Douglas W. Kirk v. Plano Independent School District Nancy Humphrey, Individually and in Her Official Capacity as President of the Board of Trustees of the Plano Independent School District Anika Vaughan, Individually and in Her Official Capacity as Teacher for Plano

ACCEPTED
03-15-00211-CV
7231959
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/5/2015 2:55:34 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00211-CV

FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE 10/5/2015 2:55:34 PM
THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
AUSTIN, TEXAS

Douglas W. Kirk v. Plano Independent School District, Et AI

Original Proceeding from the 22"d District Court,
The Honorable R. Bruce Boyer, Presiding

Appellee's Brief

Stephen R. Marsh
David Klosterboer & Associates
1301 E. Collins Boulevard, Suite 490
Richardson, TX 75081
Email: smarsh@travelers.com

Attorney for Appellee/Defendant

Page 1
 IDENTITY OF INTERESTED PARTIES

This is not a mandamus matter, but an appeal. As a result, the interested
parties include the Defendants, against whom the Plaintiff has not brought this
appeal, choosing rather to name the Court as a Respondent without providing
proper notice or an appeal in the proper form.

Appellant/Plaintiff: Counsel:

Douglas W. Kirk Douglas W. Kirk (ProSe)
1850 Old Sattler Road
Canyon Lake, TX 78132
Telephone: (830) 237-7313

Appellee/Defendant: Counsel:

Plano Independent School District, Stephen R. Marsh
a governmental entity David Klosterboer & Associates
1301 E. Collins Boulevard, Suite 490
Nancy Humphrey, sued individually Richardson, TX 75081
and in her official capacity as president Telephone: (214- 590-6300
of the board of trustees of the Plano
Independent School District

Anika Vaughan, sued individually
and in her official capacity as a teacher
for the Plano Independent School District

Joseph Parks, sued individually and in
his official capacity as the director of
safety and security for the Plano Independent
School District

Courtney J. Washington, sued individually
and in her official capacity as principal for
Plano Independent School District.

Page 2
 TABLE OF CONTENTS

INDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

TABLE OF AUTHORITIES 4

STATEMENT OF THE CASE 6

STATEMENT REGARDING ORAL ARGUMENT 7

ISSUES PRESENTED 8

STATEMENT OF FACTS 10

SUMMARY OF THE ARGUMENT 14

ARGUMENT 16

CERTIFICATE OF COMPLIANCE 30

PRAYER 31

Page 3
 TABLE OF AUTHORITIES
Cases Page

Brown v. Ke-Ping Xie, 16
260 S.W.3d 118 (Tex.App.-Houston [1st Dist.] 2008, no pet.)

Catalina Dev., Inc. v. County ofEl Paso, 28,29,
121 S.W.3d 704 (Tex.2003) 30

City of Corpus Christi v. Eby, not reported in S.W.3d, 22
2011 WL 1437002

City ofMcKinney v. Hank's Rest. Group, L.P., 29
412 S.W.3d 102 (Tex.App.-Dallas 2013, no pet.).

Combined Specialty Ins. Co. v. Deese, 18
266 S.W.3d 653, 654-665 (Tex.App.-Dallas 2008, no pet.).

Gallegos v. Escalon, 24
918 S.W.2d 62 (Tex.App.-Corpus Christi 1996)

Golden v. Austin County Sheriffs Dept., 21
2009 WL 1835448 (S.D.Tex. Jun 26, 2009)
(NO. CIV.A.H-09-817)

Gonzalez v. Ison-Newsome, 25
68 S.W.3d 2, 5 (Tex.App.-Dallas 1999) pet.
dism'd w.o.j., 73 S.W.3d 178 (Tex.2001)

Granada Biosciences, Inc. v. Forbes, Inc., 29
49 S.W.3d 610, 618 (Tex.App.-Houston
[14th Dist.] 2001), rev'd on other grounds,
124 S.W.3d 167 (Tex.2003)

Hinterlong v. Clements, 24,25
109 S.W.3d 611 (Tex.App.-Fort Worth 2003

Page 4
 i

Mission Canso!. Independent School Dist. v. Garcia, 14,17,
253 S.W.3d 653 (Tex. 2008) 20,22,
23,25,
27

Tex. Bay Cherry Hill, L.P. v. City ofFort Worth, 17,22
257 S.W.3d 379 (Tex.App.- Fort Worth 2008, no pet.).

