Since it offers a
nice compilation of the prior decisions on the same issue -- the city's effort to get immunity both for itself and its employee -- first the
concurring opinion by Justice Brown:
City of Houston v. Vellejo
(Tex.App.- Houston [1st Dist.] May 22, 2012)
CONCURRING OPINION
This Court has already decided the issue presented in this
case: whether the Tort Claims Act’s election-of-remedies provision bars a
plaintiff’s tort claims against a governmental unit when the plaintiff
initially sued both the governmental unit and its employee. See City of Houston
v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *5–10(Tex. App.—Houston
[1stDist.] Oct. 7, 2011, pet. filed).[1] I would follow this Court’s controlling
precedent and affirm the trial court’s denial of the city’s plea to the
jurisdiction.
I therefore concur in the Court’s opinion.
Harvey Brown
Justice
FOOTNOTE: Since its issuance, this Court has consistently followed Esparza.See, e.g.,City of Houston v. Gwinn, No. 01-11-00524-CV, 2012 WL 1068591, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no. pet. h.) (mem. op.) (following Esparza); Metro. Transit Auth. v. Light, No. 01-11-00747-CV, 2012 WL 252187, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.) (same); City of Houston v. Tsaig, No. 01-11-00432-CV, 2012 WL 170606, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.) (same); Tex. Dep’t of Aging & Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (same); City of Houston v. Marquez, No. 01-11-00493-CV, 2011 WL 6147772, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.)(mem. op.) (same); City of Houston v. McClain, No. 01-11-00194-CV, 2011 WL 6015697, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.) (same); City of Houston v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no. pet. h.) (mem. op.) (same). Several other courts of appeals have also followed Esparza. See, e.g., Tex. Tech Univ. Health Scis. Ctr. v. Villagran, No. 07-11-0257-CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no. pet. h.); Tex. Dep’t of Pub. Safety, No. 04-11-00271-CV, 2012 WL 726916, at *4–7 (Tex. App.—San Antonio March 7, 2012, no pet. h.).
SOURCE: HOUSTON COURT OF APPELAS – FIRST DISTRICT - 01-11-00133-CV
– 5/22/12
CASE STYLE: The City of Houston v. Blanca A. Vellejo and
Anjel Flores
 |
| City Hall |
PANEL OPINION BY JUSTICE JENNINGS
In this interlocutory appeal,[1] appellant, the City of Houston (the
“City”), challenges the trial court’s order denying its plea to the
jurisdiction on the tort claims made against it by appellees, Blanca Vallejo
and Anjel Flores (collectively, “Vallejo”). In its sole issue, the City
contends that the trial court erred in denying its plea to the jurisdiction in
which the City asserted that, by filing suit against both it and its employee
regarding the same subject matter, Vallejois “immediately and forever barred
from any suit or recovery against [the City] regarding the same subject
matter.”[2]
We affirm.
Background
In her original petition,
Vallejo alleges that she sustained personal injuries when the car in which she
was traveling was struck by another car owned by the City and driven by Joshua
Anderson, a City employee. Vallejo
further alleges that Anderson was operating the car in a negligent manner by
failing to keep a proper lookout, driving at an excessive rate of speed, and
failing to timely brake. Vallejo asserts
that Anderson is an agent or employee of the City and, as such, the City is
liable under the doctrine of respondeat superior. Vallejo further asserts that
the City negligently entrusted the car to Anderson and that the City’s car experienced
“brake failure” at the time of the accident.
In its answer, the City generally denies Vallejo’s allegations and asserts
that it is entitled to governmental immunity from Vallejo’s claims under the
Texas Tort Claims Act.[3]In his separate answer, Anderson also generally denies
Vallejo’s allegations and invokes the “exceptions from and limitations on
liability” set forth in the Tort Claims Act. Vallejo subsequently non-suited her
claims against Anderson, and the trial court signed an Order on Partial
Non-Suit, dismissing without prejudice Vallejo’s claims against Anderson.
