Gregory-Portland Independent School District v. Judy Upton-Allen and Reynaldo Mata ( 2005 )

  NUMBER 13-04-191-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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GREGORY-PORTLAND INDEPENDENT

SCHOOL DISTRICT,                                                          Appellant,

v.

JUDY UPTON-ALLEN AND REYNALDO MATA,                     Appellees.

___________________________________________________________________

On appeal from the 343rd District Court

of San Patricio County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

            This is an interlocutory appeal. Appellant, Gregory-Portland Independent School District (GPISD), filed a summary judgment motion against appellees, Judy Upton-Allen and Reynaldo Mata, asserting sovereign immunity. The trial court denied appellant’s motion, and this appeal ensued. Because we find that appellant is immune from liability as a matter of law, we reverse the decision of the trial court and render summary judgment in favor of appellant.

I. FACTUAL AND PROCEDURAL BACKGROUND

         This is a personal injury lawsuit for damages arising from an automobile accident. Judy Upton-Allen sued GPISD and its employee, Alvaro Ortiz, for Ortiz’s alleged negligence in operating a school bus. Upton-Allen sought to hold GPISD liable on the basis of respondeat superior. Intervenor, Reynaldo Mata, sought recovery for personal injuries allegedly suffered as a result of the same accident and based upon the same theory of liability as Upton-Allen.

         Ortiz first filed a motion for summary judgment against Upton-Allen asserting that he was entitled to official immunity as a matter of law. The trial court granted the motion and ordered that Upton-Allen take nothing against Ortiz. Ortiz then filed a motion for summary judgment against Mata asserting that he was entitled to official immunity as a matter of law. The trial court granted the motion and ordered that Mata take nothing against Ortiz.

         Based on the court’s rulings with respect to Ortiz, GPISD filed a motion for summary judgment against Upton-Allen and Mata asserting immunity. The trial court denied GPISD’s motion.

II. GPISD’S IMMUNITY

         By its sole issue, appellant contends the trial court erred in denying its motion for summary judgment because GPISD is immune from liability as a matter of law. We agree.

         The Texas Supreme Court has held that when a governmental entity’s liability is based on respondeat superior for an employee’s negligence, the governmental entity is not liable under section 101.021 of the Texas Tort Claims Act when the employee has no liability because of official immunity. Dewitt v. Harris County, 904 S.W.2d 650, 653-54 (Tex. 1995). Because the trial court found GPISD’s employee possessed official immunity, we conclude GPISD retains its sovereign immunity. See id. Therefore, the trial court erred in denying appellant’s motion for summary judgment. Appellant’s issue is sustained.III. ORDERS GRANTING ORTIZ’S SUMMARY JUDGMENT

         By one cross-point, appellees argue that the trial court erred in granting Ortiz’s motions for summary judgment based on his official immunity as an employee of GPISD. However, we do not have jurisdiction to review an interlocutory order that grants a motion for summary judgment.

         Appellees attempt to create interlocutory appellate jurisdiction by bootstrapping the unappealable orders to appellant’s appealable order. Appellees rely on Letson v. Barnes for the proposition that a non-appealable order may be considered on appeal to the extent the subject matter of the non-appealable order affects the validity of the appealable order. See Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.–Amarillo 1998, pet. denied) (holding trial court’s alleged lack of jurisdiction to enter temporary injunction could be addressed in appeal from injunction). However, Letson does not apply to the facts of this case. The orders appellees would like us to review pertain only to Ortiz’s defense of official immunity. The orders do not affect the trial court’s authority or jurisdiction to enter the appealable order. See Shell Cortez Pipeline Co. v. Shores, 127 S.W.3d 286, 291 (Tex. App.–Ft. Worth 2004, no pet.). Therefore, we do not have jurisdiction to review the orders granting Ortiz’s motions for summary judgment.V. Conclusion

         Because we conclude GPISD is entitled to summary judgment as a matter of law, we reverse the judgment of the trial court and render summary judgment in favor of appellant.

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Memorandum Opinion delivered and

filed this 17th day of February, 2005.