
Opinion issued February 7, 2003













  
 






In The
Court of Appeals
For The
First District of Texas




NO. 01-00-01326-CV




PARVIN G. GIDVANI, Appellant

V.

JEROME ALDRICH, Appellee




On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 98-50386-B




O P I N I O N

          Appellant, Parvin G. Gidvani (Gidvani), is appealing a summary judgment
rendered in favor of appellee, Jerome Aldrich (Aldrich).  In four issues, Gidvani
asserts  the trial court erred in granting summary judgment against him on  his causes
of action for interference with his right of interment and intentional infliction of
emotional distress.  We affirm.
Factual Background and Procedural History
          The undisputed summary judgment evidence shows that in the Fall of 1996,
Gidvani and Nita Kapoor (Nita) were married.  Shortly after the marriage, Gidvani
purchased a life insurance policy on the life of his wife from Farmers Insurance,
worth $150,000, and named himself as the primary beneficiary.  Gidvani also
purchased an additional $100,000 policy on the life of his wife for accidental death
coverage.
          A few weeks after Gidvani received the policy, Nita drowned in a swimming
pool in Acapulco, Mexico, during the couples’  honeymoon.  The private swimming
pool was three feet deep and adjacent to the couple’s hotel room.  Harina Kapoor,
Nita’s sister, suspected foul play and contacted the Mexican police.  As part of the
ensuing investigation, Mexican authorities performed an autopsy on Nita’s body and
determined that her death was a result of an accidental drowning.
          While Gidvani was still in Mexico, his father contacted Southpark Funeral
Home (Southpark), in Pearland, Brazoria County, Texas to arrange Nita’s funeral. 
On March 1, 1997, upon arrival at the Houston airport, Southpark transported Nita’s
body to its funeral home.  Gidvani intended to cremate Nita’s body on the following
day, the 12th day after her death, in accordance with Hindu tradition. 
          On March 2, the day Nita’s body was to be cremated, Aldrich, the Criminal
District Attorney for Brazoria County, was informed, for the first time, about the
circumstances surrounding Nita’s death.  During Aldrich’s deposition, he stated that,
while he was attending church, he received a page from Assistant District Attorney
Maria Kohlkorst.  Kohlkorst informed Aldrich that:
          (1)     Gidvani was at a funeral home in Brazoria County, demanding that the
body of his wife be cremated;
 
          (2)     the couple had an arranged marriage, and had been married
approximately one month when his wife was found dead;
 
          (3)     the couple was on their honeymoon in Acapulco, Mexico, and the
honeymoon had been delayed until Gidvani could obtain a million
dollar life insurance policy on his wife; and 
 
          (4)     the couple arrived in Mexico on Friday, and Nita was found dead in a 3
foot deep swimming pool, attached to the couple’s hotel room, on
Saturday morning.
 
          Immediately after his conversation with Kohlkorst, Aldrich contacted the
Honorable Bill Todd, Justice of the Peace in Brazoria County, and orally requested
that an autopsy be performed on Nita’s body.
  The autopsy was ordered and
performed in Galveston County.  Nita’s remains were returned to Gidvani on March
7, and the cremation and funeral were held on March 8.  
          Four months later, the medical examiner completed the autopsy and concluded,
as did his Mexican counterpart, that Nita accidentally drowned.  Gidvani then sued
Aldrich, Farmers Insurance, and Southpark,
 for interference with his right of
interment and intentional infliction of emotional distress.   
          Aldrich moved for summary judgment, asserting the affirmative defenses of
absolute and official immunity, in addition to challenging the viability of Gidvani’s
causes of action alleging interference with the right of interment and intentional
infliction of emotional distress.  The trial court granted Aldrich’s motion for summary
judgment without specifying the grounds upon which the order was based.  The
judgment became final after the trial court severed Gidvani’s claims against Aldrich
from his claims against Farmers and Southpark.  Gidvani then filed this appeal.
 
