Ray Basaldua v. George Farinacci, Ladona Farinacci and Jim House ( 2015 )

ACCEPTED
04-14-00774-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/21/2015 2:05:12 PM
KEITH HOTTLE
CLERK
NO. 04-14-00774-CV
FILED IN
IN THE COURT OF APPEALS FOR THE 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOURTH DISTRICT OF TEXAS 5/21/2015 2:05:12 PM
__________________________________________________________________
KEITH E. HOTTLE
Clerk
RAY BASALDUA,
Appellant,
v.
GEORGE FARINACCI, LADONA FARINACCI, & JIM HOUSE
Appellees.
__________________________________________________________________
CORRECTED APPELLEES’ BRIEF
__________________________________________________________________
From the District Court of Bexar County, Texas,
408th Judicial District; Trial Court Case No. 2014-CI-05926
__________________________________________________________________
FRANK O. CARROLL III
TBA No. 24082785
MIA B. LORICK
TBA No. 24091415
Roberts Markel Weinberg Butler Hailey PC
2800 Post Oak Blvd, 57th Floor
Houston, Texas 77056
Tel: (713) 840-1666
Fax: (713) 840-9404
fcarroll@rmwbhlaw.com
mlorick@rmwbhlaw.com
ATTORNEYS FOR APPELLEES GEORGE FARINACCI,
LADONA FARINACCI, AND JIM HOUSE
IDENTITY OF PARTIES AND COUNSEL
Appellant:
RAY BASALDUA, PRO SE
PO Box 1982
Lytle, Texas 78052
Tel: (210) 912-3256
Appellees:
GEORGE FARINACCI
LADONA FARINACCI
JIM HOUSE1
Frank O. Carroll III
Mia B. Lorick
Roberts Markel Weinberg Butler Hailey PC
2800 Post Oak Blvd, 57th Fl.
Houston, Texas 77056
Tel: (713) 840-1666
Fax: (713) 840-9404
fcarroll@rmwbhlaw.com
mlorick@rmwbhlaw.com
1
Appellees file this Corrected Appellees’ Brief due to inadvertently omitting Appellee Jim House in Appellees’
previously filed Appellees’ Brief. As such, Appellees now file this Corrected Appellees’ Brief to include Jim House.
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ................................................... ii
TABLE OF CONTENTS ..........................................................................iii
TABLE OF AUTHORITIES ...................................................................... v
RECORD REFERENCES ..................................................................... vii
STATEMENT OF THE CASE ............................................................... viii
ISSUES PRESENTED ............................................................................. ix
STATEMENT OF FACTS ......................................................................... 1
PROCEDURAL HISTORY ........................................................................ 3
SUMMARY OF THE ARGUMENT .......................................................... 4
ARGUMENTS AND AUTHORITIES ....................................................... 6
I. THE TRIAL COURT PROPERLY GRANTED APPELLEES’
MOTION FOR SUMMARY JUDGMENT BASED ON
VOLUNTEER IMMUNITY AS TO ALL OF BASALDUA’S
CLAIMS ................................................................................... 6
A. Standard of Review ........................................................ 6
B. Federal and State volunteer immunity statutes
generally ......................................................................... 6
C. The Motion for Summary Judgment asserted volunteer
immunity as to all of Basaldua’s claims ........................ 9
D. The trial court’s Order disposed of all of Basaldua’s
claims against Appellees.............................................. 11
iii
II. THE MANNER IN WHICH BASALDUA REFERS TO A
DEFENDANT DOES NOT REMOVE THE STATUTORY
PROTECTION OF VOLUNTEER IMMUNITY ................... 12
CONCLUSION ........................................................................................ 15
PRAYER .................................................................................................. 16
CERTIFICATE OF COMPLIANCE ........................................................ 17
CERTIFICATE OF SERVICE................................................................. 17
iv
TABLE OF AUTHORITIES
Cases
Candlelight Hills Civic Ass’n, Inc. v. Goodwin,
763 S.W.2d 474, 478-79 (Tex. App.—Houston [14th Dist.] 1998, writ
denied) ................................................................................................... 8
Carr v. Brasher,
776 S.W.2d 567, 569 (Tex. 1989) ........................................................ 11
Cincinnati Life Ins. Co. v. Cates,
927 S.W.2d 623, 626 (Tex. 1996) ........................................................ 11
