Opinion
NUMBER 13-16-00639-CV NUMBER 13-16-00642-CV
05-10-2018
JILMA VINSON, Appellant, v. MARSHA (MARCY) TUCKER, Appellee. RAYMOND GARCIA, Appellant, v. MARSHA (MARCY) TUCKER, Appellee.
On appeal from the 105th District Court of Kleberg County, Texas.
MEMORANDUM OPINION ON REHEARING
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion on Rehearing by Justice Contreras
On November 9, 2017, we handed down a memorandum opinion and judgments dismissing these appeals for want of jurisdiction. Appellants each filed a motion for rehearing or, in the alternative, rehearing en banc. We hereby grant the motions for rehearing, withdraw our memorandum opinion and judgments dated November 9, 2017, and substitute the following memorandum opinion and accompanying judgments in their place. The alternative motions for rehearing en banc are denied as moot.
Appellee Marsha (Marcy) Tucker sued appellants Jilma Vinson and Raymond Garcia, her colleagues at Texas A&M University-Kingsville (TAMUK), for defamation, malicious prosecution, and intentional infliction of emotional distress. On appeal, Vinson and Garcia each contend by two issues that the trial court erred by denying their motions to dismiss Tucker's suits on jurisdictional grounds.
Appellate cause number 13-16-00639-CV.
Appellate cause number 13-16-00642-CV.
Because we find that the trial court lacked subject matter jurisdiction over Tucker's suit, we will reverse the trial court's judgments and render judgment dismissing the suit.
I. BACKGROUND
Tucker is an assistant professor and Vinson and Garcia are lecturers in TAMUK's Department of Language and Literature. In her petition against Vinson, Tucker alleged that, on July 10, 2015, Vinson reported to campus police that: (1) she saw Tucker in possession of a personnel file belonging to another TAMUK assistant professor, Jodi Briones; (2) Tucker had obtained Briones's personnel file by breaking into the office of Michelle Johnson-Vela, a TAMUK associate professor; and (3) Tucker had used confidential information in the personnel file to lodge an ethical complaint against Briones. In her petition against Garcia, Tucker alleged that Garcia reported to campus police that: (1) he assisted Tucker in breaking into Johnson-Vela's office to obtain Briones's personnel file; and (2) Tucker admitted to him that she used confidential information contained in the personnel file to lodge an ethical complaint against Briones. According to Tucker's petitions, TAMUK police investigated the reports made by Vinson and Garcia and determined that they were unfounded.
Vinson and Garcia filed motions to dismiss on the basis of sovereign immunity, arguing specifically that the suits must be dismissed under section 101.106(f) of the Texas Tort Claims Act (TTCA). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West, Westlaw through 2017 1st C.S.). Vinson and Garcia each attached affidavits to their motions in which they stated: "At no time have I made any reports to the TAMUK Police Department concerning Dr. Tucker." In response to the motions, Tucker argued that section 101.106 does not apply because her claims are for intentional torts which cannot be brought under the TTCA against a governmental unit. See id. After a hearing on August 22, 2016, the trial court denied the motions to dismiss. The trial court noted at the hearing that it may be "appropriate to refile" the motions to dismiss after more discovery is completed.
Subsequently, Vinson and Garcia filed amended motions to dismiss which included three additional pieces of evidence. First, the amended motions included a "Summary of Hotline Investigation" report indicating that an anonymous complaint had been made to a university ethics hotline about the incident in question. The report states that a TAMUK police investigator, Todd Burris, interviewed "every party that was alleged to have participated in or had knowledge of the incident," including Vinson and Garcia, but "could find no proof that the personnel file that was in Dr. Tucker's possession was obtained through criminal actions." Second, a TAMUK Police Department report authored by Burris stated that, as part of his investigation into the anonymous complaint, he interviewed both Vinson and Garcia. Third, the amended motions included a copy of a TAMUK regulation concerning "Control of Fraud, Waste and Abuse" which states in part that "[a]ll employees are to cooperate fully with those performing an investigation pursuant to this regulation." Vinson and Garcia argued in their amended motions that this evidence demonstrates that Tucker's allegations involve only "conduct within in the general scope" of their employment with TAMUK, and that the suits should therefore be dismissed under section 101.106(f) of the TTCA. See id. The amended motions also included an additional section contending that Tucker's allegations do not describe ultra vires actions such that sovereign immunity would be inapplicable. See Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex. 2015).
