Petta v. Rivera

• Decision Date: 30 December 1998
• Docket Number: No. 13-97-661-CV,13-97-661-CV
• Citation: 985 S.W.2d 199
• Parties: Melinda PETTA, Appellant, v. Adrian RIVERA, Individually and in his official capacity as a Texas Department of Public Safety Highway Patrolman and the Texas Department of Public Safety, Appellees.
• Court: Texas Court of Appeals

Page 199

985 S.W.2d 199

Melinda PETTA, Appellant, v. Adrian RIVERA, Individually and in his official capacity as a Texas Department of Public Safety Highway Patrolman and the Texas Department of Public Safety, Appellees.

No. 13-97-661-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 30, 1998.

Rehearing Overruled Feb. 25, 1999.

Roy S. Dale, William D. Mount, Jr., Dale & Klein, L.L.P., McAllen, for Appellant.

Demetri Anastasiadis, Asst. Atty. Gen., Austin, Richard M. Berry, Asst. County Atty., Corpus Christi, Dan Morales, Atty. Gen., Jorge Vega, First Asst. Atty. Gen., Drew T. Durham, Dep. Atty. Gen. for Crim. Justice, Ann Kraatz, Asst. Atty. Gen. Chief, Law Enforcement Defense Div., Austin, for Appellees.

Before Chief Justice SEERDEN, and Justices DORSEY and CHAVEZ.

OPINION

DORSEY, Justice.

This is an appeal from a take-nothing summary judgment. Melinda Petta sued appellees, The Texas Department of Public Safety (DPS) and one of its officers, Adrian Rivera, for personal injuries she allegedly received following a traffic stop and an ensuing high-speed chase. The trial court granted summary judgment for appellees. By seven points of error Petta asserts that appellees did not conclusively establish their entitlement to summary judgment. We reverse and remand.

A number of facts are strenuously disputed. However, as this is a summary judgment, we take the facts and the inferences from them in the light most favorable to the non-movant, Mrs. Petta. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Applying that method of reviewing the evidence, we take the following facts as correct.

On January 15, 1990, Melinda Petta and her two children were returning to Corpus Christi from the Rio Grande Valley. About 4:30 p.m. Officer Adrian Rivera stopped her for speeding on Farm Road 70, southwest of Corpus Christi. She gave Rivera her drivers license and proof of insurance and began arguing with him about how fast she was going. When he returned to his patrol car she raised her window due to the drizzle and because the air conditioner was on. Rivera returned to her vehicle and asked her to get out. She refused to get out because she had children with her, and she "was wary." Rivera tried to open her locked door and started yelling at her. He said, " 'Roll down the goddamn window, bitch!' " and " 'Get out of the car, bitch!' " He began beating on her window with his nightstick and threatened to break the glass. He threatened to tow her vehicle, and she in turn threatened to leave. He drove his car in front of her vehicle to block it. She backed up and pulled in front of him. He approached her window and screamed at her to get out, but she refused. Finally he pointed his .357 handgun at her face and said, " 'Then I'll just have to kill you, Bitch!' " At this point she drove away, and he chased her and fired a shot at her. She was going about 85 m.p.h. and kept changing lanes to prevent him from passing her and cutting her off. She saw in her rear-view mirror that Rivera had pulled out his gun and was apparently taking aim. She continued to switch lanes to keep him from locking on target. She saw him pull out his shotgun, but a person who was with him took it away from him. Petta claims that during the chase Rivera fired at her a second time. The chase ended with Petta's arrest by several officers at her apartment. The record showed Rivera violated DPS rules because he "used harsh and profane language during the course of a traffic stop" and disobeyed a direct order not to shoot at Petta's vehicle.

