Robert W. Holzwarth v. Belinda Beek

Affirmed and Memorandum Opinion filed October 17, 2006 Affirmed and Memorandum Opinion filed October 17, 2006. In The Fourteenth Court of Appeals _______________ NO. 14-05-00070-CV _______________ ROBERT W. HOLZWARTH, Appellant V. BELINDA BEEK, Appellee On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 03-69721A M E M O R A N D U M   O P I N I O N Robert W. Holzwarth appeals a summary judgment in favor of Belinda Beek on the grounds that the trial court erred in granting summary judgment (1) without adequate time for discovery, (2) on absolute immunity, and (3) on limitations grounds. We affirm. I. Factual and Procedural Background On January 12, 1996, appellant was convicted of aggravated sexual assault. Appellee, Belinda Beek, was a prosecutor assigned to prosecute appellant=s case. Appellant alleges that prior to his criminal trial, two attorneys, Lawrence Wilson and Craig Eiland, filed a civil suit against appellant and others for actions occurring on the night he committed the sexual assault. Appellant alleges that at the time of his criminal trial, Eiland and Wilson had conspired with Beek to conceal the fact that a civil suit had been filed. According to appellant=s second amended petition, Beek represented to the trial court during appellant=s criminal trial that no civil suit had been filed against appellant. Appellant contends that he later discovered the suit had been filed, but he had not yet been served. He further contends that Beek, Wilson, and Eiland conspired to conceal this fact so the complainant would not be cross-examined during the criminal trial. On December 29, 2003, appellant filed a civil suit against Beek, Wilson, and Eiland alleging his civil rights had been violated because he was deprived of a fair trial through the concealment of the civil suit. Beek filed a motion for summary judgment contending she is entitled to absolute immunity and the statute of limitations barred appellant=s cause of action. The trial court granted summary judgment and severed Beek from the lawsuit, making the judgment final and appealable. In four issues, appellant contends the trial court erred in granting summary judgment because he was not allowed adequate time for discovery, Beek failed to show as a matter of law she was entitled to absolute immunity, and the discovery rule precludes summary judgment based on the statute of limitations. II. Standard of Review To prevail on a motion for summary judgment, the movant must establish the absence of a genuine issue of material fact and that she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rhone‑Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). In reviewing a trial court=s decision on a motion for summary judgment, we take as true all evidence favorable to the non‑movant, and we make all reasonable inferences in the non‑movant=s favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a trial court=s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). III. Adequate Time for Discovery In his first two issues, appellant contends he was not given adequate time for discovery before the trial court granted Beek=s summary judgment motion. A no-evidence summary judgment cannot be granted prior to the passage of an adequate time for discovery. Tex. R. Civ. P. 166a(i); Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 328 (Tex. App.CWaco 2000, pet. denied). This time restriction does not apply to a traditional motion for summary judgment. Tex. R. Civ. P. 166a(b); Crow, 17 S.W.3d at 328. In her motion for summary judgment, Beek sought judgment as a matter of law based on absolute immunity and the statute of limitations. Beek did not seek summary judgment under the no-evidence standard. Therefore, the trial court was not required to permit adequate time for discovery before granting the motion. See Moorehouse v. Chase Manhattan Bank, 76 S.W.3d 608, 612 (Tex. App.CSan Antonio 2002, no pet.). Appellant=s first and second issues are overruled. IV. Absolute Immunity In his third issue, appellant contends the trial court erred in granting summary judgment based on absolute immunity. Appellant argues that when Beek stated appellant had not been sued, she was not acting in her capacity as an advocate for the State, but was acting in furtherance of a conspiracy with the lawyers who had filed the civil suit. Appellant argues Beek, Wilson, and Eiland conspired to violate his civil rights by concealing the civil suit during his criminal trial. Beek argues that her conduct during appellant=s criminal trial was within her prosecutorial function; therefore, appellant=s claims are barred. While initiating a prosecution and presenting the State=s case, the prosecutor is immune from a civil suit for damages. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Immunity is premised on the concern that harassment by unfounded litigation would cause a deflection of the prosecutor=s energies from her public duties, and the possibility that she would shade her decisions instead of exercising independence of judgment required by the public trust. Id. at 423. Appellant contends Beek is limited to the defense of qualified immunity. The Supreme Court, however, specifically rejected that argument, finding the threat of civil rights suits would Aundermine performance of his duties@ if a prosecutor had qualified immunity. Id. at 425. A prosecutor=s absolute immunity extends to activities intimately associated with the judicial phase of the criminal process. Id. at 420B21; Oden v. Reader, 935 S.W.2d 470, 474 (Tex. App.CTyler 1996, no writ). In this case, it is important to consider the claim that appellant has made against Beek concerning her role in the criminal trial. Acts undertaken by a prosecutor in the course of her role as an advocate for the State are entitled to the protections of absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). In determining whether a prosecutor is absolutely immune from suit, we examine the nature of the function performed, not the identity of the actor who performed it. Id. at 269. Appellant contends that in response to a motion in limine concerning civil suits, Beek told the trial court that no civil suit was pending against appellant. The conduct alleged is within her prosecutorial function. It is an act that is intimately associated with the judicial phase of the criminal process. See Burns v. Reed, 500 U.S. 478, 479 (1991) (finding prosecutor was absolutely immune for participating in probable cause hearing, but no immunity for giving legal advice to police). Because Beek was absolutely immune from a civil rights suit based on the described actions in appellant=s criminal trial, appellant=s third issue is overruled. In its judgment, the trial court did not specify on which grounds it granted summary judgment. Because we have determined that the trial court=s summary judgment can be affirmed on the theory of absolute immunity, we need not address appellant=s fourth issue on the statute of limitations. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed October 17, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Seymore.