IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No 00-40504
_______________
FREDA SUSAN MOWBRAY, ALSO KNOWN AS SUSIE MOWBRAY,
Plaintiff-Appellant,
VERSUS
CAMERON COUNTY, TEXAS; BENJAMIN EURESTI, JUDGE; EDMUND CYGANIEWICZ;
LUIS V. SAENZ; MENTFORD HESSKEW, “DUSTY”; GEORGE GAVITO; STEVE ROBERT-
SON; ESTELLA MAURICIO; JEAN MOWBRAY; JAMES MOWBRAY;
MARGO MOWBRAY; AND KRISTEN MOWBRAY,
Defendants-Appellees.
*******************************
_______________
No 00-41229
_______________
FREDA SUSAN MOWBRAY, ALSO KNOWN AS SUSIE MOWBRAY,
Plaintiff-Appellee,
VERSUS
TEXAS CAMERON COUNTY; ET AL,
Defendants,
GEORGE GAVITO,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
December 6, 2001
Before JONES, SMITH, and DEMOSS, band’s heirs to regain the proceeds from his
Circuit Judges. life insurance policy. The district court dis-
missed all of Mowbray’s claims but one,
JERRY E. SMITH, Circuit Judge: against Officer George Gavito.
After Fredda “Susan” Mowbray (“Mow- Mowbray appeals several FED. R. CIV. P.
bray”) had served nine years in prison for her 12(b)(6) dismissals and a summary judgment
husband’s murder, her conviction was set based on prosecutorial immunity, absolute
aside, whereupon, under 42 U.S.C. § 1983 and witness immunity, and qualified immunity, and
state law, she sued the county that had jailed a dismissal based on res judicata. Gavito
her and the three prosecutors, three police of- appeals a denial of summary judgment based
ficers, and the county lab technician who had on qualified immunity. We affirm the dismis-
participated in her trial; she also sued her hus- sals and summary judgment that Mowbray
2
challenges, but we reverse the denial of sum- ty (“DPS”), met with police officer Mentford
mary judgment to Gavito and render judgment “Dusky” Hesskew to discuss the theory that
for him. Mowbray had killed her husband. Hesskew
was principally employed by the Austin Police
I. Department but also taught classes at the DPS
One night in September 1987, Mowbray Academy on high impact spatter. Hesskew
was lying in bed with her husband, Bill Mow- performed a luminol test on the nightgown
bray, when he was shot. Mowbray claimed Mowbray wore that night to detect the pres-
that her husband had committed suicide; at ence of blood. Because luminol reacts to
least twice before, he had attempted suicide, substances other than blood, luminol tests are
once by shooting himself. Bill Mowbray’s car only presumptive in nature.
dealership was on the brink of failure, and
apparently he had vowed to kill himself rather On November 3, 1987, Robertson and
than face jail for tax evasion or commercial Hesskew met with prosecutors Benjamin Eu-
fraud. resti and Edmund Cyganiewicz and reported
that the nightgown had tested positive for
Estelle Mauricio, a reserve deputy sheriff, blood. On November 9, Robertson conducted
was the first to arrive at the residence after the two confirmatory blood tests on the night-
shooting. She testified that she found the de- gown, both of which were negative. At the
ceased still alive, shot through the head, and habeas corpus proceedings, he explained that
lying on his left side with the bed covers pulled the negative results could have resulted from
up to his shoulder. The bullet had entered the the excessive testing the nightgown had al-
right side of his head, exited the left, and ready undergone. The tests for the gunshot
wounded his left hand, which was under his residue could have destroyed the protein in the
head with a pillow between his head and left blood, and the chemicals sprayed to detect
hand. His right hand was lying across his chest lead residue could have diffused or dissolved
under the bed covers. No blood or brain mat- the red stains. Robertson never reported these
ter was on his right hand, and Mauricio never negative results to the district attorneys, Hess-
saw his hand being washed at home or in the kew, or Mowbray’s defense counsel.
