Immunity jurisprudence now even protects drunk drivers - Texas Supreme Court lets allegedly intoxicated driver of city vehicle off the hook on a pleading technicality; -- blames victim. Molina v Alvarado (Tex. 2015)

NEWEST ADDITION TO HECHT COURT'S IMMUNITY JURIS(MAL)PRUDENCE:   

DRUNK DRIVER IMMUNITY 

 
Here is yet another example of the Texas Supreme Court's penchant for creating and invoking immunity theories to deny plaintiffs their day in court against a party that caused injury, and thereby preventing a trial on the merits and recovery of damages from the tortfeasor proven to have committed the tort. There will be  no trial and no opportunity to hold the driver accountable. Molina v Alvarado (Tex. 2015). 
         
Attorney for collision victim should have sued the driver first, rather than the employer-city under the Tort Claims Act. Amending the petition later won't do.  
   
      - Gotcha! 

The El Paso Court of Appeals had denied the immunity argument of the city employee (who also invoked the Fifth to avoid self-incrimination), and had this to say: 

We seriously doubt that the Texas Legislature intended to extend immunity to city employees driving vehicles under the influence of alcohol. Whether the employee is actually acting within the scope of employment — in which case the employee is sued in his official capacity and serves merely as a jurisdictional stand-in for the agency — is a question of fact for the trial court to decide. As such, whether Molina was actually driving the City of McCamey vehicle within the scope of his employment or under the influence of alcohol are both questions of material fact that prevent a grant of summary judgment.

But the Supreme Court reversed, and granted the driver absolution. Defendant wins, as usual. Case closed. 
      

 OPINION OF THE SUPREME COURT

GRANTING IMMUNITY 

IN THE SUPREME COURT OF TEXAS 

 ════════════ NO. 14-0536 ════════════ 

JESUS RUBEN MOLINA, PETITIONER, v. ELIAS ALVARADO, RESPONDENT ═══════════════════════════════════════════ 

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS 

FOR THE EIGHTH DISTRICT OF TEXAS 

═══════════════════════════════════════════ 

PER CURIAM 

463 S.W.3d 867 (2015)

Jesus Ruben MOLINA, Petitioner,
v.
Elias ALVARADO, Respondent.

No. 14-0536.

Supreme Court of Texas.

OPINION DELIVERED: May 8, 2015.

869Jon Mark Hogg, Jackson Walker L.L.P., San Angelo, for Jesus Ruben Molina.

Rahul Malhotra, The Malhotra Law Firm, Odessa, for Elias Alvarado.

Melinda D. Hamm, Terry W. Rhoads, Cotton Bledsoe Tighe & Dawson, P.C., Midland, for City of McCamey.

PER CURIAM

Governmental employee Jesus Molina contends the trial court incorrectly denied his summary-judgment motion under the Texas Tort Claims Act (TTCA)'s election-of-remedies provision. We agree that Molina was immune from suit. We reverse the court of appeals and render judgment for Molina.

* * *

Elias Alvarado sued the City of McCamey for negligence and negligence per se, claiming that Molina was driving a city vehicle under the influence of alcohol when he struck Alvarado's vehicle. Alvarado's original petition alleged generally that (1) Molina "was operating a City vehicle in the course and scope of his employment, agency, and/or governmental function" with the City of McCamey, and (2) the City, "through its employee, agent and/or servant [Molina], operated the vehicle in question in a negligent manner." The petition, however, did not describe Molina's employment duties or specifically allege that he was performing any particular task the City had lawfully assigned him. The City asserted immunity from suit, contending that nothing in the TTCA or any other statute waived the City's immunity.

After the trial court denied Alvarado's special exceptions requesting that the City state the factual and legal basis of its immunity defense, Alvarado filed a first amended petition naming Molina as an additional defendant. The amended petition alleged that Molina "was operating a City vehicle in the course and scope of his employment, agency and/or governmental function" with the City. Alvarado reasserted that the City "through its employee, agent and/or servant Molina, operated the vehicle in question in a negligent manner." But Alvarado added an alternative argument: "if it is found that Molina was not furthering the governmental affairs of [the City] on the occasion in question, Molina is liable in his individual capacity for operating the vehicle in question in a negligent manner."

Molina filed a general denial and requested summary judgment, seeking dismissal under subsection (a) of the TTCA's election-of-remedies provision. See TEX. CIV. PRAC. & REM. CODE § 101.106(a). Molina contended that Alvarado had previously made an irrevocable election to sue the City of McCamey and was thus barred from suing him, too. The trial court denied Molina's summary-judgment motion, and on interlocutory appeal, see id. § 51.014(a)(5), the court of appeals affirmed, holding that subsection (a) "is correctly read as barring suit against an employee only where that employee is being sued in his official capacity, i.e. only where the employee was acting within the scope of his employment." 441 S.W.3d 578, 587. The court of appeals concluded that the existence of material fact questions regarding whether Molina was "actually driving the City of McCamey vehicle within the scope of his employment or under the influence of alcohol ... prevent[ed] a grant of summary judgment." Id.

* * *

Our recent decision in Franka v. Velasquez, 332 S.W.3d 367 (Tex.2011), summarizes general Texas immunity law:

870Under Texas law, a suit against a government employee in his official capacity is a suit against his government employer with one exception: an action alleging that the employee acted ultra vires. With that exception, an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer. But public employees (like agents generally) have always been individually liable for their own torts, even when committed in the course of employment, and suit may be brought against a government employee in his individual capacity. Generally, however, public employees may assert official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.

Id. at 382-83 (internal quotation marks and footnotes omitted).

In certain circumstances, the TTCA waives the immunity that would otherwise bar suit against a governmental unit and an employee sued in his official capacity. TEX. CIV. PRAC. & REM. CODE §§ 101.025 ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter."); 101.021 (listing circumstances under which a governmental unit is liable for property damage, personal injury, or death); 101.023 (limiting the permissible recovery amount). However, the TTCA's election-of-remedies provision, section 101.106, effectively conditions the immunity waiver on the plaintiff's forfeiture of any negligence claims against the employee in his individual capacity. See Tex. Adjutant Gen.'s Office v. Ngakoue (TAGO), 408 S.W.3d 350, 350 (Tex.2013) ("The statute encourages, and in effect mandates, plaintiffs to pursue lawsuits against governmental units rather than their employees when the suit is based on the employee's conduct within the scope of employment.").

Once the plaintiff elects to sue either the employee in his individual capacity or the governmental unit, subsection (a) or (b) will "immediately and forever" bar him from subsequently electing to sue the other regarding the same subject matter. TEX. CIV. PRAC. & REM. CODE § 101.106(a)-(b). Subsection (b) is triggered by "[t]he filing of a suit against any employee of a governmental unit" and bars a future suit "against the governmental unit." Id. Subsection (a) is triggered by "[t]he filing of a suit under this chapter against a governmental unit" and bars future suit "against any individual employee." Id. See also Alexander v. Walker, 435 S.W.3d 789, 791 (Tex.2014) (holding that a suit "against any individual employee" is a suit against the employee in his individual capacity, i.e. one that "seek[s] personal liability"). But in light of subsection (f), when the plaintiff has previously filed suit against a government official, the applicability of subsections (a) and (b) "turn[] on whether the suit is considered to be against the officers in their individual or official capacities." Alexander, 435 S.W.3d at 791.

