Smith v. Davis

• Citation: 999 S.W.2d 409
• Decision Date: 18 August 1999
• Docket Number: No. 05-98-01641-CV,05-98-01641-CV
• Parties: (Tex.App.-Dallas 1999) O.D. SMITH, JR., in his Individual Capacity and his Official Capacity as Deputy Sheriff of Ellis County, Texas, Appellant v. ROBERT EARL DAVIS, Appellee
• Court: Court of Appeals of Texas

Page 409

999 S.W.2d 409 (Tex.App.-Dallas 1999)

O.D. SMITH, JR., in his Individual Capacity and his Official Capacity as Deputy Sheriff of Ellis County, Texas, Appellant v. ROBERT EARL DAVIS, Appellee

No. 05-98-01641-CV

In The Court of Appeals Fifth District of Texas at Dallas

August 18, 1999

On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. 96-06319-D

[Copyrighted Material Omitted]

Before Justices Morris, Whittington, and Roach

OPINION

JOSEPH B.MORRIS, Justice

In this case, we decide whether a county employee, sued independently from his employer, may assert official and sovereign immunity as defenses against a tort claim. Robert Earl Davis sued two Ellis County deputy sheriffs in their individual and official capacities based on events surrounding his arrest for telephone harassment and the eventual dismissal of the charges against him. One of the deputy sheriffs, O.D. Smith, Jr., brings this interlocutory appeal challenging the trial court's refusal to grant him summary judgment on Davis's claim against him for malicious prosecution. Smith contends the trial court erred in not concluding as a matter of law that he was immune from liability in both his individual and official capacities. On the undisputed facts presented, we agree the trial court erred in not granting summary judgment to Smith in his individual capacity under the doctrine of official immunity. But we also conclude Smith was not entitled to summary judgment in his official capacity under the doctrine of sovereign immunity because that affirmative defense was reserved in this case only to Ellis County, which was never made a party in Davis's suit. The trial court, therefore, did not err in denying Smith summary judgment in his official capacity.

I.

In October 1993, Sue Sherrard called the Ellis County Sheriff's Office to complain about a bill collector named Larry Johnson. Sherrard stated that Johnson worked with a collection agency called Hamilton-Phelps & Associates and he had been harassing her in an attempt to collect a debt owed by her son. Smith and another officer, Clint Tims, were assigned to investigate the complaint.

Smith telephoned Johnson at his office and asked him to tell his side of the story. According to Smith, Johnson responded angrily, cursed at him, and hung up. Smith then asked Tims to call Johnson. Johnson gave Tims an equally angry response. After Johnson hung up on Tims, Tims immediately telephoned again and asked the receptionist to put him through to the office supervisor. Tims was transferred to a man named Chaston Howell. Tims stated that Howell's voice sounded identical to Johnson's. After Tims identified himself and the purpose of his call, Howell made some rude remarks and hung up. Tims then called the office a third time and asked to speak to Howell again. The man Tims spoke to this time made some specific, disparaging remarks and hung up. Gregory Hamilton, a principal of Hamilton-Phelps & Associates, later admitted he was the person who made the disparaging comments to Tims.

Smith made an appointment to see Sherrard that afternoon. During his visit with her, Smith took a written statement in which Sherrard stated that Johnson had been calling her six or seven times a day in connection with her son's debt. Sherrard stated that Johnson used foul language and was abusive and threatening. Sherrard repeatedly told Johnson to stop calling her, but he continued to do so.

Three days after obtaining the statement from Sherrard, Smith prepared and signed a complaint against Johnson as well as an affidavit to obtain an arrest warrant for Johnson. Smith presented the affidavit to a magistrate. In his summary judgment affidavit, Smith stated that, in addition to the information contained in the affidavit in support of the arrest warrant, he told the magistrate that the name "Larry Johnson" possibly was an alias. Both Smith and Tims testified they had interviewed a collection agent from another company who told them that bill collectors often use assumed names. The arrest warrant, however, was issued only for the arrest of "Larry Johnson."

