Washington v. City of Houston, 06-93-00054-CV

• Decision Date: 29 March 1994
• Docket Number: No. 06-93-00054-CV,06-93-00054-CV
• Citation: 874 S.W.2d 791
• Parties: Wanda Idlebird WASHINGTON, Appellant, v. CITY OF HOUSTON and Dr. Patrick A. Titus, Appellees.
• Court: Texas Court of Appeals

Page 791

874 S.W.2d 791

Wanda Idlebird WASHINGTON, Appellant, v. CITY OF HOUSTON and Dr. Patrick A. Titus, Appellees.

No. 06-93-00054-CV.

Court of Appeals of Texas Texarkana.

Submitted March 14, 1994.

Decided March 29, 1994.

Matthew R. Muth, Kearney & Muth, Houston, for appellant.

Andrea Chan, Asst. City Atty., Houston, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Wanda Idlebird Washington sued the City of Houston and Dr. Patrick A. Titus for damages resulting from an alleged assault committed by Titus while he was an employee of the City's Central Health Clinic. The trial court rendered summary judgment in favor of the City and Titus on grounds of governmental and official immunity. On appeal, Washington contends that summary judgment was improper because it was supported only by pleadings. She also complains that the City and Titus failed to conclusively establish their respective claims of sovereign and official immunity.

On October 7, 1991, Titus examined Washington at the City's Central Health Clinic. Washington alleges that, while she was alone in the examination room with Titus, he told her to disrobe. She further alleges that Titus walked behind the privacy screen, watched her disrobe, grasped her pants and tried to help her undress, and during the examination continued to "leer" at her. She also stated that she told Titus she was embarrassed by his behavior, to which he replied that she had nothing to be embarrassed about because others "dirtier than her" had been on his examination table.

Washington filed suit against Titus and the City. She alleged that the City was negligent and grossly negligent in allowing Titus to examine patients without a nurse being present, in failing to supervise Titus, in failing to properly gather, review, and maintain investigative materials and records concerning Titus's background and credentials, and in failing to properly supervise Titus after learning that he examined female patients without a nurse being present. Washington alleged that Titus's acts constituted an assault against her. Washington claimed that as a result of the alleged acts of the City and Titus, she became sick and disabled and suffered injuries, pain, mental anguish, extreme humiliation, embarrassment, and marital difficulties.

The trial court's order granting summary judgment does not recite its bases. In such a case, the summary judgment will be affirmed if any of the grounds advanced in the motion for summary judgment is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). In this case the grounds advanced are sovereign and official immunity.

A defendant moving for summary judgment on the basis of an affirmative defense must prove conclusively all elements of the defense by uncontroverted summary judgment evidence. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A defendant moving for summary judgment in that situation is in essentially the same position as a plaintiff moving for summary judgment. See 3 R. MCDONALD, TEXAS CIVIL PRACTICE § 18:8(b) (rev. 1992). The defendant must bring forth uncontradicted summary judgment evidence on each element of the defense and, unless the defendant conclusively establishes the affirmative defense by doing so, the plaintiff has no burden to respond to the motion. If the defendant establishes the affirmative defense, the plaintiff then has the burden to adduce summary judgment evidence raising a fact issue with respect to at least one essential element of the affirmative defense. Nichols v. Smith, 507 S.W.2d 518, 520-21 (Tex.1974); Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex.App.--Corpus Christi 1991, writ denied); Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex.App.--Austin 1987, writ ref'd n.r.e.). Alternatively, the plaintiff may defeat the motion if she adduces summary judgment evidence showing that the defendant's legal position is not sound. Estate of Devitt, 758 S.W.2d 601, 603 (Tex.App.--Amarillo 1988, writ denied).

