The City of Houston v. Guzman

More of the same: City of Houston insists on going forward with appeals on immunity issue it has already lost on in several prior cases. Here is the first of two more such tort claims cases decided by the First Court of Appeals on the last day of May:

   

The City of Houston v. Guzman 

NO. 01-11-00234-CV (Tex.App.- Houston May 31, 2012)

(denial of city's plea to the jurisdiction affirmed)

   

MEMORANDUM OPINION

 

The City of Houston brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction on the negligence claims of appellee, Enrique Guzman.[1]  In its sole issue, the City contends that because Guzman chose to file suit against both the City and its employee, Brent Foltz, regarding the same subject matter, Guzman’s claims against the City were barred by section 101.106(b) of the Texas Tort Claims Act.[2]  We affirm.

Background

Guzman filed suit against both the City and Foltz, alleging personal injuries when the Houston Police Department patrol car driven by Sgt. Foltz ran into his vehicle.  According to Guzman, Foltz, who was driving the wrong way down a one‑way street at 1:30 a.m., ran a red light and struck a citizen’s vehicle.  His patrol car then rebounded from that collision and smashed into Harris County Deputy Sheriff Guzman’s vehicle as it was stopped at a red light.  Guzman asserts that Foltz was in the course and scope of his City employment and, as such, the City is liable under the doctrines of negligent entrustment, negligent hiring, failure to properly train, failure to properly supervise, and respondeat superior.  Foltz, who was never served and never appeared in this case, was later removed as a defendant by Guzman. 

Guzman’s employer, Harris County, filed an original petition in intervention for subrogated interests, seeking to collect for the benefits it had provided Guzman and expenses it had incurred as a self-insured worker’s compensation provider and any related damages to which Guzman was entitled to under the law, plus any property damage losses or loss of revenue sustained by the County.  Guzman subsequently filed his second amended petition, naming only the City as a defendant.

The City’s subsequent plea to the jurisdiction contended that, because Guzman initially filed suit against Foltz for damages arising from the same subject matter as his claims against the City, all his tort claims against the City were barred by section 101.106(b) of the Tort Claims Act.

The trial court denied the City’s plea to the jurisdiction, and this interlocutory appeal followed.

Discussion
   

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  The existence of subject-matter jurisdiction is a question of law that we review de novo.  State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681.  We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681.

Whether a governmental entity is immune from suit is a question of subject‑matter jurisdiction.  Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).  Determination of that issue here turns on construction of the Tort Claims Act’s election-of-remedies provision.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent.  Gonzalez, 82 S.W.3d at 327.  “[W]e ‘read the statute as a whole and interpret it to give effect to every part.’”  Id. (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)).  With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous.  Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (West Supp. 2011)).

Analysis

Relying on Garcia, the City argues that the election-of-remedies provision requires Guzman to sue either the City or its employee, and a claimant who sues both loses the opportunity to sue the City under section 101.106(b).  See Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  Guzman responds arguing, inter alia, that section (b) is inapplicable to his suit.

During the pendency of this appeal, this Court has recently considered—and rejected—the same arguments advanced by the City in City of Houston v. Esparza.  No. 01–11–00046–CV, 2011 WL 4925990, at *4 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (rejecting City’s contention that § 101.106(b) bars suit against governmental unit when suit originally filed against both governmental unit and employee); see also Tex. Dep’t of Aging and Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial court did not err in denying plea to jurisdiction).  As such, this Court’s jurisprudence dictates our holding that the trial court properly denied the City’s plea to the jurisdiction with respect to Guzman’s claims and, because the County’s claims are derivative of Guzman’s claims, properly denied the City’s plea to the jurisdiction with respect to those claims as well.  See generally City of Hous. v. Twin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) (holding employee’s failure to comply with notice requirement barred his claim against city, as well as insurer’s subrogation suit, which was derivative of employee’s and dependent upon employee’s recovery).

We overrule the City’s sole issue.

Conclusion

We affirm the order of the trial court.

