Metro. Transit Auth. of Harris Cnty. v. Smith

• Decision Date: 08 December 2022
• Docket Number: 14-21-00726-CV,14-22-00048-CV
• Parties: METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Appellant v. TERRY SMITH, Appellee and IN RE METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Relator
• Court: Texas Court of Appeals

METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Appellant v. TERRY SMITH, Appellee and IN RE METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, Relator

Nos. 14-21-00726-CV, 14-22-00048-CV

Court of Appeals of Texas, Fourteenth District

December 8, 2022

On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 2016-18317

ORIGINAL PROCEEDING WRIT OF MANDAMUS 11th District Court Harris County, Texas Trial Court Cause No. 2016-18317

Panel consists of Justices Wise, Spain, and Hassan.

OPINION

Meagan Hassan Justice.

Terry Smith sued Metropolitan Transit Authority of Harris County Texas ("METRO") and asserted a claim for negligence, alleging that he was accidentally shot by one of METRO's law enforcement officers. Approximately five years into the litigation, METRO filed a motion for leave to designate a responsible third party, which Smith opposed. See Tex. Civ. Prac. & Rem. Code Ann. § 33.004. The trial court signed an order denying METRO's motion for leave and prohibited METRO from introducing any evidence pertaining to the alleged responsible third party. METRO filed a petition for writ of mandamus challenging the trial court's ruling.

METRO subsequently filed its second plea to the jurisdiction and relied on evidence of the alleged responsible third party's culpability in the underlying incident. The trial court signed an order denying METRO's second plea and METRO filed an interlocutory appeal challenging the denial.

In the original proceeding^[1], we determine relator-METRO is entitled to mandamus relief and order the trial court to vacate its (1) September 4, 2021 order denying METRO's motion for leave to designate a responsible third party, (2) January 3, 2022 "Order Granting Plaintiffs Motion to Exclude All Testimony, Evidence, and Argument Regarding Any and All Undesignated Alleged Responsible Third Parties", and (3) January 3, 2022 order striking METRO's third amended answer. In the interlocutory appeal^[2], we affirm the trial court's November 30, 2021 denial of appellant METRO's second plea to the jurisdiction.

Background

Smith a Houston police officer, was conducting traffic enforcement in a midtown parking lot when he was shot in the stomach. The initial investigation suggested Smith was shot by Gregory Hudson, a METRO police department officer who was issuing traffic citations in the same parking lot and working close to Smith. Smith was transferred to the hospital, where a .22 caliber bullet was removed from his body.

In March 2016, Smith sued METRO for negligence, asserting his injuries were caused when Hudson negligently discharged his firearm. Smith propounded requests for disclosure with his petition. See Tex. R. Civ. P. 194.3. METRO responded to the requests in June 2016 and, in relevant part, provided the following answers:

(b) the name, address, and telephone number of any potential parties:

Response: None that [METRO] is aware of.

(c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial):

Response: METRO enters a general denial of all matters pleaded by [Smith] and requests that this Court require that [Smith] prove all charges and allegations described in [Smith's] Original Petition by a preponderance of the evidence, as required by the Constitution and laws of the State of Texas.

METRO denies this alleged incident ever occurred as described by [Smith]. However, for further answer if same be necessary, Defendant METRO would also show the Court that any injury allegedly sustained by [Smith] were [sic] proximately caused by the intentional and/or negligent actions of someone not under the control of [METRO].

* * *

(1) the name, address, and telephone number of any person who may be designated as a responsible third party.

Response: Unknown to [METRO].

METRO filed its original answer and pleaded two affirmative defenses: "Governmental Immunity" and "Statutory Limitations." METRO filed its first amended answer in June 2017 and added "Unavoidable Accident" and "Sole Proximate Cause" to its list of affirmative defenses, both of which referenced an unknown shooter:

Unavoidable Accident

The occurrence in question was an unavoidable accident, that is an event not proximately caused by the negligence of any party to the occurrence as the cause of the occurrence was a third party who negligently discharged a .22 caliber weapon and struck Officer Smith.

Sole Proximate Cause

The sole proximate cause of the occurrence was a third party who discharged a .22 caliber weapon and struck Officer Smith.

METRO filed a second amended answer reiterating these affirmative defenses.