Waller County v. Curtis, Not Reported in S.W.3d, 30
2006 WL 907773, (Tex.App.-Houston [1 Dist.],2006)

Zellers v. Cortez,
2010 WL 1839280 (Tex.App.-Corpus Christi 19
May 06, 2010)

Statutes

Civil Practice and Remedies Code 101.103 21,22

Texas Tort Claims Act 8,14,
16, 18,
19,20,
21,22

TRAP45 7,1 0,
31

Page 5
 STATEMENT OF THE CASE

The Plaintiff was told that he could not attend a level2 hearing by telephone,

even though a level 1 hearing can be attended by telephone. [RR 15]. He then

abandoned the grievance. [RR 15]. He thus failed to exhaust remedies and instead

abandoned them.

The Plaintiff then sued a govermnental entity. He also sued several of its

employees, each both individually and in their capacity as employees of the

governmental entity. He sued generally because he had been identified as a

potential threat and as a result a very short internal investigation was held. He

basically claims that any time a report is made of possible danger, it is slander for

an internal investigation to be made.

He appeals against the Court as Respondent. In an appeal (rather than

Mandamus) the Court is not a proper party and the notice of Appeal [RR 164] does

not give the Court notice that the Plaintiff/Appellant is bringing an action against

the Court as a Respondent. The Appellant's Brief does not address Appellees as

parties in the identity of interested parties.

Appellees appear and answer out of an abundance of caution and without

waiving the procedural defects.

Page 6
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary as the case does not leave the boundaries of

well settled law. See generally TRAP Rule 45.

Page 7
 ISSUES PRESENTED (RESTATED)

1. Did the Court err by applying the well-settled law of Texas as to the Tort

Claims Act when a suit for defamation is brought against both a

governmental entity and its employees in the same action?

2. Did the Court err by following the Texas Supreme Court as to the Tort

Claims Act and Independent School Districts when it barred the

Plaintiff's cause of action even though it does not involve a motor

vehicle?

3. Did the Court err by following the Texas Supreme Court's interpretation

that additional remedies under Texas Tort Claims Act means other

statutory causes of action and not other torts rather than following the

Plaintiff's interpretation that it should allow for suit for torts otherwise

barred by the Texas Tort Claims Act?

4. Did the Court err by applying the well-settled law that requires dismissal

when a Plaintiff sues an employee of a governmental entity in the same

suit as the governmental entity and sues them in their individual and

official capacity?

5. Did the Court err by applying well established law that requires an

express waiver and that does not allow one by implication?

Page 8
6. Did the Court err by applying well established law that a waiver-by-

conduct claim only applies to performed contracts?

Page 9
 STATEMENT OF FACTS

Appellant's statement of facts does not follow the record. It also contains no

record citations. See TRAP 38.l(f). As a result, a statement of facts by Appellee

is required.

Appellant has a long history which begins with officers of the State of

Florida investigating his issues and his being accused of stalking Melanie Lauren

Smith [5.8 of the Original Petition, RR 8.]. Plaintiff represents himself as her

confidant [e.g. 5.12, RR 9].

He was then called by Deputy John Patrick who informed him that charges

of stalking had been filed and a report for possible prosecution was underway. [RR

9]. The matter closed when the alleged victim reported to the court that she "feels

the issue is resolved." [RR 9].

Mr. Kirk feels that a criminal proceeding before a Court occurred without

him being charged. His Statement of Facts at Page 7-8 is thus inaccurate when he

claims that he has never been charged as a stalker because his feelings are

inaccurate, he was charged and then the case was closed.

Sworn affidavits were filed as to Melanie Smith's mental illness and that

"Doug Kirk" had been taking advantage of her. [RR 9-10]. After a hearing with

findings made by the finder of fact, Melanie Smith was denied the right to

determine the primary residence ofthe child. [RR 10].

