# 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 > Texas Court of Appeals, 3rd District (Austin) · August 6, 2015 URL: https://www.frixlaw.com/law-library/cases/4071240 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** August 6, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4071240 ## How later opinions describe it (automated extraction) - holding that government-employed medical personnel are not immune from tort liability if the character of the discretion they exercise is medical and not governmental - recognizing distinction between immunity from liability, which is an affirmative defense that must be pleaded or it is waived, and immunity from suit, which is jurisdictional and requires complaining party to establish state's consent to be sued ## Opinion text August 6, 2015 IN THE THIRD COURT OF APPEALS COMAL COUNTY, TEXAS APPELLANT Douglas W. Kirk V. APPELLEE Piano Independent School District, et al NO. 03 013-15-00211-CV Appellant's Brief on the Merits Filed by Douglas Kirk, Appellant, pro se Douglas Kirk 1850 Old Sattler Road Canyon Lake, TX 78132 (830)237-7313 dougkirk@gvtc.com MG 062015 03 NO. 013-15-00211-CV IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS Douglas W. Kirk V. Piano Independent School District, Et Al Original Proceeding from the 22nd District Court, The Honorable R. Bruce Boyer, Presiding Appellant's Brief on the Merits Douglas W. Kirk 1850 Old Sattler Road, Canyon Lake, Texas 78132 Telephone: (830) 2376-7313 Pro Se Litigant -1- IDENTITY OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1(a), appellant presents the following list of all parties and names and addresses of its counsel: Appellant/Plaintiff: Counsel: Douglas W. Kirk Douglas W. Kirk {Pro Se) 1850 Old Sattler Road Canyon Lake, TX 78132 Telephone: (830)237-7313 Respondent: The Honorable R. Bruce Boyer 22th Judicial District Court New Braunfels, Texas 789 Mam Street New Braunfels, Texas 12345 Appellee/Defendant: Counsel: Piano Independent School District Stephen R. Marsh Nancy Humphrey Texas State Bar No. 13019700 Anika Vaughan David Klosterboer & Associates Joseph Parks 1301 East Collins Boulevard Courtney J. Washington Suite 490 Richardson, TX 75081 Telephone: (214) 570-6292 -2- TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL 2 TABLE OF CONTENTS 3 TABLE OF AUTHORITIES 4 STATEMENT OF THE CASE 5 STATEMENT REGARDING ORAL ARGUMENTS 6 ISSUES PRESENTED 7 STATEMENT OF FACTS 8 SUMMARY OF THE ARGUMENT 12 ARGUMENT. 16 PRAYER 37 APPENDIX 38 -3- TABLE OF AUTHORITIES Cases Catalina Development, Inc. v. County oj El Paso, 121 s.w.3d 704, 704 (tex.203) 14,34,35 City ofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002, Tex.App. - Corpus Christi, 2011 13, 20 Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—Corpus Christi 1996...14, 22, 23 Gonzalez v. Ison-Newsome, 68 S. W. 3d 2 (Tex. App. -Dallas 1999) 27, 28 Hinterlongv. Clements, 109 S.W. 3d 611 (Texas App.—Fort Worth 2003) 24-26 JerrellD. INMAN, Sr., Appellant, v. CITY OF KATY and Billy Johnson, in his Capacityas Assistant ChiefofPolice, Appellees, 900 S. W.2d 871 (1995) 33 Mission Consol. Independent School District v. Garcia, 253 S. W. 3d 653 (Tex. 2008) 22 Texas Bay Cherry Hill, L.P v. City ofFort Worth, 257 S.W.3d 379 (Tex.App.- For4 Worth 2008 no pet) 18 Williams v. Conroelndep. Sch. Dist., 809 S.W.2d 954 (Tex.App.-Beaumont 1991, no writ) 20 Statutes Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4. LIABILITY IN TORT, CHAPTER 73. LIBEL Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL LIABILITY, CHAPTER 101. TORT CLAIMS EDUCATION CODE, TITLE 2. PUBLIC EDUCATION, SUBTITLE D. EDUCA TORS AND SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS, CH.22 -4- STATEMENT OF THE CASE Nature of the Case: Appellant/Plaintiff Douglas Kirk brought a civil defamation cause of action against Appellee/Defendants Piano Independent School District, Nancy Humphrey, Anika Vaughan, Joseph Parks and Courtney J. Washington as a result of libel per se suffered because of actions performed beginning January 28, 2013. Appellant alleges Appellee acted outside governmental duties and functions. Respondent: The Honorable R. Bruce Boyer, 22nd District Court, Comal County, Texas. Respondent's Action: March 9, 2015, the trial court entered an Order Granting Motion To Dismiss employees Nancy Humphrey, Anita [sic] Vaughn [sic], Joseph Parks and Courtney J. Washington, and, Piano Independent School District. Respondent ordered that Appellant take nothing by way of his suit. -5- STATEMENT REGARDING ORAL ARGUMENTS Appellant does not seek oral arguments. -6- ISSUES PRESENTED 1. Did the trial court err in dismissing the case under the Texas Tort Claims Act (Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL LIABILITY, CHAPTER 101. TORT CLAIMS) when the case was actually filed under the Texas Defamation Statute (Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4. LIABILITY IN TORT, CHAPTER 73. LIBEL)? 2. Did the trial court err in applying the Texas Tort Claims Act with respect to a school district in a case that does not involve motor vehicles? 3. Did the trial court err and violate the Texas Tort Claims Act by failing to allow Appellant to exercise provisions in the statute, to wit, "remedies additional"? 4. Did the trial court err in failing to require Appellee to present a defense of official immunity to back its claim of immunity? 5. Did the trial court err in failing to recognize Appellant's claim of waiver of immunity granted by conduct, despite evidence produced by Appellant? 