Zuniga v. Navarro & Associates, P.C., 13-01-00852-CV.

• Decision Date: 10 March 2005
• Docket Number: No. 13-01-00852-CV.,13-01-00852-CV.
• Citation: 158 S.W.3d 663
• Parties: Silverio ZUNIGA and Refugia Zuniga, Appellants, v. NAVARRO & ASSOCIATES, P.C. and Rashay A. Koster Chapa, Individually, Appellees.
• Court: Texas Court of Appeals

158 S.W.3d 663

Silverio ZUNIGA and Refugia Zuniga, Appellants, v. NAVARRO & ASSOCIATES, P.C. and Rashay A. Koster Chapa, Individually, Appellees.

No. 13-01-00852-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 10, 2005.

Rehearing Overruled April 7, 2005.

Randall P. Crane, Law Office of Randall P. Crane, San Benito, for appellants.

Ruben R. Pena, Law Office of Ruben R. Pena, P.C., Harlingen, for appellees.

Before Justices HINOJOSA, YANEZ, and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

Appellants Silverio Zuniga and his wife Refugia Zuniga sued appellees Navarro & Associates, P.C., and Rashay A. Koster Chapa, an associate in the Navarro law firm. The trial court granted Navarro and Chapa's traditional motion for summary judgment on their affirmative defenses of governmental and official immunity. This appeal ensued. In five issues, appellants complain that Navarro and Chapa: (1) failed to prove that they were employees of a governmental entity; (2) exceeded the scope of their authorized employment; (3) failed to prove performance of discretionary acts; (4) failed to prove good faith; and, (5) filed a conclusory summary-judgment affidavit. Because Navarro and Chapa did not prove the elements of agency and good faith necessary to their affirmative defense, we reverse the summary judgment and remand the case to the trial court.

I. BACKGROUND¹

In the summer of 1999, the San Benito Consolidated Independent School District ("SBCISD") advertised a foreclosed-upon home in Cameron County to be sold in a tax sale. SBCISD had contracted with Navarro to "enforce by suit or otherwise the collection of all delinquent taxes, penalties, and interest" related to the school district. Interested in purchasing the home and claiming they were inexperienced in the workings of a sheriff's sale for delinquent taxes, the Zunigas contacted Chapa to determine whether the home could be safely purchased. According to the Zunigas, Chapa informed the Zunigas that the property could be safely purchased as a title search had revealed no outstanding liens or other title defects. The Zunigas eventually purchased the home, paying $90,000.00 for the property in question. After the purchase, the Zunigas learned that excess proceeds from the sale were deposited in the court's registry. The trial court authorized the former owner, Saul Carbajal, to withdraw the excess funds, totaling $83,467.63, from the court's registry. Although the trial court subsequently ordered the funds returned to the registry, Carbajal filed for bankruptcy relief and did not return the funds.

Meanwhile, the Zunigas discovered that Associates Financial Corporation of Delaware ("AFCD") held a lien on the property in excess of $120,000. AFCD foreclosed on the property. The Zunigas sued Navarro, Chapa, and AFCD to recover their investment.

In their live pleading, the Zunigas alleged various causes of action including misrepresentation, deceptive trade practices, consumer protection violations, and statutory and common law fraud. In their unverified answer, Navarro and Chapa asserted their affirmative defenses of sovereign or official immunity and capacity. They subsequently filed a traditional motion for summary judgment on their affirmative defenses of governmental and official immunity. The Zunigas filed their response. The trial court granted the motion. The Zunigas filed a motion for new trial as well as a motion to sever, requesting the causes of action against Navarro and Chapa be severed from the cause of action against AFCD. The court granted the motion to sever but denied the Zunigas, motion for new trial. This appeal ensued.