 
Summary Judgment
          Standard of Review
          Aldrich filed a traditional motion for summary judgement.  Tex. R. Civ. P.
166a(c).  Summary judgment is proper only when the movant proves there is no
genuine issue as to any material fact, and he is entitled to judgment as a matter of law. 
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Marchal
v. Webb, 859 S.W.2d 408, 412 (Tex. App.—Houston [1st Dist.] 1993, writ denied). 
A defendant moving for summary judgment on the basis of an affirmative defense
must conclusively prove all essential elements of that defense.  See Am. Tobacco Co.
v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Bangert v. Baylor Coll. of Med., 881
S.W.2d 564, 566 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
          When evaluating a summary judgment, we assume all evidence favorable to the
non-movant is true.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997).  We indulge every reasonable inference in favor of the non-movant.  Id.  We
resolve all doubts about the existence of a genuine issue of any material fact against
the movant.  Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.
1996).  If the movant shows he is entitled to judgment as a matter of law, the non-movant must present evidence raising a fact issue in order to defeat summary
judgment.  See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979); Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.—Houston
[1st Dist.] 1991, writ denied).
          When a movant asserts multiple grounds for summary judgment, and the order
does not state the theory upon which the trial court based its judgment, as in this case,
the non-movant on appeal must negate any grounds on which the trial court could
have granted the order.  Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.
1970).  Otherwise, we will affirm the summary judgment if any one of the theories
advanced is meritorious.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).Official Immunity
          In his second issue, Gidvani claims the trial court erred by granting summary
judgment on the affirmative defense of official immunity.
          Official immunity is a common law defense that protects government officers
from personal liability.  See City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54
(Tex. 1994); Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex. 1994).  In order to be entitled
to official immunity, Aldrich had the burden to show that (1) he was performing a
discretionary duty, (2) which was within the scope of his authority, and (3) that he
acted in good faith.  Chambers, 883 S.W.2d at 653.
          Discretionary Duty
          According to the Texas Supreme Court, discretionary decisions receive
protection, but ministerial duties do not.  Chambers, 883 S.W.2d at 654.  An act is
considered discretionary if it “involves personal deliberation, decision, and
judgment.”  Id.  If, however, “the law prescribes and defines the duties to be
performed with such precision and certainty as to leave nothing to the exercise of
discretion or judgment,” it is a ministerial duty.  Id. 
          In this case, Aldrich’s decision to request an autopsy and investigate whether
Gidvani committed a  crime was clearly a discretionary decision.  Thus, the first
prong of the test is satisfied. 
          Scope of Authority
          In evaluating whether Aldrich had “authority and jurisdiction” to act, we
inquire whether Aldrich had the authority to perform the challenged act, not whether
the act was proper or improper. See Bradt v. West, 892 S.W.2d 56, 70 (Tex.
App.—Houston [1st Dist.] 1994, writ denied). 
          Gidvani argues that Aldrich is not entitled to official immunity because he did
not have (1) “jurisdiction” to investigate and prosecute Gidvani, or (2) the “authority”
to request an autopsy on Nita’s body.
          However, as the District Attorney for Brazoria County, Aldrich has jurisdiction
to investigate and prosecute any crime if at least one element of that crime takes place
in his jurisdiction.  See Tex. Penal Code Ann. § 1.04(a)(1) (Vernon 1994)
(providing state has jurisdiction over an offense that person commits by his own
conduct if “either the conduct or a result that is an element of the offense occurs
inside this state”); Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon Supp. 2003)
(stating district attorney shall represent State in all criminal cases in district courts of
his district).  
          Under Texas law, a person commits theft “if he unlawfully appropriates
property with intent to deprive the owner of property.”  Tex. Penal Code Ann.
§31.03(a) (Vernon Supp. 2003).  Appropriation is defined as “without the owner’s
effective consent.”  Tex. Penal Code Ann. §31.03(b)(1).  “Effective consent” is
defined as consent not “induced by deception or coercion.”  Tex. Penal Code Ann.
§31.01(3)(A).  Deception is defined as, among other things, “preventing another
from acquiring information likely to affect his judgment in the transaction.” 
Tex. Penal Code Ann. § 31.01(1)(C).  (Emphasis added).  
          In this case, Aldrich had jurisdiction to investigate Gidvani for theft because
he had reason to believe the element of deception, as it is defined by the penal code,
was being committed in Brazoria county.  The summary judgment evidence shows
that Aldrich believed that, by Gidvani’s insistence that his wife’s remains be
immediately cremated, Gidvani was preventing another, i.e., the insurance company,
from acquiring information likely to affect its judgment in paying out the policy.
          Furthermore, as a criminal district attorney, Aldrich had the authority to request
that an autopsy be performed on Nita’s remains.  Tex. Code Crim. Proc. Ann. art.
49.10(e)(3) (Vernon Supp. 2003).  According to article 49.10(e)(3) of the Texas Code
of Criminal Procedure:
(e)  A justice of the peace shall order an autopsy performed on a body
if:
 
(3) directed to do so by the District Attorney, criminal
district attorney, or, if there is no district or criminal
district attorney, the county attorney. 

