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Donohue v. City of Boerne

Court of Appeals of Texas, Fourth District, San Antonio

March 8, 2017

John M. DONOHUE, Appellant
v.
CITY OF BOERNE CHIEF OF POLICE JAMES KOEHLER, Officer Pablo Morales and Martha L. Donohue, Appellees

         From the County Court at Law, Kendall County, Texas Trial Court No. 15-003-CCL Honorable William R. Palmer Jr., Judge Presiding

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice

         Introduction

         John M. Donohue challenges the trial court's judgment granting the pleas to the jurisdiction filed by the City of Boerne's Police Chief James Koehler and Police Officer Pablo Morales. Donohue also challenges the trial court's judgment granting Martha Donohue's plea to the jurisdiction rendered in the same proceeding. We affirm the trial court's judgment granting Chief Koehler and Officer Morales's plea to the jurisdiction and reverse and remand the trial court's judgment granting Martha Donohue's plea to the jurisdiction.

         Background

         Factually, the underlying suit arose from events surrounding Donohue's arrest for public intoxication on August 9, 2013 by Boerne Police Officer Morales.[1] Officer Pablo Morales first encountered Donohue at a Boerne hospital where Donohue had been brought in by Bandera County EMS and was being treated for cuts and bruises to his arms. The hospital staff called Boerne Police Department for assistance because Donohue was being uncooperative in his treatment. After Officer Morales arrived, Donohue refused care at the hospital and requested a ride to a local hotel. Officer Morales provided a courtesy ride to a local hotel, waited until Donohue checked in and then instructed Donohue to stay in his room.

         Donohue alleges he needed to find something to eat. The hotel staff would not let him charge food to his room, so he and the hotel staff called 9-1-1. After growing tired of waiting for police to arrive, Donohue contends he started to walk to find some food, at which time Officer Morales arrived and became angry with him for not staying in his room as instructed. Officer Morales then decided to arrest him for 9-1-1 abuse and then changed the charge to public intoxication. Donohue alleges that during the arrest, Officer Morales grabbed his forearms and wrists and while forcefully placing the handcuffs on his wrists, caused his skin to tear and bleed.

         Specific to Martha Donohue, Donohue's ex-wife, Donohue asserts Officer Morales was aware of a protective order issued against Donohue which gave the false impression Donohue had "violent tendencies" and which caused Officer Morales to respond as he did. Donohue alleged the information about his violent tendencies was false, and Martha Donohue and Denise Martinez[2]had conspired to make these false allegations against him in the protective order proceedings.

         In this underlying action, John M. Donohue filed suit against numerous defendants, all in their individual capacities: Boerne Chief of Police James Koehler[3], Boerne Police Officer Pablo Morales, Bandera County Sheriff Sergeant Jose Hernandez, Bandera County Sheriff Deputy Matt Krueger, Bandera County Sheriff Deputy Birdie Tyler, his ex-wife Martha L. Donohue and Denise Martinez. In his petition, Donohue characterized his claims against Chief Koehler and Officer Morales as claims brought under the Texas Penal Code for aggravated assault with malice and gross negligence, unlawful restraint with malice and gross negligence and abuse of office and official oppression. Donohue also asserted claims based on Chief Koehler and Officer Morales's alleged violations of his rights under the Texas Constitution.

         On August 28, 2015, and September 15, 2015, Donohue filed supplements to his petition adding Martha Donohue as a defendant. In his action against Martha Donohue, Donohue sought monetary damages "for criminal acts as described and defined under the Penal Code" of aggravated assault, deadly conduct, and criminal conspiracy. Donohue also alleged the civil causes of action of libel, defamation and intentional infliction of emotional distress.

         Chief Koehler and Officer Morales both filed a plea to the jurisdiction, moving to dismiss the claims asserted against them on the same two bases: (1) they are entitled to official immunity from suit; and (2) they were acting in the course and scope of their employment, and thus, the claims may only be asserted against the Boerne Police Department pursuant to the Texas Tort Claims Act (TTCA) sections 101.106(e) and 101.106(f). On September 10, 2015, the trial court granted Chief Koehler and Officer Morales's pleas to the jurisdiction, dismissing all of Donohue's claims against these two parties. In the same order, the trial court also severed the claims against Chief Koehler and Officer Morales.

         On October 2, 2015, the trial court granted Sergeant Hernandez, Deputy Krueger, Deputy Taylor and Denise Martinez's plea to the jurisdiction and dismissed with prejudice the claims against these defendants. On November 1, 2016, Donohue mailed a notice of appeal of the trial court's granting of Chief Koehler and Officer Morales's plea to the jurisdiction and Sergeant Hernandez, Deputy Krueger and Deputy Taylor's plea to the jurisdiction.

         Thereafter, Martha Donohue filed an answer to Donohue's amended petition adding her to the lawsuit, as well as a motion to transfer venue and a plea to the jurisdiction. Martha Donohue's plea to the jurisdiction challenged the trial court's subject matter jurisdiction, asserting: (1) Donohue's suit presented no justiciable issue because her actions in disseminating the protective order information were statutorily required by the Texas Family Code, and (2) Donohue's claims were preempted by section 85.042 of the Texas Family Code, which governs the reporting of protective orders to law enforcement.

         On November 20, 2015, the trial court signed another order stating that the pleas to the jurisdiction filed by all of the named defendants were "upheld", and the trial court dismissed the cause "in its entirety".

         The appeals from the judgments granting the four pleas to the jurisdiction proceeded separately in two appeals. This appeal pertains only to Donohue's challenge of the trial court's granting of Chief Koehler and Officer Morales's plea to the jurisdiction as well as Donohue's challenge of the trial court's granting of Martha Donohue's plea to the jurisdiction.

         Later, on April 18, 2016, Donohue filed a notice of restricted appeal in this appeal naming as appellees Chief Koehler, Officer Morales and Mary Donohue.

          Analysis

         I. Chief Koehler and Officer Morales's Challenge to this Court's Jurisdiction

         In their appellate brief, Chief Koehler and Officer Morales challenge this Court's jurisdiction to determine the substantive merits of this appeal. Beginning with the assertion that this is a restricted appeal, Chief Koehler and Officer Morales contend Donohue fails to satisfy three of the four requisite elements to be entitled to a restricted appeal, and for this reason, this Court lacks jurisdiction.

         This Court has already determined that this appeal is a regular, not restricted appeal, and that Donohue's appeal is timely. On May 24, 2016, this Court issued an order stating,

Donohue mailed a notice of appeal on November 1, 2015, identifying Chief Koehler and Officer Morales as appellees and also indicating his desire to appeal the October 2, 2015 dismissal. On December 18, 2015, Donohue mailed a motion expressly requesting that an appeal proceed against City of Boerne Chief of Police James Koehler, Officer Pablo Morales, and Martha L. Donohue. On April 1, 2016, Donohue filed a notice of restricted appeal against these three appellees.
The record has been filed. Having reviewed the clerk's record, we conclude that Donohue's November 1, 2015 and December 18, 2015 filings were timely and sufficient to effect an appeal against these appellees. See Tex. R. App. P. 26.1(a), 26.3; Verburgt v. Dorner, 959 S.W.2d 615 (1997). We therefore order this appeal to proceed as a timely, regular appeal against James Koehler in his capacity as Chief of Police of the City of Boerne, Officer Pablo Morales, and Martha L. Donohue.

         Pursuant to this order, even though Donohue filed a notice of restricted appeal on April 18, 2016, this notice was inconsequential. Donohue's notice of appeal filed on November 5, 2016 was ...


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