Industrial Co. of N. Am. v. Security Ins. Co.,
790 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1990,
no writ) ............................................................................................ 6, 11
Insurance Co. of North America v. Security Ins. Co.,
790 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1990, no writ) 11
In re Hoa Hao Buddhist Congregational Church Tex. Chptr.,
2014 Tex. App. LEXIS 13792 (Houston [1st Dist.] December 23, 2014)
............................................................................................................... 9
Lang v. City of Nacogdoches,
942 S.W.2d 752, 757 (Tex. App.—Tyler 1997, writ denied) ........... 6, 11
McCrea v. Cubilla Condominium Corp.,
685 S.W.2d 755, 757 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.) ................................................................................................... 11
Rogers v. Ricane Enters. Inc.,
772 S.W.2d 76, 79 (Tex. 1999) ............................................................ 11
Ryland Enter. v. Weatherspoon,
355 S.W.3d 664, 666 (Tex. 2011).. ...................................................... 14
v
State Bar of Texas v. Heard,
603 S.W.2d 829, 833 (Tex. 1980) ........................................................ 14
State Farm Fire & Casualty Co. v. S.S.,
858 S.W.2d 374 (Tex. 1993) ................................................................ 11
Tilotta v. Goodall,
752 S.W.2d 160, 161 (Tex. App.—Houston [1st Dist.] 1988, writ
denied) ................................................................................................. 11
Walston v. Lockhart,
62 S.W.3d 257, 258 (Tex. App.—Waco 2001, pet denied) .................... 6
Wilchester W. Concerned Homeowners LDEF, Inc. v. Wilchester W.
Fund, Inc.,
177 S.W.3d 552, 566 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied) ................................................................................................... 8
Wrongful Death Beneficiaries of Elliot v. La Quinta Corp.,
2007 U.S. Dist. LEXIS 16837 at *7 (N.D. Miss. March 8, 2007) ........ 8
Statutes
42 USC § 14503 ................................................................................... 7, 13
42 USC § 14505 ......................................................................................... 7
Tex. Bus. Org. Code § 22.001(5).... ............................................................ 8
Tex. Bus. Org. Code § 22.235 .............................................................. 8, 13
Tex. Prop. Code § 201.002 ......................................................................... 8
Tex. R. Civ. P. 71 ............................................................................... 13, 14
vi
RECORD REFERENCES
Citations in this Appellees’ Brief to the Parties are as follows:
Appellant Ray Basaldua will be referred to as “Basaldua.”
Appellees George Farinacci, LaDona Farinacci, and Jim House will be
referred to collectively as “Appellees.”
Citations in this Appellees’ Brief to the record are as follows:
CR – Clerk’s Record designated by George Farinacci, LaDona Farinacci,
and Jim House and filed in this Court on 12/30/2014 (i.e. CR [page]; e.g.
CR 1)
vii
STATEMENT OF THE CASE
Nature of the case: This appeal arises from a summary
judgment proceeding in which the trial
court granted Appellees’ Motion for
Summary Judgment, dismissing all of
Basaldua’s claims.
Trial Court Disposition: Appellees filed a Motion for Summary
Judgment on October 8, 2014. (CR 115–29).
On October 22, 2014, Basaldua filed a
Response to Appellees’ Motion for Summary
Judgment. (CR 163–68). Appellees filed a
Reply to Basaldua’s Response on October
29, 2014. (CR 175–83). On October 30,
2014, the trial court granted Appellees’
Motion for Summary Judgment, dismissing
all claims. (CR 191).
Trial Court: 408th Judicial District; Trial Court Case No.
2014-CI-05926
viii
ISSUES PRESENTED
1. Whether the trial court abused its discretion in granting
Appellees’ Motion for Summary Judgment based on volunteer
immunity as to all claims.
2. Whether the trial court had jurisdiction over the parties when
Basaldua referred to the board members as “individuals” and not
as “volunteer board members.”
ix
STATEMENT OF FACTS
This appeal stems from an action brought by Ray Basaldua
against various volunteer members of the Board of Directors of the
Clear Springs Park Property Owner’s Association, Inc.
