                                                                       ACCEPTED
                                                                   04-15-00068-CV
                                                       FOURTH COURT OF APPEALS
                                                            SAN ANTONIO, TEXAS
                                                              8/10/2015 1:27:26 PM
                                                                    KEITH HOTTLE
                                                                            CLERK

            No. 04-15-00068-CV

  IN THE TEXAS COURT OF APPEALS                    FILED IN
                                            4th COURT OF APPEALS
     FOURTH COURT OF APPEALS                 SAN ANTONIO, TEXAS
      AT SAN ANTONIO, TEXAS                 8/10/2015 1:27:26 PM
                                              KEITH E. HOTTLE
                                                    Clerk

           JOHN M. DONOHUE
                                                 APPELLANT
                     VS.

PERLA DOMINGUEZ and KEVIN NAKATA,
      In Their Individual Capacities
                                                  APPELLEES

Appealed from the 57th Judicial District Court

            Bexar County, Texas


           APPELLEES’ BRIEF


            Mark Kosanovich
         State Bar No. 00788754
  FITZPATRICK & KOSANOVICH, P.C.
            P.O. Box 831121
     San Antonio, Texas 78283-1121
          mk@fitzkoslaw.com
         Phone: (210) 207-7259
          Fax: (210) 207-8997

    ATTORNEY FOR APPELLEES,
PERLA DOMINGUEZ and KEVIN NAKATA
              INDENTITIES OF PARTIES AND COUNSEL

Appellant


John M. Donohue – pro se             John M. Donohue
                                     Duncan Unit
                                     1502 South 1st Street
                                     Diboll, Texas 75941




Appellees’ Counsel

Perla Dominguez & Kevin Nakata       Mark Kosanovich
                                     Fitzpatrick & Kosanovich, P.C.
                                     P.O. Box 831121
                                     San Antonio, Texas 78283-1121
                                     mk@fitzkoslaw.com
                                     (210) 207-7259 – Telephone
                                     (210) 207-8997 – Facsimile




                                 i
                                         TABLE OF CONTENTS

INDENTITIES OF PARTIES AND COUNSEL ...................................................... i

TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE CASE ..................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ............................................. vi

ISSUES PRESENTED............................................................................................ vii
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................2

ARGUMENT .............................................................................................................2

  I.    Standard of Review for a Motion to Dismiss ...................................................2
  II.   Appellant failed to preserve error for review on appeal of Appellant’s
  argument that his suit was improperly dismissed by the trial court because he was
  not afforded meaningful discovery and because a court reporter was not present
  to record Appellant’s verbal testimony provided through a teleconference. ..........3

  III. The trial court did not commit error when it dismissed the claims against
  Appellees because all of Appellant’s claims were brought under the Texas Tort
  Claims Act making the claims subject to dismissal through the election of
  remedies provisions of the Texas Tort Claims Act. ................................................4

  IV. The trial court did not commit error when it dismissed Appellant’s claims
  pursuant to TEX. CIV. PRAC. & REM. CODE §101.106(f) because Appellees’
  conduct when they arrested Appellant was within the general scope of their
  employment. ............................................................................................................8

CONCLUSION ........................................................................................................10
PRAYER ..................................................................................................................10

CERTIFICATE OF COMPLIANCE .......................................................................12
CERTIFICATE OF SERVICE ................................................................................13

                                                            ii
                                   TABLE OF AUTHORITIES
Cases
Alexander v. Walker
 435 S.W.3d 789 (Tex. 2014) ...................................................................................9

American Transitional Care Ctrs. of Texas, Inc. v. Palacios
 46 S.W.3d 873 (Tex. 2001). ....................................................................................2

Burdett v. Doe
 2008 WL 5264913 (Tex. App. – Austin Dec. 17, 2008, no pet.) ...........................7

City of Webster v. Myers
 360 S.W.3d 51 (Tex. App. Houston [1st Dist.] 2011, pet. denied); ........................7

Franka v. Vasquez
 332 S.W.3d 367 (Tex. 2011) ...................................................................................6

Kelemen v. Elliott
 260 S.W.3d 518
 (Tex. App. Houston – 2008 [1st Dist.], no pet.). .....................................................7

Mission Consolidated Indep. Sch. Dist. v. Garcia
 253 S.W.3d 653 (Tex. 2008). ..............................................................................5, 7

Singleton v. Casteel
  267 S.W.3d 547 (Tex. App. – Houston [14th Dist.] 2008, pet. denied). .................3

Texas Adjutant General’s Office v. Ngakoue
 408 S.W.3d 350 (Tex. 2013) ...................................................................................5