hospital. Lieutenant George Gavito of the
Cameron County Sheriff’s Department also The prosecution asked Herbert MacDon-
was present at the scene. nell, an expert on blood spatter, to examine
Mowbray’s nightgown. On November 18,
Dr. Dahm, who conducted the autopsy, MacDonnell told Euresti and Cyganiewicz that
stated that if the deceased had shot himself, he had found no indication of blood stains or
there would have been blood and brain matter high velocity impact spatter of the sort that
covering his right hand, fingers, and forearm. would have been present had Mowbray shot
Finding no blood, Dahm concluded that the her husband while wearing a nightgown. He
death was a murder. concluded that if Mowbray had shot her hus-
band, she was not wearing a nightgown at the
Mowbray was considered a suspect. In ear- time.
ly October 1987, Steve Robertson, a lab tech-
nician at the Texas Department of Public Safe- Cyganiewicz, Euresti, Gavito, Mauricio,
3
and assistant district attorney Luis Saenz pre- Questions of fact are viewed in the light most
pared a “mock-up” of the shooting scene. The favorable to the plaintiff; questions of law are
mock-up did not alter MacDonnell’s conclu- reviewed de novo. Green v. State Bar of Tex.,
sions that he had listed in his report. On De- 27 F.3d 1083, 1086 (5th Cir. 1994).
cember 2, 1987, MacDonnell discussed his re-
port with Gavito and stated that he thought Mowbray argues that the district court
Mowbray had shot her husband while she was erred in extending absolute immunity to Eures-
naked. The only record of MacDonnell’s ti, Cyganiewicz, and Saenz, whom she accuses
statement comes from Gavito’s deposition tes- of “shopping for experts,” “laboring to sell
timony. MacDonnell’s report was made avail- these experts on their theory,” and “rejecting
able to Mowbray’s defense counsel ten days to the leading authority in the field . . . and in-
two weeks before trial. stead selecting an expert who perpetrated junk
science.” Mowbray also complains that the
On December 4, 1987, Mowbray was in- prosecutors did not turn over exculpatory evi-
dicted for murder. At trial, the prosecution of- dence to the defense until ten days before trial.
fered Hesskew’s and Robertson’s testimony
that blood was found on the nightgown; nei- Under § 1983, prosecutors are entitled to
ther side called MacDonnell. Mowbray was absolute immunity for acts performed as ad-
convicted and sentenced to life imprisonment. vocates of the state. Imbler v. Pachtman, 424
After her petition for writ of habeas corpus U.S. 409, 430-31 & n.33 (1976). For “acts of
was granted and the conviction was set aside, investigation or ‘administration,’” prosecutors
see Ex Parte Mowbray, 943 S.W.2d 461 (Tex. are entitled to only qualified immunity. Buck-
Crim. App. 1996), she was acquitted at a ley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
second trial. Absolute immunity extends to a prosecutor’s
actions “‘preliminary to the initiation of a pro-
II. secution and . . . apart from the courtroom.’”
Mowbray sued Cameron County, three pro- Id. at 272 (quoting Imbler, 424 U.S. at 431
secutors, three police officers, and a county lab n.33). This includes a prosecutor’s decision
technician, alleging conspiracy to violate her on “which witnesses to call and what other
civil rights, false imprisonment, malicious pro- evidence to present,” Imbler, 424 U.S. at 431
secution, abuse of process, slander, and inten- n.33, and “an out-of-court ‘effort to control
tional infliction of emotional distress. She also the presentation of [a] witness’ testimony,’”
sued Jeanne, James, and Margo Mowbray to Buckley, 509 U.S. at 272-73 (quoting Imbler,
regain the proceeds of her husband’s life in- 424 U.S. at 430 n.32) (alteration in original).
surance policy.
All the acts Mowbray lists involve the pro-
III. secutors’ choosing expert witnesses, preparing
We review a rule 12(b)(6)1 dismissal de those witnesses for trial, and performing the
novo, accepting all well-pleaded facts as true. state’s trial duties. Because these acts fall un-
der the protection of absolute immunity, the
district court did not err in dismissing suit as to
1
Rule 12(b)(6) authorizes a court to dismiss a them.
complaint for “failure to state a claim upon which
relief can be granted.” FED. R. CIV. P. 12(b)(6).
