William C. Dear v. City of Irving and Benny Newman

DEAR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00448-CV

William C. Dear, Appellant

v.

City of Irving and Benny Newman, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 493,479, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

This is an appeal of a case that began as a suit filed by the City of Irving ("the

City"), appellee, against then-Attorney General Jim Mattox (1)

and appellant William C. Dear,

seeking a declaratory judgment regarding the City's right to refuse production of certain records

under the Texas Open Records Act. Dear filed a counterclaim against the City and a third-party

action against appellee Benny Newman, the Chief of Police for the City. The trial court disposed

of the City's declaratory judgment action in Dear's favor, and the City produced the records Dear

sought. The trial court granted summary judgment for the City and Newman on Dear's

counterclaim and third-party claim, and Dear appeals from this judgment. We will affirm the

judgment of the trial court.

BACKGROUND

Dear, a licensed private investigator, filed an open records request with the City

in October 1990, seeking production of records relating to the City's investigation of him. On

October 29, 1990, then-Attorney General Mattox released an informal decision which held that

the requested records were subject to disclosure under the Texas Open Records Act. Tex. Gov't

Code Ann. §§ 552.001 -.353 (West 1994). In response, the City filed a suit for declaratory

judgment on November 8, 1990, asserting that the Attorney General incorrectly ruled that the

documents were open records and subject to disclosure. The trial court ordered the City to

produce the records in a partial summary judgment granted on August 21, 1992.

Dear filed counterclaims under the Open Records Act, (2) the Uniform Declaratory

Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001 -.011 (West 1986 & Supp. 1995),

the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 -.109 (West 1986 &

Supp. 1995), and the Texas Constitution. The trial court granted summary judgment on all Dear's

claims in favor of the City and Newman, in both his official and individual capacities. On appeal,

Dear raises four points of error, claiming that the trial court erred in: (1) failing to sustain his

special exceptions; (2) granting summary judgment for the City and Newman in his official

capacity; (3) granting summary judgment for Newman in his individual capacity; and (4) awarding

costs to Newman in his official capacity.

DISCUSSION

We begin by addressing Dear's contention that the trial court erred in failing to

sustain his special exceptions to the City and Newman's motion for partial summary judgment,

which was entitled Law Enforcement's Motion for Partial Summary Judgment, and to the City's

Notice of Intent to Rely upon Discovery of Other Parties. In essence, Dear's complaint is two-fold: (1) appellees' motion for summary judgment failed to adequately set forth the grounds upon

which it was based; and (2) appellees failed to meet their burden of producing competent summary

judgment proof because the evidence relied upon was not identified with sufficient specificity.

Rule 166a(c) of the Texas Rules of Civil Procedure requires that a motion for

summary judgment state the specific grounds for the motion. Tex. R. Civ. P. 166a(c); McConnell

v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993). The purpose of this

requirement is to provide the nonmovant with adequate information to oppose the motion and to

define the issues for the purpose of summary judgment. See Westchester Fire Ins. Co. v. Alvarez ,

576 S.W.2d 771, 772 (Tex. 1978). The specificity requirement of Rule 166a(c) echoes the "fair

notice" pleading requirements of Rule 45(b) and Rule 47(a). Id. at 773 . If the motion contains

a concise statement that provides fair notice of the claim involved to the nonmovant, the grounds

for summary judgment are sufficiently specific. Thomas v. Cisneros , 596 S.W.2d 313, 316 (Tex.

Civ. App.--Austin 1980, writ ref'd n.r.e.).

In his second amended answer, entitled Second Amended Original Answer and

Fourth Amended Counterclaim and Third Party Petition, Dear raised the following causes of

action: declaratory judgment, mandamus, injunction, constitutional violations, claims under the

Texas Tort Claims Act, and attorney's fees. The City and Newman attempted to defeat Dear's

claims by showing that they had complied with the Open Records Act, and therefore that the issue

was moot; that they had not committed an actionable constitutional violation; and that they were

entitled to governmental immunity. Appellees' motion for summary judgment provided, in

pertinent part:

1. Pursuant to a reading of Mr. Dear's claims on file with this Court, Chief

Newman is entitled to his individual immunity for the good faith discharge of

his discretionary duties.

