Moncada v. Brown

• Decision Date: 28 June 2006
• Docket Number: No. 4,4
• Citation: 202 S.W.3d 794
• Parties: RICARDO MONCADA AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellants, v. SCOTT A. BROWN, GUILLERMO MARTINEZ, GABRIEL GAYTAN, AND GILBERTO MARTINEZ , Appellees.
• Court: Texas Court of Appeals

202 S.W.3d 794

RICARDO MONCADA AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellants, v. SCOTT A. BROWN, GUILLERMO MARTINEZ, GABRIEL GAYTAN, AND GILBERTO MARTINEZ , Appellees.

No. 4-06-00025-CV.

Court of Appeals of Texas, Fourth District, San Antonio.

Delivered and Filed: June 28, 2006.

Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.

OPINION

Opinion by: ALMA L. LÓPEZ, Chief Justice.

Ricardo Moncada and the Texas Department of Criminal Justice appeal the trial court's order denying their motion for summary judgment that was based on an assertion of immunity. Moncada claims that the trial court erred in denying his motion because he is entitled to immunity under section 497.096 of the Texas Government Code and to official immunity. TDCJ asserts that because Moncada is immune, it is immune. The appellees counter that this court does not have jurisdiction to consider the appeal because: (1) the appeal is from an order granting their motion for new trial; or, alternatively; (2) the court can only consider the appeal of the official immunity contention, not the assertion that Moncada is immune under section 497.096. Finally, the appellees contend that Moncada failed to establish entitlement to official immunity. We reverse the trial court's order and render judgment dismissing the underlying lawsuits based on our determination that Moncada and TDCJ are immune from suit.

Background

The appellees are prison inmates. Moncada was ordered to take the inmates to a field to trim trees and clean brush. Moncada chose to use a field truck with an attached flatbed trailer to transport the inmates and equipment to the field. The equipment was placed in the bed of the truck, and the inmates rode on the trailer.

When Moncada and the inmates arrived at the field, Moncada discovered he had left one of the inmates behind. Moncada ordered the inmates back on to the trailer and was driving back across the field when he hit a bump or pot hole, causing the trailer to unhitch. When the trailer unhitched, the inmates fell from the trailer and were injured.

The appellees, four of the inmates, sued Moncada and TDCJ alleging negligence and gross negligence. Moncada and TDCJ moved for summary judgment on the basis of official immunity and immunity under section 497.096. After a hearing, the trial court granted the motion for summary judgment. The appellees filed a motion for new trial. After another hearing, the trial court entered an order granting the motion for new trial that states:

It is hereby ORDERED that Plaintiff's Motion for New Trial is GRANTED. It is further ORDERED that Defendants Moncada and Texas Department of Criminal Justice's Motion For Summary Judgment is hereby DENIED.

Jurisdiction

The appellees initially assert that this court does not have jurisdiction to consider this appeal because Moncada and TDCJ are appealing the trial court's order granting the appellees' motion for new trial. We disagree.

A trial court's order that "denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state" is an appealable order. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2005). In this case, the trial court's order first granted the motion for new trial and then denied the motion for summary judgment.

Although the trial court's order granting the new trial set aside the first order granting the motion for summary judgment, this did not prevent the trial court from rendering a new judgment. P.V. Int'l Corp. v. Turner, Mason, and Solomon, 700 S.W.2d 21, 22-23 (Tex. App.-Dallas 1985), writ denied, 778 S.W.2d 865 (Tex. 1989). Furthermore, nothing prevented the trial court from rendering the new judgment in the same order in which it granted the new trial.¹

See City of Bryan v. City of College Station, No. 14-96-01554-CV, 1998 WL 285996, at *5 (Tex. App.-Houston [14th Dist.] June 4, 1998, pet. denied).

In this case, the order has the effect of denying the motion for summary judgment based on an assertion of immunity. Accordingly, the order is appealable under section 51.014(a)(5). The conclusion that the order is appealable is consistent with the Texas Supreme Court's instruction that the decisions of the courts of appeals should turn on substance rather than procedural technicality. Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992); see also Thomas v. Long, No. 03-0204, 2006 WL 1043429, at *4 (Tex. Apr. 21, 2006) (finding jurisdiction where trial court's order implicitly rejected a jurisdictional challenge).