(the “Association”).2 The Association is a nonprofit homeowners
association located in San Antonio, Bexar County, Texas, which was
created for civic and public benefit, and to serve the welfare of the
community.3 The Association is operated by the Board of Directors,
comprised of individual volunteer members who are not compensated
for their service.4 This lawsuit is based on Basaldua’s dissatisfaction
with the administration of the Association.5
Basaldua is a builder who was hired by a Clear Springs
community homeowner, Li Luo Skelton (“Skelton”), to construct an
addition and improvements to her home.6 Although Basaldua and
Skelton agreed on plans and began construction, Skelton failed to
obtain approval of the Association before beginning construction, as
2 CR 1.
3 CR 116–17.
4 CR 116.
5 CR 2–3.
6 CR 2.
1
required by the Association’s Restrictions.7 Construction within the
Clear Springs community requires approval from the Architectural
Control Committee (the “ACC”), prior to beginning work, as all
properties are subject to the Restrictions of Clear Springs Park, Unit 1
(the “Restrictions”) which mandate such requirement.8
Due to the failure to obtain Association approval, the Association
obtained a temporary restraining order (“TRO”) in 2012 to stop
construction.9 The order required the Skeltons to allow the ACC to
inspect the existing construction, to provide plans and information on
future construction, and to obtain approval from the ACC going
forward.10 The Skeltons agreed to obtain approval prior to moving
forward with construction.
After the TRO was issued, Basaldua filed suit against the
Skeltons as well as various volunteer board members of the
Association.11 Basaldua alleged that because the volunteer board
members sought and obtained a TRO, he lost income and incurred
7 CR 11.
8 CR 11.
9 CR 35.
10 CR 35–38.
11 CR 1.
2
unnecessary costs.12 Basaldua claimed that the volunteer board
members prevented him from performing work on his contract with
Skelton and that he suffered damages of over one-million dollars.13
Basaldua sued the Board members in their individual capacity.14
Appellees are members of the Association’s volunteer board of
directors.15 Basaldua alleged fraud, tortious interference with an
existing contract, tortious interference with prospective relations,
breach of contract, and aiding and abetting.16
PROCEDURAL HISTORY
On April 14, 2014, Basaldua filed suit against Defendants George
Farinacci, LaDona Farinacci, Li Luo Skelton, and later, Jim House.17
Appellees filed an Answer on May 12, 2014, and pled volunteer
immunity as a defense.18 On October 8, 2014, Appellees filed a Motion
for Summary Judgment, asserting volunteer immunity as a bar to all of
12 CR 1.
13 CR 1–6.
14 CR 2–3.
15 CR 1–5.
16 CR 1–6.
17 CR 1–6.
18 CR 7–-9.
3
Basaldua’s claims.19 Basaldua filed a Response to the Motion for
Summary Judgment on October 22, 2014; and, Appellees filed their
Reply on October 29, 2014.20 The trial court granted Appellees’ Motion
for Summary Judgment on October 30, 2014, by entering an Order
dismissing all of Basaldua’s claims.21 This appeal followed.
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in granting Appellees’
Motion for Summary Judgment. Under well–established Federal and
Texas volunteer immunity statutes, volunteers are immune from
liability when acting within the scope of their duties as volunteers. As
such, the Federal and Texas volunteer immunity statutes are applicable
to all claims brought by Basaldua because at all relevant times,
Appellees were acting in their volunteer board member capacities.
Appellees asserted volunteer immunity as to all of Basaldua’s claims,
and the trial court properly entered an Order dismissing all claims.
Therefore, the trial court did not abuse its discretion.
19 CR 115–29.
20 CR 175–83; CR 184–88.
21 CR 191–92.
4
Basaldua argues that the court erred because he sued Appellees
individually, and he did not refer to them as volunteers. However, the
volunteer protection is still triggered as the volunteer immunity
statutes do not look to the title a plaintiff gives a defendant or whether
the word “volunteer” is mentioned, but look to the conduct that is the
basis of the lawsuit. If the conduct complained of is within the scope of
the volunteer’s duties (as is the case here), the volunteer cannot be held
liable as a matter of law. The trial court did not abuse its discretion in
granting Appellees’ Motion for Summary Judgment.
5
ARGUMENTS & AUTHORITIES
I. THE TRIAL COURT PROPERLY GRANTED APPELLEES’
MOTION FOR SUMMARY JUDGMENT BASED ON
VOLUNTEER IMMUNITY AS TO ALL OF BASALDUA’S
CLAIMS.
