Hernandez v. City of Lubbock

• Decision Date: 27 November 2007
• Docket Number: No. 07-06-0094-CV.,07-06-0094-CV.
• Citation: 253 S.W.3d 750
• Parties: Rebecca HERNANDEZ, Appellant, v. The CITY OF LUBBOCK and Blake Littlejohn, Appellees.
• Court: Texas Court of Appeals

253 S.W.3d 750

Rebecca HERNANDEZ, Appellant, v. The CITY OF LUBBOCK and Blake Littlejohn, Appellees.

No. 07-06-0094-CV.

Court of Appeals of Texas, Amarillo.

November 27, 2007.

Charles Dunn, Law Offices of Charles Dunn, Lubbock, for Appellant.

Anita Burgess, Jeff Hartsell, City Attorney's Office, Robin Matthews, Sowder & Matthews, Ralph H. Brock, Lubbock, for Appellee.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.¹

OPINION

JAMES T. CAMPBELL, Justice.

In the suit appellant Rebecca Hernandez brought against the City of Lubbock and Blake Littlejohn, the trial court granted summary judgment in favor of the City and dismissed her claims against Littlejohn. On her appeal, we affirm the judgment for the City, and reverse as to her claims against Littlejohn.

Factual and Procedural Background

Hernandez's suit arose from events that occurred in June 2004 when Littlejohn, then a uniformed Lubbock policeman, made a nighttime traffic stop of Hernandez's vehicle. She alleged that Littlejohn, in the back seat of his patrol car, required her to masturbate him after she refused his demand that she perform oral sex. After the events, Littlejohn resigned from the police force, and plead guilty to misdemeanor harassment. Hernandez's petition alleged Littlejohn committed the intentional torts of sexual assault and battery against her, and alleged the City negligently supervised Littlejohn and was negligent in other respects. She alleged Littlejohn's actions caused her extreme mental anguish and bodily injury. Her petition makes clear that she sued Littlejohn in his individual capacity and sued the City under the Texas Tort Claims Act.²

Littlejohn filed a motion to dismiss pursuant to section 101.106(e) of the Tort Claims Act. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (Vernon 2005). Hernandez responded and, after a hearing, the court granted the motion and dismissed her claims against Littlejohn with prejudice.³

The City of Lubbock later filed a motion for summary judgment. The trial court granted the City's motion and signed the final judgment made the subject of this appeal.

Hernandez brings three appellate issues challenging the trial court's dismissal of her claims against Littlejohn, and by her fourth issue contends the court erred by granting summary judgment for the City.

Analysis

Motion to Dismiss Pursuant to Section 101.106(e)

By her first issue, Hernandez contends in part that the trial court erred by granting the motion to dismiss because it was filed by Littlejohn rather than the City. We agree and find the contention dispositive of Hernandez's appeal of the dismissal.⁴

The issue raises a question of law, so we will review the dismissal de novo. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000) (determining applicable standard of review based on substance of issue to be reviewed); Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989) (matters of statutory construction are questions for the court); Buck v. Blum, 130 S.W.3d 285, 290-91 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (to the extent resolution of an issue requires interpretation of statute itself, de novo standard applies).

As pertinent here, section 101.106 of the Tort Claims Act reads as follows:

(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.

Littlejohn's motion to dismiss asserted that section 101.106 required Hernandez to make an irrevocable election between a suit against the City⁵ under the Tort Claims Act and a suit against Littlejohn, a City employee at the time the claims arose. Littlejohn's motion cited section 101.106(e) for the proposition that if suit is filed against both a governmental unit and an employee, the employee is entitled to dismissal "on the filing of a motion."

Hernandez objected in the trial court, and asserts on appeal, that section 101.106(e) provides for dismissal only "on the filing of a motion by the governmental unit" when a plaintiff sues both the employee and the governmental unit regarding the same subject matter.

Littlejohn contends that, considered together, sections 101.106(a) and 101.106(e) warranted dismissal of the claims against him. Acknowledging that section 101.106(e) mandates dismissal in the circumstances described in that section when the governmental unit moves for its dismissal, he nonetheless asserts that nothing in section 101.106(e) prohibits a trial court from dismissing an action barred by section 101.106(a) simply because the employee, rather than the governmental unit, moves to dismiss.

