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Clement v. City Of Plano8/24/2000
it was based and that Plano was not immune from suit for the actions of Glasscock and Nunns. Appellants admit that the headings used in Plano's brief in support of its motion would have constituted sufficient grounds, if specified in the motion as the reasons for summary judgment. Plano responds that the grounds for its motion were specific but merely labeled as issues. Plano contends that its motion was specific on the grounds that Plano would be immune from suit if Nunns were immune, and, further, that because appellants' admission to the court that Nunns was immune created sovereign immunity for Plano, it was not error to overrule the special exceptions. Appellants reply that they did not admit Nunns was immune in their summary judgment response and that Glasscock provided another basis for Plano's vicarious liability.
Admission of Official Immunity
Preliminarily, we consider whether Plano was required to prove the official immunity of its employees to seek sovereign immunity. First, as to liability for Glasscock's actions, appellants did not plead that Plano was vicariously liable for his actions. Therefore, because Plano was not being held accountable for his actions, it was not required to prove Glasscock had official immunity.
Second, as to liability for Nunns's actions, Plano contends statements of appellants' counsel at the hearing on the motion for summary judgment amount to a concession on the issue of Nunns's official immunity. Appellants' counsel made the following statements at the hearing:
[COUNSEL]:
Officer Nunns has immunity, but the City of Plano does not. If Officer Nunns - - if it was an ordinary person - - could be found negligent. Could have been. If there was an action that could have been brought against Officer Nunns, then the City is liable and the immunity doesn't - - doesn't flow from that.
[COURT]:
Your position that Officer Nunns is immune - - I'm not trying to put words in your mouth - - but it's your position that Officer Nunns is immune, but the City of Plano is not necessarily immune simply because the officer is; is that correct?"
[COUNSEL]:
Right. That's correct.
[COURT]:
You agree, do you not, that Mr. Nunns was not an ordinary citizen? He was . . . or is a police officer with the City of Plano; is that right?"
[COUNSEL]:
That's right. . . . as a government immunity.
Reasons for summary judgment and objections must be "expressly presented" in a written motion, answer to the motion, or other written response. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). Parties may restrict or expand the issues "expressly presented" in writing if the change meets the requirements of rule of civil procedure 11. See id. An oral waiver or agreement made in open court satisfies rule 11 if it is described in the judgment or an order of the court. See id. Here, however, the order granting the motion for summary judgment does not reflect any agreement on the issue of Nunns's governmental immunity. Therefore, counsel's statements at the hearing, standing alone, did not amount to a rule 11 exception and did not constitute a narrowing of the issues. See id.; Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 733-34 (Tex. App._Corpus Christi 1994, writ denied). Because appellants did not concede the issue of Nunns's immunity, we consider appellants' special exceptions to all Plano's grounds for Nunns's immunity and their issues concerning Glasscock's affidavit.
Grounds for Summary Judgment
A motion for summary judgment must state the "specific
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