627 S.W.3d 777
Tex. App.2021Background
- CenterPoint claimed a tariff and an aerial easement authorizing access to trim an oak tree on Noris Rogers’s property; it contracted Davey Tree to perform the work.
- On Nov. 7, 2017 CenterPoint’s rep (Menough) and a Davey Tree crew arrived with Houston PD Sgt. Pochen Lee (off-duty, in uniform, armed) to trim the tree; Rogers had previously objected and padlocked his gate.
- A body-camera video captured the encounter: Menough ordered Lee to arrest Rogers so the crew could proceed; Rogers refused to allow access; Lee handcuffed Rogers and arrested him; Rogers was released shortly after and no charges were filed.
- Rogers sued CenterPoint, Davey Tree, and the City of Houston for false imprisonment, intrusion on seclusion, and other claims; CenterPoint and Davey Tree moved for combined traditional and no-evidence summary judgment; the City filed a plea to the jurisdiction.
- The trial court granted summary judgment for CenterPoint and Davey Tree and dismissed the City. On appeal the court: affirmed dismissal of claims against the City and affirmed summary judgment for Davey Tree and on intrusion claims, but reversed and remanded the false-imprisonment claim against CenterPoint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| False imprisonment — CenterPoint (instigation/authority) | Rogers: CenterPoint (via Menough) instigated Lee’s arrest by directing Lee to remove/arrest him; arrest lacked legal authority | CenterPoint: video shows arrest was lawful (breach of peace, assault/threats) or was by officer’s independent judgment; no instigation | Reversed: factual dispute exists whether Menough directed arrest and whether arrest was lawful; remanded as CenterPoint did not conclusively negate claim |
| False imprisonment — Davey Tree (instigation) | Rogers: Davey Tree employee Rodriguez’s statements ("he pushed me") instigated Lee to detain him | Davey Tree: Rodriguez only reported the incident; did not request arrest or direct officer to arrest Rogers | Affirmed for Davey Tree: no more than scintilla that Davey Tree instigated detention; SJ proper |
| Intrusion on seclusion — CenterPoint & Davey Tree | Rogers: entry onto backyard, cutting padlock, and use of police escort were highly offensive and violated privacy | Defendants: entry was exercise of valid easement/tariff rights, daytime notice was given, use of easement not highly offensive | Affirmed: exercise of recorded easement and tariff right with notice during daytime is not highly offensive as a matter of law; intrusion claim fails |
| City’s plea to the jurisdiction / constitutional claims | Rogers: Lee’s conduct (off-duty but approved) was proprietary, not governmental; UDJA/declaratory relief available for constitutional violations | City: actions attributable to police function => governmental immunity; constitutional/declaratory claims moot (no live controversy; no ongoing injury) | Affirmed: police services (even off-duty with approval) are governmental; intentional-tort claims barred by immunity; constitutional/declaratory claim moot and nonviable |
Key Cases Cited
- Wal–Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 (Tex. 2002) (third‑party liability for false imprisonment: instigation requires direction/request to arrest)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary-judgment review: take nonmovant’s evidence as true and indulge every reasonable inference)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standards for pleadings and considering evidence on plea to the jurisdiction)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (sovereign/governmental immunity principles and distinction between governmental and proprietary functions)
- Garza v. Harrison, 574 S.W.3d 389 (Tex. 2019) (off‑duty police officer performing law enforcement duties may be acting in official capacity)
- Ethio Exp. Shuttle Serv., Inc. v. City of Houston, 164 S.W.3d 751 (Tex. App.—Houston [14th Dist.] 2005) (activities closely related to listed governmental functions are governmental)
- Boerjan v. Rodriguez, 436 S.W.3d 307 (Tex. 2014) (no‑evidence summary-judgment standard)