Section 101.106(f) provides that if plaintiff's suit is "filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment" and "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." TEX. CIV. PRAC. & REM. CODE § 101.106(f). The TTCA defines the term "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or 871*871 employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." Id. § 101.001(5). A suit based on such conduct is not a suit against the employee; it is, "in all but name only, a suit against the governmental unit." TAGO, 408 S.W.3d at 357. Conversely, suits against an employee based on conduct outside the scope of employment are suits against an employee in his individual capacity and seek personal liability. Alexander, 435 S.W.3d at 791.

When the suit is considered to be one against the employee in his official capacity, "subsection (f) provides the TTCA plaintiff a window to amend his pleadings to substitute the governmental unit before the court dismisses the suit against the employee." TAGO,408 S.W.3d at 359. Once the defendant employee files a motion under subsection (f), the plaintiff must either "dispute that [the employee] acted in his official capacity" or "implicitly concede[] that he had sued [the employee] in his official capacity only." Id. at 360. The election-of-remedies provision therefore "force[s] a plaintiff to decide at the outset whether an employee acted independently ... or acted within the general scope of his or her employment." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.2008).

"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. However, as we have previously noted, a plaintiff "may not be in the position of knowing whether the [employee] was acting within the scope of employment" when he files suit. TAGO, 408 S.W.3d at 359.

In today's case, Alvarado filed suit and initially named only the governmental unit itself, not its employee. This action "constitute[d] an irrevocable election ... and immediately and forever bar[red] any suit or recovery by [Molina] against any individual employee of the governmental unit regarding the same subject matter." TEX. CIV. PRAC. & REM. CODE § 101.106(a). In light of subsection (f), a suit brought against a governmental employee may or may not be a suit against the governmental unit. Nothing in section 101.106, however, suggests that a suit against a governmental unit is potentially a suit against the employee in his individual capacity. Because Molina has already sued the governmental unit, he has no need of the window to amend his pleadings in subsection (f), which exists to allow plaintiffs to substitute the governmental unit. TAGO, 408 S.W.3d at 359. Any questions of material fact that exist regarding whether Molina was acting in the scope of his employment are therefore irrelevant to Alvarado's ability to subsequently seek to impose personal liability on Molina.

If at the time Alvarado filed suit he possessed insufficient information to determine whether Molina was acting within the scope of his employment, the prudent choice would have been to sue Molina, and await a factual resolution of that question. See TEX. CIV. PRAC. & REM. CODE § 101.106(f); Alexander, 435 S.W.3d at 791. Because Alvarado did not do so, he essentially chose his defendant before being required to do so by the election-of-remedies provision. That choice is still an irrevocable election under section 101.106, and the TTCA bars him from later filing suit against Molina.

Accordingly, we grant Molina's petition for review and, without hearing oral argument, 872reverse the judgment of the court of appeals and render judgment for Molina. See TEX. R. APP. P. 59.1.

Governmental employee Jesus Molina contends the trial court incorrectly denied his summary-judgment motion under the Texas Tort Claims Act (TTCA)’s election-of-remedies provision. We agree that Molina was immune from suit.

We reverse the court of appeals and render judgment for Molina.

OPINION DELIVERED: May 8, 2015.

OPINION OF THE EL PASO COURT OF APPEALS

441 S.W.3d 578 (2014)

Jesus Ruben MOLINA, Appellant,
v.
Elias ALVARADO, Appellee.

