FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 95-550,816; HONORABLE JIM B. DARNELL, JUDGE
Before Boyd, C.J., Reavis, J., and Dickenson, Sj. *fn1
The opinion of the court was delivered by: John T. Boyd Chief Justice
Appellants David L. McCartney, M.D., Darryl Williams, M.D., and Dorma Kohler bring this appeal from the denial of summary judgment in a suit brought by appellee Donald R. May, M.D. This interlocutory appeal presents questions as to sovereign immunity, official immunity, and qualified immunity. For reasons we later recount, we affirm in part and reverse and remand in part.
This interlocutory appeal is authorized by Texas Civil Practice and Remedies Code section 51.014(5) (Vernon Supp. 2001), which permits such appeals from denial of a motion for summary judgment based upon claims of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.
Dr. May was hired as a tenured professor and chairman of the Department of Ophthalmology at the Texas Tech Health Sciences Center in September 1989. He served in that position until April 7, 1994, when Darryl Williams, Dean of the medical school, removed May as chair of the department and offered him a six-month position as Associate Dean for Special Projects. Williams's letter stated the action did not affect May's status as a tenured professor, but the new position included no clinical responsibilities. Dr. McCartney was subsequently selected to replace May as chair of the department.
May filed suit on March 31, 1995, asserting claims for defamation, self-defamation, intentional interference with contract, intentional interference with prospective contractual relations, intentional infliction of emotional distress, substantive due process violations under 42 U.S.C. § 1983, procedural due process violations under 42 U.S.C. § 1983, and due course of law violations under article 1, section 19 of the Texas state constitution. The claims were asserted against Bernard T. Mittemeyer, M.D., Donald Haragan, Ph.D., David McCartney, M.D., Darryl M. Williams, M.D., and Dorma Kohler.
May included Dr. Mittemeyer, then Dean of the Texas Tech University Health Sciences Center, as a party for the purpose of seeking injunctive relief under 42 U.S.C. § 1983, the Due Process Clause of the fourteenth amendment to the federal constitution and article 1, section 19 of the Texas constitution. In his second amended original petition, May substituted Dr. Joel Kupersmith as a party defendant in place of Mittemeyer because he had succeeded Mittemeyer as Dean of the Texas Tech University Health Sciences Center School of Medicine (TTUHSC). In the same petition, May also substituted Dr. David R. Smith for Dr. Donald Haragan because he had succeeded Dr. Haragan as President of Texas Tech University and TTUHSC.
After two attempts to remove the case to federal court, a defense motion for summary judgment on which the trial court took no action, and two prior motions for summary judgment, the defendants filed an additional motion for summary judgment in September 1999. The grounds asserted in this motion were that there was no evidence supporting May's claims and the claims were barred by the doctrines of sovereign immunity, official immunity, and qualified immunity. The trial court disposed of that motion by sustaining Drs. Smith and Kupersmith's claims of sovereign immunity and dismissed them from the case. It also granted summary judgment in favor of the remaining defendants McCartney, Williams and Kohler, on May's claim for intentional interference with contract, denied the motion as to his remaining claims against appellants in their individual and official capacities for defamation, self-defamation, and intentional interference with prospective contractual relations. It also expressly overruled appellants' assertion of affirmative defenses to May's claims under 42 U.S.C. § 1983. Unaddressed in the court's order were May's claims for intentional infliction of emotional distress and violation of due course of law. Denial of summary judgment on those claims is implicit in the court's order. Hence, this appeal by appellants as the remaining defendants.
In mounting their challenges, appellants present four issues for our determination. They are: 1) whether May's tort claims against them in their official capacities should be dismissed because they are entitled to sovereign immunity; 2) whether May's intentional tort claims against appellants in their individual capacities should be dismissed because May did not overcome their entitlement to official immunity; 3) whether May's due process claims under 42 U.S.C. § 1983 for monetary damages against appellants in their official capacities should be dismissed because they are entitled to sovereign immunity; and 4) whether May's due process claims under 42 U.S.C. § 1983 against appellants in their individual capacities should be dismissed because May did not overcome their entitlement to qualified immunity.
