Opinion
No. 06-17-00004-CV
07-06-2017
RUTHEN JAMES WEEMS III, Appellant v. MOTEL 6 OPERATING LP, THE CITY OF WACO, AND MCLENNAN COUNTY, ET AL., Appellees
On Appeal from the 414th District Court McLennan County, Texas
Trial Court No. 2015-4756-5 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
After Ruthen James Weems, III, was arrested at a motel in Waco by law enforcement officers, he filed this suit against Motel 6 Operating LP (Motel 6), The City of Waco (the City), and McLennan County (the County), asserting claims for, inter alia, invasion of privacy, assault, and false arrest. Motel 6 filed motions for traditional and no-evidence summary judgment, and the City and the County both filed pleas to the jurisdiction, all of which were granted by the trial court. On appeal, Weems complains that the trial court erred in granting the City's and the County's pleas to the jurisdiction because (1) his claims fall within the waiver of sovereign immunity provided in Section 101.021 of the Texas Civil Practice & Remedies Code, (2) whether the officers' actions were intentional is a fact question for the jury, and (3) the failure of the City and the County to respond to his discovery requests precluded the granting of the pleas to the jurisdiction. Weems also complains that the trial court erred in granting summary judgment in favor of Motel 6 because (4) the failure of Motel 6 to answer his discovery requests precluded summary judgment in its favor, (5) Motel 6 did not conclusively establish its defense as a matter of law, and (6) he produced evidence of all the elements of his invasion of privacy claim. We find that Weems' claims do not fall within the provisions of Section 101.021 and that Weems has waived his remaining points of error. Therefore, we will affirm the judgment of the trial court.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
We note that although Motel 6 only asserted its right to summary judgment on Weems' claim for invasion of privacy, the trial court's judgment dismisses "all claims and causes of action of [Weems] against [Motel 6]" and recites that "all claims and causes of action in this case by Plaintiff against all Defendants herein have hereby been disposed of and ruled upon and therefore it is, hereby, ORDERED that this is a Final Judgment." In a case without a conventional trial, the trial court's judgment is final for the purposes of appeal if "it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Therefore, we find that the judgment appealed from is a final judgment and that we have jurisdiction over this appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 51.012 (West 2015).
We surmise that this is what Weems is attempting to state. However, it is almost impossible to determine precisely whether this is truly a point which Weems attempts to raise on appeal.
I. Waived Points of Error
Initially, Motel 6 argues that Weems has waived all of his points of error by filing a non-compliant brief. As to most of Weems' points of error, we agree. We note that Weems has not provided any citations to the record in support of any of his points of error. In addition, as to some of his points of error, Weems fails to cite appropriate legal authority or to make a concise argument. An appellant's brief is required to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). This requirement cannot be satisfied by conclusory statements, unsupported by citation to appropriate legal authority. Betts v. Cty. of Freestone, No. 10-09-00220-CV, 2011 WL 2480007, at *2 (Tex. App.—Waco June 22, 2011, no pet.) (mem. op.) (citing Taylor v. Meador, 326 S.W.3d 682, 684 (Tex. App.—El Paso 2010, no pet.)).
"An issue not supported by references to the record is waived." Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see also Giraldo v. Sw. Adventist Univ., No. 10-16-00145-CV, 2017 WL 1573143, at *1 (Tex. App.—Waco Apr. 26, 2017, no pet.) (mem. op.) (issues waived when no citations to the record provided). Further, "[f]ailure to cite legal authority or provide substantive analysis of an issue waives the complaint." Betts, 2011 WL 2480007, at *2 (quoting Taylor, 326 S.W.3d at 684). "An appellate court has no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred." Id. at *1 (citing Karen Corp. v. The Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 125 (Tex. App.—Fort Worth 2003, pet. denied); Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). If we did so, we would abandon our role as a neutral adjudicator and become an advocate for the appellant. In re Estate of Taylor, 305 S.W.3d 829, 837 (Tex. App.—Texarkana 2010, no pet.) (citing Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet. denied) (per curiam)). For the same reason, "we cannot speculate as to the substance of the specific issues appellant claims we must address." Betts, 2011 WL 2480007, at *1 (citing Plummer, 93 S.W.3d at 931). "[P]ro-se litigants are held to the same standards as licensed attorneys with regard to compliance with applicable laws and rules of procedure." Giraldo, 2017 WL 1573143, at *1 (quoting Warren v. McLennan Cty. Judiciary, No. 10-13-00009-CV, 2013 WL 3344166, at *1 n.2 (Tex. App.—Waco June 27, 2013, no pet.) (mem. op.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.—Dallas 2008, no pet.)).