4
IV. reaching a contrary conclusion.3
Although Mowbray argues that the court
erred in failing to address her slander claim un- We find the reasoning of the majority of cir-
der § 1983, she has not alleged facts sufficient cuits persuasive. As a matter of logic, “[a] per-
to state a claim. She asserts that after meeting son may not be prosecuted for conspiring to
with MacDonnell, Euresti opined that “he was commit an act that he may perform with impu-
now confident that he could get an indict- nity.” House, 956 F.2d at 720. Hesskew and
ment.” Mowbray never avers that this com- Robertson cannot be liable under § 1983 for
ment (or any other) deprived her of a con- conspiracy to commit perjury where § 1983
stitutional or other federal right; she states on- grants them absolute immunity for that act.4
ly that she “was publicly humiliated and sub-
jected to scorn and ridicule during the investi- Moreover, allowing such conspiracy suits
gative phase of the prosecution” and that she would permit most §1983 perjury suits to be
was “put through an emotionally damaging restyled as § 1983 claims for conspiracy to
trial.” Such allegations do not state a claim commit perjury, because “a witness rarely pre-
under § 1983. pares her testimony on her own.” Franklin,
201 F.3d at 1101-02. Accordingly, we con-
V. clude that absolute witness immunity bars
Mowbray contends that the court erred in § 1983 suits for conspiracy to commit perjury.
dismissing her § 1983 claims against Hesskew
and Robertson for conspiracy to commit per- Mowbray’s second claim, that Hesskew and
jury and violation of a duty under Brady v. Robertson violated their duties under Brady
Maryland, 373 U.S. 83 (1963), to disclose ex- when they failed to furnish exculpatory Brady
culpatory evidence. Although witnesses are
entitled to absolute immunity against § 1983
suits based on their testimony in a criminal 2
(...continued)
trial, Briscoe v. LaHue, 460 U.S. 325, 329-31 Alioto v. City of Shively, 835 F.2d 1173, 1174 (6th
(1983), it is less certain whether the rule of Cir. 1987).
Briscoe extends to claims that a witness en-
tered a pre-trial conspiracy to commit perjury. 3
San Filippo v. U.S. Trust Co., 737 F.2d 246,
254-55 (2d Cir. 1984).
Of the eight circuits that have addressed the
4
issue, seven have extended absolute witness Cf. Hale v. Townley, 45 F.3d 914, 920-21
immunity.2 The Second Circuit stands alone in (5th Cir. 1995) (finding that where each state ac-
tion alleged to have harmed the plaintiff is pro-
tected by qualified immunity, there can be no
§ 1983 suit for conspiracy to violate plaintiff’s
2
Franklin v. Terr, 201 F.3d 1098, 1101-03 constitutional rights); Holloway v Walker, 765
(9th Cir. 2000); Jones v. Cannon, 174 F.3d 1271, F.2d 517, 522 (5th Cir. 1985) (“It is a well estab-
1288-89 (11th Cir. 1999); Watterson v. Page, 987 lished rule that where a judge's absolute immunity
F.2d 1, 9 (1st Cir. 1993); Snelling v. Westhoff, 972 would protect him from liability for the perfor-
F.2d 199, 200 (8th Cir. 1992); House v. Belford, mance of particular acts, mere allegations that he
956 F.2d 711, 720-21 (7th Cir. 1992); Miller v. performed those acts pursuant to a bribe or con-
Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991); spiracy will not be sufficient to avoid the immu-
(continued...) nity.”).
5
material to Mowbray’s defense counsel, is Saenz, Hesskew, Gavito, Robertson, and
without merit. Brady imposes a duty on MauricioSSprosecutors, lower level police
prosecutors to share exculpatory evidence officers, and a lab technician.
with the defense. Mowbray cites, and our re-
search reveals, no case extending Brady to The sheriff is the county’s final policymaker
police officers or lab technicians.5 Accord- in this context. Id. at 136. The district attor-
ingly, Mowbray has failed to allege an action- ney, “when acting in the prosecutorial capacity
able claim against Hesskew or Robertson. [or] instituting criminal proceedings to enforce
state law,” is not. Esteves v. Brock, 106 F.3d
VI. 674, 678 (5th Cir. 1997). Mowbray has al-
Mowbray argues that the district court leged no constitutional deprivation against the
erred in dismissing her § 1983 claim against county sheriff, and her allegations against the
James Mowbray for conspiracy to violate her prosecutors involve only actions as state
civil rights. While it is possible, in limited cir- officers; accordingly, the district court did not
cumstances, to allege a § 1983 conspiracy err in dismissing her Turner claim.
against a private actor, Brummett v. Camble,
946 F.2d 1178, 1184-85 (5th Cir. 1991), Mowbray also argues that the county is lia-
Mowbray fails to do so. Her complaint con- ble for the unconstitutional acts of its officers
sists almost entirely of conclusional allega- because it failed to train them on their Brady
tions. The only facts she provides are that duties. See City of Canton v. Harris, 489 U.S.
