Opinion
No. 14-10-01216-CV
Opinion filed July 7, 2011.
On Appeal from the 270th District Court Harris County, Texas, Trial Court Cause No. 2009-68806.
Panel consists of Chief Justice HEDGES, Justices SEYMORE and BOYCE.
OPINION
In this case brought under the Texas Tort Claims Act ("TTCA"), the appellants challenge the trial court's order granting the City of Houston's plea to the jurisdiction. Because we conclude that the City of Houston (the "city") has consented to suit, we reverse and remand.
See Tex. Civ. Prac. Rem. Code Ann. § 101.002 (West 2011).
BACKGROUND
Jane Uche Amadi, Constance Nnadi, and World Anointing Center Ministries, Inc. (collectively, "Amadi") sued both the city and its employee, Jermaine T. Owens. Amadi alleged that Owens' negligent operation of a vehicle owned by the city, which caused a collision with Amadi's vehicle, resulting in personal injury and property damage. Amadi alleged that the city was liable under the theory of respondeat superior. Owens, who was not served with citation, did not answer. Amadi later non-suited Owens pursuant to a Rule 11 agreement with the city.
The parties neither dispute that Owens was acting within the course and scope of his employment with the city, nor that, under the TTCA, the Legislature has waived governmental immunity to suit and liability arising from the negligent use of a motor-driven vehicle by a governmental unit employee. See id. § 101.021.
The city filed a plea to the trial court's jurisdiction, which it subsequently amended, contending all of Amadi's tort claims were barred by subsection 101.106(b) of the TTCA because she included Owens in her original petition. That section provides that the "filing of a suit against any employee of a governmental unit . . . 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." The trial court granted the city's amended plea, and Amadi timely filed this appeal.
Id. § 101.106(b).
ANALYSIS
A. Standard of Review
In four issues, Amadi challenges the trial court's order granting Houston's plea to the jurisdiction. Because Amadi's first issue is dispositive, we focus our analysis on that issue: "Did the Trial Court err in granting the City of Houston's plea to jurisdiction based upon the election of remedies provision contained in Tex. Civ. Prac. Rem. Code Ann. 101.106[?]" A plea to the jurisdiction based on sovereign or governmental immunity challenges a trial court's jurisdiction. See Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). We review such a plea to the jurisdiction de novo. See id.
Sovereign immunity protects the State and State agencies and their officers. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Governmental immunity, on the other hand, protects subdivisions of the State, including municipalities like the city. Id. Both types of immunity afford the same degree of protection, and both levels of government are subject to the TTCA. Tex. Civ. Prac. Rem. Code Ann. §§ 101.001(3), 101.021, 101.025; Sykes, 136 S.W.3d at 638.
Our determination of this case involves issues of statutory construction. Our primary goal in construing a statute is to determine and give effect to legislative intent. Grimes Cnty. Bail Bond Bd. v. Ellen, 267 S.W.3d 310, 316 (Tex. App. — Houston [14th Dist.] 2008, pet. denied) ( citing In re Canales, 52 S.W.3d 698, 702 (Tex. 2001) (orig. proceeding)). We need not resort to rules of construction when a statute is clear and unambiguous. Id. We may consider, among other things, the objective of the statute and the consequences of a particular construction. Id. We must read the statute in its entirety and interpret it to effectuate each part. Id. (citing City of Houston v. Jackson, 42 S.W.3d 316, 319-20 (Tex. App. — Houston [14th Dist.] 2001, pet. dism'd w.o.j.)).
B. Application
1. Legal Principles Associated with Sovereign Immunity
Sovereign and governmental immunity exist to protect the State and its political subdivisions from lawsuits and liability for money damages because such lawsuits hamper governmental functions by interfering with the appropriate use of tax resources. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) [hereinafter, " Garcia"]. Thus, the State, and likewise its political subdivisions, may be sued only when the Legislature has clearly manifested the State's consent to suit in its legislative enactments. See id. We interpret statutory waivers of immunity narrowly, and the Legislature's intent to waive immunity must be clear and unambiguous. Id. (citing Tex. Gov't Code Ann. § 311.034).
As is relevant here, the TTCA provides a limited waiver of immunity for certain suits against governmental units and also caps recoverable damages. See Tex. Civ. Prac. Rem. Code §§ 101.001-.109. It generally waives governmental immunity to the extent that liability arises from the "use of a motor-driven vehicle or motor-driven equipment" by an employee acting within the course and scope of his employment or from "a condition or use of tangible personal or real property." Id. § 101.021.