441 S.W.3d 578 (2014) Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.
OPINION
YVONNE T. RODRIGUEZ, Justice.
Jesus Ruben Molina seeks interlocutory review under TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(5)(West Supp. 2013) of the trial court's denial of his motion for summary judgment. Appellant contends that suit against him is barred as a matter of law because Elias Alvarado's decision to first sue Appellant's employer, the City of McCamey, constituted the irrevocable election of a defendant under the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE ANN. § 101.106 (West 2011), thereby depriving the trial court of subject-matter jurisdiction to try any claims against Appellant that arise from the same nucleus of operative fact. We affirm.
FACTUAL BACKGROUND
Alvarado alleges that on October 23, 2010, Appellant negligently struck him while driving a City of McCamey vehicle under the influence of alcohol, thereby causing Alvarado injury. He further alleged that Appellant failed to stop and render aid after the accident. On July 23, 2012, Alvarado filed suit against the City of McCamey, alleging that it was vicariously liable for Appellant's tortious conduct as his employer. On October 10, 2012, Alvarado amended his petition to include Appellant as a defendant. On October 24, 2012, Appellant moved for summary judgment on the grounds that he was not a proper party to the suit under TEX.CIV. PRAC. & REM.CODE ANN. § 101.106(a). Separately, on December 3, 2012, the City of McCamey filed a plea to the jurisdiction and a motion to dismiss Appellant as a party under TEX.CIV.PRAC. & REM.CODE ANN. § 101.106(e), which requires a court to dismiss a government employee as a party to a suit upon motion where both a government entity and the entity's employee are 581*581 named as co-defendants.[1] Appellant also resisted discovery on the grounds that he was not a proper party to the suit, and he asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution in response to certain questions. On April 2, 2013, the trial court denied Appellant's motion for summary judgment.
DISCUSSION
In his sole issue on appeal, Molina contends that Alvarado's decision to sue Molina's employing government agency before suing Molina himself constituted an irrevocable election of remedy under TEX.CIV. PRAC. & REM.CODE ANN. § 101.106(a). As such, under the provision's plain language Molina became immune by operation of law from any suit based on conduct arising from the traffic crash, including any ultra vires conduct, and the trial court committed error by denying summary judgment. Alvarado responds that Molina's reading of the statute would violate the canon against abrogation of common law remedies. He further argues that construing the immunity provision in isolation as opposed to interpreting that provision, the overarching immunity framework, and other Texas Tort Claims Act ("TTCA") provisions as one cohesive text would frustrate the central purposes underpinning the TTCA.
Although the appellate courts may not ordinarily entertain interlocutory challenges to denial of a motion for summary judgment, see William Marsh Rice Univ. v. Coleman, 291 S.W.3d 43, 45 (Tex.App.-Houston [14th Dist.] 2009, pet. dism'd), here, Appellant argues that the trial court incorrectly denied the motion for summary judgment because by virtue of the Texas Tort Claims Act's election-of-remedies provision, he is a government employee immune from suit. As such, this Court grants interlocutory review of the summary judgment denial pursuant to TEX.CIV. PRAC. & REM.CODE ANN. § 51.014(a)(5)(West Supp. 2013) (providing for interlocutory review of summary judgment motions "based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state").
A trial court may properly dispose of an issue by summary judgment under TEX. R.CIV.P. 166a when a movant establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Wright v. Ector County Indep. Sch. Dist., 867 S.W.2d 863, 866 (Tex.App.-El Paso 1993, no writ). In assessing a motion for summary judgment, "[e]vidence favorable to the nonmovant will be taken as true in deciding whether there is a disputed material fact issue[,]" and "[e]very reasonable inference must be indulged in favor of the nonmovant," with "any doubts resolved in its favor." Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 896 (Tex.App.-Austin 2001, pet. denied). Summary judgment dispositions are questions of law reviewed de novo on appeal. Id. Likewise, we review questions of statutory construction de novo. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex.2008).
When a movant seeks summary judgment on the basis of an affirmative defense such as immunity, the movant has the burden of establishing every element of that defense. Eslon Thermoplastics, 49 S.W.3d at 896. "A defendant is not entitled to judgment as a matter of law on an 582*582 affirmative defense if the plaintiff supplies evidence as to any material fact issue relevant to the defense upon which reasonable minds could differ." Id.; see also Santanna Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex.App.-Austin 1997, pet. denied). Thus, we determine whether Alvarado, the nonmovant, has presented any evidence that would prevent Appellant from "conclusively establish[ing] each element of [his] defense as a matter of law." Eslon Thermoplastics, 49 S.W.3d at 896.
Immunity under the Texas Tort Claims Act
Immunity from suit strips the courts of subject-matter jurisdiction to hear the underlying claim. City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex.2008). The State of Texas has absolute sovereign immunity against any suit to which it does not consent by statute or voluntary waiver. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). The state, in turn, has granted its political subdivisions such as cities, counties, and school districts governmental immunity, which shields them and their agents from liability under the same conditions as the state itself. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). State employees who commit tortious acts within the scope of their employment may remain personally liable for those acts unless shielded by official immunity. Franka v. Velasquez, 332 S.W.3d 367, 382-83 (Tex. 2011). Employees who act outside the scope of their authority lose the benefits of official immunity and remain solely and personally liable in their individual capacities. Id. at 383
The Texas Tort Claims Act establishes a limited waiver of both sovereign and governmental immunity, allowing plaintiffs bringing suit against the state or its subdivisions to recover capped damages for certain tortious conduct identified by statute, including negligent acts of its agents committed within the scope of their employment. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008); see also TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (West 2011) (providing for recovery against the state for actions of employee for "use of a motor-driven vehicle or motor-driven equipment" within the scope of his employment). The Texas Legislature supplemented this framework in 2003 by adding in Section 101.106(a), which bars a plaintiff from suing a state employer once the plaintiff has elected to sue the employer state agency first. TEX. CIV.PRAC. & REM.CODE ANN. § 101.106(a).
Appellant contends that Section 101.106(a) and the TTCA's 2003 amendments creating other subparts of the election-of-remedies provision add in a separate layer of immunity contingent not on a state employee's conduct, but rather on a plaintiff's prior selection of a defendant. In other words, for purposes of Section 101.106(a), a state employee is placed completely outside the trial court's jurisdiction once a plaintiff files suit against the government agency if both suits would involve the same subject matter. Alvarado responds that that construing Section 101.106(a) as forever barring both official and ultra vires capacity claims against government employees extinguishes a long-held common law right to proceed against an employee acting outside the scope of his authority. We review this question of statutory construction de novo. Combs, 258 S.W.3d at 631.
Statutory Construction of the Election-of-Remedies Provision
Our primary directive in constructing statutes is to further the Legislature's intent. Fleming Foods of Tex., Inc. 583*583 v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). We begin our construction of Section 101.106(a) by looking to the plain language of the statute, recognizing that if it "is unambiguous, we adopt the interpretation supported by [the statute's] plain language unless such an interpretation would lead to absurd results." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). However, the TTCA's entire immunity mechanism, including Section 101.106(a), should also be construed as one cohesive, meaningful whole and not merely interpreted piecemeal from cherry-picked provisions. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). Likewise, the immunity mechanism "should be harmonized whenever possible" with the TTCA's other statutory provisions. Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990).
While fidelity to legislative intent is vital, adherence to the U.S. and Texas Constitutions is paramount, and thus in construing statutes "we are obligated to avoid constitutional problems if possible." Brooks v. Northglen Ass'n, 141 S.W.3d 158, 169 (Tex.2004); see also Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex.1998) ("Statutes are given a construction consistent with constitutional requirements, when possible[.]") (internal quotations and citations omitted). When a statute purports to extinguish long-held common law remedies, we must construct statutes presuming that the Legislature did not intend to displace common law remedies so as to avoid constitutional problems under the Texas Constitution's Open Courts Provision, TEX. CONST. art. I, § 13.[2] Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802 (Tex.2010); Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex.2000); see also Ron Beal, The Art of Statutory Construction: Texas Style, 64 BAYLOR L.REV. 339, 411-14 (2012). We may only find that a statute supersedes the common law where the express terms create a "clear repugnance between the two causes of action." Waffle House, Inc., 313 S.W.3d at 802 (internal citations and quotation marks omitted); Cash Am. Int'l, Inc., 35 S.W.3d at 16; Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 192 (Tex.App.-Fort Worth 1995, writ denied). Statutes that are clearly repugnant to the common law will not be strictly construed. Smith v. Sewell, 858 S.W.2d 350, 354 (Tex.1993); cf. Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969) ("[I]f a statute ... deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview.").
Section 101.106(a) does not stand alone but functions as part of an overall election-of-remedies 584*584 immunity scheme. See generally TEX.CIV.PRAC. & REM.CODE ANN. 101.106 et seq. We read Section 101.106(a) in context of the provisions of the scheme relevant to the pleading stage, which are as follows:
§ 101.106. ELECTION OF REMEDIES.
(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. We begin our analysis with the plain text. As a threshold matter, we note that the plain language of Section 101.106(a) does not draw a distinction between official and ultra vires employee liability. Instead, it serves as a permanent grant of immunity to an employee once an employer is sued. A brief review of the TTCA's legislative history appears to confirm that in this instance, the Legislature intended the immunity provisions to function precisely as Appellant contends. Following the initial passage of the TTCA, some litigants sought to circumvent the damages cap by proceeding with suits directly against government employees, who could be reached through immunity gaps in the Act's legal architecture. Garcia, 253 S.W.3d at 656, citing Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, Part Three: Detailed Analysis of the Medical Liability Reforms, 36 TEX.TECH L.REV. 169, 290-93 (2005). In response, the Texas Legislature passed the first version of TEX.CIV.PRAC. & REM.CODE ANN. § 101.106, Act of May 17, 1985, 69th Leg., R. S., ch. 959, § 1, 1985 TEX.GEN.LAWS 3242, 3305, which barred litigants from suing government employees once they had already sued the employing government entity for claims concerning the same subject matter. Garcia, 253 S.W.3d at 656. The Legislature's purpose in granting employees this immunity was "to insulate the functioning of government from the harassment of litigation, not to protect erring officials." Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994). In 2003, the Legislature amended Section 101.106 to further winnow down claims under the Texas Tort Claims Act by adding in an election-of-remedies provision requiring suit either against the governmental unit employer or the government employee in an individual capacity, but not both. Garcia, 253 585*585 S.W.3d at 656-57. In passing this provision, the Legislature intended "to force 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, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery." Id. at 657.
