Friday, December 29, 2017

District Judge Sylvia Matthews mandamused by Texas Supreme Court over failure to allow attorneys to be designated as responsible third parties

In Re Frank Coppola, No. 16-0723 (Tex. Dec. 15, 2017) (orig proc.) Houston's First Court of Appeals, which heard the petition for mandamus complaining of the district court's denial of the motion in the first instance, had declined to intervene.

IN RE FRANK COPPOLA AND BRIDGET COPPOLA

Relators.

No. 16-0723.
Supreme Court of Texas.
Opinion delivered: December 15, 2017.
    
Dylan B. Russell, for Bridget Coppola, Relator.
Scott Allen Lisman, for Nancy Adams, Real Party in Interest.
Scott Allen Lisman, for Adams Investment Properties, LLC, Real Party in Interest.
Dylan B. Russell, for Frank Coppola, Relator.

On Petition for Writ of Mandamus.

PER CURIAM.

In this tort suit arising from a real-estate transaction, relators Frank and Bridget Coppola seek mandamus relief from an order denying leave to designate the plaintiffs' transactional attorneys as responsible third parties. The motion to designate, which was filed long after an initial trial date but more than sixty days before a new trial setting, was timely. See TEX. CIV. PRAC. & REM. CODE § 33.004. Trial courts have no discretion to deny a timely filed motion to designate absent a pleading defect and an opportunity to cure, which did not occur here. See id.

We therefore conditionally grant the writ.
The Coppolas seller-financed the sale of unimproved property to veterinarian Nancy Adams and Adams Investment Properties, LLC (collectively Adams). Adams intended to use the property to build a veterinary clinic and pet boarding facility and, before closing, confirmed with a city official that the land was properly zoned. Adams also hired two attorneys to furnish legal advice about the promissory note, purchase agreement, price options, and financing.

At closing, the Coppolas provided Adams with a survey showing the property bore a 15-foot right-of-way. Adams subsequently discovered that local ordinances require a 25-foot right-of-way for any commercial improvement. She sued the Coppolas for fraud and deceptive trade practices, alleging they failed to disclose right-of-way limitations that render the property unusable for its intended purpose.
Seventy-six days before the third trial setting, the Coppolas requested leave to designate Adams's legal advisors as responsible third parties. The Coppolas alleged the attorneys breached their duty of care to Adams by failing to disclose the right-of-way ordinance's effect in relation to Adams's desired use of the property. Adams argued the motion was untimely, failed to sufficiently plead facts concerning the attorneys' alleged responsibility for the damages, and improperly sought to designate attorneys as responsible third parties. The trial court summarily denied the motion to designate without granting leave to replead, and the court of appeals denied mandamus relief. No. 01-16-00614-CV, 2016 WL 4766043, at *1 (Tex. App.-Houston [1st Dist.] Sept. 13, 2016, orig. proceeding) (mem. op.).

Subject to certain limitations not at issue here, section 33.004 of the Texas Civil Practice and Remedies Code permits a tort defendant to designate a person as a responsible third party by filing a motion "on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date." TEX. CIV. PRAC. & REM. CODE § 33.004(a); see id. § 33.002 (making the proportionate-responsibility statute applicable to tort and deceptive-trade-practices claims). The trial court "shall grant leave to designate . . . a responsible third party" unless another party objects within fifteen days after service. Id. § 33.004(f). Even with a timely filed objection, the court must allow the designation unless the objecting party establishes (1) the defendant did not plead sufficient facts concerning the person's alleged responsibility and (2) the pleading defect persists after an opportunity to replead. Id. § 33.004(g). The trial court may later strike the designation if, after adequate time for discovery, no legally sufficient evidence of responsibility exists. Id. § 33.004(l).

Mandamus relief is warranted when the trial court clearly abused its discretion and the relator has no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). In this case, the trial court erroneously denied the Coppolas' motion because it was filed more than sixty days before the trial setting and the trial court did not afford an opportunity to cure any pleading deficiency. We find nothing in the proportionate-responsibility statute supporting a construction of section 33.004(a) as limiting the phrase "the trial date" to an initial trial setting rather than the trial date at the time a motion to designate is filed. Moreover, Adams's policy arguments notwithstanding, nothing in the proportionate-responsibility statute precludes a party from designating an attorney as a responsible third party. See El Paso Healthcare Sys., Ltd. v. Murphy, 518 S.W.3d 412, 418 (Tex. 2017) (statutes are construed using a text-based approach that gives effect to the plain meaning of undefined terms, within the context of the statute as a whole, unless doing so produces an absurd result).

Relying on American Title Co. v. Bomac Mortgage Holdings, LP, Adams asserts that a trial resetting does not alter an original designation deadline absent a court order or the parties' agreement to extend the deadline. 196 S.W.3d 903, 908-09 (Tex. App.-Dallas 2006, pet. granted, judgm't vacated w.r.m.). Adams misconstrues Bomac's holding. In Bomac, the motion to designate was untimely when filed; the trial continuance occurred after the motion was filed; the trial was continued for the "`very limited'" purpose of allowing additional discovery; and the scheduling order explicitly stated that a trial continuance would not alter any deadlines unless specifically provided by order. Id. None of these circumstances are presented here. Bomac is thus inapposite. Applying section 33.004(a) according to its plain language, the Coppolas' motion to designate was timely filed.

We need not determine whether the Coppolas pleaded sufficient facts regarding the attorneys' alleged responsibility, because even if a deficiency existed, the trial court lacked discretion to deny the motion to designate without affording them an opportunity to replead. See TEX. CIV. PRAC. & REM. CODE § 33.004(g); see also In re Smith, 366 S.W.3d 282, 288 (Tex. App.-Dallas 2012, orig. proceeding) ("[T]he trial judge was statutorily required to give relators an opportunity to replead before denying their motion, regardless of whether they made a specific request for time to replead.").

In rejoinder, Adams posits that parties are—or should be—categorically prohibited from designating attorneys as responsible third parties. This argument cannot be squared with the statute's provisions. By special definition, a "responsible third party" is "any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought." TEX. CIV. PRAC. & REM. CODE § 33.011(6). The statute explicitly exempts from the definition "a seller eligible for indemnity under Section 82.002" and no others. Id. Even if we were to credit Adams's speculative concerns about the possibility of collateral disciplinary consequences, we cannot judicially amend the statute to exempt legal professionals and must, instead, "apply the statute as written." Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015). We further note that Adams's policy concerns seem unfounded in light of the statutory directive that neither a section 33.004 designation nor a finding of fault against the person "impose[s] liability on the person." TEX. CIV. PRAC. & REM. CODE § 33.004(i). And, more to the point, neither can "be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person." Id.

