Opinion issued October 27, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-01001-CV ——————————— FADI KRAIDIEH, Appellant V. KAREN NUDELMAN, Appellee
On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2012-14736
MEMORANDUM OPINION
While off-duty, Fadi Kraidieh, a City of Houston police officer, purportedly
attempted to detain Karen Nudelman and three of her friends. Nudelman later sued
Kraidieh in his individual capacity for assault. In a plea to the jurisdiction, or in
the alternative, motion for summary judgment, Kraidieh argued to the trial court that he was entitled to dismissal under the election-of-remedies provision of the
Texas Tort Claims Act because his conduct was within the general scope of his
employment and the suit could have been brought against his governmental
employer, the City of Houston. The trial court denied Kraidieh’s plea to the
jurisdiction, and this interlocutory appeal followed. We reverse the trial court’s
order denying the plea to the jurisdiction and render judgment dismissing the case.
Background
One Halloween weekend, Nudelman, then a law student and a resident of the
Millennium Greenway Apartments, spent the evening with her roommate, Amanda
D’ Angelo, and two male friends, Bradley Schield and Brandon Alexander. In the
early morning hours of October 30, 2010, the four decided to go to the apartment
complex hot tub.
Kraidieh and his wife, Kelly Bates, are also residents of the Millennium
Greenway Apartments and both are employed by the City of Houston Police
Department. Kraidieh was off-duty and home asleep that evening. He was
awakened by loud noises from the apartment complex pool area around what he
guessed was 4:30 a.m.1 Kraidieh claimed that he heard female screams from the
pool area, and, thinking someone was in distress, he went to investigate.
1 Scottie Hawkins, also a resident at Millennium Greenway Apartments, lived in a unit facing the apartment complex pool area, and he recalled being similarly
2 Kraidieh averred that he approached the pool area and saw four adults—
Nudelman, D’Angelo, Schield, and Alexander—in the hot tub, one of whom was
drinking directly from a clear bottle of alcohol. He noted that one of the women in
the group had a beer in her hand and appeared intoxicated. Though he was
wearing a Houston Police t-shirt and claimed to have his HPD badge around his
neck, Kraidieh did not identify himself as a police officer. According to Kraidieh,
he told the group that they needed to leave because they were causing a
disturbance, drinking in public, and occupying the pool area outside allowable
hours. D’Angelo asked Kraidieh if they could have a couple minutes to wrap up.
Believing that the group was being compliant, Kraidieh said, “okay,” and returned
to his apartment.
According to Kraidieh, he heard the same screaming noise from the pool
area some 15 to 20 minutes later. Again, he went down to investigate. As he
walked, he phoned his wife, Deputy Bates, who held an approved extra job doing
private security for the apartment complex. When he arrived at the pool area, he
found the same group in the hot tub, and he asked which apartment they lived in.
Kraidieh averred that one of the women responded, “We are not telling you; we do
not want to get in trouble.” Only then did Kraidieh identify himself as a police
officer, just before he again told the group to leave the pool area. Kraidieh recalled
awakened by loud noises from that area. However, Hawkins thought he was awakened around 2:00 or 3:00 a.m.
3 that one of the women responded, “What the f- is your problem, leave us alone!”,
to which one of the men echoed, “Yeah, what the f- is your problem, we are not
leaving.” Believing that the four apparently intoxicated adults in the hot tub were
belligerent and may be a danger to themselves or others, Kraidieh decided to detain
all four individuals until Deputy Bates arrived. He did so notwithstanding the fact
that he was without his duty weapon, handcuffs, and police identification.
Kraidieh averred that, in attempting to detain the four individuals, he
grabbed one of the men by the wrist and tried to forcibly remove him from the hot
tub, which led to Nudelman telling him to leave her friend alone and allegedly
punching Kraidieh in the head. Kraidieh explained that he tried to push her away
to prevent her from striking him again, but maintains that he did not slap her and
did not see her fall or hit her head. Around that time, Kraidieh noted that
Nudelman called 911 and told the dispatcher that a man—Kraidieh—was
impersonating a police officer. Kraidieh claimed that, afterwards, Nudelman
began repeatedly slapping his face and kicking at him until Schield pulled her
away. With that, Kraidieh decided to retreat to his apartment to get his handcuffs.