Thus, when read in isolation, Section 101.106(a) appears to extinguish the common law right to pursue ultra vires claims against state employees once the state agency is selected as defendant. This creates a problem under the constitutional avoidance canon, since a statute that vitiates a long-held common law right hazards an Open Courts challenge. However, in an Open Courts challenge to the pre-2003 election-of-remedies provision, the Texas Supreme Court upheld the immunity mechanism as a whole, noting that a plaintiff could "still opt to pursue the full common law remedy against the responsible employee, foregoing or postponing any attempt to recover from the government." Thomas v. Oldham, 895 S.W.2d 352, 357-58 (Tex.1995). Bearing this in mind, we retreat back one level of abstraction and interpret Section 101.106(a) in light of the post-2003 immunity mechanism as a whole to determine whether the statute actually infringes on common law ultra vires recovery or whether Alvarado had an adequate alternative for recovery at the pleading stage.
Section 101.106(f) appears to provide a plaintiff with the opportunity to bring an ultra vires claim against the state employee directly. Indeed, the only textual difference between the statute and the common law is that the Texas Legislature has provided that a plaintiff must elect to collect damages from either one entity under common law or the other entity under a statutory waiver of sovereign immunity. Since the statute provided Alvarado with the opportunity to elect Molina as the sole responsible party, the Texas Supreme Court has directed us to presume that Appellee deliberately and consciously elected to pursue recovery from the governmental entity only.
Alvarado argues that such a presumption is unreasonable and that this reading of the statute results in a harsh outcome that forces election of a defendant before the start of discovery, when the precise relationship between an agency and an employee vis-à-vis the tortious conduct is unclear. In effect, Alvarado argues that he cannot fully affect his right for ultra vires recovery because he must venture into the minefield of litigation against a state employee completely uninformed. Although ultra vires claims are technically preserved under the statute's framework in Subsection (f), as a practical matter, we do question whether the choice provided to Alvarado would have been illusory from the start.
None of the election-of-remedies pleading provisions explicitly provide the trial court with an opportunity to rule on the scope of employment issue. Subsection (f) impliedly allows suit to continue against an individual state employee unless the state employee moves to dismiss and shows that (1) the defendant is a state government unit employee, (2) he is acting "within the general scope" of employment, and (3) the suit could have been brought against the agency itself. See Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex.App.-Houston [1st Dist.] 2011, no pet.) (suit may continue unabated until defendant files motion to dismiss alleging action within scope of employment, at which point plaintiff has 30 days to implead the government agency and dismiss the employee). The 586*586 Fourteenth Court of Appeals has recognized that the limiting language of the last two conditions precedent for dismissal as articulated in Anderson is proof that Subsection (f) is constitutional under the Open Courts Provision. See Hintz v. Lally, 305 S.W.3d 761, 773 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) ("The harsh result of which Hintz complains can be avoided by holding the governmental employee who seeks dismissal under section 101.106(f) to the burden of demonstrating that suit `could have been brought under this chapter against the governmental unit.'").
However, the decision in Hintz came before changes in the legal landscape altered the scope of the last two Anderson elements. In Franka, the Texas Supreme Court has held that all tort claims "could have been brought" against an agency for purposes of the TTCA, 332 S.W.3d at 375,[3] rendering the third prong of the Anderson test essentially meaningless for all but a small set of declaratory or injunctive claims or claims that may be brought against the state under separate, explicit waivers of sovereign immunity. See, e.g., Castro v. McNabb, 319 S.W.3d 721, 731-32 (Tex.App.-El Paso 2009, no pet.) (declaratory judgment action was not brought "under the Tort Claims Act" because the Declaratory Judgment Act provided a separate waiver of sovereign immunity under which claim was brought); see also Franka, 332 S.W.3d at 393 (Medina, J., dissenting) (noting that under the majority's reading, "the statute nonsensically requires the plaintiff" to dismiss an actionable claim against the employee and "bring a claim [against the government] over which the court lacks subject matter jurisdiction"). The Hintz Court explicitly rested its constitutional ruling on the assumption that "the governmental employee who seeks dismissal under section 101.106(f)" would be held "to the burden of demonstrating that suit `could have been brought under this chapter against the governmental unit.'" Hintz, 305 S.W.3d at 773. Whether the rationale behind Hintz holds in light of Franka is an open question.
Furthermore, under prong two of the Anderson analysis, scope of employment is defined by statute as "the performance for a governmental unit of the duties of an employee's office or employment[,] ... includ[ing] being in or about the performance of a task lawfully assigned to an employee by competent authority." TEX. CIV.PRAC. & REM.CODE ANN. § 101.001(5)(West Supp. 2013). Courts interpreting this language have implicitly found that scope of employment immunity under Section 101.106 et seq. is broader than the official immunity insulating state employees from liability. In other words, an employee's actions may be ultra vires and unprotected by official immunity at common law and yet still fall broadly "within the scope of his employment" as defined by statute, thus triggering immunity for the employee.
For example, in Lopez v. Serna, 414 S.W.3d 890, 896 (Tex.App.-San Antonio 2013, no pet.), an inmate brought suit against two correctional officers in their individual capacity for allegedly confiscating property in violation of prison regulations, thereby committing theft. The trial court dismissed the claim under TEX.CIV. PRAC. & REM.CODE ANN. § 101.106(f) because they were acting within their official 587*587 capacity at the time the property was confiscated. On appeal, inmate Lopez responded that the dismissal constituted error since "the officers acted outside the scope of their employment because they had no authority to commit theft." Id. at 894. However, the San Antonio Court of Appeals affirmed the dismissal, holding that "[a]n official acts within the scope of her authority if she is discharging the duties generally assigned to her[,]" id., citing Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004), and that "an employee's scope of authority extends to job duties to which the official has been assigned, even if the official errs in completing the task" to the point of constituting theft. Lopez, 414 S.W.3d at 894.
We note that although the San Antonio Court of Appeals characterized the dismissal as coming under Section 101.106(f), the officers had never actually moved to dismiss the claim under Section 101.106(f), and the court's decision in Lopez actually rested on the ground that the action was a frivolous inmate suit under TEX.CIV.PRAC. & REM.CODE ANN. § 14.003(b)(1). Lopez, 414 S.W.3d at 895. Nevertheless, the implications are clear in a case such as this one, where it is unknown whether a defendant may have committed a crime while performing a government duty. Under Section 101.106(f), this would then create a situation in which a defendant could implead the government agency, force his own dismissal, and leave a plaintiff to bring claims that are doomed to fail against the agency on the basis of sovereign immunity. See Franka, 332 S.W.3d at 393 (Medina, J., dissenting). We question whether such a broad interpretation of "scope of employment" in Section 101.001(5) essentially swallows up the ultra vires doctrine in practice.
As such, we cannot construe Subsection (a) as eliminating the common law ultra vires action where the alternative provision that supposedly protects that right — Subsection (f) — sits on constitutionally questionable ground. Such a construction would inevitably leave the immunity mechanism as a whole open to an Open Courts challenge. We also do not find a clear repugnance between Subsection (a) and the common law remedy against employees acting ultra vires. Instead, when read as part of the overall immunity mechanism, we believe that Subsection (a) is correctly read as barring suit against an employee only where that employee is being sued in his official capacity, i.e. only where the employee was actually acting within the scope of his employment. Indeed, the Legislature's purpose in passing the original immunity provisions was "to insulate the functioning of government from the harassment of litigation, not to protect erring officials." Kassen, 887 S.W.2d at 8. Even assuming a repugnance, we strictly construe a statute in derogation of the common law against abrogation in "cases not clearly within its purview." Smith, 858 S.W.2d at 354. We seriously doubt that the Texas Legislature intended to extend immunity to city employees driving vehicles under the influence of alcohol. Whether the employee is actually acting within the scope of employment — in which case the employee is sued in his official capacity and serves merely as a jurisdictional stand-in for the agency — is a question of fact for the trial court to decide. As such, whether Molina was actually driving the City of McCamey vehicle within the scope of his employment or under the influence of alcohol are both questions of material fact that prevent a grant of summary judgment.
Appellant's sole issue is overruled. We affirm the trial court's denial of summary judgment.
[1] There is no indication from the clerk's record that the trial court ever ruled on the City's motion to dismiss.
[2] Under the Texas Constitution's Open Courts Provision, a statute may be struck down as unconstitutional where a litigant has shown (1) "a cognizable common law cause of action that is being restricted[,]" and (2) "that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute." Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983). However, the appellate courts cannot consider an Open Courts challenge unless it is preserved for review in a reply brief at the summary judgment stage. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex.2002) ("The record reflects that Grant did not raise her open-courts challenge in her response to SWEPCO's summary-judgment motion. Accordingly, she did not preserve this argument."); see also S.V. v. R.V., 933 S.W.2d 1, 25 (Tex.1996); City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986) ("Even constitutional challenges not expressly presented to the trial court by written motion, answer or other response to a motion for summary judgment will not be considered on appeal as grounds for reversal.") (internal citation and quotation marks omitted). As such, we view statutory construction and constitutionality as two separate questions and address only statutory construction.
[3] See also Rodriguez v. Christus Spohn Health System Corp., 628 F.3d 731 (5th Cir.2010) (finding that compensatory claims against hospital based on the violation of certain statutory medical duties "sounded in tort" and were sufficient to trigger the immunity provisions of Section 101.106 as being "under the Texas Tort Claims Act").