II. JURISDICTION

The initial inquiry for our court is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). The question of jurisdiction is a legal issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Therefore, we follow the de novo standard of review. Id. A court's jurisdiction is never presumed. Alaniz v. Hoyt, 105 S.W.3d 330, 335 (Tex.App.-Corpus Christi 2003, no pet.) (citing El-Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex.App.-Houston [14th Dist.] 1994, no writ)). If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed. Id. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex.1965) (per curiam); see Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp.2003). Therefore, before we consider the issues, we first must determine if the order granting summary judgment is a final judgment.

The order granting summary judgment reads as follows:

On this 20th day of September, 2001, [the] Motion for Summary Judgment was considered. Upon consideration of the pleadings, argument and authority submitted by the parties, this Court is of the opinion that the Defendant[s'] Motion for Summary Judgment should be GRANTED.

IT IS THEREFORE, ORDERED ADJUDED [sic] AND DECREED, that the Defendant[s'] Motion for Summary Judgment is hereby GRANTED in its entirety.

After examining the pleadings and summary-judgment record, we conclude that the order disposes of all pending parties and claims. See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam). Accordingly, we find that the order is a final judgment over which we have jurisdiction. See id. We turn to the issues on appeal.

III. STANDARD OF REVIEW

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. Tex.R. Civ. P. 166a(i), (c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex.App.-Corpus Christi 2003, no pet. h.) (op. on reh'g). We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Ortega, 97 S.W.3d at 772. The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); see also Ortega, 97 S.W.3d at 771. In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non-movant as true. Ortega, 97 S.W.3d at 771. We make all reasonable inferences and resolve all doubts in favor of the non-movant. Id.

When a defendant moves for summary judgment based on an affirmative defense such as official immunity, the movant must prove all elements of the defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). In making this determination, we apply the well-established standards for review of summary judgment. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex.App.-Corpus Christi 1995, writ denied).

IV. THE RECORD

A. The Motion and Evidence

As grounds in their motion for summary judgment, Navarro and Chapa asserted they were immune from any claim because of the doctrine of sovereign or governmental immunity and official immunity. Navarro and Chapa pointed to section 101.055 of the civil practice and remedies code as providing statutory protection from liability² because they were delinquent tax attorneys performing a governmental function for a governmental unit and the attorney-client relationship was an agency relationship. Their sole summary judgment evidence was Chapa's affidavit, which states:

Navarro & Associates, P.C., is employed by the San Benito Consolidated Independent School District to enforce the collection of the School Districts' [sic] ad valorem taxes. In the scope of that employment, Navarro and Associates, P.C. is the agent for the San Benito School District's delinquent tax collection.

On December 3, 1998, a law suit was filed on behalf of the San Benito CISD, case number 98-12-4836-C, against Saul Carbajal as the owner of [the property in question].

Thereafter on May 19, 1999, the San Benito CISD recovered a judgment in suit number 98-12-4836-C, and subsequently an order of sale was issued on July 8, 1999, to foreclose the tax lien.

The Cameron County Sheriff's Department levied upon the property on July 8, 1999, and the property was advertised for sale at public auction in accordance with the law. Thereafter on August 1, 1999, the property securing the tax lien was sold by the Cameron County Sheriff's Department to the highest bidder for $90,000. The sale produced excess proceeds of $83,467.63 which were deposited with the district clerk who issued the order of sale, as provided by law.

On September 8, 1999, without notice to any of the parties as required by law, the Court ordered the release of the excess proceeds to the prior owner/defendant Saul Carbajal. Subsequently, the Court ordered Saul Carbajal to return the excess proceeds to the clerk of the court in the amount of $83,467.63. Saul Carbajal has not yet returned the excess proceeds to the Court as ordered, but has filed for Bankruptcy instead.

At all times relevant to the filing of the lawsuit and foreclosure of the tax lien of the property in question, I, Rashay Koster Chapa, was acting in the scope of my authority as an associate attorney for Navarro & Associates, P.C., and in the scope of my employment with the San Benito CISD as their delinquent tax attorney. At all times relevant, Navarro & Associates, P.C., was employed by the San Benito CISD as their delinquent tax attorneys.

C. The...