Page 10
 Plaintiff then sent a letter to the Plano ISD about insults sent to Melanie

Smith by one of the Defendants and he stated that he was contemplating a libel

suit. [Insults are at 5.12 RR 9 and do not include Kirk, the threat of suit is at 5.16,

RR 10].

Plaintiff then complains that there was not an investigation before the matter

was investigated. [RR 12]. That is, that there was a statement made and that it was

forwarded to the head of security to investigate and that somehow there is "a lack

of evidence to indicate" that the Defendants "investigated the statements" by the

investigation that they conducted. [RR 14]

Ms. Washington sent the letter Mr. Kirk complains of to Mr. Parks to

investigate [RR 14] and then Mr. Parks decided to ask about the concerns and

investigate them. [RR14]. Apparently Mr. Kirk believes that any security concerns

should be vetted with the person whom the concerns are voiced about before any

other investigation occurs [RR 14].

He complains that he was accused of threatening revenge [6.2, RR 12] when

he had threatened a law suit for slander over insults directed at a third party that

did not name him [See above]. He complains of the word "following" when he

spends much of his Petition detailing the times he went to Florida or followed Ms.

Smith to Florida by insisting that only the penal code definition should apply.

After detailing [RR 7-9] his efforts to retrieve Ms. Smith and help her to leave her

Page 11
husband, including driving to Dallas [5.11 RR 9] and taking her to San Antonio, he

complains of the conclusion that he was trying to get Ms. Smith to go anywhere

with him.

He complains of the term "stalker" in regards to what he calls the Florida

fiasco.

He also complains that while he did attempt to get Ms. Vaughn fired in his

sending the insulting text messages and the grievance and threats he made, that she

reached that conclusion. [above and RR 13].

He took a level one grievance. For level two, he was informed that he had to

attend it in person. [RR 15]. He considered the procedural rules malice. He

claims that he was mislead in his statement of facts, while the record reflects that

he was clearly told that he had to appear in person and he pled that in the court

below. His statements in his brief 9-10 to the contrary are both unsupported and

are directly contradicted by the record and his pleadings.

Plaintiff refers to oral arguments without support by a transcript or the

record.

A number of his pleadings were not timely filed (e.g. for the hearing on

December 14, 2014, the Plaintiff filed a response on December 8, 2014 ).

The omission of a transcript requires that the Court of Appeals presume that

the hearings support the ruling below contrary to the Appellant's position that he is

Page 12
 ,-

entitled to establish evidence below on his own dictat without a basis in the record

or a transcript. He reverses the burden and the presumptions in his statement of

facts.

The trial court followed the law. The case was dismissed.

Page 13
 SUMMARY OF THE ARGUMENT

Appellees argue that this Court should apply the well-settled law of Mission

Canso!. Independent School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) that

when a party sues a governmental entity and its employees in the same cause of

action, the party has made a binding election that entitles the employees to be

dismissed from the litigation and entitles the entity to have the suit dismissed on

the basis of sovereign immunity not waived by the Texas Tort Claims Act.

Taking a position contrary to the Texas Supreme Court, the Appellant argues

that the Texas Tort Claims Act exists to make it easier for governmental entities to

be sued and that a plaintiff is free to sue governmental entities and employees

without regards to the Texas Tort Claims Act if it makes it easier for the plaintiffto

recover. He argues in passing (though not by separate point) that a failure to

challenge venue is a waiver of all Texas Tort Claims Act defenses, even those

raised in the pleadings.

He argues that any facts that lead to a cause of action a governmental entity

might be sued for constitutes a waiver by conduct and thus the same falls outside

of the Texas Tort Claims Act. He also argues that the Texas Supreme Court has it

wrong and that the concept of waiver by conduct extends beyond contracts and that

a waiver does not require express consent. He argues that a party need have more

than public entity status to allege immunity under the Texas Tort Claims Act.

Page 14
 Finally, he alleges that any investigation of allegations constitutes

defamation. He proposes a rule that results in any police investigation that does not

immediately contact the alleged criminal before any other investigation is

completed constitutes actionable defamation by the police.