In August 2017, METRO filed a plea to the jurisdiction, asserting that Smith failed to allege any facts to support a waiver of immunity under the Texas Tort Claims Act. Smith filed a response and the trial court denied METRO's plea. METRO filed an interlocutory appeal and this court affirmed the trial court's denial of METRO's plea to the jurisdiction. See Metro. Transit Auth. of Harris Cnty. v. Smith, No. 14-17-00807-CV, 2018 WL 6494141 (Tex. App.-Houston [14th Dist] Dec. 11, 2018, no pet.) (mem. op.).

In May 2019, the parties filed an agreed motion for a continuance referencing ongoing developments in the investigation of Smith's shooting. In relevant part, the motion states:

While on appeal, the facts of this case may have changed substantially. On July 17, 2018[,] District Attorney Kim Ogg's Office advised the parties that HPD investigators recovered a .22 caliber rifle which they believe to have been used in the shooting of Plaintiff Smith. The Houston Forensic Science Center also conducted ballistics tests on the bullet taken from Smith and are stating privately that the bullet was fired from a .22 caliber rifle. On August 21, 2018, counsel for both parties met with ADA Lauren Bard. She shared additional facts which neither party may disclose due to a Confidentiality Agreement.

The parties have diligently attempted to gather this information in admissible form, but have been unsuccessful. On January 22, 2019, the parties sent a deposition by written questions to the DA's office on the issues contained in the July 17, 2018 letter. The DA's office declined to respond to the questions, but did provide an affidavit, which is not admissible.

The reason this case needs to be continued is that until the criminal case is tried, the DA's office will not give any testimony in the civil. They do not want to jeopardize the prosecution of the criminal case.

The problem for METRO is that it is unable to present admissible evidence which will potentially exonerate MPD Officer Greg Hudson and METRO. It is undisputed that Hudson was not found with a .22 caliber rifle at the scene.

The problem for Plaintiff Smith and his counsel is that they do not want to make a decision about non-suiting the case without substantive testimony as to the ballistics tests; which could rule out MPD Officer Hudson as Smith's shooter.

The DA's office has not advised as to when the criminal case will go to trial.

All parties agree to the continuance.

(internal citations omitted).

METRO filed its second supplemental responses to Smith's requests for disclosure in June 2019. In contrast to its original responses, METRO's second supplemental responses provided the following answers to the inquiries addressing potential parties and responsible third parties:

(b) the name, address, and telephone number of any potential parties:

RESPONSE: The person who fired the .22 caliber rifle which shot Officer Terry Smith.

* * *

(1) the name, address, and telephone number of any person who may be designated as a responsible third party:

RESPONSE: The shooter of the rifle. The shooter[']s name is contained in the Burrow's Affidavit.

METRO subsequently filed a combined traditional and no-evidence summary judgment motion in November 2019. In the motion, METRO argued:

There is ABSOLUTELY no evidence that Hudson shot Smith! In fact, all of the forensic evidence gathered by HPD investigators demonstrates Smith was shot by a third person who fired a .22 caliber rifle from a distance.

(emphasis in original). METRO included with its motion the following evidence: the July 17, 2018 letter from Harris County Assistant District Attorney Lauren Bard; an affidavit from HPD Detective Michael Burrow; and a Houston Forensic Science Center ballistics report.

Bard's July 2018 letter was addressed to counsel for both METRO and Smith and states, in relevant part:

I am currently investigating several shootings believed to have been committed by a single suspect. In the course of this investigation, police investigators have recovered a .22 caliber rifle that we believe to have been used in these shootings by the suspect. The Houston Forensic Science Center (HFSC) also conducted ballistics tests on the fired projectile that was recovered from Officer Terry Smith after he was shot on June 9, 2015.

HFSC has confirmed that the fired projectile recovered from Officer Smith's body had been fired by the suspect's .22 rifle.

Because it is my understanding that you are currently involved in pending litigation related to the June 9, 2015 shooting of Officer Smith, I am bringing this ballistics report to your attention.

In his affidavit, Detective Burrow said an investigation into a "series of unsolved sniper-style shootings in 2015 and 2016" linked Jamin Stocker to Smith's shooting. Detective Burrow said Stocker's home was searched in 2017 and officers recovered a .22 caliber rifle as well as "a news article about the shooting of Officer Smith [and] several other articles about similar area shootings." Like Bard, Detective Burrow...