U. Lawrence Boze’ & Assoc. P.C. v. Harris County Appraisal Dist.
 368 S.W.3d 17 (Tex. App. – Houston [1st Dist.] 2011, no pet.) .............................4
Statutes
TEX. CIV. PRAC. & REM. CODE §101.001(5). .............................................................8
TEX. CIV. PRAC. & REM. CODE §101.021(1)-(2) ........................................................5
TEX. CIV. PRAC. & REM. CODE §101.106(f)..................................................... passim




                                                       iii
Rules

TEXAS RULE APPELATE PROCEDURE 33(a)(1) .........................................................3,4

Treatises
Restatement (Third) of Agency §7.07(2). ..................................................................9




                                                    iv
                        STATEMENT OF THE CASE

Nature of the Case:     Appellant filed suit against the San Antonio Police
                        Department, the San Antonio Chief of Police, Perla
                        Dominguez, Bexar County EMS and Officer John Doe,
                        asserting claims for false imprisonment, assault,
                        aggravated assault, claims under the Texas Penal Code
                        and claims under the Texas Constitution. The facts
                        giving rise to Appellant’s suit stemmed from his arrest in
                        on August 2, 2013.

Trial Court’s
Proceedings and
Disposition:            The Honorable Laura Salinas heard Perla Dominguez’s
                        Motion to Dismiss and Kevin Nakata’s Motion to
                        Dismiss on January 8, 2015. (CR 138-141, CR 153-158).
                        On this same day, Judge Salinas granted Appellees’
                        Motions to Dismiss. (CR 200). Appellant filed a Motion
                        to Reinstate Perla Dominguez and Kevin Nakata as
                        Defendants on January 23, 2015. (CR 212-217). The
                        Honorable Laura Salinas denied Appellant’s Motion to
                        Reinstate Perla Dominguez and Kevin Nakata as
                        Defendants on January 30, 2015. (CR 223). On
                        February 13, 2015, Appellant filed his Notice of
                        Interlocutory Appeal. (CR 227-237).

Requested Disposition
From This Court:        Appellees request that this Court affirm the judgment of
                        the trial court.




                                       v
       STATEMENT REGARDING ORAL ARGUMENT

Appellees do not request oral argument in this matter.




                                  vi
                             ISSUES PRESENTED

ISSUE NO. 1 RESTATED:

Whether Appellant failed to preserve error for review on appeal his allegations that
he was not afforded meaningful discovery and that a court reporter was not present
to record Appellant’s testimony?

Appellant failed to preserve error for review on appeal of Appellant’s argument
that his suit was improperly dismissed by the trial court because he was not
afforded meaningful discovery and because a court reporter was not present to
record Appellant’s verbal testimony provided through a teleconference.

ISSUE NO. 2 RESTATED:

Did the trial court commit error when it dismissed Appellant’s claims under TEX.
CIV. PRAC. & REM. CODE §101.106(f) because Appellant’s claims under the Texas
Penal Code and the Texas Constitution were not claims that fell under the Texas
Tort Claims Act?

The trial court did not commit error when it dismissed the claims against Appellees
because all of Appellant’s claims were brought under the Texas Tort Claims Act
making the claims subject to dismissal through the election of remedies provisions
of the Texas Tort Claims Act.

ISSUE NO. 3 RESTATED:

Did the trial court commit error when it dismissed Appellant’s claims pursuant to
TEX. CIV. PRAC. & REM. CODE §101.106(f) because Appellees’ conduct when they
arrested Appellant was not within the general scope of their employment?

The trial court did not commit error when it dismissed Appellant’s claims pursuant
to TEX. CIV. PRAC. & REM. CODE §101.106(f) because Appellees’ conduct when
they arrested Appellant was within the general scope of their employment.




                                        vii
                               STATEMENT OF FACTS

       Appellees, Perla Dominguez and Kevin Nakata are San Antonio Police

Department officers.       Appellant, Donohue, who is currently incarcerated, was

arrested by Appellees on August 7, 2013 and transported to University Hospital in

San Antonio.1 (CR 72, 75).2 According to Appellant, prior to his arrest he called

the police department to have a police report taken at his mother’s house regarding

items involved in a divorce. (CR 71-17). Appellant claims that he was supposed

to meet the officers at the house, but his mother called and told him the officers

were already at the residence. (CR 72-73). When Appellant arrived at the house,

Officer Dominguez and another officer (who was later identified as Officer

Nakata) were at the house. (CR 72). Appellant, who refused to get out his truck

once getting to the scene, talked to the officers on his cell phone. (CR 73).

