Charles D. Cronen v. John R. Ray and the City of Houston, Texas--Appeal from 127th District Court of Harris County

Affirmed and Memorandum Opinion filed September 5, 2006

Affirmed and Memorandum Opinion filed September 5, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00788-CV

NO. 14-05-00789-CV

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CHARLES D. CRONEN, Appellant

V.

JOHN R. RAY AND THE CITY OF HOUSTON, TEXAS, Appellees

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause Nos. 04-10529 & 03-41954

M E M O R A N D U M O P I N I O N

This is a consolidated appeal from two nearly identical lawsuits brought by appellant, Charles D. Cronen, against appellees John R. Ray and the City of Houston, Texas. In both lawsuits appellant sued appellees for false arrest, false imprisonment, and negligence. Appellant appeals pro se the trial court=s dismissal of both lawsuits as a result of various motions filed by appellees. We affirm.

Factual and Procedural Background

Appellant is a disabled veteran who supplements his disability income by panhandling along major traffic arteries in Houston, Texas. On August 25, 2001 and again on April 13, 2002, Houston Police Officer John R. Ray arrested appellant for blocking a public passageway and for failing to discontinue panhandling in violation of section 552.007 of the Texas Transportation Code. Tex. Transp. Code Ann. ' 552.007 (Vernon 1999). After each arrest Officer Ray took appellant into custody and appellant was held at the City of Houston (Athe City@) detention facility until all charges against appellant were dismissed.

Appellant filed two separate pro se lawsuits, one addressing each arrest and detention, against appellees. In both lawsuits, appellant sued the City and Officer Ray based on actions taken by Officer Ray while working in his official capacity as a police officer employed by the City. In both lawsuits, appellant sought damages for false arrest, false imprisonment, and negligent training of police officers and detention center staff, which allegedly led to his false arrest and false imprisonment.[1] In the lawsuit addressing his August 2001 arrest (ALawsuit One@), appellant sought $1,200,000.00 in compensatory damages, as well as exemplary damages. In the lawsuit addressing his April 2002 arrest (ALawsuit Two@), appellant sought $2,000,000.00 in compensatory damages, as well as exemplary damages.

In Lawsuit One, appellees initially filed Special Exceptions attacking appellant=s Original Petition. Appellees argued the Texas Tort Claims Act (ATTCA@) did not permit appellant=s causes of action for intentional torts or exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. '' 101.024, 101.057 (Vernon 2005). In addition, appellees argued appellant=s negligence cause of action did not fall within any of the exceptions to the government=s immunity found in the TTCA. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001, et seq. (Vernon 2005). The trial court granted appellees= Special Exceptions and dismissed appellant=s negligence and intentional tort causes of action, without giving appellant the opportunity to replead.

Next, appellees filed a Plea to the Jurisdiction and alternatively, Motion for Summary Judgment. Repeating some of the arguments found in the Special Exceptions, appellees argued appellant failed to plead a cause of action within the limited waiver of governmental immunity set out in the TTCA. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001, et seq. Appellees also asserted limitations as a ground for summary judgment. The trial court granted appellees= Plea to the Jurisdiction and Motion for Summary Judgment dismissing appellant=s remaining causes of action.

In Lawsuit Two, appellees first filed a Motion to Dismiss Suit Against Defendant John R. Ray pursuant to section 101.106 of the Civil Practice & Remedies Code. Appellees argued appellant, by filing suit against the City and Officer Ray, made an irrevocable election to proceed against the City and bars any suit or recovery against the individual employee of the governmental unit regarding the same subject matter. Tex. Civ. Prac. & Rem. Code Ann. ' 101.106 (Vernon 2005). The trial court granted the motion.

Next, appellees filed Special Exceptions attacking appellant=s Original Petition. Appellees argued the TTCA did not permit appellant=s causes of action for intentional torts or exemplary damages. See Tex. Civ. Prac. & Rem. Code Ann. '' 101.024, 101.057. In addition, appellees argued appellant=s negligence cause of action did not fall within any of the exceptions to the government=s immunity found in the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001, et seq. The trial court granted appellees= Special Exceptions and dismissed appellant=s negligence and intentional tort causes of action without giving appellant an opportunity to replead. Finally, appellees filed a Plea to the Jurisdiction and alternatively, Motion for Summary Judgment. Once again repeating some of the arguments found in the Special Exceptions, appellees argued appellant failed to plead a cause of action within the limited waiver of governmental immunity set out in the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001, et seq. The trial court granted appellees= Plea to the Jurisdiction dismissing appellant=s remaining causes of action in Lawsuit Two.

