Opinions Released October 13, 2016

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Meza Sierra Enterprises, Inc. v. Kingdom Fresh Produce, Inc., No. 13-13-00119-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)

In this appeal from an order granting summary judgment, the Thirteenth Court discussed the procedural requirements applicable to a suit on a sworn account.

Kingdom Fresh Produce, Inc. (“Kingdom”) sold tomatoes to Meza Sierra Enterprises, Inc. (“Sierra”) for $215,385 but Sierra never paid for the items.  The president of Sierra, Valdemar Meza, later told Kingdom’s sales director, David Edmeier, that Sierra resold the tomatoes and used the money to pay ransom when Meza was kidnapped in Mexico.

Kingdom filed a suit on a sworn account against both Sierra and Valdemar Meza in Texas state court in July 2009. Kingdom attached invoices to its petition and supported the suit with an affidavit from Edmeier. Sierra filed only a general denial.

Approximately three months later, Kingdom filed a motion for summary judgment, which the trial court granted on the pleadings due to the defendants’ failure to file a verified denial.

Meza and Sierra appealed. Meza argued that he was not required to file a verified denial because Kingdom’s pleadings and affidavit did not establish a right to recovery against him individually. Sierra argued that Kingdom’s pleadings did not meet the requirements of rule 185 because Kingdom failed to prove the elements of a suit on a sworn account.

Held: The trial court erred by granting summary judgment in favor of Kingdom because its petition and affidavit were not in strict compliance with Rule 185 of the Texas Rules of Civil Procedure. The order is reversed, and the case remanded.

Texas Rule of Civil Procedure 185 establishes the procedure for cases involving sworn accounts. If a lawsuit stemming from an open account is filed, the petition must contain a systematic itemized statement of the services rendered as well as any offsets, and be supported by an affidavit averring that the claim is within the affiant’s knowledge and is “just and true.” Such petition and affidavit are prima facie evidence of the plaintiff’s right to recovery.

If the defendant wishes to dispute the services provided or accuracy of the charges set forth in the petition, he must deny the sworn account by filing a verified denial. Failure to file a verified denial cements the plaintiff’s prima facie case and entitles the plaintiff to summary judgment on the pleadings.

With respect to Meza, the Thirteenth Court noted that the need for a verified denial only applied to Meza individually if Kingdom’s pleadings and affidavit established a case against him in his individual capacity. Here, the relevant invoices were sent to Meza Sierra Enterprises, Inc., rather than Meza individually. Thus, there was no need for Meza to file a verified denial, and the trial court erred by granting summary judgment against Meza based on his failure to do so.

Furthermore, regarding Sierra, the Thirteenth Court of Appeals held that Kingdom’s affidavit was insufficient under Rule 185. Specifically, the affidavit did not state that the claim was within the affiant’s knowledge and “just and true.” Thus, Kingdom did not establish a prima facie right to recovery, and Sierra was not required to file a sworn denial. The trial court erred by granting summary judgment on such basis.

Read the Full Opinion Here

Bay City, Texas v. McFarland, No. 13-15-00122-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Perkes and Rodriguez)

In this interlocutory appeal from the trial court’s denial of a plea to the jurisdiction and motion for summary judgment, Bay City argues that it is protected from suit by governmental and official immunity.

In June 2011, Bay City Police Officer Kimberly Kunz was dispatched to a dispute involving siblings fighting with deadly weapons. Officer Kunz drove through an intersection without stopping at the stop sign and collided with McFarland, who was riding a motorcycle. McFarland sued Bay City, claiming (1) vicarious liability for Officer Kunz’s negligence, and (2) negligent hiring and training of Officer Kunz. The City soon filed a plea to the jurisdiction asserting the “emergency call” exception to the Texas Tort Claims Act, while also filing a motion for summary judgment asserting Officer Kunz’s official immunity. The City attached three primary pieces of evidence to its plea and motion: (1) Officer Kunz’s affidavit and deposition; (2) the dash-cam video from the night of the incident; and (3) McFarland’s deposition.