Eventually, Appellant got out of the truck. (CR 74). Once outside the truck,

Appellant claims the officers jumped on him, threw him to the ground, pulled his

arms behind his back and tightened the handcuffs that were put on him. Id.

Appellant claims he was placed in the back of a patrol car. (CR 75). Appellant


1
  The facts of this case are drawn from Appellant’s “2nd Amendment to Plaintiff’s Original Claim
for Assault and False Imprisonment” verified on October 7, 2014. (CR 71-77). Appellant filed
motions to “supplement his allegations and claims as to both Appellees on November 24, 2014.
(CR 105-129). On November 24, 2014 – the same date as the “supplemental” filings – the clerk
filed “Petitioner’s Original Complaint and Claims for False Imprisonment and Assault.” (CR
130-137).
2
  “CR” denotes Clerk’s Record. The page references after “CR” point to the pagination added by
the Clerk.

                                               1
claims that while his legs were outside of the patrol car, he was kicked by Officer

Nakata.    Id.   Appellant claims he was transported to the University Hospital

Emergency Room. Id. Appellant filed his suit on August 7, 2014. (CR 1-8).

      Appellant filed suit in this case on August 7, 2014. (CR 1-8) Appellees

Dominguez and Nakata filed their motions to dismiss under Texas Civil Practice

and Remedies Code §101.106. (CR 138-141, 153-158) This matter was heard on

January 8, 2015, and the motion was granted by the Honorable Laura Salinas. (CR

200). Appellant filed a Motion to reinstate his claims against these Appellees,

which was denied by Judge Salinas. (CR 212-217, 223). Appellant subsequently

filed this appeal.

                       SUMMARY OF THE ARGUMENT

      The trial court properly dismissed all of Appellant’s claims for assault, false

imprisonment, claims under the Texas Penal Code and his claims under the Texas

Constitution pursuant to TEX. CIV. PRAC. & REM. CODE §101.106(f).

                                  ARGUMENT

I.    Standard of Review for a Motion to Dismiss

      Generally, a trial court’s order for a motion to dismiss is reviewed under an

abuse of discretion standard. American Transitional Care Ctrs. of Texas, Inc. v.

Palacios, 46 S.W.3d 873, 878 (Tex. 2001). However, the proper standard of

review is not necessarily determined by the caption on the motion to which the



                                         2
order relates, rather it is determined by the substance of the issue to reviewed.

Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App. – Houston [14th Dist.] 2008,

pet. denied). A motion under §101.106(f) raises an issue of official immunity. Id.

If official immunity applies, the trial court lacks subject matter jurisdiction over the

case. Id. Subject matter jurisdiction is a question of law which an appellate court

reviews de novo. Id.

II.   Appellant failed to preserve error for review on appeal of Appellant’s
      argument that his suit was improperly dismissed by the trial court
      because he was not afforded meaningful discovery and because a court
      reporter was not present to record Appellant’s verbal testimony
      provided through a teleconference.

      Appellant claims that the trial court committed error by dismissing his case

without affording him reasonable discovery and by not having a court reporter

present to record testimony. Appellant’s Brief, p. 3. Appellant contends that

Officer Dominguez was “hostile to discovery” and that Officer Nakata refused to

respond to discovery.     Id.   Between the hostility and the refusal to respond,

Appellant contends he was denied access to police reports, witness statements and

hospital records necessary to support his claims. Id., p. 4. Appellant contends that

further discovery will prove his claims are true and correct. Id.

      Appellant failed to preserve any error regarding discovery or the lack of a

court reporter taking testimony. Under TEX. R. APP. P. 33(a)(1), a party seeking to

preserve error for appellate review must show that the complaint was made to the


                                           3
trial court and the trial court either ruled on the motion or refused to rule on the

motion. TEX. R. APP. P. 33(a)(1); U. Lawrence Boze’ & Assoc. P.C. v. Harris

County Appraisal Dist., 368 S.W.3d 17, 33 (Tex. App. – Houston [1st Dist.] 2011,

no pet.)(to preserve error on a discovery dispute, the appealing party must obtain

a ruling by the trial court on the discovery issue). In this case, Appellant failed to

obtain a ruling from the trial court regarding any discovery dispute or the alleged

failure to have a record made of testimony. Since Appellant failed to preserve

error regarding his claims regarding discovery and the recording of testimony, the

trial court did not commit reversible error.

III.   The trial court did not commit error when it dismissed the claims
       against Appellees because all of Appellant’s claims were brought under
       the Texas Tort Claims Act making the claims subject to dismissal
       through the election of remedies provisions of the Texas Tort Claims
       Act.