6. Did the trial court fail to consider factual evidence presented by Appellant, on "a case-by-case basis," to establish waiver-by-conduct? -7- STATEMENT OF FACTS Appellant, Douglas Kirk, had a friend by the name of Melanie Lauren Smith, who was in an abusive relationship with her husband, Bramlette Jason Smith. On September 11,2011 and again on December 2,2012, Melanie Lauren Smithreached outto Douglas Kirk seeking his assistance in getting away from her husband, to which Douglas Kirk and Rittler Strachan, R.N., responded the first time, and Douglas Kirk and Michael Wayne Davis responded the second time. Bramlette Jason Smith evidently told his sister, Appellee school teacher Anika Lee Vaughan, about Douglas Kirk's helping his wife. Bramlette Jason Smith is on record in the court system ofhaving abused his wife beginning on November 3, 2009 and ending on May 26, 2013. Bramlette Jason Smith pled guilty to "Assault Causes Bodily Injury Family Violence" (Case No. 006-84632-2013, County Court at Law 6, 380th District Court) on February 17, 2014, and was divorced from Melanie Lauren Smith on August 12, 2014 (Case No.380-56185-2012, 380th District Court, Collin County, Texas). On January 28, 2013, Appellee school teacher Anika Lee Vaughan wrote an e-mail and sent it to Appellee school principal Courtney J. Washington and Appellee Director of Security Joseph Parks in which she made a series of false statements of verifiable fact about Douglas Kirk-which Appellant contends amount to libel per se, -8- identifying him as a stalker, a crime for which he has never been charged, tried or convicted. (On September 22,2011, Bramlette Jason Smith did accuse Douglas Kirk of stalking after Kirk and nurse Strachan responded to Melanie Lauren Smith's plea for help the first time, and a police investigation was started in the matter. On October 24, 2011, the case was closed and labeled "no information" by State Attorney's investigator Adam Reith.) Douglas Kirk became aware of the libelous e-mail and an e-mail exchange by Appellees on July 1,2013 upon the fulfilment of an open records request by the Piano Independent School District. Douglas Kirk then filed a Level I grievance on July 8, 2013, under Piano Independent School District (PISD) board policy, which was denied on July 22,2013. In the denial, PISD Chief Human Resources officer Tamria Griffin indicated that the e-mail was a "private matter" and the district had no intention of taking any action against Vaughan when an employee acts outside the scope of his or her employment. In an attempt to clear his name and to set right the lies that were being written and passed around about him, Douglas Kirk appealed the result to a Level II Grievance on August 8, 2013. He did this under published PISD board policy, only to be misled by the PISD attorney Brandy Davis that he could appear at the Level II hearing via telephone (as had been done in the past), or, not appear at all. Douglas Kirk made himself available but was not called for the -9- hearing and the matter was dismissed by PISD, under the direction ofAppellee Nancy Humphrey, who was the PISD Board President. (Humphrey did not receive a board vote to authorize this action.) PISD indicated the grievance was dismissed August 23,2013 because Douglas Kirk was notpresentat the hearing, even though the offer was made to him through PISD counsel not to bephysicallypresent. Exhausting the administrativeremedies, Douglas Kirk then sued the Appellees in both their official and individual capacities under Texas Statute, Civil Practice and Remedies Code, Title 4, Chapter 73. LIBEL. Douglas Kirk sued as he did because PISD stated the e-mail constituted private matters and was outside the duties and functions ofAnika Lee Vaughan, and yet, the PISD provided resources to publish and re-republish the original e-mail and to transmit a related e-mail exchange, and threatened to take police action against Douglas Kirk (based upon the libelous e-mail). PISD also used public resources to dismiss the grievance without a hearing and the Board President, Appellee Nancy Humphrey, acted without board authority. Upon being sued by Douglas Kirk, the Appellee then denied the allegations (February 24, 2014) and stated as its number one defense that the "Plaintiff's claim is barred by governmental immunity." Appellee moved (March 3, 2014) for a dismissal of the employees under the Texas Tort Claims Act. The trial judge did not rule on the original motion for dismissal. The Appellee -10- moved for dismissal a second time (October 1, 2014), but in the second dismissal moved that the employees and PISD be dismissed simultaneously under the TTCA. The first item in Defendant's Motion to Dismiss under "Introduction" was "The Defendants have immunity to the claims ofthe Plaintiff," but Appellee, never offered an affirmative defense to the trial judge to back up official immunity. Appellant argued beforethe trialjudge both in writingand orallyApril 4,2014, August 14, 2014 (oral), December 14, 2014 and March 5, 2015 (oral), that his case was not filed under the TTCA, citing that the statute only applied to school districts when motor vehicles are involved and that Appellee's conduct waived any claims of immunity. Appellee again alleged immunity but again offered no defense and depended upon the TTCA for protection. Douglas Kirk pointed out that the TTCA acknowledged that there are "remedies additional" and he made the case that the PISD waived governmental immunity by their conduct and he cited written evidence where PISD stated the original e-mail was outside the scope of employment of the the employee and therefore was of no interest to PISD. Upon a second hearing before the trial judge March 5, 2015 (oral), the judge heard argument from both sides and ultimately dismissed the entire case March 9, 2015. Appellant then appealed to the Third Court ofAppeals April 6, 2015. -11- SUMMARY OF THE ARGUMENT It appears as though the Texas Tort Claims Act (TTCA) was created to make it easier for citizens to sue certain government entities under specifically enumerated circumstances. In the case of school districts, the statute specifically says that it applies only in cases involving motor vehicles ("SUBCHAPTER C. EXCLUSIONS AND EXCEPTIONS. Sec. 101.051. SCHOOL AND JUNIOR COLLEGE DISTRICTS PARTIALLY EXCLUDED. Except as to motor vehicles, this chapter does not apply to a school district or to a junior college district.") The TTCA acknowledges that there are additional remedies, suggesting that if citizens can advance another theory regarding suit, then that is permissible and is not prevented by the TTCA. ("SUBCHAPTER A. GENERAL PROVISIONS Sec. 101.003. REMEDIES ADDITIONAL. The remedies authorized by this chapter are in addition to any other legal remedies.") The TTCA was never intended to encumber citizens who have legitimate claims against