We next address the adequacy of an appellate remedy, an issue we have not previously considered in the context of a section 33.004 responsible-third-party designation. Relying on the standard articulated in In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004) (orig. proceeding), however, a majority of our intermediate appellate courts have held that when a timely filed motion to designate a responsible third party is erroneously denied, no adequate remedy by appeal ordinarily exists. See In re Bustamante, 510 S.W.3d 732, 739 (Tex. App.-San Antonio 2016, orig. proceeding) (en banc) (overturning prior precedent holding otherwise); see also In re Volvo Group N. Am., LLC, No. 10-16-00113-CV, 2016 WL 3136354, at *2 (Tex. App.-Waco June 2, 2016, orig. proceeding) (mem. op.); In re Greyhound Lines, Inc., No. 05-07-01646-CV, 2014 WL 1022329, at *4 (Tex. App.-Dallas Feb. 21, 2014, orig. proceeding) (mem. op.); In re E. Rio Hondo Water Supply Corp., No. 13-12-00528-CV, 2012 WL 5377898, at *10 (Tex. App.-Corpus Christi Oct. 29, 2012, orig. proceeding) (mem. op.); In re Altec Indus., Inc., No. 10-12-00207-CV, 2012 WL 2469542, at *2 (Tex. App.-Waco June 22, 2012, orig. proceeding) (mem. op.); In re Smith, 366 S.W.3d 282, 288-89 (Tex. App.-Dallas 2012, orig. proceeding)In re Brokers Logistics, Ltd., 320 S.W.3d 402, 408 (Tex. App.-El Paso 2010, orig. proceeding).

In Prudential, we explained that "adequate" is merely "a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts" and an "adequate" appellate remedy exists when "any benefits to mandamus review are outweighed by the detriments." 148 S.W.3d at 136. In weighing the benefits of mandamus review, we conclude, consistent with the weight of appellate authority, that the benefits generally outweigh the detriments. Allowing a case to proceed to trial despite erroneous denial of a responsible-third-party designation "would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of [the relator's] defense in ways unlikely to be apparent in the appellate record." In re CVR Energy, Inc., 500 S.W.3d 67, 81-82 (Tex. App.-Houston [1st Dist.] 2016, orig. proceeding [mand. denied]) (internalquotation marks omitted, alteration in original) (discussing and collecting authorities weighing benefits against detriments of mandamus review). The denial of mandamus review impairs—and potentially denies—a litigant's significant and substantive right to allow the fact finder to determine the proportionate responsibility of all responsible parties. See id. at 84 ("The denial of [a party's] right to allow the jury to determine the proportionate responsibility of all responsible parties is a significant ruling and mandamus review will prevent the impairment or loss of this substantive right."); see also In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding) ("The most frequent use we have made of mandamus relief involves cases in which the very act of proceeding to trial—regardless of the outcome—would defeat the substantive right involved."). Accordingly, we hold that, ordinarily, a relator need only establish a trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to a trial court's denial of a timely-filed section 33.004(a) motion. Cf. In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 299-300 (Tex. 2016) (orig. proceeding) (holding similarly with regard to a plea in abatement in a dominant-jurisdiction case).

As an "alternative" request for relief, the Coppolas ask the Court to dismiss Adams's claims altogether, asserting she has not suffered a cognizable injury unless and until she unsuccessfully pursues a variance from the 25-foot right-of-way ordinance. Ripeness is a component of subject-matter jurisdiction, Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000), and courts have a duty to determine their jurisdiction, In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding). We have recognized that issues affecting subject-matter jurisdiction, like ripeness, may be raised for the first time on appeal, including interlocutory appeal. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 94-95 (Tex. 2012).

This is not an appeal, however, but a mandamus proceeding. Due to the extraordinary nature of the remedy, the right to mandamus relief generally requires a predicate request for action by the respondent, and the respondent's erroneous refusal to act. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding). The record bears nary a hint that ripeness was questioned in the proceedings below, and the Coppolas have not argued or shown that the facts present one of the "rare occasions" in which the predicate-request requirement should be relaxed. See id. We therefore deny the Coppolas' alternative relief request.[1]

Without hearing oral argument, see TEX. R. APP. P. 52.8(c), we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its order denying the Coppolas' section 33.004(a) motion to designate responsible third parties. The writ will issue only if it fails to do so.



[1] In In re City of Dallas, we considered sua sponte the subject-matter jurisdiction of a county court to grant a Rule 202 pre-suit discovery petition when the damages for the claims under investigation likely exceeded the court's jurisdictional maximum. 501 S.W.3d 71, 73-74 (Tex. 2016) (orig. proceeding) (citing TEX. R. CIV. P. 202.1(b)). We observed courts cannot render binding judgments in matters over which subject-matter jurisdiction is lacking nor allow a party to obtain by Rule 202 what it would be denied in the anticipated action. Thus, if the county court lacked subject-matter jurisdiction over the anticipated action, it could not grant relief under Rule 202. The record did not conclusively negate jurisdiction based on the amount in cont roversy, but rather than addressing the ultimate merits issue, we directed the trial court to vacate its order granting the Rule 202 petition and remanded with instructions to determine jurisdiction in the first instance. Id. at 74. Notably, the issue in the mandamus proceeding concerned the ultimate relief requested in the underlying action, and the parties had made a predicate request to dismiss for want of jurisdiction, albeit on other grounds. Id.at 73. In re City of Dallas is thus distinguishable.

BELOW: Memorandum Opinion In re Frank Coppola et al., No. 01-16-00614-CV (Tex.App.—Houston [1st Dist.] Sept. 13, 2015, orig. proceeding) (per curiam).

IN RE FRANK COPPOLA AND BRIDGET COPPOLA, Relators.

No. 01-16-00614-CV.
Court of Appeals of Texas, First District, Houston.
Opinion issued September 13, 2016.
 
Dylan Benjamen Russell, for Frank Coppola and Bridget Coppola, Relator.
Scott Allen Lisman, for Nancy Adams and Adams Investment Properties, LLC ("AIP"), Real party in interest.

Original Proceeding on Petition for Writ of Mandamus.

Panel consists of Justices Jennings, Keyes, and Brown.

MEMORANDUM OPINION

PER CURIAM.

Relators, Frank Coppola and Bridget Coppola, have filed a petition for a writ of mandamus, challenging the trial court's order denying their motion to designate responsible third parties.[1]
We deny the petition and dismiss as moot relators' agreed motion to stay the trial setting.

[1] The underlying case is Nancy Adams and Adams Investment Properties, L.L.C. v. Frank Coppola and Bridget Coppola, cause no. 2015-13321, in the 281st District Court of Harris County, Texas, the Honorable Sylvia Matthews presiding.