A. Standard of Review
Summary judgment is reviewed de novo.22 Where a trial court
does not specify the grounds upon which it granted summary judgment
on each of the causes of action, summary judgment will be affirmed if
any of the theories advanced are meritorious.23
B. Federal and State volunteer immunity statutes
generally
The Federal Government created statutory protections for
volunteers in an effort to encourage volunteerism and to limit potential
liability for the volunteer. The relevant portion of the Federal Volunteer
Protection Act (the “Federal Act”) states:
(a) Liability protection for volunteers – Except as
provided in subsections (b) and (d) of this section, no
volunteer of a nonprofit organization or governmental
entity shall be liable for harm24 caused by an act or
22 Walston v. Lockhart, 62 S.W.3d 257, 258 (Tex. App.—Waco 2001, pet denied).
23 Lang v. City of Nacogdoches, 942 S.W.2d 752, 757 (Tex. App.—Tyler 1997, writ
denied); Industrial Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410
(Tex. App.—Houston [1st Dist.] 1990, no writ).
24 See 42 USC § 14505. Definitions. For purposes of this chapter, the term “harm”
includes physical, nonphysical, economic, and non-economic losses.
6
omission of the volunteer on behalf of the organization
or entity if:
(1) The volunteer was acting within the scope of the
volunteer’s responsibilities in the nonprofit
organization or governmental entity at the time
of the act or omission; . . .
(3) The harm was not caused by willful or criminal
misconduct, gross negligence, reckless
misconduct, or conscious, flagrant indifference to
the rights or safety of the individual harmed by
the volunteer . . .25
The Federal Act defines the term “nonprofit organization” as any not-
for-profit organization, which is organized and conducted for the public
benefit and operated primarily for charitable, civic, educational, or
welfare purposes and which does not practice any action, which
constitutes a hate crime.26
This definition of a nonprofit organization includes the Clear
Springs Park Property Owner’s Association, Inc. (the “Association”)
because the Association is operated in furtherance of the important
public policy of preventing dilapidation in housing and unhealthful
25 See 42 USC § 14503.
26 See 42 USC § 14505.
7
conditions described in Section 201 of the Texas Property Code.27
Basaldua never contested the nonprofit status of the Association.28
In addition to the Federal Act, the Texas Non-Profit Corporation
Act (the “Texas Act”) protects volunteers from liability as well. Chapter
22 of the Texas Business and Organizations Code pertains to nonprofit
corporations, which are defined as a corporation in which none of the
income is distributable to a member, director, or officer of the
corporation.29 Officers of a nonprofit corporation are immune from
individual and civil liability under Chapter 22.30 The relevant part of
the Texas Act states:
(a) An officer is not liable to the corporation or any person
for an action taken or omission made by the officer in
the person’s capacity as an officer unless the officer’s
conduct was not exercised:
(1) in good faith;
27 Tex. Prop. Code § 201.002; Wrongful Death Beneficiaries of Elliot v. La Quinta
Corp., 2007 U.S. Dist. LEXIS 16837 at *7 (N.D. Miss. March 8, 2007) (stating that
officers of nonprofit corporations are not liable under the Volunteer Protection Act).
28 See Wilchester W. Concerned Homeowners LDEF, Inc. v. Wilchester W. Fund,
Inc., 177 S.W.3d 552, 566 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (stating
in dicta that the homeowners association could enter into contracts because it fit the
definition of a nonprofit corporation under the Texas Non-Profit Corporations Act.);
see Candlelight Hills Civic Ass’n, Inc. v. Goodwin, 763 S.W.2d 474, 478-79
(Tex. App.—Houston [14th Dist.] 1998, writ denied) (stating that the Texas Non-
Profit Corporation Act authorizes certain actions by the homeowners association
because the homeowners association is a nonprofit corporation.).
29 Tex. Bus. Org. Code § 22.001(5).
30 Tex. Bus. Org. Code § 22.235.
8
(2) with ordinary care;
(3) in a manner the officer reasonably believes to be
in the best interest of the corporation.31
Here, none of the Association’s income was distributable to a
member, director, or officer. And, at all relevant times, Appellees were
officers of the Association. As a result, Appellees are immune from
liability under the Federal Volunteer Protection Act, as well as the
Texas Non-Profit Corporation Act.32
C. The Motion for Summary Judgment asserted volunteer
immunity as to all of Basaldua’s claims
Basaldua claims “the trial court abused its discretion in granting
Appellees’ Motion For Summary Judgment when the Appellee[s] failed
to establish that all of Appellant’s claims were legally insufficient.”33
Basaldua further claims that Appellees were only seeking relief as to
one claim—breach of contract. However, this is not true. Appellees
asserted the defense of volunteer immunity as to all claims, not just
breach of contract.34 In their Motion for Summary Judgment, Appellees
establish that they are immune from liability under Federal and State
31 Id.
32 In re Hoa Hao Buddhist Congregational Church Tex. Chptr., 2014 Tex. App.
LEXIS 13792 (Houston [1st Dist.] December 23, 2014).
