Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 01-04-2021
Case Style:
Raul Gonzales v. City of Farmers Branch
Case Number:
Judge: Josh R. Morriss, III
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Defendant's Attorney: City of Farmers Branch
Description:
Texarkana, Texas - Criminal defense attorney represented Raul Gonzales with appealing the trial court’s entry of summary judgment in favor of the City ofFarmers Branch, Texas .
Gonzales sued the City after a police officer allegedly negligently shot and killed the
driver of a vehicle in which Gonzales was a passenger and “fired two more rounds toward the
backseat of the vehicle where [Gonzales] was seated.” Gonzales alleged that the City
negligently trained and supervised the police officer, who may have “suffer[ed] from a mental
disorder due to [his] service in our country’s armed forces.” He further alleged that the City was
responsible for the officer’s use of his pistol, which was used “in BAD Faith, with conscious
indifference and or reckless disregard to the lives of [Gonzales] and [the driver].” As a result,
Gonzales sought damages for injuries to his low back and for post-traumatic stress, anxiety,
depression, and mental anguish, among other things.
The City responded by filing a plea to the jurisdiction and by later filing a traditional
motion for summary judgment on its plea and a no-evidence motion for summary judgment on
1Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
3
Gonzales’s claims. In its plea, the City argued that it was not liable for intentional torts and that,
despite Gonzales’s pleadings alleging negligence, the gravamen of his complaint was the
intentional discharge of the officer’s firearm.2
In its no-evidence motion for summary judgment,
the City argued that Gonzales had no evidence of any negligent act that proximately caused his
alleged injuries.3
2The Texas Tort Claims Act (TTCA) applies to the City because it is a governmental unit. See TEX. CIV. PRAC. &
REM. CODE § 101.001(3)(B). The TTCA waives sovereign and governmental immunity for
(1) property damage, personal injury, and death proximately caused by the wrongful act or
omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a
motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property
if the governmental unit would, were it a private person, be liable to the claimant according to
Texas law.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. However, sovereign and governmental immunity is not waived for
claims “arising out of assault, battery, false imprisonment, or any other intentional tort . . .”). See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.057(2). The Texas Supreme Court has held that a claim arising from an officer’s aiming
and discharge of a weapon “is clearly intentional” and “fits squarely within section 101.057’s exclusion of claims”
and that suit against a governmental agency for failing to properly train or instruct an officer who commits the
intentional aiming and discharge of a firearm is not “an injury resulting from the ‘condition or use of tangible
personal or real property.’” Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (quoting TEX.
CIV. PRAC. & REM. CODE ANN. § 101.021(2)). As a result, “[i]f a plaintiff pleads facts which amount to an
intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is
barred by the TTCA. . . . A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms
of negligence.” Harris Cty., TX v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(concluding that claims of negligent supervision arising from an officer’s discharge of a weapon were required to be
dismissed because the officer’s acts were intentional); see City of Waco v. Williams, 209 S.W.3d 216, 221 (Tex.
App.—Waco 2006, pet. denied) (discussing “a line of cases standing for the proposition that a negligence claim
under the TTCA cannot arise out of the intentional acts, including excessive force, of a law enforcement officer
against a person”).
3Because Gonzales had also filed this case in another court, the City moved to consolidate both cases. The City’s
motion was granted.
4
Gonzales was ordered to appear for a telephonic hearing set for May 22, 2020.4 On
June 17, the trial court granted the City’s plea to the jurisdiction and its summary judgment and
dismissed Gonzales’s claims against the City with prejudice. On the same date that the trial
court entered its judgment, Gonzales filed a third amended petition.
(1) Gonzales’s Claims Were Rejected by Summary Judgment, Not Trial
Admitting that a hearing was held May 22, Gonzales complains that the trial court erred
in dismissing the case after a “non-jury trial.” He argues that he should have been present for the
“non-jury trial.” No trial was held in this case. Because the record shows that Gonzales’s claims
were dismissed via summary judgment, not trial, Gonzales’s first claim is meritless and
overruled.
(2) There Was No Obligation to Consider Gonzales’s Late-Filed Third Amended Petition
Gonzales also asserts that the trial court erred in not giving “significant weight to
appellant-plaintiffs’ Third Supplemental Amended Petition” in its ruling on the City’s plea to the
jurisdiction and motion for summary judgment. Critically, Gonzales does not argue that the trial
court erred in dismissing the claims made in his original and amended petition. He also raises no
challenge to the grant of the no-evidence motion for summary judgment.
Instead, his argument focuses on the trial court’s failure to consider his third amended
petition. However, Gonzales filed his third amended petition after the summary judgment
hearing and on the same day that the trial court entered its judgment.
4Less than twenty days before the hearing, Gonzales filed his own motion for summary judgment, which the City
argued was untimely.
5
Pleadings “offered for filing within seven days of the date of trial or thereafter . . . shall
be filed only after leave of the judge is obtained . . . .” TEX. R. CIV. P. 63. “This rule applies to
summary-judgment proceedings because they are trials within the meaning of this rule.” Horie
v. Law Offices of Art Dula, 560 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (citing Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988); see
Jefferson v. Geico Cty. Mut. Ins. Co., No. 05-17-01033-CV, 2018 WL 6333246, at *3 (Tex.
App.—Dallas Nov. 29, 2018, no pet.) (mem. op.) (citing TEX. R. CIV. P. 63).
Because Gonzales did not obtain leave of court to file his late-amended petition, the trial
court was not required to consider it. See Invasix, Inc. v. James, No. 05-19-00494-CV, 2020 WL
897243, at *5 (Tex. App.—Dallas Feb. 25, 2020, no pet.) (mem. op.). Consequently, we
overrule Gonzales’s last point of error.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: