Crockett County, Texas v. Maria Ricarda Morales Damian, Angelica Galindo, Lidia Dominguez, Carolina Ojeda, Rosario Oviedo, Apolonio Damian, Miguel Angel Damian and Gene Damian ( 2020 )


Menu:
  •                                    COURT OF APPEALS
    EIGHTH DISTRICT OF TEXAS
    EL PASO, TEXAS
    CROCKETT COUNTY TEXAS,                           §
    Appellant,          §
    No. 08-19-00145-CV
    v.                                               §
    Appeal from the
    MARIA RICARDA MORALES                            §
    DAMIAN, ANGELICA GALINDO,                                        112th District Court
    LIDIA DOMINGUEZ, CAROLINA                        §
    OJEDA, ROSARIO OVIEDO,                                        of Crockett County, Texas
    APOLONIO DAMIAN, MIGUEL                          §
    ANGEL DAMIAN, AND GENE                                         (TC# 19-01-07949-CV)
    DAMIAN,                                          §
    Appellees.          §
    OPINION
    This is an interlocutory appeal from the partial denial of a motion to dismiss filed pursuant
    to Section 101.106(e) of the Texas Tort Claims Act in a suit brought against Crockett County and
    its employee, Adam De La Garza, for the wrongful death of Miguel Damian. Because we agree
    the trial court should have granted the motion in its entirety, we reverse and render.
    BACKGROUND
    On March 2, 2017, Miguel Damian died from injuries he sustained at work after he was
    run over by a Caterpillar road maintainer operated by Adam De La Garza, a Crockett County
    employee. According to Appellees, the night before the accident, De La Garza hosted a poker
    party at his home where he consumed a large amount of alcohol and stayed up late. Appellees
    alleged that De La Garza was still intoxicated from the night before and exhausted at the time he
    was operating the vehicle and these factors contributed to Mr. Damian’s death.
    On January 31, 2019, Appellees filed their original petition bringing suit against
    De La Garza, Crockett County, and the Crockett County Road Department for the wrongful death
    of Mr. Damian. The original petition raised only state-law tort claims under the Tort Claims (“the
    Act”). The original petition alleged that the County was vicariously liable for the negligent acts
    committed by De La Garza while in the course and scope of his county employment.
    On February 28, 2019, defendants filed their original answer raising the affirmative defense
    of governmental immunity and pleading “any claims against Adam De La Garza are barred by
    TEX.CIV.PRAC.&REM.CODE § 101.106.” On March 12, 2019, the County filed a motion to
    dismiss pursuant to Section 101.106(e) of the Act, admitting De La Garza was a county employee
    and, as such, the County was entitled to dismissal of all claims against De La Garza because
    Appellees failed to elect between suing the County and its employee before filing suit. On
    March 18, 2019, Appellees filed their first amended petition which added a state common-law
    negligence claim against De La Garza in his individual capacity for acts committed outside the
    course and scope of his county employment, namely, drinking excessively and staying up late the
    night before he was required to report to work early the following day.
    In their written response to the County’s motion to dismiss, and at the hearing, Appellees
    conceded the tort claim brought against De La Garza in his official capacity in the original petition
    required dismissal because it was brought under the Act.          However, Appellees argued the
    subsequent state common-law negligence claim brought against De La Garza in his individual
    2
    capacity did not require dismissal because that claim was based on acts, i.e. excessive drinking
    and staying up late, committed outside the scope of De La Garza’s county employment, and were,
    therefore, not covered by the Act. The court below agreed with Appellees and granted the
    County’s motion only in part. Specifically, the trial court dismissed the tort claims based on acts
    committed within De La Garza’s employment, but denied the motion as to tort claims based on
    acts committed outside the scope of his county employment. This appeal followed.
    DISCUSSION
    Here, the County contends that the trial court erred by refusing to grant the County’s
    101.106(e) motion in its entirety because: (1) it conceded De La Garza was a county employee
    acting in the course and scope of his employment when he accidently ran over Mr. Damian; (2)