government entities and can demonstrate that when a government entity acts outside its duties and functions, a waiver-of-conduct is granted and a suit may move forward. The Appellant sued both individuals and a government entity because there was movement between individual status and employee status, with individuals -12- taking actions that they then used the government entity to further. The government entity acknowledged in writing that actions were "private". (CR: See Plaintiffs Exhibit 4 Response to Level I Grievance page 2 at [6] and [7], as attached to Plaintiffs Response to Defendants' Second Motion To Dismiss.) But then, the government provided the resources for the actions to take place and used its own resources to prevent the Appellant from exercising his remedies under published policy. (CR: See Plaintiffs Exhibit 5 and 6—email exchange with PISD Attorney Brandy Davis~as attached to Plaintiff's Response to Defendants' Second Motion To Dismiss.) In the present case the Appellee has capitalized on the idea that all things sounding in tort fall under the TTCA. However, that contradicts the statute itself and Justice Garza seems to agree. (See City ofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002, Tex.App. - Corpus Christi, 2011). The Appellant advanced the argument before the trial court that the Appellee's actions constituted a waiver-by-conduct of governmental immunity (CR: See Plaintiff's Response to Defendants' Second Motion To Dismiss page 3-7 at [8] and [9]; [11-13] and page 8 - 14 at [17-21]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss page 11 at line 12 through page 13 at line 7.) The Appellant offered written evidence in his briefs (CR: See Plaintiff's -13- Response to Defendants' Second Motion To Dismiss, Plaintiff's Exhibits 1 through 7), which should have been considered by the trial court, (See Catalina Develop ment, Inc. v. County ofEl Paso, 121 s.w.3d 704, 704 (tex.203), to demonstrate that a waiver-by-conduct did exist. The Appellee offered no evidence backing up its claim of official immunity given the facts of the case. Yet the courts have indicated the entity claiming immunity must make an immunity defense. (See Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—Corpus Christi 1996). However, the trial judge stated, "The Court has reviewed the pleadings, arguments of counsel, both written and oral, and the authorities cited and presented." and erred in several respects. (CR: See Letter signed by trial judge the Honorable R. Bruce Boyer, March 9, 2015 which accompanied signed order to dismiss.) Appellant made these arguments to the Trial Court: 1. Appellant's suit was filed under Texas Libel law and not the TTCA. 2. Appellant offered evidence of a waiver-by-conduct and pointed out that he was exercising "remedies additional." 3. Appellee offered NO affirmative defense of official immunity for its actions despite case law to the contrary. 4. The Trial Court was bound to consider the evidence on a case-by-case -14- basis but evidently did not. "Plaintiff urges the Court to consider the set of facts as enumerated to determine waiver of immunity by conduct." (CR: See Plaintiff's Response to Defendants' Second Motion To Dismiss page 13 at [20].) 5. Appellees acted outside their government function and duties and are not shielded by sovereign immunity or official immunity. 6. Appellant summarized for the Court: "Plaintiff's cause does not fall under the Texas Tort Claims Act. This is a defamation suit under Libel Law. The governmental entity gave permission to the Plaintiff to file suit by virtue of its clear actions of conduct outside its function and scope of duties. Immunity claims are moot. The Court need only look at the Appellee's own words to determine that they, them selves, didn't even consider this matter to be within their governmental function. Yet, and this is key, public resources were used in transmission, and spread ofthe libelous statements, and, in an effort to quash Appellant's efforts to have the matter heard within the system, so as to put to rest the lies that were told about him. What are the lies and the false statements of fact? They are statements that lead people to believe that the Appellant is a sexual predator—a stalker—an infamous crime ofserious nature which carries with it not only social stigma, but serious prison time. Truth as a defense will fail miserably once the matter goes to trial." (CR: See Plaintiffs Response to Defendants' Second Motion To Dismiss page 13-14 at [21].) -15- ARGUMENT 1. The trial court erred in dismissing the case under the Texas Tort Claims Act. Appellant made the argument that his suit was filed under the Libel Statute, (See CR: Original Petition at page 3, [4.1]; and see CR: Plaintiffs Response to Defendants' Motion to Dismiss at page 1-2, [2]; and Plaintiff's Response To Defendants' Second Motion To Dismiss, page 1 [1]), and not the Texas Tort Claims Act (See CR: Plaintiff's Response to Defendants' Motion to Dismiss at page 2-3, [9-10]). The Appellant made the argument that governmental immunity was defeated under a waiver-by-conduct (See CR: Plaintiffs Response to Defendants' Second Motion To Dismiss page 3-7 at [8] and [9]; [11-13] and page 8 - 14 at [17- 21]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss page 11 at line 12 through page 13 at line 7.) The Appellant offered written evidence in his briefs (See CR: Plaintiff's Response to Defendants' Second Motion To Dismiss, Plaintiffs Exhibits 1 through 7). The trial judge wrote "The Court is bound not only by the statutory provisions of the Texas Tort Liability Act, but also the appellate interpretations of the same." (See CR: Judge's letter dated March 9, 2015 accompanying Order Granting Motion To Dismiss.) Appellant argues that the trial judge had clear opportunity to apply the TTCA, -16- had he fully considered Appellant's arguments regarding "remedies additional" authorized by the TTCA statute itself and "waiver-by-conduct," (backed up by case law), and by applying it, he would not have had to dismiss the suit. (The TTCA is applied by not applying the irrelevant provisions and by applying the relevant one— "remedies additional.") (See more