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Brand v. Savage8/17/1995
Appellant Beverly Brand brought suit against appellees, Tom Savage, the City of El Lago and Taylor Lake Village, alleging malicious prosecution, false imprisonment, conversion, assault and battery, and negligence. The trial court granted summary judgement in favor of appellees based on provisions of the Texas Tort Claims Act, and this appeal followed.
The summary judgement evidence reflects that this dispute began when Lakeview police officer Tom Savage stopped to investigate a dog in appellant's yard that appeared to be in distress. According to Savage's affidavit, he noticed the shaking dog fall and, after struggling unsuccessfully to get up, begin to howl. He stated that the dog was wet and was missing patches of hair on its rear flank and hip area.
As Savage approached the dog, appellant came out of her house carrying a towel. She explained to Savage that the dog was hers and that it was not sick or hurt, but was merely showing its age of 16 years. She indicated that she had just bathed the dog and had come out to carry it back into the garage. When she attempted to move the dog, Savage told her that he had summoned an animal control officer to examine the dog and ordered her to leave it where it was.
According to both Savage's affidavit and appellant's deposition testimony, she refused to comply with his order and moved the dog into the garage. When Savage attempted to block her path, an altercation occurred between the two. The incident culminated in Savage arresting appellant and placing her in handcuffs. She was ultimately charged with simple assault and with the offense of allowing a dog to be at large and unattended.
In points of error one and two, appellant asserts the trial court erred in granting summary judgement in favor of appellees. To be entitled to summary judgement under TEX. R. CIV. P. 166a(c), the movant must establish there is no genuine issue of material fact and that it is entitled to judgement as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Enchanted Estates Community Ass'n, Inc. v. Timberlake Improvement Dist., 832 S.W.2d 800, 801 (Tex. App. -- Houston [1st Dist.] 1992, no writ). Ordinarily, a defendant moving for summary judgement bears the burden of showing that no fact issue exists with regard to at least one element of the plaintiff's cause of action. Enchanted Estates, 832 S.W.2d at 801.
Here, the City of El Lago and Taylor Lake Village rely on the affirmative defense of governmental immunity. It is undisputed that the municipalities are governmental entities to which the doctrine of governmental immunity would be applicable. When an affirmative defense like immunity is established, the burden of raising a disputed fact issue shifts to the non-movant. Armendarez v. Tarrant County Hosp. Dist., 781 S.W.2d 301, 303 (Tex. App. -- Fort Worth 1989, writ denied). This Court must therefore examine the summary judgement evidence to determine whether a fact issue exists regarding the application of immunity.
The City of El Lago and Taylor Lake Village Appellant's petition specifically states that her lawsuit "is brought pursuant to the Texas Tort Claims Act." Under the Texas Tort Claims Act, a governmental unit is shielded from liability with only a few statutorily defined exceptions:
"A governmental unit in the state is liable for:
(1) property damage, personal injury , and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-d
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