Vinson and Garcia then filed second amended motions to dismiss which made the same arguments as the earlier motions and additionally requested sanctions against Tucker for alleged discovery violations. After another hearing, the trial court denied the second amended motions to dismiss and these accelerated interlocutory appeals followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (West, Westlaw through 2017 1st C.S.) (allowing the immediate appeal of an interlocutory order that "denies a motion for summary judgment that is 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"); Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (holding that "an appeal may be taken from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle used").
II. APPELLATE JURISDICTION
On original submission, we concluded that we lacked jurisdiction over the appeals because Vinson's and Garcia's amended and second amended motions to dismiss raised the same ultimate issue as did their initial motions, and therefore were akin to motions to reconsider, the denial of which is not subject to interlocutory appeal. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) ("Because the City made a new argument in its amended plea to the jurisdiction, but did not assert a new ground, the amended plea was substantively a motion to reconsider the denial of its [earlier] plea. The court of appeals did not have jurisdiction to consider any part of the merits of the interlocutory appeal."); Denton Cty. v. Huther, 43 S.W.3d 665, 667 (Tex. App.—Fort Worth 2001, no pet.) ("The mere fact that the motion cites additional authority in support of Appellants' plea to the jurisdiction that was not included in the plea to the jurisdiction when it was first presented to the trial court, did not transform the motion into a second, separate and distinct plea to the jurisdiction.").
After briefing was completed in this case, the Texas Supreme Court handed down City of Magnolia 4A Economic Development Corp. v. Smedley, 533 S.W.3d 297 (Tex. 2017), in which the Court considered whether it had jurisdiction over an interlocutory appeal in a similar factual scenario. In Smedley, the appellants sought to appeal the trial court's denial of their motion for summary judgment based on governmental immunity, but the appellee argued that the appeals court lacked jurisdiction because the summary judgment motion was "nothing more than a motion for reconsideration" of the trial court's earlier denial of appellants' plea to the jurisdiction. Id. at 301. The Texas Supreme Court held that appellants' two motions were "sufficiently different based on both their substance and procedural nature" so as to allow the order denying the second motion to be appealable. Id. at 302. The motions were different in substance because there was "extensive evidence that the trial court considered for the first time," and they were different in "procedural nature" because the first motion attacked the sufficiency of the pleadings, whereas the second motion put forth evidence to affirmatively negate the claims. Id. Therefore, the second motion "was not a mere motion for reconsideration, but rather a distinct motion that merits an independent twenty-day interlocutory appeal period." Id.
In this case, Vinson's and Garcia's amended and second amended motions to dismiss made the same general argument as their original motions—i.e., that the trial court was required to dismiss for want of jurisdiction under section 101.106(f) of the TTCA. However, the amended motions also included three additional pieces of evidence which were not attached to the original motions, and they also included a new section addressing whether the actions complained of by Tucker were ultra vires such that governmental immunity would not apply. In light of the ruling in Smedley, we conclude that the second amended motions were sufficiently different in substance from the first motions so as to be independently appealable. The second amended motions were not mere motions for reconsideration but were distinct motions meriting their own twenty-day interlocutory appeal period. See id. Therefore, we have jurisdiction over the interlocutory appeals. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5).
III. DISCUSSION
By two issues, Vinson and Garcia contend that the trial court erred in denying their second amended motions to dismiss because: (1) dismissal was required under TTCA section 101.106(f); and (2) Vinson and Garcia were acting within the general scope of their employment, and were not acting ultra vires, when they responded to TAMUK's police investigation.
Vinson and Garcia do not contend on appeal that the trial court erred in denying the request for sanctions contained in their second amended motions to dismiss.
