Opinion issued October 27, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-01001-CV
                            ———————————
                          FADI KRAIDIEH, Appellant
                                         V.
                        KAREN NUDELMAN, Appellee


                    On Appeal from the 333rd District Court
                             Harris County, Texas
                       Trial Court Case No. 2012-14736


                          MEMORANDUM OPINION

      While off-duty, Fadi Kraidieh, a City of Houston police officer, purportedly

attempted to detain Karen Nudelman and three of her friends. Nudelman later sued

Kraidieh in his individual capacity for assault. In a plea to the jurisdiction, or in

the alternative, motion for summary judgment, Kraidieh argued to the trial court
that he was entitled to dismissal under the election-of-remedies provision of the

Texas Tort Claims Act because his conduct was within the general scope of his

employment and the suit could have been brought against his governmental

employer, the City of Houston. The trial court denied Kraidieh’s plea to the

jurisdiction, and this interlocutory appeal followed. We reverse the trial court’s

order denying the plea to the jurisdiction and render judgment dismissing the case.

                                   Background

      One Halloween weekend, Nudelman, then a law student and a resident of the

Millennium Greenway Apartments, spent the evening with her roommate, Amanda

D’ Angelo, and two male friends, Bradley Schield and Brandon Alexander. In the

early morning hours of October 30, 2010, the four decided to go to the apartment

complex hot tub.

      Kraidieh and his wife, Kelly Bates, are also residents of the Millennium

Greenway Apartments and both are employed by the City of Houston Police

Department.    Kraidieh was off-duty and home asleep that evening.          He was

awakened by loud noises from the apartment complex pool area around what he

guessed was 4:30 a.m.1 Kraidieh claimed that he heard female screams from the

pool area, and, thinking someone was in distress, he went to investigate.



1
      Scottie Hawkins, also a resident at Millennium Greenway Apartments, lived in a
      unit facing the apartment complex pool area, and he recalled being similarly

                                         2
      Kraidieh averred that he approached the pool area and saw four adults—

Nudelman, D’Angelo, Schield, and Alexander—in the hot tub, one of whom was

drinking directly from a clear bottle of alcohol. He noted that one of the women in

the group had a beer in her hand and appeared intoxicated. Though he was

wearing a Houston Police t-shirt and claimed to have his HPD badge around his

neck, Kraidieh did not identify himself as a police officer. According to Kraidieh,

he told the group that they needed to leave because they were causing a

disturbance, drinking in public, and occupying the pool area outside allowable

hours. D’Angelo asked Kraidieh if they could have a couple minutes to wrap up.

Believing that the group was being compliant, Kraidieh said, “okay,” and returned

to his apartment.

      According to Kraidieh, he heard the same screaming noise from the pool

area some 15 to 20 minutes later. Again, he went down to investigate. As he

walked, he phoned his wife, Deputy Bates, who held an approved extra job doing

private security for the apartment complex. When he arrived at the pool area, he

found the same group in the hot tub, and he asked which apartment they lived in.

Kraidieh averred that one of the women responded, “We are not telling you; we do

not want to get in trouble.” Only then did Kraidieh identify himself as a police

officer, just before he again told the group to leave the pool area. Kraidieh recalled

      awakened by loud noises from that area. However, Hawkins thought he was
      awakened around 2:00 or 3:00 a.m.

                                          3
that one of the women responded, “What the f- is your problem, leave us alone!”,

to which one of the men echoed, “Yeah, what the f- is your problem, we are not

leaving.” Believing that the four apparently intoxicated adults in the hot tub were

belligerent and may be a danger to themselves or others, Kraidieh decided to detain

all four individuals until Deputy Bates arrived. He did so notwithstanding the fact

that he was without his duty weapon, handcuffs, and police identification.

      Kraidieh averred that, in attempting to detain the four individuals, he

grabbed one of the men by the wrist and tried to forcibly remove him from the hot

tub, which led to Nudelman telling him to leave her friend alone and allegedly

punching Kraidieh in the head. Kraidieh explained that he tried to push her away

to prevent her from striking him again, but maintains that he did not slap her and

did not see her fall or hit her head.        Around that time, Kraidieh noted that

Nudelman called 911 and told the dispatcher that a man—Kraidieh—was

impersonating a police officer.    Kraidieh claimed that, afterwards, Nudelman

began repeatedly slapping his face and kicking at him until Schield pulled her

away. With that, Kraidieh decided to retreat to his apartment to get his handcuffs.

