Mary Vera Ramirez v. Burnside & Rishebarger, L.L.C.--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00160-CV

Mary Vera RAMIREZ,

Appellant

v.

BURNSIDE & RISHEBARGER, L.L.C.

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-03055

Honorable Martha Tanner, Judge Presiding //

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 3, 2005

AFFIRMED

Mary Vera Ramirez appeals the summary judgment against her in her suit against Burnside & Rishebarger, L.L.C., in which she alleged that B&R, acting as a court-appointed receiver, falsely represented the condition of a house Ramirez purchased from the receivership estate. We hold the trial court correctly granted the summary judgment in favor of B&R because B&R is immune from liability under the doctrine of derived judicial immunity.

Judges are absolutely immune from liability for judicial acts performed within the scope of their jurisdiction. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002). The policy reasons for judicial immunity are ... implicated when a judge delegates or appoints another person to perform services for the court. Id. Texas uses a functional approach to determine whether someone may receive the benefit of derived judicial immunity. This functional approach looks to whether the person seeking immunity is intimately associated with the judicial process and if that person exercises discretionary judgment comparable to that of the judge. Id. (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex. App. Houston [14th Dist.] 1996, writ denied), cert. denied, 520 U.S. 1213 (1997)); see Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992) (holding that court-appointed bankruptcy trustees who function as arm of the court are entitled to derived judicial immunity); Delcourt, 919 S.W.2d at 782-83 (holding that psychologist appointed by the court to examine child and parents in a custody proceeding is entitled to immunity because he acts as a factfinder for the court and the court relied on him to provide information essential to the decision-making process ); cf. Halsey, 87 S.W.3d at 557 (holding that court reporter preparing a record for a party does not participate in the judicial decisionmaking process or exercise discretion and is therefore not the functional equivalent of a judge and not entitled to immunity); Byrd v. Woodruff, 891 S.W.2d 689, 708 (Tex. App. Dallas 1994, writ dism d by agr.) (holding that guardian ad litem appointed to represent minor in settlement proceeding is advocate for party rather than arm of court and is therefore not entitled to immunity).

A receiver is an agent of the court. Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App. Waco 2002, no pet.). The order appointing the receiver in this case states in part:

The Court finds that the appointment of a Receiver is intended solely to determine actual or potential claimants and to maintain and preserve the property, so that the Court and the Receiver may make an orderly disposition of claims and distribute the property and assets to superior interest holders or forfeit to the Bexar County Criminal District Attorney s office.

...

Receiver is DIRECTED AND EMPOWERED as Receiver to exercise the following powers in his sole discretion, in pursuit of the obligations set out above, and subject to other court orders:

4.Upon prior order of the Court, to sell, negotiate, transfer, or redeem any ... real property held by or in the name of Spillman.

The receiver s role in selling the property was to assist the receivership court in performing its duties; and the trial court granted the receiver very broad discretion in exercising its duties. Accordingly, under Halsey s functional approach, the receiver is entitled to derived judicial immunity from liability on Ramirez s claims as a matter of law. See Halsey, 87 S.W.3d at 554; Delcourt, 919 S.W.2d at 782.

Ramirez also contends the receiver was not authorized to make false promises to third parties concerning the property ... [or to] violate the law while disposing of the property and is not immune from liability for such conduct. We disagree. [O]nce an individual is cloaked with derived judicial immunity because of a particular function being performed for a court, every action taken with regard to that function whether good or bad, honest or dishonest, well-intentioned or not is immune from suit. .... Once applied to the function, the cloak of immunity covers all acts, both good and bad. B.K. v. Cox, 116 S.W.3d 351, 357 (Tex. App. Houston [14th Dist.] 2003, no pet.).

The trial court s judgment is affirmed. //

Sarah B. Duncan, Justice