       Appellant appears to argue two different reasons that the claims he is

pursuing do not fall under the provisions of the Texas Tort Claims Act (TTCA)

and thus are not subject to dismissal under TEX. CIV. PRAC. & REM. CODE

§101.106(f). He contends that he is pursuing criminal acts under the Texas Penal

Code and that they do not fall under the TTCA. Appellant’s Brief, p. 5. He also

contends that his “state and constitutional claims are not barred by immunity.” 3



3
 Appellant’s “2nd Amendment” pleading does not contain a reference to the Texas Constitution.
However, his supplements as to both Appellees, which he claimed were incorporated into his

                                             4
Id., p. 11. As to his constitutional allegations, Appellant contends that the trial

court erred in not addressing the claims. Id.

       The TTCA provides for a limited waiver of immunity for certain torts

against the government.       Texas Adjutant General’s Office v. Ngakoue, 408

S.W.3d 350, 354 (Tex. 2013). Generally, a governmental unit can be liable under

the TTCA for the property damage, personal injury or death caused by the

wrongful act or omission or negligence of an employee acting within the scope of

his or her employment for an injury that arises from the operation or use of a

motor-driven vehicle if the employee would be liable under Texas law or for

personal injury or death caused by the use or misuse of tangible personal property.

TEX. CIV. PRAC. & REM. CODE §101.021(1)-(2).                   The TTCA contains an

election-of-remedies provision which requires a determination as to 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. Mission Consolidated Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657

(Tex. 2008). The election-of-remedies provision requires a plaintiff to make an

irrevocable election at the time suit is filed between suing the governmental unit

under the TTCA or proceeding against the employee alone. Id. Section 101.106




second amendment reference the Texas Constitution. (CR 108, 119). Assuming these claims are
before the Court, they are subject to dismissal.

                                            5
narrows the issues for trial and reduces delay and duplicative litigation costs. Id.

In relation to the issues in this suit, §101.106(f) provides the following:

      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 30 th day after the date
      the motion is filed.

TEX. CIV. PRAC. & REM. CODE §101.106(f).

      When Appellant filed this suit, he specifically identified the San Antonio

Police Department, the San Antonio Police Chief, Officer Dominguez, Officer

John Doe and Bexar County EMS as defendants in both their individual and

official capacities.   (CR 1).    Under Texas law, a suit against a government

employee in his official capacity is a suit against his government employer with

one exception: an action alleging that the employee acted ultra vires. Franka v.

Vasquez, 332 S.W.3d 367, 382 (Tex. 2011). Since Appellant sued both Appellees

in their individual and official capacities and he also brought suit against

governmental entities, he made the irrevocable election to file suit against

governmental units and the individual Appellees.

      Appellant appears to be arguing that since he is asserting claims under the

Penal Code, his claims are not being brought “under” the TTCA. Appellant’s


                                           6
Brief, p. 5. He contends he is seeking a remedy under the Penal Code. Id. To the

extent Appellant asserts his claims do not fall under the TTCA and are not subject

to §101.106, this argument is incorrect. Because the TTCA is the only, albeit

limited, avenue for common law recovery against the government, all tort theories

alleged against a governmental unit, whether it is sued alone or together with its

employees, are assumed to be under the TTCA for purposes of §101.106. Garcia,

253 S.W.3d at 659. Claims brought under the Penal Code fall under the TTCA if

they seek damages against the governmental unit because the term “under this

chapter” in the TTCA includes claims for which the TTCA does not waive

liability. Kelemen v. Elliott, 260 S.W.3d 518, 523 (Tex. App. Houston – 2008 [1st

Dist.], no pet.). Appellant sought compensatory damages for the Penal Code

violations. (CR 7). Appellant’s “supplemental” pleadings as to both Appellees

stated that he was seeking compensatory damages for, among other things, the

Penal Code. (CR 111, 119). Therefore, the claims fall under the TTCA and they

are subject to dismissal under §101.106(f).

      Appellant’s claims under the Texas Constitution also fall under the TTCA.

A claim seeking damages for alleged constitutional violations is brought under the

TTCA for purposes of §101.106. City of Webster v. Myers, 360 S.W.3d 51, 60

(Tex. App. Houston [1st Dist.] 2011, pet. denied); See Burdett v. Doe, 2008 WL

5264913, at *3 (Tex. App. – Austin Dec. 17, 2008, no pet.)(while framed as a


                                         7
constitutional violation, the plaintiff’s suit sought damages against the city and

was considered to be brought under the TTCA for purposes of §101.106). In the

“supplemental” pleadings filed by Appellant as to both Appellees, Appellant

clearly states that he is seeking compensatory damages, amongst other damages

and claims, under the Texas Constitution. (CR 111, 119). As such, Appellant’s

claims under the Texas Constitution were under the TTCA and were subject to the

provisions of §101.106.