Page 15
 ARGUMENT

Reply to issue 1. Did the Court err by applying the well-settled law of Texas as to

the Tort Claims Act when a suit for defamation is brought against a governmental

entity and its employees?

Arguments and Authorities

The Plaintiff argues that he is entitled to ignore the Texas Tort Claims Act if

he chooses to attempt to pursue a cause of action outside of the Act. He takes the

losing argument in Brown v. Ke-Ping Xie, 260 S.W.3d 118 (Tex.App.-Houston

[1st Dist.] 2008, no pet.). At 120 we have the argument on appeal and the Court's

ruling:

the employees and the hospital assert that (1) Xie's original petition
asserted a claim for defamation against the hospital and (2) Xie's suit was a
suit "under'' the Act, which was an irrevocable election by Xie that required
the dismissal of the claims against the employees. We conclude that the trial
court erred by denying the motion to dismiss the claims against the
employees. We reverse the trial court's order and dismiss the employees.

The Court of Appeals then sets out at 121 to 122 that Xie made the same

argument that the Appellant makes in our case when he attempts to claim that his

claims are not "under the act." [emphasis added]

The hospital and the employees contend that Xie's original petition
was a lawsuit that asserted claims brought "under" the Act against both the
hospital and the employees and that the trial court had a mandatory duty to
dismiss the suit against the employees. See Tex. Civ. Prac. & Rem.Code
Ann. § 101.106(e) ( "the employees shall immediately be
dismissed")(emphasis added). Xie responds that (A) the only petition that
should be considered is the amended petition, which is the live pleading; (B)

Page 16
 section 101.1 06( e) does not apply because the request for an injunction is
not a lawsuit against the hospital; and (C) his suit is not filed "under" the
Act because 122 the Act does not waive governmental immunity for
defamation~

The Court of Appeals then went out to explain that the Texas Supreme Court

had clearly addressed the issues:

. . . we next turn to the parties' dispute whether the lawsuit for
defamation is a lawsuit "under" the Act for purposes of section 101.106. The
hospital and employees contend that any tort lawsuit filed against the
govermnent is "under" the Act because the only possible relief for the
govermnent's tortious acts lies in the Act's limited waiver of immunity. Xie
responds that his lawsuit is not "under" the Act because defamation is not a
tort for which the Act waives immunity. See Tex. Civ. Prac. & Rem.Code
Ann. § 101.057 (Vernon 2005) (stating that Act does not waive immunity
for intentional torts).

The Supreme Court of Texas recently addressed this issue. See
Mission Canso!. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657-58
(Tex.2008). In Garcia, the court of appeals affirmed a trial court's denial of
the School District's jurisdictional pleas under section 101.106. I d. The court
of appeals determined that Garcia's claims were not "under this chapter"
because the claims did not fit within the Act's waiver of immunity. Id. In
rejecting this argument, the Texas Supreme Court concluded,

Because the Tort Claims Act is the only, albeit limited, avenue for
common-law recovery against the govermnent, all tort theories alleged
against a govermnental unit, whether it is sued alone or together with its
employees, are assumed to be "under [the Tort Claims Act]" for purposes of
section 101.106.

The bottom line: "Because "all tort theories" are "under this chapter" for

purposes of section 101.106, we conclude that section 101.106 does apply to Xie's

claims for intentional torts." See also Tex. Bay Cherry Hill, L.P. v. City of Fort

Worth, 257 S.W.3d 379 (Tex.App.-Fort Worth 2008, no pet.).

Page 17
 As to Plaintiffs argument made in passing that a failure to challenge venue

is a waiver of the merits, he provides no support for the proposition. The law is to

the contrary. E.g. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653, 654-665

(Tex.App.-Dallas 2008, no pet.). A wavier of a venue contest has no impact on the

merits. He also provides no support for his argument made in passing that a lack

of the record allows him to establish the record by his sole unsupported dictat

rather than the established presumption of the law that the missing record supports

the judgment.

A party is not entitled to ignore the limits of the Texas Tort Claims Act to

attempt to pursue a cause of action outside of the Act.