As he left, the group asked for his badge number, and, according to Kraidieh, he

pointed toward his neck and called out his badge number.

      While Nudelman agreed that Kraidieh was wearing a t-shirt and jeans when

he first interacted with the group, she maintained that he did not have a badge



                                         4
around his neck at that time. Schield also testified that Kraidieh did not have a

badge when he first approached the group.       Nudelman described the badge

Kraidieh was wearing around his neck on his second approach as appearing to be

“plastic, silver.” Nudelman recalled Kraidieh coming down screaming and yelling,

“Get the F out of the pool,” “Go the F home,” and “Get the F out of here.”

According to Nudelman, Alexander waded toward Kraidieh and asked what his

problem was and things escalated from there. Though Kraidieh denied striking

Nudelman or seeing her fall, Nudelman maintains that Kraidieh picked her up and

threw her to the ground.

      HPD’s Sergeant L.G. Mikel responded to the scene at 5:18 a.m. After

meeting Kraidieh near the apartment complex lobby, Sergeant Mikel walked with

him to his apartment, where they waited for Deputy Bates as Kraidieh recounted

his version of events. Though Sergeant Mikel believed Kraidieh had discretion to

arrest the group, Kraidieh told him he did not wish to pursue the matter.

Nonetheless, accompanied by Deputy Bates, Sergeant Mikel then went to

Nudelman’s apartment.

      Sergeant Mikel described Nudelman and her friends as intoxicated, an

opinion he formed based on the smell of alcohol, slurred speech, and

argumentativeness.   Nudelman recalled being shocked and in disbelief when

Sergeant Mikel told her that Kraidieh was indeed an HPD officer. According to



                                        5
Nudelman, Sergeant Mikel told her that Kraidieh was allowed to use force when

arresting someone, and Kraidieh’s mistake was only in not arresting anyone.

Nudelman recalled Deputy Bates similarly stating that, if Kraidieh perceived

Nudelman as a threat, he had every right to use force as he did. With these

comments, Nudelman felt as though she was being intimidated and blamed for the

incident, and she began crying in response.

      In March 2012, Nudelman sued Kraidieh for assault.2 After discovery, in

October 2015, Kraidieh filed a plea to the jurisdiction or, in the alternative, a

motion for summary judgment, claiming statutory immunity under section

101.106(f) of the Tort Claims Act. The trial court denied Kraidieh’s motion, and

this interlocutory appeal followed.3

                                       Discussion

      Kraidieh contends that the trial court erred by denying his motion because

(1) the record conclusively establishes that he was within the scope of his

employment when he attempted to detain Nudelman and (2) the claim asserted

against him could have been brought under the Tort Claims Act against his

2
      Nudelman subsequently amended her petition to add the owners of the Millennium
      Apartments, alleging respondeat superior and negligent hiring, supervision, and
      training. The Millennium defendants counterclaimed, seeking sanctions for filing
      a frivolous pleading barred by the statute of limitations. Nudelman nonsuited the
      Millennium defendants.
3
      See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing interlocutory
      appeal from denial of governmental unit’s plea to the jurisdiction); see also Tex. A
      & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

                                           6
governmental employer and, therefore, is subject to dismissal under section

101.106(f).

A.    Standard of Review

      We review de novo a trial court’s ruling on a plea to the jurisdiction. State

v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). “In a suit against a governmental

unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by

alleging a valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104

S.W.3d 540, 542 (Tex. 2003). The plaintiff must allege facts that affirmatively

establish the trial court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of Pasadena v. Kuhn, 260

S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining

whether this burden has been satisfied, we must construe the pleadings liberally in

the claimant’s favor and deny the plea if the claimant has alleged facts

affirmatively demonstrating jurisdiction to hear the case. Tex. Dep’t of Parks and

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Smith v. Galveston Cty.,

326 S.W.3d 695, 697–98 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

B.    Section 101.106 of the Tort Claims Act

      Governmental immunity protects the State and its political subdivisions from

lawsuits and liability, which would otherwise “hamper governmental functions by

requiring tax resources to be used for defending lawsuits and paying judgments



                                          7
rather than using those resources for their intended purpose.” Mission Consol.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (quoting Reata

Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). It is a long-

settled rule that “no state can be sued in her own courts without her consent, and

then only in the matter indicated by that consent.” Hosner v. DeYoung, 1 Tex. 764,

769 (1847). The Texas Tort Claims Act provides a limited waiver of immunity for

certain suits against governmental entities. See TEX. CIV. PRAC. & REM. CODE

§ 101.023. The Act governs all tort claims asserted against a governmental entity

and serves as “the only, albeit limited, avenue for common-law recovery against

the government.” Garcia, 253 S.W.3d at 655.

      The Act was revised in 2003 to include an election-of-remedies provision.

As revised, section 101.106 forces claimants to “decide at the outset whether an

employee acted independently and is thus solely liable, or acted within the general

scope of his or her employment such that the governmental unit is vicariously

liable, thereby reducing the resources that the government and its employees must

use in defending redundant litigation and alternative theories of recovery.” Garcia,

253 S.W.3d at 657. In relevant part, the provision states:

      (a) The filing of a suit under this chapter against a governmental unit
      constitutes an irrevocable election by the plaintiff and immediately
      and forever bars any suit or recovery by the plaintiff against any
      individual employee of the governmental unit regarding the same
      subject matter.



                                         8
      (b) The filing of a suit against any employee of a governmental unit
      constitutes an irrevocable election by the plaintiff and immediately
      and forever bars any suit or recovery by the plaintiff against the
      governmental unit regarding the same subject matter unless the
      governmental unit consents.

      ...

      (f) If a suit is filed against an employee of a governmental unit based
      on conduct within the general scope of that employee’s employment
      and if it could have been brought under this chapter against the
      governmental unit, the suit is considered to be against the employee in
      the employee’s official capacity only. On the employee’s motion, the
      suit against the employee shall be dismissed unless the plaintiff files
      amended pleadings dismissing the employee and naming the
      governmental unit as defendant on or before the 30th day after the
      date the motion is filed.

TEX. CIV. PRAC. & REM. CODE § 101.106. The Supreme Court of Texas has

cautioned that, because this election-of-remedies provision imposes “irrevocable

consequences, a plaintiff must proceed cautiously before filing suit and carefully

consider whether to seek relief from the governmental unit or from the employee

individually.” Garcia, 253 S.W.3d at 657.

C.    Analysis

      In order to be entitled to dismissal under the election-of-remedies provision

of the Tort Claims Act, Kraidieh had the burden to conclusively prove: (1) he was

a governmental unit employee at the relevant time; (2) the complained-of conduct

was within the general scope of his employment with a governmental unit; and

(3) Nudelman’s suit could have been brought under the Tort Claims Act against



                                        9
Kraidieh’s governmental employer. TEX. CIV. PRAC. & REM. CODE § 101.106(f);

Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011); Fink v. Anderson, 477

S.W.3d 460, 465–66 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The parties

do not dispute that the Houston Police Department is a governmental unit and that

it was Kraidieh’s employer at the relevant time. Thus, only two questions remain:

whether Kraidieh conclusively proved that his conduct was within the general

scope of his employment and whether Nudelman’s suit could have been brought

under the Tort Claims Act against his governmental employer, HPD. We address

each of these issues in turn.

      1.     General scope of employment

      Kraidieh argues that he conclusively established that his conduct was within

the general scope of his employment at the time of the alleged assault. Though he

was off-duty at the time, Kraidieh argues the record conclusively shows he

responded as a police officer to what he believed were cries of distress. He further

argues that, upon finding publically intoxicated adults creating a disturbance, it

was his duty as an officer to respond. Nudelman contends that Kraidieh failed to

conclusively establish that he was acting within the scope of his employment

because he was off-duty, and attempting to enforce the rules of the apartment

complex because he was personally agitated at being awakened. Nudelman further




                                        10
relies on the fact that Kraidieh did not arrest anyone or file an official incident

report to argue that Kraidieh was not acting as a public officer.

