Jesus Munoz, III v. Jim Wells County, Texas Sheriff Oscar Lopez Mary Alice Benavides and Dionicio Arredondo ( 2006 )

MEMORANDUM OPINION

No. 04-05-00236-CV

Jesus MUNOZ, III,

Appellant
v.
JIM WELLS COUNTY, Texas, Sheriff Oscar López, Mary Alice Benavides,

and Dionicio Arredondo,

Appellee s
From the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 05-01-43087-CV

Honorable Richard C. Terrell , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Sarah B. Duncan , Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 14, 2006

AFFIRMED

Jesus Munoz, III, appeals from an order granting summary judgment in favor of appellees, Jim Wells County, Texas, and three county employees-Sheriff Oscar López, Dispatcher Mary Alice Benavides and Deputy Dionicio Arredondo ("individual defendants"). The underlying lawsuit was brought by Munoz against Jim Wells County, Deputy Gilbert Bernal, and the individual defendants for injuries sustained while Munoz was detained at the Jim Wells County Jail. Because we hold there is no evidence that Munoz' injuries were caused by a condition or use of tangible property, Jim Wells County is protected by sovereign immunity. In addition, the individual defendants properly met their burden of proving they were protected by official immunity, which was not rebutted by Munoz. The trial court also did not abuse its discretion by granting a severance. Therefore, we affirm the judgment of the trial court.

Factual and Procedural Background

In the early morning hours of January 24, 2002, Munoz was arrested for driving while intoxicated and transported to the Jim Wells County Jail. Munoz refused to cooperate with jail personnel, refused to complete paperwork, was "belligerent," used profanity, and repeatedly pushed the emergency call button asking to use the telephone. Both Benavides and Arredondo asked Munoz to stop pressing the call button and told him he would have to wait to use the telephone. Later that morning, Deputy Bernal reported for duty and learned of Munoz' behavior from Dispatcher Benavides and Deputy Arredondo. Bernal requested that Arredondo give him the key to Munoz' cell so Bernal could speak to him outside his jail cell to try to "calm him down." Bernal received the keys from Arredondo, used them to open Munoz' cell, and allowed Munoz to exit the cell. At that time, Bernal and Munoz had a conversation outside the jail cell which escalated, and Bernal perceived hand gestures made by Munoz to be a dangerous threat. Bernal hit Munoz once in the nose with his fist, causing Munoz to suffer lacerations, a broken nose and a concussion. Munoz subsequently filed suit alleging multiple negligence causes of action against Deputy Bernal, Jim Wells County, and the individual defendants. All the defendants except Bernal filed a motion for summary judgment and a motion for severance. The trial court granted the motion for severance and assigned a new cause number to Munoz' claims against the county and the individual defendants. Subsequently the trial court granted summary judgment in favor of the county and the individual defendants and dismissed Munoz' claims with prejudice. Munoz now appeals both the severance and the summary judgment. As guided by Rule 38.9, we construe Munoz' brief liberally and understand his argument to be that the summary judgment should be reversed because: (1) the county's sovereign immunity is waived under Texas Civil Practice and Remedies Code § 101.021; and (2) the individual defendants did not plead and prove their entitlement to official immunity as a matter of law. Tex. R. App. P . 38.9; Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005). Munoz also argues the trial court abused its discretion in granting the severance.

Summary Judgment for Jim Wells County

On appeal, we review a summary judgment de novo. Hendrix v. Bexar County Hosp. Dist., 31 S.W.3d 661, 662 (Tex. App.--San Antonio 2000, pet. denied). We will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Tex. R. Civ. Proc. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We view the evidence in the light most favorable to the nonmoving party and disregard all contrary evidence and inferences. Hendrix, 31 S.W.3d at 662. A summary judgment is appropriate if the defendant "establishes all elements of an affirmative defense to each claim." Grinnell, 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Here, Jim Wells County moved for summary judgment on the affirmative defense of sovereign immunity. Under the doctrine of sovereign immunity, a governmental entity is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. Medrano v. City of Pearsall, 989 S.W.2d 141, 143-44 (Tex. App.--San Antonio 1999, no pet.). Once a defendant has established that it is a governmental entity, it has satisfied its initial summary judgment burden and the burden shifts to the plaintiff to raise a fact issue. Medrano,989 S.W.2d at 144. It is undisputed that Jim Wells County is a governmental entity; thus, it met its initial burden of proving sovereign immunity. See Tex. Civ. Prac. & Rem. Code. Ann. § 101.001(3) (Vernon 2005). In reply, Munoz argues that sovereign immunity as to the county is waived because his injuries were caused by the use of the keys to open the jail cell, which is tangible personal property. Specifically, Munoz maintains that (1) Arredondo's action in giving the jail keys to Bernal was negligent because Arredondo was aware of Munoz' night-time behavior and knew, or should have known, that Munoz should not be let out of the cell without being patted down or properly restrained; and (2) Bernal negligently used the jail keys to open the cell door and to allow Munoz to exit the cell without proper restraint and without patting him down. We disagree that the use of keys under these circumstances waives sovereign immunity as to Jim Wells County.