In his second point of error, we believe that Weems may be complaining that (in an effort to circumvent the claims of governmental immunity) whether the conduct of the officers was intentional is a matter to be determined by the jury. Weems makes no citations to the record or to appropriate legal authority in support of this issue. Further, one must engage in substantial speculation to determine that this is truly the gist of Weems' complaint. Since he failed to comply with Rule 38.1(i), Weems has waived this point of error. See id.; Betts, 2011 WL 2480007, at *2.
In his third and fourth points of error, Weems complains that the City, the County, and Motel 6 failed to comply with his discovery requests and that if they had complied, the trial court would not have granted the pleas to the jurisdiction and the motion for summary judgment. Weems makes no citations to the record to enable us to determine whether these issues have merit or whether they have been preserved for our review. Since he failed to comply with Rule 38.1(i), Weems has waived these points of error. See Giraldo, 2017 WL 1573143, at *3.
In his fifth point of error, Weems makes the conclusory statement that Motel 6 has failed to establish all of the elements of its defense, then he argues that the trial court erred in granting summary judgment without requiring all of the appellees to comply with his discovery requests. Again Weems makes no citations to the record. In addition, since his argument addresses a different point of error, we would be required to speculate as what point of error he is asserting. Weems has waived this point of error. See id.; Betts, 2011 WL 2480007, at *1.
We also note that if Weems' point of error is that Motel 6 has failed to establish its defense as a matter of law, this point of error is without merit. Motel 6 did not assert its entitlement to summary judgment based on any defense. Rather, its motion for traditional summary judgment was based on its contention that under the facts as alleged by Weems, it was not liable as a matter of law. Its motion for no-evidence summary judgment asserted that there was no evidence that any Motel 6 staff issued a passkey to the officers prior to being presented with a search warrant and that there was no evidence that any Motel 6 staff intentionally intruded upon Weems' solitude, seclusion, or private affairs by a physical invasion of his property, or that any such intrusion would be highly offensive to a reasonable person.
In his sixth point of error, Weems complains the trial court erred in granting summary judgment to Motel 6 because he produced evidence of all the elements of his invasion of privacy claim. However, Weems makes no citations to the record where he produced such evidence. In addition, he does not make any argument supporting his claim that Motel 6, assuming it supplied a passkey to the officers, should be held liable for the alleged invasion of privacy. Assertions made in pleadings are not competent summary judgment evidence. Hidalgo v. Surety Savs. & Loan Assoc., 462 S.W.2d 540, 543-44 (Tex. 1971). Weems has waived this point of error. See Giraldo, 2017 WL 1573143, at *3; Betts, 2011 WL 2480007, at *1.
Even if Weems had not waived this point of error, we note that this point of error only challenges the trial court's granting of Motel 6's motion for no-evidence summary judgment. In its judgment, the trial court also granted Motel 6's traditional motion for summary judgment. Since multiple grounds were asserted for summary judgment and the trial court did not specify the ground on which its judgment was rendered, Weems was required to negate all grounds on appeal. Peeler v. Baylor Univ., No. 10-08-00157-CV, 2010 WL 2964375, at *2 (Tex. App.—Waco Sept. 16, 2009, no pet.) (mem. op.). On appeal, Weems does not challenge the trial court's granting of a traditional summary judgment in favor of Motel 6. Since Weems failed to do so, we must uphold the summary judgment. See id.
Since Weems has waived all of his points of error attacking the summary judgment in favor of Motel 6, we will affirm the trial court's judgment in favor of Motel 6.
II. The Trial Court Did Not Err in Granting the Pleas to the Jurisdiction
In his first point of error, Weems complains that the trial court erred in granting the City's and the County's pleas to the jurisdiction because his claim falls under the limited waiver of governmental immunity contained in Section 101.021 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2011). He argues that his petition shows that his invasion of privacy claim was caused by the misuse of personal property, a passkey, by the law enforcement officers to open the door of his motel room.
