Rogers v. City of Hous.

• Decision Date: 08 June 2021
• Docket Number: NO. 14-19-00196-CV,14-19-00196-CV
• Citation: 627 S.W.3d 777
• Court: Texas Court of Appeals
• Parties: Noris ROGERS, Appellant v. CITY OF HOUSTON; CenterPoint Energy Houston Electric, LLC; and Davey Tree Surgery, Appellees

627 S.W.3d 777

Noris ROGERS, Appellant

v.CITY OF HOUSTON; CenterPoint Energy Houston Electric, LLC; and Davey Tree Surgery, Appellees

NO. 14-19-00196-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 8, 2021

Noris Rogers, pro se.

Brett Jackson Young, Erin E. Lunceford, Travis Leverett, Robert Higgason, Brian Anthony Amis, Houston, Randy L. Fairless, Jocelyn A. Holland, Timothy Nisbet, Sugar Land, for Appellees.

Panel consists of Justices Bourliot, Hassan, and Poissant.

Frances Bourliot, Justice

Appellant Noris Rogers sued appellees the City of Houston, CenterPoint Energy Houston Electric, LLC, and Davey Tree Surgery for false imprisonment and intrusion on seclusion, among other claims, based on events that occurred when CenterPoint and Davey Tree employees, accompanied by a City of Houston police officer, came to Rogers' property to trim a tree under a powerline. The trial court granted traditional and no-evidence summary judgments favoring CenterPoint and Davey Tree and a plea to the jurisdiction favoring the City. We affirm the trial court's grant of summary judgment favoring Davey Tree on all claims and favoring CenterPoint on the intrusion on seclusion claim. We also affirm the trial court's dismissal of all claims against the City. We reverse the grant of summary judgment favoring CenterPoint on Rogers' false imprisonment claim and remand that claim back to the trial court for further proceedings.

Background

Many of the facts in this case are undisputed. Rogers owns a home in Fort Bend County, Texas. CenterPoint, a public utility, claims a right of access to Rogers' backyard to trim an oak tree that is under a powerline. CenterPoint claims this right both under a tariff pursuant to which it provides electrical services and based on an aerial easement it has over Rogers' property for the powerline. CenterPoint contracted with Davey Tree to conduct the tree trimming. On November 7, 2017, a CenterPoint representative and a Davey Tree crew arrived at Rogers' home to trim the oak tree. They were accompanied by Houston Police Sergeant Pochen Lee, with whom CenterPoint had contracted to provide assistance. Lee was working an extra job with the approval of the Houston Police Department ("HPD") and was wearing his uniform and carrying a firearm. It is undisputed that Rogers' home is outside HPD's jurisdiction.

Davey Tree had previously left a door hanger at Rogers' home informing him of the impending tree trimming, and Davey Tree employees came to the residence twice in October 2017, but Rogers did not allow them to trim the tree. There was an allegation that Rogers had shoved one of the employees during a visit, which Rogers denied. At one point, Rogers called CenterPoint and then followed up with a letter in which he stated:

It was never my intent to prevent your subcontractor from [doing] its work, I just wanted (and still want) input as to how the tree was to be trimmed.... [A]s we discussed over the telephone, CenterPoint [has] my permission to trim the Oak Tree in my back yard ... on the condition that I will have input as to how the tree will be cut back.

(Emphasis in original). CenterPoint apparently did not respond to this letter.

The tariff and aerial easement under which CenterPoint claims the right to enter Rogers' property were offered as summary judgment evidence. The tariff provides in relevant part that CenterPoint's

duly authorized representatives have the right of access to Retail Customer's Premises at all reasonable hours ... to: ... perform ... activities necessary to provide Delivery Service, including tree trimming and tree removal where such trees in the opinion of Company constitute a hazard to Company personnel or facilities, or to the provision of continuous Delivery Service....

The easement states that the grantee has

rights of ingress and egress to and from said easement, ... together with the additional right to remove from said easement and land adjoining thereto, all bushes, trees and parts thereof ... which, in the opinion of Grantee, endanger or may interfere with the efficiency, safe and proper operation, and maintenance of said electric distribution facilities.

A video recording of the events of November 7, taken from Lee's body camera, was also made part of the summary judgment evidence. Because the claims and issues in this lawsuit all revolve around the events in question, we will describe the video in some detail. When the video begins, Sergeant Lee exits his vehicle and walks up Rogers' driveway to where Rogers is standing in his garage. The two exchange greetings, and Lee tells Rogers that he is there with CenterPoint and a tree company. Lee also states that CenterPoint told Lee that Rogers had been informed they were coming. Rogers says they earlier left a voicemail but he told them to call back before they came to his home.

