Kirk Wayne McBride v. Crime Stoppers, City of New Braunfels, Rudy Rubio and Dennis Koepp

CV3-375

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-93-00375-CV

Kirk Wayne McBride, Appellant

v.

Crime Stoppers, City of New Braunfels, Rudy Rubio and Dennis Koepp, Appellees

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. C93-233C, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

PER CURIAM

Kirk Wayne McBride sued Crime Stoppers, the City of New Braunfels (the City), Parus

Dudley, the City of Garden Ridge, Rudy Rubio, and Dennis Koepp on multiple causes of action.

This appeal arises after a severance resulted in a final judgment that (1) granted a plea to the

jurisdiction on behalf of the City and Crime Stoppers, and (2) granted a summary judgment on

behalf of Rubio and Koepp. (1) We will affirm the trial court's judgment.

Appellant brings eight points of error, contending that the trial court erred in: (1) granting

summary judgment for Rubio and Koepp after its order denying appellant's motion for summary

judgment found disputed material fact issues existed; (2) granting the plea to the jurisdiction and

special exceptions of the City and Crime Stoppers; (3) failing to act on appellant's formal bill of

exceptions; (4) failing to act on appellant's "Motion for Submission/No Notice of Judgment"; (5)

granting summary judgment for Rubio and Koepp because disputed material fact issues exist; (6)

granting summary judgment on behalf of Rubio and Koepp on the defense of qualified immunity;

(7) failing to find the City liable to appellant because of the City's use of tangible personal

property; and (8) granting the supplemental summary judgment motions of Rubio and Koepp

because of appellant's objections to improper notice.

Appellate Jurisdiction

The City brings a cross-point in which it contends that appellant failed to perfect his appeal

because he did not timely file a perfecting instrument, depriving this Court of jurisdiction over

the appeal. We will overrule the cross-point.

On March 22, 1993, the trial court granted the motion for summary judgment of

defendants Rubio and Koepp, and severed appellant's claims against them from cause C90-98A

into cause C93-233-C. Also on March 22, 1993, the court, previously having granted the plea

to the jurisdiction of the City and Crime Stoppers, signed an order severing appellant's claims

against the City and Crime Stoppers from cause C90-98A into cause C93-233-C. Apparently,

appellant's causes of action against defendants Parus Dudley and the City of Garden Ridge remain

as C90-98A, with his claims against the City, Crime Stoppers, Rubio, and Koepp severed from

C90-98A, and consolidated into C93-233-C, on appeal, cause number 3-93-375-CV.

On March 24, 1993, appellant filed a "Motion for Rehearing, or in the Alternative a

Motion to Arrest Judgment." This motion attacks the trial court's actions in granting the plea to

the jurisdiction and in granting the summary judgment in favor of Rubio and Koepp. We must

look to the substance of the motion, not its caption, and consider this document to be a motion for

new trial. Under the ninety-day timetable for perfection based on the timely filing of a motion

for new trial, appellant timely filed his perfecting instrument on June 1, 1993. Tex. R. App. P.

41(a)(1).

Having determined that we have jurisdiction, we overrule the City's cross-point and

proceed to the merits of the appeal. We will consider the dispositive point of error with regard

to Crime Stoppers and the City. We will then consider appellant's points of error as they relate

to Rubio and Koepp.

Plea to the Jurisdiction

In point of error two, appellant contends that the trial court improperly granted the plea

to the jurisdiction and special exceptions made by Crime Stoppers and the City. The plea to the

jurisdiction was based on improper service on Crime Stoppers and the City. We agree that the

trial court never acquired personal jurisdiction over Crime Stoppers and the City. We need not

discuss appellant's argument under this point concerning the trial court's grant of special

exceptions, because the service issue disposes of any claims against City and Crime Stoppers.

Crime Stoppers

Appellant contends he properly served Crime Stoppers by leaving citation at Crime

Stoppers' business location, addressed to Burney Boeck, the New Braunfels Chief of Police. The

record shows that Crime Stoppers is a non-profit corporation, not a City department. As such,

service can be made on the president, any vice president, the registered agent, or, in the absence

of a registered agent, on the Secretary of State. Tex. Rev. Civ. Stat. Ann. art. 1396-2.07(A)

(West 1980) (Non-Profit Corporation Act); see also Tex. Bus. Corp. Act. art. 2.11 (West 1980).

The record shows that Boeck is neither an officer of, nor registered agent for, Crime Stoppers.

The record does not show any effort to effect service on Crime Stoppers through a correct

recipient.

