Opinion
01-21-00070-CV
09-01-2022
OBED VALDEZ, Appellant v. CITY OF HOUSTON, Appellee
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2020-58660
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY, JUSTICE
In this personal injury suit, Obed Valdez ("Valdez") appeals the trial court's order granting summary judgment in favor of the City of Houston ("City") on his negligence claims. In his sole issue, Valdez contends the trial court erred in granting summary judgment because genuine issues of material fact exist on an element of the City's affirmative defense of governmental immunity. We affirm.
Background
On January 28, 2019, at 6:09 p.m., Valdez was traveling northbound in the 16200 block of Tomball Parkway when his car was struck from behind by an unmarked police car driven by Houston Police Department ("HPD") Officer J.L. Martinez ("Officer Martinez"). Valdez sued the City asserting claims of negligence and negligence per se, negligent entrustment, and negligent hiring, supervision, retention, and training. The City answered asserting a general denial and general and affirmative defenses, including governmental immunity.
Valdez propounded his first set of interrogatories and requests for admissions on the City. On October 27, 2020, the City served its responses and objections to Valdez's first set of requests for admissions, answering Requests Nos. 2 and 7 as follows:
REQUEST FOR ADMISSION NO. 2
Admit that Defendant [J.L.] Martinez was employed by You on January 28, 2019.
OBJECTION: Assumes facts not in evidence. Harassment. Officer J.L. Martinez is not a defendant in this lawsuit. Subject to and without waiving the foregoing objections:
RESPONSE: Officer J.L. Martinez was employed at the time of the accident made the basis of this lawsuit, it is admitted. The remainder is denied.
REQUEST FOR ADMISSION NO. 7 Admit that Defendant [J.L.] Martinez was acting within the scope of her employment with You on January 28, 2019.
OBJECTION: Assumes facts not in evidence. Harassment. Officer J.L. Martinez is not a defendant in this lawsuit. Subject to and without waiving the foregoing objections:
RESPONSE: Officer J.L. Martinez was acting within the scope of her employment at the time of the accident made the basis of this lawsuit, it is admitted. The remainder is denied.
Two weeks later, the City served its amended objections and responses to Requests for Admissions Nos. 2 and 7 and requested leave from the trial court to amend its initial discovery responses. In response to Request No. 2, the City answered, "Sgt. J.L. Martinez was employed by the City of Houston on January 28, 2019, it is admitted. The remainder is denied." In response to Request No. 7, the City answered, "[a]s far as Sgt. J.L. Martinez had previously acted within the scope of her employment on January 28, 2019, it is admitted. The remainder is denied." In its motion for leave to amend, the City argued that in the course of responding to Valdez's first set of interrogatories, which addressed the same issues as his requests for admissions, it determined that its initial responses to Requests Nos. 2 and 7 needed correction. On November 23, 2020, the trial court granted the City's motion for leave to amend its initial admissions.
On December 7, 2020, the City filed a combined motion for summary judgment and Rule 91a motion to dismiss. In its summary judgment motion, the City contended Officer Martinez was not acting within the scope of her employment at the time her vehicle struck Valdez's car and therefore the City retained its governmental immunity under the Texas Tort Claims Act. The City attached to its motion certified copies of the HPD crash report and the affidavits of Officer Martinez and Sergeant A. Duncan ("Sergeant Duncan"), Martinez's direct supervisor at the time.
In its Rule 91a motion, the City argued Valdez was barred from suing Officer Martinez because, by filing suit against the City, he irrevocably had elected his remedy under the Texas Tort Claims Act's election-of-remedies provision. See Tex. Civ. Prac. & Rem. Code § 101.106(a).
Valdez responded to the City's motion arguing the City was not entitled to summary judgment because genuine issues of material fact existed regarding whether Officer Martinez was acting within the scope of her employment at the time of the collision. The only evidence attached to Valdez's summary judgment response was the City's original and amended objections and responses to Valdez's first requests for admissions.