33 See Appellant’s Brief at 2.
34 Appellees attacked the breach of contract claim individually as an alternate
argument in their Motion for Summary Judgment, see CR 115.
9
volunteer immunity statutes for actions taken in their capacity as
volunteer board members—precluding all of Basaldua’s claims against
them.
Specifically, the Motion for Summary Judgment states:
In sum, the Association is a non-profit corporation in whose
service the Volunteer Board Members cannot be held liable.
Thus the Volunteer Protection Act is a statutory bar to
Plaintiff’s claims against the Volunteer Board Members.35
Basaldua erroneously interprets this language to mean that the
Motion for Summary Judgment only addressed breach of contract. The
language does not single out one claim; it states that volunteer
immunity is a bar to all claims. Appellees argued that “the Volunteer
Protection Act is a statutory bar to Plaintiff’s claims against the
Volunteer Board Members,” using the plural of the word “claim,”
thereby indicating that the Volunteer Protection Act is a statutory bar
to all of Basaldua’s claims—fraud, tortious interference with an
existing contract, tortious interference with prospective relations,
breach of contract, and aiding and abetting. Accordingly, Appellees’
Motion for Summary Judgment addressed all claims brought by
35 CR 119.
10
Basaldua and the trial court did not abuse its discretion in granting the
Motion for Summary Judgment as to all of the claims.
D. The trial court’s Order disposed of all of Basaldua’s
claims against the Farinaccis
The Order signed by the trial court states “this Order disposes of
all Plaintiff’s claims against Defendants.”36 Although the Order does
not state that volunteer immunity precludes all claims, where a court
does not specify the grounds upon which it granted summary judgment,
summary judgment will be affirmed if any of the theories advanced are
meritorious.37 The burden is on the party appealing to show that each
independent argument alleged in the motion for summary judgment is
insufficient to support the trial court’s order.38 Basaldua has not met
(and cannot meet) this burden.
36 CR 191 (emphasis added).
37 Lang v. City of Nacogdoches, 942 S.W.2d 752, 757 (Tex. App.—Tyler 1997, writ
denied); Industrial Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410
(Tex. App.—Houston [1st Dist.] 1990, no writ) (emphasis added); see State Farm
Fire & Casualty Co. v. S.S., 858 S.W.2d 374 (Tex. 1993); Cincinnati Life Ins. Co. v.
Cates, 927 S.W.2d 623, 626 (Tex. 1996); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989); Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 79 (Tex. 1999); Insurance Co. of
North America v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App.—Houston
[1st Dist.] 1990, no writ).
38 Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.—Houston [1st Dist.] 1988, writ
denied); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex. App.—
Houston [1st Dist.] 1985, writ ref’d n.r.e.).
11
The Federal and State volunteer immunity statutes bar all claims
against volunteers of nonprofit corporations when the volunteers are
acting in their volunteer capacities. Here, the conduct complained of is
that Appellees stopped construction on the Skeltons’ house because the
Skeltons failed to obtain approval from the ACC, as required under the
deed restrictions for the Clear Springs community. Appellees, acting as
volunteer board members, were enforcing the deed restrictions.39 At all
times relevant to this matter, Appellees were acting on behalf of the
Association and protecting the interests of the homeowners in the
community. Therefore, the volunteer immunity statutes are implicated.
Because the statutes protect volunteers like Appellees, the defense of
volunteer immunity has merit as to all claims brought by Basaldua.
The granting of Appellees’ Motion for Summary Judgment
disposing of all claims should be affirmed because the trial court did not
abuse its discretion in finding that the Federal and State volunteer
immunity statutes bar Basaldua’s claims.
39 CR 4–5.
12
II. THE MANNER IN WHICH BASALDUA REFERS TO A
DEFENDANT DOES NOT REMOVE THE STATUTORY
PROTECTION OF VOLUNTEER IMMUNITY.
Basaldua claims “the trial court abused its discretion in granting
Appellees’ Motion for Summary Judgment when the trial court lacked
personal jurisdiction.”40 Basaldua bases this argument on the fact that
he identified Appellees as “individuals” in his pleadings and not
“volunteer board members.”41 Basaldua’s argument is without merit.
