REVERSE and RENDE R; 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, A ND 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 Masoo d, Richelle Esquivel, and Eric Willadsen

. The defendants filed a plea to the jurisdiction , wh ich 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 th e 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– 2

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first amended petitions sought damages, fees, and costs for the harms that he suffered from t he defendants’ alleged wrongs

. On June 28, 2017, the defendants filed (i) their original answer, special exceptions, request for disclosu re, 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 ple a fo r a hearing on August 28, 2017 . On the day of the hearing, the defendants filed an eme rgency 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 ord er that same day denying the plea bas ed on their failure to
appear . O n September 14, 2017, the defendants filed an amended p l ea to the jurisdiction . This plea again asserted government al 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 i n part and denying it in part

. T he order gave Cannon thirty days “to amend his petition clearly specifying how the City of Richardson has waived immunity.” On October 24, o ne day before t he court

- ordered deadline, Cannon filed a “Response to Defendant’s Motion to Dismiss Regarding Jurisdicti on and Governmental Immunity.” Cannon ’s response claims that he was wrongfully imprisoned based on the defendants’ “false f ictitious fraudulent charges .” The parties dispute the nature of Cannon’ s October 24 filing

. T he defen dants construe the filing as Can non’s second amended petition . The y contend that it alleges only two causes of action, fraud and wrongful imprisonment , both of which are barred by go vernmental immunity

. Cannon responds that the f iling was a supplemental, not an amended, pleading that explained in more detail the allegation s in his first amended petition

. For purposes of this appeal, we will assume that Cannon’s October 24 filing was a supplemental petition.– 3

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The defendants filed a second amended plea to t he jurisdiction, in which they again urged that Cannon’s claims are ba rred by governmental immunity

. Fo llowing a hearing on this plea , the
court on January 30, 2018, sig ned 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, a n employee sued in his official c apacity 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) , T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.002 , provides a limited waiver of immunity for certain suits against governmental entit ies. Mission Consol. Indep. Sch. Dist. v.
G arcia , 253 S.W.3d 653 , 655 (Tex. 2008); see T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.025(a) (providing waiver of immunity from suit “to the extent of liability created by this chapter”). The Act waive s immunity in three areas: “‘ use of publicly owned automob iles, 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 C ty. of Cameron v. Brown , 80 S.W.3d 549, 554 (Tex. 2002), and citing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.021 )

. The defendants contend that Cannon ’s claims are excluded from the TTCA’s waiver of immunity . Specifically, t he Act’s waiver does not apply to intentional torts , including fraud and false imprisonment

. S ee LTTS Charter School, Inc. v. Palasota , 362 S.W.3d 202, 209 (Tex. App.

— Dallas 2012 , no pet. ) ( “Fraud is an ‘inten tional tort’ for which the TTCA provides no waiver of– 4

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immunity.”) ; T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.057 (2) (stating that TTCA does not app ly to claims arising out of “ fa lse 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 con tain 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 f ails to respond to discovery requests. T EX
. R. C IV
. 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. 197 8). 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 cl aims , 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 libera lly 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– 5

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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 th e d efendants’ 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 t hese standards in mind, we consider Cannon’s arguments

. Ultra V ires “Even if a g overnmental 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 “ w ithout reference to or in conflict w ith the constraints of the law” authorizing the officer to act. Houston Belt & Terminal Ry. Co. v. Ci ty 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 A mendments of the United States Constitution , article I , section 9 of the Texas Constitution, and articles 1.0 6 , 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 har ms including wrongful detention, wrongful arrest, wrongful imprisonment, wrongful seizures, forfeiture, defamation of character, loss of– 6

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business or income, loss of pers onal or business relations, loss of property , and loss of freedom or “peaceful enjoymen t

. ” Cannon’s October 24 filing additionally alleges that his wrongful imprisonment resulted from “fictitious fraudulent charges

. ” A ssuming 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, w here, as here, “ the injury has already occurred and the only plausible remedy i s 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. Can non contends that he asserted such a claim here

. H is 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 Con stitution

. Assuming that Ca nnon allege d an inverse condemnation clai m, we nev ertheless 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 C ty
. 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 , 5 43

– 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 de fendants acted fraudulently, in “bad faith , ” and with a retaliatory motive affirmatively negate the existence of a– 7

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takings claim. See Hammons v. City o f 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 remo ved plaintiff’s property affirmatively negated plaintiff’s inverse condemnation claim) ; Firemen’s Ins. Co. , 909 S.W.2d at 5 44 ( “The allegation of fraudulent inducement pleads a tort, not a taking.” )

. Absent a v alid takings claim, the defendants retain thei r 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

. S uits complaining of ultra vires actions may not be brought against a governmental unit, but must be brought against the allegedly responsible gover nment 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 ma y be brought against a gover nment employee in his individual capacity. ” Franka , 332 S.W.3d at 383. 1 “ A suit against a government e mployee 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 individ ual 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

.– 8

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Heinrich , 284 S.W.3d at 377 (quoting Kentu cky v. Graham , 473 U.S. 159, 167 n. 14 (1985)). W e 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 i ntentional tort s

— based upon statements made by defendant police officers purportedly acting in the color of their office. No. 13

- 17

- 00455

- CV , 20 18 WL 4140633 , at *3 (Tex . App.

— Corpus Christi

– Edinburg , Aug. 2 9 , 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 dir ected at actions taken outside a public capacity.” Id. Accordingly, t he court held that there “was no effective pleading” agains t the judge in his individual capacity. Id. at 28 1

– 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 th eir positions as police officers

. Accordingly, we fairly read Can non’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 C ity. 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 i mmunity, the court lacked subject

- m atter– 9

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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 dismissi ng Cannon’s suit with prejudice

.

180181F.P05 /Jason Boatright/ JASON BOATRIGHT JUSTICE– 10

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## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
CITY OF RICHARDSON, TEXAS, NAZARY MASOOD, RICHELLE ESQUIVEL, AND ERIC WILLADSEN, Appellants
No. 05

- 18

- 00181

- CV V. JOHN CANNON, Appellee On Appeal from the 101st Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 17

- 01074. Opinion delivered by Justice Boatright. Justices Stoddart and Whitehill participating.

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 ap peal from appellee JOHN CANNON.
Judgment entered this 16 th day of November, 2018.