Interpretation of insurance policies (contract construction) (Tex. 2015)

       

CONTRACT CONSTRUCTION - INSURANCE POLICY

    

An insurance policy is a contract, generally governed by the same rules of construction as all other contracts. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010). When construing a contract, our primary concern is to ascertain the intentions of the parties as expressed in the document. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 514 (Tex. 2014). We begin our analysis with the language of the contract because it is the best representation of what the parties mutually intended. Gilbert Tex. Constr., 327 S.W.3d at 126; see also Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 451 (Tex. 2011). Unless the policy dictates otherwise, we give words and phrases their ordinary and generally accepted meaning, reading them in context and in light of the rules of grammar and common usage. See Gilbert Tex. Constr., 327 S.W.3d at 126; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). We strive to give effect to all of the words and provisions so that none is rendered meaningless. See Gilbert Tex. Constr., 327 S.W.3d at 126; Forbau, 876 S.W.2d at 133. “No one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” Forbau, 876 S.W.2d at 134 (quoting Guardian Trust Co. v. Bauereisen, 121 S.W.2d 579, 583 (Tex. 1938)).

     

When construing an insurance policy, we are mindful of other courts’ interpretations of policy language that is identical or very similar to the policy language at issue. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 824 (Tex. 1997). “Courts usually strive for uniformity in construing insurance provisions, especially where . . . the contract provisions at issue are identical across the jurisdictions.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 522 (Tex. 1995); see also Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 496–97 (Tex. 2008) (“We have repeatedly stressed the importance of uniformity ‘when identical insurance provisions will necessarily be interpreted in various jurisdictions.’”) (quoting Cowan, 945 S.W.2d at 824).

   

RSUI and Lynd offer conflicting constructions of the Scheduled Limit of Liability endorsement. If only one party’s construction is reasonable, the policy is unambiguous and we will adopt that party’s construction. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 459 (Tex. 1997). But if both constructions present reasonable interpretations of the policy’s language, we must conclude that the policy is ambiguous. See id. at 458; Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex. 1998). In that event, “we must resolve the uncertainty by adopting the construction that most favors the insured,” and because we are construing a limitation on  

coverage, we must do so “even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991). “This widely followed rule is an outgrowth of the general principle that uncertain contractual language is construed against the party selecting that language,” and is “justified by the special relationship between insurers and insureds arising from the parties’ unequal bargaining power.” Balandran, 972 S.W.2d at 741 n.1 (citing STEVEN PLITT, ET AL., 2 COUCH ON INSURANCE § 22.14 (3d ed. 1997); Arnold v. Nat’l Cnty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987)).

In contract law, the terms “ambiguous” and “ambiguity” have a more specific meaning than merely denoting a lack of clarity in language. Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951). “An ambiguity does not arise simply because the parties offer conflicting interpretations.” Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). Instead, “a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Daniel, 243 S.W.2d at 157; see Balandran, 972 S.W.2d at 741. Thus, a contract is ambiguous only if, after applying the rules of construction, it remains “subject to two or more reasonable interpretations.” Balandran, 972 S.W.2d at 741. Our task in this case is to determine whether Lynd’s construction of the RSUI policy is reasonable. If it is, we must enforce that construction, even if RSUI’s construction is also reasonable. 

SOURCE: Texas Supreme Court – No. 13-0080 - 5/8/2015  

Conclusion

We hold that the Scheduled Limit of Liability endorsement at issue in this case is reasonably subject to both parties’ proposed constructions and that the endorsement is therefore ambiguous. Because our rules require us to construe an insurance policy’s ambiguous coverage limitation in favor of coverage for the insured, we affirm the court of appeals’ judgment adopting Lynd’s proposed construction. 

SOURCE: RSUI Indemnity Company v The Lynd Company, No. 13-0080 (Tex. May 8, 2015)

(Opinion by Boyd)(Hecht wrote a dissenting opinion)  

      

Business disparagement and defamation of an individual distinguished (In re Lipsky Tex 2015)

 
TWO DISTINCT TORTS: BUSINESS DISPARAGEMENT AND "CHARACTER ASSASSINATION" (DEFAMATION)
   
Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). The respective torts, however, serve different interests.

Whereas “defamation actions chiefly serve to protect the personal reputation of an injured party, [] a business disparagement claim protects economic interests.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). Business disparagement or “injurious falsehood applies to derogatory publications about the plaintiff’s economic or commercial interests.” 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS § 656, at 615 (2d ed. 2011).

The tort does not seek to redress dignitary harms to the business owner, but rather redresses aspersions cast on the business’s commercial product or activity that diminishes those interests. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766–67 (Tex. 1987).

A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage, 447 S.W.3d 249, 261 n.6 (Tex. 2014). Impugning one’s reputation is possible without disparaging its commercial interests and vice versa. Depending on the circumstances, then, a plaintiff may have a claim for defamation, or for business disparagement, or both.

ELEMENTS OF BIZ DISPARAGEMENT CAUSE OF ACTION 

“To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.” Forbes, 124 S.W.3d at 170 (citing Hurlbut, 749 S.W.2d at 766). 

SOURCE: TEXAS SUPREME COURT - No. 13-0928 - IN RE STEVEN LIPSKY 
[Opinion by Justice Divine in pdf] - 4/24/2015 

CITATION: In re Lipsky, No. 13-0928, ___ S.W.3d ___ (Tex. 2015) 

COA OPINION BELOW: In re Lipsky, 411 S.W.3d 530 (Tex.App.-Fort Worth 2013, orig. proceeding)   

IN RE STEVEN LIPSKY

No. 13-0928.

Supreme Court of Texas.

Argued December 4, 2014.

Opinion Delivered: April 24, 2015.

JUSTICE DEVINE delivered the opinion of the Court.

JOHN P. DEVINE, Justice.