                                                                      Jim Sharp

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

--------------------------------------------------------------------------------

[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2011) (permitting interlocutory appeals from court order that grants or denies plea to jurisdiction by governmental unit).

[2]         See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011).   
  

Another appeal in City of Houston car wreck litigation

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 [1st Dist.] 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 of Houston car wreck litigation - Another unnecessary appeal from a PI suit under the Tort Claims Act

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.

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FOOTNOTES:

City of Houston's jurisdictional plea properly denied in tort case, First Court of Appeals says, in opinion by its newest member

Election of remedies provision did not provide basis for dismissal of claims against the City of Houston in addition to dismissal of claims against its employee who drove the vehicle involved in the crash that was the cause of the plaintiff's injuries and basis for tort claim. Opinion, by Justice Huddle, cites the Court's recent decision in City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.)(“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(e)”). 

City Hall - City of Houston

City of Houston v. John McClain and Carita Douvio 

(Tex.App- Houston [1st Dist.] Dec. 1, 2011, no pet. h.)

MEMORANDUM OPINION

After a car accident, John McClain[1] sued the City of Houston and its employee, Larry Horton, alleging negligence on the part of Horton as the cause of the accident.  The trial court granted the City’s motion to dismiss Horton under the Texas Tort Claims Act’s election-of-remedies provision.  The City then filed a plea to the jurisdiction, claiming that McClain’s filing suit against Horton perfected the City’s statutory immunity from suit.  The trial court denied the City’s plea to the jurisdiction, and the City brought this interlocutory appeal.[2]  We conclude that the trial court properly denied the City’s plea to the jurisdiction.  We affirm.

Background

         

McClain sued the City and its employee, Horton, alleging that Horton negligently operated a motor vehicle, causing a collision involving McClain.  The City moved to dismiss McClain’s claims against Horton under section 101.106(e) of the Act.  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (West 2011).  That provision states:

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.

Id.  The trial court granted the City’s motion to dismiss Horton from the suit.  The City later filed a plea to the jurisdiction, asserting that section 101.106(b) of the Act bars McClain’s claims against the City.  That provision states:

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 government unit consents.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b) (West 2011).  The trial court denied the City’s plea to the jurisdiction.  In its single issue, the City contends that the trial court erred in denying its plea to the jurisdiction.  Specifically, the City asserts that because McClain filed suit against the City and Horton, McClain perfected the City’s section 101.106(b) immunity and McClain is forever barred from pursuing his claims against the City.

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Whether a governmental entity is immune from suit is a question of subject matter jurisdiction.  Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).  The existence of subject-matter jurisdiction is a question of law that we review de novo.  State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681.  We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681.  In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.  Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Kamel, 333 S.W.3d at 681.

Section 101.106 of the Texas Tort Claims Act

A.   The Parties’ Contentions

Citing Mission Consolidated Independent School District v. Garcia, 253 S.W.3d 653 (Tex. 2008) and Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), the City contends that because McClain sued both Horton and the City, McClain lost the opportunity to sue either.  The City asserts that Horton was properly dismissed under section 101.106(e) of the Act, and, because McClain initially sued both Horton and the City, the City is immune from suit under section 101.106(b).  The City asserts that the necessary consent to suit described in section 101.106(b) cannot be found within section 101.021 of the Act, which waives immunity for claims arising from the alleged negligence of a government employee in operating a motor vehicle, because, according to the City, where section 101.106(b) applies, it “operates to trump” the limited waiver of immunity in section 101.021.  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

McClain disagrees.  He contends that because Horton was operating a motor vehicle in the course and scope of his employment at the time of the accident, section 101.021’s waiver of immunity for claims arising from negligence of operating a motor vehicle constitutes the consent described in section 101.106(b).  See id.  Thus, according to McClain, section 101.106(b) does not operate to bar his suit against the City.

