REVERSE and RENDER; and Opinion Filed November 16, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00181-CV

CITY OF RICHARDSON, TEXAS, NAZARY MASOOD, RICHELLE ESQUIVEL, AND
                     ERIC WILLADSEN, Appellants
                                V.
                       JOHN CANNON, Appellee

                       On Appeal from the 101st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-17-01074

                              MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                  Opinion by Justice Boatright
       Appellee John Cannon, the plaintiff in the suit below, alleges that he was wrongfully

imprisoned by the City of Richardson and three of the City’s employees, Nazary Masood, Richelle

Esquivel, and Eric Willadsen. The defendants filed a plea to the jurisdiction, which the district

court denied. They appeal the court’s denial of their plea. We reverse and render.

                                        BACKGROUND

       Cannon filed this suit pro se on January 27, 2017. He claims that officers and an

investigator of the Richardson Police Department, the individual defendants, unlawfully detained

and arrested him in violation of his constitutional rights. He charges that the defendants violated

police procedures and acted carelessly, in bad faith, and with a retaliatory motive. His original and
first amended petitions sought damages, fees, and costs for the harms that he suffered from the

defendants’ alleged wrongs.

          On June 28, 2017, the defendants filed (i) their original answer, special exceptions, request

for disclosure, and plea to the jurisdiction, and (ii) a motion to dismiss Cannon’s suit pursuant to

Rule 91a of the Texas Rules of Civil Procedure. The defendants’ plea urged that governmental and

official immunity barred Cannon’s suit. The district court set the plea for a hearing on August 28,

2017. On the day of the hearing, the defendants filed an emergency motion to reset, stating that

Cannon had threatened to physically harm their counsel. The defendants did not appear at the

hearing, and the court signed an order that same day denying the plea based on their failure to

appear.

          On September 14, 2017, the defendants filed an amended plea to the jurisdiction. This plea

again asserted governmental immunity. The court held a hearing on the plea eleven days later, on

September 25, and signed an order that same day granting the plea in part and denying it in part.

The order gave Cannon thirty days “to amend his petition clearly specifying how the City of

Richardson has waived immunity.”

          On October 24, one day before the court-ordered deadline, Cannon filed a “Response to

Defendant’s Motion to Dismiss Regarding Jurisdiction and Governmental Immunity.” Cannon’s

response claims that he was wrongfully imprisoned based on the defendants’ “false fictitious

fraudulent charges.” The parties dispute the nature of Cannon’s October 24 filing. The defendants

construe the filing as Cannon’s second amended petition. They contend that it alleges only two

causes of action, fraud and wrongful imprisonment, both of which are barred by governmental

immunity. Cannon responds that the filing was a supplemental, not an amended, pleading that

explained in more detail the allegations in his first amended petition. For purposes of this appeal,

we will assume that Cannon’s October 24 filing was a supplemental petition.

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       The defendants filed a second amended plea to the jurisdiction, in which they again urged

that Cannon’s claims are barred by governmental immunity. Following a hearing on this plea, the

court on January 30, 2018, signed an order denying the plea. The defendants then filed this

interlocutory appeal.

                                           ANALYSIS

       A municipality is immune from suit for torts committed in the performance of its

governmental functions. Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). In addition, an

employee sued in his official capacity has the same governmental immunity, derivatively, as his

government employer, except for actions alleging that the employee acted ultra vires. Franka v.

Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011).

       Chapter 101 of the Civil Practice and Remedies Code, also known as the Texas Tort Claims

Act (TTCA), TEX. CIV. PRAC. & REM. CODE ANN. § 101.002, provides a limited waiver of

immunity for certain suits against governmental entities. Mission Consol. Indep. Sch. Dist. v.

Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a)

(providing waiver of immunity from suit “to the extent of liability created by this chapter”). The

Act waives immunity in three areas: “‘use of publicly owned automobiles, premises defects, and

injuries arising out of conditions or use of property.’” Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225 (Tex. 2004) (quoting Cty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.

2002), and citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.021).

       The defendants contend that Cannon’s claims are excluded from the TTCA’s waiver of

immunity. Specifically, the Act’s waiver does not apply to intentional torts, including fraud and

false imprisonment. See LTTS Charter School, Inc. v. Palasota, 362 S.W.3d 202, 209 (Tex. App.—

Dallas 2012, no pet.) (“Fraud is an ‘intentional tort’ for which the TTCA provides no waiver of




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immunity.”); TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (stating that TTCA does not apply

to claims arising out of “false imprisonment, or any other intentional tort”).

       Cannon responds that the defendants refused to provide him the discovery that he

requested. We agree that a party is entitled to a “reasonable opportunity for targeted discovery if

necessary to illuminate jurisdictional facts in a plea to the jurisdiction.” Hearts Bluff Game Ranch,

Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012) (citation and internal quotation marks omitted).

However, the record in this case does not contain Cannon’s discovery requests, nor does he specify

the information sought by these requests. Moreover, the record contains no motion to compel the

requested discovery. A party may apply for sanctions or an order compelling discovery if the other

party fails to respond to discovery requests. TEX. R. CIV. P. 215.1(b). The Texas Supreme Court

has held that a failure to obtain a pretrial ruling on discovery disputes that exist before trial

constitutes a waiver of any claim for sanctions based on such conduct. Remington Arms Co. v.

Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (orig. proceeding). And pro se litigants “must comply

with the applicable procedural rules, or else they would be given an unfair advantage over litigants

represented by counsel.” Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).

Under this circumstance, we conclude that Cannon waived his complaint regarding the defendants’

purported refusal to provide discovery.

       Cannon also urges that the defendants are not immune from his claims, notwithstanding

the TTCA, because he asserted ultra vires claims and he sued the individual defendants in their

personal capacities. In reviewing these contentions, we must determine if Cannon alleged facts

that affirmatively demonstrate the court’s jurisdiction to hear his case. Miranda, 133 S.W.3d at

226. We construe the pleadings liberally in Cannon’s favor and look to his intent. Id. If a plaintiff’s

factual allegations do not affirmatively demonstrate jurisdiction but also do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the

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plaintiff should be afforded the opportunity to amend. Id. at 226–27. On the other hand, if the

plaintiff’s pleadings affirmatively negate jurisdiction, then the defendants’ plea may be granted

without allowing the plaintiff an opportunity to amend. Id. at 227. We review the trial court’s

ruling on the plea de novo. Id. at 228. With these standards in mind, we consider Cannon’s

arguments.

Ultra Vires

       “Even if a governmental entity’s immunity has not been waived by the Legislature, a claim

may be brought against a governmental official if the official engages in ultra vires conduct,” City

of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018), meaning “that

the officer acted without legal authority or failed to perform a purely ministerial act,” City of El

Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Ministerial acts are those prescribed by law

which leave nothing to the exercise of discretion or judgment, whereas discretionary acts are those

that “require the exercise of judgment and personal deliberation.” Houston Mun. Emps. Pension

Sys., 549 S.W.3d at 576 (citation and internal quotation marks omitted). If the law places limits on

an officer’s discretion, governmental immunity does not bar suits complaining of the officer’s

exercise of judgment “without reference to or in conflict with the constraints of the law”

authorizing the officer to act. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d

154, 163 (Tex. 2016).

       Cannon’s first amended petition alleges that the defendants violated his rights under the

Fourth and Fourteenth Amendments of the United States Constitution, article I, section 9 of the

Texas Constitution, and articles 1.06, 18.01–.02, and 38.23 of the Texas Code of Criminal

Procedure, by detaining him without reasonable suspicion and arresting him without probable

cause. He alleges that these violations resulted in harms including wrongful detention, wrongful

arrest, wrongful imprisonment, wrongful seizures, forfeiture, defamation of character, loss of

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business or income, loss of personal or business relations, loss of property, and loss of freedom or

“peaceful enjoyment.” Cannon’s October 24 filing additionally alleges that his wrongful

imprisonment resulted from “fictitious fraudulent charges.” Assuming that these allegations assert

conduct beyond the scope of the defendants’ discretion, the defendants’ immunity remains intact

because Cannon seeks retrospective money damages, as opposed to prospective injunctive relief.

Houston Mun. Emps. Pension Sys., 549 S.W.3d at 576. Specifically, where, as here, “the injury

has already occurred and the only plausible remedy is monetary damages, an ultra vires claim will

not lie.” Id.

        The foregoing prohibition against retrospective monetary claims is not absolute. Heinrich,

284 S.W.3d at 376. “For example, a claimant who successfully proves a takings claim would be

entitled to compensation, and the claim would not be barred by immunity even though the

judgment would require the government to pay money for property previously taken.” Id. Cannon

contends that he asserted such a claim here. His October 24 filing alleges that the defendants’

actions resulted in the wrongful taking of his property. He also cites the Fifth Amendment of the

United States Constitution and article I, section 17 of the Texas Constitution. Assuming that

Cannon alleged an inverse condemnation claim, we nevertheless conclude that his pleadings

affirmatively negate the existence of such a claim. To prove a takings claim, a plaintiff must

establish, among other elements, an intentional act by the government under its lawful authority.

Kaufman Cty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied).

“[I]ntentional acts that are outside the authority of the state may be torts, but they are not takings.”

Firemen’s Ins. Co. of Newark, N.J. v. Bd. of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 543–

44 (Tex. App.—Austin 1995, writ denied), disapproved on other grounds by Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Cannon’s allegations that the defendants acted

fraudulently, in “bad faith,” and with a retaliatory motive affirmatively negate the existence of a

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takings claim. See Hammons v. City of Krugerville, No. 2-04-353-CV, 2005 WL 2838602, at *3

(Tex. App.—Fort Worth 2005, pet. denied) (mem. op.) (concluding that allegation peace officer

employed by city illegally removed plaintiff’s property affirmatively negated plaintiff’s inverse

condemnation claim); Firemen’s Ins. Co., 909 S.W.2d at 544 (“The allegation of fraudulent

inducement pleads a tort, not a taking.”). Absent a valid takings claim, the defendants retain their

immunity from suit. Combs, 393 S.W.3d at 345.

