No. 04- 15 -00068- CV

IN THE TEXAS COURT OF APPEALS FOURTH COURT OF APPEALS AT SAN ANTONIO, TEXAS

JOHN M. DONOHUE APPELLANT VS.

PERLA DOMINGUEZ and KEVIN NAKATA, In Their Individual Capacities APPELLEES

Appealed from the 57 th 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 ACCEPTED 04-15-00068-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/10/2015 1:27:26 PM KEITH HOTTLE CLERKi INDENTITIES OF PARTIES AND COUNSEL
Appellant

John M. Donohue

– pro se John M. Donohue Duncan Unit 1502 South 1 st 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

– Facsimileii TABLE OF CONTENTS

INDENTITIES OF PARTIES AND COUNSEL

................................ ...................... i

TABLE OF CONTENTS

................................ ................................ .......................... ii

TABLE OF A UTHORITIES

................................ ................................ ................... 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 n ot 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 T EX

. C IV

. P RAC

. & R EM

. C ODE §101.106(f) because Appellees’ conduct when they arrested Appellant was within the general scope of their employment.

................................ ................................ ................................ ............ 8

CONCLUSI ON

................................ ................................ ................................ ........ 10

PRAYER

................................ ................................ ................................ .................. 10

CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 12

CERTIFICATE OF SERVICE

................................ ................................ ................ 13iii 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 [1 st 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 [1 st 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 [14 th Dist.] 2008, pet. denied ).

................. 3
Texas Adjutant General’s Office v. Ng akoue 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 [1 st Dist.] 2011, no pet. )

............................. 4
Statutes
T EX

. C IV

. P RAC

. & R EM

. C ODE §101.001(5).

................................ ............................. 8 T EX

. C IV

. P RAC

. & R EM

. C ODE §101.021(1)

- (2)

................................ ........................ 5 T EX

. C IV

. P RAC

. & R EM

. C ODE §101.106(f)

................................ ..................... passimiv

Rules

T EXAS R ULE A PPELATE P ROCEDURE 33(a)(1)

................................ ......................... 3,4

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

................................ ................................ .. 9v 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 Janu ary 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.vi STATEMENT REGARDING ORAL ARGUMENT
Appellees do not request oral argument in this matter.vii 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 err or for review on appeal of Appellant’s argument that his suit was improperly dismissed by the t rial c ourt 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 err or when it dismissed Appellant’s claims under T EX

. C IV

. P RAC

. & R EM

. C ODE §101.106(f) because Appellant’s claims under the Texas Pena l Code and the Texas Constitution were not claims that fell under the Texas Tort Claims Act?

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

ISSUE NO. 3 RESTATED:
Did the trial court commit error when it dismissed Appellant’s claims pursuant to T EX

. C IV

. P RAC

. & R EM

. C ODE §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 err or when it dismissed Appellant’s claims pursuant to T EX

. C IV

. P RAC

. & R EM

. C ODE §101.106(f) because Appellees’ conduct when they arrested Appellant was within the general scope of their employmen t

.1 STATEMENT OF F ACTS
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 transporte d 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, w ho 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 gro und, 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 “ 2 nd 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 “ Pe titioner’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.2

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 fi led their motions to dismiss under Texas Civil Practice

and Remedies Code §101.106. (CR 138

- 141, 153

- 158) This matter was heard on

Janua ry 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.

SU MMARY 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 T EX

. C IV

. P RAC

. & R EM

. C ODE §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 the3

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 [14 th 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 jurisdic tion 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 Appel lant’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. Appellan t’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 cl aims are true and correct. Id.
Appellant failed to preserve any error regarding discovery or the lack of a
court reporter taking testimony. Under T EX

. R. A PP

. P. 33(a)(1), a party seeking to
preserve error for appellate review must show that the complaint was made to the4

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

motion. T EX
. R. A PP
. P. 33(a)(1) ; U. Lawrence Boze’ & Assoc. P.C. v. Harris
County Appraisal Dist. , 368 S.W.3d 17, 33 (Tex. App.

– Houston [1 st 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 preser ve
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 err or when it dismissed the claims against Appellees because all of Appellant’s claims we re 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 T EX

. C IV

. P RAC

. & R EM

. C ODE
§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 “ 2 nd Amendment ” pleading does not conta in a reference to the Texas Constitution. However, his supplements as to both Appellees, which he claimed were incorporated into his5

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 l iable 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

- drive n 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.

T EX
. C IV
. P RAC
. & R EM
. C ODE §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 em ployment 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 proceedi ng 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 s ubject to dismissal.6

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 withi n 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.

T EX
. C IV
. P RAC
. & R EM
. C ODE §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 defendant s 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 vire s

. Franka v.

Vasquez , 332 S.W.3d 367, 382 (Tex. 2011) . Since Appellant sued both Appellees
in their individual and official capaciti es 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’s7

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 i s 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 T TCA 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 [1 st

Dist.], no pet .). App ellant 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 c laims 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 constitution al 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 [1 st Dist.] 2011, pet. denied ); See Burdett v. Doe , 2008 WL
5264913, at *3 (Tex. App.

– Austin Dec. 17, 2008, no pet. ) ( while framed as a8

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 T EX
. C IV
. P RAC
. & R EM
. C ODE §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. Appell ant’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. 10.9

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.” T EX
. C IV
. P RAC
. & R EM
. C ODE §101.001(5)

. The Restatement (Third) of Agency provides addi tional 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 h eld 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 gover nmental unit in another suit. Id.10

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 dis missed 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.

PRAYER11

WH EREFORE, 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.12 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 Kosanovic h 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 Kosano vic h Mark Kosanovich13 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the A PPELLEES ’ B RIEF was forwarded via certified U.S. Mail to the following on the 10 th day of August, 2015, to:

John M. Donohue

- 1895073 Duncan Unit 1502 South 1 st Street Diboll, Texas 75941 /s/ Mark Kosanovic h Mark Kosanovich