Opinion

NUMBER 13-99-038-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ARTURO MONTANEZ, INDIVIDUALLY

AND AS ADMINISTRATOR OF THE

ESTATES OF MARIA DELALUZ

MONTANEZ AND CHRISTOPHER LEE

ROSALES, DECEASED, ET AL.,

Appellants,

v.

THE CITY OF THREE RIVERS, LIVE OAK

COUNTY, ET AL.,

Appellees.

___________________________________________________________________

On appeal from the 36th District Court

of Live Oak County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez and Kennedy

Opinion by Justice Chavez

This is an accelerated appeal from the denial of a summary

judgment based on the affirmative defense of immunity. (1) We affirm.

Appellants Arturo Montanez, individually and as administrator of

the estates of Maria De La Luz Montanez and Christopher Lee Rosales,

and Santos Aguirre, Sr., individually and on behalf of minor children

Omar Aguirre and Alberto Aguirre and surviving heirs Francisca

Montanez and Apolonio Montanez under the Texas Wrongful Death Act

filed suit against Live Oak County and Live Oak County Police Deputies

Glenn Thompson and Vincent Roberts for torts arising out of a high-speed collision on U.S. Highway 281 on November 22, 1995. By two

issues, appellants complain the trial court erred by granting the

County's and its deputies' motion for summary judgment. Appellants

also complain the trial court erred by not granting their request for a

new trial.

Summary Judgment

A motion for summary judgment must expressly state the grounds

upon which it is made. McConnell v. Southside Sch. Dist. , 858 S.W.2d

337, 339 (Tex. 1993); Tex. R. Civ. P. 166a(c). Summary judgments may

not be affirmed or reversed on grounds not expressly set forth in the

motions presented to the trial court. City of Houston v. Clear Creek

Basin Auth. , 589 S.W.2d 671, 677 (Tex. 1979). It must be based only

on the grounds expressly presented in the motion, and a court may not

rely on briefs or summary judgment evidence in determining whether

grounds are expressly presented. McConnell , 858 S.W.2d at 339 .

Here, the motion clearly presents the grounds for summary judgment.

Appellee argues that the clerk's record does not contain evidence

appellants referred to in their appellate brief. However, the

supplemental clerk's record contains all evidence not in the clerk's

record used by the appellant to brief their arguments against the

motion.

The proper inquiry on appeal of summary judgment is whether the

appellant fulfilled his initial burden 1) to establish as a matter of law

that there remains no genuine issue of material fact as to one or more

essential elements of the plaintiff's cause of action or 2) to establish his

affirmative defense to the plaintiff's cause of action as a matter of law.

Rhone-Poulenc, Inc. v. Kenda Steel , 997 S.W.2d 217, 222 (Tex. 1999);

Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548-49 (Tex.

1985). In deciding whether there is a disputed material fact issue

precluding summary judgment, evidence favorable to the non-movant

must be taken as true, with every reasonable inference indulged in favor

of the non-movant, and any doubts resolved in his favor. Nixon , 690

S.W.2d at 549 . Once the movant establishes an affirmative defense

which would bar the suit as a matter of law, the non-movant must then

produce summary judgment proof raising a fact issue in avoidance of

the affirmative defense. Cameron County v. Carrillo , 7 S.W.3d 706, 711

(Tex. App.--Corpus Christi 1999, no pet.).

Summary Judgment Evidence

The summary judgment evidence reveals that appellants' van

collided in a head-on collision with a pickup truck driven by Joseph

McConnell. McConnell was headed the wrong way on a divided

highway. The collision resulted in injuries and fatalities. The collision

involved no vehicles other than the appellants' van and McConnell's

truck. McConnell, dead at the scene, had a blood alcohol level of one

hundred eighteen milligrams per deciliter. His estate settled out of court

with the appellants and is not a party to this suit.