The Texas Tort Claims Act ("TTCA") waives governmental immunity under three limited circumstances. See Tex. Civ. Prac. & Rem. Code. Ann. § 101.021; Reynosa v. Univ. of Texas Health Sci. Ctr. at San Antonio, 57 S.W.3d 442, 445 (Tex. App--San Antonio 2001, pet. denied). Munoz cites only to one of those circumstances, § 101.021(2), which states that a governmental entity may be held liable for personal injury or death caused by a condition or use of tangible personal property if the governmental unit would, were it a private person, be held liable under Texas law. Tex. Civ. Prac. & Rem. Code. Ann. § 101.021(2). Section 101.021(2) requires that for immunity to be waived, the injuries at issue must be proximately caused by the condition or use of tangible property. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (emphasis added). More than mere involvement of the property is necessary and property will not be considered to have proximately caused injury if it does no more than furnish the condition that makes the injury possible. Id. Here, although using the keys to open the jail cell was part of a series of events which ultimately resulted in Munoz' injuries, the use of the keys can not be said to have caused the injury. Accordingly, the county's sovereign immunity was not waived under § 101.021(2). ⁽¹⁾ We affirm the summary judgment in favor of Jim Wells County.

Summary Judgment for Individual County Employees

The individual defendants moved for summary judgment on the basis of official immunity. ⁽²⁾ Official immunity is an affirmative defense that protects public officers from civil liability for conduct that would otherwise be actionable. City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex. 1994). Under state law, a governmental employee is entitled to official immunity for the performance of discretionary duties within the scope of the employee's authority, provided the employee acted in good faith. ⁽³⁾ Id. at 653; Baker v. Story, 621 S.W.2d 639, 644 (Tex. Civ. App.--San Antonio 1981, writ ref'd n.r.e.). To succeed on a motion for summary judgment, the individual defendants must prove each element of official immunity as a matter of law. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). Munoz conceded that the individual defendants were government employees acting within the scope of their authority. The individual defendants and Munoz disagree, however, as to whether the evidence brought forth by the individual defendants showed that their actions were discretionary and done in good faith. Therefore, we must examine the summary judgment evidence to determine whether the individual defendants established as a matter of law that they were (1) performing discretionary duties and (2) acting in good faith.

First, we examine the evidence to determine whether the individual defendants were performing discretionary duties. Discretionary acts are those which involve personal deliberation, decision, and judgment. Chambers, 883 S.W.2d at 654. Actions which require strict obedience to orders or the performance of a duty, leaving nothing to the choice of the actor, are merely ministerial, and are not protected by official immunity. Id. A function is ministerial if the law prescribes the duties to be performed with such precision that nothing is left to the discretion of the actor. Id. Texas courts have recognized several instances where jailers legitimately exercised discretion while performing their duties. See, e.g., City of Coppell v. Waltman, 997 S.W.2d 633, 636-37 (Tex. App.--Dallas 1998, pet. denied) (although city's policies required a prisoner to be "constantly" monitored, the manner in which monitoring was carried out was left to the discretion of the jail dispatcher); Texas Dept. Crim. Justice v. Watt, 949 S.W.2d 561, 565-66 (Tex. App.--Waco 1997, no writ) (policy regarding use of force against inmates allowed for exercise of individual judgment and deliberation in conforming to policy guidelines); City of Galveston v. Burns, 949 S.W.2d 881, 884-85 (Tex. App.--Houston [14th Dist.] 1997, no writ) (city's policy regarding screening for potentially suicidal prisoners involved great deal of discretion in assessment of prisoners).

Here, the individual defendants presented summary judgment evidence, consisting of affidavits from each individual defendant, witness statements from both Benavides and Arredondo, an internal investigation report, the Rules and Regulations of Jim Wells County Jail, and excerpts from Bernal's deposition. After reviewing the evidence, we find the actions of each of the individual defendants in this case clearly required personal deliberation, decision and judgment and were not merely ministerial. See Chambers, 883 S.W.2d at 654. The law has not specifically prescribed the duties performed here with such precision as to leave no discretion up to the individual employee.See id. In addition, the Jim Wells County Jail Rules and Regulations do not provide guidelines so specific as to leave no judgment to the individual actor. Specifically, it was Benavides' duty to answer the emergency call button that Munoz continually pushed to request a phone call. She used discretion in responding to Munoz, telling him he would have to wait for the judge to arrive before using the telephone. She also asked him to stop pressing the emergency call button. This was the only contact Benavides had with Munoz. Similarly, Arredondo used his discretion by also telling Munoz that he could not yet use the telephone. He told Munoz he had not yet been allowed to do so because he had refused to finish the paperwork required to complete booking. There was no outlined protocol for the particular situation that would have negated the need for Arredondo to use his discretion. He also practiced discretion in deciding whether to hand the keys to Munoz' cell to Bernal. Lastly, Sheriff López clearly used his discretion to promulgate rules and regulations to maintain standards to protect inmates.