Procedural History

Because of Petta's flight from Rivera she was charged and convicted of fleeing or attempting to elude a police officer (Officer Rivera). This Court affirmed her conviction. See Petta v. State, 840 S.W.2d 721 (Tex.App.--Corpus Christi 1992, pet. ref'd). Petta sued the DPS and Rivera, in his official capacity, for liability under the Texas Tort Claims Act (TTCA). She alleged the DPS was liable to her for personal injuries, specifically severe mental anguish, grief, emotional pain, torment, indignation, shame, despair, suffering, and public humiliation proximately caused by the wrongful acts, omissions, and negligence of the DPS and Rivera while acting in the scope of his employment. She also sued appellees for spoliation of evidence, and for use of excessive force under 42 U.S.C. § 1983. She sued Rivera, in his individually capacity, for assault, aggravated assault, battery, reckless conduct, and terroristic threat. The trial court granted summary judgment for appellees, and Petta appealed the case to this Court. We reversed the judgment and remanded the case to the trial court. See Petta v. Rivera, 923 S.W.2d 678, 688 (Tex.App.--Corpus Christi 1996, writ denied) (Petta 1 ).

After remand appellees filed a joint summary judgment motion in which they asserted that collateral estoppel barred this suit. In this same motion the DPS alleged that sovereign immunity barred the suit. Appellees filed a joint supplemental summary judgment motion, alleging the defense of public policy barred this suit. The trial court granted summary judgment for appellees, and Petta appeals from this judgment.

Summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery, Science Spectrum v. Martinez, 941 S.W.2d 910, 911 (Tex.1997), or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, 941 S.W.2d at 911; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). When reviewing a summary judgment we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Nixon, 690 S.W.2d at 549.

Collateral Estoppel

By points one and two Petta asserts the trial court erred in granting summary judgment because appellees did not establish their affirmative defense of collateral estoppel. The doctrine of collateral estoppel is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994). A party seeking to assert collateral estoppel must establish: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Trapnell, 890 S.W.2d at 801. See HECI Exploration Co. v. Neel, 42 Tex. Sup.Ct. J. 93, 99 n. 2, 982 S.W.2d 881, 890 n. 2, (1998). Collateral estoppel requires that the issue decided in the first action be identical to the issue in the pending action. Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 802 (Tex.1992). In Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926 (Tex.1988) the court stated "The doctrine applies when the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit." Tarter, 744 S.W.2d at 927 (citing Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984)) (emphasis added).

A prior criminal conviction may work an estoppel in favor of the government in a later civil proceeding. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 95 L.Ed. 534 (1951). This estoppel extends only to questions " 'distinctly put in issue and directly determined' " in the criminal prosecution. Emich Motors, 340 U.S. at 569, 71 S.Ct. 408. In the case of a criminal conviction based on a jury verdict of guilty issues which were essential to the verdict must be regarded as having been determined by the judgment. Emich Motors, 340 U.S. at 569, 71 S.Ct. 408.

In the instant case the trial court charged the jury in Petta's criminal case on fleeing or attempting to elude a police officer as well as the defense of necessity. The charge stated, in relevant part:

Now, therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Melinda Petta, on or about the 15th day of January, 1990, in the County of Nueces and State of Texas did then and there flee from a uniformed law enforcement officer to-wit: Adrian O. Rivera as charged but you further believe from the evidence or have a reasonable doubt thereof that at the time the defendant did the act aforesaid, if any, the defendant, Melinda Petta, reasonably believed that such act was immediately necessary to avoid imminent harm, to-wit: Adrian O. Rivera, causing bodily injury or death to herself or her children and you further find or have a reasonable doubt thereof that the desirability and urgency of avoiding the harm clearly outweighed according to ordinary standards of reasonableness the harm sought to be prevented by the law denouncing the conduct of the said Melinda Petta, you will acquit the defendant and say by your verdict not guilty.

If, however, you belief [sic] from the evidence beyond a reasonable doubt that the Defendant, Melinda Petta, did not have a reasonable belief of D.P.S. Trooper Adrian O. Rivera causing bodily injury or death to herself or her children viewing the facts from the Defendant's standpoint at the time, then you will find against her on her plea of necessity.

Appellees' contention is that because the jury found Petta guilty it rejected her necessity defense. By rejecting her defense it also rejected the facts and issues needed to establish this defense. Thus collateral estoppel barred Petta from relitigating these facts and issues in her civil suit.

Petta based her civil claims on Rivera's conduct occurring after the initial stop and during the ensuing chase. The question she faces in her civil suit is whether those facts support her claims against appellees. However the criminal jury did not decide this question; rather, it decided her necessity defense, which was...