Page 18
 .• I

n
~_I
'

ARGUMENT

Reply to Issue 2. Did the Court err by following the Texas Supreme Court as to

the Tort Claims Act and Independent School Districts when it barred the Plaintiffs

cause of action when the claim does not involve a motor vehicle?

Arguments and Authorities

The Plaintiffs argument is that because there is governmental immunity

except where waived by the Texas Tort Claims Act, that if the Act does not

provide a waiver, he should be able to sue without having to deal with immunity.

Thus he claims that the law does not bar any suit he might bring other than one

involving motor vehicles. As the courts have stated [emphasis added]:

When a plaintiff sues a governmental entity or official, it must
affirmatively demonstrate the trial court's jurisdiction by alleging a valid
waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,
542 (Tex.2003); City ofAlton v. Sharyland Water Supply Corp., 145 S.W.3d
673, 678 (Tex.App.-Corpus Christi 2004, no pet.). Governmental immunity
shields a city from liability except to the extent immunity is waived by the
Texas Tort Claims Act. See City of Alton, 145 S.W.3d at 679; City of
Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App.-Houston [1st Dist.]
1995, no pet.). The Texas Tort Claims Act does not waive immunity for
intentional torts. Tex. Civ. Prac. & Rem.Code Ann. § 101.057(2) (Vernon
2005). 1

Thus there is no waiver of immunity when the Act does not provide a claim.

Immunity in this context is instead automatic. In response, the Plaintiff mistakes
1
Zeller brought "claims for intentional torts-defamation, defamation per se, libel, libel per se,
and intentional infliction of emotional distress" and the Court noted "we conclude that Zellers's
pleadings affirmatively negate the existence of jurisdiction" Quotes from Zellers v. Cortez, 2010
WL 1839280 (Tex.App.-Corpus Christi May 06, 2010) (NO. 13-09-00596-CV)

Page 19
the burden and the law. The law is that "When a plaintiff sues a governmental

entity or official, [the plaintiff] must affirmatively demonstrate the trial court's

jurisdiction by alleging a valid waiver of immunity." Immunity is the baseline.

Mission Canso!. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657-58

(Tex.2008) and the cases that follow it are clear. Plaintiff's argument has been

disposed of by well-established law and Plaintiff has provided no reasonable

extension of the law or reason to suppose that the Texas Supreme Court will not

honor stare decisis and will change the law to the construction the Plaintiff favors.

A claim that does not involve a motor vehicle does not automatically trump

the Texas Tort Claims Act and Immunity to allow a suit expressly barred by the

law and the Texas Supreme Court's interpretation ofthe law.

Page 20
 ,_'

ARGUMENT

Reply to issue 3. Did the Court err by following the Texas Supreme Court's

interpretation as to what the provisions of the Texas Tort Claims Act mean rather

than following the Plaintiffs interpretation?

Arguments and Authorities

The Plaintiff wants to claim that he should be allowed to sue the way he

wants as "remedies additional." He interprets Civil Practice and Remedies Code

10 1.1 03 to allow him to bring any suit he wants rather than in its traditional

interpretation that if there is another statute directly authorizing a claim against the

government, that statute is not cut short by the Texas Tort Claims Act.

He also interprets the phrase to allow him to proceed without exhausting

remedies.

The Plaintiffs theory was directly addressed by the Garcia case above, and

by courts that applied Garcia. Specifically, as to the Plaintiffs attempts to shoe

hom in a claim sounding in tort:

The Garcia court held that although all common-law tort claims are
claims filed "under" the Act, the plaintiffs' statutory remedy under the
TCHRA was not a suit filed "under" the Texas Tort Claims Act. The Act
provides that the remedies it authorizes "are in addition to any other legal
remedies." Tex. Civ. Prac. & Rem.Code § 101.003.

Golden v. Austin County Sheriff's Dept., 2009 WL 1835448 (S.D.Tex. Jun

26, 2009) (NO. CIV.A.H-09-817) pointing out that "additional remedies" requires

Page 21
the existence of another statue (such as the TCHRA), and that 101.103 does not

allow a common-law tort claim such as defamation.