Shortly thereafter, the City filed its plea to the jurisdiction,
arguing that because Vallejo had simultaneously brought suit against both it
and Anderson, Vallejois“ immediately and forever barred from any suit or
recovery against [the City] regarding the same subject-matter.”[4] The City
also contends that even though Vallejo non-suited her claims against Anderson,
any suit against him is “forever bar[red].”[5]
The trial court denied the City’s plea.
Standard of Review
We review de novo a trial court’s ruling on a jurisdictional plea. See Kalyanaram v. Univ. of Tex. Sys., 230
S.W.3d 921, 927 (Tex. 2007). When reviewing a trial court’s ruling on a
challenge to its jurisdiction, we consider the plaintiff’s pleadings and factual
assertions, as well as any evidence in the record that is relevant to the
jurisdictional issue. City of Elsa v.
Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). We construe pleadings liberally in
favor of the plaintiffs, look to the pleader’s intent, and determine whether
the pleader has alleged facts affirmatively demonstrating the court’s
jurisdiction. Id. Allegations found in pleadings may
affirmatively demonstrate or negate the court’s jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622
(Tex. 2009).
We review the trial court’s interpretation of a statute de novo.
Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.
2009). In construing statutes, our
primary objective is to give effect to the legislature’s intent as expressed in
the language of the statute. Id.; see
also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005) (“In interpreting a statute,
a court shall diligently attempt to ascertain legislative intent and shall
consider at all times the old law, the evil, and the remedy.”). If the words of a statute are clear and
unambiguous, we apply them according to their plain and common
meaning.[6]Galbraith Eng’g Consultants, Inc., 290 S.W.3d at 867; City of
Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008).
Election of Remedies
In its sole issue, the City argues that the trial court erred in
denying its plea to the jurisdiction because, by filing suit against both it
and its employee regarding the same subject matter, Vallejo is “immediately and
forever barred from any suit or recovery against [the City] regarding the same
subject matter.”SeeTex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (Vernon
2011).
Governmental immunity exists to protect subdivisions of the State,
including municipalities like the City, from lawsuits and liability for money
damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 &
n.2 (Tex. 2008). We interpret statutory
waivers of governmental immunity narrowly, as the legislature’s intent to waive
immunity must be clear and unambiguous.
Id.; seeTex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2011).
The Texas Tort Claims Act provides a limited waiver of governmental
immunity for certain suits against governmental entities. SeeTex. Civ. Prac. & Rem. Code §§
101.021, 101.023, 101.025 (Vernon 2011).
And it generally waives governmental immunity to the extent that
liability arises from the “use of a motor-driven vehicle or motor-driven
equipment” or from “a condition or use of tangible personal or real
property.” Id. § 101.021.
The City does not dispute that section 101.021 generally waives its
immunity for negligence claims like those brought by Vallejo for damages
resulting from a car collision allegedly caused by a City employee. Rather, the City argues that a plaintiff like
Vallejo who simultaneously pleads claims against both the City and its employee
regarding the same subject matter is barred from obtaining relief against
either the City or its employee.
Section 101.106, entitled “Election of Remedies,” provides, in full,
(a) The filing of a suit
under this chapter against a governmental unit constitutes an irrevocable
election by the plaintiff and immediately and forever bars any suit or recovery
by the plaintiff against any individual employee of the governmental unit
regarding the same subject matter.
(b) The filing of a suit
against any employee of a governmental unit constitutes an irrevocable election
by the plaintiff and immediately and forever bars any suit or recovery by the
plaintiff against the governmental unit regarding the same subject matter
unless the governmental unit consents.
(c) The settlement of a
claim arising under this chapter shall immediately and forever bar the claimant
from any suit against or recovery from any employee of the same governmental
unit regarding the same subject matter.
(d) A judgment against an
employee of a governmental unit shall immediately and forever bar the party
obtaining the judgment from any suit against or recovery from the governmental
unit.