Id.  (emphasis added). 
          Therefore, Aldrich was acting within the scope of his authority when he
decided to investigate Gidvani and request an autopsy on Nita’s body.
          Good Faith 
            The only issue left to resolve is whether Aldrich was acting in good faith. 
This Court measures good faith in official immunity cases against a standard of
objective reasonableness without regard to the official’s subjective state of mind. 
Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Chambers, 883 S.W.2d
at 656; see also Cobb v. Tex. Dep’t of Criminal Justice, 965 S.W.2d 59, 64 (Tex.
App.—Houston [1st Dist.] 1998, no writ); City of Hempstead v. Kmiec, 902 S.W.2d
118, 121 (Tex. App.—Houston [1st Dist.] 1995, no writ).  Good faith may be
established by Aldrich’s own sworn statement, Barker v. City of Galveston, 907
S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995, writ denied), or by expert
testimony.  Wadewitz, 951 S.W.2d at 466.  In order to satisfy his burden of proof,
Aldrich had to show that his acts were within the realm of what a reasonably prudent
government official could have believed was appropriate at the time in question.  See
Robert v. Foose, 7 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 1999, no pet.);
Thomas v. Collins, 960 S.W.2d 106, 113 (Tex. App.—Houston [1st Dist.] 1997, pet.
denied).
           In this case, Aldrich’s summary judgment evidence consisted of excerpts from
his own affidavit and his deposition testimony.  During his deposition, Aldrich stated
that Assistant District Attorney, Maria Kohlkorst, informed him that on March 2,
1997, Gidvani was at Southpark Funeral Home in Brazoria County, demanding that
the body of his wife be cremated.  Aldrich testified Kohlkorst told him that Gidvani
and Nita had an arranged marriage, and that they had been married approximately a
month before his wife was found dead.  Aldrich also testified that Kohlkorst told him
that the couple was on their honeymoon in Acapulco, Mexico, and that the
honeymoon had been delayed until Gidvani could obtain a million dollar life
insurance policy on his wife.  He was also told that the couple arrived in Mexico on
Friday, and that Nita’s body was found dead in a three foot deep swimming pool,
attached to the couple’s hotel room, on Saturday morning.
          In his affidavit, Aldrich stated he:
felt the suspicious nature of the circumstances surrounding
[Nita’s] death warranted a criminal investigation of her
husband, Parvin Gidvani.  I believed the death may have
been caused in an attempt to commit insurance fraud based
on the facts that were explained to me.  I investigated the
facts and circumstances surrounding [Nita’s] death and
requested an autopsy of her remains in my sole capacity as
Criminal District Attorney of Brazoria County, Texas,
pursuant to the authority given me by the State of Texas.

          Based on this rendition of the facts, a reasonably prudent district attorney could
have believed Gidvani was committing a crime in his jurisdiction, thereby warranting
the request for an autopsy.  See Foose, 7 S.W.3d at 314 (holding official’s summary
judgment evidence sufficient to shift burden to plaintiff where offense report
described relevant facts which justified officer’s conduct); Collins, 960 S.W.2d at 113
(same).  Thus, we hold that Aldrich carried his summary judgment burden of showing
his actions were made in good faith.  See Foose, 7 S.W.3d at 314; Collins, 960
S.W.2d at 113.
          In order to defeat Aldrich’s summary judgment, Gidvani was required to file
summary judgment evidence to the effect that “no reasonable person in the
defendant’s position could have thought the facts were such that they justified
defendant’s acts.”  Kmiec, 902 S.W.2d 118, 121 (quoting Chambers, 883 S.W.2d at
657).  According to the Chambers court, “our good faith test sets an elevated standard
of proof for the non-movant seeking to defeat a claim of official immunity in response
to a motion for summary judgment.”  Chambers, 883 S.W.2d at 656.  
          Here, nothing in Gidvani’s summary judgment evidence addresses how a
reasonable district attorney would have acted differently than Aldrich  under the same
circumstances. See Kmiec, 902 S.W.2d 118, 121 (holding summary judgment proper
where plaintiff failed to submit evidence to rebut reasonableness of government
official’s conduct).
          Thus, we conclude that the uncontroverted summary judgment evidence
showed Aldrich acted in good faith when he (1) decided to investigate the allegations
against Gidvani, and (2) when he requested an autopsy on Nita’s body.  See Kmiec,
902 S.W.2d 118, 121.  Gidvani did not raise a fact issue as to Aldrich’s good faith. 
          We overrule Gidvani’s second issue.
          In light of our conclusion that summary judgment was proper based on the
affirmative defense of qualified immunity, it is unnecessary for us to reach the merits
of Gidvani’s remaining issues, and we decline to do so.

 




          We affirm the judgment.




                                                                        Margaret Garner Mirabal

                                                                        Justice

Panel consists of Justices Hedges, Jennings, and Mirabal.
 
 
 