Prior to the collision, McConnell stopped at a convenience store in

Three Rivers. The clerks in the store testified that McConnell was

acting with bizarre and inappropriate manners and that he had admitted

to having been drinking. McConnell hit a utilities pole outside of the

convenience store in Three Rivers and then left the scene. It was

reported as a hit and run, and City of Three Rivers Police Officer Vance

Roberts pulled over McConnell a few minutes after he left the

convenience store. As he was questioning McConnell, Live Oak County

Deputies Glenn Thompson and Vincent Roberts arrived and observed

McConnell pass sobriety tests administered by Officer Vance Roberts.

Since the incident was outside of the city limits, Live Oak County

Deputy Thompson took over. He had McConnell drive approximately

one and a half to two miles back to the convenience store. Deputies

Thompson and Vincent Roberts observed McConnell drive without any

signs of intoxication.

After returning to the convenience store, Deputy Thompson

determined that the only damage from McConnell's impact on the

telephone pole was the tripping of a circuit breaker that caused the

power to go out in the store. There was no property damage. City of

Three Rivers Officer Vance Roberts had informed Deputy Thompson that

McConnell had an expired driver's license and that he was under

medical advisory review. The license had expired ten days prior to the

incident. McConnell explained that a heavy work schedule as surveyor

had prevented him from renewing his license and that the medical

advisory review pertained to a brief stay at a state hospital for

depression. A utility company employee came and fixed the electricity,

and Deputy Thompson allowed McConnell to leave without a citation

for the expired driver's license or for hitting the utilities pole.

Live Oak County Deputy Vincent Roberts followed McConnell

because he did not drive in the direction he said he was going to go,

but made no attempt to pull him over, and then lost sight of him. Soon

thereafter, McConnell was reported to the police for pulling onto the

lawn of a private residence and having smelled strongly of alcohol.

McConnell then headed south in the northbound lanes of U.S. 281.

Deputy Vincent Roberts received the report and spotted McConnell's

taillights traveling on the wrong side of the highway. Deputy Vincent

Roberts activated his lights and siren and drove after him in the

southbound lanes of the highway. Very soon after Deputy Vincent

Roberts was able to get parallel with McConnell's truck, the collision

occurred.

Sovereign Immunity

Live Oak County is a political subdivision of the State of Texas and

is not liable for damages unless a negligent or wrongful act falls within

a statutory waiver of immunity. Texas Highway Dept. v. Webber , 219

S.W.2d 70 (Tex. 1949). A government entity may be liable for police

negligence in police pursuits where third parties are injured. City of

Lancaster v. Chambers , 883 S.W.2d 650, 658 (Tex. 1994). The

pertinent limitation to governmental immunity is set out in the Texas

Tort Claims Act:

A governmental unit in the State is liable for:

(1) Property damage, personal injury and death

proximately caused by the wrongful act or omission or

the negligence of an employee acting within the scope

of employment if:

(a) the property damage, personal injury or death

arises from the operation or use of a motor driven

vehicle or motor driven equipment; and

(b) the employee should be personally liable to the

claimant according to Texas law; and

(2) Personal injury and death so caused by a condition or

use of tangible personal or real property if the

governmental unit would, were it a private person, be

liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).

The waiver of immunity under the Texas Tort Claims Act is subject

to Sections 101.055(3) and 101.056 of the Civil Practices and Remedies

Code. Section 101.055(3) states in its pertinent part:

This chapter does not apply to a claim arising:

(3) from the failure to provide or the method of providing

police or fire protection.

Tex. Civ. Prac. & Rem. Code Ann. § 101.055 (3) (Vernon 1997).

Section 101.056 states:

This chapter does not apply to a claim based on:

(1) The failure of a governmental unit to perform an act

that the unit is not required by law to perform; or

(2) The governmental unit's decision not to perform an act

or its failure to make a decision on the performance or

nonperformance of an act if the law leaves the

performance or nonperformance of the act to the

direction of a governmental unit.

Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997).

The supreme court has interpreted Sections 101.055(3) and 101.056 as

meaning that the method of performing an act refers to the

governmental decision or plan for providing police protection. Driskill

v. State , 787 S.W.2d 369, 370 (Tex. 1990); State v. Terrell , 558 S.W.2d

784, 787-88 (Tex. 1979). The method that the Live Oak Deputy chose

to try to prevent a wreck was to approach McConnell from the highway

parallel to where McConnell was driving. The fact that the deputy was

not successful in preventing the wreck does not mean that there was

no decision or plan for providing police protection.