Further, appellant attempted to serve Crime Stoppers by leaving the citation at the location

that he considered to be its principal place of business; i.e., appellant used substituted service.

Under Rule 106, service is to be accomplished by delivering to the defendant in person a true

copy of the citation or mailing it to the defendant by registered or certified mail. Tex. R. Civ.

P. 106(a). Substituted service may be authorized on motion supported by affidavit detailing the

specific facts showing that personal service has been unsuccessfully attempted. Tex. R. Civ. P.

106(b); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). No such motion or affidavit appears

in the record. Therefore, service against Crime Stoppers was ineffective both because appellant

served an unauthorized person and used an unauthorized method of service. The court correctly

concluded that it never acquired personal jurisdiction over Crime Stoppers.

The City

Appellant also failed to serve the City properly. The Civil Practice and Remedies Code

provision for service on political subdivisions states: "In a suit against an incorporated city, town,

or village, citation may be served on the mayor, clerk, secretary, or treasurer." Tex. Civ. Prac.

& Rem. Code Ann. § 17.024 (b) (West 1986). This section is mandatory and designates the only

persons who properly may be served. City of Mesquite v. Bellingar, 701 S.W.2d 335, 336 (Tex.

App.--Dallas 1985, no writ) (city attorney not authorized agent for service). Appellant states that

he served Veronica Sarkozi. According to the record, Veronica Sarkozi does not hold one of the

positions authorized by statute to receive service. The City was therefore not properly served,

and the trial court correctly concluded that it never acquired personal jurisdiction over the City.

We overrule point of error two. Because of our disposition of point two, we need not

consider point of error seven concerning the possible applicability of the Tort Claims Act to the

claims against the City.

Alleged Procedural Errors

"Motion for Submission/No Notice of Judgment" (2)

In point of error four, appellant contends that the trial court erred in failing to act on his

"Motion for Submission/No Notice of Judgment." This motion, filed June 22, 1993, complains

that he did not receive notice of the severance of cause C93-233C from C90-98A until June 21,

1993. On March 24, 1993, however, appellant already had filed his motion for rehearing

attacking the judgment and on June 1, 1993, had already perfected his appeal. Appellant's

complaint seems to be about the notice of the assignment of a new cause number, which happened

after the severance, rather than to notice of the judgment or severance.

Appellant has perfected an appeal from the final judgment in the severed causes of action

against the City, Crime Stoppers, Rubio, and Koepp. Error in the notification process concerning

the cause number, if any, was harmless. Tex. R. App. P. 81(b). We overrule point of error four.

Bill of Exceptions

In point of error three, appellant complains that the trial court erred in failing to act on a

formal bill of exceptions that he filed after the court granted summary judgment in favor of Rubio

and Koepp. Appellant's "bill of exceptions" does not complain of the exclusion of evidence, but

rather of miscellaneous trial court errors. See Aetna Casualty & Sur. Co. v. Marshall, 699

S.W.2d 896, 905 (Tex. App.--Houston [1st Dist.] 1985), aff'd, 724 S.W.2d 770 (Tex 1987) (point

of error regarding alleged omission of jury instruction not preserved when record contained no

objection to omission and no bill of exceptions in record); Sinclair v. Sav. & Loan Comm'r of

Tex., 696 S.W.2d 142, 150 (Tex. App.--Dallas 1985, writ ref'd n.r.e.) (point of error concerning

failure to make additional findings was waived in the absence of a bill of exceptions). His "bill

of exceptions," however, simply points out alleged trial court errors that this opinion addresses

in other points of error, e.g., point eight addresses the issue of notice of the supplemental motions

for summary judgment. Therefore, any possible error on the trial court's part in not acting on

the bill was harmless. Tex. R. App. P. 81(b). We overrule point three.

"Order Specifying Facts"

In point of error one, appellant contends that the trial court erred in granting a summary

judgment in favor of Rubio and Koepp after issuing an order stating that disputed material fact

issues existed that prohibited summary judgment in appellant's favor on his motion for summary

judgment. On March 31, 1992, the trial court signed an order denying appellant's motion for

summary judgment. Appellant requested findings of fact and conclusions of law. (3) The order in

question was issued on July 6, 1992, in response to that request. Appellees Rubio and Koepp

later filed their motion for summary judgment on February 22, 1993.

The filing of motions for summary judgment by both plaintiff and defendant does not affect

the burden of proof each must discharge. Each party's motion will be considered on its own

merits, and the inadequacy of one motion does not establish the propriety of the opposing motion.