James Mowbray met with the police, answered 378 (1989). Because Euresti, Cyganiewicz,
their questions, and took an interest in the and Saenz are state officers, the county cannot
investigation of his brother’s death; these do be liable for a failure to train them. For Hess-
not state a claim under § 1983. kew, Gavito, Robertson, and Mauricio, Mow-
bray fails to allege a constitutional deprivation
VII. and thus fails to state a claim under § 1983.
Mowbray challenges the dismissal of her As discussed supra, neither police officers nor
§ 1983 claims against Cameron County. She lab technicians have a Brady duty to disclose
first argues that the county is liable for the un- exculpatory information.
constitutional acts of its final policymakers.
Although Turner v. Upton County, 915 F.2d VIII.
133 (5th Cir. 1990), does allow such suits, We review a grant or denial of summary
Mowbray has alleged constitutional depriva- judgment de novo, NCNB Tex. Nat’l Bank v.
tions only against Euresti, Cyganiewicz, Johnson, 11 F.3d 1260, 1264 (5th Cir. 1994),
applying the same standard as did the district
court, Deas v. River W., L.P., 152 F.3d 471,
5 475 (5th Cir. 1998). “Summary judgment is
Mowbray does not allege, nor do the facts
support a finding, that Hesskew and Robertson
proper when no issue of material fact exists
elicited false evidence and deliberately concealed and the moving party is entitled to judgment as
exculpatory evidence from all parties, including the a matter of law. Questions of fact are viewed
prosecution. Cf. Geter v. Fortenberry, 849 F.2d in the light most favorable to the nonmovant
1550, 1558 (5th Cir. 1988) (concluding such and questions of law are reviewed de novo.”
allegations defeat a police officer’s qualified Id.
immunity under § 1983).
6
Mowbray argues that the court erred in official’s conduct was objectively reasonable in
granting summary judgment for Mauricio on light of clearly established law, to a given . .
the § 1983 claims that Mauricio fabricated trial . set of facts.” Id. (citing Johnson v. Jones,
testimony and failed to disclose exculpatory 515 U.S. 304 (1995)).
evidence. Absolute witness immunity insulates
Mauricio from the § 1983 perjury claim, so the Mowbray and Gavito rely on the same rec-
district court was correct to dismiss it under ord in their briefs; the only dispute is whether
rule 12(b)(6). Briscoe, 460 U.S. at 329-31. the district court correctly applied the law of
qualified immunity to these facts. We thus
For the failure to disclose claim, Mowbray conclude we have jurisdiction to hear this
provides only conclusional allegations. Her appeal.
brief concedes that there is no factual basis for
her claim and that she has only suspicion that B.
Mauricio knew of exculpatory evidence. Mau- Mowbray alleges a § 1983 claim for con-
ricio, on the other hand, submitted an affidavit spiracy to violate her civil rights, based on
attesting that she knew of no exculpatory evi- (1) failure to disclose exculpatory evidence to
dence. Consequently, the court did not err in Mowbray’s defense counsel; (2) manufacture
granting summary judgment for Mauricio.6 of false evidence; and (3) suppression of evi-
dence. Before we can reach the § 1983 con-
IX. spiracy claim, we must determine whether
A. qualified immunity applies to each state claim.
Gavito contends that the court erred in de- Hale v. Townley, 45 F.3d 914, 920-21 (5th
nying his motion for summary judgment on Cir. 1995). If all three acts fall under qualified
qualified immunity grounds. As an initial mat- immunity, there can be no § 1983 conspiracy
ter, we must verify our jurisdiction over this claim. Id.
appeal. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). As a police officer, Gavito enjoys qualified
immunity for his official acts. Harlow v. Fitz-
“[D]istrict court orders denying summary gerald, 457 U.S. 800, 818 (1982). To over-
judgment on the basis of qualified immunity come qualified immunity, Mowbray must show
are immediately appealable under the collateral Gavito (1) violated a constitutional right that
order doctrine, when based on an issue of (2) was clearly established at the time of the
law.” Cantu v. Rocha, 77 F.3d 795, 802 (5th violation (3) through conduct that was ob-
Cir. 1996). Orders “are based on an issue of jectively unreasonable. Kipps v. Caillier, 197
law when they concern only application of es- F.3d 765, 768 (5th Cir. 1999), cert. denied,
tablished legal principles, such as whether an 121 S. Ct. 52 (2000).
