City of Houston v. Young Ran Kim ( 2021 )

Opinion issued August 26, 2021.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00333-CV
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CITY OF HOUSTON, Appellant
V.
YOUNG RAN KIM, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 19-DCV-263628
MEMORANDUM OPINION
Appellant, the City of Houston, appeals the denial of its motion for summary
judgment based on governmental immunity. Appellee Young Ran Kim sued the
City of Houston and one of its employees under the Texas Tort Claims Act following
a motor-vehicle collision. After moving successfully to dismiss its employee from
suit, the City moved for summary judgment arguing its employee was not acting in
the course and scope of employment and thus the court lacked subject-matter
jurisdiction. In one issue, the City of Houston argues the trial court erred in denying
its motion for summary judgment because it proved its employee was not acting in
the scope of employment when the collision occurred. Thus, the Texas Tort Claims
Act’s limited waiver of immunity does not apply, and the City of Houston retained
its governmental immunity.
We affirm.
Background
This lawsuit arises from a motor vehicle accident resulting in alleged injuries
and damages to Young Ran Kim (“Kim”). Hugo Cesar Gutierrez (“Officer
Gutierrez”), a police officer with the Houston Police Department (“HPD”), collided
with Kim as he was leaving a high school parking lot and entering the roadway.1
Although he was off duty at the time, Officer Gutierrez was on call as a SWAT team
officer, and he was driving a City of Houston (“City”) Suburban. Kim sued the City
and Officer Gutierrez seeking to recover damages for personal injuries and property
damage. In her petition, Kim alleged that “[a]t the time and immediately prior to the
collision,” Officer Gutierrez “was within the course and scope of employment for
the City of Houston.”
1
Most of the details of the collision are not pertinent for purposes of our disposition.
2
The City filed an answer and moved to dismiss Kim’s claims against Officer
Gutierrez under Section 101.106(e) of the Texas Tort Claims Act (“TTCA”), also
known as the election-of-remedies provision. TEX. CIV. PRAC. & REM. CODE
§ 101.106(e). Section 101.106(e) of the TTCA states: “If suit is filed under this
chapter against both a governmental unit and any of its employees, the employees
shall be immediately dismissed on the filing of a motion by the governmental unit.”
Id. The City argued Kim had “filed suit against an employee of a governmental
unit,” and therefore “the TTCA requires that this suit proceed against the City only
and that Defendant Hugo Cesar Gutierrez be dismissed.” According to the City, the
claims against Officer Gutierrez should be dismissed because Kim asserted tort
claims against both the City, a governmental unit, and its employee Officer
Gutierrez, and all of Kim’s claims were brought under the TTCA.
The trial court granted the City’s motion and dismissed Kim’s claims against
Officer Gutierrez, leaving the City as the lone defendant in the lawsuit. The City
later filed a motion for summary judgment based on governmental immunity,
arguing Officer Gutierrez was not acting in the course and scope of his employment
when the accident occurred. Therefore, the TTCA’s limited waiver of immunity did
not apply and the City was entitled to governmental immunity. In support of its
motion, the City argued Officer Gutierrez was off duty and running a personal errand
outside of his jurisdiction on the day of the accident. The City explained that Officer
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Gutierrez, who was driving a City Suburban with specialized equipment, did not
access the equipment until after the collision occurred. The City argued Officer
Gutierrez had not observed any Texas laws being violated and although he was on
call as a SWAT team officer, he had not been dispatched, and he was not performing
any official duties when the accident occurred. The City attached an affidavit from
Officer Gutierrez attesting to these facts.
The trial court denied the City’s motion for summary judgment only two days
after its filing. As a result, Kim did not have an opportunity to respond. This
interlocutory appeal followed.2
Texas Tort Claims Act
A. Standard of Review
A party may challenge the trial court’s subject-matter jurisdiction in a motion
for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000); EPGT Tex. Pipeline, L.P. v. Harris Cty. Flood Control Dist., 176 S.W.3d
330, 334 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). The plaintiff bears the
burden of alleging facts showing the trial court has subject-matter jurisdiction over
the lawsuit. EPGT Tex. Pipeline, L.P., 176 S.W.3d at 334 (citing Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004), Blue, 34 S.W.3d at 554,
2
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8); Thomas v. Long, 207 S.W.3d
334, 336 (Tex. 2006).
4
and Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).
A reviewing court should take the plaintiff’s allegations as true and construe all
inferences in favor of jurisdiction. Id. (citing Tex. Ass’n of Bus., 852 S.W.2d at 446).
Whether a trial court has subject-matter jurisdiction is a question of law we review
de novo. Id. (citing Miranda, 133 S.W.3d at 226).
B. Governing Law
The City, as a governmental unit of the state, cannot be sued absent a waiver
of its governmental immunity. See TEX. CIV. PRAC. & REM. CODE § 101.001(3)(b)
(defining “[g]overnmental unit” to include “a political subdivision of this state,
including any city”); Reata Const. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex.
2006); Miranda, 133 S.W.3d at 224; see also City of Hous. v. Ayala, No. 14-20-
00164-CV, 2021 WL 2472804, at *1 (Tex. App.—Houston [14th Dist.] June 17,
2021, no pet. h.). “Immunity from suit deprives a trial court of jurisdiction.” City of
Hous. v. Williams, 353 S.W.3d 128, 133 (Tex. 2011); see also Reata Const. Corp.,
197 S.W.3d at 374.
The TTCA provides one such limited waiver of immunity for certain suits
against governmental entities. TEX. CIV. PRAC. & REM. CODE §§ 101.001–.009; see
also Miranda, 133 S.W.3d at 224. Section 101.021(1) of the TTCA states that a
governmental unit of the state is liable for property damage and personal injury
“proximately caused by the wrongful act or omission or the negligence of an
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employee acting within his scope of employment” if the damage or injury “arises
from the operation or use of a motor-driven vehicle” and “the employee would be
personally liable to the claimant according to Texas law[.]” TEX. CIV. PRAC. & REM.