The trial court denied appellant=s motions for new trial filed in both lawsuits, and this appeal followed.

Discussion

Appellant raises fifteen issues for review in Lawsuit One and sixteen issues for review in Lawsuit Two. With the exception of Issue 16 in Lawsuit Two, the issues raised by appellant in both lawsuits are identical.

It is difficult to decipher from appellant=s briefs the exact nature and scope of his complaints or even to determine all potential issues from his briefs. Some of appellant=s arguments are incomprehensible. Some are multifarious. Some are presented in such a general manner that we cannot determine, with any degree of certainty, the precise nature of the complaints, or the relevancy to these appeals. Even indulging in a liberal construction of the briefing rules, this court can hardly escape the conclusion that these briefing deficiencies result in waiver. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.CEl Paso 2006, no pet. h.). Nevertheless, in the interests of justice, notwithstanding this waiver, we will consider appellant=s issues on the merits to the degree that we can. See Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990).

As many of the issues raised by appellant duplicate one another, we group them by subject. In issues 1 through 6, 9 through 12, and 14 through 16, appellant appears to be arguing, in essence, that governmental immunity for municipalities is not the law of Texas and the TTCA does not apply to these cases. Appellant argues in issues 7 and 8 that governmental immunity violates the Open Courts provision in the Texas Constitution. In issue 13, appellant asserts the trial court erred when it denied his motion for new trial in both lawsuits.

I. Standard of Review

A. Plea to the Jurisdiction

A plea to the jurisdiction should be sustained if there is an incurable jurisdictional defect apparent from the face of the pleadings, even if all of the allegations in the plaintiff=s pleadings are taken as true. Tex. Mun. Power Agency v. Public Utility Comm=n, 100 S.W.3d 510, 515 (Tex. App.CAustin 2003, pet. denied). An appellate court reviews a trial court=s ruling on a plea to the jurisdicition de novo because it is a question of subject matter jurisdiction. Moore v. Univ. of Houston-Clear Lake, 165 S.W.3d 97, 101 (Tex. App.CHouston [14th Dist.] 2005, no pet.). When a plea to the jurisdiction challenges the existence of jurisdictional facts, courts consider the relevant evidence submitted by the parties to resolve the jurisdictional issues raised. Tex. Dep=t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). An appellate court reviews the pleadings and any evidence relevant to the jurisdictional issue. Id. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.

B. Summary Judgment

The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in his favor. Id. at 548B49. We review a trial court=s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

C. Special Exceptions

A special exception is a proper method to determine whether a plaintiff has pleaded a cause of action. Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.CHouston [1st Dist.] 2005, pet. denied). We review de novo a trial court=s dismissal upon special exceptions; the legal question being whether the pleadings stated a cause of action. Boales v. Brighton Builders, 29 S.W.3d 159, 163 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). We accept as true all factual allegations set forth in the pleading. Id. When there is a defect in the pleadings that cannot be cured by an amendment, the trial court may dismiss claims without providing an opportunity to amend the defective pleading. Zaremba v. Cliburn, 949 S.W.2d 822, 829 (Tex. App.CFort Worth 1997, writ denied).

D. Motion for New Trial

When reviewing a trial court=s denial of a motion for new trial, we use an abuse of discretion standard of review. Novosad v. Cunnigham, 38 S.W.3d 767, 770 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

 II. Were Appellees Immune From Appellant=s Suits?

Appellant is incorrect in arguing that governmental immunity is not Texas law. Sovereign immunity, unless waived, protects the state from lawsuits for damages. Gen. Servs. Comm=n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). A municipality, as a political subdivision of the state, is not liable for the acts of its officers or other employees committed in the course of performing governmental functions unless the municipality=s common law immunity is waived by the TTCA. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(3)(B) (Vernon 2005); Williams v. Houston Firemen=s Relief and Retirement, 121 S.W.3d 415, 437 (Tex. App.CHouston [1st Dist.] 2003, no pet.). The operation of a police department is a governmental function. Cronen v. Nix, 611 S.W.2d 651, 653 (Tex. Civ. App.CHouston [1st Dist.] 1980, writ ref=d n.r.e.).