As he left, the group asked for his badge number, and, according to Kraidieh, he
pointed toward his neck and called out his badge number.
While Nudelman agreed that Kraidieh was wearing a t-shirt and jeans when
he first interacted with the group, she maintained that he did not have a badge
4 around his neck at that time. Schield also testified that Kraidieh did not have a
badge when he first approached the group. Nudelman described the badge
Kraidieh was wearing around his neck on his second approach as appearing to be
“plastic, silver.” Nudelman recalled Kraidieh coming down screaming and yelling,
“Get the F out of the pool,” “Go the F home,” and “Get the F out of here.”
According to Nudelman, Alexander waded toward Kraidieh and asked what his
problem was and things escalated from there. Though Kraidieh denied striking
Nudelman or seeing her fall, Nudelman maintains that Kraidieh picked her up and
threw her to the ground.
HPD’s Sergeant L.G. Mikel responded to the scene at 5:18 a.m. After
meeting Kraidieh near the apartment complex lobby, Sergeant Mikel walked with
him to his apartment, where they waited for Deputy Bates as Kraidieh recounted
his version of events. Though Sergeant Mikel believed Kraidieh had discretion to
arrest the group, Kraidieh told him he did not wish to pursue the matter.
Nonetheless, accompanied by Deputy Bates, Sergeant Mikel then went to
Nudelman’s apartment.
Sergeant Mikel described Nudelman and her friends as intoxicated, an
opinion he formed based on the smell of alcohol, slurred speech, and
argumentativeness. Nudelman recalled being shocked and in disbelief when
Sergeant Mikel told her that Kraidieh was indeed an HPD officer. According to
5 Nudelman, Sergeant Mikel told her that Kraidieh was allowed to use force when
arresting someone, and Kraidieh’s mistake was only in not arresting anyone.
Nudelman recalled Deputy Bates similarly stating that, if Kraidieh perceived
Nudelman as a threat, he had every right to use force as he did. With these
comments, Nudelman felt as though she was being intimidated and blamed for the
incident, and she began crying in response.
In March 2012, Nudelman sued Kraidieh for assault.2 After discovery, in
October 2015, Kraidieh filed a plea to the jurisdiction or, in the alternative, a
motion for summary judgment, claiming statutory immunity under section
101.106(f) of the Tort Claims Act. The trial court denied Kraidieh’s motion, and
this interlocutory appeal followed.3
Discussion
Kraidieh contends that the trial court erred by denying his motion because
(1) the record conclusively establishes that he was within the scope of his
employment when he attempted to detain Nudelman and (2) the claim asserted
against him could have been brought under the Tort Claims Act against his
2 Nudelman subsequently amended her petition to add the owners of the Millennium Apartments, alleging respondeat superior and negligent hiring, supervision, and training. The Millennium defendants counterclaimed, seeking sanctions for filing a frivolous pleading barred by the statute of limitations. Nudelman nonsuited the Millennium defendants. 3 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing interlocutory appeal from denial of governmental unit’s plea to the jurisdiction); see also Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).
6 governmental employer and, therefore, is subject to dismissal under section
101.106(f).
