McFadden v. Olesky

• Decision Date: 23 March 2017
• Docket Number: NO. 03-16-00067-CV,03-16-00067-CV
• Parties: Latisha MCFADDEN, Appellant v. Greg OLESKY and Rogelio Sanchez, Appellees
• Court: Texas Court of Appeals

517 S.W.3d 287

Latisha MCFADDEN, Appellant

v.Greg OLESKY and Rogelio Sanchez, Appellees

NO. 03-16-00067-CV

Court of Appeals of Texas, Austin.

Filed: March 23, 2017

Review Denied June 16, 2017

Mr. Donald McCarthy, Law Office of Donald J. McCarthy, 808 W 11th St, Austin, TX 78701-2010, Mr. Gary L. Bledsoe, Ms. Alondra Johnson, The Bledsoe Law Firm, PLLC, 316 West 12th Street, Suite 307, Austin, TX 78701, for Appellant.

Mr. H. Gray Laird III, City of Austin Law Department, P. O. Box 1546, Austin, TX 78767-1546, for Appellee.

Before Chief Justice Rose, Justices Goodwin and Bourland

OPINION

Melissa Goodwin, Justice

Latisha McFadden appeals from the trial court's judgment in favor of Austin Police Department (APD) Officers Greg Olesky and Rogelio Sanchez following a jury trial.¹ McFadden sued Olesky and Sanchez for malicious prosecution and conspiracy to commit malicious prosecution after she was tried and acquitted of charges of assaulting a peace officer. On appeal, Olesky and Sanchez argue that the trial court lacked jurisdiction pursuant to the election of remedies provision of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code § 101.106. Because we agree that the trial court lacked subject matter jurisdiction, we vacate the trial court's judgment and dismiss McFadden's claims against Officers Olesky and Sanchez for lack of jurisdiction.

BACKGROUND

This suit arises out of an incident that occurred on July 14, 2000, when McFadden was involved in a disturbance with an unidentified man in the Sixth Street entertainment district in Austin. McFadden was arrested for disobeying a police officer's lawful order, see Tex. Transp. Code § 542.501(1), and was subsequently charged with assault on a peace officer, see Tex. Penal Code § 22.01(a)(1), (b)(1). The parties' accounts of the events surrounding the arrest differ. According to McFadden: As she and her friends returned to their car after the bars closed, a man she did not know verbally attacked her from some distance; she responded in an appropriate tone; and a police officer rode up on his bicycle, said nothing to the man, and vulgarly told her to shut up. She "shot the finger" at the unidentified male when he was leaving, and the officer jumped off of his bicycle, grabbed her left arm, and twisted it behind her back. When she asked for an explanation, another officer who had arrived pepper-sprayed her. The officers kicked her legs out from under her, pulled her hair, kicked her, and hit her—despite the fact that she was not resisting arrest—and laughed as she screamed in pain.

According to Officers Olesky and Sanchez: Sanchez was on bicycle patrol in the area and observed a verbal disturbance in which McFadden was being verbally and physically aggressive toward a man and which a large group had gathered to watch. Sanchez ordered both McFadden and the man to leave, and the man complied, but McFadden did not. McFadden became disorderly in her language and gestures, appeared to be provoking a fight, and refused to leave the area. Sanchez decided to arrest her for disobeying a lawful order. At that point, Officer Olesky, also on bicycle patrol, arrived and assisted Sanchez. When they attempted to handcuff her, McFadden pulled away and pushed and kicked at the officers. Officer Olesky grabbed her by the hair and took her to the ground. At some point, two other officers, Michael Pollard and Tamara Joseph, arrived and assisted in the arrest. Once McFadden was on the ground, she kicked Olesky and Joseph with her high heel shoes, causing bruises and cuts, and she also pulled Officer Olesky's bike helmet off of his head and scratched his face, causing several cuts. Ultimately, Officer Pollard pepper-sprayed McFadden, and the four officers were able to restrain her.