See Cove Invest., Inc. v. Manges, 602 S.W.2d 512, 517 (Tex. 1980); 3 Texas Civil Practice §

18.9, at 467 (Diane M. Allen et al. eds., 1992 ed.). That appellant's summary judgment motion

and proof were inadequate to entitle him to summary judgment does not mean that appellees' later

summary judgment motion and proof were inadequate to entitle them to summary judgment. We

overrule point of error one.

Notice of Supplemental Summary Judgment Motions

In point of error eight, appellant contends that the trial court erred in considering

supplemental summary judgment motions filed by Rubio and Koepp because they were not filed

twenty-one days before the hearing. Appellees answer that appellant waived any error.

A party who receives actual notice of the motion and appears at the hearing without filing

a motion for continuance and affidavit under Rule 166a will be deemed to have waived the twenty-one days notice. White v. Wah, 789 S.W.2d 312, 319 (Tex. App.--Houston [1st Dist.] 1990, no

writ); Brown v. Capital Bank, 703 S.W.2d 231, 234 (Tex. App.--Houston [14th Dist.] 1985, writ

ref'd n.r.e.). The record does not show that appellant ever moved for a continuance and therefore

preserved error. White, 789 S.W.2d at 319 .

Further, the court found that appellees had shown good cause for the late filing of the

supplemental motion for summary judgment because it was in response to appellant's third

amended petition that added a new cause of action. The court also found that appellant had

adequate time to respond. Even if he had not waived the point, appellant has not shown an abuse

of discretion in granting permission to file the supplemental motion. See Wilhite v. H.E. Butt Co.,

812 S.W.2d 1, 4 (Tex. App.--Corpus Christi 1991, no writ). We overrule point of error eight.

Summary Judgment on State Law & Section 1983 Claims

In point of error five, appellant contends that the trial court erred in granting summary

judgment for Rubio and Koepp on appellant's state-law claims for false arrest, false imprisonment,

and malicious prosecution, and on appellant's federal claims for civil rights violations. Appellant

also alleged a state-law claim for libel against only Rubio on which the court granted summary

judgment in Rubio's favor. (4)

All of appellant's claims have the same factual nucleus. On April 20, 1989, Koepp

approached appellant at his place of employment and asked him to accompany Koepp to the police

station for questioning about the April 17, 1989, robbery of the Lone Star Ice House convenience

store in Garden Ridge, Texas. On April 25, 1989, Rubio asked appellant to accompany him to

the police station and participate in a lineup. On May 2, 1989, Rubio arrested appellant for the

robbery of the store, which lead to appellant's confinement in the Comal County jail. The district

attorney eventually dismissed the robbery charge.

The crucial issue in determining all of appellant's claims is whether his encounters with

Rubio and Koepp on April 20 and 25 and his later arrest violated any of his rights under the

Fourth Amendment. Not all encounters between police and citizens invoke the protection of the

Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497-98 (1983); Terry v. Ohio, 392 U.S.

1 , 19 n.16 (1968); Mitchell v. State, 831 S.W.2d 829, 832 (Tex. App.--Houston [1st Dist.] 1992,

pet. ref'd). Logically then, not every encounter between police and citizens violates a Fourth

Amendment right. Police officers have just as much freedom as anyone to ask questions of

others. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App. 1986), overruled on other

grounds, Juarez v. State, 758 S.W.2d 772 , 780 n.3 (Tex. Crim. App. 1988).

Law enforcement officers do not violate the Fourth Amendment merely by approaching

an individual on the street or other public place, by asking him if he is willing to answer some

questions, by putting questions to him if the person is willing to listen, or by offering in evidence

in a criminal prosecution his voluntary answers to such questions. Royer, 460 U.S. at 497 . A

seizure for purposes of the Fourth Amendment does not occur simply because a police officer

approaches an individual and asks questions. As long as a reasonable person would feel free to

disregard the police and go about his business, California v. Hodari D., 499 U.S. 621, 628

(1991), the encounter is consensual and no reasonable suspicion is required to justify it. Florida

v. Bostick, 501 U.S. 429, 434 (1991). Only when the police questioning of a citizen becomes a

"detention" must reasonable suspicion exist. Terry, 392 U.S. at 19 n.16; Mitchell, 831 S.W.2d

at 832 .

That a police officer identifies himself as such, without more, does not convert an

encounter into a "seizure." See United States v. Mendenhall, 446 U.S. 544, 555 (1980); Terry,

392 U.S. at 32-33 . A "seizure" within the meaning of the Fourth Amendment occurs only when

the officer by means of physical force or show of authority has in some way restricted a person's

liberty. Florida v. Bostick, 501 U.S. at 434 ; Terry, 392 U.S. at 19 n.16. The test for the

existence of a "show of authority" is objective: not whether the individual citizen perceives that

he was being ordered to restrict his movement, but whether the officer's words and actions would

have conveyed that to a reasonable person. Hodari D. , 499 U.S. at 628 .