After obtaining the signed warrant, both Smith and Tims went to the collection agency. Upon entering the office, Smith saw a box with the name Larry Johnson on it. Smith told the receptionist he wanted to see Johnson. Although the facts concerning what occurred after this point are in dispute, Davis, who was also employed by the agency, walked into the office at that time. Smith and Tims placed Davis under arrest believing he was the man they had spoken to on the phone and who had been harassing Sherrard. Both officers testified they recognized Davis's voice as the same one they heard over the phone when talking to "Larry Johnson." Davis contends he repeatedly informed the officers that he was not Larry Johnson and that he provided them with proof of his identity after his arrest. Hamilton testified that a man named Larry Johnson was, in fact, employed by his agency and working on the Sherrard account. The harassment charge brought against Davis was later dismissed because Sherrard was unable to identify Davis as the man who had been harassing her.

After the harassment charge was dismissed, Davis brought this civil action against Smith and Tims in both their individual and official capacities as deputy sheriffs of Ellis County. Davis did not sue Ellis County itself. Davis alleged claims for false arrest, false imprisonment, and assault and battery against both Smith and Tims. In addition, Davis asserted a claim for malicious prosecution against Smith alone.

Smith and Tims moved for summary judgment on all of Davis's claims arguing several grounds, including official and sovereign immunity. The trial court granted summary judgment in their favor on all claims except the claim against Smith for malicious prosecution. Smith now brings this interlocutory appeal pursuant to section 51.014(5) of the Texas Civil Practice and Remedies Code contending the trial court erred in failing to hold that he was immune from liability on the malicious prosecution claim in both his individual and official capacities.

II.

In examining Smith's contentions on appeal, we recognize that the malicious prosecution claim against him in his individual capacity is separate and distinct from the claim against him in his official capacity. A suit against a government employee in his individual capacity seeks to impose personal liability on the employee for actions he takes under color of state law. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). By comparison, a suit against an employee in his official capacity seeks to impose liability on the governmental entity that employs him. Id. at 166.

Each capacity involves a separate and distinct form of potential immunity. Government employees sued in their individual capacity may claim the protections of official immunity. Gross v. Innes, 930 S.W.2d 237, 239 (Tex. App.-Dallas 1996, writ dism'd w.o.j.). An individual sued in his official capacity, on the other hand, may in some cases enjoy the protections of sovereign immunity to the extent those protections are available to his employer. See City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.-Houston [1st Dist.] 1995, no writ); Thomas v. Crow, 862 S.W.2d 719, 721 (Tex. App.-Tyler 1993, no writ). In this case, Smith claimed he was entitled to the protections provided by both forms of immunity. We examine first whether Smith demonstrated that he was entitled to official immunity in his individual capacity.

To be entitled to official immunity, Smith was required to show that the claim for malicious prosecution arose out of his performance of discretionary duties that were done in good faith and within the scope of his authority. See Kmiec, 902 S.W.2d at 120. A defendant's conduct that forms the basis for a claim of malicious prosecution is his initiation or procurement of a criminal prosecution against the plaintiff. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997); see also Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994). Accordingly, Smith was required to prove in his motion for summary judgment that his alleged "initiation or procurement of a criminal prosecution" against Davis was a discretionary duty performed in good faith within the scope of his authority.

A person "initiates" a criminal prosecution when he makes a formal charge. Lieck, 881 S.W.2d at 292. A person "procures" a criminal prosecution if his actions are enough to cause the prosecution and, but for his actions, the prosecution would not have occurred. Id. Procurement requires that the person's actions be both necessary and sufficient to cause the criminal prosecution. Id. Davis alleged in his petition that Smith committed the tort of malicious prosecution by "filing the necessary paperwork to effectuate a prosecution."¹ In this case, Smith "effectuated" the prosecution against Davis, if at all, when he filed the formal complaint charging "Larry Johnson" with harassment. Reading Davis's petition broadly, we will also include Smith's affidavit made to obtain the arrest warrant among the alleged "necessary paperwork" filed by Smith.² There does not appear to be any dispute that Smith was discharging the duties generally assigned to him when he filed the complaint and made the affidavit and, therefore, was acting within the scope of his authority as a police officer. See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). Consequently, at issue is only whether Smith's actions in filing the complaint and making the affidavit were discretionary and done in good faith.

An act is discretionary if it involves personal deliberation, decision making, and judgment. Kmiec, 902 S.W.2d at 121. Smith submitted summary judgment evidence showing that he and Tims determined the course of the investigation into the allegations made by Sherrard....