      The Act defines the term “scope of employment” as “the performance for a

governmental unit of the duties of an employee’s office or employment and

includes being in or about the performance of a task lawfully assigned to an

employee by competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5);

see also City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (“An

official acts within the scope of her authority if she is discharging the duties

generally assigned to her.”). The Texas Supreme Court has further clarified the

term through reference to the Restatement (Third) of Agency, which explains that

“[a]n employee’s act is not within the scope of employment when it occurs within

an independent course of conduct not intended by the employee to serve any

purpose of the employer.” RESTATEMENT (THIRD) OF AGENCY § 7.07(2)

(2006), cited by Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014). “Thus,

when an employee engages in conduct ‘for the sole purpose’ of furthering someone

else’s interests and not his employer’s, the conduct is outside the employee’s scope

of employment.” Fink, 477 S.W.3d at 466.

      Under Texas law, “[i]t is the duty of every peace officer to preserve the

peace within the officer’s jurisdiction.” TEX. CODE CRIM. PROC. art. 2.13(a). An

officer is not relieved of the duty to preserve the peace merely because he is “off-



                                          11
duty.” Blackwell v. Harris Cty., 909 S.W.2d 135, 139 (Tex. App.—Houston [14th

Dist.] 1995, writ denied). Thus, whether an officer is technically on-duty or off-

duty does not determine whether conduct he undertakes is within the scope of

employment. See Harris Cty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—

Houston [14th Dist.] 2004, no pet.). Instead, the dispositive question is: “in what

capacity was the officer acting at the time he committed the acts for which the

complaint was made.” Blackwell, 909 S.W.2d at 139. “If an officer is performing

a public duty, such as enforcement of general laws, he is acting ‘in the course and

scope of his employment as a police officer even if the [private] employer directed

him to perform the duty.’” Gibbons, 150 S.W.3d at 882 (quoting Bridges v.

Robinson, 20 S.W.3d 104, 111 (Tex. App.—Houston [14th Dist.] 2000, no pet.),

disapproved of on other grounds, Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex.

2002)).

      Here, the record conclusively shows that upon arriving at the pool area,

Kraidieh observed four adults in the hot tub whom he believed, based on their

conduct, were publically intoxicated. Kraidieh averred that he believed the four

individuals could be a danger to themselves or others. Thus, irrespective of any

house-rules which the group may have been violating, Kraidieh observed




                                        12
violations of public laws.4 Having made such observations, whether off-duty or

on-duty, Kraidieh had a duty to preserve the peace and prevent a possible crime.

TEX. CODE CRIM. PROC. arts. 2.13, 6.06. Accordingly, in attempting to detain the

group, Kraidieh was performing his public duty and serving the purposes of his

employer. Because Kraidieh was “in or about the performance of a task lawfully

assigned to an employee by competent authority,” he was acting within the “scope

of employment” for purposes of the Act. See TEX. CIV. PRAC. & REM. CODE §

101.001(5) (defining “scope of employment”).

      Nudelman maintains that there is a fact issue as to whether Kraidieh was

acting in the scope of employment because he was responding as a private resident

of the apartment complex or as private security for the apartment complex. In

support, Nudelman highlights evidence that (1) Kraidieh may have first

approached the group because he was asked to do so by Deputy Bates, (2) Kraidieh

did not initially identify himself as an officer and did not have his police

4
      Section 49.02 of the Texas Penal Code provides that a person commits the offense
      of public intoxication if she appears in a public place while intoxicated to the
      degree that she may endanger herself or another. TEX. PENAL CODE § 49.02.
      Section 42.01 provides, in relevant part, that a person commits the offense of
      disorderly conduct if she intentionally or knowingly “makes unreasonable noise in
      a public place.” TEX. PENAL CODE § 42.01(a)(5). A public place includes the
      common areas of apartment houses. See TEX. PENAL CODE ANN. § 1.07(40)
      (providing that “public place” means “any place to which the public or a
      substantial group of the public has access and includes, but is not limited to . . . the
      common areas of . . . apartment houses”); Holmes v. State, 795 S.W.2d 815, 817
      (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (defendant arrested for public
      intoxication in parking area of private apartment complex).


