Gene Dempsey and Patricia Dempsey v. Johnny Mann--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-332-CV

GENE DEMPSEY AND PATRICIA DEMPSEY,

Appellants

v.

JOHNNY MANN,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 94-3643-4

O P I N I O N

Gene and Patricia Dempsey purchased a house in Waco, financed by a loan from the Veterans' Land Board (VLB). See Tex. Nat. Res. Code Ann. 162.011 (Vernon Supp. 1995). Johnny Mann appraised the property in the course of his employment with the General Land Office (GLO). The Dempseys claimed that Mann incorrectly conducted the appraisal, causing them to incur approximately $14,000 in repair costs. They asserted claims against him for violating the Deceptive Trade Practices Act, negligently misrepresenting the condition of the house, and negligently breaching his professional duty as an appraiser. The court granted Mann a take-nothing summary judgment. In the first of two points, the Dempseys argue that the court erred in accepting Mann's official-immunity defense. In point two, they attack the sufficiency of Mann's affidavit in support of his motion for a summary judgment. Mann raises five cross-points, alleging that the court erred in overruling his objections to the Dempseys' summary-judgment evidence. We will reverse the judgment.

We review the court's ruling under the well-established rules relating to summary judgments. See Tex. R. Civ. P. 166a(c); McConnell v. Southside School Dist., 858 S.W.2d 337 (Tex. 1993); Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex. 1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex. 1979). The court could grant the summary judgment only if there were no issues of material fact and Mann demonstrated that he was entitled to the judgment as a matter of law. See id. We look only to the motion to determine the grounds that the court ruled upon when it granted the summary judgment. See McConnell, 858 S.W.2d at 341. Mann cannot raise grounds for affirming the trial court that were not expressly presented in his motion. See id. By the same token, the Dempseys are prohibited from raising theories for reversing the summary judgment that were not presented to the trial court. See id. However, they may attack the sufficiency of the evidence in support of Mann's motion for the first time on appeal. See Clear Creek Basin Authority, 589 S.W.2d at 678.

In his motion, Mann argued that official immunity protected him from personal liability. // See Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994). Official immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Thus, Mann had the burden to conclusively establish all of the elements of official immunity, i.e., he must conclusively show that his actions in appraising the house were (1) discretionary duties (2) preformed in good faith (3) in the scope of his authority. See id.; Kassen, 887 S.W.2d at 8. Moreover, Mann must establish that he was exercising "governmental" discretion for the defense of official immunity to be available. See Kassen, 887 S.W.2d at 11-12 & n.8.

The Dempseys concede that Mann was acting within the scope of his authority. By point one, however, they argue that the court erred because Mann was exercising professional instead of "governmental" discretion when he appraised the house. We are required to "look at the character of the discretion exercised" to determine if Mann may raise the defense of official immunity. See id. at 11. Adhering to the Supreme Court's recommendation, we evaluate Mann's duties by comparing them to the factors in Kassen. See id. at 12 n.8. //

Mann alleged in his affidavit that he was required to exercise discretion in determining the value of the home the Dempseys wanted to purchase. He stated that the VLB did not provided him with specific instructions, except that the appraisal must be completed timely. Otherwise, Mann "was free to estimate the market value based on [his] opinion." He stated that he analyzed the neighborhood where the home is located and checked comparable recent sales in the area. Finally, he stated that he walked through the home, noting the number of rooms and physical condition of the house. In his motion for summary judgment, Mann argued that he was exercising "personal discretion in determining the value of the property."

Based on his affidavit, we conclude that his duties are no different in nature than those of a private appraiser; thus, the nature and importance of his function or work do not weigh in favor of immunity. Because the VLB does not provide "special instructions," but leaves the execution of the appraisal to the individual appraiser, evaluating an appraiser's performance of his duties will not amount to passing judgment on the VLB or the GLO. Mann's summary-judgment evidence indicates that he "secured State Appraiser Certification" before July 31, 1992, making him subject to the Uniform Standards of Professional Appraisal Practice. See 22 Tex. Admin. Code 155.1(a) (West Supp. 1995) (Tex. Appraiser Licensing Board). Therefore, imposing liability on him would not limit his discretion any further than it is already limited by these professional standards. Mann did not attempt to demonstrate that he would be personally liable for the Dempseys' damages; thus, we must presume that he would not be. See Mr. Property Management, 690 S.W.2d at 549 (holding that all presumptions must favor the non-movant); Tex. Civ. Prac. & Rem. Code Ann. 104.001, 104.002(a) (Vernon Supp. 1995). Because an appraisal is a discrete exercise that focuses on a single house, the risk of harm to the public and the nature of the harm is limited to the individual home-buyer. Finally, the Dempseys may have an alternative source of compensation from the sellers of the home and the other real-estate professionals involved in the purchase.

