Rene Gonzales v. The State of Texas--Appeal from 72nd District Court of Crosby County

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Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2008 » Rene Gonzales v. The State of Texas--Appeal from 72nd District Court of Crosby County

State: Texas

Court: Texas Northern District Court

Docket No: 07-07-00302-CR

Case Date: 10/31/2008

Plaintiff: LUIS F. ARANGO, M.D.

Defendant: NORA BRUMMETT--Appeal from 370th District Court of Hidalgo County

Preview:Vern Hallmark v. City of Fredericksburg--Appeal from 216th Judicial District Court of Gillespie County
No. 04-99-00519-CV Vern HALLMARK, Appellant v. THE CITY OF FREDERICKSBURG, Appellee From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 8606-A Honorable Stephen B. Ables, Judge Presiding Opinion by: Tom Rickhoff, Justice Sitting: Tom Rickhoff, Justice Alma L. L pez, Justice Paul W. Green, Justice Delivered and Filed: June 7, 2000 AFFIRMED IN PART; REVERSED AND REMANDED IN PART The trial court granted the City of Fredericksburg's motion for summary judgment on Vern Hallmark's claims for trespass, assault and battery, intentional infliction of emotional distress, and violation of 42 U.S.C. 1983. Hallmark appeals. We will affirm the summary judgment as to the common-law intentional torts and reverse as to the 1983 claim. Factual Background One day, several law enforcement officers were practicing for a benefit softball game on a field at a law enforcement center. They hit some balls into an adjoining R.V. park that is owned and operated by Hallmark. Hallmark asked the officers not to hit any more balls into the R.V. park and then attempted to call the sheriff and chief of police to voice his complaint. He managed to obtain an appointment to meet with the assistant chief of police the following morning. Later, an officer hit another ball into the R.V. park. When Hallmark picked it up, an officer demanded its return, and Hallmark told him he would return it to the assistant chief of police the next day. Three officers then came into the R.V. park and forcefully took the ball from Hallmark's hands. Hallmark sustained a broken finger during the struggle. 42 U.S.C. 1983 The City originally moved for summary judgment under Tex. R. Civ. P. 166a(i). The City's entire argument regarding Hallmark's 1983 claim was, "Plaintiff has failed to state a cause of action under 42 U.S.C. 1983 against this municipality, the CITY OF FREDERICKSBURG, as a matter of law." No summary judgment evidence was attached to the motion or referred to in the motion. The City later filed a supplement to the motion for summary judgment. The supplement stated that the motion was brought under Tex. R. Civ. P. 166a(c), as well as Tex. R. Civ. P. 166a(i). Regarding Hallmark's 1983 claim, the supplement simply restated the one-sentence argument in the original motion without any further elaboration. The City attached Hallmark's deposition to the supplement. Hallmark argues that the City's motion and supplement are insufficient to support the summary judgment. He also argues that a fact question exists as to whether the officers acted in accordance with an official policy of the City.