Mandamus Petition in the Texas Supreme Court 
(excerpts)



Judge Matthews' Order Denying Motion to Designate
Responsible Third Party without explanation 
 CRPC 33.004 - DESIGNATION OF RESPONSIBLE THIRD PARTY 

TEX. CIV. PRAC & REM. CODE §33.004

Sec. 33.004. DESIGNATION OF RESPONSIBLE THIRD PARTY. (a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.
(b) Nothing in this section affects the third-party practice as previously recognized in the rules and statutes of this state with regard to the assertion by a defendant of rights to contribution or indemnity. Nothing in this section affects the filing of cross-claims or counterclaims.
(c) Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 4.10(2).
(d) A defendant may not designate a person as a responsible third party with respect to a claimant's cause of action after the applicable limitations period on the cause of action has expired with respect to the responsible third party if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure.
(e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 203, Sec. 5.02, eff. September 1, 2011.
(f) A court shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15th day after the date the motion is served.
(g) If an objection to the motion for leave is timely filed, the court shall grant leave to designate the person as a responsible third party unless the objecting party establishes:
(1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and
(2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure.
(h) By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of this chapter without further action by the court or any party.
(i) The filing or granting of a motion for leave to designate a person as a responsible third party or a finding of fault against the person:
(1) does not by itself impose liability on the person; and
(2) may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person.
(j) Notwithstanding any other provision of this section, if, not later than 60 days after the filing of the defendant's original answer, the defendant alleges in an answer filed with the court that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit, the court shall grant a motion for leave to designate the unknown person as a responsible third party if:
(1) the court determines that the defendant has pleaded facts sufficient for the court to determine that there is a reasonable probability that the act of the unknown person was criminal;
(2) the defendant has stated in the answer all identifying characteristics of the unknown person, known at the time of the answer; and
(3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure.
(k) An unknown person designated as a responsible third party under Subsection (j) is denominated as "Jane Doe" or "John Doe" until the person's identity is known.
(l) After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage.
Added by Acts 1995, 74th Leg., ch. 136, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 2003, 78th Leg., ch. 204, Sec. 4.03, 4.04, 4.10(2), eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 203 (H.B. 274), Sec. 5.01, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 203 (H.B. 274), Sec. 5.02, eff. September 1, 2011.

Friday, December 22, 2017

Texas Supreme Court disagrees with Fourteenth COA and Judge Alexandra Smoots-Hogan; orders law firm that employed paralegal who switched sides on case disqualified

In re Bertram Turner, No. 17-0099 (Tex. Dec. 22, 2017)
(orig. proceeding) 


IN THE SUPREME COURT OF TEXAS
══════════
No. 17-0099
══════════
IN RE BERTRAM TURNER AND REGULATORY LICENSING & COMPLIANCE, L.L.C.
══════════════════════════════════════════
ON PETITION FOR WRIT OF MANDAMUS
══════════════════════════════════════════
PER CURIAM

[pdf version here]

IN RE BERTRAM TURNER AND REGULATORY LICENSING & COMPLIANCE, L.L.C.
No. 17-0099.
Supreme Court of Texas.
Opinion delivered: December 22, 2017.
Joseph L. Lanza, Charles M. Vethan, for Bertram Turner, Relator.
John W. Belk, for Jay VMK, Corp., Real Party in Interest.
John W. Belk, Vassie M. Kelly, for Vassie M. Kelly, Real Party in Interest.
Vicki Gajtanovski, for Real Party in Interest, Pro se.
Joseph L. Lanza, Charles M. Vethan, for Regulatory Licensing & Compliance, LLC, Relator.
John L. Kelly, John W. Belk, for John L. Kelly, Real Party in Interest.
Brian P. Cweren, Andrew B. Brown, Scott H. Fournier, for Humanitarian Financial, Inc., Real Party in Interest.
Brian P. Cweren, Scott H. Fournier, Andrew B. Brown, for Cristina Lopez, Real Party in Interest.

On Petition for Writ of Mandamus.

PER CURIAM.

The issue in this case is whether a law firm must be disqualified after it employed a paralegal who had previously worked for the opposing party's counsel. We hold that the facts of this case require disqualification.

The Vethan Law Firm represents Bertram Turner and Regulatory Licensing & Compliance (RLC) in a suit against Christina Lopez. The Cweren Law Firm represents Lopez. Vethan hired Jeaneal Wright as a paralegal shortly after it commenced this suit and assigned her to work on Turner's case. With regard to her work on that matter, Wright exchanged emails with Vethan lawyers, communicated directly with Turner, reviewed confidential client information, and drafted an engagement letter. Wright also attended several meetings in which Vethan attorneys discussed Turner's case, exposing her to relevant work product and case strategy. Wright's employment at Vethan was short-lived, however, lasting approximately six weeks.

Cweren hired Wright eight months later, after Cweren had appeared in the Turner case as Lopez's counsel. To screen for potential conflicts, the record shows only that Cweren asked questions during the initial job interview based on the information provided in an applicant's resume. Because Wright did not disclose her prior employment at Vethan on her resume, Cweren did not ask any questions about her work there. Nor did Wright volunteer any information during the interview about her employment with Vethan. Importantly, the record does not reveal that Cweren instructed Wright to refrain from working on any matters on which she might have worked during any of her prior positions.

Wright worked for Cweren on the Turner matter for several months, albeit largely in a clerical capacity. After Vethan noticed Wright's initials on Cweren documents, Vethan sent Cweren a letter asserting that Wright's participation in the matter created a conflict that required Cweren to immediately withdraw as Lopez's counsel. Cweren conferred with Wright, who admitted she had worked at Vethan but denied that she had worked on the Turner matter while employed by Vethan. Although Cweren refused to withdraw as Lopez's counsel unless Vethan could provide "proof" that Wright actually worked on the Turner matter while at Vethan, it nevertheless took remedial action. Cweren instructed Wright not to discuss the case with other employees, barred her from viewing any files related to the Turner matter, and shifted all responsibility for the case to other paralegals.

Vethan filed a motion to disqualify Cweren because of Wright's work on the Turner matter at both firms. The trial court denied the motion and the court of appeals denied Vethan's petition for writ of mandamus. ___ S.W.3d. ___, 2017 WL 61826, at *1 (Tex. App.-Houston [14th Dist.] Jan. 5, 2017, no pet.). Vethan now seeks mandamus in this Court, urging that the trial court abused its discretion in denying the motion and that Turner has no adequate remedy by appeal.

"Mandamus is available where a motion to disqualify is inappropriately denied as there is no adequate remedy on appeal." In re Columbia Valley Healthcare Sys., L.P., 320 S.W.3d 819, 824 n.2 (Tex. 2010) (orig. proceeding). We review a trial court's refusal to disqualify a law firm under an abuse of discretion standard. See id. at 829.

