Lamar University v. Doe

• Decision Date: 09 July 1998
• Docket Number: No. 09-97-446-CV,09-97-446-CV
• Parties: 127 Ed. Law Rep. 1124 LAMAR UNIVERSITY, Appellant, v. John and Jane DOE, et al, Appellees.
• Court: Texas Court of Appeals

Page 191

971 S.W.2d 191

127 Ed. Law Rep. 1124

LAMAR UNIVERSITY, Appellant, v. John and Jane DOE, et al, Appellees.

No. 09-97-446-CV.

Court of Appeals of Texas Beaumont.

Submitted April 16, 1998.

Decided July 9, 1998.

S. Ronald Keister, Asst. Atty. Gen., Austin, for appellant.

Clay Dugas, Orange, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

WALKER, Chief Justice.

The underlying lawsuit brought by John Doe and Jane Doe, individually and on behalf of their minor children, Don Doe and Tom Doe, appellees herein, attempts to place liability on Lamar University for sexual misconduct of one of its students, William Brian Peddy, Jr., who paid Don Doe and Tom Doe to be photographed and video taped in explicit sexual poses. John and Jane Doe, parents of the Doe children, are named by pseudonym, to protect said parents from "vexatious publicity." William Brian Peddy, Jr. was not alleged to be an employee of Lamar University.

Appellees have attempted to allege a cause of action pursuant to TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-101.109 (Vernon 1997 & Vernon Supp.1998). Appellant Lamar University has pled as an affirmative defense, sovereign immunity and the limitations exceptions and exclusions of the Texas Tort Claims Act. This is an interlocutory appeal from the 172nd District Court of Jefferson County, Texas, which denied appellant's Plea to the Jurisdiction and Motion to Dismiss. We have jurisdiction of this interlocutory appeal pursuant to TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.1998).

On August 31, 1995, the Does filed their lawsuit against William Brian Peddy, Jr., William Brian Peddy, Sr., and Lamar University. The Does alleged that Don Doe and Tom Doe, minor children, were "sexually assaulted and molested" by William Brian Peddy, Jr., on numerous occasions and locations. The Does alleged that one of the locations where the sexual assaults occurred was in William Peddy's dormitory room on the campus at Lamar University, thus, appellees seek to hold Lamar University liable for the conduct of William Brian Peddy, Jr.

PROCEDURAL HISTORY

Appellees filed their First Amended Petition in November 1995, to which Lamar University filed Special Exceptions. The trial court granted the Special Exceptions on May 8, 1996, and ordered the appellees to replead. The appellees filed their Second Amended Petition on June 24, 1996. On September 16, 1996, after reaching a settlement, appellees non-suited William Brian Peddy, Sr.

On October 15, 1996, the appellant filed "Defendant Lamar University's Motion for Summary Judgment and Severance" contending that appellees' Second Amended Petition did not allege a cause of action under the Texas Tort Claims Act which would waive sovereign immunity. The trial court denied this motion on December 5, 1996.

On August 25, 1997, appellant filed "Defendant Lamar University's Plea to the Jurisdiction and Motion to Dismiss" which was set to be heard on October 10, 1997. In response to this Plea to the Jurisdiction and Motion to Dismiss, appellees, on October 8, 1997, filed "Plaintiffs' Request for Cancellation of Hearing and Response to Defendant's Plea to the Jurisdiction and Motion to Dismiss" contending that the trial court had already heard appellant's contention in the summary judgment proceeding. Then, on October 10, 1997, prior to the hearing on appellant's motion, appellees filed "Plaintiffs' Third Amended Petition." Following argument of counsel, the trial court signed an order denying the appellant's Plea to the Jurisdiction and Motion to Dismiss. Lamar University brings one point of error which contends that the trial court erred in denying the appellant's Plea to the Jurisdiction and Motion to Dismiss as the appellees have failed to plead a cause of action under the Texas Tort Claims Act which waives sovereign immunity.