Although Weems makes no citation to the record under this point of error, he does make a concise argument with appropriate citations to legal authority. In addition, the pleas to the jurisdiction were based on Weems' inability to plead facts that would show the City and the County had waived their immunity. Since the resolution of this issue only requires us to review Weems' live pleading, we will address this issue in the interest of justice.
Although Weems' live pleading at the time of the hearing on the pleas to the jurisdiction also asserted claims for assault and false arrest, Weems makes no complaint on appeal regarding the trial court's grant of the pleas to the jurisdiction as to these claims.
A. Standard of Review
"[S]overeign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)). Cities and counties, as governmental units, are "immune from tort liability for [their] own acts or the acts of [their] agents unless the Tort Claims Act waives immunity." City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998); Cty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (West Supp. 2016) (defining a city and a county as a governmental unit).
Since "[s]overeign immunity from suit defeats a trial court's subject matter jurisdiction, [it] is properly asserted in a plea to the jurisdiction." Miranda, 133 S.W.3d at 225-26 (citing Jones, 8 S.W.3d at 637). We review a trial court's ruling on a challenge to its jurisdiction de novo. Id. at 228 ; Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
The plaintiff has the initial burden to demonstrate the trial court's jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); see Miranda, 133 S.W.3d at 226. The pleadings are construed liberally in favor of the plaintiff, looking to the plaintiff's intent. Miranda, 133 S.W.3d at 226. "If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial courts [sic] jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend." Id. at 226-27 (citing Brown, 80 S.W.3d at 555). Conversely, "[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend." Id. at 227 (citing Brown, 80 S.W.3d at 555).
B. Background
While investigating an aggravated assault of Ernest Bradshaw, law enforcement officers saw an automobile matching the description of the automobile occupied by the alleged assailant in the parking lot of the Motel 6 located at 3120 I-35 South in Waco. After determining that the automobile belonged to the persons staying in room number 226 of the motel, the officers knocked on the door of the room. According to Weems' pleadings, when Weems failed to respond, the officers used a key supplied to them by Motel 6 to gain admission to the room. After the officers gained access to the room, Weems was arrested for the aggravated assault of Bradshaw, and the officers obtained a search warrant to search the hotel room.
As a result of the events that night, Weems originally sued Motel 6 asserting claims for, inter alia, invasion of privacy. By his amended complaint, Weems sued Motel 6, the City, and the County asserting claims for, inter alia, invasion of privacy, assault, and false arrest. In his amended complaint, Weems alleged that the officers had requested, and a clerk for Motel 6 had given them, a passkey to his motel room without his consent. He also alleged that the officers used the passkey to break into his room when he did not respond to their knocking on the door. Once inside, Weems alleged that the officers tackled him, caused him bodily injury, and placed him in handcuffs. Both the City and the County filed pleas to the jurisdiction addressing these claims and asserting that the trial court lacked subject-matter jurisdiction since they were immune from suits based on Weems' claims. In his replies to the City's and the County's pleas to the jurisdiction, Weems maintained that his claims against Motel 6, the City, and the County were limited to invasion of privacy and the negligent use of the passkey.
Although Weems amended his complaint two times after the City and the County filed their pleas to the jurisdiction, his factual allegations against them remained the same in his last live pleading.
We construe Weems' pleadings liberally and find that he intended to assert claims for both an intentional invasion of privacy and negligent invasion of privacy. Texas recognizes an intentional invasion of privacy, and under the allegations of this case, Weems would be required to show "(1) an intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person." Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). The Tort Claims Act provides that its waiver of immunity does not apply to intentional torts. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West 2011); Burdett v. Doe, No 03-06-00198-CV, 2008 WL 5264913, at *3 (Tex. App.—Austin Dec. 17, 2008, no pet.) (mem. op.). However, the Waco Court of Appeals has stated that whether Texas recognizes a cause of action for negligent invasion of privacy is an open question. See Harper v. Newton, 910 S.W.2d 9, 13 (Tex. App.—Waco 1995), rev'd on other grounds by Dallas Cty. v. Harper, 913 S.W.2d 207 (Tex. 1995). Because we decide this case on other grounds, we need not decide whether the Waco Court of Appeals would recognize the tort of negligent invasion of privacy.