Distilled, Vethan argues that it triggered an irrebuttable presumption that Wright imparted confidential information relating to the Turner matter to the Cweren firm, thus requiring disqualification. In the alternative, Vethan contends that Cweren failed to rebut a rebuttable presumption that Wright shared such information. Cweren argues that the measures it took after discovering Wright's conflict were sufficient to avoid disqualification, relying primarily on our decision in Phoenix Founders, Inc. v. Marshall,887 S.W.2d 831, 836 (Tex. 1994) (orig. proceeding), where we set forth several factors as guidance in determining the effectiveness of a firm's screening measures. For the reasons explained below, we do not reach that analysis.[1]

Deciding whether to disqualify counsel based on a nonlawyer employee's conduct involves a two-step process, and different presumptions apply at each step. See Columbia Valley, 320 S.W.3d at 824-25. A trial court must grant a motion to disqualify a firm whose nonlawyer employee previously worked for opposing counsel if the nonlawyer (1) obtained confidential information about the matter while working at the opposing firm and (2) then shared that information with her current firm. See In re Guar. Ins. Serv., 343 S.W.3d 130, 134 (Tex. 2011) (orig. proceeding) (per curiam). We conclude both requirements are met here.

As to the first requirement, the law presumes that the nonlawyer employee obtained confidential information about the matter if she actually worked on the matter at her former firm. See Columbia Valley, 320 S.W.3d at 824. To "prevent the moving party from being forced to reveal the very confidences sought to be protected," this presumption is irrebuttable. Id. (quoting In re Am. Home Prods. Corp., 985 S.W.2d 68, 74 (Tex. 1998)(orig. proceeding)). Here, Wright undisputedly "actually worked" on the Turner matter while employed at Vethan, so she is irrebuttably presumed to have obtained confidential information. See id.; Am. Home, 985 S.W.2d at 75 ("The presumption that a legal assistant received confidential information is not a rebuttable one."). We thus conclude that Vethan has satisfied the first requirement.

The second requirement is the focus of much of this case. Under the second requirement, the law presumes that a nonlawyer employee who obtained confidential information at her former firm shared that information with her new firm. See Columbia Valley, 320 S.W.3d at 824. This presumption is generally rebuttable, but some circumstances will cause the presumption to become irrebuttable.
When the shared-confidences presumption is rebuttable, the responding party may rebut it by satisfying another two-prong test. We have explained that
this second presumption can be overcome, but only by a showing that: (1) the assistant was instructed not to perform work on any matter on which she worked during her prior employment, or regarding which the assistant has information related to her former employer's representation, and (2) the firm took "other reasonable steps to ensure that the [assistant] does not work in connection with matters on which the [assistant] worked during the prior employment, absent client consent."
Id. (quoting Am. Home, 985 S.W.2d at 75). Casual admonitions to refrain from working on conflicted matters are insufficient to meet the first prong, and the "other reasonable measures" under the second prong "must include, at a minimum, formal, institutionalized screening measures that render the possibility of the nonlawyer having contact with the file less likely." Id. at 826. We have equated the second prong with "effective screening" and instructed courts to use the six factors enunciated in Phoenix Founders to guide such an inquiry:
(1) the substantiality of the relationship between the former and current matters; (2) the time elapsing between the matters; (3) the size of the firm; (4) the number of individuals presumed to have confidential information; (5) the nature of their involvement in the former matter; and (6) the timing and features of any measures taken to reduce the danger of disclosure.
Id. at 824-25 (citing Phoenix Founders, 887 S.W.2d at 836). These factors serve to answer whether the hiring firm's screening measures were "sufficient to reduce the potential for misuse of confidences to an acceptable level." Guar. Ins., 343 S.W.3d at 135 (quoting Phoenix Founders, 887 S.W.2d at 836). But if a firm fails to establish that it met the first prong by instructing the nonlawyer employee to refrain from working on any conflicted matters, we need not reach the effectiveness of the firm's screening measures under the second step.[2]

On this record, we hold that Cweren failed to rebut the rebuttable shared-confidences presumption.[3] This is so because Cweren did not instruct Wright to refrain from working on the Turner matter until after learning of her conflict. Although Cweren's later-enacted measures may have been effective, they were simply too late. "The test for disqualification is met by demonstrating a genuine threat of disclosure, not an actual materialized disclosure." Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 467 (Tex. 1994) (orig. proceeding) (per curiam). Here, the measures were too late, and the threat of a prohibited disclosure was too high. A law firm must instruct a nonlawyer to refrain from working on conflicted matters before she commences work on a particular matter. This is true regardless of whether the second firm knows of the precise conflict.

In Columbia Valley, for example, we noted that the "hiring firm must demonstrate that [] the employee was instructed not to work on any matter on which she worked during her prior employment. . . ." 320 S.W.3d at 828. Although we required disqualification for other reasons, we noted the law firm "satisfied the first prong" of the shared-confidences presumption because it instructed the employee "not to perform work on any matter on which she worked during her former employment, including [the conflicted matter]." Id. at 825; see Guar. Ins., 343 S.W.3d at 136 (noting second firm instructed employee "not to engage with matters on which he had worked previously"); Phoenix Founders, 887 S.W.2d at 835 ("The paralegal should also be instructed not to work on any matter on which the paralegal worked during the prior employment, or regarding which the paralegal has information relating to the former employer's representation."); Grant, 888 S.W.2d at 467-68 (same). Because Cweren failed to meet the first prong of the two-step inquiry to rebut the shared-confidences presumption, we need not address the parties' arguments regarding the Phoenix factors under the second prong.

In summary, to rebut the rebuttable presumption that a nonlawyer employee imparted confidential information obtained at her previous employment, the hiring firm must demonstrate that it instructed the nonlawyer employee to refrain from working on any matters on which she worked in any previous employment. Columbia Valley, 320 S.W.3d at 824. The failure to provide this general instruction to a new employee creates an unacceptable risk of disclosure, even if the hiring firm is unaware of the new employee's specific conflict. Here, the record demonstrates that Cweren did not provide this instruction until after it discovered Wright's conflict.

We conclude that the trial court abused its discretion in denying Turner's motion to disqualify. Without hearing oral argument, see TEX. R. APP. 52.8, we conditionally grant mandamus relief and direct the trial court to grant Vethan's motion to disqualify Cweren from the Turner matter. 

We are confident the court will comply, and the writ will issue only if it does not.