2. Pursuant to a reading of Mr. Dear's claims on file with this Court, Irving and

Chief Newman argue that they have complied with the Texas Open Records

Act negating any reason for declaratory judgment, writ of mandamus and/or

permanent injunction.

3. Pursuant to a reading of Mr. Dear's claims on file with this Court, Irving and

Chief Newman argue that they have not violated Article I, Sections 8, 9, 10,

19 and 25 of the Texas Constitution.

4. Pursuant to a reading of Mr. Dear's claims on file with this Court, Irving and

Chief Newman argue that they are entitled to their attorneys' fees.

5. Pursuant to a reading of Mr. Dear's claims on file with this Court, Irving

argues that it is entitled to government immunity. Said immunity includes, but

is not limited to, the immunity from intentional torts as well as method of

providing or failure to provide police and fire protection.

The above-quoted grounds for summary judgment gave Dear fair notice of appellees' claims and

were sufficiently specific to raise the grounds of mootness, immunity, and absence of

constitutional violations.

Dear further challenges the sufficiency of appellees' summary-judgment proof,

arguing that appellees' motion for summary judgment failed to make specific references to the

evidence supporting their motion. Rule 166a(c) provides that "judgment sought shall be rendered

forthwith if (i) the deposition transcripts . . . and other discovery responses referenced in the

motion or response, and (ii) the pleadings, admissions, affidavits . . . on file at the time of the

hearing, or filed thereafter" show that the movant is entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c) (emphasis added); Wilson v. Burford , 38 Tex. Sup. Ct. J. 680 (May 25, 1995).

The rule contains no requirement that the evidence be referenced more specifically than being

incorporated into the motion, and Dear cites no authority for his argument that a motion for

summary judgment is defective if it fails to set out the exact testimony on which it relies.

Therefore, we need not address this argument and, instead, overrule Dear's first point of error. (3)

In his second and third points of error, Dear claims that the trial court erred in

granting summary judgment for the City and for Newman in his official capacity. (4) The standards

for reviewing a motion for summary judgment are well established:

(1) The movant for summary judgment has the burden of showing that no

genuine issue of material fact exists 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.

(3) Every reasonable inference must be indulged in favor of the nonmovant and

any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The question on

appeal is not whether the summary-judgment proof raises a fact issue, but whether the summary-judgment proof establishes as a matter of law that no genuine issues of material fact exist as to one

or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors

Corp. , 450 S.W.2d 827, 828 (Tex. 1970). In addition, instead of directly attacking one or more

elements of the plaintiff's causes of action, a defendant-movant may move for summary judgment

on the basis of an affirmative defense. To be entitled to summary judgment in that situation, the

movant must expressly present and conclusively prove each essential element of the affirmative

defense. Swilley v. Hughes , 488 S.W.2d 64, 67 (Tex. 1972). We hold that appellees have

conclusively proven the essential elements of their affirmative defenses to Dear's causes of action.

In his pleading, Dear raised causes of action for declaratory judgment, mandamus,

and injunction, which all related to the City's alleged failure to comply with the Open Records

Act. In its motion for summary judgment, the City raised the affirmative defense of mootness to

these causes of action. The City initiated this case as a suit under the Texas Open Records Act,

challenging the Attorney General's open records decision involving the Irving Police Department's

file on Dear. The trial court ordered the records produced in a partial summary judgment granted

on August 21, 1992, and the records were thereafter produced in accordance with the trial court's

order. According to the City, because all records have been produced, Dear's claims under the

Open Records Act are moot.

At oral argument, Dear conceded that his open records causes of action were moot,

with one exception. Dear contends that his cause of action for permanent injunctive relief is not

moot because the City may refuse to release records in the future, and the situation is thus capable

of repetition. The "capable of repetition, yet evading review" exception to the mootness doctrine

applies only if two elements are satisfied: "(1) the challenged action was in its duration too short

to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation

that the same complaining party would be subjected to the same action again." Weinstein v.

