JUSTA RAMIREZ, ET AL. v. COUNTY OF LIVE OAK, ET AL.--Appeal from 156th District Court of Live Oak County

NUMBER 13-02-611-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUSTA RAMIREZ, INDIVIDUALLY

AND AS NEXT FRIEND OF JOE

RUBEN PEREZ, NON COMPOS

MENTIS, Appellant,

v.

COUNTY OF LIVE OAK AND

CITY OF GEORGE WEST, Appellees.

On appeal from the 156th District Court of Live Oak County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Castillo

Memorandum Opinion by Justice Ya ez

Appellant, Justa Ramirez, individually and as next friend of her son, Joe Ruben Perez ( Perez ), sued appellees, the County of Live Oak ( the County ), the City of George West ( the City ), and the George West Volunteer Fire Department ( the Department ), for damages arising from personal injuries suffered by Perez. Perez s injuries resulted from being struck by a vehicle driven by Michael Thomas Byler ( Byler ), // a Fire Department firefighter, responding to a fire call. The trial court granted summary judgment in favor of appellees.

The issue is whether governmental immunity from suit has been waived. In four issues, appellant challenges the trial court s judgment, contending: (1) the trial court improperly granted summary judgment because the City and County contracted with the Department to obtain firefighting services; (2) Byler is the Department s employee or agent because he was in its paid service and it had the right to control the details of tasks he performed on its behalf; (3) Byler s conduct as an agent of the Department, the County, and the City waived the sovereign immunity of all three entities; and (4) the City s statutory entitlement to notice of a claim against it under the Tort Claims Act was waived by its actual notice of the injury or damage. We affirm.

Background

On February 1, 1999, Byler responded to a call issued by the Department. Byler was driving a Dodge Caravan owned and insured by his parents. At an intersection near the fire station, Byler s vehicle struck Joe Ruben Perez, who was riding a bicycle. As a result of the accident, Perez suffered injuries.

Standard of Review

The standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. // We review de novo a trial court's grant or denial of a traditional motion for summary judgment. // The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. // In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non-movant as true. // We make all reasonable inferences and resolve all doubts in favor of the non-movant. //

When a defendant moves for summary judgment on an affirmative defense, like sovereign immunity, the defendant must conclusively prove each element of the defense as a matter of law. // Evidence favorable to the non-movant is taken as true, and every reasonable inference in favor of the non-movant will be resolved in its favor. // Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must then produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. // Questions of law, such as sovereign immunity, are appropriate matters for summary judgment. // Where, as here, the trial court s summary judgment order does not specify the ground or grounds on which the court relied, we will uphold the ruling if any of the theories advanced is meritorious. //

Contract for Services of Fire Department

In her first issue, appellant contends the City and County are liable for the acts and omissions of the Department because each entity contracted with the Department to obtain fire services pursuant to section 791.006 of the government code. That section provides:

(a) If governmental units contract under this chapter to furnish or obtain the services of a fire department, the governmental unit that would have been responsible for furnishing the services in the absence of the contract is responsible for any civil liability that arises from the furnishing of those services. //

Appellant admits that no express contract for fire services exists, but argues that [t]he lack of an express contract or city ordinance formalizing the agreement is irrelevant to the existence of a contract between the entities. We disagree. Section 791.011 provides:

(a) A local government may contract or agree with another local government to perform governmental functions and services in accordance with this chapter.

. . . .

(d) An interlocal contract must:

(1) be authorized by the governing body of each party to the contract . . .

(2) state the purpose, terms, rights, and duties of the contracting parties; and

(3) specify that each party paying for the performance of governmental functions or services must make those payments from current revenues available to the paying party. //

Terri Garza, the City Manager, testified that the City has no contract with the Department. Robert Wientjes, former chief of the Department, testified that the Department has no contract with the City or County to provide fire services. Jim Huff, County Judge, also testified that there is no contract between the County and the Department. We conclude that no contract satisfying the requirements of section 791.011(d) existed between the entities. We overrule appellant s first issue.

Sovereign Immunity

In her second issue, appellant contends the trial court erred in granting summary judgment in appellees favor because Byler is the Department s employee or agent.

As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. // Whether a particular claim is excepted from the general doctrine of sovereign immunity is entirely dependant on the statutory language. //

The County and the Department moved for summary judgment on the affirmative defense of sovereign immunity. // Specifically, the County and the Department argued that because Byler is a volunteer, not an employee of a governmental unit, he cannot waive the entities sovereign immunity by his conduct. The City moved separately for summary judgment on the same basis. In addition, the City claimed it was entitled to summary judgment because: (1) it never received proper notice of appellant s claims; and (2) the claims are time-barred.

