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Clement v. City Of Plano8/24/2000
grounds therefor." Tex. R. Civ. P. 166a(c). A "ground" is a reason the movant is entitled to summary judgment. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Bryan A. Garner, A Dictionary of Modern Legal Usage 261 (1987). The motion "must itself expressly present the grounds upon which it is made." McConnell, 858 S.W.2d at 341. To conclusively establish the essential elements of an affirmative defense, the motion must identify or address the defense and its elements. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). Failure to identify or address each element obscures the matters to be argued in support of the motion. See McConnell, 858 S.W.2d at 341.
In the motion for summary judgment, Plano recited only the nature of the action and facts and stated the following "issues":
A. Nunns is entitled to qualified or official immunity from suit.
B. Plaintiffs have failed to state a cause of action against Glasscock under the Texas Tort Claims Act.
C. Glasscock is entitled to qualified or official immunity from suit.
D. The City is entitled to judgment as a matter of law as Nunns and Glasscock are not personally liable to the Plaintiffs. Appellants specially excepted to the motion, stating it did not set out the specific ground or grounds upon which Plano claimed summary judgment. The trial court overruled the special exceptions.
Plano does not identify the affirmative defense of sovereign immunity or address its elements in its motion for summary judgment. Plano's affirmative defense of sovereign immunity is based on official immunity protecting its individual government employees from liability. See University of Houston v. Clark, 43 Tex. Sup. Ct. J. 874, 875, 2000 WL 768541, at *2 (June 15, 2000) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)). When official immunity shields a government employee from liability, sovereign immunity shields the government employer from vicarious liability. See Clark, 43 Tex. Sup. Ct. J. at 875, 2000 WL 768541, at *2 (citing DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995)). To show Plano had no vicarious liability for any negligence of Nunns, Plano had to show Nunns had official immunity. See DeWitt, 904 S.W.2d at 654. The elements of the official immunity defense are that the government employee (1) performs a discretionary duty, (2) in good faith, and (3) within the scope of the employee's authority. See Chambers, 883 S.W.2d at 653. Plano did not identify or address these elements. Thus, Plano's motion is insufficient to support summary judgment. See McConnell, 858 S.W.2d at 341; Black, 797 S.W.2d at 27. Plano's brief in support of its motion argues that it is immune from suit as a matter of law because Nunns and Glasscock are not personally liable to appellants. However, the Supreme Court of Texas, in McConnell, concluded that grounds must be expressly presented in the motion itself, not in a brief or summary judgment evidence. McConnell, 858 S.W.2d at 338, 340, 341 n.4; accord Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 (Tex. 1995).
Because the trial court improperly overruled appellants' special exceptions, we resolve appellants' first issue in their favor to the extent that the trial court erred in overruling the special exceptions.
Summary Judgment EvidenceConclusiveness of the Affidavit
In their third issue, appellants contend the trial court erred in granting Plano's motion for summary judgment based on its consideration of Glasscock's affidavit. They contend the affidavit was insufficient because it merely stated his conclusions without stating the standard f
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