Opinion
No. 04-16-00679-CV
05-10-2017
John M. DONOHUE, Appellant v. William MCMANUS, Appellees
MEMORANDUM OPINION
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CI12457
Honorable Larry Noll, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
John M. Donohue appeals the trial court's order granting a motion to dismiss filed pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code. Although the arguments raised in Donohue's opening brief conflict with statements made in his reply brief, Donohue appears to be challenging the trial court's dismissal of Donohue's claims against Chief William McManus, the Chief of Police of the San Antonio Police Department, based on the trial court's determination that those claims were asserted against Chief McManus in his official capacity. We affirm the trial court's order.
BACKGROUND
This appeal arises out of the same underlying lawsuit as a prior interlocutory appeal in which this court affirmed the trial court's order dismissing Donohue's claims against two police officers arising from the same facts. See Donohue v. Dominguez, 486 S.W.3d 50 (Tex. App.—San Antonio 2016, pet. denied). Accordingly, we rely on our prior opinion to summarize the following background:
Donohue originally filed suit against the San Antonio Police Department; the San Antonio Police Chief; Bexar County EMS; and Officers Dominguez and Nakata, in both their individual and official capacities. According to Donohue's petition, in August 2014, he called the police's non-emergency number to request a police report be taken at his mother's home "concerning items involved in a divorce case." Donohue alleged that he then drove to his mother's home, calling his mother on the way. When his mother answered the phone, she was very upset and told him that police officers were already present at her home. She then passed the phone to Officer Dominguez who, according to Donohue's petition, started "asking simple questions in a strange manner" and demanded to know where Donohue was.
When Donohue arrived at his mother's home, the windows of his pickup truck were rolled down. According to Donohue's petition, Officer Dominguez went to the driver's side window of his pickup truck while Officer Nakata went to the passenger side window. Donohue alleged that Officer Nakata "attempt[ed] to reach into the truck through the passenger side window." Donohue rolled up the windows and told the officers to call him on his cell phone. The officers allegedly told Donohue that they wanted him out of the truck. According to Donohue's petition, the officers agreed to go inside his mother's home to talk. Donohue got out of his pickup truck and began walking towards the house when the officers allegedly "jumped him and threw him to the ground face down." Donohue alleged that the officers grabbed his "forearms and pulled them behind his back." Donohue alleged that he suffered personal injuries as a result and that "EMS personnel watched without intervening." Donohue was handcuffed and taken to Officer Dominguez's patrol car. Donohue alleged that he "was shoved into the backseat where his legs became wedged between the backseat and the door opening ... Officer [Nakata] began kicking Donohue's legs and knees trying to force them inside the door." The officers took Donohue to the emergency room, and Donohue was treated that night.
With respect to Officers Dominguez and Nakata, Donohue brought claims for false imprisonment, assault, and aggravated assault, which he alleged were brought pursuant to chapters 20, 22, and 39 of the Texas Penal Code. Donohue
also alleged violations under article, 1, sections 9, 13, and 19 of the Texas Constitution.Donohue, 486 S.W.3d at 52-53. Donohue appealed the trial court's order, and this court affirmed the order dismissing Donohue's claims against Officers Dominguez and Nakata. Id. at 58.
Officers Dominguez and Nakata then moved to dismiss pursuant to the Texas Tort Claims Act. [By order dated January 8, 2015,] [t]he trial court granted the motions and dismissed all of Donohue's claims against Officers Dominguez and Nakata with prejudice.
On February 17, 2015, Donohue nonsuited his claims against the San Antonio Police Department and Bexar County EMS. Accordingly, the only remaining defendant was Chief McManus.
On July 21, 2016, Donohue filed a third amendment to his pleadings alleging he was suing Chief McManus "in his individual capacity as respondeat superior." Donohue alleged Chief McManus was vicariously liable for the actions of Officers Dominguez and Nakata. Donohue further alleged Chief McManus authorized Officers Dominguez and Nakata to use excessive force in an effort to portray himself as tough on crime and to "cause civilians to cower in the presence of law enforcement."
Donohue referred to Chief McManus as the San Antonio Chief of Police or chief, noting "the chief's proper name is not known to Plaintiff at this time."
On September 2, 2016, Chief McManus filed a motion to dismiss. The motion asserted Donohue's claims against Chief McManus must be dismissed under section 101.106(f) because Chief McManus was acting within the scope of his employment and was sued for claims that could have been asserted against the City of San Antonio.