The appellees also argue that the only portion of the order that is appealable is the portion relating to the assertion of official immunity. The appellees contend that an assertion that an employee is not liable for damages based on section 497.096 is not an assertion of immunity.

Section 497.096 provides:

An employee of the Texas Department of Criminal Justice . . . is not liable for damages arising from an act or failure to act in connection with community service performed by an inmate imprisoned in a facility operated by the department or in connection with an inmate or offender programmatic or nonprogrammatic activity, including work, community service, educational, and treatment activities, if the act or failure to act was not intentionally, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others.

Tex. Gov't Code Ann. § 497.096 (Vernon 2004) (emphasis added). Similarly, in speaking of when immunity is waived, the Texas Tort Claims Act states the conduct for which the state "is liable." Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005). The use of the phrase "is not liable for" has the same meaning as stating that the employees are immune unless the exception applies.

The few cases that have discussed section 497.096 also refer to the section in terms of immunity. In Cobb v. Tex. Dept. of Crim. Justice, the court stated that the defendants, who were two TDCJ employees, were "immune under section 497.096 only if they can prove they did not act with intentional, willful, or wanton negligence or reckless disregard for the plaintiff's safety." 965 S.W.2d 59 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (emphasis added); see also Gill v. Texas Dept. of Crim. Justice, 3 S.W.3d 576, 581-82 (Tex. App.-Houston [1st Dist.] 1999, no pet.)

(same).

In City of Lubbock v. Land, the court considered a statutory provision with language similar to section 497.096 in that the statute sets forth when employees of political subdivisions "are not liable for damages."² 33 S.W.3d 357, 358 (Tex. App.-Amarillo 2000, no pet.). The court referred to the statutory provisions as "immunity provisions" and rejected an argument that overlooked that the statutory provision "afford[ed] immunity to officers and employees." Id. at 359. Although article 42.20 of the Texas Code of Criminal Procedure is labeled "Immunities," the phrase "are not liable for damages" is the key language used to establish the immunity.

Accordingly, we hold that an assertion of the absence of liability pursuant to section 497.096 is an assertion of immunity for purposes of section 51.014(a)(5).

Standard of Review

Moncada and TDCJ moved for summary judgment on both traditional and no evidence grounds based on their assertions of immunity an affirmative defense. Because Moncada and TDCJ have the burden of proof with regard to their affirmative defenses, a no-evidence motion for summary judgment is not proper; therefore, we only consider whether the trial court erred in denying the motion under traditional summary judgment grounds. See Chaney v. Corona, 103 S.W.3d 608, 610 (Tex. App.-San Antonio 2003, pet. denied)

. "When reviewing a summary judgment, we follow these well-established rules: (1) The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant." Id. (quoting American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)).

"Summary judgment is proper if the defendant establishes all elements of an affirmative defense to each claim." Id. "Once a movant establishes its right to summary judgment on the basis of an affirmative defense, the nonmovant must respond with reasons for avoiding summary judgment and must support those reasons with proof sufficient to raise a fact issue." Id. (quoting Deaver v. Bridges, 47 S.W.3d 549, 551 (Tex. App.-San Antonio 2000, no pet.)).

Section 497.096

Section 497.096 provides:

An employee of the Texas Department of Criminal Justice . . . is not liable for damages arising from an act or failure to act in connection with community service performed by an inmate imprisoned in a facility operated by the department or in connection with an inmate or offender programmatic or non programmatic activity, including work, community service, educational, and treatment activities, if the act or failure to act was not intentionally, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others.

Tex. Gov't Code Ann. § 497.096 (Vernon 2004). Moncada contends that section 497.096 makes him immune from liability if his acts were not "intentionally, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others." Id.

In Cobb v. Tex. Dept. of Crim. Justice, an inmate slipped and fell while working in a butcher shop in the prison. 965 S.W.2d at 61. In addressing liability under section 497.096, the court noted that the TDCJ...