36 S.W.3d 711 | Tex. App. | 2001
OPINION
This case involves the trial court’s denial of summary judgment in a sovereign and official immunity case. Concluding that the trial court ruled correctly, we affirm and remand.
FACTS
On March 11, 1994, members of the El Paso Metro Narcotics Task Force were performing surveillance at an apartment connected to the home of plaintiffs Ruben and Socorro Ontiveros. One of the officers involved made a controlled buy of cocaine, and upon receiving the “bust” signal, Officer Louis Vasquez (among others) moved in to make a warrantless arrest. After identifying himself, Vasquez kicked the door down, and began chasing suspects as
Vasquez’s affidavit states that Vasquez saw an elderly man looking at him through the hole in the wall. Vasquez them claims he shouted in both Spanish and English, “police, put your hands up, get down.” Vasquez and another officer entered the main house through the sheet rock hole with guns drawn, but the elderly man, Ruben Ontiveros, failed to comply with the officer’s instructions. The two officers grabbed Ontiveros, placed him on a nearby bed, and handcuffed him. According to Vasquez’s affidavit, he did not physically harm Ruben Ontiveros, nor did he see anyone else do so.
Ruben Ontiveros’s version of his encounter with Vasquez is markedly different; he stated in deposition that he complied with everything Vasquez told him to do. Despite this, Vasquez forced him face down on a bed, hit him on the ankles and feet with a baton, and continued hitting him even after he was handcuffed. Ontiveros testified in deposition that he went to a hospital emergency room to seek medical attention for a broken ankle and two fractured toes after the beating.
Summary judgment record
We begin by resolving questions we raise sua sponte about irregularities in the appellate record. Plaintiffs originally filed this suit in federal court. The federal district court entered partial summary judgment on defendants’ motion, and declined to exercise its pendent jurisdiction over remaining state claims against Vasquez in his individual capacity, as well as against El Paso County under the Texas Tort Claims Act. While the case was pending in federal court, Ruben Ontiveros gave his deposition. The federal district court dismissed the case on September 25, 1996.
Ontiveros, his wife, and sister-in-law then filed this suit in state court. The County and individual police officer defendants filed their motion for summary judgment urging four grounds: (1) statute of limitations; (2) res judicata; (3) official immunity for the officers; and (4) sovereign immunity.
On appeal, and before submission of this case, plaintiffs filed their “motion to add to trial court record.” It stated that Ruben Ontiveros had been deposed in May 1996 (while the case was in federal court), that his deposition had been used by defendants to obtain summary judgment in federal court, that his deposition had been cited and incorporated in plaintiffs’ response to summary judgment in state court, that “apparently, the clerk did not include this deposition in the record filed herein,” and that “attached hereto are the cover page and page 24 of his deposition relating to his claim of having been beaten.” Plaintiffs requested supplementation
To the extent the deposition was a part of the record before the court below, and pursuant to Tex.R.App.PR0C. 34.5(c)(1), the trial court clerk is directed to prepare, certify and file with this court a supplementary clerk’s record containing the omitted deposition.
Defendants have never objected to supplementing the appellate record with the deposition. The district clerk filed the supplemental clerk’s record, containing the entire deposition of Ruben Ontiveros, on September 27, 2000. Oddly, the supplementary clerk’s record indicates that On-tiveros’s deposition had been filed only the day before, on September 26, 2000.
Initially, this court was concerned with whether Ontiveros’s deposition had actually been before the trial court when it denied summary judgment. Upon close scrutiny of the chain of events outlined here, however, we must presume that the deposition was before the trial court when it denied summary judgment, and that the appellate record was properly supplemented under Tex.R.App.P. 34.5(c)(1). In reaching this conclusion, we start from the premise that a court of appeals must construe the rules governing supplementation of the appellate record liberally, so our decisions turn on substance rather than procedural technicality.
STANDARD OF REVIEW
Where a trial court has denied a motion for summary judgment that is based on an assertion of immunity by an officer or employee of the state or a political subdivision of the state, that person may bring an interlocutory appeal of the denial.
Official immunity
In their first and second issues on appeal, defendants/appellants complain of the trial court’s denial of Officer Vasquez’s official immunity claim. To prove he was entitled to official immunity, Vasquez was required to prove by competent summary judgment evidence that the acts complained of were: (1) discretionary; (2) performed in good faith; and (3) within the scope of his official duties.
Here, there is a critical fact issue which precludes a finding of objective good faith as a matter of law. Ruben Ontiveros testified that he complied with the officers’ orders, that they nevertheless placed him face down on the bed, handcuffed him, and beat him on his feet and ankles with a baton. Detective Vasquez has presented no summary judgment evidence to show that a reasonably prudent officer might have believed that beating an elderly man was a reasonable use of force, where that man was found in his own home, where he had obeyed all instructions by officers, and where the beating had occurred' after handcuffing him and facing him down on a bed. To the contrary, Vasquez simply asserts that no officer ever hit Ontiveros. As the trial court correctly concluded, summary judgment is not the appropriate means for resolving such a squarely presented factual conflict.
Sovereign immunity
Defendants/appellants’ third issue on appeal concerns El Paso County’s claim of sovereign immunity. We note their argument here is contingent upon Detective Vasquez’s claim of official immunity. Having found that the trial court properly denied the official immunity claim, we likewise find that the County has not shown
CONCLUSION
The trial court’s denial of summary judgment is affirmed. The ease is remanded for further proceedings.
. On appeal, El Paso County and Vasquez complain only of the denial of their official immunity and sovereign immunity claims.
. Gallagher v. Fire Ins. Exchange, 950 S.W.2d 370, 371 (Tex.1997) (construing predecessor to Tex.R.App.P. 34.5).
. See Bayou Terrace Investment Corp. v. Lyles, 881 S.W.2d 810, 818 (Tex.App. — Houston [1st Dist.] 1994, no writ).
. It would be fruitless for this court to speculate as to why the deposition bears the anomalous filing date of September 26, 2000. Any issue on this point has been waived by appellants’ failure to raise it.
. Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2001).
. See Chambers v. Hornsby, 21 S.W.3d 446, 448 (Tex.App. — Houston [14th Dist.] 2000, no pet.).
. See American Tobacco Co. v. Gtinneli, 951 S.W.2d 420, 425 (Tex.1997).
. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Texas Dept, of Public Safety v. Perez, 905 S.W.2d 695, 698 (Tex. App. — Houston [14th Dist.] 1995, writ denied).
.Perez, 905 S.W.2d at 698.
. Id.
. See Victory v. Bills, 897 S.W.2d 506, 509 (Tex.App. — El Paso 1995, no writ) (disputed fact issue of whether plaintiff resisted arrest was critical to Victory's official immunity claim, thus summary judgment was not proper).
. See id. at 509-510.
. See Perez, 905 S.W.2d at 698.