The City filed its summary judgment reply objecting to Exhibit A attached to Valdez's summary judgment response-the City's original responses to Requests for Admissions Nos. 2 and 7-because the City had timely served its amended responses and the trial court granted the City's motion for leave to amend. It further argued the summary judgment evidence conclusively established that Officer Martinez was not acting within the scope of her employment at the time of the collision. The trial court sustained the City's objection and struck Exhibit A to Valdez's summary judgment response.
In its reply, the City stated: "Plaintiff amended his petition removing asserted claims for negligent entrustment, negligent hiring, negligent supervision, negligent retention and negligent training after Houston's dispositive motion was filed. Because the above stated claims are no longer at issue, no order is required unless Plaintiff reasserts these claims." Valdez's amended petition is not a part of the appellate record.
The trial court granted the City's "motion for summary judgment based on no waiver of governmental immunity" and dismissed Valdez's claims against the City for want of jurisdiction. This appeal followed.
Valdez's notice of appeal names the City and Officer Martinez as appellees. However, Officer Martinez was not a party in the underlying suit and thus Valdez may not name her as an appellee. See Kim v. Walnut Creek Crossing Apartment Manager's Supervisors, No. 03-07-00519-CV, 2008 WL 3166313, at *1 n.1 (Tex. App.-Houston [1st Dist.] Aug. 8, 2008, no pet.) (mem. op.) (stating plaintiff could not name individuals who were not parties in underlying suit as appellees on appeal).
Discussion
In his sole issue, Valdez contends the trial court erred in granting summary judgment to the City because there are genuine issues of material fact regarding whether Officer Martinez was acting within the scope of her employment at the time of the collision.
A. Standard of Review and Applicable Law
Subject matter jurisdiction is essential to a court's power to decide a case. City of Hous. v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013); City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). To establish subject matter jurisdiction, a plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the claim. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). A plaintiff also bears the burden of establishing a waiver of sovereign immunity in suits against the government. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
The lack of subject matter jurisdiction may be raised in a motion for summary judgment. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the traditional summary judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). To determine whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Nixon, 690 S.W.2d at 548-49. A defendant is entitled to summary judgment on a plaintiff's personal injury claim if the defendant can prove as a matter of law that it has an affirmative defense to that claim. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017).
B. Texas Tort Claims Act
Sovereign immunity and its counterpart for political subdivisions, governmental immunity, protect the State and its political subdivisions, including municipalities, from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see also Reata Constr. Corp. v. City of Dall., 197 S.W.3d, 371374 (Tex. 2006). The immunity doctrine includes two distinct principles: immunity from liability and immunity from suit. City of Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. City of Hous. v. Nicolai, 539 S.W.3d 378, 386 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). The City of Houston is a governmental unit generally immune from tort liability except where the legislature specifically waives that immunity. Id.; see Dall. Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998).
Relevant to this appeal, Section 101.021 of the Texas Tort Claims Act ("TTCA") provides that 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 § 101.021. The party suing a governmental entity has the burden to establish jurisdiction by pleading-and ultimately proving-not only a valid immunity waiver but also a claim that falls within the waiver. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 135-36 (Tex. 2015); Tex. Dep't of Crim. Just. v. Miller, 51 S.W.3d 583, 586-87 (Tex. 2001). We interpret waivers of immunity narrowly because the intent to waive must be expressed by clear and unambiguous language. Garcia, 253 S.W.3d at 655; Reata Constr. Corp., 197 S.W.3d at 375.
C. Analysis
Valdez argues the City is not entitled to summary judgment based on the affirmative defense of governmental immunity because there are genuine issues of material fact regarding whether Officer Martinez was acting within the scope of her employment at the time of the collision. Valdez points to the City's initial responses to Requests for Admissions Nos. 2 and 7 arguing "the City itself seems unclear whether Officer Martinez was acting within the scope of her employment at the time of the collision with [him]." He also contends there are fact issues over whether Officer Martinez was acting within the scope of her employment at the time of the accident. We consider each argument in turn.