                                             13
identification, duty belt, or handcuffs on his person, (3) Kraidieh did not stay at the

scene, instead retreating to his apartment, and (4) Kraidieh neglected to file a

police report and did not arrest or cite anyone.        We first note that whatever

Kraidieh’s initial impetus to approach the pool area, the violation of public laws

triggered a duty to respond as a peace officer.        Thus, whether Kraidieh was

awakened and went to the pool area because he himself heard noise from the area

or because Deputy Bates called him is irrelevant to the question of whether

Kraidieh was acting with the scope of his employment when he attempted to

detain, and allegedly assaulted, Nudelman.

      Similarly, whether Kraidieh was personally agitated and harboring personal

motivation to oust the group from the pool does not change the analysis so long as

his conduct served HPD’s purpose. This is because “co-existing motivations do

not remove an employee’s actions from the scope of his employment so long as the

conduct also serves a purpose of the employer.”           Fink, 477 S.W.3d at 471

(citations omitted). Accordingly, “[a]n activity may serve the employer’s purposes

while simultaneously benefiting the employee or even a third party and still qualify

as conduct within the scope of employment.”            Id. (finding state university

professor’s discussions with investors regarding the efficacy of his invention was

in scope of his employment even if such discussions also served professor and his

son’s interests); see also Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 721–22



                                          14
(Tex. App.—Austin 2004, no pet.) (holding that even if employee personally

benefitted to some degree by breakfast run done at his manager’s request, his

actions were still within the course and scope of his employment). Thus, accepting

as true Nudelman’s contention that Kraidieh was acting for his personal benefit or

for the benefit of the apartment complex, we must conclude Kraidieh was acting

within the general scope of his employment because his complaint served a

purpose of his employer.

      We likewise must reject Nudelman’s arguments that Kraidieh’s conduct was

not in the scope of employment as a matter of law because he violated HPD

policies during their altercation. Whether an employee is acting within the “scope

of employment” depends on whether he was performing the duties of his

governmental employer’s office, not on how adequately he performed such duties.

See TEX. CIV. PRAC. & REM. CODE § 101.001(5); see e.g., Alexander, 435 S.W.3d

at 790 (expressing no opinion as to whether officers acted in good faith in holding

that alleged improper conduct of officers during course of arrest fell within general

scope of their employment and was subject to election-of-remedies provision of

Act). Upon observing a violation, Kraidieh had a duty to enforce general laws.

Whatever missteps he took in performing that duty do not remove his conduct from

the general scope of his employment.




                                         15
      2.     Claims could have been brought under Tort Claims Act

      The Texas Supreme Court has held that a claim is one that “could have been

brought” under the Tort Claims Act if it (1) “is in tort” and (2) is not brought

“under another statute that independently waives immunity,” even if immunity has

not been waived for the tort alleged. Franka, 332 S.W.3d at 381 (explaining that

“any tort claim against the government is brought ‘under’ the [TTCA] for purposes

of Section 101.106(f), even if the Act does not waive immunity”); Fink, 477

S.W.3d at 472 (same).      Here, Nudelman sued for assault, an intentional tort.

Nudelman did not plead, nor does she argue on appeal, that her claim was brought

under another statute that independently waives immunity. Thus, for purposes of

section 101.106(f), Nudelman’s claim is one that could have been brought under

the Tort Claims Act. See Franka, 332 S.W.3d at 381.

      Because the complained-of conduct was within the general scope of

Kraidieh’s employment and Nudelman’s suit could have been brought under the

Tort Claims Act, pursuant to section 101.106(f), Nudelman’s suit is considered to

be against Kraidieh in his official capacity only. See TEX. CIV. PRAC. & REM.

CODE § 101.106(f); Franka, 332 S.W.3d at 370. In this circumstance, section

101.106(f) required the trial court to dismiss Kraidieh unless Nudelman filed an

amended pleading dismissing Kraidieh and naming the governmental unit as

defendant on or before the 30th day after Kraidieh filed his plea to the jurisdiction.



                                         16
TEX. CIV. PRAC. & REM. CODE § 101.106(f). Nudelman did not file amended

pleadings, and thus the trial court erred as a matter of law in failing to grant

Kraidieh’s plea and dismiss the suit.

                                     Conclusion

      We reverse the trial court’s order and render judgment granting Kraidieh’s

plea to the jurisdiction and dismissing the case.




                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.




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