Interestingly enough, Appellant's case City of Corpus Christi v. Eby, not

reported in S.W.3d, 2011 WL 1437002 is a defamation suit against a governmental

entity and its employee. In that case the Court held:

Section 101.106 is an election-of-remedies provision in the Texas Tort
Claims Act. See Tex. Civ. Prac. & Rem. Ann .. § 101.106 (West 2005).
Section 101.106 forces a plaintiff to decide at the outset whether an
employee acted independently and is thus solely liable, or acted within the
general scope of his or her employment such that the governmental unit is
vicariously liable, thereby reducing the resources that the government and its
employees must use in defending redundant litigation and alternative
theories of recovery. Mission Canso!. Indep. Sch. Dist. v. Garcia, 253
S.W.3d 653, 657 (Tex.2008). Subsection (e) provides that when both a
governmental unit and its employee are sued under the Texas Tort Claims
Act, the employee "shall" be dismissed immediately on the governmental
unit's filing of a motion [to dismiss]. Tex. Civ. Prac. & Rem. § 101.106(e).
Subsection (e) imposes a mandatory duty to dismiss upon a governmental
unit's filing' of the appropriate motion. See id.; Villasan v. O'Rourke, 166
S.W.3d 752, 762-63 (Tex.App.-Beaumont 2005, pet. denied).

Even an assertion by a plaintiff that it sued a government employee in
his individual capacity and not his official capacity does not bar dismissal of
the employee under subsection (e), when, as here, the suit against the
governmental entity and the employee involve the same subject matter. Tex.
Bay Cherry Hill v. City of Fort Worth, 257 S.W.3d 379, 401 (Tex.App.-Fort
Worth 2008, no pet.). A plaintiff must proceed cautiously before filing suit
and carefully consider whether to seek relief from the governmental unit or
from the employee individually because the decision regarding whom to sue
has irrevocable consequences. Mission Canso!. Indep. Sch. Dist., 253
S.W.3d at 657.

The Court then concluded:

Page 22
 Having sustained the City's five issues on appeal, (1) we reverse the
trial court's order denying the City's plea to the jurisdiction and render
judgment dismissing Anthony Eby, Mary Eby, and Jessica Frenchak's claims
against the City for lack of jurisdiction; (2) we reverse the trial court's order
denying the City's motion to dismiss Vesely under Civil Practice and
Remedies Code section 101.106(e) and pursuant to section 101.106(e),
render judgment dismissing Anthony Eby, Mary Eby,FN5 and Jessica
Frenchak's claims against Vesely for lack of jurisdiction.

Appellant's short citation of a part of the concurrence in the case fails to

disclose that the case supports Appellees. The bottom line to the concurrence is the

following:

Nevertheless, we are bound to follow the supreme court's instruction
that all common-law tort claims against the govermnent are subject to the
election of remedies scheme in the Tort Claims Act. See City of Mission v.
Cantu, 89 S.W.3d 795, 809 n. 21 (Tex.App.-Corpus Christi 2002, no pet.)
("As an intermediate appellate court, we are bound to follow the expression
of the law as stated by the Texas Supreme Court and leave changes in the
law to that court or the legislature.")). Unfortunately, the assumption can
generate unjust results that the high Court may not have anticipated-such as
here, where Vesely is permitted to sue Eby but Eby is forbidden from
countersuing Vesely based on the same underlying facts. I urge the supreme
court to clarify or reconsider the applicability of the assumption mandated in
Garcia, which I submit is inappropriate in the rare case where a .
counterclaim is brought after a government official initiates suit against a
citizen.

All common-law tort claims against the govermnent are subject to the

election of remedies scheme in the Tort Claims Act and the rule of "remedies

additional" does not work to short circuit that rule.

Page 23
 ~ _--

ARGUMENT

Reply to issue 4. Did the Court err by applying the well-settled law that applies

when a Plaintiff sues an employee of a goverrnnental entity in the same suit as the

goverrnnental entity and sues them in their individual and official capacity?