The Texas Citizens Participation Act (TCPA)[1] protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. The protection consists of a special motion for an expedited consideration of any suit that appears to stifle the defendant's communication on a matter of public concern. Id. § 27.003. In reviewing that motion, the trial court is directed to dismiss the suit unless "clear and specific evidence" establishes the plaintiffs' "prima facie case." Id. § 27.005(c). When applying the Act's requirement for clear and specific evidence, however, the courts of appeals disagree about the role of circumstantial evidence.

Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The court of appeals here considered circumstantial evidence, and we agree that clear and specific evidence under the Act includes relevant circumstantial evidence. 411 S.W.3d 530, 546 (Tex. App.-Fort Worth 2013). We further agree, generally, with the court of appeals's disposition of the proceedings below and accordingly deny all relief requested here.

I. Background and Procedural History

Steven and Shyla Lipsky own several acres in Weatherford, Texas. In 2005 they drilled a well on their property to a depth of about two hundred feet to provide water to a cabin and boathouse. In 2009 they finished a house on the property, connecting the well to their new home. That same year, Range Resources Corporation and Range Production Company drilled two gas wells about a half-mile from the Lipskys' property.

A few months after moving into their new home, the Lipskys experienced mechanical problems with their well. They contacted a well-servicing company, which identified the problem as "gas locking," a condition typically associated with an excess of natural gas in the ground water. A submersible pump's ability to transport water from a well can be affected when too much gas is in the water.

Concerned about the gas in their well water, the Lipskys contacted local health officials who referred them to Alisa Rich, an environmental consultant with Wolf Eagle Environmental. After tests, Rich confirmed the presence of methane and other gases in the well. About this time, Lipsky made a video of himself lighting gas escaping from a garden hose attached to his well. To produce this effect, Lipsky connected the hose to a vent on his water well. He shared his video with the Environmental Protection Agency (EPA) and the media, which reported on the flammable nature of Lipsky's water well. He also complained about the gas in his well to the Texas Railroad Commission. Lipsky's own investigation led him to believe that Range, the oil and gas operator closest to his property, had some responsibility for contaminating his ground water.

Both the EPA and Railroad Commission began investigating Lipsky's complaints. The EPA initially concluded that Range's production activities had contributed to the gas in the Lipskys' well water and that the situation could be hazardous to health and safety. The federal agency ordered Range to provide the Lipskys potable water and to install explosivity meters at their property.

The Railroad Commission completed its investigation a few months later. Although invited to participate in the Commission's evidentiary hearing, the Lipskys declined. The Commission thereafter concluded that Range's operations in the area were not the source of the contamination. Lipsky immediately denounced the Railroad Commission's decision in the media and continued to blame Range, pointing to the EPA's action and his expert's opinions.

The Lipskys thereafter sued Range and others involved in developing their residential area. As to Range, they alleged that its fracking operations near their property were negligent, grossly negligent, and a nuisance. They asserted that Range's operations contaminated their water well, causing the water to become flammable and their home uninhabitable. Range answered the suit and moved to dismiss all claims as an improper collateral attack on the Railroad Commission's ruling. Range also filed a counterclaim against the Lipskys and a third-party claim against Rich (the Lipskys' environmental consultant) alleging defamation, business disparagement, and a civil conspiracy. The Lipskys and Rich responded by moving to dismiss Range's counter-attack as an improper attempt to suppress their First Amendment rights guaranteed under the Constitution and protected by the Texas Citizens Participation Act. TEX. CIV. PRAC. & REM. CODE § 27.005.

The trial court granted Range's motion to dismiss, agreeing that the Lipskys' claims were an improper collateral attack on the Commission's determination. The court also declined to dismiss Range's claims against the Lipskys and Rich by denying their motions to dismiss under the Texas Citizens Participation Act. The Lipskys and Rich attempted an interlocutory appeal from this latter ruling, but the court of appeals dismissed the appeal for want of jurisdiction.[2] See Lipsky v. Range Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1 (Tex. App.-Fort Worth Aug. 23, 2012, pet. denied) (mem. op.). The court, however, allowed the challenge to proceed as an original proceeding. 411 S.W.3d at 536. Meanwhile, the EPA withdrew its administrative order against Range without explanation. See Joint Stipulation of Dismissal Without Prejudice, United States v. Range Prod. Co., No. 3:11-CV-00116-F (N.D. Tex. Mar. 30, 2012).

The court of appeals thereafter determined that the Texas Citizens Participation Act required the dismissal of Range's claims against Lipsky's wife, Shyla, and his environmental consultant, Rich, and that the trial court had accordingly abused its discretion in not dismissing those claims. 411 S.W.3d at 554. The court further determined that the TCPA did not similarly require dismissal of all of Range's claims against Lipsky.[3] Id. at 546. The court of appeals granted mandamus relief to Lipsky's wife and consulant, while denying similar relief to Lipsky, prompting both Lipsky and Range to seek mandamus relief in this Court. In their respective petitions, Lipsky argues that the TCPA required the trial court to dismiss all claims against him also, while Range argues that the TCPA did not require the dismissal of any claims. The Lipsky petition accordingly concludes that the trial court abused its discretion in failing to grant his TCPA motion. The Range petition, on the other hand, concludes that the court of appeals abused its discretion in granting mandamus relief to Lipsky's wife, his environmental consultant, and Lipsky himself (in part) because the TCPA did not require it.

II. The Texas Citizens Participation Act

As already mentioned, the Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. See House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment rights. Under the first step, the burden is initially on the defendant-movant to show "by a preponderance of the evidence" that the plaintiff's claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech;[4] (2) the right to petition;[5] or (3) the right of association."[6] TEX. CIV. PRAC. & REM. CODE § 27.005(b). If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c).

Scope of Texas Citizen Participation Act: What kind of communications does it cover? - Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015)

In a per curiam opinion handed down April 24, 2015, the Texas Supreme Court holds that the Texas Citizens Participation Act (TCPA) does not require a communication be in public form to qualify for protection. Under the Act, a defendant in a defamation suit or similar action may move to dismiss a claim involving the exercise of the right to free speech upon a showing that the communication was made in connection with a matter of public concern, here involving the quality of medical care. The Supreme Court reversed the Texarkana Court of Appeal, which had found the TCPA inapplicable, and remanded to that court for further proceedings.    

Lippincott v Whisenhunt, No. 13-0926 (Tex. April 24, 2015) 

OPINION EXCERPT]

To assert a motion to dismiss under the Act, the defendant must show “by a preponderance 2 of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of . . . the right of free speech.” Id. § 27.005(b). The statute broadly defines “the exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). Under this definition, the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern. We address each element in turn. First, the statute defines “communication” as “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). 

The court of appeals concluded that because the purpose of the Act, as described in section 27.002, includes the phrase “otherwise participate in government,” the Act only protects public communication. 416 S.W.3d at 697. 

We disagree. 

This statute defines “communication” to include any form or medium, including oral, visual, written, audiovisual, or electronic media—regardless of whether the communication takes a public or private form. TEX. CIV. PRAC. & REM. CODE § 27.001(1). The plain language of the statute imposes no requirement that the form of the communication be public. Had the Legislature intended to limit the Act to publicly communicated speech, it could have easily added language to that effect. See In re M.N., 262 S.W.3d at 802. In the absence of such limiting language, we must presume that the Legislature broadly included both public and private communication. TEX. CIV. PRAC. & REM. CODE § 27.011.