Initially, May contends that we lack jurisdiction over this appeal. He argues that the issues asserted in appellants' third motion for summary judgment were considered and rejected by the trial court on January 20, 1998. Because they did not take a timely appeal from that denial, he posits that this appeal is untimely and we have no jurisdiction to consider it. In advancing that argument, May places primary reliance upon the court's decision in Cameron County v. Carrillo, 7 S.W.3d 706, 708-09 (Tex.App.--Corpus Christi 1999, no pet.). However, Texas Rule of Civil Procedure 166a does not limit the number of times a motion for summary judgment may be filed. Tex. R. Civ. P. 166a. The general rule is that denial of a summary judgment is interlocutory and is in no way final. De Los Santos v. S.W. Texas Methodist. Hosp., 802 S.W.2d 749 (Tex.App.--San Antonio 1990, no pet.), overruled on other grounds, Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994). Because that is the case, a motion for summary judgment may be reurged in the district court after its denial. Villages of Greenbriar v. Torres, 874 S.W.2d 259, 262 (Tex.App.--Houston [1st Dist.] 1994, pet. denied). The portion of the Carrillo opinion on which May apparently relies is that in which the court refers to a "renewed" motion for summary judgment as a successive motion for new trial and not a motion for rehearing "because it contains different grounds for summary judgment than did the earlier motion." Carrillo, 7 S.W.3d at 709. If there be an implication in that comment that a summary judgment motion may not be reurged in district court, we would disagree. Because of its interlocutory nature, a trial court continues to have the right to reconsider an earlier disposition. The mere fact that the statute does permit the appeal of a summary judgment motion such as the one before us, does not mean that the absence of an appeal from an earlier motion deprives the later ruling of its interlocutory nature or of the right to appeal a later ruling.
It is well established that a defendant moving for summary judgment on an affirmative defense must conclusively establish all elements of that defense. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. City of Palestine v. Ramirez, 925 S.W.2d 250, 253 (Tex.App.--Tyler 1996, no pet.) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)). It follows, then, that a summary judgment is not proper if the evidence upon which the party propounding the affirmative defense depends is in dispute. In determining whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true, every reasonable inference must be indulged in favor of the non- movant, and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).
Appellants' suggested issues raise questions as to both sovereign and official immunity. Although both are types of governmental immunity, sovereign immunity and official immunity are two distinct doctrines aimed at serving different policies. Sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the state. Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997). On the other hand, official immunity is an affirmative defense that protects government employees from tort liability (1) for the performance of discretionary duties (2) within the scope of the employees' authority (3) provided the employees act in good faith. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
Drawing on the standard applied to qualified immunity in 42 U.S.C. § 1983 suits, our supreme court has defined good faith as a test of objective legal reasonableness, without regard to whether the government official involved acted with subjective good faith. Chambers, 883 S.W.2d at 656. "[W]e look to whether a reasonable official could have believed his or her conduct to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." Id. Thus, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Id. To controvert a defendant's summary judgment proof on good faith, the plaintiff must show that "no reasonable person in the defendant's position could have thought the facts were such that they justified defendant's acts." Id. at 657.
Appellants' first issue assigns error to the trial court's failure to grant summary judgment for them in their official capacities under the doctrine of sovereign immunity. In Vincent v. West Texas State University, 895 S.W.2d 469 (Tex.App.--Amarillo 1995, no writ), we discussed the application of sovereign immunity to a suit against a state university employee in their official capacity. We held such a claim is, in effect, a claim against the state and implicates sovereign immunity. Id. at 472. To enjoy the benefits of the doctrine, the defendant must affirmatively plead it. Davis v. City of San Antonio, 752 S.W.2d 518 (Tex. 1988). When properly raised, sovereign immunity deprives the court of jurisdiction unless the plaintiff establishes a waiver by the state. Vincent, 895 S.W.2d at 472.
Because sovereign immunity belongs to the state and the protection it affords state employees is limited to their official capacities, we must consider whether the employees may assert that defense directly. This question only arises where, as here, the plaintiff sues the employees in their official capacities but does not name an agency of the state as a defendant directly. There is a split of authority on this question.
In Smith v. Davis, 999 S.W.2d 409 (Tex.App.--Dallas 1999, no pet.), the Dallas Court of Appeals considered the issue and found an employee could not assert sovereign immunity when the employer was not a named party. Id. at 416. This is so, it reasoned, because "the immunity protects only the sovereign, only the sovereign is entitled to claim the defense or, possibly, decide to waive it by not affirmatively pleading it." Id. at 416. The Dallas court also suggested that a ruling on sovereign immunity in the absence of the government entity would be an impermissible advisory opinion. Id. at 417. The court recognized opinions from two other courts of appeals which permitted officials to assert sovereign immunity when their employers were not parties to the suit. Those cases, Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 738 (Tex.App.--Austin 1994, writ denied), and Gonzalez v. Avalos, 866 S.W.2d 346, 352 (Tex.App.--El Paso 1993, writ dism'd w.o.j.), did not discuss the significance of the absence of the defendants' employers as named parties.
We do not agree with the holding in Davis. Because a claim against a state employee in their official capacity is, in effect, a claim against the state, Liberty Mutual, 874 S.W.2d at 738, to that extent the state is a party. See, e.g., Hafter v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (in such a case the governmental entity is the real party in interest). Indeed, subject to certain exceptions, the state is obligated to defend the employee and to indemnify them for claims based on conduct in their official capacity. Tex. Civ. Prac. & Rem. Code Ann. §§ 104.001-.009 (Vernon 1997 & Supp. 2001). Whether the state is named as a party does not affect the role of its employees in their official capacity and should not affect their ability to rely on the immunity afforded to them in that capacity.