In support of his position, Littlejohn quotes language from several cases applying section 101.106(e). His reading of the cases leads him to conclude that courts have construed section 101.106(e) to provide for dismissal on the motion of any defendant. For instance, Littlejohn points to the statement in Waxahachie Independent School District v. Johnson, 181 S.W.3d 781 (Tex.App.-Waco 2005, pet. filed), that "Upon the motion of either the government or the employees, a plaintiff is forced to proceed against the government alone . . . ." in the three circumstances there described. Id. at 785. We do not read the Waxahachie ISD opinion to suggest that the identity of the movant is unimportant under section 101.106(e).⁶ In the quoted sentence from that opinion, the court cites and quotes the opinion of the Beaumont court in Villasan v. O'Rourke, 166 S.W.3d 752 (Tex.App.-Beaumont 2005 pet. filed). The sentence from Villasan quoted in Waxahachie ISD comes from the Beaumont court's discussion of the "procedural right" created by the provisions of section 101.106. Villasan, 166 S.W.3d at 758. That discussion carefully distinguishes the aspects of the procedural right subject to the governmental unit's election from those subject to that of the employee. Referring to section 101.106(f), the court notes that the statute "allows the governmental employee whose conduct is alleged to have been within the scope of employment to force the plaintiff to amend the suit and name the governmental entity as the sole defendant." Id. It follows that statement with one addressing section 101.106(e), stating, "The statute allows the government, when both the government and the employee are sued, to force the plaintiff to drop the employee from the suit." Id., citing § 101.106(e). Summarizing the statutory provisions creating the "procedural right," the court then states, "At the election of the government or the employee, the respective defendant may force the plaintiff to proceed" in Texas Tort Claims Act cases, in the manner described in section 101.106. Id. (emphasis ours).

We see nothing in the Villasan opinion construing section 101.106(e) to provide for dismissal of an employee on the motion of any but the governmental unit defendant. To the contrary, Villasan makes clear that it was the filing of a motion by the governmental unit that entitled the employee to dismissal. Id. Likewise, the court in Waxahachie ISD, following its quote from the Villasan opinion, states, "The decisions have held that once the government files a motion to dismiss the employees under section 101.106(e), the trial court must grant the motion and dismiss the employees from the suit." Waxahachie, 181 S.W.3d at 785, citing, inter alia, Villasan, 166 S.W.3d at 761-62. Nor do we agree that Waxahachie ISD should be read as supporting Littlejohn's contention that his motion under section 101.106(e) warranted dismissal of Hernandez's suit against him.

Littlejohn also cites language from several federal court cases applying section 101.106, including Martinez v. Center for Health Care Services, No. SA-04-CA-0412-RF, 2005 WL 1168433 (W.D.Tex. May 17, 2005); Hernandez v. Duncanville School Dist., No. Civ. A. 3:04-CV-2028-BH, 2005 WL 723458 (N.D.Tex. March 29, 2005); Barnes v. Barnes, No. Civ. A. 103CV231-C, 2004 WL 691202 (N.D.Tex. March 30, 2004); and Livingston v. DeSoto Ind. School Dist., No. Civ. A. 3:04-CV-1818, 2004 WL 2964977 (N.D.Tex.Dec.15, 2004). None of those cases address the significance of the identity of the movant under section 101.106(e). Moreover, each involves rulings on motions filed by multiple defendants that include governmental entities.⁷ We do not find in them even persuasive support for Littlejohn's position.

We similarly find Littlejohn's reliance on section 101.106(a) unpersuasive. As noted, section 101.106(a) provides that the filing of a suit under the Tort Claims Act against a governmental unit constitutes the plaintiff's irrevocable election, "immediately and forever" barring any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter. Littlejohn asserts that Hernandez's act of filing suit against the City under the Tort Claims Act barred her suit against him, authorizing the trial court to dismiss it on his motion.

When required to construe a statute, we must read the legislative enactment as a whole, giving effect to all its provisions. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998) (in construing a statute, we look to the plain and common meaning of the words, giving full effect to each term in context); State v. Kingsbury, 129 S.W.3d 202, 204-05 (Tex.App.-Corpus...