2. The TTCA'S Election-of-Remedies Statute
In the past, claimants often chose to sue the employee of a governmental unit, rather than the governmental unit itself, to avoid the TTCA's restrictions. This strategy was sometimes successful because claims against employees were not always subject to the TTCA. See Garcia, 253 S.W.3d at 656. In an effort to prevent this gamesmanship and to protect governmental employees, the Legislature enacted an election-of-remedies provision. Id. As enacted originally, section 101.106, entitled "Employees Not Liable After Settlement or Judgment," stated:
A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305 (current version at Tex. Civ. Prac. Rem Code Ann. § 101.106).
This amendment provided some protection for employees when claims against the governmental unit were reduced to judgment or were settled, but nothing prevented a plaintiff from pursuing alternative theories against both employees and the governmental unit through trial or other final resolution. See Garcia, 253 S.W.3d at 656. The Legislature addressed this issue as part of its tort reform efforts in 2003. See id. at 656-57. The election-of-remedies provision currently provides in pertinent part:
(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.
. . .
(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.
The current enactment of the election-of-remedies provision requires that a plaintiff decide at the time she files suit whether an employee acted independently and is solely liable, or whether the employee acted within the general scope of his or her employment, thereby making the governmental unit vicariously liable for the employee's acts. See Garcia, 253 S.W.3d at 657. In sum,
[u]nder the [TTCA]'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; (2) when suit is filed against both the governmental unit and its employee; 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. When suit is filed against the employee, recovery against the governmental unit regarding the same subject matter is barred unless the governmental unit consents to suit. Because the decision regarding whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.
Id. (citations omitted).
3. The Subsections of the Statute
We have previously analyzed the interplay between subsections (a) and (f). See Hintz v. Lally, 305 S.W.3d 761 (Tex. App. — Houston [14th Dist.] 2009, pet. denied). In that opinion, we stated:
[S]ection 101.106's door swings in just one direction. A plaintiff who makes an "irrevocable election" by suing only the governmental employee nonetheless can be compelled to change targets and sue only the governmental employer instead. A plaintiff who sues both the employee and the employer also can be compelled to dismiss the employee and sue only the employer instead. But once the plaintiff makes an "irrevocable election" by suing only the employer, there is no statutory mechanism to change targets and sue the employee instead. Suing the governmental unit "immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter." This one-way door comports with the legislature's goal to address efforts to circumvent the Tort Claims Act's limits by litigants who sued governmental employees individually instead of their governmental employers.Id. at 769 (citations omitted). In this case, however, we are confronted with the relationship between subsections (b) and (e). Nonetheless, our decision confirms that section 101.106's door swings in just one direction: away from the employee and toward the governmental employer. 4. The City's Plea to the Jurisdiction
See also Univ. of Tex. Health Sci. Ctr. at Houston v. Crowder, ___ S.W.3d ___, No. 14-10-00092-CV, 2011 WL 1413306, at *6 (Tex. App. — Houston [14th Dist.] Apr. 14, 2011, no pet. h.) (citing Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011) for the proposition that "by enacting the current version of section 101.106 in 2003, the Legislature made whatever remedy the [TTCA] provides against the governmental unit a claimant's exclusive remedy for damages allegedly caused by common-law torts committed by a government employee in the scope of her employment").
In its plea to the jurisdiction, the city relies on subsection (b), asserting that Amadi is forever barred from suing or recovering from the city because she simultaneously filed suit against the city and its employee. Amadi responds by arguing that subsection (e), not subsection (b), applies to the situation at bar. But we reach the same conclusion regardless of the route we take. The city has consented to suit in this case, and Amadi's claims against it are not barred by the election-of-remedies statute.
If we were to apply subsection (e) to this case, Owens would have been entitled to dismissal of all of Amadi's claims against him on the filing of a motion to dismiss by the city. Tex. Civ. Prac. Rem. Code Ann. § 101.106(e). The city did not file such a motion, and Owens did not seek his own dismissal under subsection (f). Id. § 101.106(f). Rather, under a Rule 11 agreement, Amadi voluntarily dismissed her claims against Owens. Even though the procedure of subsection (e) was not followed, the result in this case is the same: the only claims remaining in this case are those claims against the city for which it has explicitly consented to be sued. See id. § 101.021; cf. Hintz, 305 S.W.3d at 769 (noting that the "one-way door" that operates to remove a governmental unit employee from a lawsuit properly directed at the governmental unit itself "comports with the legislature's goal to address efforts to circumvent the Tort Claims Act's limits by litigants who sued governmental employees individually instead of their governmental employers").