    Appellees failed to make an election between suing the County or pursuing claims against
    De La Garza in his individual capacity before filing suit; (3) the County filed a motion seeking
    dismissal of all claims brought against De La Garza pursuant to Section 101.106(e) of the Act; and
    (4) the subsequent state-law tort claim brought against De La Garza in his individual capacity is
    barred by Section 101.106. Appellees, relying on Texas Dep’t of Aging and Disability Services
    v. Cannon, 
    453 S.W.3d 411
    (Tex. 2014), contend their subsequent state-law negligence claim
    against De La Garza in his individual capacity is not barred by Section 101.106 because it is not a
    claim brought under the Act and therefore Section 101.106 is inapplicable.
    I.     Standard of Review
    We review de novo a trial court’s denial of a motion to dismiss brought under Section
    101.106 of the Tort Claims Act. See City of Webster v. Myers, 
    360 S.W.3d 51
    , 56 (Tex.App.—
    Houston [1st Dist.] 2011, pet. denied)(observing that Section 101.106 is a jurisdictional statute
    3
    involving the waiver of immunity, which invokes subject matter jurisdiction, which is a question
    of law reviewed de novo).
    II.    The Texas Tort Claims Act and Section 101.106 Election of Remedies
    “[U]nder the common law, ‘public employees (like agents generally) have always been
    individually liable for their own torts, even when committed in the course of employment,’ and to
    the extent the employee is not entitled to official immunity, the employee’s liability could be
    established in a suit against the employee individually.” Garza v. Harrison, 
    574 S.W.3d 389
    , 399
    (Tex. 2019)(citing Franka v. Velasquez, 
    332 S.W.3d 367
    , 383 (Tex. 2011)). However, this
    common-law tort scheme was changed when the Legislature amended Section 101.106 of the Tort
    Claims Act to require plaintiffs to choose, before filing suit, between suing a governmental entity
    or suing an employee in his individual capacity. 
    Id., (citing Mission
    Consol. Indep. Sch. Dist. v.
    Garcia, 
    253 S.W.3d 653
    , 656 (Tex. 2008)); TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a)-(f).
    Specifically, Section 101.106 now provides in relevant 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
    4
    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(a),(b),(e),(f).
    Consequently, since 2003, in order to proceed against a public employee in his individual
    capacity under a state-law-tort theory, a plaintiff must choose to do so when suit is originally filed,
    TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a)-(f), or risk forever barring that claim if the
    governmental      unit    opts    to   dismiss     its   employee      under     Section    101.106(e).
    TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a),(e); Univ. of Tex. Health Science Center of
    Houston v. Rios, 
    542 S.W.3d 530
    , 538-39 (Tex. 2017).
    When a plaintiff chooses to proceed against the governmental entity instead of the public
    employee in his individual capacity, “section 101.106, effectively conditions the immunity waiver
    on the plaintiff’s forfeiture of any negligence claims against the employee in his individual
    capacity” concerning the “same subject matter.” [Emphasis added]. Molina v. Alvarado, 
    463 S.W.3d 867
    , 870 (Tex. 2015); TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a). If a plaintiff fails
    to make the election between the governmental unit and the employee in his individual capacity
    when suit is first filed and instead sues both parties, as happened here, the governmental unit can,
    but is not required, to file a motion to dismiss all state-law-tort claims against its employee.
    TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(e). When the governmental unit files the 101.106(e)
    motion, the election-of-remedies provision under the Act is triggered. See 
    Rios, 542 S.W.3d at 538
    (“[I]t is the filing of a [101.106(e)] motion to dismiss, not its content, that triggers the right to
    dismissal.”).
    5
    Moreover, when a governmental unit chooses to file a 101.106(e) motion, it does two
    things. First, it “effectively confirms the employee was acting within the scope of employment
    and that the government, not the employee, is the proper party.” Tex. Adjutant Gen’s Office v.
    Ngakoue, 
    408 S.W.3d 350
    , 358 (Tex. 2013); see 
    Rios, 542 S.W.3d at 535
    (quoting same); see also,
    Ramos v. City of Laredo, 
    547 S.W.3d 651