C. Analysis
Weems argues that his pleadings show his claim for invasion of privacy falls under the limited waiver of governmental immunity contained in Section 101.021 of the Tort Claims Act. As relevant to this case, Section 101.021 provides:
A governmental unit in the state is liable for:TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). For immunity to be waived, this Section requires more than mere involvement of the property. Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). Rather, this Section "requires that for immunity to be waived, personal injury or death must be proximately caused by the condition or use of tangible property." Id. The use of tangible property "does not cause injury if it does no more than furnish the condition that makes the injury possible." Id. (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesna, 242 S.W.3d 32, 45-46 (Tex. 2007)). In other words, the use of the property "must have actually caused the injury." Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001) (citing Tex. Nat. Res. & Conservation Comm'n v. White, 46 S.W.3d. 864, 869 (Tex. 2001)).
. . . .
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
In Bossley, Roger Bossley was involuntarily committed to Hillside Center, a treatment facility owned and operated by the Dallas County Mental Health and Mental Retardation Center (Dallas County MHMR). After asking another patient where he could get a gun to kill himself, Roger was ordered to be transferred to Parkland Hospital for further evaluation. Following standard procedure, when Roger was ordered transferred, Hillside staff locked the outer door to his residential unit to prevent his elopement. However, a self-locking door just inside the outer door was left open. The next day, a Hillside employee leaving for lunch passed through the self-locking door and left it open as she unlocked the outer door. Bossley, 968 S.W.2d at 340. As she did so, Roger came up behind her, pushed her aside, and fled. Hillside personnel pursued him, but as they approached, Roger leapt in the path of a truck on Interstate 30, and was killed. Roger's parents and his estate sued Dallas County MHMR for wrongful death, and they asserted that their claims came within the waiver of immunity granted under Section 101.021(2). Id. at 341. The Supreme Court held that although the unlocked doors allowed Roger to escape, they did not cause his death. Id. at 343. Rather, the unlocked doors did "no more than furnish the condition that [made] the injury possible." Id. Therefore, the Tort Claims Act did not waive Dallas County MHMR's immunity from suit. Id.
The San Antonio Court of Appeals has held that the use of keys under circumstances analogous to this case does not waive sovereign immunity. In Munoz v. Jim Wells County, Munoz was arrested for driving while intoxicated and placed in the Jim Wells County Jail. Munoz v. Jim Wells Cty., No. 04-05-00236-CV, 2006 WL 1623317, at *1 (Tex. App.—San Antonio June 14, 2006, no pet.) (mem. op). While there, he was belligerent and uncooperative. When Deputy Bernal came on duty, he obtained the key to Munoz' cell so he could speak with him outside of his cell. Bernal used the key to unlock Munoz' cell and allowed him to exit the cell. As they were talking, the conversation escalated and Bernal struck Munoz in the nose, causing Munoz to suffer a broken nose and a concussion. Munoz filed suit against Bernal and Jim Wells County, and Jim Wells County filed a motion for summary judgment based on sovereign immunity, which was granted by the trial court. Id. On appeal, Munoz argued sovereign immunity was waived under Section 101.021(2) because his injuries were caused by the use of the keys to open his jail cell. Id. at *1-2. Relying on Bossley, the San Antonio court held that "although using the keys to open the jail cell was part of a series of events which ultimately resulted in Munoz' injuries, the use of the keys can not be said to have caused the injury." Id. at *2. Therefore, sovereign immunity was not waived. Id.
Similarly, in this case, assuming that Weems' allegations are true, Weems' injuries, if any, cannot be said to have been caused by the officers' use of the passkey. Although the use of the passkey made it possible for the officers to open the door, the use of the passkey was part of a series of events that led to Weems' alleged injuries. That is, merely using the key to unlock the door would not be an intrusion upon Weems' solitude, seclusion, or private affairs.
Accordingly, Weems' allegations show that the City's and the County's sovereign immunity was not waived under Section 101.021(2). Since the City's and the County's sovereign immunity deprived the trial court of jurisdiction, Weems' allegations affirmatively negate the trial court's jurisdiction, and the pleas to the jurisdiction were properly granted. See Miranda, 133 S.W.3d at 226-27. We overrule Weems' first point of error.
For the reasons set forth above, we affirm the judgment of the trial court.
Bailey C. Moseley
Justice Date Submitted: April 5, 2017
Date Decided: July 6, 2017