no pet.), overruled on other grounds, Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994). Because that is the case, a motion for summary judgment may be reurged in the district court after its denial. Villages of Greenbriar v. Torres, 874 S.W.2d 259, 262 (Tex.App.--Houston [1st Dist.] 1994, pet. denied). The portion of the Carrillo opinion on which May apparently relies is that in which the court refers to a "renewed" motion for summary judgment as a successive motion for new trial and not a motion for rehearing "because it contains different grounds for summary judgment than did the earlier motion." Carrillo, 7 S.W.3d at 709. If there be an implication in that comment that a summary judgment motion may not be reurged in district court, we would disagree. Because of its interlocutory nature, a trial court continues to have the right to reconsider an earlier disposition. The mere fact that the statute does permit the appeal of a summary judgment motion such as the one before us, does not mean that the absence of an appeal from an earlier motion deprives the later ruling of its interlocutory nature or of the right to appeal a later ruling.

It is well established that a defendant moving for summary judgment on an affirmative defense must conclusively establish all elements of that defense. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. City of Palestine v. Ramirez, 925 S.W.2d 250, 253 (Tex.App.--Tyler 1996, no pet.) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)). It follows, then, that a summary judgment is not proper if the evidence upon which the party propounding the affirmative defense depends is in dispute. In determining whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).

Appellants' suggested issues raise questions as to both sovereign and official immunity. Although both are types of governmental immunity, sovereign immunity and official immunity are two distinct doctrines aimed at serving different policies. Sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the state. Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997). On the other hand, official immunity is an affirmative defense that protects government employees from tort liability (1) for the performance of discretionary duties (2) within the scope of the employees' authority (3) provided the employees act in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

Drawing on the standard applied to qualified immunity in 42 U.S.C. § 1983 suits, our supreme court has defined good faith as a test of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith. Chambers, 883 S.W.2d at 656. "[W]e look to whether a reasonable official could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." Id. Thus, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Id...