Appellant argues that the court should find police negligence

under the rational that, "The intervention of negligent or even reckless

behavior by the driver of the car where the police pursues, does not . .

. require the conclusion there is a lack of proximate cause between

police negligence and the innocent victims' injuries." Travis v. City of

Mesquite , 830 S.W.2d 94, 98 (Tex. 1992). In Travis , police officers

pursued a high speed chase of a suspect of solicitation of prostitution

the wrong way on a divided highway at night. A head-on collision

resulted.

The case before the court today is different. The car that the Live

Oak County Deputy was pursuing was not in flight from the law when

it entered the wrong lane of the highway. At his own initiative,

McConnell was driving at high risk of causing a serious collision. The

deputy was not behind him on the wrong side of the divided highway;

he was approaching from a parallel position. In Travis , the collision

probably would not have happened if the police had not been in pursuit.

In this case, Deputy Vincent Robert's interest in his pursuit was to

prevent a wreck; McConnell probably would have caused the wreck

regardless of whether a police officer had tried to stop him. Hence,

Travis is not applicable to the facts of this case.

Furthermore, Section 101.021(2) requires the use or condition of

tangible personal property to be the proximate cause of the personal

injury or death in order for the State to lose its immunity. The use or

condition of no tangible property owned by the county caused this

collision. The Ninth Court of Appeals found no waiver of immunity

when a police car was used to transport an injured person to jail, where

she died, instead of to a hospital, for treatment. City of Orange v.

Jackson , 927 S.W.2d 784 (Tex. App.--Beaumont 1996, no writ). There

was no negligence in the condition or the use of the vehicle itself that

caused the plaintiff's death; rather, it was the officers' decision not to

provide necessary medical treatment that caused her death. Therefore

there was no waiver of immunity. Id . at 787.

In the case before us today, the appellants argue that a police car

was negligently used to pursue McConnell, and that the siren and

flashing lights from the Live Oak County Deputy's patrol car distracted

the appellant and caused the collision. As in City of Orange , the use

and condition of the police car and equipment did not cause the

collision. Under this rational, the cause would have been the deputy's

decision to follow McConnell and try to get him off of the road. The car,

siren and police lights were not negligently used or in negligently kept

condition; they were used properly according to the deputy's decision

to get a drunk driver off of the wrong side of the highway. It is possible

that Deputy Vincent Roberts could have attempted to get McConnell off

of the road without using his siren and police lights, but in doing so, he

would not have fully warned other drivers on either side of the highway

of the dangers of a police action in progress.

The supreme court has recently ruled on the difference between

causation by the condition or use of property and causation by

negligent actions by government employees. In this case, a patient

involuntarily committed to a county mental health facility for severe

depression eloped through hospital doors that were negligently left

unlocked and threw himself in front of a truck. Dallas County Mental

Health and Retardation v. Bossley , 968 S.W.2d 339 (Tex. 1998). The

collision that ensued was not caused by the lock on the hospital door;

it was caused by the state hospital's failure to keep the patient inside

of the hospital door. Id . at 343.

Here, as in both Dallas County Mental Health and Retardation and

City of Orange , there was no statutory waiver of the case at bar. "The

requirement of causation is more than a mere involvement [of

property]." Id . at 343. "If only involvement were required, the waiver

of immunity would be virtually unlimited, since few injuries do not

somehow involve tangible personal or real property." Id . at 343.

"Requiring only that a condition or use of property be involved would

conflict with the Act's basic purpose of waiving immunity only to a

limited degree." Id . at 343. Here, the siren and police lights are not a

proper link between the damage suffered by appellants and the police

force. They do no more than provide appellants with a condition that

makes liability for the injury possible under the statute. Thus, since the

County cannot be held liable for actions of its officers under the doctrine

of sovereign immunity as a matter of law, there is no statutory waiver

of immunity.