Bradford , 423 U.S. 147, 149 (1975); see also General Land Office v. Oxy U.S.A., Inc. , 789

S.W.2d 569, 571 (Tex. 1990); Click v. Tyra , 867 S.W.2d 406, 408-09 (Tex. App.--Houston [14th

Dist.] 1993, orig. proceeding [leave denied]). In the instant cause, Dear made no showing that

either element has been met, and we conclude that there is no demonstrated probability that the

complained of action--the withholding from Dear of records required to be disclosed under the

Open Records Act--will be repeated. Therefore, the exception does not apply, and all of Dear's

claims under the Open Records Act are moot. Dear also raised several causes of action

alleging violations of the Texas Constitution. Appellees rely on the recent decision of the Texas

Supreme Court in City of Beaumont v. Bouillion , 896 S.W.2d 143 (Tex. 1995), in claiming the

affirmative defense of governmental immunity. In Bouillion , the supreme court held that litigants

in Texas may not sue governmental entities for damages under the Texas Constitution for

constitutional torts. Id. at 148-49 . Dear acknowledges the applicability of Bouillion to the present

case with regard to his claim for damages under the Texas Constitution. However, Dear contends

that he also sought injunctive and declaratory relief under the Texas Constitution, claims to which

Bouillion does not apply. Based upon our review of Dear's pleadings, we conclude that he pled

no cause of action for injunctive or declaratory relief under the Texas Constitution. His pleadings

are quite clear: his requests for injunctive and declaratory relief apply only to his causes of action

under the Open Records Act. Accordingly, Dear's constitutional tort claims are barred by

Bouillion .

Additionally, Dear asserted a cause of action under the Texas Tort Claims Act.

A claim against a governmental entity can be pursued only to the extent that governmental

immunity has been waived. Wyse v. Department of Pub. Safety , 733 S.W.2d 224, 228 (Tex.

App.--Waco 1986, writ ref'd n.r.e.). The only waiver Dear alleged is found in section 101.021(2)

of the Texas Tort Claims Act, which provides for the waiver of immunity for personal injury or

death caused by the condition or use of tangible property. Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021 (2) (West 1986). To prevail on a claim under section 101.021, the plaintiff must plead

and prove its cause of action within the express terms of the Tort Claims Act. Wyse , 733 S.W.2d

at 228 . Dear alleged that his damages arose from the use of tangible property belonging to the

City: the computers and telephones used in the investigation as well as the records collected and

used in the investigation. We reject this argument. The supreme court has specifically held that

the Tort Claims Act does not eliminate governmental immunity for injuries resulting from the

misuse of information. University of Tex. Medical Branch v. York , 871 S.W.2d 175, 178-79

(Tex. 1994); see also Texas Dep't of Human Servs. v. Benson , 893 S.W.2d 236, 238-39 (Tex.

App.--Austin 1995, writ requested). Because Dear's cause of action under the Tort Claims Act

involves the alleged misuse of information, we hold that it is precluded by York .

Having determined that appellees conclusively proved that Dear's causes of action

against the City and Newman in his official capacity are barred by the affirmative defenses of

mootness and governmental immunity, we overrule Dear's second and third points of error.

Dear asserts in his fourth point of error that the trial court erred in granting

summary judgment for Newman in his individual capacity. Dear claims that he has a cause of

action for defamation against Newman in his individual capacity. (5) Newman's alleged defamatory

statements were made during a national television interview; the substance of the alleged

defamatory statements was that Dear had never solved a case. In their motion for summary

judgment, appellees raised the affirmative defense of official immunity from claims against

Newman in his individual capacity.

A state employee may be sued in either of two capacities: in his individual capacity

or in his official capacity. When the employee is sued in his individual capacity, he is entitled to

raise the defense of official immunity. Gonzalez v. Avalos , 866 S.W.2d 346, 349 (Tex. App.--El

Paso 1993), writ dism'd w.o.j. , 38 Tex. Sup. Ct. J. 335 (Mar. 2, 1995). "This immunity,

variously known as governmental, official, quasi-judicial or qualified immunity, evolved out of

a public policy that encourages public officers to carry out their duties without fear of personal

liability." Carpenter v. Barner , 797 S.W.2d 99, 101 (Tex. App.--Waco 1990, writ denied).

