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Moore v. Barker

Court of Appeals of Texas, Fourteenth District

September 12, 2017


         On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2015-75562

          Panel consists of Justices Christopher, Brown, and Wise.


          Marc W. Brown, Justice

         This is an interlocutory appeal from the trial court's order denying appellant Richard Moore's motion to dismiss filed pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code. At issue is whether Moore, a police officer with the City of Humble Police Department, was acting within the scope of his employment when he allegedly assaulted appellee Justin Barker while Moore was working an extra job at Coaches Sports Bar & Grill. Because Moore conclusively established that he was entitled to dismissal, we reverse the trial court's order and render judgment granting Moore's motion to dismiss and dismissing Barker's case against Moore.

         I. Background

         At all times relevant to the underlying events, Moore was employed as a peace officer by the City of Humble Police Department in Harris County. Moore obtained permission from the police department to work an extra night job for Coaches Sports Bar & Grill. Coaches is located in Harris County, outside the city limits of Humble. According to Moore, his general responsibilities at Coaches were "[b]asically to keep the peace, make sure that you have individuals that are being aggressive either-to whoever, I should say. Try to make sure-try to take care of these individuals by either talking to them, conversating [sic] with them, calming them down, all the way to physical altercation depending on the situation. You know, unfortunately, it does happen from time to time."

         On the evening of August 24, 2014, Moore was off duty and was working his extra job at Coaches, while wearing his police uniform. Barker was drinking beer with some of his friends at Coaches, where his then-fiancee worked as a waitress. Barker consumed at least four or five beers.

         According to Moore, he observed Barker and another man at the bar yelling at and pushing each other. Barker appeared "highly intoxicated." Moore saw Barker "throw a punch" and "attempt to strike" the other man even if no contact actually was made. Moore and another peace officer who was at Coaches intervened to investigate and break up the disturbance. According to Moore, he announced "Police" while approaching the altercation. While Moore was trying to separate Barker and the other man, Moore and Barker fell backward. Moore "defensively" struck Barker while attempting to remove Barker's hand from Moore's throat.

         Barker does not dispute that he and another man engaged in a "verbal altercation" involving raised voices after the other man shoved Barker's fiancee. Although the other man's friends surrounded Barker and the other man was yelling profanities at Barker, Barker maintains that "nothing ever got physical between us" and that the interaction was not "heated." Barker asserts that, without any warning, Moore pulled him backwards to the floor and proceeded to punch him in the face seven or eight times.

         Moore placed Barker in handcuffs. Later that evening, another peace officer arrested Barker for assaulting a police officer. The Harris County District Attorney moved to dismiss this charge against Barker because, although there was probable cause, there were "proof B[eyond] A R[easonable] D[oubt] issues."

         Barker filed suit against Coaches and Richard and Raquel Fallon, individually and d/b/a Coaches (the "Fallon defendants"), alleging assault, negligence and gross negligence, negligent hiring, and respondeat superior. Barker then amended his petition to add Moore as a defendant as to the claims for assault and gross negligence. Around that time, Coaches and the Fallon defendants filed a motion for leave to designate Moore as a responsible third party.

         Moore filed a motion to dismiss asserting official immunity under section 101.106(f). Moore argued that he was sued for conduct within the general scope of his employment with the police department and that suit could have been brought under the Texas Tort Claims Act ("TTCA") against the City of Humble.[1] Moore attached excerpts from his deposition as an exhibit. Barker filed a response, arguing that the facts did not support Moore's assertion of immunity. As exhibits, Barker attached: his original petition, the defendants' motion for leave to designate a responsible third party, his deposition, and the motion to dismiss/order of dismissal in Barker's criminal assault case.

         The trial signed an order denying Moore's motion to dismiss. Moore timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (West 2015 & Supp. 2016); Tex.R.App.P. 26.1(b); Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex. App.-Houston [14th Dist] 2008, pet. denied).

         II. ...

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