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To obtain summary judgment under Rule 166a(c), the City was required to conclusively establish all the elements of an affirmative defense or conclusively negate an element of Hallmark's 1983 claim. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The City did neither. It did not raise any affirmative defense, and it did not assert that it had conclusively negated any element of Hallmark's claim. Moreover, there is nothing in Hallmark's deposition that negates an element of his claim. To obtain summary judgment under Rule 166a(i), the City was required to "state the elements [of Hallmark's claim] as to which there is no evidence." See Tex. R. Civ. P. 166a(i). Rule 166a(i) "does not authorize conclusory motions or general no-evidence challenges to an opponent's case." See Tex. R. Civ. P. 166a Notes & Cmts. Instead, the motion "must be specific in challenging the evidentiary support for an element of a claim." See id. Although the City argues on appeal that Hallmark failed to establish that the officers acted pursuant to an official policy of the City, it did not specifically challenge this element of Hallmark's 1983 claim in its motion for summary judgment. Its motion amounted to no more than a conclusory and general no-evidence challenge. See Abraham v. Ryland Mortgage Co., 995 S.W.2d 890, 892 (Tex. App.-El Paso 1999, no pet.) (holding "there is absolutely no evidence to support Abraham's assertions that Ryland committed a wrongful foreclosure" was inadequate). Accordingly, the motion was insufficient to shift any burden to Hallmark to present evidence on the elements of his claim, and the trial court erred in granting summary judgment in favor of the City on the 1983 claim. Intentional Torts In its motion for summary judgment, the City asserted sovereign immunity. It is undisputed that the City is a governmental entity. Once a defendant has established that it is a governmental entity, it has satisfied its initial summary judgment burden on the affirmative defense of sovereign immunity. See Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex. App.-San Antonio 1999, no pet.); Brooks v. Center for Healthcare Servs., 981 S.W.2d 279, 28384 (Tex. App.-San Antonio 1998, no pet.). The burden then shifts to the plaintiff to raise a fact issue. See Medrano, 989 S.W.2d at 144; Brooks, 981 S.W.2d at 284. When a municipality commits a tort while engaged in a proprietary function, it is liable to the same extent as a private entity or individual. See Dilley v. City of Houston, 148 Tex. 191, 193, 222 S.W.2d 992, 993 (1949); Cranford v. City of Pasadena, 917 S.W.2d 484, 487 (Tex. App.--Houston [14th Dist.] 1996, no writ). When a municipality commits a tort while engaged in a governmental function, its liability is determined by the provisions of the Texas Tort Claims Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a) (Vernon Supp. 1999); Cranford, 917 S.W.2d at 487. Under the Act, a municipality is immune from liability for intentional torts. See Tex. Civ. Prac. & Rem. Code Ann. 101.057(2) (Vernon 1997). Therefore, if the officers were engaged in a governmental function when the altercation with Hallmark occurred, the City is immune from liability for trespass, assault and battery, and intentional infliction of emotional distress. Governmental functions are those functions that are enjoined on a municipality by law and are given to it by the state as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public. See id. 101.0215(a) (Vernon Supp. 1999). Proprietary functions are those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality. See id. 101.0215(b) (Vernon 1997). The Act sets out a nonexclusive list of governmental functions. Included in that list are police protection and control. See id. 101.0215(a)(1) (Vernon Supp. 1999). The Act also sets out a nonexclusive list of proprietary functions. Included in that list are "amusements owned and operated by the municipality." Id. 101.0215(b)(2) (Vernon 1997). Hallmark argues that a fact question exists as to whether the officers were engaged in a proprietary or governmental function when they wrestled the ball from his hand. He argues that a benefit softball game is performed in the interest of the inhabitants of the municipality rather than in the interest of the general public. He also suggests that the officers were engaged in an amusement owned and operated by the City. It is undisputed that the officers told Hallmark he would be arrested for theft if he did not give them the ball. Thus, the officers were engaged in police protection and control when the altercation occurred. It is irrelevant what the officers' motives were. See Texas River Barges v. City of San Antonio, No. 4-98-00837-CV, 2000 WL 31522, **8 (Tex. App.-

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San Antonio, Jan. 12, 2000, pet. filed). There is nothing in the record to suggest that either the field at the law enforcement center or the officers' benefit softball team was an amusement owned and operated by the City. And even if there were such evidence in the record, the fact that the officers were engaged in police protection and control at the time of the altercation precludes us from declaring their actions proprietary. See Tex. Civ. Prac. & Rem. Code Ann. 101.0215(c) (Vernon 1997) ("The proprietary functions of a municipality do not include those governmental activities listed [in 101.0215(a)]."); Texas River Barges, 2000 WL 31522, at **8; see also Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a)(23) (Vernon Supp. 1999) (listing "recreational facilities" as a governmental function). Because the officers were engaged in a statutorily defined governmental function when the altercation with Hallmark occurred, the City is immune from liability on Hallmark's common-law intentional tort claims. Therefore, the trial court properly granted summary judgment in the City's favor on these claims. Conclusion For the reasons stated herein, we reverse the summary judgment insofar as it relates to Hallmark's claim under 42 U.S.C. 1983. In all other respects, the summary judgment is affirmed. Tom Rickhoff, Justice DO NOT PUBLISH

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