118 F.3d 1085 (5th Cir. 1997), 96-50594, Tamez v. City of San Marcos, Texas

Docket Nº:96-50594.
Citation:118 F.3d 1085
Party Name:Felix TAMEZ; Alice Tamez, Individually and as Guardian & Parent of Joseph Tamez, and Mary Alice Tamez, Felix Tamez, Jr., and Debbie Tamez, Plaintiffs, Alice Tamez, Individually and as Guardian & Parent of Joseph Tamez, Mary Alice Tamez, Feliz Tamez, Jr., and Debbie Tamez, Plaintiff-Appellant, v. CITY OF SAN MARCOS, TEXAS; Daniel Misiaszek, Defendan
Case Date:August 13, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1085

118 F.3d 1085 (5th Cir. 1997)

Felix TAMEZ; Alice Tamez, Individually and as Guardian &

Parent of Joseph Tamez, and Mary Alice Tamez,

Felix Tamez, Jr., and Debbie Tamez, Plaintiffs,

Alice Tamez, Individually and as Guardian & Parent of Joseph

Tamez, Mary Alice Tamez, Feliz Tamez, Jr., and

Debbie Tamez, Plaintiff-Appellant,


CITY OF SAN MARCOS, TEXAS; Daniel Misiaszek, Defendants-Appellees.

No. 96-50594.

United States Court of Appeals, Fifth Circuit

August 13, 1997

Rehearing Denied Sept. 15, 1997.

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[Copyrighted Material Omitted]

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David B. Galbraith, Houston, TX, for Plaintiff-Appellant.

Ricardo Jimenez Navarro, Denton, McKamie & Navarro, San Antonio, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, DUHE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In this case, a magistrate judge granted judgment as a matter of law in favor of defendant Daniel Misiaszek, voiding a $275,000 civil jury verdict against him on the basis of official and qualified immunity. Plaintiffs, the survivors of Felix Tamez, appeal the magistrate's grant of judgment as a matter of law. Because we find that Misiaszek was immune from suit under both federal and state law, we affirm.


San Marcos Police Officer Daniel Misiaszek, with three other police officers, responded to a "shots fired" call at a private residence at around 9:30 one night. When Misiaszek arrived at the house, he walked through the back yard to investigate. He saw two men and two women who apparently did not look alarmed or suspicious to him. Misiaszek then walked around the front of the house. From the front porch, Misiaszek and fellow officer Paul Culin heard noises from inside the house, including loud footsteps and the sounds of a radio or television.

At this time, Steven Marmolejo walked out of the house with a piece of chicken and a glass of water, apparently unaware that the officers were on the front porch. Misiaszek recognized Marmolejo as a suspect in a pending burglary investigation, and the officer

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began to question him about the gun shots. Marmolejo told the officers on the porch that he had not heard any gunshots. 1

As Officer Culin questioned Marmolejo on the porch, Misiaszek went to the doorway to speak to whomever was still in the house. Witnesses at trial offered conflicting testimony about what Misiaszek knew at this point; Marmolejo testified that he told Misiaszek that there was no one in the house, while Misiaszek testified that Marmolejo said Tamez was inside. It is undisputed that Misiaszek did not have a search warrant and that he had not previously attempted to interview the person who made the "shots fired" report. The front door of the house was open, but the screen door was shut. Misiaszek opened the screen door, announced "Police Officer," and leaned into the doorway to speak to whomever was inside; Marmolejo and Culin corroborated this account.

When he leaned into the residence, Misiaszek saw Tamez, who was sitting on a chair with his back to the door, apparently talking on the telephone. Misiaszek did not know that Tamez was holding a revolver in his right hand or that Tamez had been drinking with Marmolejo and was severely intoxicated. Tamez's blood alcohol level was determined later that evening to be about .34. Officer Culin testified that he heard Misiaszek say, "Are you all right, sir?" Tamez turned to face the Misiaszek and pointed his gun at the officer. Misiaszek did not know that Tamez's weapon contained only empty shell casings; Tamez had fired all of the bullets in his back yard earlier in the evening. Misiaszek stepped quickly into the house, crouched, and fired six rounds from his service revolver. Misiaszek missed Tamez with most of his shots but hit him once in the right arm and once in the left leg. The shots wounded Tamez but did not kill him.

After securing Tamez's weapon, Misiaszek checked Tamez for vital signs and called for emergency medical assistance, in accordance with police policy. Paramedics treated Tamez both at the scene and at a local hospital. The San Marcos Police Department conducted an internal review and a grand jury inquiry into the shooting. Both cleared Misiaszek of any criminal or procedural wrongdoing.