Official Immunity

We now address the trial court's denial of summary judgment of

the deputies' qualified immunity defense based on the deputies' official,

or qualified immunity claim. See Tex. Civ. Prac. & Rem. Code Ann. §

51.014 (5) (Vernon 1995); Kilburn , 849 S.W.2d at 812; Vega , 951

S.W.2d at 27. Under the Texas Tort Claims Act, a governmental entity

may bear liability for its employees' torts if, among other things, "the

employee would be personally liable to the claimant according to Texas

law . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (1) (Vernon 1997).

Conversely, if qualified immunity protects the employee from liability,

then the governmental entity's sovereign immunity remains intact.

Kilburn , 849 S.W.2d at 812; DeWitt v. Harris County , 904 S.W.2d 650,

656 (Tex. 1995). In this case, a sovereign immunity claim may be

based on an individual's assertion of qualified immunity and falls within

the scope of § 51.014(5). Kilburn , 849 S.W.2d at 812; City of Mission

v. Ramirez , 865 S.W.2d 579, 582 (Tex. App.--Corpus Christi 1993, no

writ).

Official or qualified immunity is an affirmative defense. City of

Lancaster v. Chambers , 883 S.W.2d at 653 . When seeking summary

judgment on an affirmative defense, the burden is on the defendant to

establish all essential elements of the defense. Cathey v. Booth , 900

S.W.2d 339, 341 (Tex. 1995). No disputed question of material fact can

remain on the affirmative defense. Black v. Victoria Lloyds Ins. Co. , 797

S.W.2d 20, 27 (Tex. 1990).

Official immunity is meant to protect government operations from

the harassment of litigation, not to shield police officers or other

government employees from liability. Kassen v. Hatley , 887 S.W.2d 4,

8 (Tex. 1994); See Westfall v. Erwin , 484 U.S. 292 (1988). Police

officers are entitled to official immunity from suits arising from the

performance of their 1) discretionary duties 2) in good faith as long as

they are 3) acting within the scope of their authority. City of Lancaster ,

883 S.W.2d at 653 . On appeal, we must determine whether the

summary judgment evidence proves that Deputies Glenn Thompson

and Vincent Roberts are entitled to official immunity as a matter of law,

i.e. , whether the evidence shows that they were performing a

discretionary function, acting in good faith, and within the scope of their

authority.

Appellants make no argument that the deputies' actions did not

involve discretionary duties performed within the scope of their

authority. After reviewing the evidence, we conclude that the police

deputies were performing a discretionary function within the scope of

their authority. Thus, the disputed issue is whether appellants

sufficiently proved the element of good faith as a matter of law.

In City of Lancaster , the supreme court stated that qualified

immunity protects "all but the plainly incompetent or those who

knowingly violate the law." City of Lancaster , 883 S.W.2d at 656 . A

police officer acts in good faith in a high speed chase if a reasonably

prudent officer, under the same or similar circumstances, could have

believed that the need to immediately apprehend the suspect

outweighed a clear risk of harm to the public in continuing the pursuit.

Id . at 656. The "could have believed" aspect of the good faith test

means that, in order to be entitled to summary judgment, a police

officer must prove that a reasonably prudent officer might have had the

same belief. Id . at 656-57. Immunity should be recognized if officers

of reasonable competence could disagree on the issue. Id . at 657 n.8.

Appellants attack the motion for summary judgment, contending

that Deputy Vincent Roberts failed to act as a reasonably prudent officer

by pursuing McConnell, creating a clear risk of harm to the public that

was not outweighed by the necessity of McConnell's apprehension.

Appellants further contend that Deputy Thompson failed to act as a

reasonably prudent officer because he did not administer any field

sobriety test at McConnell's previous stop, ignored signs of intoxication,

and released McConnell with a suspended license.

Both deputies acted as reasonably prudent officers. As discussed

above, Deputy Vincent Roberts acted as a reasonably prudent officer

when he pursued McConnell instead of letting him continue to drive

rapidly on the wrong side of the divided highway. Deputy Thompson

could have administered field sobriety tests on McConnell, but he had

already witnessed McConnell pass the sobriety tests administered by

Three Rivers Police Officer Vance Roberts and then drive approximately

one and a half to two miles back to the convenience store without any

signs of intoxication. Using his discretion, Deputy Thompson decided

that McConnell was not an intoxicated driver and decided not to arrest

McConnell for driving with an expired license that was under medical

review.