(e) If a suit is filed under
this chapter against both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing of a motion by the
governmental unit.
(f) 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
this chapter 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 (emphasis added).
The City’s argument concerning the operation of the
election-of-remedies provision is based upon language contained in the Texas
Supreme Court’s opinion in Mission Consolidated Independent School District v.
Garcia, wherein the court sought to “determine the scope of the Tort Claims
Act’s election-of-remedies provision.”[7]
253 S.W.3d 653, 655 (Tex. 2008).
In Garcia, three school-district employees whose employment was
terminated by the district sued for violations of the Texas Commission on Human
Rights Act (“TCHRA”)[8] and for common-law intentional infliction of emotional
distress. Id. at 654–55. The employees also sued the superintendent of
the district for common-law claims of defamation, fraud, and negligent
misrepresentation. Id. The district, citing section 101.106(b),
filed a plea to the jurisdiction, arguing that the employees’ decision to sue
both the district and its superintendent barred recovery against the
district. Id. at 655. The trial court denied the district’s plea,
and the court of appeals affirmed, reasoning that section 101.106 did not apply
to the employees’ claims. Id. The court of appeals interpreted subsection
(a) of section 101.106 “to only apply when [a] governmental unit alone is sued,
subsection (b) to only apply when the employee alone is sued, and subsection
(e) to apply when both are sued simultaneously.” Id. at 657–58. The court of appeals also interpreted
subsection (e)’s reference to suits “filed under this chapter” to mean that
section 101.106 applied only to suits for which the Tort Claims Act waived
immunity. Id. at 658.
The supreme court “disagree[d] with the court of appeals’ narrow
interpretation,” and it discussed the potential application of both subsections
(b) and (e) to the suit. Id. In regard to subsection (e),[9] the court
concluded that because the Tort Claims Act is the “only, . . . limited[] avenue
for common-law recovery against the government, all tort theories alleged against
a governmental unit, whether it is sued alone or together with its employees,
are assumed to be under the Tort Claims Act for purposes of section
101.106.”[10]Id. at 659 (citation omitted).
The court stated that if the district had filed, pursuant to subsection
(e), a motion to dismiss the claims against the superintendent, he would have
been entitled to dismissal of the employees’ suit against him.[11]Id. The court also stated that “if the [district]
had obtained [the superintendent’s] dismissal from the suit under subsection
(e), all of [the employees’] tort claims against [the district] would [also
have been] barred because . . . all tort theories of recovery alleged against a
governmental unit are presumed to be “under the [Tort Claims Act].”[12]Id.
(citing Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e)). In regard to the employees’ TCHRA claims
against the district, the court explained that these discrimination claims did
not constitute a “suit filed under this chapter” and “would not come within subsection
(e)’s purview because the Tort Claims Act expressly provides that the remedies
it authorizes ‘are in addition to any other legal remedies.’” Id. (citing Tex.
Civ. Prac. & Rem. Code Ann.§ 101.003).
The supreme court then turned to consider subsection (b), which the
district argued operated to bar the employees’ “entire suit,” including the
TCHRA claims, “because [the superintendent] was sued as well, which is all that
subsection (b) requires.” Id. The court agreed that, “to the extent
subsection (b) applies, it bars any suit against the governmental unit
regarding the same subject matter, not just suits for which the Tort Claims Act
waives immunity or those that allege common-law claims.” Id.
The court then noted that, unlike subsections (a), (c), (e), and (f),
subsection (b) does not contain the limiting phrase “under this chapter,” and,
“by subsection (b)’s literal terms, it applies to ‘any suit’ brought against
the governmental unit, provided the other subsection (b) requirements are met.”
Id. at 559–60. Noting that subsection (b) expressly operates
to bar suit or recovery against a governmental unit “unless the governmental
unit consents,” the court concluded that because the legislature consented to
suit under the TCHRA, the TCHRA claims would survive the application of
subsection (b), provided the plaintiff met the procedures outlined in that
statute. Id.