    , 655-56 (Tex.App.—San Antonio 2018, no pet.)(“The
    City’s assertion via its plea to the jurisdiction under Section 101.106(e) that [employee] was
    entitled to official immunity amounted to a judicial admission that [employee] was acting in the
    scope of employment.”).
    Second, the filing of a 101.106(e) motion bars “immediately and forever . . . any suit or
    recovery by the plaintiff against any individual employee of the governmental unit regarding the
    same subject matter,” TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a); but see, Texas Dep’t of
    Aging and Disability Services v. Cannon, 
    453 S.W.3d 411
    , 419 (Tex. 2015)(holding that Section
    1983 claim (a non-state-law-tort claim) brought against employees in their individual capacities
    were not barred by 101.106).
    Here, because Appellees failed to sue only De La Garza in his individual capacity for a
    state-law tort when they first filed suit, and instead, brought suit under the Act against both the
    County and De La Garza, which prompted the County to file its 101.106(e) motion, Appellees
    forfeited all state-law negligence claims against De La Garza and are now forever barred from
    bringing any state-law-tort claim against De La Garza regarding the same subject matter.
    TEX.CIV.PRAC.&REM.CODE ANN. § 101.106(a),(e).
    III.   Cannon Does Not Revive A State-Law-Tort Claim Against an Individual Public
    Employee in the Face of a 101.106(e) Motion.
    Appellees point to Cannon to support their argument that their state-law-tort claim raised
    6
    in their amended petition against De La Garza in his individual capacity is not barred by Section
    101.106. They contend that because suit against De La Garza in his individual capacity does not
    require an immunity waiver, it is not a claim brought under the Tort Claims Act. See 
    Cannon, 453 S.W.3d at 416
    (“[S]ubsection 101.106(e) does not contemplate or require dismissal of section
    1983 claims against individual government employees, or any other claim not brought under the
    Tort Claims Act.”)[Emphasis added].
    However, we disagree with Appellees’ broad interpretation of Cannon. In Cannon, unlike
    here, the plaintiff amended her original petition to add claims under 42 U.S.C. § 1983 against the
    public employees in their individual capacities, which the Court observed were “not brought under
    the Tort Claims Act.” 
    Cannon, 453 S.W.3d at 416
    ; see also 
    Rios, 542 S.W.3d at 533
    n.7 (citing
    Cannon for the proposition that “[S]ection 1983 claims . . . assert[ed] against . . . [governmental]
    [e]mployees . . . are not brought under the Tort Claims Act.”). However, Appellees did not bring
    a Section 1983 claim. Rather, Appellees brought a subsequent state-law tort claim against an
    individual public employee regarding the same subject matter in the face of a 101.106(e) motion.
    Contrary to Appellees position, Cannon suggests under the circumstances presented here that state-
    law-tort claims are subject to, and barred by, Section 101.106. See 
    Cannon, 453 S.W.3d at 417
    (“Cannon does not dispute that, by asserting common-law tort claims against both the Department
    and the Employees, she made an irrevocable election under subsection (e) to pursue those claims
    against the government only. . .”)[Emphasis added]. Because Appellees do not attempt to allege
    a federal claim under 42 U.S.C. § 1983, nor do they invoke any other non-tort-state-law claim
    against De La Garza, Cannon does not except from dismissal, the state-law-tort claim Appellees
    brought against De La Garza in their amended petition.
    7
    Based on our analysis above, we find the state-law-tort claim alleged in Appellees’
    amended petition against De La Garza in his individual capacity is a claim subject to the Act’s
    election-of-remedies provision.     Consequently, in light of the County’s Section 101.106(e)
    motion, we hold that the Act’s election-of-remedies provision forever bars that claim and the trial
    court’s refusal to dismiss it was error.
    CONCLUSION
    Having sustained the County’s sole issue, we reverse the trial court’s order denying in part
    the County’s motion to dismiss and render judgment dismissing all of Appellees’ state-law-tort
    claims against De La Garza.
    February 19, 2020
    YVONNE T. RODRIGUEZ, Justice
    Before Alley, C.J., Rodriguez, and Palafox, JJ.
    8
    

Document Info

Docket Number: 08-19-00145-CV

Filed Date: 2/19/2020

Precedential Status: Precedential

Modified Date: 2/24/2020