Officer Kunz testified that she was following the police car of Officer O’Bryant, and both had their lights and sirens activated. Crucially, Officer Kunz claimed that she slowed before entering the intersection. However, McFarland countered with the expert testimony of Chief Doug Kowalski, who stated that Officer Kunz’s dash-cam video showed she did not slow prior to entering the intersection and was driving at a “reckless speed.” Chief Kowalski characterized Officer Kunz’s actions as reckless, and opinioned that no reasonable officer could have believed her conduct was necessary in the same circumstances.

The trial court held a hearing on the City’s plea and motion for summary judgment and denied both. The City appealed.

Held: The City’s assertions of immunity involve genuine issues of material fact, and the trial court properly denied its plea to the jurisdiction and motion for summary judgment.

The Thirteenth Court first examined the City’s assertion of immunity under the emergency exception. Such a plea to the jurisdiction is considered parallel to a traditional motion for summary judgment. The court takes the jurisdictional facts contained in the plaintiff’s pleadings as true, and the defendant must negate the existence of an essential element. If the defendant carries its burden, the plaintiff must then show that a fact issue exists regarding jurisdiction and that the issue should be sent to the factfinder.

Generally, the government waives immunity if (1) a governmental employee responding to an emergency violates the relevant law governing the situation; or (2) where no such law governs, the employee acts with “reckless disregard” of “conscious indifference” for the safety of others, i.e., she knows but does not care that her actions threaten others’ safety.

In the case of an emergency call, the Texas Transportation Code provides that a responding officer: (a) should operate her vehicle with appropriate regard—not “reckless disregard”—for the safety of others; (b) should generally use the vehicle’s audible or visual signals; and (c) may proceed past a stop sign after slowing as necessary for safety. Here, there was a fact dispute regarding whether Officer Kunz slowed as necessary before proceeding through the stop sign. Thus, the trial court properly denied the plea the jurisdiction.

The Thirteenth Court then turned to the City’s argument that it was protected by official immunity. Official immunity generally protects police officers for actions done in good faith while performing a discretionary duty within the scope of their employment. If such immunity applies to the officer, governmental immunity protects the City from vicarious liability. An act done in response to an emergency is in “good faith” if a reasonably prudent officer under the same or similar circumstances could have believed that the need for or urgency of the action outweighed the risk of the action. Such immunity is an affirmative defense, and the City was thus required to conclusively prove the elements of official/governmental immunity to succeed in its motion for summary judgment.

In determining the “need” for the response, the court must consider (1) the seriousness of the crime to which the officer is responding; (2) whether the officer’s immediate presence at the scene of the crime will prevent the escape of the suspect, injury, or death; and (3) available alternatives that will accomplish the same result. Here, there was no dispute on the first two factors. Officer Kunz was in route to a fight between two siblings involving weapons, and only one other officer—Officer O’Bryant—was heading to the scene. The crime was thus serious, and her immediate presence was necessary to prevent injury or death. However, McFarland disputed the availability of other alternatives; namely, whether Officer Kunz could have slowed down before speeding through the stop sign. According to McFarland and Chief Kowalski, such delay would have been negligible; particularly in light of police policy requiring Officer O’Bryant to wait for Officer Kunz to arrive at the scene before confronting the siblings. Thus, there was a material fact issue regarding the “need” of Officer Kunz’s actions.

Regarding the “risk” factor, the court must consider (1) the nature and severity of harm risked; (2) the likelihood of such harm; and (3) whether a reasonably prudent officer would be aware of the risk. Again, whether Officer Kunz slowed down was material to the determination of the second and third factors, i.e., the likelihood and awareness of the risk. Resolving all doubts in favor of the non-movant then, the City was not entitled to summary judgment.

Since both of the City’s arguments for immunity involved factual disputes and were not conclusively proven, the trial court’s denial of the plea to the jurisdiction and motion for summary judgment were affirmed.

Read the Full Opinion Here