[1] Cweren also contends that Vethan's brief is fatally defective because it (1) failed to support its statement of the case with references to the record, (2) contained arguments in its issues presented and statement of the facts, and (3) failed to provide a summary of the argument. To the extent these defects exist, they are not fatal. See TEX. R. APP. P. 55.2(d), 55.2(g), 55.9 ("If a brief does not conform with these rules, the Supreme Court mayrequire the brief to be revised or may return it to the party who filed it and consider the case without further briefing by that party.") (emphasis added). Finally, Cweren contends that Vethan's writ of mandamus to the court of appeals was procedurally defective due to the failure to certify the facts in the petition, and that as a result, the court of appeals likely denied mandamus relief on procedural grounds. The court of appeals' decision did not rest on that basis, and neither will ours.
[2] Although we have explained that disqualification is usually not required when the "practical effect of formal screening has been achieved," see Guar. Ins., 343 S.W.3d at 134, that inquiry assumes the second firm provided the initial instruction to the nonlawyer employee to refrain from working on conflicted matters. Whether the subsequent screening measures were effective is a question separate from the provision of the preliminary instruction.

[3] The presumption of shared confidences is irrebuttable if, inter alia, "the nonlawyer has actually performed work, including clerical work, on the matter at the lawyer's directive if the lawyer reasonably should know about the conflict of interest." Columbia, at 320 S.W.3d at 828. The parties dispute whether the irrebuttable presumption applies under the circumstances of this case. However, because we conclude that Cweren failed to rebut the rebuttable presumption, we need not address those arguments.


TRIAL COURT ORDER DENYING DISQUALIFICATION OF OPPOSING COUNSEL 

Bertram Turner and Regulatory Licensing & Compliance, LLC  v Cristina Lopez and Humanitarian Financial, Inc.
Bertram Turner and Regulatory Licensing & Compliance, LLC
v Cristina Lopez and Humanitarian Financial, Inc.
HOUSTON COURT OF APPEALS'
DENIAL OF MANDAMUS 

IN RE BERTRAM TURNER 
AND REGULATORY LICENSING & COMPLIANCE, LLC, Relators.
No. 14-16-00967-CV.
Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed January 5, 2017.
Vicki Gajtanovski, for Real party in interest, Pro se.

John W. Belk, for Jay VMK, Corp, John L. Kelly, Vassie M. Kelly, Real party in interest.

David L Bergen, Jr., Charles M.R. Vethan, Joseph L. Lanza, for Bertram Turner and Regulatory Licensing & Compliance, LLC, Relator.

Appeal from the 164th District Court, Harris County, Texas, Trial Court Cause No. 2015-34625.

Original Proceeding.

Writ of Mandamus.

Petition for Writ of Mandamus Denied.

Panel consists of Justices Boyce, Busby, and Wise.

MEMORANDUM OPINION
PER CURIAM.

On December 2, 2016, relators Bertram Turner and Regulatory Licensing & Compliance, LLC filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relators ask this Court to compel the Honorable Alexandra Smoots-Hogan, presiding judge of the 164th District Court of Harris County, to set aside her November 16, 2016 order denying their motion to disqualify counsel for real parties in interest.

Relators have not shown that they are entitled to mandamus relief. Accordingly, we deny relators' petition for writ of mandamus.

IN RE BERTRAM TURNER AND REGULATORY LICENSING & COMPLIANCE, LLC, Relators.

No. 14-16-00967-CV.
Court of Appeals of Texas, Fourteenth District, Houston.
Memorandum Opinion filed January 5, 2017.

Monday, December 11, 2017

Justice Jamison dissents over employee status of defendant claiming immunity based on his work for City

Jack Fryday v Linda Michaelski, No. 14-16-00881-CV.   (Tex.App. - Houston [14th Dist.]  Dec. 7, 2017) (majority opinion by Justice Boyce, dissent by Jamison in interlocutory appeal)

Fourteenth Court of Appeals panel splits on whether inspector may cloak himself with City's immunity to avoid potential liability in lawsuit over alleged shoddy work in the inspection of a rental home. Plaintiff alleged she had to incur expenses to comply with higher building standard requirements as a result of the faulty inspection, that she was deprived of rental income for the lower level of her rental home, and that the value of her rental home decreased. Majority reversed trial court's denial of inspector's motion to dismiss and rendered judgment for the defendant.

Martha Hill Jameson writes separately, taking issue with the quality of proof on the matter of whether the inspector was an independent contractor or an employee of the City, a key issue in the case for immunity purposes under the election-of-defendants provision of the applicable statute.  


DISSENTING OPINION BY JAMISON

MARTHA HILL JAMISON, Justice.

I disagree that Fryday conclusively established that the trial court lacked subject matter jurisdiction over Michaelski's claims and, therefore, that the trial judge erred in denying Fryday's motion to dismiss. Because the majority holds otherwise, I respectfully dissent.

I agree that this court has appellate jurisdiction over the denial of Fryday's motion to dismiss pursuant to Civil Practice and Remedies Code section § 51.014(a)(5) even though Fryday did not file a summary judgment motion. See Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011)Phillips v. Dafonte, 187 S.W.3d 669, 673-675 (Tex. App.-Houston [14th Dist.] 2006, no pet.). To be entitled to dismissal, Fryday was required to establish that the City was a governmental entity and that he was an employee of the City. See Univ. of Tex. Health Sci. Ctr. at Houston v. Rios, 507 S.W.3d 312, 316 (Tex. App.-Houston [1st Dist.] 2016, pet. granted)see also Lubbock Cty. Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305-06 (Tex. 2014)Fink v. Anderson, 477 S.W.3d 460, 465-66 (Tex. App.-Houston [1st Dist.] 2015, no pet.).

Parties claiming to be employees of a governmental entity and seeking the application of immunity under the Texas Tort Claims Act bear the initial burden of proving they are employees of a governmental unit. See Olivares v. Brown & Gay Eng'g, Inc., 401 S.W.3d 363, 376-77 (Tex. App.-Houston [14th Dist.] 2013) (holding party claiming to be employee bears burden of proving "that it is in the paid service of a governmental unit and that it is not an independent contractor, agent or employee of an independent contractor, or someone who performs tasks the details of which the governmental unit does not have a legal right to control"), aff'd, 461 S.W.3d 117 (Tex. 2015).

I agree with the majority that Fryday's affidavit provided some evidence relating to his employment status, specifically that he worked part-time and was paid by the hour. 

However, the affidavit does not conclusively establish whether he performs tasks the details of which the City does not have a legal right to control. The affidavit is silent as to several indices of the right to control the details of work normally exercised by an employer as identified in Olivares:
* When and where to begin and stop work;
* Regularity of hours;
* Amount of time spent on particular aspects of the work;
* Tools and appliances used to perform the work; and
* Physical method or manner of accomplishing the end result.[1]
See id.

In addition, the statements in the affidavit in some respects were vague. What is meant by "whenever called upon to do so"? What is meant by "reported directly to the City Administrator if any issues arose"? Other statements are not probative of the right to control. What factor is addressed by Fryday's maintaining an office in City Hall? How does the fact that the City Council reviewed his final results prove that Fryday was not an independent contractor?