McFadden was subsequently charged with assault on a peace officer.² She was tried in April 2004 and was acquitted. After being found not guilty of assault on a peace officer, McFadden filed this suit against all four officers, asserting causes of action for assault and false imprisonment. She also alleged malicious prosecution and conspiracy to commit malicious prosecution against all of the officers except Joseph. On the same day she filed this suit, McFadden also filed suit against the City of Austin and APD in federal district court, asserting claims for malicious prosecution and excessive force under 42 U.S.C. § 1983. In early 2005, the U.S. District Court granted the City of Austin's and APD's motion for summary judgment and dismissed McFadden's claims. In 2009, the trial court in this suit granted the officers' plea to the jurisdiction and motion for summary judgment and entered a take nothing judgment against McFadden. In their plea and motion, the officers argued, among other things, that the trial court was required to dismiss McFadden's malicious prosecution claims in accordance with section 101.106 of the TTCA. See Tex. Civ. Prac. & Rem. Code § 101.106(a) (providing that suit under chapter 101—the TTCA—against governmental unit "forever bars" suit or recovery against governmental employee regarding same subject matter), (f) (providing that if suit is filed against governmental employee based on conduct within general scope of employee's employment and suit "could have been brought under this chapter" against governmental unit, suit shall be dismissed on employee's motion unless plaintiff amends, dismissing employee and naming governmental unit as defendant). McFadden opposed the plea to the jurisdiction and motion for summary judgment and did not amend her pleadings to dismiss Officers Olesky and Sanchez and name the City of Austin and APD as defendants. See id. § 101.106(f). The trial court granted the plea and motion and entered a take nothing judgment against McFadden.

On appeal, this Court affirmed the trial court's judgment as to McFadden's assault and false imprisonment claims on the ground that they were barred by the applicable statutes of limitations but reversed the judgment with respect to McFadden's claims of malicious prosecution and conspiracy to commit malicious prosecution. See McFadden v. Olesky (McFadden I) , 440 S.W.3d 646, 649, 659 (Tex. App.—Austin 2010, no pet.), disapproved of in part by Franka v. Velasquez , 332 S.W.3d 367, 382 n.67 (Tex. 2011). This Court concluded that dismissal of the malicious prosecution claims was not appropriate on the basis of section 101.106(a) because, based on the parties' Rule 11 agreement, it was not properly before the trial court. See id. at 653–54. This Court further reasoned that dismissal was not appropriate under section 101.106(f) on the ground that, although Olesky's and Sanchez's conduct was within the general scope of their employment, because the TTCA does not waive governmental immunity for suits alleging intentional torts such as malicious prosecution, McFadden's malicious prosecution claims were not claims that "could have been brought under" chapter 101. See id. at 656–57 ; see also Tex. Civ. Prac & Rem. Code § 101.057(2) (providing that TTCA does not apply to any intentional tort). Based on this construction of section 101.106(f), this Court remanded the case to the trial court for further proceedings.

Following this Court's ruling, but prior to trial on remand, the Texas Supreme Court expressly disapproved of this Court's construction of section 101.106(f) in McFadden I . See Franka , 332 S.W.3d at 382 n.67 (disapproving numerous cases adopting construction of 101.106 adopted by this Court in McFadden I ). In resolving a dispute among the courts of appeals, the Supreme Court reiterated the rule that " ‘all [common-law] tort theories alleged against a governmental unit ... are assumed to be "under [the Tort Claims Act]" for purposes of section 101.106,’ " see id. at 369 (quoting Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 659 (Tex. 2008) ), and held that a tort suit against a governmental unit is brought under the TTCA for purposes of section 101.106 even when the TTCA does not waive immunity, id. at 379–80, 385. Officers Olesky and Sanchez re-urged their plea to the jurisdiction based on section 101.106(f), arguing that the Supreme Court's decision in Franka required the court to dismiss McFadden's malicious prosecution claims. The trial court denied the plea, and the case proceeded to trial. After McFadden rested, the trial court granted Officer Pollard's motion for directed verdict and dismissed McFadden's claims against Pollard. The jury returned a verdict in favor of Officers Olesky and Sanchez, and McFadden appealed complaining of jury charge error and evidentiary error.

ANALYSIS

Before responding to McFadden's issues on appeal, Officers Olesky and Sanchez argue that the trial court lacked jurisdiction over McFadden's malicious prosecution claims under section 101.106(a) and (f). In her reply brief, McFadden contends that such an argument constitutes a cross-appeal that Officers Olesky and Sanchez have waived by failing to present it to the trial court.³ However, as noted above, the record reflects that on remand, Officers Olesky and Sanchez expressly reasserted their plea to the jurisdiction on the basis of section 101.106(f). Further, a party may raise an issue of subject matter jurisdiction for the first time on appeal. University of Tex. Sw. Med. Ctr. v. Loutzenhiser , 140 S.W.3d 351, 358 (Tex. 2004), superceded by statute on other grounds , Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (codified at Tex. Gov't Code § 311.034 ). In fact, we are "obliged to ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it." Id. ; accord Rusk State Hosp. v. Black , 392 S.W.3d 88, 103 (Tex. 2012) ("Subject matter jurisdiction cannot be waived or conferred by agreement, can be raised at any time, and must be considered by a court sua sponte.") (Lehrmann, J. dissenting); Freedom Commc'ns, Inc. v. Coronado , 372 S.W.3d 621, 623 (Tex. 2012)...