The TTCA provides a limited waiver of immunity from suit that would otherwise not exist, but it does not create causes of action. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). The TTCA waives immunity from liability and immunity from suit under certain circumstances and limits the dollar amount which can be recovered. Tex. Civ. Prac. & Rem. Code Ann. '' 101.021, 101.023, 101.025 (Vernon 2005). The TTCA waives governmental immunity in only three areas: (1) claims arising out of the use of motor driven vehicles and equipment; (2) claims arising from a condition or use of personal property; and (3) claims arising from a condition or use of real property. Tex. Civ. Prac. & Rem. Code Ann. ' 101.021. The TTCA does not waive immunity from exemplary damages. Tex. Civ. Prac. & Rem. Code Ann. ' 101.024. In addition, the TTCA does not waive immunity for claims arising out of intentional torts, such as false arrest or imprisonment. Tex. Civ. Prac. & Rem. Code Ann. ' 101.057.

Appellant sued appellees for false arrest and false imprisonment. These constitute intentional torts and therefore are barred. See id. In addition, appellant=s claims that the City was negligent in training its police officers, which allegedly resulted in his false arrest and imprisonment, do not fall within the limited waiver of immunity for negligent acts created by the TTCA and are barred. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021. Finally, appellant=s claims for exemplary damages are barred as well. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.024.

As for appellant=s claims against Officer Ray, they, too, are barred. A police officer is an agent of the government. Morgan v. City of Alvin, 175 S.W.3d 408, 414 (Tex. App.CHouston [1st Dist.] 2004, no pet.). All of the police officer=s power and authority is derived from the governmental entity that employs him. Id. A suit against a police officer in his official capacity is merely another way of pleading a suit against the governmental entity of which the officer is an agent. Id. Since appellant sued Officer Ray in his official capacity, his claims against Officer Ray are treated as claims against the City, his employer. Id. at 415. Thus, governmental immunity applies to Officer Ray, and appellant=s claims against Officer Ray are barred by immunity. See Tex. Civ. Prac. & Rem. Code Ann. '' 101.021, 101.057.

As all of appellant=s causes of action are barred by governmental immunity, the trial court did not err in granting appellees= Special Exceptions and Pleas to the Jurisdiction and Alternatively Motions for Summary Judgment. We overrule appellant=s issues 1 through 6, 9 through 12, and 14 through 16.

III. Does Governmental Immunity Violate the Open Courts Provision of the Texas Constitution?

In issues 7 and 8, appellant argues governmental immunity violates the Open Courts provision found in the Texas Constitution as it deprives him of compensation for his alleged injuries arising out of the actions of Officer Ray. We disagree.

The Open Courts provision of the Texas Constitution provides that Aall courts shall be open, and every person for any injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.@ Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex. 1997) (quoting Tex. Const. art. I, ' 13). The Open Courts provision affords three distinct protections. First, courts must be open and operating. Id. Second, citizens must have access to the courts unimpeded by unreasonable financial barriers. Id. Finally, the law must afford meaningful legal remedies to Texas citizens, so the Texas legislature may not abrogate the right to assert a well-established common law cause of action. Id. The Open Courts provision applies only to statutory restrictions of a cognizable common law cause of action. Id.

Appellant=s Open Courts argument implicates the third guarantee: whether sovereign immunity unconstitutionally deprived him of a meaningful legal remedy. Appellant complains that this court, by upholding the trial court=s dismissal of his causes of action pursuant to sovereign immunity law, would violate the Open Courts provision. Appellant does not complain of any legislative action that prevents him from maintaining his lawsuits. Since appellant does not challenge a legislative act that abridges a cognizable common law claim, his Open Courts challenge is without merit. Id. We overrule appellant=s issues 7 and 8.

 IV. Did the Trial Court Err When It Denied Appellant=s Motions for New Trial?

In Issue 13, appellant contends the trial court erred when it denied his motions for new trial. Here, appellant=s arguments consist of the following: Athe court has clearly ignored and disregarded the Texas Constitution and law. That is fundamental error. The Motion for New Trial should have unhesitantly [sic] been granted, in the interest of justice, under the Rule.@ An appellant=s brief must contain a clear, concise argument for the contentions made, including appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.). An issue not supported by authority or references to the record is waived. Id. Accordingly, appellant has waived review of this issue. We overrule appellant=s issue 13.

Conclusion

Having overruled all of appellant=s issues on appeal, we affirm the trial court=s judgment dismissing with prejudice appellant=s lawsuits against appellees.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed September 5, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

[1] In numerous pleadings and other documents filed with the trial court, as well as his briefing in this appeal, appellant affirmatively stated his lawsuits were suits for damages for false arrest and false imprisonment under the common law of England as preserved by the Texas Constitution and were not lawsuits brought under the United States Constitution or any federal statute, such as 42 U.S.C. '1983.