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City of La Joya v. Herr3/1/2001
This is an interlocutory appeal from the denial of a motion for summary judgment based on an assertion of official immunity. By two issues, appellants, the City of La Joya and its employee, Rene Solis, Jr., complain the trial court erred: (1) in denying Solis's motion for summary judgment based on official immunity, and (2) in denying the City's motion for summary judgment based on sovereign immunity derived from Solis's official immunity. Because we hold appellants did not prove that Solis was entitled to official immunity and did not establish that the City was entitled to sovereign immunity, we affirm the trial court's order denying appellants' motion for summary judgment.
A. Traditional Summary Judgment
When we review a trial court's decision on a traditional motion for summary judgment filed pursuant to Texas Rule of Civil Procedure 166a(c), we follow these well-established rules:
(1) the movant has the burden of showing that there is no genuine issue of material fact 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 non-movant will be taken as true; and
(3) every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in favor of the non-movant. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a(c).
A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Evidence favoring the movant's position will not be considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We accept as true evidence in support of the motion if not controverted. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the non-movant to offer any issue or evidence that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
B. Background and Procedural History
Taking the evidence favorable to appellants as true and resolving all reasonable inferences and doubts in their favor, the facts of this case are as follows. Solis is employed by the City of La Joya as a police officer. On the morning of May 27, 1996, he was on duty in his patrol vehicle, traveling westbound on Expressway 83 in La Joya, when he observed an eastbound vehicle exceeding the posted thirty-mile-per-hour speed limit. He made a U-turn at a crossover, intending to stop the speeding vehicle. He did not radio the La Joya police dispatcher concerning the traffic violation or his intention to conduct a traffic stop. Solis activated the overhead "wig-wag" lights of his patrol unit, but not its siren. He accelerated to catch up with the speeder. He was going faster than the thirty-mile-per-hour speed limit. As he approached the intersection of Expressway 83 and Farm to Market Road 2521 (also known as Leo Avenue) in La Joya, he noticed Florine Herr's vehicle in the westbound left-turn lane. Solis took his foot off the accelerator and observed Herr's vehicle, but still did not activate the siren. Solis had the green
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