      Since Appellants’ claims under the Penal Code and the Texas Constitution

were for damages, they fell under the TTCA and the provisions of §101.106.

Therefore, the trial court did commit error in dismissing these claims and the

judgment of the trial court should be affirmed.

IV.   The trial court did not commit error when it dismissed Appellant’s
      claims pursuant to TEX. CIV. PRAC. & REM. CODE §101.106(f) because
      Appellees’ conduct when they arrested Appellant was within the general
      scope of their employment.

      Appellant makes two arguments claiming the trial court erred when it

dismissed his suit involving the scope of Appellee’s employment. Appellant’s

Brief, p. 7, 9. Appellant contends that both Appellees acted outside the scope of

their employment. Id., p. 7. He also contends that Appellees cannot satisfy the

first prong of §101.106(f) because they operated outside the scope of their

authority and are not entitled to official immunity. Id., p. 10.



                                          8
      The TTCA 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).

The Restatement (Third) of Agency provides additional clarification by defining

the term negatively: “an 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.” Alexander v. Walker, 435

S.W.3d 789, 792 (Tex. 2014); quoting Restatement (Third) of Agency §7.07(2).

Arresting an individual in the course of employment for a governmental entity is

conduct that falls within the general scope of an officer’s employment. Id., at 792.

In Alexander, the plaintiff brought suit alleging assault, conspiracy, slander, false

arrest, false imprisonment and malicious prosecution against two officers who had

arrested plaintiff on two separate occasions. The court held that the officers’

conduct was within the scope of their employment. Id. The court reasoned that

the plaintiff had failed to allege any independent course of conduct by the officers

not intended to serve any purpose of the law enforcement agency. Id. The court

also reasoned that the claims against the two officers were identical to the tort

claims brought against the governmental unit in another suit. Id.




                                         9
      Like the plaintiff in Alexander, Appellant has sued Appellees in this matter

alleging claims for assault and false imprisonment related to his arrest and named

the SAPD as a liable party for the identical torts.      Furthermore, Appellant’s

allegations against Appellees are for their actions while they were acting as police

officers for the SAPD. Appellant’s allegations fail to identify any independent

course of conduct by Appellees that was not done for the SAPD. Therefore,

Appellees conduct was done within the scope of their employment and their claims

were subject to dismissal under §101.106(f). As such, the trial court did not

commit error when it dismissed Appellant’s claims. Therefore, the judgment of

the trial court should be affirmed.

                                  CONCLUSION

      The trial court properly granted Appellees’ Motions to Dismiss under

§101.106(f) because Appellant made an irrevocable election to sue Appellees and

all the other Defendants in their individual and official capacities. Pursuant to

§101.106(f), the claims against Appellees were properly dismissed because all of

the claims asserted by Appellant were brought under the TTCA and Appellees

actions were within the scope of their employment. Since the trial court did not

commit error, the judgment of the trial court should be affirmed.

                                      PRAYER




                                         10
      WHEREFORE, PREMISES CONSIDERED, Appellees Perla Dominguez

and Kevin Nakata, respectfully pray that this Court affirm the trial court’s

judgment dismissing Appellant’s claims and for such other relief to which

Appellees might be entitled at law or in equity.




                                         11
                            Respectfully submitted,

                            Mark Kosanovich
                            Fitzpatrick & Kosanovich, P.C.
                            P.O. Box 831121
                            San Antonio, Texas 78283-1121
                            mk@fitzkoslaw.com
                            Telephone: 210-207-7259
                            Telecopier: 210-207-8997

                            By:   /s/ Mark Kosanovich
                                  Mark Kosanovich
                                  State Bar No. 00788754



                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), undersigned

counsel for Appellees certifies that the number of words in this document,

excluding those properly excluded under Texas Rule of Appellate Procedure

9.4(i)(1), is 2360.


                                  /s/ Mark Kosanovich
                                  Mark Kosanovich




                                    12
                         CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the APPELLEES’ BRIEF was
forwarded via certified U.S. Mail to the following on the 10th day of August, 2015,
to:

      John M. Donohue - 1895073
      Duncan Unit
      1502 South 1st Street
      Diboll, Texas 75941
                                      /s/ Mark Kosanovich
                                      Mark Kosanovich




                                        13