Sovereign immunity and governmental immunity in Texas (2015 caselaw snips)

SOVEREIGN IMMUNITY AND ULTRA VIRES DOCTRINE  

Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). Immunity from suit bars an action against the state unless the state expressly consents to the suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The party suing the governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission. Id. We interpret statutory waivers of immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous. Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (citing TEX. GOV'T CODE ANN. § 311.034 (West, Westlaw through 2013 3d C.S.)).

Under the ultra vires exception to immunity, "suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (explaining the ultra vires exception to immunity). However, such claims cannot be brought against Weslaco, because it retains immunity; therefore, the claims must be brought against Ramirez in her official capacity. See id. at 373. Accordingly, the trial court did not err in dismissing the claims against Weslaco for lack of jurisdiction.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - No. 13-14-00054-CV - 1/8/ 2015

Open Courts challenge under the Texas Constitution - Abrogation of Common-Law rights by the Lege

LEGISLATIVE INFRINGEMENT ON RIGHT/REMEDIES AVAILABLE UNDER THE COMMON LAW 

The open-courts provision prohibits arbitrary or unreasonable legislative action that abrogates well-established, common-law remedies. Lebohm v. City of Galveston, 154 Tex. 192, 199 275 S.W.2d 951, 955 (1955) (op. on reh'g). It ensures that Texas citizens bringing common-law causes of action will not unreasonably be denied the right to redress in the courts. Rose v. Doctor's Hosp., 801 S.W.2d 841, 843 (Tex. 1990).

We review the constitutionality of a statute de novo, see Stockton v. Offenbach, 336 S.W.3d 610, 614-15 (Tex. 2011), beginning with the presumption that the statute is constitutional. TEX. GOV'T CODE ANN. § 311.021(1) (West 2013); Sax v. Votteler, 648 S.W.2d 661 664 (Tex. 1983); see also Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010).

To establish an open-courts violation, Cohen must demonstrate that (1) the statute restricts a well-recognized, common-law cause of action (the well-recognized prong) and (2) the restriction is unreasonable or arbitrary when balanced against the Act's purpose (the balance prong). Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995); Sax, 648 S.W.2d at 666.

A statute does not violate the open courts provision of the Texas Constitution if there are adequate substitute methods for obtaining redress. Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex. App.-Houston [1st Dist.] 1993, no writ) ("In determining the restrictive effect of the statutory provision at issue, the court must also consider whether the legislature has avoided an unconstitutional result by providing a substitute remedy or by leaving a reasonable alternative at common law."). A statute may, however, violate the open-courts provision "when it makes a remedy by due course of law contingent on an impossible condition." In re D.M., 191 S.W.3d 381, 391 (Tex. App.-Austin 2006, pet. denied).

SOURCE: HOUSTON COURT OF APPEALS - Nos. 01-13-00267-CV, 01-13-00233-CV - 2/26/2015 

We reject Cohen's open-courts challenge because he has not been deprived of a common law right. Cohen has not been prevented from suing for damages under the theories of breach of fiduciary duty, fraud, constructive fraud, and breach of contract. Cohen's challenge is directed only at the statutory provision allowing for expungement of a lis pendens if the requisite evidentiary showing is not met. TEX. PROP. CODE §12.0071(c)(2). A lis pendens is not a cause of action or a lien; it is a means of providing constructive notice of an alleged real property claim. TEX. PROP. CODE §13.004(a). Cohen was allowed, by statute, to file a notice of lis pendens to serve as constructive notice of his claims. He was given the opportunity to maintain that notice of lis pendens by demonstrating the probable validity of his real property claim. He had the opportunity to challenge, in an original proceeding in this Court, the trial court's determination that he had not demonstrated the probable validity of his real property claim. He has not established an open courts violation. Cf. Francis v. Coastal Oil & Gas, Inc., 130 S.W.3d 76, 92 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute eliminating liability of property owner for independent contractor's injuries unless the property owner exercises sufficient control over the work and has knowledge of the danger does not violate the open courts provision because it only "delineates the evidentiary showing a plaintiff must meet to prevail on a claim of negligence against a property owner"); Freedman v. Univ. of Houston, 110 S.W.3d 504, 508 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute requiring legislative consent to sue university for breach of contract did not violate open courts because it does not eliminate right to sue).

Suit-within-Suit Requirement in Legal Malpractice Case (2015)

THE CAUSATION ELEMENT IN AN ATTORNEY MALPRACTICE CLAIM 

To establish causation where a legal malpractice claim arises from a prior suit, the plaintiff must establish that but for her attorney's negligence, "she would be entitled to judgment." Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.-El Paso 2010, no pet.); see MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31-32 (Tex. App.-Houston [14th Dist.] 1987, no writ) (attorney's failure to respond to summary judgment motion alone not enough to support legal malpractice claim; plaintiff must also show suit would have survived summary judgment and that the suit would have been successful but for the attorney's negligence).

This burden is often referred to as the "suit within a suit" requirement. Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-00541-CV - 1/7/2015

A trespass to try title action is what?

WHAT DOES TRESPASS TO TRY TITLE MEAN? 

The Texas Property Code provides in part, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a) (West 2014).

ELEMENTS OF PROOF 

"To prevail in a trespass-to-try-title action, a plaintiff must usually (1) prove a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned." Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex. App.-Dallas 2013, no pet.).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-01581-CV - 1/21/2015

In Coinmach Corp. v. Aspenwood Apartments Corp., 417 S.W.3d 909, 926 (Tex. 2013), the supreme court stated as follows:

We have previously held that, when "the trespass-to-try-title statute governs the parties' substantive claims . . ., [the plaintiff] may not proceed alternatively under the Declaratory Judgments Act to recover their attorney's fees." Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). In so holding, we noted that the Legislature has provided the trespass-to-try-title statute as "the method of determining title to . . . real property," and the Legislature did not provide for attorney's fees in such actions. Id. (citing TEX. PROP.CODE § 22.001(a)) (emphasis added).. . . .

It is undisputed that the present case requires determination of the parties' possessory rights to the property. We see no legitimate basis to distinguish this case from Martin, in which we affirmed and upheld the Legislature's intent that chapter 22 of the Texas Property Code govern the resolution of disputes involving legal interests in real property.

Id. (emphasis original); see also Sani v. Powell, 153 S.W.3d 736, 745 (Tex. App.-Dallas 2005, pet. denied) (stating "[a]ny suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form" and attorney's fees pursuant to the declaratory judgments act "are not available in a suit to quiet title or to remove cloud on title"). Although both sides in the case before us couched their claims in terms of requests for declarations, everything requested of the court is necessary to, and a component of, the ultimate relief sought, which is to clear title to the front strip.[12] See Sani, 153 S.W.3d at 746. Accordingly, we conclude the Furnisses were not entitled to an award of attorney's fees under the declaratory judgments act and the trial court abused its discretion by awarding those fees. Id.; see Coinmach Corp., 417 S.W.3d at 926; XTO Energy, Inc., 357 S.W.3d at 62-63 (concluding that although validity of deed was contested, essence of suit was title dispute and therefore award of attorney's fees pursuant to declaratory judgments act was improper); see also RIHR Inc., 308 S.W.3d at 454.

We decide in ADLO's favor on its fifth issue.

