Robert Ramirez v. Apolonio Parra--Appeal from 49th Judicial District Court of Webb County

No. 04-00-00739-CV
Robert RAMIREZ,
Appellant
v.
Apolonio PARRA,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 1998CVE000162-D1
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 28, 2001

AFFIRMED

Robert Ramirez appeals the trial court's order denying his motion for summary judgment. We hold Ramirez did not conclusively establish official immunity and affirm the trial court's judgment.

Standard of Review

Whether an order grants or denies a motion for summary judgment, we apply the same de novo standard of review on appeal. See Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied); San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex. App.-San Antonio 1996, no writ). We will thus reverse an order denying a traditional motion for summary judgment under Rule 166a(c) and render judgment in the movant's favor only if the summary judgment evidence establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c). We will reverse an order denying a "no evidence" motion for summary judgment under Rule 166a(i) and render judgment in the movant's favor only if the respondent fails to produce summary judgment evidence raising a genuine issue of material fact on each challenged element. See Tex. R. Civ. P. 166a(i). In deciding whether the summary judgment evidence raises a genuine issue of material fact, we view as true all evidence favorable to the respondent and indulge every reasonable inference and resolve all doubts in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Factual and Procedural Background

Following his arrest for driving while intoxicated, Apolonio Parra sued Officer Robert Ramirez and the City of Laredo for negligence, alleging that "despite the fact that [Parra] was compliant with [Ramirez's] requests, [Ramirez] suddenly and without warning or provocation, began to assault and batter [Parra] with his baton in the face, neck, and head areas, and by throwing [Parra] bodily several times against the vehicle. [Ramirez] also kicked [Parra] about his body as he lay on the ground."

Ramirez moved for summary judgment, claiming official immunity. Ramirez supported his motion with police records and his own affidavit, in which he stated a struggle ensued when Parra resisted arrest. After a lengthy recitation of his version of the factual background, Ramirez concluded he "acted as a reasonably prudent police officer would have acted under the same or similar circumstances on the date of the incident in question. No police officer under similar circumstances would have believed that my actions were unreasonable or against the law."

Responding to the motion, Parra contended Ramirez did not act in good faith. Parra supported his response in part with his own affidavit, stating:

Suddenly, and for no reason at all, Officer Ramirez struck me on the right cheek with his police baton. .... Officer Ramirez continued to strike me various times upon the face, back of head and neck areas for no reason as I was not resisting his order to state the address. At no time did I use any vulgar or profane language nor did I try to resist his efforts or strike him in any way, shape or form.

The trial court denied Ramirez's motion without stating a reason, and he appeals.

Discussion

Ramirez contends the trial court erred in denying his motion for summary judgment, because he conclusively established his defense of official immunity. We disagree.

To establish the affirmative defense of sovereign immunity, the governmental employee must establish: (1) the performance of discretionary duties; (2) within the scope of the employee's authority; (3) provided the employee acts in good faith. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).

As Ramirez notes, Parra's summary judgment response did not include an expert affidavit controverting Ramirez's affidavit establishing he acted in good faith. What Ramirez fails to realize, however, is that Parra's affidavit establishes facts - for purposes of the summary judgment - that remove the factual underpinning from Ramirez's conclusion that he acted in good faith. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) ("When an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment."). Under these circumstances, Ramirez failed to establish he acted in good faith. We therefore affirm the trial court's order denying Ramirez's motion for summary judgment.

Sarah B. Duncan, Justice

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