A. Standard of Review
We review de novo a trial court’s ruling on a plea to the jurisdiction. State
v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). “In a suit against a governmental
unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by
alleging a valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104
S.W.3d 540, 542 (Tex. 2003). The plaintiff must allege facts that affirmatively
establish the trial court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of Pasadena v. Kuhn, 260
S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In determining
whether this burden has been satisfied, we must construe the pleadings liberally in
the claimant’s favor and deny the plea if the claimant has alleged facts
affirmatively demonstrating jurisdiction to hear the case. Tex. Dep’t of Parks and
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Smith v. Galveston Cty.,
326 S.W.3d 695, 697–98 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
B. Section 101.106 of the Tort Claims Act
Governmental immunity protects the State and its political subdivisions from
lawsuits and liability, which would otherwise “hamper governmental functions by
requiring tax resources to be used for defending lawsuits and paying judgments
7 rather than using those resources for their intended purpose.” Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (quoting Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006)). It is a long-
settled rule that “no state can be sued in her own courts without her consent, and
then only in the matter indicated by that consent.” Hosner v. DeYoung, 1 Tex. 764,
769 (1847). The Texas Tort Claims Act provides a limited waiver of immunity for
certain suits against governmental entities. See TEX. CIV. PRAC. & REM. CODE
§ 101.023. The Act governs all tort claims asserted against a governmental entity
and serves as “the only, albeit limited, avenue for common-law recovery against
the government.” Garcia, 253 S.W.3d at 655.
The Act was revised in 2003 to include an election-of-remedies provision.
As revised, section 101.106 forces claimants 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.” Garcia,
253 S.W.3d at 657. In relevant part, the provision states:
(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
8 (b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
...
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
TEX. CIV. PRAC. & REM. CODE § 101.106. The Supreme Court of Texas has
cautioned that, because this election-of-remedies provision imposes “irrevocable
consequences, a plaintiff must proceed cautiously before filing suit and carefully
consider whether to seek relief from the governmental unit or from the employee
individually.” Garcia, 253 S.W.3d at 657.
C. Analysis
In order to be entitled to dismissal under the election-of-remedies provision
of the Tort Claims Act, Kraidieh had the burden to conclusively prove: (1) he was
a governmental unit employee at the relevant time; (2) the complained-of conduct
was within the general scope of his employment with a governmental unit; and
(3) Nudelman’s suit could have been brought under the Tort Claims Act against
9 Kraidieh’s governmental employer. TEX. CIV. PRAC. & REM. CODE § 101.106(f);
Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011); Fink v. Anderson, 477
S.W.3d 460, 465–66 (Tex. App.—Houston [1st Dist.] 2015, no pet.). The parties
do not dispute that the Houston Police Department is a governmental unit and that
it was Kraidieh’s employer at the relevant time. Thus, only two questions remain:
whether Kraidieh conclusively proved that his conduct was within the general
scope of his employment and whether Nudelman’s suit could have been brought
under the Tort Claims Act against his governmental employer, HPD. We address
each of these issues in turn.
1. General scope of employment
Kraidieh argues that he conclusively established that his conduct was within
the general scope of his employment at the time of the alleged assault. Though he
was off-duty at the time, Kraidieh argues the record conclusively shows he
responded as a police officer to what he believed were cries of distress. He further
argues that, upon finding publically intoxicated adults creating a disturbance, it
was his duty as an officer to respond. Nudelman contends that Kraidieh failed to
conclusively establish that he was acting within the scope of his employment
because he was off-duty, and attempting to enforce the rules of the apartment
complex because he was personally agitated at being awakened. Nudelman further
10 relies on the fact that Kraidieh did not arrest anyone or file an official incident
report to argue that Kraidieh was not acting as a public officer.
The Act defines the term “scope of employment” as “the performance for a
governmental unit of the duties of an employee’s office or employment and
includes being in or about the performance of a task lawfully assigned to an
employee by competent authority.” TEX. CIV. PRAC. & REM. CODE § 101.001(5);
see also City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (“An
official acts within the scope of her authority if she is discharging the duties
generally assigned to her.”). The Texas Supreme Court has further clarified the
term through reference to the Restatement (Third) of Agency, which explains that
“[a]n employee’s act is not within the scope of employment when it occurs within
an independent course of conduct not intended by the employee to serve any
purpose of the employer.” RESTATEMENT (THIRD) OF AGENCY § 7.07(2)
(2006), cited by Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014). “Thus,
when an employee engages in conduct ‘for the sole purpose’ of furthering someone
else’s interests and not his employer’s, the conduct is outside the employee’s scope
of employment.” Fink, 477 S.W.3d at 466.