Officers Dominguez and Nakata also joined the motion in the event Donohue's third amendment sought to assert additional claims against them. At the hearing on the motion, Donohue stated his pleading did not assert any additional claims against Officers Dominguez and Nakata who were no longer parties to the suit, and Donohue does not challenge on appeal the portion of the trial court's order dismissing any claims his pleading might have alleged against Officers Dominguez and Nakata. Accordingly, the portion of the trial court's order dismissing Donohue's claims, if any, against Officers Dominguez and Nakata is not before us in this appeal.
On September 13, 2016, the trial court held a hearing on Chief McManus's motion. After the trial court announced its intention to grant Chief McManus's motion, the following exchange occurred:
MR. DONOHUE: Under 101.106(f) when the employees are dismissed, the plaintiff — and I'm reading — I can read it to you. Plaintiff can file a motion within 30 days within the date of dismissal to name the city or the governmental entity as defendant which I'm doing now. The city of — I'm naming the — I'm dismissing — along with the court, I'm dismissing the other defendants and naming the City of San Antonio and the San Antonio Police Department as defendants under 101.106(f) and 101.106(b).In response to this statement, Chief McManus's attorney asked if Donohue already had filed an amended pleading, and Donohue responded:
MR. DONOHUE: No. I'm — For the record, I'm doing it now, but I will file it in writing within 30 days as provided under section 101.106(f) and (b).
We note Donohue misquotes section 101.106(f) which provides as follows:
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 30th day after the date the motion is filed.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011) (emphasis added). Therefore, Donohue was required to file his amended pleading within 30 days after the date Chief McManus filed his motion, not within 30 days of the date of dismissal.
The clerk's record filed in this appeal does not contain any such amended pleading; however, the record does contain an Order Denying Petition for Permission to File dated October 18, 2016, which states:
On this date, the Court considered Plaintiff's, JOHN M. DONOHUE, Amendment #4 Plaintiff Amends Pleadings to Name San Antonio Police Department (SAPD) as Defendant. The Court has construed this pleading as a Petition for Permission to File by a Vexatious Litigant. After considering the Petition, the Order Granting Defendants' Motion to Declare Plaintiff a Vexatious Litigant entered in Cause No. CV-15-0000271 in the 198th Judicial District in Bandera County, Texas, and the pleadings and orders filed in this cause, the Court finds that the litigation is lacking in merit. The Court finds that the litigation is being filed for purposes of harassment and delay. The Court finds that the Amendment #4 to Plaintiff Amends Pleadings to Name San Antonio Police
Department (SAPD) as Defendant, which has been construed as a Petition for Permission to File by a Vexatious Litigant, should be denied.
IT IS THEREFORE ORDERED that Plaintiff's, JOHN M. DONOHUE, Amendment #4 to Plaintiff Amends Pleadings to Name San Antonio Police Department (SAPD) as Defendant, which has been construed as a Petition for Permission to File by a Vexatious Litigant, is DENIED.
Donohue appeals the trial court's order granting Chief McManus's motion to dismiss.
ISSUES PRESENTED
In his opening brief, Donohue asserts the trial court abused its discretion in determining his claims were against Chief McManus based on conduct within the general scope of his employment and therefore were against Chief McManus in his official capacity only. Donohue contends Chief McManus's scope of employment did not include the authority to assign illegal tasks, i.e., authorize the use of excessive force by Officers Dominguez and Nakata. Although Donohue further asserts the trial court erred in not allowing him to file his amending pleading against the San Antonio Police Department, Donohue acknowledges he cannot appeal the trial court's order denying him permission to file the amended pleading and states he is not attempting to appeal that order. In his reply brief, however, Donohue contends he amended his pleading to dismiss Chief McManus and substitute the San Antonio Police Department and that Chief McManus "and the local administrative judge fail to cite authority under which the local administrative judge is authorized to determine the merits of Subsection 101.106(f) and (b)." Donohue further contends his amended pleading is "authorized under Subsection 101.106(f)." Donohue appears to be arguing that the local administrative judge is without authority to prevent him from filing an amended pleading in compliance with section 101.106(f).
In his opening brief, Donohue also makes reference to the trial court's denial of his request for discovery. The record, however, contains no ruling by the trial court on a request for discovery. Accordingly, any complaint regarding discovery is not preserved for this court's consideration. See TEX. R. APP. P. 33.1; see also Donohue, 486 S.W.3d at 57 (noting error not preserved with regard to complaint regarding trial court's dismissal of claims without meaningful discovery because complaint was not presented to or ruled on by trial court).