A. Applicable Law and Standard of Review
The doctrine of sovereign immunity provides that "no state can be sued in her own courts without her consent, and then only in the manner indicated by that consent." Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (citing Hosner v. DeYoung, 1 Tex. 764, 769 (1847)). Sovereign immunity, which applies to public universities such as TAMUK, defeats a trial court's subject matter jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. Miranda, 133 S.W.3d at 226; Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
The plaintiff has the initial burden to plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 220 (Tex. App.—Fort Worth 2003, pet. denied). We construe the pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226, 228.
When the existence of jurisdictional facts is challenged, we consider relevant evidence submitted by the parties to resolve the jurisdictional issues raised, even when the evidence implicates the merits of the cause of action. Id. at 227; see City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). If the evidence is undisputed or fails to raise a fact question, the trial court rules on the jurisdictional issue as a matter of law. Miranda, 133 S.W.3d at 228. But if the evidence creates a fact question regarding the jurisdictional issue, then the fact question must be resolved by the fact finder. Id. at 227-28. In considering the evidence, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id.
B. TTCA Section 101.106(f)
By their first issue, Vinson and Garcia each contend that the trial court was compelled to dismiss Tucker's suits against them under section 101.106(f) of the TTCA.
The TTCA waives sovereign immunity for certain types of claims made against governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, .022, .025 (West, Westlaw through 2017 1st C.S.). The TTCA also contains an election-of-remedies provision, section 101.106, which is 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." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). The statute provides in relevant part:
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.TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (emphasis added).
It is undisputed on appeal that Tucker's claims "could have been brought under [the TTCA] against" TAMUK. See Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011); Garcia, 253 S.W.3d at 659. Therefore, if Tucker's suits were "based on conduct within the general scope" of Vinson's and Garcia's employment, the suits are considered to be against them in their official capacities only, and the motions to dismiss should have been granted. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). "'Scope of employment' means 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) (West, Westlaw through 2017 1st C.S.). Vinson and Garcia argue that, when they spoke to Burris, they were acting within the course and scope of their employment because they are required by TAMUK's "Control of Fraud, Waste and Abuse" regulation to cooperate with police investigations.
The TTCA does not waive immunity for intentional tort claims such as those brought by Tucker. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West, Westlaw through 2017 1st C.S.) ("This chapter does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any other intentional tort . . . ."). However, the Texas Supreme Court has held that a claim need not be of the sort for which the TTCA waives immunity for it to be "brought under" the TTCA for purposes of section 101.106(f). See Franka v. Velasquez, 332 S.W.3d 367, 370 (Tex. 2011) (holding that medical negligence suit brought against government employee doctors "could have been brought under [the TTCA] against the governmental unit" for purposes of section 101.106(f), even though the TTCA would not waive immunity if the plaintiffs' claims were made against the government entity employer). Indeed, "[b]ecause the [TTCA] is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be 'under [the TTCA]' for purposes of section 101.106." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008); see Franka, 332 S.W.3d at 375 (noting that "any tort claim against the government is brought 'under' the [TTCA] for purposes of section 101.106, even if the [TTCA] does not waive immunity").
In response, Tucker asserts that Vinson and Garcia could not have been acting within the scope of their employment because they made "unfounded, untrue, and intentional[ly] misleading" statements to the investigator. They note that the "Control of Fraud, Waste and Abuse" regulation also states that "[r]eports of suspected fraud, waste and abuse shall be based on reasonable, factual information rather than speculative information or rumor," and "[e]mployees found to be making intentional misleading allegations of suspected fraud, waste or abuse under this regulation will be disciplined, up to and including termination of employment."
Tucker cites two Texas Supreme Court cases: Laverie v. Wetherbe, 517 S.W.3d 748 (Tex. 2017) and Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573 (Tex. 2002). In Minyard, a supermarket employee alleged that the store manager defamed her by falsely stating during a workplace misconduct investigation that he had "kiss[ed] and hugg[ed]" her on several occasions. 80 S.W.3d at 574. A jury found that the manager defamed the plaintiff and that he did so within the course and scope of his employment; therefore, the manager and the employer were held jointly and severally liable. Id. at 575. The Texas Supreme Court reversed the judgment against the employer, finding no evidence to support the jury's finding that the manager was acting within the course and scope of his employment. Id. at 579. The Court stated that, "in the defamation context, establishing that an employee was acting in the course and scope of his employment . . . requires evidence that the employee's statements were made in furtherance of the employer's business, and for the accomplishment of the objective for which the employee was employed." Id. at 578. The Court observed that "[t]here is a critical distinction between defaming someone to one's employer and defaming someone for one's employer"—the former action is not for the employer's benefit or for the accomplishment of the objective for which the employee was hired, whereas the latter actions are "authorized and expected" to be made and are "closely connected to the performance of [the employee's] duties." Id. at 579 (emphasis added). In Minyard, although there was evidence that the employer's policies required employees to participate in workplace misconduct investigations, the policies "do not demonstrate that [the manager]'s defaming [the plaintiff] during the investigation would further [the employer]'s business and accomplish a purpose of [the manager]'s job." Id.
