14th Court of Appeals reverses jury award in excessive force case against County, but upholds portion against deputy

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Harris County, et al, v Coats, et.al, 14-17-00732-CV, (Tex. App. — Houston [14th Dist.], February 6, 2020)

This is a § 1983/wrongful death case where the 14th Court of Appeals reversed in part a jury award against the County and its deputy. [Comment: this is a 49-page opinion].

Jamail and his girlfriend were using cocaine when Jamail felt ill.  Jamail exited through a window and called 9-1-1 from a public phone. However, when the EMTs arrived, Jamail ran from the area to a nearby Burger King. Deputy Saintes arrived after a disturbance call, handcuffed Jamail and walked him to the ambulance. When they neared the ambulance, Jamail became combative and attempted to run. Multiple deputies arrived and assisted Saints to subdue Jamail. EMTs gave Jamail an injection of a sedative. Jamail was seen breathing normally. The parties dispute whether Deputy Vailes’ boot was on Jamail’s nose and mouth at the time.  However, after a short while, he could not be roused. He was transported to a nearby hospital where he died. The family sued. Multiple individuals and parties settled out or were dismissed based on immunity.  A jury trial was held against the County and Deputy Vailes. The jury found for Jamail’s family. The County and Deputy Vailes appealed.

The court first determined no policy, custom, or practice of the County existed to establish § 1983 liability on the entity. Normally, single incidents cannot create a policy, custom, or practice. As far as constable’s go, the fact a constable’s jurisdictional reach is throughout the county does not support the trial court’s conclusion that the Precinct Four Constable is a law enforcement final policymaker for Harris County. Jamail’s burden was to identify a final policymaker who speaks on law enforcement matters for the local government unit at issue—Harris County, not simply a precinct.  As to Deputy Vailes, the court held some evidence existed that Deputy Vailes placed his boot on Jamail’s face when he was already handcuffed. The law was sufficiently clear that every reasonable official would understand (as did those who testified) that stepping on the nose and mouth of someone who is lying on the ground, likely sedated, handcuffed, and unresponsive, with enough force that the person’s neck touches the ground, would constitute an excessive-force violation. Therefore, Vailes was not entitled to qualified immunity on that claim. However, the evidence was insufficient Vailes’ actions caused Jamail’s death.  Deputy Vailes argues that Jamail died because of acute cocaine toxicity, as the medical examiner concluded following Jamail’s autopsy. In cases alleging medical injury or death, expert testimony regarding causation is generally the norm and Jamail’s family did not produce any regarding the cause of death.  The fact Vailes’ boot was placed on Jamail, when he was already non-responsive is insufficient to justify the jury award against Vailes as to Jamail’s death. Because of the alterations to the judgment, the court remanded for a reconsideration of the attorney fee award.

If you would like to read this opinion click here. Panel consists of Justice Christopher Justice Wise, and Justice Jewel. Opinion by Justice Jewel.

Plaintiff ordered to pay attorney fees after non-suiting claims against individual governmental officials under Texas Citizens’ Participation Act

Shillinglaw v. Baylor Univ., 05-17-00498-CV, 2018 WL 3062451, at *1 (Tex. App.—Dallas June 21, 2018, no pet. h.) (mem. op).

This is a Texas Citizens’ Participation Act ( “TCPA) case where the individual governmental officials were awarded fees and costs after the Plaintiff non-suited them individually in an employment dispute.

In 2008, Baylor University hired Shillinglaw, as Director for Football Operations. Baylor later suspended then terminated Shillinglaw after charges of sexual harassment and an investigation occurred. In early 2017, Shillinglaw sued various officials in Dallas County asserting claims of “libel, slander, tortious interference with existing contract” and other torts. The individuals filed motions to dismiss per the TCPA under which the recovery of costs & attorney’s fees, is mandatory. Shillinglaw non-suited his claims against the individuals. Shillinglaw sued Baylor in McLennan County court and demanded the court order Baylor to arbitration, per an arbitration agreement in his employment contract.  However, he did not request that the court in Dallas County compel arbitration until after suit was filed. The Dallas County district court dismissed the motion to compel arbitration and awarded fees and costs against Shillinglaw and for the individuals.  Shillinglaw then filed this appeal.

Shillinglaw contends the dismissal orders should be reversed because the case should have been sent to arbitration. Shillinglaw urges the Federal Arbitration Act (FAA) preempts the TCPA because, as applied here, the TCPA discriminated against arbitration. However, because he sought arbitration after filing suit, he waived the right to arbitration.  Further, the individuals never agreed to arbitrate, only the employer.

The TCPA requires the award of reasonable attorney’s fees to the successful party. Shillinglaw failed to establish, and the record does not show, that the trial court erred in its award. The judgement was affirmed.

If you would like to read this opinion, click here. Panel consists of Justice Bridges, Justice Myers and Justice Schenck. Memorandum Opinion by Justice Schenck. The docket page with attorney information can be found here.