Under Texas law, “[i]t is the duty of every peace officer to preserve the
peace within the officer’s jurisdiction.” TEX. CODE CRIM. PROC. art. 2.13(a). An
officer is not relieved of the duty to preserve the peace merely because he is “off-
11 duty.” Blackwell v. Harris Cty., 909 S.W.2d 135, 139 (Tex. App.—Houston [14th
Dist.] 1995, writ denied). Thus, whether an officer is technically on-duty or off-
duty does not determine whether conduct he undertakes is within the scope of
employment. See Harris Cty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.—
Houston [14th Dist.] 2004, no pet.). Instead, the dispositive question is: “in what
capacity was the officer acting at the time he committed the acts for which the
complaint was made.” Blackwell, 909 S.W.2d at 139. “If an officer is performing
a public duty, such as enforcement of general laws, he is acting ‘in the course and
scope of his employment as a police officer even if the [private] employer directed
him to perform the duty.’” Gibbons, 150 S.W.3d at 882 (quoting Bridges v.
Robinson, 20 S.W.3d 104, 111 (Tex. App.—Houston [14th Dist.] 2000, no pet.),
disapproved of on other grounds, Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex.
2002)).
Here, the record conclusively shows that upon arriving at the pool area,
Kraidieh observed four adults in the hot tub whom he believed, based on their
conduct, were publically intoxicated. Kraidieh averred that he believed the four
individuals could be a danger to themselves or others. Thus, irrespective of any
house-rules which the group may have been violating, Kraidieh observed
12 violations of public laws.4 Having made such observations, whether off-duty or
on-duty, Kraidieh had a duty to preserve the peace and prevent a possible crime.
TEX. CODE CRIM. PROC. arts. 2.13, 6.06. Accordingly, in attempting to detain the
group, Kraidieh was performing his public duty and serving the purposes of his
employer. Because Kraidieh was “in or about the performance of a task lawfully
assigned to an employee by competent authority,” he was acting within the “scope
of employment” for purposes of the Act. See TEX. CIV. PRAC. & REM. CODE §
101.001(5) (defining “scope of employment”).
Nudelman maintains that there is a fact issue as to whether Kraidieh was
acting in the scope of employment because he was responding as a private resident
of the apartment complex or as private security for the apartment complex. In
support, Nudelman highlights evidence that (1) Kraidieh may have first
approached the group because he was asked to do so by Deputy Bates, (2) Kraidieh
did not initially identify himself as an officer and did not have his police
4 Section 49.02 of the Texas Penal Code provides that a person commits the offense of public intoxication if she appears in a public place while intoxicated to the degree that she may endanger herself or another. TEX. PENAL CODE § 49.02. Section 42.01 provides, in relevant part, that a person commits the offense of disorderly conduct if she intentionally or knowingly “makes unreasonable noise in a public place.” TEX. PENAL CODE § 42.01(a)(5). A public place includes the common areas of apartment houses. See TEX. PENAL CODE ANN. § 1.07(40) (providing that “public place” means “any place to which the public or a substantial group of the public has access and includes, but is not limited to . . . the common areas of . . . apartment houses”); Holmes v. State, 795 S.W.2d 815, 817 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (defendant arrested for public intoxication in parking area of private apartment complex).
13 identification, duty belt, or handcuffs on his person, (3) Kraidieh did not stay at the
scene, instead retreating to his apartment, and (4) Kraidieh neglected to file a
police report and did not arrest or cite anyone. We first note that whatever
Kraidieh’s initial impetus to approach the pool area, the violation of public laws
triggered a duty to respond as a peace officer. Thus, whether Kraidieh was
awakened and went to the pool area because he himself heard noise from the area
or because Deputy Bates called him is irrelevant to the question of whether
Kraidieh was acting with the scope of his employment when he attempted to
detain, and allegedly assaulted, Nudelman.
