Opinion
07-22-00315-CV
04-27-2023
ANDREW C. LIVINGSTON, APPELLANT v. ERIC ERLANDSON, ET AL., APPELLEES
On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV22-00213, Honorable Lee Gabriel, Sitting by Assignment
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
ALEX L. YARBROUGH, JUSTICE
Appellant, Andrew Colby Livingston, proceeding pro se, appeals the trial court's order granting the joint motion to dismiss filed by Appellees, Eric Erlandson and John Morris, pursuant to Rule 91a of the Texas Rules of Civil Procedure. Livingston raises a single issue: the trial court abused its discretion in granting the motion to dismiss. We affirm.
Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001. Should a conflict exist between precedent of the Second Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
Background
Livingston sued Erlandson, a Cooke County Assistant District Attorney, and Morris, the presiding Judge of the Cooke County Court at Law, based on a criminal case prosecuted by Erlandson in 2018 in which Livingston was found guilty and sentenced to life without parole for sexually abusing a girl under the age of fourteen.
On June 21, 2022, Livingston filed this lawsuit against Erlandson and Morris. Livingston brought fraudulent inducement and breach of contract claims and sought declaratory relief against Erlandson. Each of Livingston's claims stem from Erlandson's decision not to pursue a child pornography charge against Livingston. While Livingston listed Morris as a "defendant" in his original petition, he pleaded no actual claims against Morris.
Erlandson and Morris filed a motion to dismiss under Rule 91a of the Texas Rules of Civil Procedure, which included arguments they were entitled to absolute prosecutorial immunity and judicial immunity, respectively. The trial court granted the motion to dismiss in its entirety and dismissed all claims brought by Livingston against Erlandson and Morris with prejudice. This appeal followed.
Standard of Review
Under Rule 91a, a party may move for dismissal on the ground that a cause of action has no basis in law or fact. TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. In ruling on a Rule 91a motion to dismiss, a court may not consider evidence but "must decide the motion based solely on the pleading of the cause of action, together with any [permitted] pleading exhibits." TEX. R. CIV. P. 91a.6. We review the merits of a Rule 91a ruling de novo; whether a defendant is entitled to dismissal under the facts alleged is a legal question. In re Farmers Tex. Cty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (citing City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam)).
In deciding a Rule 91a motion to dismiss, we construe the pleadings liberally in the plaintiff's favor, look to the plaintiff's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact. Foster v. Foster, No. 02-20-00327-CV, Tex.App. LEXIS 4632, at *2-3 (Tex. App.-Fort Worth June 10, 2021, pet. denied). The dismissal grounds under Rule 91a have been analogized to a plea to the jurisdiction, which requires a court to determine whether the pleadings allege facts demonstrating jurisdiction. Sanchez, 494 S.W.3d at 724-25. Immunity is a proper basis of a Rule 91a motion to dismiss. See Bethel v. Quilling, Selander, Lownds, Winslett &Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020) (holding that an affirmative defense, such as attorney immunity, can be the basis of a Rule 91a motion).
Erlandson is Entitled to Derived Immunity
Erlandson contends that dismissal with prejudice was proper because he was sued for acts committed in his official capacity as a Cooke County Assistant District Attorney, and therefore, he is afforded absolute immunity. As a Cooke County Assistant District Attorney, Erlandson is entitled to derived judicial immunity, a form of absolute immunity, for actions intimately associated with the judicial phase of the criminal process, including actions in connection with the prosecution of Livingston. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (recognizing that prosecutors have absolute immunity to suits under 42 U.S.C. § 1983); Charleston v. Pate, 194 S.W.3d 89, 91 (Tex. App.-Texarkana 2006, no pet.) (stating that district attorneys and prosecutors are absolutely immune when performing their prosecutorial functions). Therefore, unless an exception to Erlandson's immunity claim exists, Livingston is not entitled to the relief sought. See Roy v. Shannon, No. 02-13-00238-CV, 2014 Tex.App. LEXIS 9305, at *6 (Tex. App.-Fort Worth Aug. 21, 2014, no pet.) (citing Higgins v. Blount, No. 07-12-00093-CV, 2013 Tex.App. LEXIS 6168 at *2 (Tex. App.-Amarillo May 17, 2013, pet. denied) (mem. op.)).
While not alleged on appeal, Livingston argued at the trial court level that because he is seeking declaratory and injunctive relief, not money damages, the ultra vires exception waives Erlandson's immunity. Under this exception, immunity "does not preclude prospective injunctive remedies in officialcapacity suits against government actors who violate statutory or constitutional provisions." City of El Paso v. Heinrich, 284 S.W.3d 366, 368-69 (Tex. 2009). Livingston is seeking retrospective declaratory relief that certain past acts and omissions violated his rights. Although the ultra vires exception to governmental immunity permits prospective declaratory and injunctive relief, it does not permit relief for acts and omissions Livingston believes were already committed. See Higgins, No. 07-12-00093-CV, 2013 Tex.App. LEXIS 6168, at *3 (citing Heinrich, 284 S.W.3d at 374-77). Accordingly, even if alleged on appeal, the ultra vires exception does not apply.
Here, all of Livingston's causes of action against Erlandson arise from the decision to not prosecute Livingston for a specific crime. Accordingly, Erlandson is entitled to derived immunity because he acted in his official governmental capacity. See Charleston, 194 S.W.3d at 91. Therefore, we hold the trial court did not abuse its discretion by granting Erlandson's Rule 91a motion and dismissing Livingston's claim with prejudice. Accordingly, we overrule Livingston's single issue as it applies to Erlandson.
Morris is Entitled to Judicial Immunity
Livingston filed "Plaintiff's Supplimental [sic] Pleading" which reads as a response to Morris's motion to dismiss. In this "response" Livingston provided the following:
"Defendant has shown and Plaintiff agrees that Defendant Morris should be dismissed from this suit due to Plaintiff's mistake as to which judge should be a party hereto as outlined in Defendant's pleadings. Plaintiff apologizes for his mistake, both to the Court, and to Mr. Morris."
On appeal, Livingston is simply concerned that his entire lawsuit may have been dismissed for his mistaken inclusion of Morris. In any event, the trial court correctly dismissed Morris from this lawsuit because Livingston failed to allege a cause of action against Morris with a basis in law or fact. Moreover, Livingston agreed in his "response" that Morris was not a proper party. Therefore, we hold the trial court did not abuse its discretion by granting Morris's Rule 91a motion and dismissing Livingston's claim with prejudice. Accordingly, we overrule Livingston's single issue as it applies to Morris.
Conclusion
Having overruled Livingston's single issue, we affirm the trial court's judgment.