Bobby Ball and Tammy Ball v. John T. Neel, Peggy Jane Neel, Frankie Jane Neel-Clark, Sue Tarrant and John Floyd--Appeal from 173rd District Court of Henderson County

NO. 12-03-00205-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BOBBY BALL AND TAMMY BALL, APPEAL FROM THE 173RD

APPELLANTS

V. JUDICIAL DISTRICT COURT OF

JOHN T. NEEL, PEGGY JANE NEEL,

FRANKIE JANE NEEL-CLARK, SUE

TARRANT AND JOHN FLOYD,

APPELLEES HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Bobby Ball and Tammy Ball appeal the trial court s order granting summary judgment in favor of Sue Tarrant and John Floyd. The Balls raise one issue on appeal. We affirm.

Background

On July 3, 2001, the heirs of W.T. Neel, John T. Neel, Peggy Jane Neel, and Frankie Jane Neel-Clark filed a forcible entry and detainer suit in justice court against the Balls. In their pleadings, the Neels alleged that the Balls had acquired possession of a home and property under a contract for deed[,] which is radically in default with more than eight (8) months in arrears. On July 31, 2001, Justice of the Peace Sue Tarrant signed a judgment in favor of the Neels. No appeal was taken from this judgment.

Thereafter, the Balls filed suit in district court against John T. Neel, Peggy Jane Neel, Frankie Jane Neel-Clark, Judge Tarrant, and John Floyd, the constable who executed the writ of possession on the Balls, seeking, among other things, a declaratory judgment. Judge Tarrant and Constable Floyd answered, and alleged the affirmative defense of immunity. Subsequently, Judge Tarrant and Constable Floyd filed a motion for summary judgment based on their respective claims of immunity. The Balls subsequently amended their pleadings. In their amended pleadings, the Balls deleted their request for a declaratory judgment. The trial court granted Judge Tarrant and Constable Floyd s motion for summary judgment on May 21, 2003. The trial court later severed the Balls cause of action against Judge Tarrant and Constable Floyd from their suit against the remaining parties. This appeal followed.

Judicial and Official Immunity

In their sole issue, the Balls argue that the trial court erred in granting summary judgment as to Judge Tarrant s and Constable Floyd s claims of immunity.

Standard of Review

In reviewing a 166a(c) motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985), which are

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

See id. at 548 49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant's cause of action, or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952). The only question is whether or not an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c).

Judicial Immunity

Judges are afforded absolute immunity from liability for judicial acts that are not performed in the clear absence of all jurisdiction, no matter how erroneous the act or how evil the motive. See Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002); Turner v. Pruitt, 342 S.W.2d 422, 423 (Tex. 1961). Justices of the peace enjoy the same immunity from tort liability as district judges when acting in the course of judicial proceedings. See Turner, 342 S.W.2d at 423. As a justice of the peace, Judge Tarrant had jurisdiction to preside over a forcible entry and detainer suit.

The Balls argue that Judge Tarrant did not have jurisdiction to adjudicate title. We agree. However, in the Judge Tarrant s July 31, 2001 judgment, she did not adjudicate title. Rather, the judgment signed by Judge Tarrant states,

It is the opinion of the Court that the Plaintiff should have possession of the premises described in the Plaintiff s complaint . . .

It is THEREFORE ORDERED, ADJUDGED AND DECREED that the said Plaintiff, have restitution of said premises, for which let Writ of Possession issue . . .

Furthermore, the plaintiffs petition in the justice court seeks possession of the property rather than an adjudication of title. See Erisman v. Thompson, 167 S.W.2d 731, 733 (Tex. 1943) (pleadings define the lawsuit and determine the issues for trial). As such, we conclude that the justice court had jurisdiction over the Neels suit for forcible entry and detainer and did not adjudicate title to the subject property.

The Balls live pleadings set forth that Judge Tarrant was Justice of the Peace Precinct 4 of Henderson County, Texas and that she signed the judgment at issue in the instant case. The Balls live pleadings make reference to the judgment at issue and state that it is attached as an exhibit to their original petition. When a party s pleadings contain statements admitting facts or conclusions directly contrary to the party s theory of recovery or defense, the pleadings may constitute summary judgment proof for the opposing party. See Lyons v. Lindsey Morden Claims Mgmt., Inc., 985 S.W.2d 86, 92 (Tex. App. El Paso 1998, no pet.); Brooks v. Center for Healthcare Servs., 981 S.W.2d 279, 283 (Tex. App. San Antonio 1998, no pet.). Although not evidence, when the motion for summary judgment is based on the nonmovant s pleadings, the court assumes the facts in the nonmovant s pleadings are true. See, e.g., Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Thus, we hold that the trial court did not err in granting summary judgment in favor of Judge Tarrant based on the affirmative defense of judicial immunity.

Official Immunity

An officer is generally not liable for damages resulting from the execution of a writ issued by a Texas court if the officer in good faith executes the writ as provided by law and uses reasonable diligence in performing his official duties. See Tex. Prac. & Rem. Code Ann. 7.003 (Vernon 2002); Chambers v. Hornsby, 21 S.W.3d 446, 448 49 (Tex. App. Houston [14th Dist.] 2000, no pet.). An officer acts in good faith if a reasonably prudent officer, under the same or similar circumstances, would have acted in the same manner. See Richardson v. Parker, 903 S.W.2d 801, 804 (Tex. App. Dallas 1995, no writ).

Here, the Balls live pleadings set forth that Constable Floyd executed the writ of possession pursuant to Judge Tarrant s order. An officer who executes a facially valid writ acts in good faith even when he is aware that there is a legal dispute over the matter. See Richardson, 903 S.W.2d at 805. The constable is not a tribunal to determine doubtful questions of fact. Id. Since Constable Floyd executed the writ of possession pursuant to a valid judgment, we hold that he is entitled to official immunity. See Tex. Prac. & Rem. Code Ann. 7.003; Chambers, 21 S.W.3d at 448 49. The Balls sole issue is overruled.

Conclusion

Having overruled the Balls sole issue, we affirm the trial court s judgment.

DIANE DEVASTO

Justice

Opinion delivered June 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)