Similarly, whether Kraidieh was personally agitated and harboring personal
motivation to oust the group from the pool does not change the analysis so long as
his conduct served HPD’s purpose. This is because “co-existing motivations do
not remove an employee’s actions from the scope of his employment so long as the
conduct also serves a purpose of the employer.” Fink, 477 S.W.3d at 471
(citations omitted). Accordingly, “[a]n activity may serve the employer’s purposes
while simultaneously benefiting the employee or even a third party and still qualify
as conduct within the scope of employment.” Id. (finding state university
professor’s discussions with investors regarding the efficacy of his invention was
in scope of his employment even if such discussions also served professor and his
son’s interests); see also Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 721–22
14 (Tex. App.—Austin 2004, no pet.) (holding that even if employee personally
benefitted to some degree by breakfast run done at his manager’s request, his
actions were still within the course and scope of his employment). Thus, accepting
as true Nudelman’s contention that Kraidieh was acting for his personal benefit or
for the benefit of the apartment complex, we must conclude Kraidieh was acting
within the general scope of his employment because his complaint served a
purpose of his employer.
We likewise must reject Nudelman’s arguments that Kraidieh’s conduct was
not in the scope of employment as a matter of law because he violated HPD
policies during their altercation. Whether an employee is acting within the “scope
of employment” depends on whether he was performing the duties of his
governmental employer’s office, not on how adequately he performed such duties.
See TEX. CIV. PRAC. & REM. CODE § 101.001(5); see e.g., Alexander, 435 S.W.3d
at 790 (expressing no opinion as to whether officers acted in good faith in holding
that alleged improper conduct of officers during course of arrest fell within general
scope of their employment and was subject to election-of-remedies provision of
Act). Upon observing a violation, Kraidieh had a duty to enforce general laws.
Whatever missteps he took in performing that duty do not remove his conduct from
the general scope of his employment.
15 2. Claims could have been brought under Tort Claims Act
The Texas Supreme Court has held that a claim is one that “could have been
brought” under the Tort Claims Act if it (1) “is in tort” and (2) is not brought
“under another statute that independently waives immunity,” even if immunity has
not been waived for the tort alleged. Franka, 332 S.W.3d at 381 (explaining that
“any tort claim against the government is brought ‘under’ the [TTCA] for purposes
of Section 101.106(f), even if the Act does not waive immunity”); Fink, 477
S.W.3d at 472 (same). Here, Nudelman sued for assault, an intentional tort.
Nudelman did not plead, nor does she argue on appeal, that her claim was brought
under another statute that independently waives immunity. Thus, for purposes of
section 101.106(f), Nudelman’s claim is one that could have been brought under
the Tort Claims Act. See Franka, 332 S.W.3d at 381.
Because the complained-of conduct was within the general scope of
Kraidieh’s employment and Nudelman’s suit could have been brought under the
Tort Claims Act, pursuant to section 101.106(f), Nudelman’s suit is considered to
be against Kraidieh in his official capacity only. See TEX. CIV. PRAC. & REM.
CODE § 101.106(f); Franka, 332 S.W.3d at 370. In this circumstance, section
101.106(f) required the trial court to dismiss Kraidieh unless Nudelman filed an
amended pleading dismissing Kraidieh and naming the governmental unit as
defendant on or before the 30th day after Kraidieh filed his plea to the jurisdiction.
16 TEX. CIV. PRAC. & REM. CODE § 101.106(f). Nudelman did not file amended
pleadings, and thus the trial court erred as a matter of law in failing to grant
Kraidieh’s plea and dismiss the suit.
Conclusion
We reverse the trial court’s order and render judgment granting Kraidieh’s
plea to the jurisdiction and dismissing the case.
Rebeca Huddle Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.