In Laverie, a professor at the Rawls College of Business Administration at Texas Tech University sued a colleague for defamation after he was passed over for a promotion to dean. 517 S.W.3d at 750. The plaintiff alleged that the defendant—who was in charge of recruiting and hiring at the college and was a member of the dean search committee—told the university provost that the faculty considered the plaintiff to be a "singular" candidate for the dean position, which the provost understood to mean that the faculty viewed the plaintiff as the "presumptive front-runner" for the position. Id. at 750. The plaintiff also alleged that the defendant told the provost that a staff member reported that the plaintiff was using "some kind of a listening device" to "eavesdrop on people's conversations" at the college. Id. at 751. The trial court denied the defendant's summary judgment motion in which she argued that she was entitled to dismissal under TTCA section 101.106(f) because she acted in the scope of her employment when making the allegedly defamatory statements. Id. The court of appeals affirmed, noting that the record did not "conclusively establish" that the defendant "was serving any purpose of her employer, as opposed to furthering her own purposes only" when she spoke with the provost about the plaintiff. Id.
The Texas Supreme Court disagreed, however, finding that the subjective intent of the employee is not relevant to the scope-of-employment inquiry. Id. The Court clarified that the scope-of-employment analysis for TTCA purposes is akin to the analysis undertaken to determine whether an employer is liable for the acts of an employee under a respondeat superior theory. Id. at 752-53; see Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007) ("Under the theory of respondeat superior, . . . an employer may be vicariously liable for the negligent acts of its employee if the employee's actions are within the course and scope of his employment. . . . The employee's acts must be of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment."). The analysis in either context "calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it." Laverie, 517 S.W.3d at 753. The fundamental question is whether there is a "connection between the employee's job duties and the alleged tortious conduct," and "[t]he answer may be yes even if the employee performs negligently or is motivated by ulterior motives or personal animus so long as the conduct itself was pursuant to her job responsibilities." Id. In other words:
An employee will of course sometimes have personal motives for performing her job a particular way, and a statement made or an act done may simultaneously fulfill a job responsibility while furthering an ulterior motive. The line between the professional and personal is sometimes difficult to discern, as people typically do not carefully or consciously delineate between the two. The fundamental inquiry therefore is not whether [the employee] did her job well or poorly, or whether she did her job selfishly or altruistically, but simply whether she was doing her job.Id. at 755.
The Laverie Court concluded that the defendant was objectively acting in the course and scope of her employment when she spoke to the provost about the plaintiff; therefore, she was entitled to dismissal under the election-of-remedies provision. Id. at 756. The Court reasoned that, according to the provost's testimony, it was within the defendant's role to "bring personnel complaints," such as the complaint about the plaintiff's alleged eavesdropping, to his attention. Id. at 755. Additionally, the Court observed that the defendant "did not volunteer that the faculty perceived [the plaintiff] to have the inside track [on the dean position]. Rather, she offered that information in direct response to an unsolicited question by the provost." Id. For these reasons, even if the defendant defamed the plaintiff, "she did so while fulfilling her job duties." Id. at 755-56.