Only issues expressly presented to the trial court by written motion, answer, or other response may be considered on appeal from a summary judgment. TEX.R.CIV.P. 166a(c). Moreover, only the evidence on file before the trial court at the time of the hearing on the motion for summary judgment may be considered. Hush Puppy of Longview v. Cargill, 843 S.W.2d 120, 122 (Tex.App.--Texarkana 1992, no writ). Additionally, if a response to a motion for summary judgment is not timely filed and nothing appears in the record to indicate that the late filing was with leave of the court, the reviewing court will presume that the trial court did not consider that response. Goswami v. Metropolitan Sav. and Loan, 751 S.W.2d 487, 490 n. 1 (Tex.1988); INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985). The party opposing the motion may file and serve affidavits or other written responses up to seven days prior to the hearing, and thereafter on leave of the court. TEX.R.CIV.P. 166a(c). The same seven-day deadline applies to discovery products the opponent of the motion plans to use at the hearing. TEX.R.CIV.P. 166a(d). Responses filed less than seven days before the hearing date without leave of court shown by the record are untimely and will not be considered by the reviewing court. See Dunn v. Southwestern Bell Telephone Co., 860 S.W.2d 571, 574 (Tex.App.--El Paso 1993, writ denied); Lazaro v. Univ. of Texas, 830 S.W.2d 330, 331 (Tex.App.--Houston [14th Dist.] 1992, writ denied); Atchley v. NCNB Texas Nat'l Bank, 795 S.W.2d 336, 337 (Tex.App.--Beaumont 1990, writ denied).

In this case, the trial court conducted a hearing on the motion for summary judgment on March 26, 1993. Washington relies on a transcript of a deposition taken from Titus on March 23, 1993 and her Second Amended Original Petition, filed on April 22, 1993, as summary judgment evidence. Titus's deposition, however, was not even taken until after the expiration of the deadline set out in Rule 166a(d). Nothing in the record indicates that the trial court gave leave to late-file the deposition. Thus, the deposition was not properly before the trial court and may not be considered by this court. Lazaro v. Univ. of Texas, 830 S.W.2d at 331. Washington's Second Amended Petition was not filed until almost a month after the hearing on the motion for summary judgment and may also not be considered by this court.

Washington correctly argues that pleadings, even if sworn to, do not constitute summary judgment evidence. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Hidalgo v. Surety Sav. and Loan Ass'n, 462 S.W.2d 540, 545 (Tex.1971); Russell v. Dep't of Human Resources, 746 S.W.2d 510, 512-13 (Tex.App.--Texarkana 1988, writ denied). Nevertheless, a party may plead herself out of court by pleading facts that affirmatively negate her cause of action. Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974). Normally, in order to base summary judgment on the failure to state a cause of action, the defendant must specially except to the pleading deficiency and the plaintiff must be given an opportunity to amend. But where the plaintiff's pleadings themselves establish the lack of a valid cause of action, such as the fact that the statute of limitations has run, or if the pleadings allege facts that, if proved, establish governmental immunity, pleadings alone can justify summary judgment and special exceptions are not required. See Alice Roofing & Sheet Metal v. Halleman, 775 S.W.2d 869, 870-71 (Tex.App.--San Antonio 1989, no writ); Perser v. City of Arlington, 738 S.W.2d 783, 784-85 (Tex.App.--Fort Worth 1987, writ denied).

Washington's pleadings established the City's status as a municipality and Titus's status as a City employee. Washington herself, then, established the general grounds for the defendants' immunity. In her responses and amended petition, Washington's only allegations concern the legal basis of the City's and Titus's claims. The affidavit of Cedric Washington was the only affidavit she presented. Although it attested to the facts of the incident in question, it is admittedly not based on personal knowledge and is therefore not valid summary judgment evidence. TEX.R.CIV.P. 166a(f). Washington did not respond to the defendants' motion for summary judgment with any summary judgment evidence sufficient to raise a fact issue with respect to the affirmative defense. See Nichols v. Smith, 507 S.W.2d 518, 520-21 (Tex.1974). The questions on appeal, then, are solely questions of law, and if the City and Titus conclusively established their right to the affirmative defenses of governmental and official immunity, summary judgment was proper.

To defeat the City's claim of immunity, Washington argues that the City's alleged failure to gather, review, and maintain proper records regarding Titus amounts to a use or condition of tangible personal property that falls within the waiver of immunity for governmental entities found in the Tort Claims Act. TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1986). Had the City not been negligent, she contends, its officers would have noticed something in Titus's file that would have alerted them to his questionable character and to his propensity for questionable conduct with his patients. She contends that the City's negligence concerning Titus's personnel file was the proximate cause of her injuries.

As a municipality, the City is liable for tort claims only to the extent that its sovereign immunity has been waived by the Texas Tort Claims Act. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); Kerrville HRH v. City of Kerrville, 803 S.W.2d 377, 381 (Tex.App.--San Antonio 1990, writ denied); Weeks v. Harris County Hosp. Dist., 785 S.W.2d 169, 170 (Tex.App.--Houston [14th Dist.] 1990, writ denied).

The section of the Texas Tort Claims Act that is applicable here provides:

§ 101.021. Governmental...