                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-16-00327-CV

                                 Maxine ADAMS and Cecil Adams,
                                          Appellants

                                                  v.

                                         Christopher PRINE,
                                               Appellee

                     From the 269th Judicial District Court, Harris County, Texas
                                   Trial Court No. 2014-35653-a
                               Honorable Dan Hinde, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 11, 2017

REVERSED AND REMANDED

           This is the second appeal this court has considered involving the Adamses’ claim against

Christopher Prine under 42 U.S.C. § 1983. In the first appeal, this court affirmed the portion of a

prior order granting Prine’s plea to the jurisdiction as to the Adamses’ section 1983 claim against

Prine in his official capacity. See Adams v. Harris Cty., No. 04-15-00287-CV, 2015 WL 8392426,

at *4 (Tex. App.—San Antonio Dec. 9, 2015, pet. denied) (mem. op.) (referred to herein as Adams

I). This court also dismissed the portion of the appeal challenging the portion of the prior order

granting Prine’s plea to the jurisdiction as to the Adamses’ section 1983 claim against Prine in his
                                                                                        04-16-00327-CV


individual capacity because we did not have jurisdiction to consider that portion of the

interlocutory order under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. Id.

The trial court subsequently signed a final judgment dismissing all of the Adamses’ claims against

Prine and then severed those claims into a separate cause number.

       In this appeal, the Adamses contend the trial court erred in dismissing their section 1983

claim against Prine in his individual capacity because: (1) a plea to the jurisdiction is not the proper

procedure for asserting the affirmative defense of quasi-judicial immunity; and (2) Prine was not

entitled to quasi-judicial immunity. The Adamses also contend the trial court erred in granting the

severance. Because we agree the trial court erred in granting the severance and that a plea to the

jurisdiction is not the proper procedure to raise the affirmative defense of quasi-judicial immunity,

we reverse: (1) the portion of the trial court’s final judgment dismissing the Adamses’ section 1983

claim against Prine in his individual capacity; and (2) the trial court’s order severing the Adamses’

claims against Prine into a separate cause. We remand the cause to the trial court for further

proceedings.

                                            BACKGROUND

       The following summary of the factual and procedural background is adopted from our prior

opinion in Adams I:

               This litigation arose as a result of a landlord-tenant dispute between the
       Adamses and Rebecca Ross. A lawsuit between them in the 269th Judicial District
       Court of Harris County, Texas, resulted in a judgment in favor of the Adamses.
       The Adamses recovered part of the judgment through a writ of garnishment, and
       Ross deposited the balance due on the judgment into the registry of the court. The
       Adamses appealed the judgment to the First Court of Appeals, and in August 2013,
       the court of appeals dismissed the appeal for want of prosecution. Adams v. Ross,
       No. 01–11–00552–CV, 2013 WL 4003757 (Tex. App.—Houston [1st Dist.] Aug.
       2, 2013, pet. denied) (per curiam, mem. op.). The judgment assessed all of the costs
       of the appeal against Maxine Adams and ordered the Clerk of the Court to issue a
       statement of costs with the mandate. The court of appeals’ mandate issued April 4,
       2014. The same day, Christopher A. Prine, Clerk of the First Court of Appeals,
       prepared and issued a bill of costs in Appeal No. 01–11–00552–CV. The bill of
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        costs indicated that a number of items, including fees for preparing parts of the
        appellate record, remained unpaid or that the status of payment was unknown.
                In June 2014, Harris County filed a petition in interpleader in the district
        court, alleging that the Harris County District Clerk is custodian of the funds
        Rebecca Ross previously deposited into the registry of the court. The petition
        alleged competing claims to the funds had been made by the Adamses, Ross, the
        Harris County District Clerk, the court reporter, and Prine, as Clerk of the First
        Court of Appeals. Prine disclaimed any interest in the interpleaded funds, and
        Harris County nonsuited him from the interpleader action. The Adamses
        subsequently filed a motion to dismiss the interpleader action, which the trial court
        denied by an order signed March 13, 2015.
                The Adamses also filed counter and cross claims against several parties,
        including an action under 42 U.S.C. § 1983 against Prine. The Adamses’ live
        pleading alleges that in the bill of costs, Prine “systematically over billed for each
        appellate record filed in the Court of Appeals, and charged fees for appellate
        records that the Harris County [sic] documented as no amount due” and that Prine
        and the Harris County District Clerk “falsified court records individually or
        collectively to deprive Adams of property without due process.” The Adamses
        assert that “Christopher Pine [sic] acting in his individual capacity as the Clerk of
        the 1st Court of Appeals in performing ministerial billing responsibilities”
        proximately caused them to be deprived of property without due process of law, in
        violation of their rights under the Fourteenth Amendment. The Adamses sought
        damages “from Christopher Prine individually for falsified billing entries resulting
        in costs not associated with [the] appeal and punitive damages.”
                Prine filed a plea to the jurisdiction based on the pleadings, asserting he has
        sovereign and quasi-judicial immunity from the Adamses’ suit and from liability
        for the damages claimed. The trial court granted Prine’s plea and signed an order
        dismissing the Adamses’ claims against Prine with prejudice.