Additionally, I disagree with the majority that certain elements of Fryday's jurisdictional argument were undisputed and thus did not require proof. Fryday's affidavit failed to present facts to establish that the City is a governmental unit under the TTCA, that Michaelski's claims could have been brought against the City under the TTCA, or that Fryday's conduct was within the general scope of his employment with the City. While Michaelski did not specifically argue these deficits in her brief, her silence did not relieve Fryday of his burden to establish every element of his defense. See Lenoir v. U.T. Physicians, 491 S.W.3d 68, 75 (Tex. App.-Houston [1st Dist.] 2016, pet. denied)(concluding defendant failed to conclusively prove it was a governmental unit under the TTCA); see also Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011) (holding defendant had the burden of proving that suit "could have been brought under" the Act and had to offer evidence that the employer's immunity was waived); Kelemen v. Elliott,260 S.W.3d 518, 524 (Tex. App.-Houston [1st Dist.] 2008, no pet.) ("Elliott did not make any assertion before the trial court, and makes none before this Court, that the acts for which Kelemen sued him were in the general scope of his employment."). Any dismissal under section 101.106(f) would therefore be erroneous. See Kelemen, 260 S.W.3d at 524.

I disagree with the majority that the affidavit provided conclusive evidence establishing that the trial court lacked subject matter jurisdiction.[2] I would affirm the trial court's denial of Fryday's motion to dismiss and accordingly, respectfully dissent.

[1] The majority is correct that the Texas Supreme Court stated in Murk v. Scheele that the TTCA's "definition of `employee' does not require that a governmental unit control every detail of a person's work." 120 S.W.3d 865, 867 (Tex. 2003) (emphasis in original). However, the court further stated that a governmental employee is not precluded from being an "employee" simply because he must exercise some independent judgment and, considering other factors demonstrating the governmental employer's right to control his work, the employee was entitled to dismissal based on the TTCA. See id.

[2] Although not necessary to my analysis, I also disagree that the record establishes as a matter of law that the trial court did not consider Michaelski's Exhibit A. Exhibit A was included in the original clerk's record filed in our court on November 14, 2016. The clerk's record further reflects Exhibit A was filed in the trial court on June 27, 2016, which was before the trial court's order was signed. The majority does not mention this fact in its recitation of the admittedly inexplicable subsequent filing by Michaelski.

JACK FRYDAY D/B/A FRYDAY CONSULTING SERVICES, INC., Appellant,
v.
LINDA MICHAELSKI, Appellee.

No. 14-16-00881-CV.
Court of Appeals of Texas, Fourteenth District, Houston.
Majority and Dissenting Opinions Opinions filed December 7, 2017.
Owen Stephen Jones, for Linda Michaelski, Appellee.
William S. Helfand, Avniel J. Adler, for Jack Fryday d/b/a Fryday Consulting Services, Inc., Appellant.
On Appeal from the 125th District Court, Harris County, Texas, Trial Court Cause No. 2016-18523.
Reversed and Rendered.
Panel consists of Justices Boyce, Jamison, and Brown (Jamison, J., dissenting).

MAJORITY OPINION

WILLIAM J. BOYCE, Justice.

This is an interlocutory appeal from the trial court's order denying a motion to dismiss filed by appellant Jack Fryday d/b/a Fryday Consulting Services, Inc. The principal issue presented is whether Fryday was an employee of the City of Clear Lake Shores at the time he allegedly performed a faulty inspection of the rental home of appellee Linda Michaelski. Because the evidence establishes that Fryday was an employee of the City of Clear Lake Shores, we reverse the trial court's order and render judgment dismissing Michaelski's suit against Fryday.

BACKGROUND

Michaelski sued Jack Fryday d/b/a Fryday Consulting Services, Inc. after Fryday allegedly performed "faulty building inspection work" when he inspected her rental home in Clear Lake Shores. In her original petition, she alleged claims for negligence and DTPA violations. She alleged that "[o]n or about August 2014 the Defendant was hired by the City of Clear Lake Shores to inspect the Plaintiff's rental home located at 1019 North Shore, Drive, Clear Lake Shores, Texas 77565 by the City of Clear Lake Shores, Texas." Michaelski alleged that, because of Fryday's faulty inspection, she had to incur expenses to comply with higher building standard requirements, she was deprived of rental income for the lower level of her rental home, and the value of her rental home decreased.

Jack Fryday filed a motion to dismiss, contending that he is entitled to immunity from suit because Michaelski's claims against him "involve conduct within the general scope of his employment as a building official employed by the City of Clear Lake Shores. Under Texas law, therefore, tort claims, such as Plaintiff asserts here must be brought, if at all, against the City of Clear Lake Shores, Fryday's governmental employer." See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.002; 101.106(f) (Vernon 2011).
In her response, Michaelski argued that Fryday is not entitled to immunity because he was not an employee of the City of Clear Lake Shores; instead, she asserted that Fryday was a "private contractor" and "private contractors hired by governmental entities are not entitled to sovereign immunity." She argued that, although she pleaded that the City of Clear Lake Shores "hired the Defendant," she "never said the City of Clear Lake Shores hired the Defendant as an employee."

Fryday contended in reply that (1) Michaelski failed to provide any evidence that Fryday was an independent contractor; and (2) her "own pleadings fail to substantiate how Fryday is an independent contractor of the City of Clear Lake Shores, rather than an immune governmental official." Fryday stated that he was "appointed as the City Building Official in 2009," and served for nearly seven years in that capacity. He stated that his inspection of Michaelski's home was "entirely within the scope of Fryday's position as City Building Official" and his "responsibilities included reviewing all building permit applications and advising the City whether plans or proposals complied with applicable building codes, regulations, or ordinances." Fryday asserted that he "was an officer in the paid service of a governmental unit, sued for conduct within the general scope of his employment and should be dismissed from this lawsuit under Section 101.106(f)." To support these assertions, Fryday pointed to his written declaration attached to his reply.

Michaelski filed a sur-reply to the motion to dismiss, contending that Fryday was not an employee of the City of Clear Lake Shores because "a d/b/a b[y] definition [is] not an employee as the d/b/a is not a person." Michaelski claimed that Fryday was "paid by the City of Clear Lake Shores through 1099's [sic] for the years 2013, 2014 and 2015 not by W2's," and that there are "three 1099's [sic] of the Defendant specifically identifying him as a d/b/a subcontractor only, not as a person, for 2014 and 2015." Michaelski also claimed that Fryday "identifie[d] his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial District Court in Galveston." She argued that Fryday is therefore "not entitled to governmental immunity."

The trial court denied Fryday's motion to dismiss on October 25, 2016. Fryday timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2016) (permitting interlocutory appeal from the denial of a motion for summary judgment based on an assertion of immunity by an officer or employee of the State or a political subdivision of the State); Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (motion to dismiss filed pursuant to section 101.106 may be treated as a motion for summary judgment for purposes of appellate jurisdiction, despite defendant's use of incorrect procedural vehicle).