Appellants' answer to May's third amended petition specifically asserted sovereign immunity as an affirmative defense to the claims against them in their official capacities. The defense was also asserted in appellants' motion for summary judgment. May's response to the third motion for summary judgment was extensive, consisting of 140 pages of text. However, it did not address May's assertion of sovereign immunity. We find no basis for a waiver of sovereign immunity as to appellants in their official capacities. Therefore, they were entitled to summary judgment to that extent and we sustain their first issue.
Appellants' second issue assigns error to the trial court's failure to grant summary judgment in their individual capacities on the basis of official immunity. As noted above, to establish their right to summary judgment on official immunity, appellants had the burden of conclusively proving each element of that defense, specifically that they 1) were performing discretionary duties, 2) within the scope of the employee's authority, 3) acting in good faith. University of Houston v. Clark, 22 S.W.3d 915, 918 (Tex. 2000). We consider whether each appellant met this burden.
Appellants' argument begins with the proposition that "May's claims against Williams centers [sic] around his decision to remove May as chair of the department and reassign him to the position of Associate Dean without clinical responsibilities." They reason he is entitled to official immunity because, as dean of the medical school, the reassignment of a department chair is within his discretionary duties and evidence of the faculty's lack of support for May establishes Williams's good faith. In support of the second element, Williams relies on the Professional Staff Bylaws of the school of medicine which provide, "[a] chairperson may be removed by action of the Dean on behalf of the governing body," and an affidavit from Maximilian Buja, Dean of the University of Texas Health Science Center at Houston, that it is "standard practice" that department chairs serve at the will of the dean.
We agree that May's claims center around his removal as chair of the department of ophthalmology. However, a reading of May's petition and response to the motion for summary judgment reveal several specific acts and omissions form the basis of his claims. May claims the reassignment and the effective suspension of his clinical privileges and status as a faculty member were each done without affording him procedural due process.
Williams's summary judgment evidence that the reassignment of a department chair is a discretionary act is uncontroverted. While May represents it was his "understanding" that a department chair could only be removed by the board of regents, the Professional Staff Bylaws, however, conclusively established the acts were within the scope of Williams's duties. The remaining issue is whether Williams conclusively established that he was acting in good faith.
With regard to the removal of May as department chair without notice or a hearing, Williams relies on the Professional Staff Bylaws and an affidavit of Dr. Buja, who testified that department chairs may be removed without "cause, prior notice or a hearing." The question before us is whether May was entitled to due process before he could be removed as chair of the department. This is a question of law on which Dr. Buja's opinion has no bearing. Under the fourteenth amendment to the federal constitution, due process is implicated when the state or its agents deprive a person of a protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To have a protectable property interest in public employment, a person must have more than a unilateral expectation, he must have a claim of entitlement. Roth, 408 U.S. at 576. A claim of entitlement exists when the employee can only be dismissed for cause. Kruger v. Cressy, No. 99-1857 (1st Cir. Jan 4, 2000) (unpublished memo opinion at 201 F.3d 427).
The Professional Staff Bylaws of the medical school impose no limitation on the dean's power to remove a department chair and May presented no contract or other evidence limiting Williams's power to remove the chair of a department. The facts of this case are strikingly similar to those presented in Kruger. Kruger also involved the removal of a department chair at a state university. Id. Finding no substantive limitation on the dean's power to remove a department chair, the court held there was no property interest which implicated the protections of the fourteenth amendment. Id. Consequently, the denial of notice and a hearing did not violate an established constitutional right. Without a property interest in his chairmanship, May cannot establish his substantive due process claim. Williams's summary judgment evidence establishes his entitlement to official immunity for claims based on his removal of May as chair of the department of ophthalmology and the denial of summary judgment to that extent was error.
We next consider Williams's actions as they related to May's status as a faculty member and his clinical privileges. Because May's status as a member of the faculty was protected by tenure, he had a protectable property interest in that position. Available authority supports the proposition that clinical privileges are also a protectable property interest. See, e.g., Woodbury v. McKinnion, 447 F.2d 839 842 (5th Cir. 1971); Greenwood v. Office of Mental Health, 163 F.3d 119 (2d Cir. 1998). Here, the Professional Staff Bylaws specifically provided for the right to a hearing on actions adversely affecting his clinical privileges.
Relying on correspondence and their own affidavits, appellants' position is based on the premise that May's reassignment had no effect on his status as a member of the faculty or on his clinical privileges. May responded with his affidavit that in August 1993, at the beginning of his leave of absence, he was instructed not to contact anyone in the department. In his deposition testimony, Williams admitted telling May "he should not ...