Mowbray claims that Gavito had a Brady
6
Further, as discussed supra, police officers duty to tell defense counsel about his lunch
have no duty under Brady to disclose exculpatory meeting with MacDonnell at which Mac-
evidence to defense counsel. Even had Mowbray Donnell stated he believed Mowbray had shot
alleged facts showing that Mauricio withheld evi- her husband while not wearing a nightgown.
dence, Mowbray’s claim would fail as matter of As we have said, even if MacDonnell’s state-
law.
7
ment were exculpatory, police officers have no S.W.2d 650, 653 (Tex. 1994). The defendant
constitutional duty under Brady to disclose claiming official immunity bears the burden of
exculpatory evidence to defense counsel. For proving all elements of the defense. Id. Under
her assertion that Gavito manufactured false Texas law, an officer’s investigation of a
evidence and suppressed evidence, Mowbray crime, Wyse v. Dep’t of Pub. Safety, 733
provides only conclusional allegations. S.W.2d 224, 227 (Tex. App.SSWaco 1986,
writ ref’d n.r.e.), and arrest of a suspect, Dent
Even under a generous reading of Mow- v. City of Dallas, 729 S.W.2d 114, 117 (Tex.
bray’s complaint and brief, the only possible App.SSDallas 1986, writ ref’d n.r.e.), are con-
factual basis she alleges is that Gavito partici- sidered discretionary duties within police au-
pated in a “mock-up” of the crime scene and thority. Gavito thus satisfies the first and third
arrested her pursuant to a warrant. But Mow- criteria for official immunity.
bray provides no evidence that Gavito acted
improperly in the mock-up or that there were Texas law judges an officer’s good faith
any constitutional defects in her arrest. She under the same test federal courts employ for
has not shown Gavito violated any constitu- qualified immunity determinations under
tional right, much less one clearly established § 1983. City of Lancaster, 883 S.W.2d at
at the time of her prosecution. Therefore, 656. Texas courts “look to whether a reason-
Gavito is entitled to qualified immunity for his able official could have believed his or her
actions, and the § 1983 conspiracy claim based conduct to be lawful in light of clearly estab-
on them must fail. lished law and the information possessed by
the official at the time the conduct occurred.”
Mowbray also lists a host of state law Id. (internal quotation marks and citations
claims for abuse of process, malicious prose- omitted). Like qualified immunity, official im-
cution, false imprisonment, and intentional munity “protects all but the plainly incompe-
infliction of emotional distress. The state law tent or those who knowingly violate the law.”
claims, like her § 1983 claim, consist mainly of Id. (internal quotation marks and citations
conclusional allegations.7 Mowbray complains omitted).
that Gavito investigated the crime, participated
in a mock-up of the crime scene, arrested her, As we have stated, there is no evidence that
and failed to disclose exculpatory evidence to Gavito did anything illegal in investigating the
her defense counsel. crime, participating in the mock-up, arresting
Mowbray, or failing to disclose MacDonnell’s
Police officers are entitled to official immu- statements to defense counsel. Gavito’s ac-
nity from suits arising out of performance of tions thus are immune from state suit because
(1) discretionary duties (2) in good faith as of official immunity. Because all of Mow-
long as they are (3) acting within their author- bray’s claims against Gavito fail as a matter of
ity. City of Lancaster v. Chambers, 883 law, the district court erred in denying Gavito
summary judgment.
7
Because the state law claims arise out of the X.
same set of operative facts as do the federal claims, After Mowbray was convicted, the pro-
we have supplemental jurisdiction to hear them. 28 ceeds from her husband’s life insurance policy
U.S.C. § 1367.
