Opinion
No. 10-01-023-CV
Opinion delivered and filed June 25, 2003.
From the 239th District Court, Brazoria County, Texas, Trial Court # 10781*JG00.
Affirmed
Before Justice Vance Justice Gray, and Justice Richards (Sitting by Assignment).
MEMORANDUM OPINION
This is an appeal from a take-nothing summary judgment entered against appellant Betty Shanklin ["Shanklin"], in connection with the lawsuit she filed against City of Angleton Police Officer Russell Grimes and City of Brazoria Police Officer Lance Leverell ["the officers"]. Shanklin alleged in her pleadings that her 1997 arrest by the officers for the offense of delivery of a controlled substance was unlawful. She sued, seeking a damage award for malicious prosecution and fraud. The officers' joint motion for summary judgment was filed pursuant to Tex.R.Civ.P. 166(b) and stated four grounds for relief. We will affirm.
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Harwell v. State Farm Mut. Auto Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).
Summary judgment was sought by the defendants on several independent grounds: (1) Tex. Civ. Prac. Rem. Code Ann. § 101.106 (Vernon 1997) barred suit against the officers, who were governmental employees, because a prior civil suit involving the same subject against the officers' employers, the City of Angleton and the City of Brazoria, had resulted in a judgment adverse to Shanklin; (2) defendants had probable cause to initiate criminal proceedings against Shanklin, negating a necessary element of her cause of action for malicious prosecution; (3) the facts alleged by Shanklin in her fraud claim properly sounded in malicious prosecution, not fraud; and (4) defendants actions were made in good faith during the course and scope of their employment as police officers, thereby entitling them to official immunity. On appeal, Shanklin asserts that genuine issues of material fact exist concerning the officers's actions both before and subsequent to her arrest; however, Shanklin fails to address the officers' argument that her claim is barred under Section 101.106 of the Texas Remedies Code.
The record reflects Shanklin sued the City of Angleton and the City of Brazoria in the United States District Court for the Southern District of Texas, Galveston Division, in cause number G-99-472, alleging both federal and state causes of action. On December 17, 1999, the federal cause of action was dismissed with prejudice, and the state claims were dismissed without prejudice. No subsequent claim against either city was made by Shanklin.
The trial court's order granting summary judgment was general in nature in that it did not specify the ground or grounds on which it was based. When a trial court's order granting summary judgment does not specify the grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). In addition, if the trial court's order is general, the aggrieved party must show that each of the independent arguments alleged in the motion is insufficient to support the judgment, or the judgment will be affirmed on the ground to which no complaint is made. See Smith v. Houston Lighting and Power Co., 7 S.W.3d 287, 290 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Here, Shanklin does not address on appeal the officers' independent summary judgment argument that recovery against them is barred because Shanklin's previous suit against the City of Angleton and the City of Brazoria, which involved the same subject matter, was dismissed in a separate final judgment in federal court. See Tex. Civ. Prac. Rem. Code Ann. § 101.106. Because Shanklin has failed to address this independent ground on which summary judgment was sought, we must overrule her issues and affirm. See Smith, 7 S.W.3d at 290. Appellant's issues are overruled.
Section 101.106 provides:
The trial court's summary judgment order is affirmed.
Employees Not Liable After Settlement or Judgment
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Tex. Civ. Prac. Rem. Code Ann. § 101.106 (Vernon 1997).