Under certain circumstances, the State or a governmental unit of the State is liable for personal injuries proximately caused by "the wrongful act or omission or the negligence of an employee acting within the scope of his employment. // The Act defines an "employee" as:

a person, including an officer or agent, who is in the paid service of a governmental unit . . . but does not include an independent contractor . . . or a person who performs tasks the details of which the governmental unit does not have the legal right to control. //

Thus, to prevail on their affirmative defense of sovereign immunity, appellees were required to establish that Byler was not an employee/agent in the paid service of the Department. In support of their motion for summary judgment, the County and the Department attached: (1) an affidavit of Lloyd Clifton, Fire Chief of the Department; (2) appellant s petition; and (3) a copy of the 1940 articles of corporation for the Department. In support of its motion, the City attached: (1) Clifton s affidavit; (2) a copy of the Department s articles of incorporation; (3) appellant s petition; (4) an affidavit of Terri Garza, City Manager of George West, with a copy of City charter provisions regarding notice of claims; (5) an affidavit of Jacquelyn Harborth, City Secretary of George West; and (6) an affidavit of the mayor of George West, August Caron.

Appellant s evidence, attached to her responses to the motions, included deposition testimony by: (1) Kim Herrington, a member of the Department who witnessed the accident; (2) Garza; (3) Clifton; (4) Lee Wallek, volunteer fire marshal for the City; (5) Juan Garcia, Jr., the City police officer who investigated the accident; (6) Byler; (7) Harborth; (8) Robert Wienjtes, member and former chief of the Department; (9) Jim Huff, County Judge of Live Oak County; and (10) Lloyd Wientjes, member of the Department. Appellant s evidence also included a copy of the police accident report and copies of Department checks to Byler.

Additional evidence attached to appellees responses to appellant s replies included: (1) affidavits of members of the Department; (2) affidavits of members of the Department s Board of Directors; (3) Byler s application for membership in the Department; (4) affidavits of members of the Commissioner s Court of Live Oak County; and (5) reply affidavits of Garza and Harborth.

We begin by addressing appellant s argument that the evidence established Byler s status as a Department employee by showing: (1) he was in its paid service; and (2) it controlled the details of his work in providing fire protection.

Paid Service

In support of her argument that Byler was in the Department s paid service, appellant contends Byler s cancelled Department checks establish that he was compensated for his services. In his deposition testimony, Byler testified he received two or three dollars each time he responded to a fire call and for attending weekly Department meetings. Firefighters received quarterly checks from the Department for attending meetings and responding to fire calls. Although Byler testified he guessed you could call it income, he did not receive a W-2" from the Department and testified he was told by his CPA that he did not have to report the checks as income for tax purposes. Byler testified that the Department issued him a pager and a full set of gear, including a helmet, jacket, pants, and boots.

Clifton, the fire chief (and also a member of the city council), testified that the firefighters compensation of two dollars per meeting and three dollars per fire call is to defray the cost of washing and taking care of their clothing. Clifton testified that the only other compensation members receive is a $25,000 life insurance policy paid by funds donated to the Department. He also testified that the City or County provides workers compensation coverage for injuries sustained by firefighters, depending on where the injury occurred. The City and County provide funds for the purchase of trucks, equipment, and safety gear; the County also provides a budget for the maintenance of the Department s building.

Appellant argues that because Byler received compensation from the Department in the form of a small clothing allowance, furnished equipment, and training in return for his service as a firefighter, he was in the paid service of the Department at the time of the accident. We disagree. We conclude that this case is governed by Harris County v. Dillard, 883 S.W.2d 166, 167 (Tex. 1994). In Dillard, the Texas Supreme Court held that an unpaid volunteer reserve deputy sheriff did not fall within the definition of employee under section 101.001(1) of the Texas Tort Claims Act. //

Here, Fire Chief Clifton s affidavit states that the members of the Department are not paid a salary or compensated for the services they render as volunteers of the Department. The Department s Code of Rules Governing Membership states that [m]embers of the George West Volunteer Fire Department shall not be paid for their time or services as a fireman, but shall be given a modest amount to be known as clothing allowance ($2.00) per meeting and ($2.00) per fire. Under the Fair Labor Standards Act, volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers. //

We hold that as a matter of law, Byler was not in the paid service of the Fire Department. Because he is not an employee of a governmental unit within the meaning of the Tort Claims Act, his actions cannot waive the sovereign immunity of the City, County, or Fire Department. // We overrule appellant s second issue and AFFIRM the summary judgment in appellees favor.

Because of our disposition of appellant s first and second issues, it is unnecessary for us to address appellant s remaining issues. //

LINDA REYNA YA EZ

Justice

Memorandum opinion delivered and filed this the

27th day of January, 2005.