below.) (NOTE: Appellee obviously accepted Appellant's suit under Texas Civil Practice and Remedies Code Chapter 73 Libel law, which mandates the Plaintiff to sue the Defendant in his home district. Defendant's did not challenge the venue, which they could have done had the suit been filed under the TTCA. (See Texas Civil Practice and Remedies Code Title 2, Subtitle B, Chapter 15, Subchapter A, Sec. 15.002 (a) and Subchapter B, Sec. 15.017, LIBEL, SLANDER, OR INVASION OF PRIVACY) 2. The trial court erred in applying the Texas Tort Claims Act with respect to a school district in a case that does not involve motor vehicles. The Texas Tort Clims Act is self-limiting. The statute states: "Except as to motor vehicles, this chapter does not apply to a school district or to a junior college district." ("CIVIL PRACTICE AND REMEDIES CODE. TITLE 5. GOVERNMENT LI ABILITY CHAPTER 101. TORT CLAIMS. SUBCHAPTER C. EXCLUSIONS AND EXCEPTIONS: Sec. 101.051. SCHOOL AND JUNIOR -17- COLLEGE DISTRICTS PARTIALLY EXCLUDED.) Appellant argued this to the court. (See CR: Plaintiff's Response to Defendants' Motion to Dismiss at page 3-4 [15]. Also see RR: Hearing before the Court, March 5, 2015, Motion To Dismiss page 11 at line 12 through page 13 at line 7.) The Appellee seems to agree in stating, "What the Tort Claims Act does is, is it sets out a few exceptions to the general rule of sovereign immunity, and it also pro vides procedures by which a plaintiff can —can pursue those exceptions." (See RR: Hearing before the Court, March 5, 2015, Motion To Dismiss page 6 at line 25 and page 7 at lines 1-3, Bret Walton speaking for Appellee.) Appellant could not pursue those exceptions as there was no motor vehicle involved in the case. Therefore, the TTCA did not apply to the facts of the case and Appellant went to the Libel Law and to the task of breaking immunity protections by applying the waiver-by-conduct theory based upon the actions of the Appellees. Texas Bay Cherry Hill, L.P. v. City ofFort Worth, 257 S.W.3d 379 (Tex.App.- For4 Worth 2008 no pet) bolsters Appellant's argument that his suit is not under the Texas Tort Claims Act, as the Court ofAppeals recognizes statutory limitations to the TTCA: "The legislature granted a limited waiver of immunity in the Texas Tort Claims Act, which permits suits to be brought against governmental units in certain - 18- narrowly-defined circumstances. Tex. Dep't of Criminal Justice v. Miller, 51 S. W.3d 583, 587 (Tex.2001); see also Dallas County MHMR, 968 S. W. 2d at 341." Appellant's suit does not fall under the Texas Tort Claims Act's "narrowly- defined circumstances." As stated, school districts are excluded except as pertaining to motor vehicles. What this means is that when it comes to breaking governmental immunity, the TTCA gives the citizens a free pass if a motor vehicle is involved in a case. What it does not mean is that there are no other ways to defeat governmental immunity. Appellee made the argument before the trial judge that the TTCA suggests that school districts have governmental immunity no matter what, with the only exception of motor vehicles within the TTCA. But this is misleading. "There's no waiver provided by the statute to allow Mr. Kirk to sue us, and the school district should be dismissed on those grounds. Basically, we still have immunity, is —is the gist of the - of the law." (See RR: Hearing before the Court, March 5, 2015, Motion To Dismiss page 9 at line 7-11, Bret Walton speaking for Appellee.) Everyone agrees there is no motor vehicle involved in this case. By his own admission, then, if the trial judge is bound by the statute to apply the Texas Tort Claims Act only to school district cases in which motor vehicles are involved, then -19- the TTCA can't apply to this case and therefore it is a judicial error to dismiss the cause under the TTCA. Further, The Appellee quotes from Williams v. Conroe Indep. Sch. Dist., 809 S.W.2d 954 (Tex.App.-Beaumont 1991, no writ), "An independent school district is an agency of the state and, while exercising governmental functions, is not answerable in a suit sounding in tort." (See CR: Reply Brief on Defendants' Motion To Dismiss, page 2 at [9].) However, Appellant has always maintained that Appellee acted outside the exercise ofgovernmentalfunctions and therefore is indeed answerable in a suit sounding in tort. 3. The trial court erred and violated the Texas Tort Claims Act by failing to allow Appellant to exercise provisions in the statute, to wit, "remedies additional". Applying the Texas Tort Claims Act to all things sounding in tort with respect to election-of-remedies is self-contradictory, since the TTCA offers "REMEDIES ADDITIONAL." (See Sec. 101.003. REMEDIES ADDITIONAL. The remedies authorized by this chapter are in addition to any other legal remedies.") What remedies is the statute referring to if all things sounding in tort fall under the TTCA? In CityofCorpus Christi v Eby, Not Reported in S.W3d, 2011 WL 1437002, Tex.App. - Corpus Christi, 2011, Justice Dori Contrearas Garza writes, in a Concurring Memorandum Opinion, "However, I believe the premise underlying the -20- Garcia assumption—that 'the Tort Claims Act is the only, albeit limited, avenue for common law recovery against the government,' 253 S.W. 3d at 659—is wrong. On the contrary, it is eminently possible that a governmental unit's immunity to common-law tort claims may be waived by means other than the limited waiver provided in the Act." Appellant believes Justice Garza is making an insightful statement. With respect to school districts, the TTCA offers limiting language and, it spells out to the citizens that there are additional remedies not specifically enumerated by the statute. The Appeals Court is asked to consider this apparent contradiction. What is a party supposed to do when the law says it applies only under specific circumstances, offers other options (other remedies) and then the Courts try to make the statute fit all situations despite the statutary language? The trial judge attempted to do the right thing, but could not because of the contradiction between the language of the statute and what the Appellee says is the court