1. Amended Admissions
A trial court may allow a party to withdraw and amend its original answers to a request for admissions when the moving party shows (1) good cause, (2) the party relying on the responses will not be unduly prejudiced, and (3) the withdrawal will serve the purpose of legitimate discovery and the merits of the case. Tex.R.Civ.P. 198.3; Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) ("The discovery rules were not designed as traps for the unwary, nor should we construe them to prevent a litigant from presenting the truth."). Good cause "is established by showing the failure involved was an accident or mistake, not intentional or the result of conscious indifference." Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011). "Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result." Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 665 (Tex. App.-San Antonio 2014, pet. denied). We will reverse a trial court's decision only upon a showing of clear abuse of discretion. Stelly, 927 S.W.2d at 622. An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably or acts without reference to guiding rules or principles. Id.
The City served its initial responses to Valdez's request for admissions on October 27, 2020, and it moved to amend its response to admissions Nos. 2 and 7 two weeks later, on November 12, 2020. In its motion for leave to amend, the City argued good cause existed to allow the amendment because its counsel was under the mistaken impression that Officer Martinez was patrolling and listening to the police radio intending to assist in a police shooting at the time of the accident. The City asserted no party would be unduly prejudiced by its amended admissions because (1) the City served its amended responses 5 days before its initial discovery objections and answers were due, (2) Valdez had ample time to prepare because the City filed its answer on October 6, 2020 and had propounded discovery the same day on Valdez who had not yet filed objections or answers to the City's initial discovery, (3) trial was not set until September 2021, and (4) allowing the City to amend its admissions would not delay trial or hamper any other party's ability to prepare. The City argued that allowing its amended admissions would serve the purpose of legitimate discovery and the merits of the case because the amended responses more accurately reflected the truth.
The trial court granted the City's motion to amend its discovery responses. Having done so, the City's initial admissions were no longer before the trial court nor was the court at liberty to consider them as evidence in ruling on the City's motion for summary judgment. See Tex. R. Civ. P. 198.3 ("A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.") (emphasis added); see also Stelly, 927 S.W.2d at 622 (finding no abuse of discretion in allowing property owner to amend admissions). Valdez does not appeal the trial court's order granting the City's motion to amend its discovery responses. Thus, we do not consider the City's initial admissions in our review of the trial court's summary judgment ruling.
The record does not reflect whether Valdez opposed the City's motion to amend its discovery responses. The certificate of conference on the City's motion to amend indicates only that the City made several unsuccessful attempts to confer with Valdez's attorney but as of the filing of the motion, the City did "not know Valdez's position [] on the motion for leave."
2. "Scope of Employment"
Valdez also contends summary judgment was improper because there are issues of fact over Officer Martinez's scope of employment. He asserts it is undisputed Officer Martinez is a City employee and that she was driving a City vehicle at the time of the collision. He argues that when a vehicle involved in a collision is owned by the City and the driver is an employee of the City, there is a legal presumption that the driver was acting within the scope of her employment when the collision occurred. In response, the City argues the summary judgment evidence established as a matter of law that Officer Martinez was not acting within the course and scope of her employment at the time of the collision.
The TTCA's limited waiver of immunity for motor vehicles only applies if the government employee was "acting within the scope of employment" at the time of the alleged event. Tex. Civ. Prac. & Rem. Code § 101.021(1). The TTCA defines "scope of employment" as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." Id. § 101.001(5).
Whether a peace officer was on or off duty is not dispositive as to whether she was acting within the scope of her employment. Garza v. Harrison, 574 S.W.3d 389, 403 (Tex. 2019). Nor is the officer's use of a police vehicle dispositive. Id. at 405. Instead, we must consider the capacity in which the officer was acting at the time she committed the allegedly tortious act. Harris Cnty. v. Gibbons, 150 S.W.3d 877, 882 (Tex. App.-Houston [14th Dist.] 2004, no pet.). In other words, we consider what the officer was doing and why she was doing it. See Lara v. City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.-Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.).