           For each of these reasons, the ultra vires doctrine does not apply here, and the individual

defendants’ immunity from suit has not been waived. Moreover, even if the doctrine were to apply,

the City itself would remain immune from suit. Heinrich, 284 S.W.3d at 372–73. Suits

complaining of ultra vires actions may not be brought against a governmental unit, but must be

brought against the allegedly responsible government actor in his official capacity. Patel v. Tex.

Dept. of Licensing and Regulation, 469 S.W.3d 69, 77 (Tex. 2015).

Capacity

           Public employees are “individually liable for their own torts, even when committed in the

course of their employment, and suit may be brought against a government employee in his

individual capacity.” Franka, 332 S.W.3d at 383.1 “A suit against a government employee in his

individual capacity seeks to impose personal liability on the employee for actions he took under

color of state law.” Smith v. Davis, 999 S.W.2d 409, 413 (Tex. App.—Dallas 1999, no pet.).

Cannon’s appeal brief urges that he sued the individual defendants in their personal capacities, not

just their official capacities. However, his pleadings are unclear in this regard. In such cases, ‘‘[t]he

course of proceedings’ . . . typically will indicate the nature of the liability sought to be imposed.”



      1
        A public employee sued in his individual capacity may assert official immunity, id. at 383, as distinguished from governmental immunity,
Houston Belt & Terminal Ry. Co., 487 S.W.3d at 164 n.7. “[U]nlike sovereign immunity from suit, which . . . may be raised in a plea to the
jurisdiction, official immunity is an affirmative defense that must be pled and proved by the party asserting it.” Brown & Gay Eng’g, Inc. v.
Olivares, 461 S.W.3d 117, 128 (Tex. 2015) (emphasis added). Although the defendants asserted official immunity as an affirmative defense to
Cannon’s claims, they did not seek to prove this defense in a motion for summary judgment or otherwise. Accordingly, the issue of official immunity
is not before us.

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Heinrich, 284 S.W.3d at 377 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985)). We

must ascertain the true nature of Cannon’s claims and not exalt form over substance. Ross v.

Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 743 (Tex. App.—Corpus Christi–

Edinburg 2010, no pet.).

       By way of example, the plaintiff in Davis v. City of Aransas Pass alleged defamation

claims—which were intentional torts—based upon statements made by defendant police officers

purportedly acting in the color of their office. No. 13-17-00455-CV, 2018 WL 4140633, at *3

(Tex. App.—Corpus Christi–Edinburg, Aug. 29, 2018, no pet.) (mem. op.). Although the plaintiff

named each officer individually, his suit stemmed from allegedly defamatory statements made in

the officers’ official capacities. Id. Similarly, Terrell v. Sisk involved alleged wrongdoing or

negligence by a trial court judge based on “actions he was able to take only because of his position

as a public servant.” 111 S.W.3d 274, 281 (Tex. App.—Texarkana 2003, no pet.). Our sister court

noted that the case before it did not involve “a mixture of allegations, some of which are directed

at actions taken outside a public capacity.” Id. Accordingly, the court held that there “was no

effective pleading” against the judge in his individual capacity. Id. at 281–82.

       As in the foregoing cases, Cannon’s pleadings are based upon actions involving the

individual defendants’ duties as public servants. In other words, the individual defendants were

able to detain, arrest, and charge Cannon only because of their positions as police officers.

Accordingly, we fairly read Cannon’s petition as alleging claims against the individual defendants

only in their official capacities. As such, the individual defendants have the same governmental

immunity, derivatively, as their employer, the City. Franka, 332 S.W.3d at 382–83.

                                         CONCLUSION

       Cannon’s pleadings affirmatively establish that the defendants’ immunity from suit has not

been waived in this case. Absent a valid waiver of immunity, the court lacked subject-matter

                                                –8–
jurisdiction. Suarez v. City of Texas City, 465 S.W.3d 623, 631–32 (Tex. 2015). We reverse the

district court’s January 30, 2018 order and render judgment dismissing Cannon’s suit with

prejudice.




                                               /Jason Boatright/
                                               JASON BOATRIGHT
                                               JUSTICE



180181F.P05




                                             –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 CITY OF RICHARDSON, TEXAS,                         On Appeal from the 101st Judicial District
 NAZARY MASOOD, RICHELLE                            Court, Dallas County, Texas
 ESQUIVEL, AND ERIC WILLADSEN,                      Trial Court Cause No. DC-17-01074.
 Appellants                                         Opinion delivered by Justice Boatright.
                                                    Justices Stoddart and Whitehill
 No. 05-18-00181-CV         V.                      participating.

 JOHN CANNON, Appellee

       In accordance with this Court’s opinion of this date, we REVERSE the district court’s
January 30, 2018 order and RENDER judgment dismissing appellee’s suit with prejudice.

       It is ORDERED that appellants CITY OF RICHARDSON, TEXAS, NAZARY
MASOOD, RICHELLE ESQUIVEL, AND ERIC WILLADSEN recover their costs of this
appeal from appellee JOHN CANNON.


Judgment entered this 16th day of November, 2018.




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