It is difficult to reconcile Minyard and Laverie. In both cases, an employee allegedly lied about a colleague engaging in illicit actions in the workplace. In both cases, the employee made the alleged defamatory statements in response to direct questioning by a superior employee about the colleague. And there was evidence in both cases that the defendant was required—by store policy or by virtue of the employee's position—to answer the superior's questions. See id. at 755; Minyard, 80 S.W.3d at 579. Yet the defendant's actions in Laverie were held to be within the scope of employment, while the defendant's actions in Minyard were not. If there is a distinguishing factor, it appears to be the underlying subject matter of the alleged defamatory statements. As the Laverie Court noted, in Minyard, "the manager's admissions to 'kissing and hugging' a co-worker were not in furtherance of his responsibilities in running a grocery store"; thus, even though the manager was required by store policy to participate in workplace misconduct investigations, the manager's statements made during such an investigation were objectively outside the scope of employment. Laverie, 517 S.W.3d at 754 (citing Minyard, 80 S.W.3d at 579). On the other hand, the alleged defamatory statements in Laverie concerned the plaintiff's status as a candidate for the position of business school dean. The statements were therefore made "in furtherance of the university's business" and "for the accomplishment of [an] objective for which the employee was employed." See id.; Minyard, 80 S.W.3d at 578.
Despite their seemingly divergent results, the Minyard and Laverie holdings do share one common feature: the plaintiff lost. In Minyard the plaintiff lost because the employer could not be held liable; in Laverie, the plaintiff lost because the employee could not be held liable (and the employer is immune to intentional tort claims). We do not believe, however, that the Texas Supreme Court intended to fashion a rule in scope-of-employment cases amounting to "the plaintiff always loses." Instead, we will attempt to reconcile Minyard and Laverie on fact-based grounds.
With that potential distinguishing factor in mind, we conclude that this case is more akin to Laverie than it is to Minyard. Vinson's and Garcia's alleged defamatory statements, unlike the statements in Minyard and like the statements in Laverie, concerned an issue—the potential break-in and theft of personnel files from a faculty member's office—which was of central concern to the employer's business. Accordingly, even if they defamed Tucker by making those statements, they did so within the general scope of their employment by the university. The trial court was therefore required to dismiss Tucker's suits under the TTCA's election-of-remedies provision. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). We sustain Vinson's and Garcia's first issues. C. Ultra Vires
By their second issue, Vinson and Garcia argue that the trial court erred by denying the plea to the jurisdiction if it did so on the basis that Tucker's claims alleged ultra vires actions such that immunity would not apply.
Under the ultra vires doctrine, sovereign immunity does not bar a claim that is directed toward determining or protecting a party's rights against a state official acting without legal or statutory authority. Beeman, 468 S.W.3d at 538; City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009) (noting that sovereign immunity does not bar suits that seek "to require state officials to comply with statutory or constitutional provisions," even if a declaration to that effect compels the payment of money). This is because suits to compel state officers to act within their official capacity do not attempt to subject the State to liability. IT-Davy, 74 S.W.3d at 855. To fall within this ultra vires exception, a suit must not complain of a government officer's exercise of discretion but rather must allege that the officer acted without legal authority or failed to perform a purely ministerial act. Beeman, 468 S.W.3d at 538; City of El Paso, 284 S.W.3d at 372. Moreover, in an ultra vires action, the plaintiff may seek only "prospective" remedies such as injunctive relief, rather than "retrospective" remedies such as damages. City of El Paso, 284 S.W.3d at 373-74 (citing Edelman v. Jordan, 415 U.S. 651, 668 (1974) (noting that under analogous federal immunity law, claims for prospective injunctive relief are permissible, while claims for retroactive relief are not because such relief is "in practical effect indistinguishable in many aspects from an award of damages against the State")).
Tucker does not explicitly allege in her petitions that Vinson or Garcia acted without legal authority or failed to perform a purely ministerial act. In any event, she is seeking redress for actions that have already been committed, and she prays only for the award of damages, not for any prospective remedy. Her claims are therefore not viable under the ultra vires exception to sovereign immunity. See id. The trial court erred if it denied the plea to the jurisdiction on these grounds. We sustain appellants' second issues.
IV. CONCLUSION
We reverse the trial court's judgment denying the second amended motions to dismiss filed by Vinson and Garcia, and we render judgment dismissing Tucker's claims against Vinson and Garcia.
DORI CONTRERAS
Justice Delivered and filed the 10th day of May, 2018.