The manner in which Basaldua chooses to refer to a defendant
does not change the underlying conduct that forms the basis of his
complaint – which is what must be considered in applying the volunteer
immunity statutes.42 Basaldua alleged that Appellees—acting as
president and officers of the Association—interfered with his contract to
construct improvements by stopping work because the construction
plans were not submitted for approval.43
The Federal Act only requires that “the volunteer was acting
within the scope of the volunteer’s responsibilities in the nonprofit
organization or governmental entity at the time of the act or
40 See Appellant’s Brief at 1.
41 Id. at 3.
42 Tex. R. Civ. P. 71.
43 CR 4–5.
13
omission.”44 Likewise, the Texas Act only requires that the “action
taken or omission made by the officer [is] in the person’s capacity as an
officer.”45 Basaldua’s pleadings established that each individual
defendant he sued lives in Texas and is therefore, subject to the
jurisdiction of Texas courts.46 Because Basaldua established personal
jurisdiction over Appellees in his pleadings,47 and he sued for actions
taken as volunteer board members, the court had jurisdiction to find
that the Federal and State volunteer immunity statutes barred
Basaldua’s claims.
Moreover, it is well settled in Texas that courts look to the
substance of the pleadings and relief sought to determine the nature of
the claim, not merely the form of the title given to it.48 The same is true
regarding the way a plaintiff decides to refer to a defendant.
Basaldua sued Appellees in their individual capacity for actions
they took in their capacity as volunteer board members. Basaldua
44 See 42 USC § 14503.
45 Tex. Bus. Org. Code § 22.235.
46 CR 4–5.
47 CR 2–3.
48 Tex. R. Civ. P. 71; State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980);
Ryland Enter. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (holding that a
court will look to the contents of the document and not merely the title giving to the
motion).
14
argues that because he did not sue the Association or say the exact
words “volunteer board members” that the volunteer immunity statutes
are not applicable. Basaldua is wrong. Following Basaldua’s reasoning
would lead to an absurd result. Under Basaldua’s logic, all a plaintiff
would have to do is include the word “individual” in his pleadings and
avoid the term “volunteer” to circumvent the volunteer immunity
statutes. This would allow a plaintiff to circumvent the intended
application of the defense of the immunity statutes when the conduct at
issue is in fact protected—this is not what the legislature intended.
The trial court did not abuse its discretion in finding that the
defense of volunteer immunity was a bar to all of Basaldua’s claims.
The manner a plaintiff chooses to refer to a defendant does not remove
statutory protection.
CONCLUSION
The trial court did not abuse its discretion in granting Appellees’
Motion for Summary Judgment dismissing all claims because the
Federal Volunteer Protections Act and Texas Non-Profit Corporation
Act bar all of Basaldua’s claims against Appellees. The trial court was
15
correct in entering an Order dismissing all claims, as volunteer
immunity is meritorious as to all claims brought against Appellees.
In addition the absence of the term “volunteer” in his pleadings is
irrelevant because the volunteer immunity statutes do not look to how a
plaintiff chooses to refer to a defendant, but to the conduct that is the
basis of the lawsuit. Because the conduct complained of by Basaldua is
within the scope of the volunteers’ duties, the volunteers are not liable
as a matter of law and the trial court did not abuse its discretion.
PRAYER
For these reasons, Appellees George Farinacci, LaDona Farinacci,
and Jim House respectfully request this Court affirm the trial court’s
Order dismissing all of Appellant’s claims against them.
16
Respectfully submitted,
ROBERTS MARKEL WEINBERG BUTLER HAILEY PC
____________________________________
FRANK O. CARROLL III
TBA No. 24082785
MIA B. LORICK
TBA No. 24091415
2800 Post Oak Blvd, 57th Floor
Houston, TX 77056
Tel: (713) 840-1666
Fax: (713) 840-9404
fcarroll@rmwbhlaw.com
mlorick@rmwbhlaw.com
ATTORNEYS FOR APPELLEES
GEORGE FARINACCI,
LADONA FARINACCI, AND JIM HOUSE
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i(3) of the Texas Rules of Appellate
Procedure, I certify that the word count in this Appellees’ Brief is 3,946
words.
_________________________________
FRANK O. CARROLL III
17
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument was served upon the parties listed below by facsimile,
messenger, regular U.S. Mail, certified mail, return receipt requested
and/or electronic service in accordance with the Texas Rules of
Appellate Procedure on this the 21st day of May, 2015.
Ray Basaldua
PO Box 1982
Lytle, Texas 78052
_____________________________________
FRANK O. CARROLL III
18