As the non-movant on summary judgment, we take all of appellant's favorable evidence

as true, and indulge every reasonable inference and resolve doubts in his favor. Nixon v. Mr.

Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A summary judgment can be

based on the testimony of an interested witness if that testimony is clear, positive and direct,

otherwise credible and free from contradictions and inconsistencies, and could have been readily

controverted. Tex. R. Civ. P. 166a(c); Martin v. Cloth World of Texas, Inc. , 692 S.W.2d 134,

136 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Additionally, there must be no circumstances in

the evidence tending to discredit or impeach the testimony. Americana Motel, Inc. v. Johnson ,

610 S.W.2d 143, 143 (Tex. 1980). The facts of the encounter as presented by Rubio and Koepp

meet those requirements. Appellant, as one of the participants of the event, could have

controverted the fact statements concerning the event. Once Rubio and Koepp went forward with

evidence showing a detention did not occur, as they did, appellant had to produce enough evidence

to raise a fact issue that a reasonable person would have perceived himself to be detained.

Appellant has presented little in the way of facts that can be evaluated objectively.

Appellant speaks of being "accosted" and says that he did not consent to go with the officers, but

he simultaneously speaks of the officers "requesting" that he go with them. That is the extent of

the proof that appellant offered. Appellant asserts that he was so intimidated that he could not

exercise his free will, but offers no evidence concerning any acts by the officers that a reasonable

person would have interpreted as an order to restrict movement. For example, he does not say

that when they "requested" that he accompany them, they did so in a threatening tone of voice or

displayed weapons. See Mendenhall , 446 U.S. at 554 . Appellant has failed to present evidence

to raise a fact issue whether a reasonable person would have perceived himself to be detained. If

appellant was never detained during the first two encounters, he could not have had his rights

violated by those encounters.

False Imprisonment

The elements of a cause of action for false imprisonment are: (1) a willful detention of

the person; (2) against the consent of the party detained; and (3) without the authority of law.

Sears, Roebuck & Co. v. Castillo , 693 S.W.2d 374, 375 (Tex. 1985); Martinez v. Goodyear Tire

& Rubber Co. , 651 S.W.2d 18, 20 (Tex. App.--San Antonio 1983, no writ); Cronen v. Nix , 611

S.W.2d 651, 653 (Tex. Civ. App.--Houston [1st Dist.] 1980), cert. denied , 454 U.S. 833 (1981);

Sanchez v. Garza , 581 S.W.2d 258, 259 (Tex. Civ. App.--Corpus Christi 1979, no writ).

We have previously discussed the encounters between appellant and Rubio and Koepp that

occurred on April 20 and 25, 1989. We have determined that appellant was not detained on either

occasion. The lack of a detention conclusively negates at least one element of a false

imprisonment claim based on these two encounters.

Appellant was arrested and jailed in connection with the robbery on May 2, 1989. That

arrest was made pursuant to a warrant issued by the municipal court of Garden Ridge, Texas, on

the same date. Before appellant's arrest, probable cause existed in that the clerk working at the

convenience store identified appellant in both a photographic array and in a physical line-up. The

warrant was offered as part of the summary judgment proof, and appears valid. Appellant has

not offered any evidence that the warrant was defective.

A cause of action for false imprisonment will not lie against a peace officer who has

arrested an individual pursuant to an arrest warrant legally sufficient in form, and duly issued by

a court of competent jurisdiction. Sanchez v. Garza , 581 S.W.2d at 259 . If a warrant has issued

for the arrest of an individual and the individual actually wanted under that warrant is arrested,

the arresting officer has fulfilled his duty, and he will not be liable for false arrest or false

imprisonment merely because the person arrested is later found to be innocent of the charges.

Baker v. McCollan , 443 U.S. 137 (1979). Rubio and Koepp established their right to summary

judgment on the false imprisonment claim.

False Arrest and Malicious Prosecution

The elements of a cause of action for false arrest are: (1) a wilful detention of the person;

(2) without consent; and (3) without authority of law. Sanchez v. Garza , 581 S.W.2d at 259 . It

is a complete defense to a claim for false arrest that the arrest was executed by virtue of a process

legally sufficient in form and duly issued by a court having jurisdiction to issue it. Id. Such is

the case here. Rubio and Koepp negated at least one element of a false arrest claim.