8
were divested from her and awarded to the grounds . . . in the interest of judicial economy
deceased’s mother. Mowbray v. Metro. Life where both actions were brought before the
Ins. Co., Civ. Ac. No. B-88-107 (S.D. Tex. same court.” Boone v. Kurtz, 617 F.2d 435.
Apr. 24, 1991). Two years after her con- 436 (5th Cir. 1980); accord United Home
viction was set aside, Mowbray filed a motion Rentals, Inc. v. Tex. Real Estate Comm’n, 716
in federal court requesting that the 1991 judg- F.2d 324, 330 (5th Cir. 1983). Both actions
ment be vacated, that Jeanne Mowbray repay were brought in the same federal district court.
her the life insurance money, and that the court Further, like the judgments in Boone, the ac-
“impose a constructive trust in said moneys so tions are “almost identical,” differing only in
received.” The court set aside the 1991 judg- the defendants’ names. The parties do not dis-
ment but denied “all further relief prayed for.” pute the facts, so remanding would add noth-
Mowbray v. Metro. Life Ins. Co., Civ. Ac. No. ing to the record and would only consume
B-88-107 (S.D. Tex. May 24, 1999). judicial resources.
Mowbray did not appeal the denial of her The second exception holds that “where all
constructive trust claim. In 1999, she filed her of the relevant facts are contained in the re-
first amended complaint in the instant case, su- cord before us and all are uncontroverted, we
ing James and Margo Mowbray, Jeanne Mow- may not ignore their legal effect, nor may we
bray’s heirs, to impose a constructive trust on decline to consider the application of control-
the insurance proceeds. The defendants ling rules of law to dispositive facts, simply be-
moved to dismiss based on res judicata. The cause neither party has seen fit to invite our at-
court denied the motion because there was no tention by technically correct and exact plead-
certified copy of the judgment in the record. ings.” Am. Furniture Co. v. Int’l Accom-
Defendants filed a second motion to dismiss, modations Supply, 721 F.2d 478, 482 (5th Cir.
omitting mention of res judicata because the Unit A Mar. 1981). Here the facts are uncon-
district court had stated it would not consider tested and the legal outcome unambiguous.
such a motion. The court granted the motion, Reversal would not lead to a different out-
raising the issue of res judicata sua sponte. come.
We review a dismissal based on res judicata Additionally, the usual concerns preventing
de novo. Recoveredge L.P. v. Pentecost, 44 a court from raising res judicata sua sponte do
F.3d 1284, 1290 (5th Cir. 1995). We apply not apply. Mowbray “can claim no surprise or
federal law to determine the preclusive effect prejudice.” Id. She certainly had notice of the
of a federal judgment, even if that judgment prior judgment; she had litigated it just a few
was based on state law. Id. months earlier. Nor has she been denied “‘the
chance to argue . . . why the imposition of an
A. estoppel would be inappropriate.’” Id. (quot-
Generally, res judicata is an affirmative de- ing Blonder-Tongue Labs. v. Univ. Found.,
fense that must be pleaded, not raised sua 402 U.S. 313, 350 (1971)). James and Margo
sponte. FED. R. CIV. P. 8(c). We recognize Mowbray had filed an earlier motion to dismiss
two limited exceptions to this rule; both apply based on res judicata, which Mowbray had
here. The first exception allows “[d]ismissal ample opportunity to answer.
by the court sua sponte on res judicata
9
B.
Thus concluding that the district court did
not err in raising the issue, we address it on the
merits. In American Furniture, we set forth
the requirements for a res judicata defense:
“(1) that the prior judgment must have
been rendered by a court of competent
jurisdiction; (2) that there must have
been a final judgment on the merits;
(3) that the parties, or those in privity
with them, must be identical in both
suits; and (4) that the same cause of
action must be involved in both suits.”
Id. (quoting Stevenson v. Int’l Paper Co., 516
F.2d 103, 108-09 (5th Cir. 1975)).
It is indisputable that all four requirements
are satisfied. The 1999 judgment decided the
issue, so the district court did not err in dis-
missing the claim.
In summary, the dismissals and summary
judgment entered against Mowbray are
AFFIRMED, and the denial of summary
judgment in favor of Gavito is REVERSED,
and judgment is RENDERED for him. All
outstanding motions are denied.
10