Further, we agree with the city that subsection (b) operates to bar a plaintiff's recovery against the governmental unit when the plaintiff has elected to sue only a government employee for the same subject matter. See id. § 101.106(b); Garcia, 253 S.W.3d at 659-60. But this bar applies only when the governmental unit has not consented to suit. Tex. Civ. Prac. Rem. Code Ann. § 101.106(b); see also Garcia, 253 S.W.3d at 660 ("Subsection (b) expressly operates to bar suit or recovery against the governmental unit ' unless the governmental unit consents.'" (emphasis added)). And, as mentioned above, the TTCA expressly waives governmental immunity when liability arises from a governmental employee's use of a motor vehicle in the course and scope of his employment. Tex. Civ. Prac. Rem. Code Ann. § 101.021. Thus, properly applying the entirety of subsection(b) to this case, it would not bar Amadi's claims because the city has consented to suit for the tort claims at issue here. Id. § 101.106(b).
5. Garcia Distinguished
The city relies on the following language from Garcia to support its position that the tort claims in this case are barred by subsection (b): "We agree with the ISD 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." Garcia, 253 S.W.3d at 659 (first emphasis ours). But subsection (b), by its plain language, applies only when the governmental unit has not consented to suit. Tex. Civ. Prac. Rem. Code Ann. § 101.106(b); Garcia, 253 S.W.3d at at 660. Thus, in Garcia, subsection (b) operated to bar those claims for which the governmental unit had not consented to suit, i.e. all of Garcia's tort claims. Garcia, 253 S.W.3d at 660. Importantly, none of Garcia's tort claims were subject to the waiver of governmental immunity enacted by the Legislature in the TTCA: she sued the governmental unit and employee for intentional infliction of emotional distress, and the governmental employee for defamation, negligent misrepresentation, and fraud. See id. at 655. Because the tort claims brought by Garcia were not subject to a waiver of governmental immunity, the only claim surviving subsection (b)'s application was the Texas Commission on Human Rights Act claim, because that act "clearly and unambiguously waived immunity[.]" Id. at 659-60.
In Garcia, the name "Garcia" actually refers to three school district employees who filed identical suits that were consolidated on appeal. 253 S.W.3d at 654.
Again relying on Garcia, the city argues that the State must waive immunity from suit through another statute, rather than the TTCA. But as discussed above, we do not read Garcia to require that a waiver of immunity arise from a different statutory scheme. Id. at 659-61. Indeed, as emphasized supra, the tort claims in Garcia that were barred were not those for which the TTCA provides an express waiver of immunity. Id. at 655 (stating that the plaintiffs filed lawsuits against the district and the district superintendent for intentional infliction of emotional distress, and against the superintendent for defamation, fraud, and negligent misrepresentation).
Finally, we must disagree with our sister court's interpretation and application of Garcia in its recent opinion, City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 2341250, at *1 (Tex. App. — Houston [1st Dist.] June 9, 2011, no pet. h.) (mem. op.). In Esparza, the First Court of Appeals determined, based on nearly identical facts presented in this case, that the city's plea to the jurisdiction was wrongly denied. Id. The First Court, relying on Garcia, concluded that subsection (b) operated to bar "all suits against the government, whether brought in tort or otherwise[.]" Id. at *3. Citing Garcia, the court further determined that, if subsection (e) applied, it would reach the same conclusion. Id. at *4.
Respectfully, our sister court did not consider the dispositive distinctions between the facts in Garcia, Esparza, and this case. As emphasized supra, in Garcia, the tort claims Garcia brought were ones not subject to the waiver of immunity in the TTCA. Garcia, 253 S.W.3d at 657 (stating that claims against employee included intentional infliction of emotional distress, defamation, negligent misrepresentation, and fraud, while claims against governmental unit included intentional infliction of emotional distress and a claim under the Texas Commission on Human Rights Act). We conclude that this significant difference between the claims in Garcia and the claims presented here compels a different resolution than that reached by our sister court.
CONCLUSION
The government has explicitly consented to suit through the TTCA to the extent that liability arises from the "use of a motor-driven vehicle or motor-driven equipment." Tex. Civ. Prac. Rem. Code Ann. § 101.021. Thus, the plain language of subsection 101.106(b) provides that simultaneous filing of this suit against the city and its employee does not constitute a bar to Amadi's suit against the city because the city has consented to suit under the facts alleged in this case. Id. § 101.106(b). Accordingly, the trial court's order granting its plea to the jurisdiction was improper. We sustain Amadi's first issue, and reverse and remand to the trial court for proceedings consistent with this opinion.