Id. at *1-2.

        That order was then appealed to this court in Adams I. As previously noted, we affirmed

the portion of a prior order granting Prine’s plea to the jurisdiction as to the Adamses’ section 1983

claim against Prine in his official capacity. Id. at *4. We dismissed the portion of the appeal

challenging the portion of the trial court’s order granting Prine’s plea to the jurisdiction as to

Adamses’ section 1983 claim against Prine in his individual capacity because we did not have

jurisdiction to consider that portion of the interlocutory order under section 51.014(a)(8) of the

Texas Civil Practice and Remedies Code. Id.




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           After our decision in Adams I, the trial court signed a final judgment noting it previously

dismissed the Adamses’ claims against Prine in its order granting the plea to the jurisdiction and

again ordered all causes of action against Prine dismissed. 1 The trial court also signed an order

granting Prine’s motion to sever and severed the Adamses’ claims against Prine into a separate

cause. The Adamses appeal the final judgment and the severance order.

                                           QUASI-JUDICIAL IMMUNITY

           As we noted in Adams I, “Prine’s plea to the jurisdiction asserted the defense of quasi-

judicial immunity to the individual-capacity section 1983 claims.” Id. at *4. Because Prine did

not file any additional motions prior to the entry of the final judgment, the only pleading to support

the final judgment as to the individual-capacity claim is Prine’s plea to the jurisdiction.

           “Immunity from suit and immunity from liability are separate principles.” Baylor Coll. of

Med. v. Tate, 77 S.W.3d 467, 471 (Tex. App.—Houston [1st Dist.] 2002, no pet.). “Perhaps the

greatest difference between these types of immunities is their respective jurisdictional

ramifications.” Id.

           “Qualified immunity” and “quasi-judicial immunity” are interchangeable terms referring

to the same affirmative defense available to governmental employees sued in their individual

capacities. City of Hous. v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993) (per curiam); Methodist

Hosp. of Dall. v. Miller, 405 S.W.3d 101, 104 n.5 (Tex. App.—Dallas 2012, no pet.). Like other



1
    The final judgment states:
                    On this day the Court considered Prine’s Motion to Enter Final Judgment. It should be
           noted that the Court previously dismissed the Adams[es]’ claims against Prine on March 13, 2015.
           It should be further noted that the Court has granted [a] severance of the causes of action against
           Prine into this separate cause number. The Court finds that all matters between the Adamses and
           Christopher Prine have been dismissed.”
By order dated December 9, 2016, this court ordered the trial court clerk to file a supplemental clerk’s record
containing Prine’s motion to enter final judgment. On December 14, 2016, the trial court clerk filed a supplemental
clerk’s record stating no such document was found in the trial court’s case file.

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affirmative defenses to liability, quasi-judicial immunity is a form of immunity from liability

which must be pled and proven by the party asserting it. 2 Brown & Gay Eng’g, Inc. v. Olivares,

461 S.W.3d 117, 128 (Tex. 2015); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)

(per curiam). Because immunity from liability does not affect a trial court’s jurisdiction, it must

be asserted in a motion for summary judgment, not in a plea to the jurisdiction. See Jones, 8

S.W.3d at 638; Baylor Coll. of Med., 77 S.W.3d at 472; see also Martinez v. Val Verde Cty. Hosp.