In summarizing its holding concerning the scope of section 101.106, the
supreme court stated,
We hold that the Tort Claims Act’s election-of-remedies provision
applies to bar Garcia’s common-law claims against the ISD, but does not bar her
TCHRA claims.
Id. at 660.
Based upon the above language in Garcia, governmental units, like the
City, have argued that section 101.106 creates a “harsh” fatal-filing rule that
immunizes both the governmental unit and its employee when a plaintiff, who has
an otherwise valid immunity-waived tort claim, files suit against both. Courts of appeals, in addressing these
arguments, have endeavored to interpret the plain language of section 101.106
in a manner that is both consistent with our supreme court’s precedent and does
not lead to absurd results. See City of
Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *5–10 (Tex.
App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed); see alsoAmadi v. City of
Houston, No. 14-10-01216-CV, 2011 WL 5099184, at *4–8 (Tex. App.—Houston [14th
Dist.] Oct. 27, 2011, pet. filed); Barnum v. Ngakoue, No. 03-09-00086-CV, 2011
WL 1642179, at *11 (Tex. App.—Austin Apr. 29, 2011, pet. filed); City of N.
Richland Hills v. Friend, 337 S.W.3d 387, 392–93 (Tex. App.—Fort Worth 2011,
pet. granted).
The City’s argument for a harsh fatal-filing rule is not entirely
without merit considering certain language in the Garcia opinion. However, in addition to the language in
Garcia that favors the City’s argument, which we have detailed above, there is
also language suggesting that the supreme court did not intend to interpret
section 101.106 in such a way as to create a fatal-filing trap that would bar
plaintiffs like Vallejo from court entirely.
For example, in discussing the general purposes of the
election-of-remedies provision, the court stated that the “election scheme is
intended to protect governmental employees by favoring their early dismissal
when a claim regarding the same subject matter is also made against the
governmental employer.” Id. at 657
(emphasis added). More significantly, the
court stated,
Under the Tort Claims Act’s election scheme, recovery against an
individual employee is barred and may be sought against the governmental unit
only in three instances: (1) when suit is filed against the governmental unit
only, id. § 101.106(a); (2) when suit is filed against both the governmental
unit and its employee, id. § 101.106(e); or (3) when suit is filed against an
employee whose conduct was within the scope of his or her employment and the
suit could have been brought against the governmental unit, id. § 101.106(f).
Id. (emphasis added). In this
passage, the court expressly recognized that a plaintiff, like Vallejo, who
simultaneously files suit against a governmental unit and its employee for
common law tort claims for which immunity has been waived under the Tort Claims
Act is not left without any remedy merely as the result of the simultaneous
filing. See id. This is the only reasonable interpretation of
the election-of-remedies provision in the Tort Claims Act because it is
actually in accord with the plain language used by the legislature:
(e) If a suit is filed under
this chapter against both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing of a motion by the
governmental unit.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (emphasis added).
Presented with the conflicting language in Garcia, we follow the
precedent of our Court in Esparza, which is in accord with the plain language
used by the legislature in section 101.106(e).
Accordingly, we hold that subsection (b) does not bar Vallejo from
pursuing her common law tort claims against the City. See id. § 101.106(b), (e);Esparza, 2011 WL
4925990, at *10. We further hold that
the trial court did not err in denying the City’s plea to the jurisdiction.[13]
We overrule the City’s sole issue.
Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Brown, concurring.
--------------------------------------------------------------------------------
FOOTNOTES:
[1] SeeTex. Civ. Prac. & Rem.Code Ann. §
51.014(a)(8) (Vernon Supp. 2011).
[2] Seeid. § 101.106(b)
(Vernon 2011).
[3] Seeid. §§ 101.021,
101.025 (Vernon 2011).
[4] Seeid. §
101.106(b).
[5] The City states
that Vallejo non-suited Anderson in response to its “proposed” motion to
dismiss under section 101.106(e). Seeid.