interpretation. But maybe neither the statute, nor the courts, intended for the TTCA to prevent a suit in which the government entity, its employees and individuals acted outside their duties andfunctions to harm a citizen of the State of Texas. The courts have also found that the TTCA election-of-remedies scheme does -21- not apply in all cases. When other remedies exist, the courts have allowed parties to exercise alternative theories and have not forced dismissal through the TTCA. Mission Consol. Independent School District v. Garcia, 253 S. W. 3d 653 (Tex. 2008) was an age discrimination case and relates to the Texas Commission on Human Rights Act and raised a fundamental question of discrimination law. The court mentions the Tort Claims Act's election-of-remedies provision but goes on to find that, "the Act's election scheme does not bar the employees' recovery under the Texas Commission on Human Rights Act (TCHRA) because the Legislature has consented to suits against the government under the TCHRA." While the Appellant did not file under the TCHRA, he did file under an additional remedy and it is a judicial error to dismiss Appellant's case when the courts have allowed other causes to move forward using alternative theories, i.e. "remedies additional." Mission demonstrates that the courts do allow "remedies additional" and that not all cases come under the Texas Tort Claims Act, as the Appellees' suggest. The Legislature has given statutory consent to sue, waiving immunity in specific situations (Texas Tort Claims Act, Texas Commission on Human Rights Act) and, by clearly defining the tests that must be applied by a defendant in order to make an immunity claim. Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.— -22- Corpus Christi 1996). There is no assumption that all governmental entities all the time, enjoy immunity. Barring a plaintiff without entertaining his theory and without requiring governmental units to make an immunity defense, if they so choose, in a required manner, would not lead to justice and is a judicial error. 4. The trial court erred in failing to require Appellee to present a defense of official immunity to back its claim of immunity. In Gallegos v. Escalon, 918 S. W. 2d 62 (Tex. App.—Corpus Christi 1996) the Court found that a superintendent who allegedly made public statements defaming two former school board trustees was NOT protected by sovereign immunity because he failed to make his immunity case. The higher court affirmed the trial court's denial of the superintendent's summary judgment. Superintendent Gallegos asserted his immunity defense based upon the Texas Education Code, which says: "EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE D. EDUCATORS AND SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS CHAPTER 22. SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS Sec. 22.0511. IMMUNITY FROM LIABILITY, (a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee's position of employment and that involves the exercise ofjudgment or discretion on the part of the employee, except in circumstances in -23- which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students." Unfortunately for superintendent Gallegos, he was not able to adequately make his defense. The Appellees in the present cause also fall short in making an immunity defense based solely on the facts of the case because they cannot show that their documented actions were "incident to or within the scope of the duties of the employee's position of employment..." Furthermore, they did not even attempt mount an affirmative defense of official immunity before the trial court. Gallegos is a case which spells out the Appellees' burden regarding immunity. This case also demonstrates that school teachers can be held accountable for their actions outside their governmental functions and duties. In Hinterlong v. Clements, 109 S.W. 3d 611 (Texas App.—Fort Worth 2003), a student by the name of Matthew T. Hinterlong alleges that he was set up for expulsion by others, in retaliation for police involvement in some misuse by students of his home when he was out of town. The straight-A tennis playing Hinterlong was accused of having alcohol in his vehicle while at school. An anonymous tip was passed along to authorities, who searched the vehicle and found a "thimble full" of what "smelled" like alcohol. Hinterlong claimed he was set up and sought the name of the tipster. The Court ofAppeals dealt with a wide variety of issues, one of which was -24- whether or not Clements [a teacher in the district] and Arlington ISD had sovereign immunity against Hinterlong's claims, which included defamation. The Court found that Clements was not protected and points out that she was not performing actions incident to or within the scope of her professional duties. The following except from the Hinterlong ruling is lengthy, but addresses several issues involved in the present cause. "Additionally, real parties in interest fail to distinguish between immunity from suit and immunity from liability, which are two distinct principles. See Tex. Dep 't ofTransp. v. Jones, 8 S. W. 3d 636, 638 (Tex. 1999). While immunity from suit (sovereign immunity) abridged claims at common law, immunity from liability (official immunity) is an affirmative defense to common law claims that must be pleaded or it is waived. See Green Int'l, Inc. v. State, 877 S. W.2d 428,436-37 (Tex.App. -Austin 1994, writ dis,n 'd) (holding sovereign immunity is common-law doctrine that preceded Texas Constitution so application of doctrine to preclude litigation of breach of contract and quantum meruit claims does not violate open courts provision); Jones, 8 S.W.3d at 638 (recognizing distinction between immunity from liability, which is an affirmative defense that must be pleaded or it is waived, and immunity from suit, which is jurisdictional and requires complaining party to establish state's consent to be sued); Hayes v. Patrick, 71 S.W.3d 516, 521 (Tex.App.