Amadi v. City of Hous.

• Court: Texas Court of Appeals
• Writing for the Court: ADELE HEDGES
• Citation: Amadi v. City of Hous., 369 S.W.3d 254 (Tex. App. 2011)
• Decision Date: 27 October 2011
• Docket Number: No. 14–10–01216–CV.,14–10–01216–CV.
• Parties: Jane Uche AMADI, Constance Nnadi, and World Anointing Center Ministries, Inc., Appellants, v. CITY OF HOUSTON, Appellee.

369 S.W.3d 254

Jane Uche AMADI, Constance Nnadi, and World Anointing Center Ministries, Inc., Appellants,

v.CITY OF HOUSTON, Appellee.

No. 14–10–01216–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Oct. 27, 2011.

James W. Stringer, Houston, TX, for appellants.

Judith Lee Ramsey, Houston, for appellee.

En banc court consists of Chief Justice HEDGES and Justices ANDERSON, FROST, SEYMORE, BROWN, BOYCE, CHRISTOPHER, JAMISON, and McCALLY.

EN BANC OPINION

ADELE HEDGES, Chief Justice.

We grant the city's motion for en banc reconsideration, withdraw our opinion issued on July 7, 2011, and issue this en banc opinion in its place.

In this case brought under the Texas Tort Claims Act (“TTCA”),¹ 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.

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 motor vehicle owned by the city caused a collision with Amadi's vehicle, resulting in personal injury and property damage.² 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 city filed a plea to the trial court's jurisdiction, which it subsequently amended, contending that all of Amadi's tort claims were barred by subsection 101.106(b) of the TTCA because she had included Owens in her original petition. That subsection 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.” ³ The trial court granted the city's amended plea, and Amadi timely filed this appeal.

ANALYSIS

A. Standard of Review

In four issues, Amadi challenges the trial court's order granting the city'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.⁴See 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.

Our resolution 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. Application1. 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). 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 (West 2005)).

As is relevant here, the TTCA provides a limited waiver of immunity for certain suits against governmental units and also caps recoverable damages. SeeTex. Civ. Prac. & Rem.Code Ann. §§ 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 TTCA Section 101.106

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...