ANALYSIS

Fryday contends that the trial court erroneously denied his motion to dismiss pursuant to the election of remedies provision in section 101.106(f) because (1) the claims asserted against him individually are based on conduct within the general scope of his governmental employment as the City's building official; and (2) suit could have been brought against the City under the Texas Tort Claims Act.

I. Standard of Review

A motion to dismiss filed by an employee of a governmental unit pursuant to section 101.106(f) is a challenge to the trial court's subject-matter jurisdiction, which we review de novo. Garza v. Harrison, No. 14-16-00615-CV, 2017 WL 3158946, at *2 (Tex. App.-Houston [14th Dist.] July 25, 2017, pet. filed); Singleton, 267 S.W.3d at 550.

II. Texas Tort Claims Act Election of Remedies

Sovereign immunity and governmental immunity protect the State and its political subdivisions, respectively, from lawsuits and liability. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655, 655 n.2 (Tex. 2008)Garza, 2017 WL 3158946, at *3. The Texas Tort Claims Act provides a limited waiver of that immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655see also Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2011). After the Texas Tort Claims Act's enactment, "plaintiffs often sought to avoid the Act's damages cap or other strictures by suing governmental employees, since claims against them were not always subject to the Act." Garcia, 253 S.W.3d at 656.

To prevent such circumvention and to protect governmental employees, the Texas Tort Claims Act was amended in 2003 to include an election of remedies provision. Garcia,253 S.W.3d at 656Garza, 2017 WL 3158946, at *3; Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL 6277409, at *3 (Tex. App.-Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.); see also generally Tex. Civ. Prac. & Rem. Code Ann. § 101.106.

The election of remedies provision "force[s] a plaintiff 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.

Relevant to this case, the statute provides as follows:
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 [the Texas Tort Claims Act] 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 Ann. § 101.106(f). Thus, an individual defendant is entitled to dismissal upon proof that the plaintiff's suit (1) is based on conduct within the scope of the defendant's employment with a governmental unit, and (2) could have been brought against the governmental unit under the Texas Tort Claims Act. See Laverie v. Wetherbe,517 S.W.3d 748, 752 (Tex. 2017).

Here, the parties do not dispute that the City is a governmental unit and that Michaelski's claims could have been brought against the City under the Texas Tort Claims Act. Nor do the parties appear to dispute that, if Fryday is determined to be a City employee, then his conduct was within the scope of his employment with the City to provide building inspection services. The only disputed issue on appeal is whether Fryday was a City employee at the time he inspected Michaelski's rental home.

III. Employee of a Governmental Unit

The Texas Tort Claims Act defines the term "employee" as "a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control." Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2) (Vernon Supp. 2016).

According to Fryday, the evidence in this case conclusively establishes that he was an employee of the City at the time he inspected Michaelski's home. He points to the declaration he attached to his pleading in the trial court, which states as follows:

DECLARATION OF JACK FRYDAY

I, Jack Fryday declare, on June 22, 2016, under penalty of perjury as follows:
. . .
2. I own and operate a building inspection company called J Fryday Consulting Services. I have provided private building inspection and related services through J Fryday Consulting Services since 2007.
3. In August of 2009, the City of Clear Lake Shores contacted me regarding serving as Building Official for the City. Although the City and I discussed the possibility of entering into a contract for my company to provide service to the City, we never made a contract. Instead, I personally agreed to perform building inspection services for the City on a part[-]time basis, and the City agreed to pay me for the work assigned on a part-time basis. The City Administrator then appointed me personally as the City Building Official with the approval of City Council.
4. I served as Building Official for the City of Clear Lake Shores from approximately August of 2009 through May 30, 2016. In this capacity, I was responsible for reviewing all building permit applications in the City.
5. As City Building Official, I maintained an office at City Hall and shared an assistant with the City Secretary. The work did not take my full time but, whenever called upon to do so, I performed all of the responsibilities of the office of Building Official and reported directly to the City Administrator if any issues arose. My review and interpretations were subject to review by the Board of Adjustment, and the City Council.
6. I was never retained to work for Ms. Michaelski. Any and all work I did was done to advise the City of my opinion of whether plans or proposals complied with applicable building codes, regulations, or ordinances.
7. I have never had a contract to work as an independent contractor for the City of Clear Lake Shores. Instead, I submitted timesheets for the hours I worked for the City, as the official Building Official, and I was paid at the rate of $50 per hour for each hour worked.
Fryday's declaration constitutes evidence that the City paid him between August 2009 and May 2016 for his services as a City Building Official performing building inspection services and reviewing building permit applications for the City. The City did not hire or pay his company "J Fryday Consulting Services;" nor did Fryday have a "contract to work as an independent contractor for the City." He submitted timesheets and was paid for the hours he worked. Thus, Fryday was "in the paid service of a governmental unit" in August 2014, when he inspected Michaelski's home. See id.

"Under the Texas Tort Claims Act, a person is not an employee of a governmental unit if the person is an independent contractor or `performs tasks the details of which the governmental unit does not have the legal right to control.'" Olivares v. Brown & Gay Eng'g, Inc., 401 S.W.3d 363, 368 (Tex. App.-Houston [14th Dist.] 2013), aff'd, 461 S.W.3d 117 (Tex. 2015) (quoting Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam)). "A party can prove right to control in two ways; first, by evidence of a contractual agreement that explicitly assigns a right to control; and second, in the absence of such contractual agreement, by evidence of actual control over the manner in which the work was performed." Id. at 368-69.

The "[Texas Tort Claims] Act's definition of `employee' does not require that a governmental unit control every detail of a person's work." Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam) (emphasis in original) (rejecting argument that physician was not a government employee even though exercise of physician's independent professional judgment was outside of governmental unit's right of control). Thus, even if the City did not have the legal right to control all of Fryday's work as a City Building Official performing building inspection services, that does not exclude him from the definition of "employee." See Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 398 (Tex. App.-Fort Worth 2008, no pet.) (concluding that a city council member was paid by the city and was a city "employee" for purposes of Tort Claims Act immunity, even if the city did not have the legal right to control all of council member's work and she was an elected official).

Fryday's affidavit states that, because the work did not require his full time, he "performed all of the responsibilities of the office of Building Official" whenever he was called upon or instructed to do so, and he "reported directly to the City Administrator if any issues arose." Fryday also maintained an office at City Hall and shared an assistant with the City Secretary. Fryday further explained in his affidavit that he advised the City of his opinion regarding "whether plans or proposals complied with applicable building codes, regulations, or ordinances" but that his "review and interpretations were subject to review by the Board of Adjustment, and the City Council." Fryday's evidence establishes that he was an employee of the City as defined by the Texas Tort Claims Act.