Lamar University did not attempt an appeal from the trial court's denial of its motion for summary judgment. It was not until August 25, 1997, that Lamar filed its Plea to the Jurisdiction and Motion to Dismiss, which was specifically directed to Plaintiffs' Second Amended Petition, as was its Motion for Summary Judgment. There is indeed a similarity of pleadings in Lamar's Motion for Summary Judgment and its Plea to the Jurisdiction which might indicate that Lamar is attempting to re-urge and re-hear matters previously determined. Appellees' position is Lamar is now seeking "two bites at the apple." In reviewing the record, we are not convinced that Lamar, in its Plea to the Jurisdiction, is asserting the same position [governmental immunity as a bar to action], as was asserted in Lamar's Motion for Summary Judgment [that as a matter of law appellees' claims failed to raise a genuine issue of material fact or that appellees' claims are patently unmeritorious or untenable].

Appellees assert that since Lamar failed to appeal the trial court's denial of summary judgment pursuant to § 51.014(a)(5), the present effort to appeal should be foreclosed. Lamar correctly contends § 51.014(a)(5) only permits an interlocutory appeal of denial of a summary judgment that is based on an assertion of immunity by an individual. It appears that until the adoption of § 51.014(a)(8), effective June 20, 1997, when a State entity was sued without naming or joining individuals, such State entity had no avenue for interlocutory appeal. This gap has now been specifically cured through the adoption of § 51.014(a)(8).

Our present case is somewhat similar to City of Houston v. Kilburn, 849 S.W.2d 810 (Tex.1993). There, Kilburn sued the city of Houston because an employee of its Animal Control Bureau shot and killed two pit bull dogs belonging to Kilburn. The primary distinction between Kilburn and our present case is that Kilburn filed suit against both the city of Houston and the employee who shot the pit bulls. Id. at 811. Though distinguishable on party grounds the procedural significance is revealing and applicable. In Kilburn, the city of Houston filed its motion for summary judgment contending only that the city was not liable because of sovereign immunity. The city employee who shot the pit bulls, though named as a party, did not file a motion for summary judgment and never asserted the affirmative defense of qualified immunity. The Supreme Court determined that "under the procedural posture of this case, the City's attempt to appeal must fail." Id. at 812.

We can but conclude that at the time the trial court denied Lamar University's motion for summary judgment, Lamar University not having asserted the qualified immunity of its employees, was excluded from those exceptions provided under § 51.041(5). We fail to find support for appellees' "two bites at the apple" theory, either as to the subsequent filing of Lamar's Plea to the Jurisdiction and Motion to Dismiss or as to its appellate remedy. Actually, Lamar University never had its first bite at the "appellate apple," for it had no adequate interlocutory appellate remedy. Though Lamar sought an end to this litigation through both a summary judgment motion and a plea to the jurisdiction, the pleadings and legal effect of these motions are readily distinguishable as to purpose and effect. Lamar's summary judgment motion sought an end to litigation through its contention that appellees had failed to state a cause of action since appellees' claims did not involve a premises defect, a condition of tangible personal property, or the operation or use of a motor vehicle. These allegations and contentions go to the merits of appellees' lawsuit. Appellant's Plea to the Jurisdiction however, seeks an end to this litigation on grounds that the trial court did not have jurisdiction to render a valid judgment.

Having determined that Lamar University could properly challenge the trial court's jurisdiction over the subject matter of appellees' claims, even following its failed attempt to obtain a summary judgment on the merits, we shall review the law as applicable to the present matter.

SOVEREIGN IMMUNITY

Regarding waiver of governmental immunity, it is an accepted and fundamental rule in Texas jurisprudence that the State of Texas, its agencies, and its officers may not be sued without the consent of the Texas legislature. See Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex.1997); Director of the Dep't of Agric. & Env't v. Printing Industries Ass'n, 600 S.W.2d 264, 265 (Tex.1980); Hosner v. DeYoung, 1 Tex. 764, 769 (1847). This immunity even exists where the State's liability is not disputed. See Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970). State agencies, such as Lamar University, also enjoy the protective umbrella of sovereign immunity, except in instances where immunity has been expressly waived by statute. See Delaney v. University of Houston, 835 S.W.2d 56 (Tex.1992). The Texas Tort Claims Act provides:

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; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997). The present case focuses upon the application of § 101.021(2), i.e., "a condition or use of tangible personal or real property."

Appellees, through their Third Amended Petition, attempt to place liability on Lamar University for leasing a dormitory room to William Peddy, Jr., where Peddy allegedly photographed...