SOURCE: FIFTH COURT OF APPEALS IN DALLAS TEXAS - No. 05-13-01581-CV - 1/21/2015

Premises Liability Case - Necessary Elements of Proof (2015)

PREMISES LIABILITY CLAIMS IN TEXAS - ELEMENTS OF PROOF  

In a premises liability case, the plaintiff must establish a duty owed to the plaintiff, breach of the duty, and damages proximately caused by the breach. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)(citations omitted); Chappell v. Allen, 414 S.W.3d 316, 323 (Tex.App.-El Paso 2013, no pet.)(threshold question in a premises liability case, as with any cause of action based on negligence, is existence of and violation of a duty).

Whether a duty exists is a question of law for the court and turns "on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant." Del Lago Partners, Inc., 307 S.W.3d at 767.

STATUS OF INJURED PARTY IN RELATION TO PRESENCE ON PROPERTY WHERE INJURY OCCURRED IS IMPORTANT

The duty owed by a premises owner or occupier is determined by the status of the complaining party at the time and place of injury. Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010); Del Lago Partners, Inc., 307 S.W.3d at 767 (in premises liability cases, scope of duty turns on the plaintiff's status); Chappell, 414 S.W.3d at 323. The status of the complaining party in a premises liability case may be that of an invitee, a licensee, or a trespasser. See Scott & White Mem'l Hosp., 310 S.W.3d at 412 (invitee); Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936)(licensee and trespasser); Chappell, 414 S.W.3d at 323 (invitee and licensee); Forester v. El Paso Elec. Co., 329 S.W.3d 832, 837 (Tex.App.-El Paso 2010, no pet.)(invitee and licensee); Wong v. Tenet Hosp. Ltd, 181 S.W.3d 532, 537 (Tex.App.-El Paso 2005, no pet.)(examining status as invitee, licensee, and trespasser); City of El Paso v. Zarate, 917 S.W.2d 326, 330 (Tex.App.-El Paso 1996, no writ)(trespasser and licensee); see also Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 106 (Tex.App.-El Paso 1997, writ denied)(status may change based on person's location on premises).

An invitee is a person who enters the premises of another at the express or implied invitation of the owner or occupier for the parties' mutual benefit. Chappell, 414 S.W.3d at 323; Forester, 329 S.W.3d at 837.

Diez was Alaska's invitee. Generally, a property owner owes an invitee a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known. See Del Lago Partners, Inc., 307 S.W.3d at 767; TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009)(premises owners and occupiers owe a duty to keep their premises safe for invitees against known conditions that pose unreasonable risks of harm). The duty is to "take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition." TXI Operations, L.P., 278 S.W.3d at 764-65 (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)). When such a duty is owed, the premises owner or occupier must either adequately warn of the dangerous condition or make the condition reasonably safe. See TXI Operations, L.P., 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996)(per curiam).

Thus, as an invitee asserting a premises liability claim, Diez was required to prove: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator's failure to use such care proximately caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

SOURCE: EL PASO COURT OF APPEALS - No. 08-13-00144-CV - 1/7/2015

Expert Report Requirements in Med-Mal Case as articulated in recent (2015) appellate opinions

HEALTH CARE LIABILITY CLAIMS IN TEXAS - THE STATUTORY EXPERT REPORT REQUIREMENT 

The Medical Liability Act provides that a claimant in a health care liability claim shall serve an expert report showing that the claim has merit within 120 days of the date the suit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014).

Section 74.351 requires the expert report to provide a fair summary of the expert's opinions regarding: (1) the applicable standards of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

The expert report need not marshal all of the plaintiff's proof, but it must demonstrate an objective good faith effort to comply with the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859; Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).

To constitute a good faith effort to comply with the statute, the report must provide enough information to fulfill two purposes: it must (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. In making this determination, we review the information contained within the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

A conclusory report does not fulfill these two purposes. Palacios, 46 S.W.3d at 879. "[R]ather, the expert must explain the basis of his statements to link his conclusions to the facts." Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). The Act grants the trial court discretion to grant a plaintiff who timely serves a report one 30-day extension to cure its deficiencies. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).

SOURCE: FIRST COURT OF APPEALS OF TEXAS - 01-14-00448-CV - 2/26/2015

Expert Report Statutory Requirements

The Texas Civil Practice and Remedies Code defines an expert report as:

a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2014).

Further, the statute provides that a "court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report." Id. at § 74.351(l). A good faith effort has been defined as a report that does not contain a material deficiency. Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011). Therefore, the report must include all the required elements and explain their connection to the defendant's conduct in a non-conclusory fashion. Id. at 410. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. Palacios, 46 S.W.3d at 878.

The purpose of an expert report under section 74.351 is to inform the defendants of the specific conduct the plaintiff has called into question and to provide the trial court with a basis to determine whether the plaintiff's claims have merit. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.-Houston [14th Dist.] 2011, no pet.). A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these purposes. Palacios, 46 S.W.3d at 879. Instead, the expert must explain the basis of his statements to link his conclusions to the facts. Kingwood Pines Hosp., LLC, 362 S.W.3d at 747.

SOURCE: DALLAS COURT OF APPEALS  - 05-14-00586-CV - 3/6/2015

(In view of Dr. Mansfield's general and conclusory statements in his reports, we conclude that the trial court abused its discretion by failing to dismiss the claims against Senior Care Center. We resolve the issues against Senior Care Centers, reverse the trial court's order, and remand the case to the trial court for dismissal and a determination of attorney's fees and costs of court pursuant to section 74.351(b) of the TMLA. See PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 551 (Tex. 2013).)

Health care liability case governed by the Texas Medical Liability Act.  

Tex. Civ. Prac. & Rem. Code §§ 74.001-.507

The Act entitles a defendant to dismissal of a health care liability claim if she has not been served with an expert report showing that the claim has merit within 120 days of the date suit was filed. § 74.351(a)-(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial court's refusal to dismiss may be immediately appealed. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a trial court's denial of a motion to dismiss under section 74.351 for abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.-Houston [14th Dist.] 2013, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); Scoresby, 346 S.W.3d at 549. It also authorizes a trial court to give a plaintiff who meets the 120-day deadline an additional 30 days to cure any deficiencies in the report. Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 549. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. See Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

An expert report must provide a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Bailey, 402 S.W.3d at 361-62. In compliance with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Bailey, 402 S.W.3d at 362.

A report may not merely contain the expert's conclusions about these elements. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 362. The expert must explain the basis for his statements and link his conclusions to the facts. Jelinek, 328 S.W.3d at 539. However, a plaintiff need not present all the evidence necessary to litigate the merits of her case. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 879 (Tex. 2001); Bailey, 402 S.W.3d at 362. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Bailey, 402 S.W.3d at 362. The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012); Scoresby, 346 S.W.3d at 554. Thus, it is only a threshold mechanism to dispose of claims lacking merit. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).

The standard of care is defined by what an ordinarily prudent health care provider or physician would have done under the same or similar circumstances. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. Identifying the standard of care is critical: whether a defendant breached her duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. While a "fair summary" is something less than a full statement of the applicable standard of care nd how it was breached, even a fair summary must set out what care was expected, but not given. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366.

SOURCE: HOUSTON COURT OF APPEALS - 14TH DISTRICT - 14-14-00527-CV - 1/22/2015