After examining the facts of this case, we conclude that official immunity is not available to Mann as a defense. See Kassen, 887 S.W.2d at 11-12 & n.8. Thus, the court erred in granting summary judgment on this theory. See id. Point one is sustained.

By point two, the Dempseys argue that Mann's affidavit fails to establish that he met any objective standards required of an appraiser but, instead, consists only of legal conclusions. We interpret this complaint, in light of the elements of the affirmative defense of official immunity, to be directed at the sufficiency of the affidavit to establish that Mann acted in good faith during his appraisal of the house. Although the Dempseys did not bring this complaint to the attention of the trial court, they are entitled to object to the substance of Mann's affidavit for the first time on appeal. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Ramirez v. Transcontinental Ins. Co., 881 S.W.2d 818, 829 (Tex. App. Houston [1st Dist.] 1994, writ denied). The Dempseys' argument that Mann's affidavit states only legal conclusions is a complaint relating to the substance of the affidavit. See id.

The test for good faith in the official-immunity context is objective. See Chambers, 883 S.W.2d at 656; Murillo v. Garza, No. 04-94-00562-CV, slip op. at 5, 1995 WL 68606 *2 (Tex. App. San Antonio, February 22, 1995, n.w.h.). Thus, applying the Chambers objective standard to a government appraiser, we conclude Mann was required to show that "a reasonable [appraiser] could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the [appraiser] at the time the conduct occurred." See Chambers, 883 S.W.2d at 656 (quoting Swint v. City of Wadley, 5 F.3d 1435, 1441-42 (11th Cir. 1993)). An assertion that the official acted in subjective good faith is not sufficient to meet this objective standard. See Victory v. Bills, 897 S.W.2d 506, 509 (Tex. App. El Paso 1995, n.w.h.).

In the relevant portion of his affidavit, Mann stated:

The appraisal of the 2101 Cumberland, Waco, Texas, required the exercise of [discretion] in forming the opinion of the value of the home. The Neighborhood is analyzed, taking into account such things as present land use, general appearance of properties, adequacy of utilities and police/fire protection, convenience to shopping, schools and public transportation. Improvements to the realty are examined. Additionally, I evaluate the recent sales prices of other homes in the area in order to determine the value of the home by comparison.

During the appraisal process the appraiser walks-through the home noting its room count, condition etc. I appraise the property regarding its condition/value. I do not inspect the home in a manner of a home inspector who generally tests equipment and other areas. I noticed that on the exterior roof some shingles which appeared wavy in my opinion. I was advised that a new roof had been placed on the home. I also observed fair quality bathroom floor and shower in fair condition. Water rings were observed on the ceiling. I was informed that a new roof had been placed on the home and I accepted the fact that a roof had leaked and had now been repaired as was stated to . . . me. It was my assumption, which was reasonable at the time, that any problem with the roof had been corrected by repair.

I found no major reason on the day of the appraisal to delay the application process due to the [home's] fair condition. The Veteran, Mr. Dempsey, was buying the home in the "as is" condition and that is how I appraised the home. I performed my work in good faith. I did not violate any appraisal procedure to my knowledge. The appraisal was performed in a reasonable manner.

No effort has been made to establish that Mann acted in good faith under the standard set out in Chambers. Thus, we conclude that his affidavit is legally insufficient to support a summary judgment on the ground of official immunity. See Chambers, 883 S.W.2d at 656; Anderson, 808 S.W.2d at 55; Ramirez, 881 S.W.2d at 829. Therefore, we also sustain point two.

Because we have held that Mann failed to establish his entitlement to a summary judgment, his objections to the Dempseys' summary-judgment evidence are moot. See Clear Creek Basin Authority, 589 S.W.2d at 678. Thus, we overrule all five of Mann's cross-points.

The summary judgment is reversed and the cause remanded to the trial court for further proceedings.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed August 2, 1995

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