Official immunity is an affirmative defense; therefore, the burden is on the defendant-movant to

establish all elements of the defense. City of Lancaster v. Chambers , 883 S.W.2d 650, 653 (Tex.

1994).

"Government employees are entitled to official immunity from suit arising from the

performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within

the scope of their authority." Id. In determining whether the official was performing a

discretionary duty, our focus should be on whether the officer was performing a discretionary

function, not on whether the officer had discretion to perform an allegedly wrongful act while

discharging that function. Id. "The complex policy judgment reflected by the doctrine of official

immunity, if it is to mean anything, protects officers from suit even if they acted negligently."

Id. at 655 . If an action involves personal deliberation, decision, and judgment, it is discretionary.

Id. at 654 . Our courts have held that the investigatory function of police officers involves

discretionary duties. See Eakle v. Texas Dep't of Human Servs. , 815 S.W.2d 869, 875-76 (Tex.

App.--Austin 1991, writ denied); Wyse , 733 S.W.2d at 227 ; see also Gonzalez , 866 S.W.2d at

249 .

Although federal law does not determine whether an officer's actions are

discretionary for purposes of state law, examination of federal immunity law is instructive. Under

federal law, the defense of qualified immunity applies only if the officer's actions involved the

exercise of discretionary duties. See Streetman v. Jordan , 918 F.2d 555, 556 (5th Cir. 1990).

Thus, those cases in which a federal court extended immunity to a police officer necessarily

resolved that the disputed actions were discretionary. See, e.g. , Scherer v. Morrow , 401 F.2d

204, 205 (7th Cir. 1968) (holding that secret service agent who called plaintiff a "nut" because

plaintiff had pointed a cannon at the President had immunity because he was within the "outer

perimeter of his line of duty"), cert. denied , 393 U.S. 1084 (1969).

Dear is a licensed private investigator who was hired to investigate the shooting

death of Glen Courson. The Irving Police Department began an investigation involving Dear in

connection with his investigation of the Courson death. According to Dear, the City began

collecting a "dossier" on him totally unconnected to any legitimate criminal investigation. The

City asserts that its investigation was prompted by Barbara Russo, one of Dear's former clients

who contacted Irving police regarding allegations of fraud in an investigation Dear had conducted

for her. The City claims that similarities in the Courson and Russo investigations prompted the

Irving police to begin an investigation of possible fabrication of evidence by Dear in the Courson

case. Dear concedes in his response to appellees' motion for summary judgment that Newman

made the allegedly defamatory statements during the course of this investigation. We hold that

Newman's involvement in this investigation was pursuant to his discretionary duties as a police

officer; whether Newman had discretion to make the allegedly wrongful statement while

discharging that function is not the focus of our inquiry. We conclude appellees proved the first

element of the official immunity defense as a matter of law.

While the "good faith" prong of the official immunity test has proven to be an

elusive concept for our courts, the supreme court in City of Lancaster has recently articulated the

test for determining whether a police officer acts in good faith in an automobile pursuit case. In

City of Lancaster , the court held that the test is whether a reasonably prudent officer under the

same or similar circumstances could have believed that the need to immediately apprehend the

suspect outweighed the harm to the public of continuing the pursuit. 883 S.W.2d at 656 .

Although City of Lancaster involved a different factual context--the conduct of a police officer

during a high speed chase--the test laid down by the court was derived substantially from the

federal good-faith test: 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. (quoting Swint v. City of Wadley , 5 F.3d 1435, 1441-42 (11th Cir.

1993)); see also Casas v. Gilliam , 869 S.W.2d 671, 673 (Tex. App.--San Antonio 1994, no writ).

