Donald Foster v. Phillip M. Smith--Appeal from 260th District Court of Orange County

IN THE

TENTH COURT OF APPEALS

No. 10-02-123-CV

DONALD FOSTER,

Appellant

v.

PHILLIP M. SMITH,

Appellee

From the 260th District Court

Orange County, Texas

Trial Court # D-010222-C

O P I N I O N

This is an appeal from a grant of summary judgment. Because we find no genuine issue as to any material fact, we hold that summary judgment was properly granted and will affirm the trial court s judgment.

I. Background

Donald Foster sued Officer Phillip Smith, in Smith s official and individual capacities, for malicious prosecution. This claim arose from the investigation and subsequent arrest of Foster for robbery. Foster was indicted on a robbery charge and convicted of the lesser included offense of assault. After Foster was convicted of assault, he filed this lawsuit against Smith alleging that: 1) Smith knew or should have ascertained that the statements Smith made in the robbery case were false; and 2) there was no probable cause for Smith to believe that Foster was guilty of robbery. Foster further alleged that Smith s false statements were recklessly, willfully, and maliciously made to harass Foster.

Smith filed a motion for summary judgment on the basis that: 1) he was entitled to protection from the claims levied against him in his official capacity under the doctrine of sovereign immunity; 2) he was entitled to protection from the claims levied against him in his individual capacity under the affirmative defense of official immunity; and 3) he demonstrated that Foster could not prove each and every element of the malicious prosecution claim. Foster did not file a response to Smith s motion or present evidence in contradiction. The trial court granted Smith s motion for summary judgment without stating the grounds. Foster timely perfected his appeal.

In his appeal, Foster asserts only his claim against Smith in Smith s individual capacity. He makes no argument regarding any claim against Smith in Smith s official capacity, and does not present any argument against the application of sovereign immunity in that regard. Accordingly, we will not consider whether the trial court properly granted Smith summary judgment on the claims against him in his official capacity. We will consider those claims against Smith in his individual capacity and, therefore, those grounds upon which the trial court could have based its grant of summary judgment on those claims.

Separately, Foster attempts to present to this Court new theories under which his allegations could be tried. Specifically, he claims that this is a civil rights action brought under 42 U.S.C. 1983. Foster did not present these theories to the trial court in any of his pleadings and we will not now consider them. See Pratt v. City of Denton, 670 S.W.2d 786, 789 (Tex. App. Ft. Worth 1984, no writ) (stating that an appellant is limited to the theories upon which the case is tried, and may not appeal the case on new or different theories).

Finally, in two additional issues, Foster complains that summary judgment was not proper in this case because 1) he filed a request for an entry of default judgment; and 2) he had not completed his discovery at the time the summary judgment was granted. We will address these two issues first.

II. Default judgment

Rule 239 of the Texas Rules of Civil Procedure provides that a plaintiff may take judgment by default against a defendant if [the defendant] has not previously filed an answer, and provided that the citation with the officer s return thereon shall have been on file with the clerk for [ten days.] Tex. R. Civ. P. 107, 239. Foster filed an original petition on April 27 and an amended petition on June 25. There is no evidence in the record that either of these were served on Smith. Foster then filed a Request for Entry of Default on June 29. Three months later, on October 5, Foster filed another amended petition. According to the certificate of service attached to this petition it had been served on Smith by mail. Smith voluntarily filed an answer. The record does not reflect that citation was ever issued. Therefore, Foster was not entitled to a default judgment. We hold that the trial court did not err in not granting Foster a default judgment.

III. Discovery completion

Foster argues that the trial court improperly granted Smith summary judgment because Foster had not completed discovery. But, Foster had not filed an affidavit explaining the need for further discovery, nor a motion for continuance. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). Whether to allow more time for discovery is within a trial court s discretion. Id.; Tex. R. Civ. P. 166a(g). We hold that the trial court did not err in granting summary judgment without allowing Foster more time for discovery.

IV. Standard of Review for summary judgment

We review a summary judgment de novo. Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 653 (Tex. App. Waco 2000, pet. denied). The movant must prove that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion. Tex. R. Civ. P. 166a(c); e.g., Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When we review for whether a disputed material fact issue exists, we must accept as true all evidence favorable to the non-movant, and must resolve all doubts and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 548-49. When necessary to establish a fact issue, the non-movant must present summary judgment evidence. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982).

V. Official Immunity

Official immunity is an affirmative defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Therefore, in a summary judgment setting, the defendant must conclusively establish all elements of the defense to fulfill his burden. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). Official immunity will protect government employees from claims arising from the performance of their 1) discretionary duties in 2) good faith as long as they are 3) acting within the scope of their authority. Chambers, 883 S.W.2d at 653. There does not appear to be any dispute that Officer Smith was acting within his scope of authority as a police officer when he was investigating the robbery charges. Furthermore, there does not appear to be any dispute that Officer Smith was performing a discretionary duty while investigating Foster, because the duties incident to investigating a crime are discretionary ones. City of Hempstead v. Kmiec, 902 S.W.2d 118, 121 (Tex. App. Houston [1st Dist.] 1995, no writ). But, Foster appears to allege that Smith did not perform his investigation in good faith. This Court has stated the test for good faith in official immunity in the context of a summary judgment as whether the movant has proved that a reasonably prudent officer could have believed his actions were appropriate in light of clearly established law and the information possessed by the officer at the time the conduct occurred. City of Beverly Hills v. Guevara, 911 S.W.2d 901, 904 (Tex. App. Waco 1995, no writ). Whereas, the non-movant must controvert that proof by showing that no reasonable person in the officer s position could have thought the facts were such that they justified the officer s acts. Id.

Foster points to the summary judgment evidence which includes statements from the victim and a witness, police reports from Smith and a fellow officer, and a letter from Foster in which he brags about beating the victim to show that Smith did not perform a full investigation and made misrepresentations to the prosecutor. Smith points to these same statements from the victim and a witness, the consistency between the victim s injuries and the witness statements, and the proximity of Foster to the area where the alleged crime occurred to show that a reasonably prudent officer could have believed his actions were appropriate in light of clearly established law. Foster s argument appears to be that he obviously did not rob the victim; he merely to quote Foster beat his ass up real bad. But, the summary judgment evidence contains the victim s statement that Foster threatened him with violence if he did not give Foster his money, and that Foster reached into the victim s pockets for money. Immediately thereafter, Foster beat the victim unconscious. Foster introduced no evidence to contradict this statement. The evidence establishes Smith s good faith belief that Foster was guilty of robbery. We hold that Foster did not meet his burden of showing that no reasonable police officer could have thought that Foster committed robbery. Therefore, summary judgment was properly granted on the basis of official immunity and we need not consider any other grounds. See Tex. R. App. P. 47.1.

VI. Conclusion

Because we find no genuine issue as to any material fact, we hold that summary judgment was proper, and we affirm the trial court s judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed October 30, 2002

Do not publish

[CV06]