Argument and Authority

Appellant cites to Gallegos v. Escalon, 918 S.W.2d 62 (Tex.App.-Corpus

Christi 1996) where the Plaintiff sued only the individual and not the goverrnnental

entity, and sued the individual only in their individual capacity, not their official

capacity. As a result, Gallegos is outside the rule in Garcia. Gallegos basically

draws the line that the Appellant's case had to fit inside of, and points out a line

that the Appellant's case falls outside of.

Appellant also cites to Hinterlong v. Clements, 109 S.W.3d 611 (Tex.App.-

Fort Worth 2003, orig. proceeding) a mandamus case that involves discovery

issues. It also involved parties who failed to raise issues until the motion to

reconsider on appeal was made. In our case the pleading issues do not exist

because the Appellees raised them in the trial court rather than waiting until a

motion to reconsider on appeal to raise the issues.

While acknowledging immunity, the Court allowed discovery, viz.

"regardless of his claims against Arlington lSD and Clements,
Hinterlong has pleaded cognizable common law claims against both the

Page 24
 tipster and the person or persons who planted the Ozarka water bottle in his
vehicle; neither of these parties is entitled to immunity."

As a result, the final ruling was:

"We conditionally grant Hinterlong's petition for writ of mandamus
and direct the trial court to vacate its August 24, 2001 order denying
Hinterlong's motion to compel the production of evidence regarding the
student informant's identity and other relevant information surrounding the
crime stoppers tip."

The discovery and procedural issues in Hinterlong are not at issue in our

case. This is not a case on the scope of discovery or one where the Appellees

waited until a motion to reconsider to raise immunity. Instead, this is an appeal

from the trial court applying immunity.

The next citation by Appellant is Gonzalez v. lson-Newsome, 68 S.W.3d 2, 5

(Tex.App.-Dallas 1999) pet. dism'd w.o.j., 73 S.W.3d 178 (Tex.2001). It is another

case where the Plaintiff did not sue a governmental entity and its employees in the

same action and did not allege official capacity. In our case, Appellant sued the

governmental entity along with other parties and he alleged causes of action

against all parties in their official capacities. He made his election and it is

binding.

Because he cites to cases where no election was made, Appellant does

nothing with the cases he cites to challenge the application of Mission Canso!.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657-58 (Tex.2008). Instead, the

Page 25
Appellant's cases illustrate the line that he crossed so that he has made an election

and is bound by it, with the result that he has lost his claim.

Page26
 :_:;-.

ARGUMENT

Reply to point 5. Did the Court err by applying well established law as to the

principle of waiver?

Arguments and Authorities

First, the Plaintiff raises insults to a third party that have nothing to do with

our case and that are well outside the statutes of limitations. Second, he elides the

fact that by his pleadings he made a binding election. Third, he steps outside the

record (as noted above) to conclude that he is really suing Nancy Humphry for

dismissing his Level 2 grievance when he failed to attend after being told that he

was required to attend it or have it heard on submission if he decided not to attend.

He fails to address his waiver and his failure to exhaust administrative appeals.

In this argument, Appellant brings no case law to support his claim of

waiver and argues facts that do not touch upon the fact that he sued the employees

and their employer in the same litigation. Note the issue, raised above, of the lack

of a record of the hearings in this case.

Because the issues are conflated by Appellant with issue 6, Appellees will

address the law that applies to this waiver argument in responding to issue 6.

Page 27
 -- ~ -\

ARGUMENT

Reply to issue 6. Did the Court err by applying well established law to the Plaintiff

as to a waiver-by-conduct claim?

Arguments and Authorities

The Appellant has cited the concept of waiver-by-conduct in a series of

cases that apply to contract issues to attempt to raise wavier. The lead case for that

concept is Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex.2003), a

case that deals with contracts in the scope of immunity and that explains the

general rule: "Generally, a governmental unit possesses both immunity from

liability and immunity from suit. !d. When the governmental unit contracts with a

private party it waives immunity from liability, but not immunity from suit. !d."

When Appellant cites to Catalina he conflates matters by by-passing the

bottom line at 704 that an entity "waives immunity from suit only through its

express consent." He attempts to create a general rule of waiver by conduct

outside of matters involving contracts and without express consent. Yet every

citation he quotes at page 35 of his brief consists of contract matters- and contract

matters where the Court held that the conduct did not support the concept of

waiver-by-conduct.