§ 101.106(e).This motion was apparently never filed and is not included in the
record.
[6] The Texas Supreme
Court has explained that it is inappropriate to resort to rules of construction
or extrinsic aids to construe statutory language that is clear and unambiguous
and we must construe a statute’s words according to their plain and common
meaning unless a contrary intention is apparent from the context or unless such
a construction leads to absurd results.
City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008). It has also noted the presumption in the
Texas Code Construction Act that the legislature intended a just and reasonable
result by enacting a statute. See id.
(citing Tex. Gov’t Code Ann. § 311.021(3) (Vernon 2005)); see also Tex. Gov’t
Code Ann. §311.021(2) (Vernon 2005) (providingpresumption that “entire statute”
is intended to be effective); id. § 311.023 (Vernon 2005) (providing that, in
construing statute, regardless of ambiguity, court may consider, among other
things, “(1) object sought to be attained; (2) circumstances under which the
statute was enacted; (3) legislative history; (4) common law or former
statutory provisions, including laws on the same or similar subjects; (5)
consequences of a particular construction; (6) administrative construction of
the statute; and (7) title (caption), preamble, and emergency provision”).
[7] Before addressing
the facts before it, the court analyzed the history of the election-of-remedies
provision and explained that, in 1985, the legislature enacted the prior
version of the election-of-remedies provision to respond to plaintiffs who were
circumventing the Texas Tort Claims Act’s damages caps “or other strictures”
and to protect government employees.
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655–56
(Tex. 2008). The court noted that in
2003, as part of a comprehensive effort to reform the tort system, the
legislature further amended the provision with the purpose of forcing “a
plaintiff to decide at the outset whether an employee acted independently” or,
instead, “within the general scope of his or her employment such that the
governmental unit is vicariously liable.”
Id. at 656–57. The amendment
compelled a plaintiff to make “an irrevocable election” at the time of filing a
lawsuit so as to “narrow[] the issues for trial and reduce[] delay and
duplicative litigation costs.” Id. at
657.
[8] SeeTex. Lab. Code
Ann. §§ 21.001–21.556 (Vernon 2006).
[9] The supreme court noted that the
court of appeals had held “that only subsection (e) of section 101.106 could
apply” to the employees’ claims since the employees sued the district and the
superintendent together. Garcia, 253
S.W.3d at 658. The court suggested that
the court of appeals erred in concluding that only subsection (e) applies when
a plaintiff sues both a governmental unit and its employee. See id.
[10] This matter is not disputed in the
instant case.
[11] The court acknowledged that the
district had not sought dismissal of the employees’ claims against the
superintendent and he himself had not sought dismissal of the claims made
against him. Garcia, 253 S.W.3d at 659.
[12] The supreme court did not explain why
“all . . . tort claims against [the district] would be barred.” Id. at659.As noted above, it is undisputed
that there was no valid waiver of immunity for any of the employees’ common law
tort claims, but the court suggested that the tort claims against the district
were barred as a result of the operation of section 101.106. Id. at654.
Additionally, and somewhat confusingly, in support of this proposition,
the court cites subsection (e), which only requires the dismissal of claims
against an employee.
[13] We contemporaneously
issue an opinion in another case addressing the application of section 101.106
to a plaintiff who initially sued both the City and its employee for injuries
sustained in a car collision but, unlike here, did not subsequently voluntarily
non-suit the claims against the employee.
See City of Houston v. Rodriguez, No. 01-11-00196-CV (Tex. App.—Houston
[1st Dist.] May 22, 2012, no pet. h.).
In that case, we similarly hold that section 101.106(b) does not require
dismissal of the plaintiff’s immunity-waived tort claims. See id.
Because our holding is based upon our rejection of the City’s argument
that Vallejo committed a fatal filing error by bringing suit against both the
City and the employee, we do not address whether any further material
distinction could be made in the instant case in light of Vallejo’s non-suit of
her claims against the employee.
No comments:
Post a Comment