Applying this test, we conclude that appellees' summary-judgment proof established

Newman's objective good faith as a matter of law. "[Q]ualified immunity protects `all but the

plainly incompetent or those who knowingly violate the law.'" City of Lancaster , 883 S.W.2d

at 656 (quoting Swint , 5 F.3d at 1441-42 ). Appellees produced the deposition testimony of

Douglas Daman, legal advisor to the Irving Police Department, and Irving police officer David

Hanks to establish that a reasonable official could have believed he had a right to pursue an

investigation involving Dear based on established law and the information possessed by Newman

at the time the investigation began, and Dear concedes that Newman made the allegedly

defamatory statement during the course of this investigation. We believe that making public

statements regarding an ongoing investigation is part of the investigatory function of a police chief

because such activity involves decision making based on the investigation. See Gonzalez , 866

S.W.2d at 249 (holding that police duties include gathering information in connection with an

investigation and making decisions based on that information). Thus, Newman reasonably could

have believed his conduct lawful in light of established law and the information he possessed at

the time. To controvert appellees' summary-judgment proof on good faith, Dear had the burden

of showing that no reasonable person in Newman's position could have thought the facts were

such that they justified Newman's actions. City of Lancaster , 883 S.W.2d at 657 . Other than his

own testimony, Dear produced no evidence that the investigation and resulting statements were

not made in good faith.

The final prong of the official immunity test requires us to determine whether

Newman acted within the scope of his authority during all relevant times. Appellees' summary-judgment proof established that Newman was, at all times, acting pursuant to his role as Chief of

Police for the City. In that role, Newman supervised the investigation that involved Dear. The

supervision of police investigations is an important function of a police chief, and Newman was

acting within the scope of his authority in doing so. See Wyse , 733 S.W.2d at 227 . Because all

three elements of the test set out in City of Lancaster have been meet, we hold that summary

judgment in favor of Newman in his individual capacity was properly rendered and therefore

overrule Dear's fourth point of error.

In his fifth point of error, Dear complains that the trial court erred in awarding

costs to Newman in his official capacity. Rule 131 of the Texas Rules of Civil Procedure

provides that a successful party is to recover from its adversary all costs incurred therein, except

when otherwise provided by law. Tex. R. Civ. P. 131. According to Dear, Newman was not

a prevailing party because Dear prevailed on his open records claims. We disagree.

Newman was not a party in the original Open Records suit filed by the City of

Irving. In fact, he was not a party to this lawsuit until he was made a third-party defendant by

Dear. Under the definition of successful party adopted in the cases construing Rule 131, a

prevailing party is one who is vindicated by the judgments rendered. Scholl v. Home Owners

Warranty Corp. , 810 S.W.2d 464, 468-69 (Tex. App.--Eastland 1991, no writ). Dear brought

Newman into the lawsuit, and the trial court's judgment vindicated Newman; Newman clearly fits

within the definition of prevailing party. Accordingly, the trial court properly awarded costs to

Newman, and Dear's fifth point of error is overruled.

CONCLUSION

Having overruled all of Dear's points of error, we affirm the judgment of the trial

court.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: July 12, 1995

Publish

1. The City took a nonsuit of its claim against the Attorney General; therefore, he is no

longer a party to this suit.

2. Dear also alleged a violation of the Open Meetings Act. Tex. Gov't Code Ann.

§§ 551.001 -.146 (West 1994). However, Dear's brief does not address the Open Meetings

cause of action, and thus any error in connection therewith is waived.

3. If an appellant cites no authority in support of a point of error, the court should

overrule the point of error. Teague v. Bandy , 793 S.W.2d 50, 58 (Tex. App.--Austin 1990,

writ denied).

4. A suit against a state officer in his official capacity is a suit against the state. Pickell

v. Brooks , 846 S.W.2d 421, 425 (Tex. App.--Austin 1992, writ denied). It follows that city

officials acting in their official capacity enjoy the same immunity as the City itself, and Dear

accordingly concedes that if the City is immune from liability, appellee Newman in his official

capacity enjoys the same immunity.

5. Appellees contend that Dear failed to plead a cause of action for defamation against

Newman. We will assume without deciding that such a cause of action was pled.