-Fort Worth 2002, no pet.) (noting official immunity is common law affirmative defense that protects government officers and employees from liability for conduct that would otherwise be actionable). Absent both pleading and proof of immunity, Clements can be held liable under Hinterlong's claims. See Univ. ofHouston v. Clark, 38 S.W.3d 578, 580 (Tex.2000) (noting that official immunity is affirmative defense that protects government employees from personal liability, and that, to be entitled to summary judgment on immunity defense, employee must conclusively prove each element of defense); see also Myers U. Doe, 52 S.W. 3d 391, 395-96 (Tex.App.-Fort Worth 2001, pet. denied) (addressing school district employees' entitlement *628 to immunity if all -25- elements under section 22.051(a) of the Education Code are established); see also Tex. Educ. Code Ann. § 22.051 (a) (Vernon 1996) (stating that professional school district employees are not personally liable for actions incident to or within the scope of duties performed that involve the exercise ofjudgment or discretion, unless there is an excessive use of force or negligent discipline resulting in bodily injury to students). "Clements is also not cloaked with immunity from personal liability where her actions are not incident to or within the scope of her professional duties or while she is performing duties that are ministerial and, therefore, do not involve the exercise ofjudgment or discretion. See Tex. Educ. Code Ann. § 22.051; Myers, 52 S. W. 3d at 396; cf. Kassen v. Hatley, 887 S. W. 2d 4, 11 (Tex. 1994) (holding that government-employed medical personnel are not immune from tort liability if the character of the discretion they exercise is medical and not governmental). Hinterlong's pleadings allege that Clement's acts and omissions involved ministerial duties and that, at certain times, Clements acted outside the scope of her employment or official duties. Hinterlong has, therefore, pleaded cognizable common law claims against Clements, subject to her affirmative defense of immunity. "Accordingly, we conclude that Hinterlong has asserted well- established common law causes of action against Clements, the tipster, and the person or persons who planted the Ozarka water bottle. Regardless of whether the trial court later holds that Arlington ISD is sovereignly immune from suit, Hinterlong's assertion of these common law causes of action against Clements, the tipster, and the person or persons who planted the Ozarka water bottle satisfy the open courts predicate of assertion of well- established common law causes of action." The trial court has erred in not recognizing that Appellant offered "cognizable common law claims" against Appellees, which defeated any hope of protection Appellees had under sovereign immunity. Appellant used Appellees' own documents to demonstrate that the offending actions were outside governmental duties and functions. Furthermore, Appellant offered evidence to the trial judge to show Appellee -26- Humphrey also acted outside her duties and function. These acts constituted a well-established waiver-by-conduct. Once the issue of sovereign immunity was defeated with the evidence, Appellee made no affirmative defense to underscore any claim of official immunity. The facts of the case show conduct that is outside the duties and functions of the employees, including the contract of employee Appellee school teacher Vaughan. Because Appellees did not plead an affirmative defense for the official immunity, Hinterlong shows that it is waived. The complaining party, Appellant Douglas Kirk, established the State's consent to be sued through a waiver-by-conduct, and then Appellee failed to defend against Appellant's evidence showing the conduct could not enjoy official immunity protection because it was outside established duties and functions. In Gonzalez v. Ison-Newsome, 68 S. W. 3d 2 (Tex. App. --Dallas 1999) five school district employees allegedly ganged up on one of their own and slandered her to the press, including slander per se. The trial court rejected a summary judgment and the appeals Court affirmed the lower court's decision. It seems the crew on Gonzalez's side appealed to the higher court to reverse the decision based upon an affirmative defense of immunity as a matter of law. The Appeals Court, -27- found however, that Gonzalez did not do that, stating, "...appellants must prove conclusively all elements of that affirmative defense." The Court cited Swilley V. Hughes, 488 S. W. 488 S.W.2d 67, 67 (Tex. 1972). The Court's words in Gonzalez are important: "The education code provides little guidance for determining what acts are incident to or within the scope of a professional school employee's duties. Likewise, few cases have analyzed this particular element of the education code immunity. The scope of employment analysis commonly used in cases involving agency law, however, is instructive. In this case, Ison-Newsome's claims relate to alleged intentional torts. Under well established agency law, the question of whether an intentional tort was within an employee's scope of employment can be determined by applying a respondeat superior analysis. See Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 881 (1948). Under this analysis, an employee acts within his scope of employment if he acts within his general authority, in furtherance of the employer's business, and to accomplish an objective for which the employee was employed. Mackey v. U.P Enterprises, Inc., 935 S.W.2d 446, 453 (Tex.App.-Tyler 1996, no writ). 6 We apply this analysis to the summary judgment record presented here." It should be noted that the Appellees in this present case cannot and have not demonstrated that the libelous e-mail authored by Vaughan and spread by Parks and Washington, and which was shut down in the grievance process by Humphrey, was in "furtherance of the employer's business, and to accomplish an objective for which the employee was employed." On the contrary, the PISD itself said, through employee Tamira Griffin, "The District will not take action against an employee or conduct an investigation related to matters outside the scope of his or her -28- employment..." referring to the matter raised by Vaughan and labeled by her as a "personal issue"—which was her mission to demonize Appellant Douglas Kirk and brand him as a stalker. That's hardly "in furtherance of the employer's business..." (See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss, Plaintiffs Exhibit 4, August 2, 2013, Tamira Griffin Response to Level I Grievance page 2 at [6] and [7]). 