Having held the individual defendants' actions required discretion, we now determine whether they established that they acted in good faith. In City of Lancaster v. Chambers, the Texas Supreme Court articulated an objective test for determining if a police officer seeking official immunity acted in good faith. Chambers, 883 S.W.2d at 656. While Chambers involved a police pursuit, the objective standard has been applied in other types of cases. See id. Generally, the test for objective good faith is whether a reasonably prudent officer, under the same or similar circumstances, could have believed that his actions were justified. Id.; Antu v. Eddy, 914 S.W.2d 166, 171 (Tex. App.--San Antonio 1995, no writ); Rhodes v. Torres, 901 S.W.2d 794, 798 (Tex. App.--Houston [14th Dist.] 1995, no writ).

Here, the individual defendants established with competent summary judgment evidence that they acted in objective good faith. The evidence with respect to Benavides and Arredondo reflects that reasonably prudent officers in their position and with the information they possessed at the time, could have acted similarly and believed their actions justified. Chambers, 883 S.W.2d at 656. Benavides had never known Deputy Bernal to strike an inmate or lose his temper with an inmate. In fact, in her experience, Bernal was good at talking to hostile inmates. Arredondo had a similar perception of Bernal. Arredondo had never seen Bernal use unnecessary force against an inmate. It was routine for an officer to sit down and talk to an inmate to get them to "calm down." Bernal had been successful in calming down disruptive inmates on past occasions. The individual defendants did not know of any propensity of Bernal to engage in violence. In addition, Arredondo immediately went to Munoz' aid after he was struck by Bernal. He "covered" Munoz from Bernal, then sat Munoz down in a chair and brought him ice and towels while waiting for the ambulance, called by Benavides, to arrive. Although Sheriff López was not present during the incident, he learned of it soon thereafter. He maintains strict guidelines for the Jim Well's County Sheriff's Department prohibiting such use of unnecessary force. He immediately opened an investigation into the incident, which resulted in Bernal's termination of employment. López runs programs to ensure the deputies are well trained to avoid incidents such as the one involving Munoz. Based on this evidence, we find that reasonably prudent officers, under the same or similar circumstances, could have believed that their actions were justified. Chambers, 883 S.W.2d at 656.

Because the individual defendants properly sustained their burden of proof, the burden shifted to Munoz to produce controverting evidence raising an issue of fact as to the liability of the individual defendants for Munoz' injuries. Medrano, 989 S.W.2d at 142-43. Munoz' response to the individual defendants' motion for summary judgment did not present any substantive argument regarding how the individual defendants failed to meet their burden to prove official immunity. Rather, his response claimed the individual defendants did not properly argue their entitlement to official immunity. The evidence attached to his response consisted of the individual defendants' fourth amended petition, excerpts from the depositions of Bernal, Arredondo, Benavides and López, an offense report, excerpts from the Jim Wells County Jail Rules and Regulations, and the witness statement of Benavides. None of this evidence presented a fact issue as to any element of the individual defendants' claim of official immunity. Because the individual defendants met their burden to establish all elements of the affirmative defense of official immunity, and Munoz failed to raise a fact issue as to whether the individual defendants were performing discretionary duties in good faith, we hold the trial court properly granted summary judgment in their favor. Severance

Any action against a party may be severed and separately pursued. Tex. R. Civ. P. 41. The trial court has broad discretion in the matters of joinder of parties and severance and consolidation of causes. Guaranty Fed. Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). A trial court's decision to sever will be reversed only upon a finding of an abuse of discretion. Id. A severance is proper if: (1) the controversy involves more than one cause of action, (2) the severed cause is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed cause is not so intertwined as to involve identical facts and issues. Id. The controlling reasons for severance are to do justice, avoid prejudice, and further the convenience of the parties and the court. Id. Based on the record, we do not find an abuse of discretion by the trial court in severing out Munoz' claims against Bernal as he was the principal actor in the incident giving rise to Munoz' injuries. We therefore affirm the order granting severance. Based on the foregoing reasons, we affirm the judgment of the trial court.

Phylis J. Speedlin , Justice

1. Munoz also asserts various claims regarding negligent supervision, hiring, instruction, training, and employment of Bernal and the individual defendants; however, Munoz is required to establish an independent waiver of sovereign immunity before it can advance these theories of recovery and failed to do so. City of Laredo v. New Yorkers Apparel, Inc., No. 04-04-00887-CV, 2005 WL 1458248 at *4 (Tex. App.--San Antonio June 22, 2005, no pet.);City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex. App.--Dallas 2004, no pet.).

2. "Official immunity" is one of several interchangeable terms, including "quasi-judicial immunity," "qualified immunity," "discretionary immunity," and "good faith immunity," used to refer to an affirmative defense available for governmental employees sued in their individual capacities. City of Houston v. Kilburn, 849 S.W.2d 810, 812 n. 1 (Tex. 1993).

3. The individual defendants broadly reference in their motion for summary judgment both the federal and state standards for official immunity. Because Munoz only sued the individual defendants under state law claims, we look only to state law to determine whether they established official immunity.