The elements of a claim for malicious prosecution are: (1) the commencement of a

criminal prosecution; (2) caused by the defendant through aid or cooperation; (3) which

terminated in favor of the plaintiff; (4) who was not guilty of the charge; (5) that no probable

cause existed for the filing of the charge, (6) that it was done with malice; and (7) the plaintiff was

damaged.

As discussed above, appellant's arrest was made pursuant to a legally sufficient arrest

warrant. The summary judgment evidence shows probable cause. This negates at least one

element of appellant's claim for malicious prosecution.

Section 1983 Claims

Appellant also alleged civil rights claims. 42 U.S.C. § 1983 (1988). The elements of a

section 1983 claim are: (1) some person has deprived the plaintiff of a federal right; (2) acting

under color of state law. Martin v. Thomas , 973 F.2d 449, 452-53 (5th Cir. 1992). As discussed

above, appellant's Fourth Amendment rights were never violated. Therefore, a necessary element

of his cause of action has been negated, and Rubio and Koepp are entitled to summary judgment.

Libel Claim

Appellant also sued Rubio for libel, (5) based on a story about the robbery published in the

New Braunfels Herald-Zeitung. (6) Libel is a defamatory statement in written form, published to

one or more third persons, that tends to injure a living person's reputation and as a result exposes

that person to public hatred, contempt or financial injury. Tex. Civ. Prac, & Rem. Code Ann. §

73.001 (West 1986); Hill v. Herald-Post Pub. Co., Inc. , 877 S.W.2d 774 (Tex. App.--El Paso

1994, writ requested). A defamation plaintiff does not have to be named explicitly so long as

those who know and are acquainted with him understand that the defamatory publication referred

to the plaintiff. Mitre v. Brooks Fashion Stores, Inc. , 840 S.W.2d 612, 618 (Tex. App.--Corpus

Christi 1992, writ denied). Publication is a negligent or intentional act that communicates a

defamatory matter to a person other than the person named. Id. at 617-18 .

Rubio presented summary judgment evidence that his communication to the newspaper,

the allegedly defamatory communication at issue in this cause, consisted of an account of the facts

surrounding the arrest. He stated that he had referred to the "suspect" in the crime but did not

refer to appellant by name or in any way indicate that appellant had committed the crime. (7) Rubio

thus negated an element of appellants' cause, that of publication. McBride offered no

contradictory evidence. There is no evidence that Rubio's communication to the newspaper was

responsible for publishing appellant's name in connection with the defamatory facts in such a way

that appellant could be identified as the robber. That appellant was arrested was true. That he

was "the robber," evidently was not; however, Rubio's evidence shows that Rubio could not have

said or implied that aspect of the communication. Rubio successfully defeated any cause of action

for defamation that McBride had against him personally, as opposed to a cause of action against

the newspaper.

We overrule point of error five. Because of our disposition of this point, we need not

discuss point of error six concerning qualified immunity.

We affirm the trial court's judgment.

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: February 8, 1995

Do Not Publish

1. 1 Appellant's claims against Parus Dudley, the Garden Ridge Police Chief, and the City of

Garden Ridge were severed and are not part of this appeal. Rudy Rubio is a lieutenant and Dennis

Koepp a sergeant in the Comal County Sheriff's Department.

2. 2 Although this point of error could apply to all appellees, due to our disposition of Crime

Stoppers and the City, the discussion of this point of error applies only to Rubio and Koepp.

3. 3 Findings of fact and conclusions of law "have no place" in a summary judgment proceeding.

Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994).

4. 4 The libel claim will be discussed separately and last because it has a different factual basis.

5. 5 McBride's cause of action against Rubio may technically be one for slander rather than libel.

It is ambiguous whether Rubio's "statement" to the newspaper was oral or written. Slander is a

defamatory statement orally published to a third party without justification or excuse. Shearson

Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex. App.--Corpus Christi 1991, writ

dism'd w.o.j.).

6. 6 Appellant also sued the newspaper for libel. McBride v. New Braunfels Herald Zeitung, No.

3-93-00097-CV (Tex. App.--Austin Oct. 12, 1994, writ requested); and McBride v. New Braunfels

Herald Zeitung, No. 3-91-083-CV (Tex. App.--Austin Mar. 11, 1992, no writ) (not designated for

publication).

7. 7 The story itself is not part of the record in this cause. We note, however, that in cause 3-91-083CV, the text of the story was included as a footnote. The direct quote attributed to Rubio

does not give appellant's name as the robber, which is consistent with Rubio's evidence.