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rejecting the contention that school district employees were not entitled to official immunity where they allegedly acted outside the scope of their official duties because the plaintiff "has foreclosed the possibility of suing only the employees in their individual capacities by suing both them and the School District"
Summary of this case from Edinburg Consol. Indep. Sch. Dist. v. SmithOpinion
NO. 03-15-00211-CV
02-03-2016
Douglas W. Kirk, Appellant v. Plano Independent School District; Nancy Humphrey, Individually and in her Official Capacity as President of the Board of Trustees of the Plano Independent School District; Anika Vaughan, Individually and in her Official Capacity as Teacher for Plano Independent School District; Joseph Parks, Individually and in his Official Capacity as Director of Safety and Security for Plano Independent School District; and Courtney J. Washington, Individually and in her Official Capacity as Principal for Plano Independent School District, Appellees
FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. C2014-0085C, HONORABLE R. BRUCE BOYER, JUDGE PRESIDINGMEMORANDUM OPINION
Douglas W. Kirk, appearing pro se, appeals the trial court's dismissal of his libel lawsuit seeking damages against Plano Independent School District and four of its employees, each in their official and individual capacities. Kirk contends that governmental immunity does not protect appellees from suit under the circumstances alleged. Because the trial court properly dismissed the lawsuit for lack of jurisdiction and ordered that Kirk take nothing by way of his claims, we will affirm the judgment.
The parties are familiar with the facts, procedural history, and applicable standards of review. Accordingly, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. Tex. R. App. P. 47.4.
In several related issues, Kirk contends that the trial court erred in granting appellees' motions to dismiss by improperly applying the Texas Tort Claims Act (TTCA). Specifically, he argues that (1) he filed his suit under an applicable defamation statute, see Tex. Civ. Prac. & Rem. Code § 73.001 (providing elements of libel action), not the TTCA, see generally id. §§ 101.001-.109, and that his suit may therefore proceed; (2) the TTCA's reference to "remedies additional" allows his lawsuit to proceed under the cited defamation statute or common law, see id. § 101.003 ("The remedies authorized by this chapter are in addition to any other legal remedies."); (3) the TTCA does not bar his suit because the suit does not involve motor vehicles, see id. §§ 101.021 ("A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law."), .051 ("Except as to motor vehicles, this chapter [the TTCA] does not apply to a school district or to a junior college district."); and (4) the School District's employees were not entitled to official immunity because they were not acting within the scope of their duties as employees.
The School District initially filed a motion to dismiss its employees, see Tex. Civ. Prac. & Rem. Code § 101.106(e) (if plaintiff sues both governmental entity and its employees, court must dismiss employees on motion of entity), and then filed a second motion to dismiss the remaining claims against it, arguing that Kirk's claims were barred by sovereign immunity, which had not been waived. The trial court's final judgment granted both motions to dismiss. --------
Kirk's first three issues reflect a fundamental misunderstanding of the doctrine of sovereign immunity, which is the starting point for a lawsuit against a governmental entity and its agents. When a plaintiff sues a governmental entity or official, he faces the threshold hurdle of affirmatively demonstrating the trial court's jurisdiction by alleging a valid waiver of governmental immunity. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Governmental immunity shields a school district from liability except to the extent immunity is waived by the TTCA, which does so only for claims involving motor vehicles. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008); Lipan Indep. Sch. Dist. v. Bigler, 187 S.W.3d 747, 751 (Tex. App.—Fort Worth 2006, pet. denied). And, under no circumstances does the TTCA does waive immunity for intentional torts, such as libel. See Tex. Civ. Prac. & Rem. Code § 101.057(2).
Except for his argument about waiver by conduct, which we address below, Kirk has cited no statute or other circumstances under which the School District has waived its immunity. Furthermore, it is irrelevant that Kirk filed his claims "under" the cited defamation statute instead of the TTCA. See id. § 101.106 (filing of suit "under" TTCA against governmental unit or its employee constitutes irrevocable election by plaintiff that forever bars any suit or recovery against governmental unit or individual employee of unit regarding same subject matter); Garcia, 253 S.W.3d at 657-58 ("Because the Tort Claims Act is the only, albeit 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 TTCA]' for purposes of section 101.106."); Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 400 (Tex. App.—Fort Worth 2008, no pet.) (all of plaintiff's tort claims must be considered claims "under" TTCA, despite fact that plaintiff did not invoke or refer to Act in its pleadings). Therefore, the trial court did not abuse its discretion in dismissing the School District's employees upon the School District's motion, see Tex. Civ. Prac. & Rem. Code § 101.106(e) (providing for dismissal of employees upon motion of governmental unit when suit is filed against both governmental unit and its employees), or in dismissing Kirk's remaining claims against the School District for lack of jurisdiction, see American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (noting that we review trial court's ruling on motion to dismiss for abuse of discretion); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that if immunity applies, trial court lacks subject-matter jurisdiction over case). We overrule Kirk's first three issues.
As to his fourth issue, in which Kirk contends that the School District's employees are not entitled to official immunity because they acted outside the scope of their official duties, Kirk has foreclosed the possibility of suing only the employees in their individual capacities by suing both them and the School District. See City of Corpus Christi v. Eby, No. 13-09-00205-CV, 2011 WL 1437002, at *6 (Tex. App.—Corpus Christi Apr. 14, 2011, no pet.) (mem. op.) ("Section 101.106 forces a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable . . . ."); Texas Bay Cherry Hill, 257 S.W.3d at 401 (holding that even assertion by plaintiff that it sued government employee in individual capacity does not bar dismissal of employee under section 101.106 when suit against governmental entity and employee involves same subject matter). "A plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually because the decision regarding whom to sue has irrevocable consequences." Texas Bay Cherry Hill, 257 S.W.3d at 401. Having sued both the employees and the School District for the same allegedly tortious conduct, Kirk may not now proceed against the employees in their individual capacities. We overrule his fourth issue.
In his remaining issues, Kirk contends that (1) the School District waived immunity by its conduct because some of the employee defendants acted "outside of [their] governmental duties" with respect to the facts alleged in his petition, and (2) the trial court "fail[ed] to consider factual evidence" of such conduct. It appears that Kirk is arguing that the employees' allegedly making libelous communications in their individual, rather than official, capacities is "conduct" by which the School District's immunity may be waived. However, Kirk cites no authority for waiver by such "conduct." Cf. City of McKinney v. Hank's Rest. Grp., L.P., 412 S.W.3d 102, 114 (Tex. App.—Dallas 2013, no pet.) (noting that Supreme Court has never held that waiver-by-conduct doctrine exists and that only limited intermediate appellate decisions have adopted doctrine and only in breach-of-contract cases). We reject Kirk's attempt to circumvent the limitation he faces by his choice to sue both the School District and its employees in the same lawsuit with his "waiver-by-conduct" argument. Accordingly, we overrule Kirk's fifth and sixth issues.
CONCLUSION
For the foregoing reasons, we affirm the trial court's final judgment granting appellees' motions to dismiss and dismissing Kirk's lawsuit in its entirety.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: February 3, 2016