Dist., 110 S.W.3d 480, 485 (Tex. App.—San Antonio 2003) (noting affirmative defense must be

raised in a motion for summary judgment not in a plea to the jurisdiction), aff’d, 140 S.W.3d 370

(Tex. 2004).

         In this case, Prine only asserted his quasi-judicial immunity defense in a plea to the

jurisdiction, not in a motion for summary judgment. 3 Because Prine did not use the appropriate

procedural vehicle for asserting his affirmative defense, we sustain the Adamses’ first issue and

reverse the portion of the trial court’s final judgment dismissing the Adamses’ section 1983 claim

against Prine in his individual capacity. 4 See Martinez, 110 S.W.3d at 486.




2
  Because this places the burden on the defendant asserting quasi-judicial immunity as an affirmative defense, this is
unlike the burden imposed on a plaintiff by a plea to the jurisdiction challenging pleadings which requires the plaintiff
to affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In Adams I, we noted Prine’s plea to the jurisdiction was “based on the
pleadings.” 2015 WL 8392426, at *2.
3
  Although the standard of review governing a plea to the jurisdiction challenging the existence of jurisdictional facts
“mirrors that of a summary judgment,” the party asserting the plea has the burden to “support[] with evidence that the
trial court lacks subject matter jurisdiction.” Miranda, 133 S.W.3d at 227-28. In this case, Prine did not attach any
evidence to his plea to the jurisdiction to meet that burden.
4
  In his brief, Prine contends the trial court could properly have granted his plea to the jurisdiction on the basis that
the Adamses did not allege they were injured or damaged by their receipt of the bill of costs because they never paid
it. However, the Adamses alleged they were injured because money is being retained in the trial court’s registry rather
than being paid to the Adamses based, in part, on the information contained in the bill of costs. This is a sufficient
assertion of the deprivation of a property interest to state a section 1983 claim. See 42 U.S.C. § 1983.

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                                               SEVERANCE

       The Adamses also assert the trial court erroneously granted Prine’s motion requesting a

severance. We agree.

       Rule 41 of the Texas Rules of Civil Procedure allows for any claim against a party to be

“severed and proceeded with separately.” TEX. R. CIV. P. 41. Rule 41 gives the trial court broad

discretion to sever claims, and a trial court’s order granting a severance will not be reversed absent

an abuse of discretion. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658

(Tex. 1990). A trial court abuses its discretion if it acts contrary to guiding rules and principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The guiding rule

with regard to severance is that “[a] claim is properly severable if (1) the controversy involves

more than one cause of action, (2) the severed claim is one that would be the proper subject of a

lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining

action that they involve the same facts and issues.” Guar. Fed. Sav. Bank, 793 S.W.2d at 658.

       In this case, the Adamses assert the trial court erred in severing the claims against Prine

because those claims are interwoven with the issue of who is entitled to receive the proceeds in

the trial court’s registry. Prine does not counter the Adamses’ assertion. Instead, Prine contends

the severance was proper because he presented a meritorious plea to the jurisdiction establishing

the trial court lacked subject-matter jurisdiction over the Adamses’ claim against Prine in his

individual capacity.

       In the underlying cause, Harris County, Texas interpled funds into the trial court’s registry

seeking to determine who is entitled to receive those funds. Because the resolution of the

Adamses’ claim against Prine in his individual capacity could affect which party is entitled to

receive the funds, we hold the claim is interwoven with the remaining action. Accordingly, the

trial court erred in granting the severance.
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                                           CONCLUSION

       The portion of the trial court’s final judgment dismissing the Adamses’ section 1983 claim

against Prine in his individual capacity and the trial court’s order severing the Adamses’ claims

against Prine into a separate cause are reversed. The cause is remanded to the trial court for further

proceedings.

                                                   Luz Elena D. Chapa, Justice




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