B. City of Houston v. Esparza

         

This court recently construed section 101.106 of the Texas Tort Claims Act in a case with facts similar to this case.  City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, no pet. h.).  In that case, the plaintiff, Esparza, filed suit against both the City of Houston and its employee, claiming that the employee was negligent in causing a car accident.  Id. at *1.  The City moved to dismiss the employee under section 101.106(e).  Id.  It also filed a plea to the jurisdiction asserting that Esparza’s claims against the City were barred by section 101.106(b) of the Act.  Id.  The trial court granted the motion to dismiss the employee but denied the City’s plea to the jurisdiction.  Id.

On rehearing, this Court affirmed the judgment of the trial court. We rejected the City’s contention that subsections (b) and (e) apply without reference to each other when a claimant sues both the government and its employee together, thus requiring dismissal of both defendants.  Id. at *6.  We concluded, instead, that when a claimant fails to elect between defendants and instead sues both the government unit and its employee, subsection (e) forces an election upon the claimant: the governmental unit is the proper defendant and the employee must be dismissed.  See Esparza, 2011 WL 4935990, at *10 (“By operation of subsection (e), Esparza’s filing of suit and the City’s motion to dismiss [the employee] resulted in a forced election: whether she intended to or not, Esparza elected to pursue her claims against the City rather than [the employee].”).

With regard to what constitutes “consent” under section 101.106(b), we held “a claimant may find ‘consent’ to suit within the Act’s limited waivers of immunity only if the claimant has satisfied the Act’s other jurisdictional requirements, including those set forth in the election-of-remedies provision.”   Id. A claimant satisfies section 101.106 by electing—voluntarily or involuntarily—whether he will prosecute his claims against a governmental unit or its employee, forever forgoing prosecution against the other.  Id.

C.   Application of Section 101.106 to McClain’s Claims

Following Esparza, we reject the City’s contention that subsections (b) and (e) apply without reference to each other.  Under section 101.106, McClain’s filing of suit against both Horton and the City invoked subsection (e).  See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e).  By operation of subsection (e), McClain’s filing of suit and the City’s motion to dismiss Horton resulted in a forced election: whether he intended to or not, McClain elected to pursue his claims against the City rather than Horton.  Id.; see Esparza, 2011 WL 4925990, at *10; see also Garcia, 253 S.W.3d at 657 (“recovery against an individual employee is barred and may be sought against the governmental unit only . . . when suit is filed against both the governmental unit and its employee, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(e)”).  Thus, McClain satisfied the Act’s election-of-remedies provision.

We also reject the City’s contention that the limited waiver of immunity in section 101.021 cannot constitute “consent” to suit in cases in which section 101.106(b) applies.  See Esparza, 2011 WL 4935990, at *10 (concluding that  claimant may find “consent” to suit within the Texas Tort Claims Act limited waivers of immunity if he has satisfied the Act’s other jurisdictional requirements).   But we do not go so far as to adopt McClain’s contention that the limited waiver of immunity found in section 101.021, alone, is sufficient to find the City consented to suit within the meaning of section 101.106(b).  See id. at *7–8.  Rather, we conclude that the limited waiver of immunity found in section 101.021 may constitute the “consent” required by section 101.106(b), and section 101.106(b) therefore does not bar McClain from pursuing his claims against the City, his elected defendant, if he has satisfied the Act’s other jurisdictional requirements.[3]  See Esparza, 2011 WL 4925990, at *10; See TEX. CIV. PRAC. & REM. CODE ANN.  § 101.106(b), (e).

Conclusion

We hold that the trial court properly denied the City’s plea to the jurisdiction under section 101.106(b) of the Texas Tort Claims Act.  We therefore affirm the trial court’s order.

                                                                   Rebeca Huddle

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

[1]           Carita Douvio was also a plaintiff when this suit was initially filed.  Because she

was dismissed from the suit for failure to respond to discovery and is not a party to

this appeal, we will address only McClain’s claims.  

[2]           TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (authorizing interlocutory appeal from denial of governmental unit’s plea to jurisdiction).

[3]           The City does not challenge McClain’s compliance with any of the Texas Tort Claim Act’s jurisdictional requirements other than the election-of-remedies provision.