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 The well-established law is that the concept of waiver applies only to

contract cases where the contract has been fully performed and the governmental

entity has decided to keep the benefits but not pay for them.

To quote from City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d

102 (Tex.App.-Dallas 2013, no pet.).

We reject HRG's waiver-by-conduct argument. First, the supreme
court has never held that such a doctrine exists, and the court recently
emphasized that waivers of immunity generally should be left to the
legislature. See Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d
407, 414 (Tex.2011). Any judicial abrogation of governmental immunity
should be undertaken by the supreme court. See Leach v. Tex. Tech Univ.,
335 S.W.3d 386, 401 (Tex.App.-Amarillo 2011, pet. denied) (stating that the
existence of waiver-by-conduct doctrine "is a matter for the Supreme Court
(or Texas Legislature) to resolve"). Moreover, judicial discussions of the
possibility of waiver by conduct seem to have arisen only in the context of
breach-of-contract claims. See, e.g., Sharyland Water Supply Corp., 354
S.W.3d at 414; Catalina Dev., 121 S.W.3d at 705; Fed. Sign, 951 S.W.2d at
408 & n. 1. HRG cites only one intermediate appellate decision adopting the
waiver-by-conduct doctrine and applying it in favor of a claimant, and that
was a breach-of-contract case. Tex. S. Univ. v. State St. Bank & Trust Co.,
212 S.W.3d 893, 904-08 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).
We find no warrant in the limited case law on the subject to apply the
waiver-by-conduct doctrine to any legal theory except breach of contract.

Appellant is obviously trying to apply the concept of waiver-by-conduct in a

completed contract to a non-contract matter and to one where the Texas Supreme

Court as clearly stated that the Tort Claims Act excludes his ability to sue once he

sues individuals and the governmental entity in the same suit after a motion to

dismiss. He is also trying to apply waiver-by-conduct to a case where there was no

actual defamation pled, as defamation requires outside publication. E.g. Granada

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Biosciences, Inc. v. Forbes, Inc., 49 S.W.3d 610, 618 (Tex.App.-Houston [14th

Dist.] 2001), rev'd on other grounds, 124 S.W.3d 167 (Tex.2003).

In addition, Appellant fails to address that the waiver doctrine he is

addressing is one that may waive immunity from liability, but still allows

immunity from suit. E.g. cases such as Waller County v. Curtis, Not Reported in

S.W.3d, 2006 WL 907773, (Tex.App.-Houston [1 Dist.], 2006).

Immunity from liability protects the State unless the State
acknowledges liability. Federal Sign, 951 S.W.2d at 405. When the State
contracts with a private party, it waives immunity from liability. Catalina
Development, Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003).
However, waiver of immunity from liability does not waive immunity from
suit. Little-Tex Insulation, 39 S.W.3d at 594.

His recapitulation does nothing to take his arguments outside of TRAP 45.

CERTIFICATE OF COMPLIANCE

Counsel certifies that the applicable word count for this brief does not
exceed 15,000 words, the word count being approximately 5,564 words.

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 PRAYER

Appellees request that the Court affirm the judgment of the trial court and

grant such relief as is appropriate under TRAP 45 or otherwise.

Respectfully submitted

Stephen R. Marsh
1301 E. Collins Boulevard
Suite 490
Richardson, TX 75081
Telephone 214-570-6292
Facsimile: 214-570-6262
E-Mail: smarsh@travelers.com

Attorney for Appellee/Defendant

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 ---~-1

CERTIFICATE OF SERVICE

This is to certify that, on this the 5th day of October, 2015, a true and correct

copy of the foregoing document was forwarded to all counsel of record as follows:

Douglas W. Kirk, Pro Se _1L E-Service
1850 Old Sattler Road Facsimile
Canyon Lake, TX 78132 Certified Mail, Return Receipt
Requested
Pro Se Plaintiff Receipted Commercial Delivery
Regular U.S. Mail

Stephen R. Marsh

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