The City of Houston v. Lackey, NO. 01-11-00248-CV (Tex.App. –
Houston [1st Dist.] May 31, 2012) (City’s jurisdictional defense in
suit brought under the Texas Tort Claims Act rejected; trial court’s denial of
city’s plea to the jurisdiction affirmed)
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| City of Houston - City Hall |
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, Rachel Lackey. [1] In its sole issue, the City contends that,
because Lackey chose to file suit against both the City and its employee, Will
Reynolds, regarding the same subject matter, Lackey’s claims against the City
are barred by section 101.106(b) of the Texas Tort Claims Act.[2] We affirm.
Background
Lackey filed suit against both the
City and Reynolds, alleging personal injuries sustained when the City vehicle
operated by Reynolds backed into her vehicle as a result of Reynolds’
negligence while in the course and scope of his employment with the City and,
as such, the City is liable under the doctrines of negligent entrustment and
respondeat superior.
The City filed a general denial and
asserted governmental immunity. The City
further asserted that it could not be held vicariously liable for acts of its
agents and employees who are entitled to official immunity. Reynolds filed a separate answer in which he
generally denied Lackey’s allegations and claimed both governmental and
official immunity.
Pursuant to the Texas Tort Claims
Act,[3] the City subsequently moved to dismiss all of Lackey’s claims against
Reynolds. Lackey’s motion to “non-suit”
her claims against Reynolds were granted.[4]
Thereafter, the City filed a plea to the jurisdiction, contending that
because Lackey sued Reynolds, she had made an irrevocable election to proceed
against Reynolds under section 101.106(b) of the Act’s election-of-remedies
provision and was immediately and forever barred from any suit or recovery
against the City regarding the same subject matter.[5] 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 Act’s election-of-remedies
provision. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.106 (West 2011). 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 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 Lackey 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), or, in the City’s words, because Lackey “chose
to file suit against [the City’s] employee, Reynolds, regarding the same
subject matter, all her tort claims against [the City] were dead on arrival the
moment suit was filed.” See Garcia, 253
S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106. Lackey responds arguing, inter alia, that
section (b) is inapplicable to her suit.
During the pendency of this appeal,
this Court has recently considered—and rejected—the same arguments urged 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
[1 Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial
court did not err in denying plea to jurisdiction). Thus, we hold that the trial court properly
denied the City’s plea to the jurisdiction and 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.
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[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).
[3] See Tex. Civ. Prac. & Rem. Code
Ann. § 101.106(e) (West 2011).
[4] Although characterized as a
“non-suit,” this was technically a voluntary partial dismissal of claims. See C/S Solutions, Inc. v. Energy Maint. Servs.
Grp. LLC, 274 S.W.3d 299, 306–07 (Tex. App.—Houston [1st Dist.] 2008, no
pet.). Presumably because it granted
Lackey’s “non-suit,” the trial court never ruled on the City’s section
101.106(e) motion.
[5] See Tex. Civ. Prac. & Rem. Code
Ann. § 101.106(b).
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