Johnson Roofing, Inc. D/B/A Johnson Auctions v. Discount Rental, Inc. and Billy Perry ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00239-CV
JOHNSON ROOFING, INC. D/B/A
JOHNSON AUCTIONS,
Appellant
v.
DISCOUNT RENTAL, INC. AND
BILLY PERRY,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2006-2576-4
MEMORANDUM OPINION
Discount Rental filed suit against Johnson Roofing, Inc. d/b/a Johnson Auction,
William and Barbara Carter, and Billy Simon d/b/a Big Boys’ Wrecker Services for
damages to its property seized under a writ of execution. Discount Rental and Johnson
are the only parties before us on appeal. Johnson filed a motion to dismiss for lack of
jurisdiction, and alternatively, a motion for summary judgment. The trial court denied
the motions, and Johnson appeals. We affirm.
BACKGROUND
The Carters obtained a default judgment against Discount Rental, and the trial
court issued a writ of execution on the default judgment. Discount Rental’s property
was seized pursuant to the writ of execution. The Carters and Discount Rental agreed
to an order for the sale of the seized property, and the trial court signed the order on
March 25, 2004. The seized property was moved to Johnson Auction where Johnson
was to provide safe and secure storage until time of the sale. This Court reversed the
default judgment before the sale occurred. Disc. Rental Inc., v. Carter, No. 10-03-00276-
CV (Tex. App.—Waco May 5, 2004, pet. denied) (mem.op.).
The trial court denied Discount Rental’s motion to modify or set aside the March
25 order for sale. On November 30, 2004, the trial court again denied Discount Rental’s
request for relief and again authorized the sale. The Texas Supreme Court conditionally
granted Discount Rental’s petition for mandamus and vacated the trial court’s orders
for sale and orders denying relief. In re Discount Rental, 216 S.W.3d 831, 832 (Tex. 2007).
The Supreme Court further directed the trial court to return the property to Discount
Rental. Id.
Discount Rental retrieved the seized property. Discount Rental then filed suit to
recover for damages to the seized property.
STANDARD OF REVIEW
A motion to dismiss based on the absence of subject matter jurisdiction is the
functional equivalent to a plea to the jurisdiction challenging the trial court's authority
to determine the subject matter of a cause of action. Wallingford v. Trinity Universal Ins.
Co., 253 S.W.3d 720, 723 (Tex. App.—Amarillo 2007, pet. denied); Lacy v. Bassett, 132
Johnson Roofing, Inc. v. Discount Rental, Inc. Page 2
S.W.3d 119, 122 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Whether a plaintiff has
alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a
question of law reviewed de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004).
The standard of review in a traditional summary judgment proceeding is well
established. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-
49 (Tex. 1985). A defendant moving for summary judgment on the basis of an
affirmative defense must plead and conclusively establish each essential element of that
defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
IMMUNITY
Government employees are entitled to official immunity from suit arising from
the performance of their (1) discretionary duties in (2) good faith as long as they are (3)
acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650,
653 (Tex. 1994). Johnson argues that it is immune from suit as an agent of McLennan
County and its constable.
Except as provided by Section 34.061, an officer is not liable for damages
resulting from the execution of a writ issued by a court of this state if the officer in good
faith executes or attempts to execute the writ as provided by law and by the Texas Rules
of Civil Procedure. TEX. R. CIV. P. ANN. § 7.003(a) (Vernon Supp. 2010). The officer shall
keep securely all personal property on which he has levied and for which no delivery
bond is given. TEX. R. CIV. P. ANN. § 34.061(a) (Vernon 2008).
For a duty performed before September 1, 2007, if an injury or loss to an
interested party results from the negligence of the officer, the officer and his sureties are
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liable for the value of the property lost or the amount of the injury sustained, plus 10
percent of that value. The total amount is recoverable on motion of the injured party
filed with the court that issued the writ, following three days’ notice. See former TEX. R.
CIV. P. 34.061(b); Section 8 of Acts 2007, 80th Leg., ch. 421.
Section 34.061 is a legislatively created exception to immunity. See Freeman v.
Wirecut E.D.M., 159 S.W.3d 721, 729 (Tex. App.—Dallas 2005, no pet.); Merritt v. Harris
County, 775 S.W.2d 17, 23 (Tex. App.—Houston [14th Dist.] 1989, writ denied).
Discount Rental alleges that Johnson’s negligence in safeguarding the seized property
caused damage to the property and loss of the property. Assuming without deciding
that Johnson is entitled to be treated as the constable and McLennan County, Johnson is
not entitled to immunity on Discount Rental’s claims of negligence in failing to properly
secure the seized property. The trial court did not err in denying Johnson’s motion to
dismiss and motion for summary judgment. We overrule Johnson’s second issue.
Because we find that Discount Rental’s claims come within the waiver of
immunity, we need not address whether Johnson is an agent of McLennan County and
its constable. TEX. R. APP. P. 47.1.
CONCLUSION
Governmental immunity is waived on claims of negligence in storing and
securing seized property. Because we find that immunity is waived, we affirm the trial
court’s order denying Johnson’s motion to dismiss and motion for summary judgment.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed: October 6, 2010
[CV06]
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