After his release from the hospital, Tamez filed the instant action, alleging various federal and state law claims against Officer Misiaszek and the City of San Marcos. In addition, the state brought a criminal action against Tamez for attempted capital murder in relation to the incident. Tamez pleaded nolo contendere to the charge. Tamez subsequently died of health problems that the family stipulates are unrelated to the shooting. The plaintiffs in this action, family members of Felix Tamez, filed a motion to substitute parties under Fed.R.Civ.P. 25, and the magistrate granted surviving family members permission to continue the suit in the place of Felix Tamez. They did not request and the magistrate judge did not grant them intervention to proceed on their own behalf.

After further discovery, the plaintiffs filed a motion for partial summary judgment, alleging that Misiaszek had violated Tamez's Fourth Amendment rights as a matter of law. Misiaszek and the City responded and filed their own cross-motion for summary judgment, asserting qualified and official immunity from suit. The court denied both motions for summary judgment in their entirety. Misiaszek filed an interlocutory appeal from the court's denial of his dispositive motion, and we dismissed the appeal for want of jurisdiction because of contested fact issues.

The case went to trial before a magistrate judge, and at the close of plaintiffs' case, both Misiaszek and the City moved for judgment as a matter of law ("JML") under Fed.R.Civ.P. 50(a), asserting various immunity defenses. The court granted judgment for the City of San Marcos on all claims and dismissed the suit against the city. The court then allowed the case to proceed against Misiaszek only. At the close of all the evidence, Misiaszek's lawyer asked the court how it intended to deal with the immunity issues, but he did not move for a JML at the close of the evidence. The judge noted

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at the close of all evidence that he was convinced that Misiaszek was immune from suit. The judge nonetheless decided to submit the case to the jury, because the parties had already reached the end of the trial. The judge indicated that he would decide the immunity issues from the bench after the verdict, if necessary.

The jury found: (1) that Misiaszek had violated the Fourth Amendment when he opened Tamez's door without warrant or permission; (2) that Misiaszek was negligent in causing Tamez's injuries; and (3) that Misiaszek did not employ unconstitutionally excessive force in the shooting. The jury awarded $25,000 in actual damages and $50,000 in emotional injury damages to Tamez's estate and $200,000 in damages to his family members, 2 but it did not award punitive damages. After the verdict, Misiaszek filed a motion for JML, primarily asserting his qualified and official immunity defenses. The court granted Misiaszek's motion, holding that the officer enjoyed both qualified and official immunity from suit. Plaintiffs timely appealed.


Misiaszek moved for JML at the close of the plaintiffs' case but failed to renew his motion at the close of all of the evidence. We have held that failure to request JML (or its predecessors JNOV and directed verdict) at the close of all the evidence waives JML after the jury verdict. Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir.1993); McAnn v. Texas City Refining, Inc., 984 F.2d 667, 670 (5th Cir.1993). Rule 50(b) provides that, after a jury verdict, either party may "renew" a motion for JML made at the close of all the evidence. Accordingly, we have held that a district court may not issue a JML after the verdict unless the parties make the proper motion at the close of all of the evidence--a party cannot renew a motion it has not previously made. Allied Bank, 996 F.2d at 114-15.

Although Misiaszek's lawyer moved for JML at the close of the plaintiff's case, that motion will not suffice to preserve the motion after the verdict. The law of this circuit holds that, by introducing its own evidence after the plaintiff's case in chief, and by failing to renew the motion for JML, the defense waived its motion for judgment after the verdict. McAnn, 984 F.2d at 671; see also 5A Jeremy C. Moore et al., Moore's Federal Practice p 50.05 (2d ed. 1992). Therefore, absent a motion for JML at the close of all of the evidence, the magistrate should not have allowed Misiaszek to make a Rule 50(b) motion after the verdict. McAnn, 984 F.2d at 671; Scheib v. Williams-McWilliams Co., 628 F.2d 509, 511-12 & n. 1 (5th Cir.1980).

In the past we have excused certain "de minimis" departures from technical compliance with Rule 50(b). McAnn, 984 F.2d at 671. See, e.g., Davis v. First Nat'l Bank, 976 F.2d 944, 948-49 (5th Cir.1992) (excusing de minimis failure to comply with letter of Rule 50(b)), cert. denied, 508 U.S. 910, 113 S.Ct. 2341, 124 L.Ed.2d 251 (1993); Merwine v. Board of Trustees, 754 F.2d 631, 634-35 (5th Cir.) (same), cert. denied, 474 U.S. 823, 106 S.Ct. 76, 88 L.Ed.2d 62 (1985); Bohrer v. Hanes Corp., 715 F.2d 213, 216-17 (5th Cir.1983) (same), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). We have applied Rule 50(b) not as an exercise in technical hair-splitting, but in the context of its particular purposes as well as in the context of "securing a fair trial for all concerned." Merwine, 754 F.2d at 634.

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