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Greenwell v. Davis11/22/2005
ourt's refusal to apply Arkansas sovereign immunity under the doctrine of comity rather than on Greenwell's official immunity. In Pak, the Dallas Court of Appeals held the employees of the City of Irving could appeal the denial of their summary judgment motions, but the City of Irving could not appeal because the City's motion for summary judgment was not based on official immunity due to the acts of its employees. Id. at 193. Instead, the City of Irving asserted a separate claim of immunity that the plaintiffs did not meet the statutory requirements to sue the City. Id. (The incident was not based on the operation of a motor-driven vehicle or a condition or use of tangible or real property.)
"A claim of governmental immunity may be based on an individual's assertion of official immunity and therefore fall within the ambit of section 51.014(5)." Id. at 191 (citing City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993)); see Guevara, 904 S.W.2d at 656 (interlocutory appeal allowed when the city's argument was based on official immunity).
The immunity asserted by the City of Texarkana, Arkansas, in its motion for partial summary judgment is based on the provisions of Section 21-9-301 of the Arkansas Code. See Ark. Code Ann. § 21-9-301. Under Section 21-9-301, an Arkansas municipality is immune from liability predicated on the negligent act of an employee committed in the performance of the employee's official duty. Id. The City argues that, because the immunity statute relied on by the City only applies when an employee is protected by official immunity, the City's motion is based on Greenwell's official immunity. The negligent acts were allegedly committed by the City's employee while in the performance of his scope of employment. Because the immunity granted Arkansas employees is the functional equivalent of Texas official immunity, we conclude the City's argument is based on an assertion of official immunity. Therefore, the denial of the City's motion is an appealable order under Section 51.014(a)(5).
IV. Standard of Review
Several Texas courts of appeals have held that a trial court's decision concerning comity should be reviewed for an abuse of discretion. The Texas Supreme Court, though, has stated that it "will not defer to the trial court on matters involving relations between Texas and other sovereigns." K.D.F., 878 S.W.2d at 593 (discussing the standard of review for mandamus concerning whether Kansas sovereign immunity should apply based on comity). We believe de novo review rests on a firmer foundation than abuse of discretion. In general, we review de novo issues of law and only defer to the trial court when factual findings are at issue. See id. Further, choice of law issues are normally reviewed de novo. The discretion in applying comity is a discretion of law rather than the discretion of the trial court. 16 Am. Jur. 2d Conflicts of Laws § 17 (1998). We will review de novo the trial court's decision.
V. The Full Faith and Credit Clause Does Not Require Us To Honor Arkansas Sovereign Immunity
The City and Greenwell argue in several places in their brief that the Full Faith and Credit Clause requires application of Arkansas sovereign immunity. The United States Constitution does place some limits on the application of Texas choice of law rules. The Full Faith and Credit Clause and the Due Process Clause require the application of the law of a state which has a "significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate Ins. Co. v. Hague, 449 U.S. 302, 310--13 (1981); see Phillips Petroleum Co. v. Shutts, 472 U.S. 79
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