Whether a person is acting within the scope of her employment depends on whether the general act from which an injury arose was in furtherance of the employer's business and for the accomplishment of the objective for which the employee was employed. City of Balch Springs v. Austin, 315 S.W.3d 219, 225 (Tex. App.-Dallas 2010, no pet.) (citing Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972)). Thus, the mere fact that an off-duty officer was on call does not render her act within the scope of employment. City of Balch Springs, 315 S.W.3d at 225. Concomitantly, mixed motives do not prevent an officer's act from being within her scope of employment if her act served a purpose of her employer in addition to any other purpose the act served. City of Hous. v. Lal, 605 S.W.3d 645, 649 (Tex. App.-Houston [1st Dist.] 2020, no pet.). Accordingly, an officer's act falls outside the scope of her employment if, and only if, her act did not serve any purpose of her employer. Garza, 574 S.W.3d at 400. The key question is whether, when viewed objectively, there was a connection between the officer's job duties and her alleged tortious act. Id. at 401.
Under the "coming-and-going rule," an employee is generally not acting within the scope of her employment when traveling to and from work. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 139 (Tex. 2018). When the vehicle involved in an accident was owned by the defendant and the driver was an employee of the defendant, however, a presumption arises that the driver was acting within the scope of her employment when the accident occurred. Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945, at *4 (Tex. App.- Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.). If unrefuted, the presumption prevails. Id.
It is undisputed that Officer Martinez was a City employee at the time of the accident, and that she was driving a vehicle owned by the City. Thus, the evidence raised a presumption that Officer Martinez was in the course and scope of her employment at the time of the accident. If, however, there is evidence that Officer's Martinez's act from which Valdez's injury arose was not in furtherance of the City's business, the presumption vanishes. See Mejia-Rosa v. John Moore Servs., Inc., No. 01-17-00955-CV, 2019 WL 3330972, at *7 (Tex. App.-Houston [1st Dist.] July 25, 2019, no pet.) (mem. op.).
In her summary judgment affidavit, Officer Martinez testified that, on January 28, 2019, she was employed by HPD as a police officer and assigned to the Major Offenders Division on the day shift in a special assignment capacity. In that capacity, she worked only specific assignments she received from her sergeant in the Major Offenders Division. Her regular shift hours were 7:00 a.m. to 3:00 p.m. Monday through Friday. She was assigned an unmarked take-home vehicle because of the special assignment position she held with the Major Offenders Division. While on special assignment, she did not have patrol duties, was not allowed to volunteer for calls for service, and was not allowed to monitor traffic violations or stop drivers violating state law on public roadways.
On the day of the accident, Officer Martinez worked a special police operation that was evolving and did not conclude until after the end of her normal 7:00 a.m. to 3:00 p.m. shift. When she finished the operation, she began traveling home just before dusk. Officer Martinez testified that as she was driving on Tomball Parkway, she was listening to the police radio and paying attention to a police shooting that had occurred because she knew some of the officers involved as they were from her former patrol station before her assignment to the Major Offenders Division. She testified she had no supervisory or personal involvement in the operation on the radio, and she could not have requested to be put on duty to assist what she heard on the radio.
Officer Martinez testified that while she was listening to the police radio, she looked down to change the frequency and, when she looked up, she saw Valdez's car had stopped or slowed down dramatically. Officer Martinez immediately applied her brakes but was unable to stop in time and struck the back of Valdez's vehicle. The certified crash report form shows the accident occurred at 6:09 p.m.
Officer Martinez testified that, while driving in Tomball, she did not see any person committing a traffic violation or any other crime which would have caused her to respond as a peace officer. She stated that if she had seen someone committing a traffic offense she would not have responded in her unmarked unit. She further testified that if she had seen someone committing a serious crime, she would not have been authorized to stop because she was driving an unmarked vehicle, but she would have had authority to follow and would have called dispatch for a marked unit to handle the serious crime.