CenterPoint representative David Menough then walks up the driveway and introduces himself to Rogers. Menough says that he had tried to call Rogers but the call again went to voicemail. Rogers denies this. Rogers then says that he objects to CenterPoint coming to his home with an armed police officer. He tells Lee that he (Rogers) has committed no crime and threatened no one and that CenterPoint is using Lee to intimidate him. Lee responds that he is there to keep everyone safe including Rogers.

Rogers then explains that he agreed CenterPoint could cut the tree, that he had called them four times, but CenterPoint did not return the phone calls. Rogers also complains that CenterPoint did not give him the option of having the tree trimmed himself. Menough asserts that it is against the law to allow anybody except the power company to trim within six feet of a power line due to safety concerns. Rogers denies that the tree is within six feet of the power line. Menough shows a flyer to Lee and Rogers, purportedly regarding the law in question.

At this point, Menough becomes loud and aggressive and moves quickly towards Rogers with his hand raised in a gesture. Rogers turns to Lee and says, "He is threatening me." Menough walks away and appears to order the Davey Tree work crew that is standing nearby to head to the easement in Rogers' backyard. Some of the workers begin to move toward the gate at the side of Rogers' house. Rogers tells them to get off his property and walks toward the gate. Menough tells Sergeant Lee, "I want you to arrest him and put him in your car. He is stopping our progress. We have the right to do this." Rogers meanwhile closes the gate to his backyard and places a padlock on it while asking Lee repeatedly to "please leave, officer."

Lee tells Rogers that he is going to have to call an on-duty Fort Bend County unit, and if they find out Rogers is in violation of any law, he will be arrested. Rogers points toward Menough and tells Lee that "this man just physically threatened me," and "if he stands in my face again, I am going to protect myself." Rogers then points at someone in the Davey Tree crew and says that last time the man came to Rogers' property, he threatened Rogers. Menough offers that it was Rogers who threatened a crew member on the prior visit. Rogers then calls Menough "a liar."

Menough heads to his truck and retrieves a pair of bolt cutters, which Rogers later described as a weapon, and Rogers goes to his garage and picks up a baseball bat. Lee follows Rogers into the garage and takes the bat from his hands. Rogers relinquishes the bat easily as soon as Lee touches it. Menough meanwhile gives the bolt cutters to Davey Tree manager Jose Rodriguez, who heads toward the gate at the side of Rogers' home. Rogers moves in front of Rodriguez, and the two make slight contact. Lee then tells Rogers, "You already broke the law," and encourages him to come sit down. Rodriguez and Menough again move toward the gate, but Rogers gets there first and stands with his back to the gate, pointing out that he has a no trespassing sign posted on the fence and telling them to get off his property and that he just wants peace. Menough tells Rogers to go back inside his house and that they have a right to trim the tree. Rogers pleads with Lee to tell the crew to go back to the street.

Lee then asks Rogers if he bumped Rodriguez, and Rodriguez says, "Officer, I do feel threatened by him. He pushed me." The video, however, did not show any push and instead showed Rogers move in front of Rodriguez as Rodriguez was walking and a slight touch occur between the two men. Lee tells Rogers that he is "that close" to going to jail. Rogers responds that "they need to take me to court. I have not committed a crime.... I did not shove him." Rogers tells the crew that they can climb the fence to trim the tree and then he will take it up in court but they are not to cut his padlock off the gate.

Menough then says to Lee: "Officer, please remove this threat so we can get on with our work." Lee tells Rogers that if he is sitting in jail, they will still trim his tree. Rogers reminds Lee that he has asked him to leave, to which Lee responds that he is just doing his job. Rogers then tells Lee, "There is no immediate danger here. There is no immediate danger from this tree." Lee says the quickest way to peace is to place Rogers in handcuffs. Rogers says that they should have come and trimmed the tree at Rogers' direction as they had agreed.

Lee asks Rogers if he is going to let them do their job, and Rogers responds, "no." Lee then takes out his handcuffs and tells Rogers that he is running out of options and may need to call Fort Bend County to come take Rogers to jail. Rogers says that he does not want to go to jail and "all they had to do was call me back." Again, Lee asks if Rogers is going to let them do their job. When Rogers says "no" again, Lee tells him, "I am about to arrest you." Lee then places the handcuffs on Rogers and tells him he is under arrest. Lee also says, "Sorry about it." Rogers offers no resistance and allows himself to be easily...