Appellants have not adequately substantiated their allegations

about a lack of good faith. Appellants' expert has failed to present

controverting evidence that no reasonable officer in Deputy Thompson's

position could have thought the facts were such as to justify his

actions. He mischaracterizes the events and conditions of the scenario

before the wreck. His conclusions are based on incorrect information,

and he makes conclusory assertions that are not substantiated in the

record.

An expert's testimony will support summary judgment only if it is,

"clear, positive and direct, otherwise credible and free from

contradictions and inconsistencies, and could have been readily

controverted" Tex. R. Civ. P. 166a(c). "Conclusory statements by an

expert are insufficient to support or defeat summary judgment."

Wadewitz v. Montgomery , 951 S.W.2d 464, 466 (Tex. 1997). The

supreme court has articulated that an expert testifying about good faith

must address what a reasonable officer could have believed under the

circumstances and must substantiate each element of the Chambers

test. Wadewitz , 951 S.W.2d at 466-67 .

Appellants' expert witness mistakenly described the expired

license as a suspended license. To have an expired license, a driver

need only fail to renew his license on time. Tex. Transp. Code Ann. §

521.271 (Vernon 1999). McConnell's license was a week and a half

overdue. A driver must be incapable of safely operating a motor vehicle,

or have affirmatively acted in violation of the law or of a restriction on

his license for his license to be suspended. Tex. Transp. Code Ann. §§

521.291 , 521.294 (Vernon 1999). Driving with a suspended license is

a more serious offense. Appellants' expert witness mistakenly

contradicted the record by stating that McConnell was not given a

sobriety test. Both County Deputies witnessed McConnell pass a

sobriety test administered by the City of Three Rivers Police Officer.

Since driving with a suspended license is a more serious offense than

driving with an expired license, and not administering any sobriety tests

under the conditions of this incident would have clearly been grounds

for an attack on the deputities' good faith, the conclusions of appellants'

expert are not well grounded.

Appellants' expert determined that McConnell fled detainment and

was in a state of panic, with no facts to support this conclusion. The

record states that he was investigated and allowed to leave. Since

there is no proof in the record to support this conclusion, this attack on

the officers' good faith is not adequately substantiated.

Appellants' summary judgment proof does not meet the Wadewitz

standard. They therefore have not produced summary judgment proof

raising a fact issue in avoidance of the affirmative defense of official

immunity.

Motion for new trial

An appellate court may only reverse a trial court's denial of a

motion for new trial if the trial court abused its discretion. Strackbein

v. Prewitt , 671 S.W.2d 37, 38 (Tex. 1984). Appellants base their

motion for a new trial upon a claim of newly discovered evidence. The

evidence they wish to introduce is a toxicologist's report that describes

the effects alcohol consumption has on an individual, and the testimony

of a student studying to be an emergency medical technician regarding

a conversation about McConnell's condition he had with Deputy

Vincent Roberts before the accident.

A party who moves for new trial based upon the existence of

newly discovered evidence has the burden of showing: 1) that the

evidence has come to his knowledge since trial, 2) that it is not due to

a lack of due diligence that the evidence did not come sooner, 3) that

the evidence is not cumulative, and 4) that the evidence is so material

that it would probably produce a different result if a new trial were

granted. Jackson v. VanWinkle , 660 S.W.2d 807, 809 (Tex. 1983).

Appellants have done little more than present some additional evidence.

They have not shown that the evidence has come to their knowledge

since the date the summary judgment was granted, (2) that they could not

have had the evidence at an earlier time, or that the evidence would

change the result of the trial. We see no abuse of discretion in the

trial court's decision not to grant the motion for a new trial.

We affirm the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed this

the 8th day of June, 2000.

1. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5) (Vernon

Supp. 1999).

2. Summary judgment hearings are characterized as "trials" for

the purpose of requests for a motion for a new trial based on newly

discovered evidence. Goswami v. Metropolitan Sav. and Loan

Assoc. , 751 S.W.2d 487, 490 (Tex. 1988).