Michaelski argues that "Exhibit A" referred to in her sur-reply shows that Fryday was a subcontractor rather than a City employee. She argues that "Exhibit A" contains her business records affidavit and copies of three 1099 tax forms for years 2013 to 2015 showing that Fryday was paid by the City "through 1099's for the years 2013, 2014 and 2015 not by W2's," and that the tax forms specifically identify him "as a d/b/a subcontractor only, not a person." Michaelski also argues that "Exhibit B," which she attached to her sur-reply and filed in the trial court, shows that Fryday was not an employee of the City. According to Michaelski, "Exhibit B" shows that Fryday "identifies his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial Court in Galveston." "Exhibit B" appears to be a one-page excerpt of an unidentified person's testimony.

Fryday contends that the evidence he presented is uncontroverted because any evidence Michaelski points to "should not be considered by [t]his cou[r]t and is wholly insufficient." In that regard, Fryday first complains that he was never served with or ever saw Michaelski's "Exhibit A" during the trial court proceedings because Michaelski did not attach "Exhibit A" to her sur-reply or file it in the trial court. Fryday argues that there is no record of "Exhibit A" being filed during the trial court proceedings; he contends "Exhibit A" is "not listed as a filing in the trial court proceeding on the Harris County District Clerk's website," and that "neither party requested this Exhibit A when the parties designated the record on appeal." Fryday therefore asserts that this court cannot consider Michaelski's "Exhibit A."

Michaelski does not join issue on Fryday's contentions that she never served him with her "Exhibit A," never attached it to her sur-reply, and never filed it during the trial court proceedings. She makes the following statement in the summary of the argument section of her brief: "The Defendant did receive the Attachment A the 1099's of the d/b/a payments made by the City of Clear Lake Shores to the d/b/a to the Plaintiff's Sur Reply electronically through the e-file system used by the district court clerk as they are a named contact for e service." This statement does not address Fryday's contention that "Exhibit A" was not attached to her sur-reply.

On February 8, 2017, Michaelski filed a letter addressed to the Harris County District Clerk stating in pertinent part as follows:
Re: The Plaintiff Lynda Michaelski v. Jack Fryday, d/b/a Fryday Consulting Services, Inc., request for clerk record documents to be sent to the 14th Court of Appeals. District Court Cause No. 2016-18523 [i]n the 125th District Court, Harris County, Texas.
Dear Court Clerk:
At this time, the Plaintiff files its exhibit A to the Plaintiff's Sur-Reply to the Defendant[`]s Motion to dismiss docket number 70836691; exhibit A is referred to in the Plaintiff's Sur-Reply but inadvertently not filed prior to this date.
Again, thank you in advance.
And on February 9, 2017, Michaelski filed a letter addressed to Harris County District Court Clerk Khiela Jackson, stating in pertinent part:
Re: The Plaintiff Lynda Michaelski v. Jack Fryday, d/b/a Fryday Consulting Services, Inc., request for clerk record documents to be sent to the 14th Court of Appeals. District Court Cause No. 2016-18523 [i]n the 125th District Court, Harris County, Texas.
Dear Ms. Jackson:
At this time[,] the Plaintiff requests that the following documents be supplemented in the clerk's record for the above listed appeal. Thanks in advance for your professional courtesies.
1. Clerk letter record number 73777674 dated the 8th of February, 2017; and,
2. Exhibit A record number 73777675 dated the 8th of February, 2017.
Again, thank you in advance.
Michaelski's February 8, 2017 letter confirms that she did not file "Exhibit A" in the trial court until February 8, 2017 — approximately seven months after she filed the sur-reply and three months after the trial court signed its order denying dismissal. Therefore, based on Michaelski's statement, "Exhibit A" was not before the trial court when it ruled on Fryday's motion to dismiss. We do not consider evidence that was not before the trial court at the time it made its ruling in the case. See Austin Reg'l Clinic, P.A. v. Power, No. 03-11-00601-CV, 2012 WL 2476785, at *1 n.1 (Tex. App.-Austin June 28, 2012, no pet.) (mem. op.); Neely v. Comm'n for Lawyer Discipline, 302 S.W.3d 331, 347 n.16 (Tex. App.-Houston [14th Dist.] 2009, pet. denied)

Accordingly, we cannot consider "Exhibit A" filed on February 8, 2017, because it was not before the trial court when it signed its order denying Fryday's motion to dismiss; we consider only Fryday's declaration and Michaelski's Exhibit B which was attached to her sur-reply as evidence in this case. Contrary to Michaelski's assertion, Exhibit B does not constitute evidence defeating Fryday's claim to status as a City employee. Exhibit B is a copy of a one-page excerpt of what appears to be an unidentified person's testimony in an unidentified proceeding:
Q. I guess before Ike, the hurricanes we remember are Katrina and Rita. And you were working on those storms?
A. Yes, sir.
Q. And then — so, then you took a job with the City of Kemah. Had you ever worked for the City of Kemah before that time?
A. No, sir.
Q. And that was a full-time paying job?
A. No, sir.
Q. It was a part-time job?
A. Yes, sir.
Q. Was it paying?
A. Yeah, I didn't do it free.
Q. Okay. Well, you know these public elected officials like the Mayor and City Council, they don't get paid, right?
A. I understand that. I have been that, too.
Q. Right. You have been what?
A. I have been Mayor.
Q. Of what?
A. Of Shore Acres and then Seabrook.
Q. Okay. And then, so, you're very familiar with the local area and local politics?
A. Yes, sir.
Q. Okay. And you knew Ben Blackidge (phn) I bet?
Michaelski contends that this excerpt shows that Fryday "identifies his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial Court in Galveston." It does not. This excerpt does not reveal (1) the identity of the testifying witness; (2) the proceeding in which the witness testified; (3) what work the witness performed; and (4) that the witness was not employed by the City of Clear Lake Shores. At most, the excerpt shows that the testifying witness at some point in time "took a job with the City of Kemah" on a part-time basis and was paid for the work performed. The excerpt does not mention Fryday or the City of Clear Lakes Shores. Thus, Exhibit B constitutes no evidence with respect to Fryday's status as a City employee when he inspected Michaelski's rental home.
The only evidence of Fryday's employment status is Fryday's declaration. We already have concluded that Fryday's declaration establishes that he was an employee of the City as defined by the Texas Tort Claims Act.

The trial court erred by denying Fryday's motion to dismiss under section 101.106(f). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

CONCLUSION

We reverse the trial court's order denying Fryday's motion to dismiss and render judgment dismissing Michaelski's suit against Fryday.

DISSENTING OPINION

MARTHA HILL JAMISON, Justice.

I disagree that Fryday conclusively established that the trial court lacked subject matter jurisdiction over Michaelski's claims and, therefore, that the trial judge erred in denying Fryday's motion to dismiss. Because the majority holds otherwise, I respectfully dissent.