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Moore v. Novark9/28/1995
mance of a discretionary function; (2) in good faith; and (3) within the scope of the employee's authority. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994). Neither summary judgement or directed verdict are proper if each of these elements is not conclusively established. See id. at 12.
In this case, there is disputed evidence as to the deputies' good faith, the second element of the immunity defense. The deputies made sworn statements implicating Novark, and they testified at trial that they merely reported what they saw. Novark admitted he was present at the station, spoke to the prisoner, and picked up the gun, but adamantly denied that he pointed the gun at Bossert. He offered evidence of his theory that the deputies conspired to falsely accuse him to cause him to lose his job , thus putting the question of the deputies' good faith at issue. The jury, as the factfinder, is the sole judge of the credibility of the witnesses and the evidence, and should resolve any conflicts or inconsistencies in the evidence. Benoit v. Wilson, 239 S.W.2d 792, 796-97 (Tex. 1951); M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex. App. -- Houston [1st Dist.] 1987, no writ). The deputies were entitled to an instruction on this disputed issue of their good faith.
The deputies submitted the following instruction, which the trial court refused:
If a Defendant reasonably believed that they had an obligation to report Plaintiff's action in holding a weapon to the head of a citizen, and acted in good faith on the basis of this belief, then his or her reasonable belief and good faith action would constitute a defense to the Plaintiff's allegation that the Defendants conspired to falsely accuse him of civil rights violation .
A request must be in substantially correct form to preserve error. TEX. R. CIV. P. 278. To be substantially correct, a request should be correct in substance and in the main, and it should not be affirmatively incorrect. Placencio v. Allied Indus. Int'l, Inc., 724 S.W.2d 20, 21 (Tex. 1987). The deputies' refused instruction incorrectly assumes the truth of a disputed fact issue, that is, whether the deputies truthfully reported that Novark was the officer who held the gun to Bossert's head. Thus, it is not in substantially correct form. We conclude that the deputies waived error in the charge's omission of an instruction on good faith and overrule the deputies' eighth point of error. For this reason, we also overrule the deputies' contentions as to the sufficiency of the evidence of good faith in point of error sixteen.
2. Full and Fair Disclosure
In the deputies' point of error five, they complain that the trial court erred in refusing their instruction on full and fair disclosure. The deputies requested the following instruction:
A person who makes a full and fair disclosure to a law enforcement officer or prosecuting authority of information he believes to be true is not the cause of the prosecution and is not considered to have aided and cooperated in causing that prosecution, even if the information is false and a reasonable person would not believe it. This instruction is based on language in the RESTATEMENT (SECOND) OF TORTS, cited with approval by many courts. See, e.g., Zavaleta, 827 S.W.2d at 346. The issue of "full and fair disclosure" has been recognized as an element of proof in cases alleging malicious prosecution. The plaintiff has the burden to prove that the defendants failed to make a full and fair disclosure of the facts and circumstances known to them. Zavaleta, 827 S.W.2d at 346.
The Texas Supreme Court recently expressed its approval of full and fair disclosure as a
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