5. The trial court erred in failing to recognize Appellant's claim of waiver of immunity granted by conduct (waiver-by-conduct), despite evidence produced by Appellant. Calling a parent a "whore" and a "selfish pussy," and praying for Christmas that the parent "overdose and burn in hell," and calling the man [the Appellant] attempting to help that parent get away from a now legally admitted abusive husband, an "old ugly stalker," was probably not an assigned duty of a Sixth Grade Language Arts teacher and certainly did not "build a good public image of the District" as her contract specifies. (See: CR: Plaintiff's Response to Defendants' Second Motion To Dismiss, Plaintiffs Exhibit 2 Anika Vaughan Contract at [4.1].) As Appellee Vaughan stated, it was a "personal issue" she wanted to bring to the attention of her employer on January 28, 2013, and spread around the District. She acted individually to create her e-mail relative to the Plaintiff and she used -29- publically owned resources spreading her views, which included false statements of fact. (See CR: Plaintiffs Response To Defendants' Second Motion To Dismiss, page 3-5 at [9] and see Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan Email Personal Issue.) How do we know Anika Vaughan was acting individually and outside the scope of her duties? First, she herself, says she is, by labeling the first e-mail "personal issue." Second, when the Appellant became aware of the e-mail which contained so many false statements of fact, (several months after January 28, 2013, as a result of an Open Records Request which was answered by attorney Brandy Davis on July 1, 2013), he employed the Piano Independent School District's own published and board approved grievance procedure by filing a Level One Grievance on the matter on July 8, 2013. Associated with the Appellant's Grievance were 21 exhibits which he submitted for review to demonstrate that statements made by Anika Vaughan on January 28, 2013, were, in fact, false. (See CR: Plaintiffs Response To Defendants' Second Motion To Dismiss, attached Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan Email Personal Issue and Plaintiffs Exhibit 3, January 28, 2013 Anika \ Vaughan Email to PISD.) PISD Chief Human Resources Officer Tamira Griffin [not a Defendant] -30- reviewed the Level One Grievance filed by the Appellant and issued a denial letter on August 2, 2013. The letter is the second means by which we know that Anika Vaughan was acting outside her duties when she wrote and published the false statements of fact. The letter has two very important admissions on behalf of PISD. First, Griffin wrote, "The District has no interest in the private matters discussed in Ms. Vaughan's email and in your written statement and exhibits." Second, Griffin wrote, "The District will not take action against an employee or conduct an investigation related to matters outside the scope of his or her employment unless the matters impact the employee's ability to effectively perform his or her job duties in accordance with District polices and standards." (See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss, page 6 at [12] and see See Plaintiff's Exhibit 1, January 28, 2013, Anika Vaughan Email Personal Issue. Also see Plaintiffs Exhibit 4, August 2, 2013, Tamira Griffin Response to Level I Grievance page 2 at [6] and [7].) The statements in the Tamira Griffin letter clearly indicate that the governmental entity itself sees the actions of Anika Vaughan to be outside her function as a teacher and PISD effectively indicates they are washing their hands of the matter. But PISD is not free of the matter simply by declaring its lack of interest. Since the e-mail from Anika Vaughan was received by a variety of PISD -31- employees, including Appellees Joseph Parks and Courtney Washington and these individuals then acted upon the information supplied by Vaughan, and without questioning its truthfulness, they then acted outside their governmental function as well. The governmental function of the Director of Security, Joseph Parks, (a former 19 year veteran police officer who was previously employed by the Piano Police Department), would have been to investigate the claims made by Anika Vaughan, before acting against the Appellant. The same holds true of Courtney Washington, the principal who stated about the Appellant, "I am concerned that he may try to come to CMS, if what she is saying is accurate. We contact Piano PD and Safety and Security, as needed." (See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss, attached Plaintiff's Exhibit 3, January 28, 2013 Anika \ Vaughan Email to PISD at Washington's comment.) The Appellant is a Citizen of the United States ofAmerica and of the State of Texas. As such, he enjoys certain rights and privileges. He has no felony convictions, has never been arrested, has no criminal record and is a citizen in good standing. However, Courtney Washington makes it clear that her intention, if the Appellant comes to her school, is to contact the Director of Security and to contact the Piano Police. Why would she do that? Does she do that when any citizen visits her school? Is that a governmental function, to call the police on any -32- citizen who arrives on public property which is entrusted to the Board of Trustees by the citizen-owner taxpayers? Appellee Nancy Humphrey also acted outside her government duties and function and Appellant clearly described to the trial judge her actions and offered proof of her activity relative to dismissing a related Level II Grievance on the matter. (See CR: Plaintiff's Response To Defendants' Second Motion To Dismiss, page 8 - 11 at [17] and Plaintiff's Exhibits 5, 6 and 7 referenced in the argument.) In JerrellD. INMAN, Sr., Appellant, v. CITY OF KATY and Billy Johnson, in his Capacityas Assistant ChiefofPolice, Appellees, 900 S. W.2d 871 (1995), there is a poignant paragraph: "Our decision here is consistent with our previous determination