In his summary judgment affidavit, Sergeant Duncan, Officer Martinez's direct supervisor, testified that Officer Martinez was a non-uniformed officer involved in a police operation in the Major Offenders Division on the day of the accident. At the time of the police operation, Officer Martinez's work shift was 7:00 a.m. to 3:00 p.m. Sergeant Duncan testified the operation took longer that day than usual and Officer Martinez did not finish her assignment until her overtime ended at which time she headed home. He testified he "did not expect to see Officer Martinez until 7:00 a.m. the next day when she was to report for duty."
Valdez argues that even if Officer Martinez was traveling home when the accident occurred, that fact does not preclude a finding she was acting within the course of her employment and that the City thus waived its immunity. In support of his argument, Valdez directs us to City of Hous. v. Mejia, 606 S.W.3d 901 (Tex. App.-Houston [14th Dist.] 2020, pet. denied), and City of Houston v. Lal, 605 S.W.3d 645 (Tex. App.-Houston [1st Dist.) 2020, no pet.). But neither case supports his argument.
Mejia and Lal are factually distinguishable. In Mejia, the Fourteenth Court of Appeals concluded the summary judgment evidence did not support the City's argument that the sergeant who struck the plaintiffs' vehicle was merely a commuter on her way home from work at the time of the accident. See Mejia, 606 S.W.3d at 906-07. The sergeant's affidavit testimony showed that her husband, who was a superior officer employed by the sergeant's employer, asked her to pick up his City-issued vehicle from the City garage and drive it to their home so he would have the vehicle available at the beginning of his shift, which benefitted the HPD, the sergeant's employer. See id. at 906. The court held the City failed to meet its burden to prove the officer was not acting within the scope of her employment at the time of the accident. See id. Here, in contrast, Officer Martinez was not listening to the police radio in response to a request from anyone at HPD, and her act of listening to the police radio did not benefit her employer because, due to her special assignment, she could not act on the information she heard.
In Lal, we held the City did not carry its burden to prove the officer was not acting within the scope of his employment when he struck the plaintiff's vehicle. See 605 S.W.3d at 649. There, an officer was returning home at night in his City- issued motor vehicle when he veered into oncoming traffic and struck the plaintiff's vehicle. See id. at 647. The evidence showed the officer was off duty on the day of the accident, but he remained on call with the vice division to respond to human-trafficking cases. See id. When his City-issued cellular phone rang, he looked over to pick up his phone to see who was calling causing him to crash into the plaintiff's vehicle. See id. Noting that the officer's phone was issued by the City and the officer was on call, we concluded a factfinder could reasonably infer the officer was obligated in his capacity as a peace officer employed by the City to answer incoming calls on this phone so that he could return to duty if requested by the vice division. See id. at 649. Here, by contrast, the evidence showed Officer Martinez was off duty, not on call, and returning home after completing her assignment. Officer Martinez's affidavit testimony also showed she did not observe any violation or other crime while driving home which would have caused her to respond as a peace officer, and that she would not have been authorized to respond if she had.
Viewed objectively, we conclude the summary judgment evidence demonstrates Officer Martinez's act of listening to the police radio while driving home after having finished work was out of personal interest-it did not have a connection with, and was not undertaken in furtherance of, the City's business- and rebutted the presumption that she was acting within the scope of her employment at the time of the accident. See City of Balch Springs, 315 S.W.3d at 227 (concluding officer was not acting within scope of employment at time of accident where officer was returning to location of his private, off-duty employment, he had not been contacted by police dispatcher to respond to call or to engage in his official police officer duties, he was not responding to emergency, and he was not engaged in law enforcement duty of preserving peace).
Because the TTCA's limited waiver of immunity was not triggered, the City retained its governmental immunity. See Tex. Civ. Prac. & Rem. Code § 101.021. The trial court properly granted summary judgment for the City on Valdez's claims.
We overrule Valdez's sole issue.
Conclusion
We affirm the trial court's judgment.