In his brief, Chief McManus notes the inconsistency in Donohue's arguments, asserting Donohue argues the trial court erred in granting the motion to dismiss but also argues he dismissed his claims against Chief McManus at the hearing on the motion to dismiss. Chief McManus contends, "If, as [Donohue] claims, he dismissed McManus and abandoned his claims, then the trial court's dismissal of McManus is a moot point and there is no longer a controversy involving McManus."
Given the inconsistency in Donohue's arguments, we will first discuss whether the trial court properly determined the claims against Chief McManus were based on conduct within the general scope of his employment. We will then address Donohue's complaint regarding the amended pleading.
DISMISSAL UNDER SECTION 101.106(f)
Section 101.106(f) applies "[i]f a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment." TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). The Texas Tort Claims Act defines "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." Id. at § 101.001(5) (West Supp. 2016). "'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.'" Donohue, 486 S.W.3d at 56 (quoting Alexander v. Walker, 435 S.W.3d 789 (Tex. 2014)) (emphasis in orig.).
In this case, Donohue's allegations relate to Chief McManus's supervision of Officers Dominguez and Nakata. Although Donohue alleges Chief McManus's supervisory methods attempted to portray himself as tough on crime and to cause civilians to "cower" in his officers' presence, Donohue "did not allege an independent course of action by [Chief McManus] intended to further [his] own purpose only and thereby not intended to serve any purpose of the San Antonio Police Department." Id. at 57 (emphasis in orig.); see also Donohue v. Koehler, No. 04-16-00190-CV, 2017 WL 943427, at *1 & n.3, 7 (Tex. App.—San Antonio Mar. 8, 2017, no pet.) (mem. op.) (holding claims that City of Boerne's police chief was vicariously liable as supervisor of officer who allegedly committed torts during arrest were within scope of police chief's employment); Donohue v. Butts, No. 04-15-00696-CV, 2017 WL 361762, at * 2 (Tex. App.—San Antonio Jan. 25, 2017, no pet.) (holding claims against Bandera County sheriff based on allegations he acted as supervisor of officers who allegedly falsified documents and committed perjury were within the general scope of sheriff's employment). Therefore, the trial court did not err in granting Chief McManus's motion to dismiss because the claims were against Chief McManus based on conduct within the general scope of his employment.
AMENDED PLEADING
With regard to Donohue's complaints regarding the trial court's failure to file his amended pleading, the record establishes the local administrative judge construed the amended pleading as a petition for permission to file by a vexatious litigant. Section 11.102(a) of the Texas Civil Practice and Remedies Code prohibits a vexatious litigant who is subject to a prefiling order from filing, pro se, new litigation without seeking the permission of the local administrative judge. TEX. CIV. PRAC. & REM. CODE ANN. § 11.102(a) (West Supp. 2016). The local administrative judge may grant a vexatious litigant permission to file a litigation only if it appears to the judge that the litigation has merit and has not been filed for purposes of harassment or delay. Id. at § 11.102(d).
In this case, the local administrative judge denied Donohue permission to file his amended pleading, finding "the litigation [was] lacking in merit" and was "being filed for purposes of harassment and delay." As Donohue acknowledges in his brief, "[a] decision of the appropriate local administrative judge ... denying a litigant permission to file a litigation ... is not grounds for appeal, except that the litigant may apply for a writ of mandamus with the court of appeals not later than the 30th day after the date of the decision." Id. at § 11.102(f). Accordingly, this court does not have jurisdiction in this appeal to consider any complaint regarding the local administrative judge's refusal to allow Donohue to file his amended pleading. Therefore, we dismiss Donohue's complaints regarding the trial court's refusal to file his amended pleading for lack of jurisdiction.
We note this court previously denied an application for a writ of mandamus filed by Donohue challenging the local administrative judge's order. See In re Donohue, No. 04-16-00749-CV, 2016 WL 6885745 (Tex. App.—San Antonio Nov. 23, 2016, orig. proceeding).
We note a clerk of a court may not file a claim presented, pro se, by a vexatious litigant subject to a prefiling order unless the litigant obtains an order from the appropriate local administrative judge permitting the filing. TEX. CIV. PRAC. & REM. CODE ANN. § 11.103(a).
CONCLUSION
The trial court's order is affirmed.
Sandee Bryan Marion, Chief Justice