that a municipality is immune from an action for libel when the statements are alleged to have occurred 873*873 during the performance of a governmental function. City ofDallas v. Moreau, 718 S.W.2d 776, 779 (Tex.A Corpus Christi Christi 1986, writ refd n.r.e.) In Moreau, a city marshall was fired following an accusation that he shot his weapon without legal justification. Id. at 778. The letter of termination was circulated and a copy posted on the employee bulletin board. This court held that the action taken by the marshall's office was in the performance of a police function, and that the operation of a police department is a function for which the city is immune from suit. Id. at 779. The -33- libel alleged in Moreau is similar to the slander in this case." Appellant notes that the VAUGHAN e-mail was not in furtherance of her duties as a 6th Grade teacher, not even close. But, she did use school district resources to publish her false statements of fact, as did others. This is the exact opposite of what happened in both the Inman and Moreau cases. 6. The trial court erred in failing to consider factual evidence presented by Appellant, on a case-by-case basis, to establish waiver-by-conduct. Waiver-by-conduct of sovereign immunity is a viable legal principle, and, the courts are expected to make waiver decisions on a case-by-case basis, viewing carefully the facts of each case. In Catalina Development, Inc. v. County ofEl Paso, 121 s.w.3d 704, 704 (Tex.203) where a contractor sued a government entity for shenanigans related to a contract bid, the Court clearly demonstrated that the Court will evaluate the waiver-by-conduct exception to sovereign immunity based upon the independent facts of each case, not as a categorical matter, or bright-line rule. While the Court ruled that the County of El Paso was, in fact, protected by immunity, the case-by-case analysis premise was reinforced. In Catalina, the Court calls attention to another case in which waiver-by-conduct is addressed. The Court speaks: -34- "It is undisputed that El Paso County did not expressly waive its immunity from suit here. In Federal Sign, we noted that there might be circumstances 4where the State may waive its immunity by conduct other than simply executing a contract,' although under the facts of that case, it was not necessary to indicate what those circumstances might be. Federal Sign v. Texas S. Univ., 951 S.W.2d 401,408 n. 1 (Tex.1997). Since Federal Sign, we have had several occasions to consider circumstances that were urged to constitute a waiver by conduct. See Peizel, 77 S.W.3d at 251-52 (county withheld money due under a construction contract pursuant to contract's liquidated-damages clause); Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856-57 (Tex.2002) (contractor sought to recover cost overruns allowed by contract's equitable-adjustments clause); Gen. Servs. Comm'n v. Little-TexInsulation Co., Inc., 39S.W.3d591,595 (Tex.2001) (contract disputes regarding cost overruns for completed work, and to recover for work partially performed under a contract that was subsequently terminated). We held that the facts these cases presented did not support an equitable waiver-by-conduct of the governmental entities' immunity." As such, Appellant urged the trial Court to do the same in this present case, but, it does not appear as though the trial judge took the facts of the case into consideration before dismissing the case. (See RR: Hearing before the Court, March 5, 2015, Motion To Dismiss page 9 at line 11 through page 19 through line 14). With all due respect to the trial judge, Appellant concludes that errors were made. Appellant was asked for help by a woman being subjected to domestic violence and when he assisted her, the husband complained to his sister, who took it upon herself to make false statements of fact about the Appellant to her -35- employer, which she labeled "personal." Without investigating the claims, individuals then reacted to the libelous material and spread the lies using taxpayer funded resources within the school district. When the Appellant found out, he used the agency policy to attempt to set the record straight, only to be subjected to an effort to dispose of the matter without resolution. Appellees indicated the matter was outside the scope of their duties and function, thereby waiving by conduct any immunity defense (sovereign or official), and upon being sued, entered a general denial. The trial court did not consider the facts of the case to establish waiver-by- conduct, and did not allow the "remedies additional" provision of the Texas Tort Claims Act before dismissing the case entirely. Appellant made the case before the trial judge that he filed suit under the Libel law, not under the TTCA, and that the government entity gave him permission to sue through conduct. -36- PRAYER Appellant, Douglas Kirk, respectfully, for the reasons stated above, asks the Court to reverse the judgment of the trial court and remand the case for trial. -37- APPENDIX Tab 1: Final Judgment Order by the Trial Court Tab 2: Trial Court's Findings of Fact and Conclusions of Law Tab 3: Text of Relevant Laws Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 4. LIABILITY IN TORT, CHAPTER 73. LIBEL Texas CIVIL PRACTICE AND REMEDIES CODE, TITLE 5. GOVERNMENTAL LIABILITY, CHAPTER 101. TORT CLAIMS EDUCATION CODE, TITLE 2. PUBLIC EDUCATION, SUBTITLE D. EDUCATORS AND SCHOOL DISTRICT EMPLOYEES AND VOLUNTEERS, CH.22 Tab 4: Piano Independent School District Grievance Policy PUBLIC COMPLAINTS GF (LEGAL) PUBLIC COMPLAINTS GF (LEGAL) -38- Respectfully Submitted, Bv -Sy£~^ Douglas fork, pro se Appellant 1850 Old Sattler Road Canyon Lake, Texas 78132 Telephone: (830)237-7313 CERTIFICATE OF SERVICE Icertify that atrue and correct copy ofthe foregoing pleading or document has been served on all attorneys ofrecord and any parties who are not represented by an attorney on */fy/6c&T, 2015. Counsel: Stephen R. Marsh Texas State Bar No. 13019700 David Klosterboer & Associates 1301 East Collins Boulevard Suite 490 Richardson, TX 75081 Telephone: (214) 570-6292 Via U.S. Mail, Certified Return Receipt Requested, No.f5f<7 9WlO(rtf)Sfti &**f 1