CODE § 101.021(1).
The TTCA also includes an election-of-remedies provision, Section 101.106,
which requires a plaintiff to elect, at the time he files suit, whether to sue the
governmental unit or its employee. Id. § 101.106; see also Mission Consol. Indep.
Sch. Dist. v. Garcia, 253 S.W.3d 653, 657–57 (Tex. 2008) (explaining nature and
purpose of the election-of-remedies provision); TEX. CIV. PRAC. & REM. CODE
§ 101.001(2) (defining “[e]mployee”). Section 101.106 of the TTCA contains six
separate subsections providing that:
(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.
(c) The settlement of a claim arising under this chapter shall
immediately and forever bar the claimant from any suit against or
recovery from any employee of the same governmental unit regarding
the same subject matter.
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(d) A judgment against an employee of a governmental unit shall
immediately and forever bar the party obtaining the judgment from any
suit against or recovery from the governmental unit.
(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.
TEX. CIV. PRAC. & REM. CODE § 101.106.
Section 101.106 “force[s] a plaintiff to decide at the outset [of a lawsuit]
whether an employee acted independently and is thus solely liable, or acted within
the general scope of his or her employment such that a governmental unit is
vicariously liable.” Garza v. Harrison, 574 S.W.3d 389, 399 (Tex. 2019) (quoting
Garcia, 253 S.W.3d at 657). By doing so, it “eas[es] the burden placed on
governmental units and their employees in defending duplicative claims, in part by
‘favor[ing] the expedient dismissal of . . . employees when suit should have been
brought against the government’ under the [TTCA].” Tex. Dep’t of Aging &
Disability Servs. v. Cannon, 453 S.W.3d 411, 415 (Tex. 2015) (citation omitted); see
also Garcia, 253 S.W.3d at 656–57.
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C. Analysis
The election-of-remedies subsection relevant to our analysis is Subsection (e),
pursuant to which the City moved to dismiss Officer Gutierrez from the lawsuit.
Subsection (e) applies when a plaintiff files suit against both a governmental unit
under the TTCA and its employee. TEX. CIV. PRAC. & REM. CODE § 101.106(e). In
such cases, “the employee shall immediately be dismissed on the filing of a motion
by the governmental unit.” Id.; see also Tex. Adjutant General’s Office v. Ngakoue,
408 S.W.3d 350, 358 (Tex. 2013). Our recent opinion in Ledesma v. City of
Houston, 623 S.W.3d 840 (Tex. App.—Houston [1st Dist.] Nov. 24, 2020, pet.
filed)3 is instructive and guides our analysis in this case.
1. Ledesma v. City of Houston
In Ledesma, the plaintiff was involved in a motor-vehicle collision with HPD
Officer Miranda Suarez (“Officer Suarez”), a City of Houston employee. Id. at 843.
Ledesma filed negligence claims under the TTCA against both Officer Suarez and
the City of Houston seeking to recover damages for injuries and damages she
allegedly sustained in the collision. Id. As in this case, the City moved to dismiss
Officer Suarez under Section 101.016(e) of the TTCA.
3
The City of Houston’s request for en banc reconsideration in Ledesma v. City of
Houston, 623 S.W.3d 840 (Tex. App.—Houston [1st Dist.] pet. filed) was denied
unanimously on June 10, 2021.
8
In response to the motion, Ledesma filed an amended petition asserting claims
only against the City effectively non-suiting her claims against Officer Suarez. Like
the City did in this case, the City of Houston then filed a motion for summary
judgment claiming the trial court lacked subject-matter jurisdiction over Ledesma’s
claims against the City because Officer Suarez was not acting within the course and
scope of her employment when the accident occurred. Id. at 844. The trial court
granted the City’s motion for summary judgment and Ledesma appealed.
On appeal, Ledesma argued for the first time that the City of Houston was
foreclosed from seeking summary judgment, because by filing a prior motion to
dismiss Officer Suarez from the suit under Section 101.106(e), the City had admitted
judicially that Officer Suarez was acting within the course and scope of her
employment at the time of the accident. Thus, Ledesma argued, the City was barred
from disputing this admitted fact in its later-filed motion for summary judgment.
The City responded that because Ledesma had not raised her judicial admission
argument in the trial court, she had waived the issue and could not challenge the
summary dismissal of her claims on that basis.
We disagreed, holding that issues of subject-matter jurisdiction may not be
waived and may be raised for the first time on appeal. Id. at 843 n.1; see also, e.g.,
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993)
(“Subject matter jurisdiction is an issue that may be raised for the first time on
9
appeal; it may not be waived by the parties.”). Then, relying in part on Texas
Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013), we explained
that a governmental unit is in the best position to know whether its employee was
acting in the course and scope of employment at the time of the relevant event. See
Ledesma, 623 S.W.3d at 848 (citing Ngakoue, 408 S.W.3d at 359). Armed with this
knowledge, the City can decide how to proceed under the election-of-remedies
provision when a plaintiff sues both the City and its employee.
If the employee was not acting in the course and scope of her employment at
the time of the alleged act, “the governmental unit can move to dismiss claims
against itself for lack of jurisdiction.” Id. But, if the City moves first to dismiss the
filed claims against the named employee under Section 101.106(e), the City in effect
“judicially admits that the employee was acting in the scope of employment and
agrees to vicariously defend its employee.” Id. (citing Ngakoue, 408 S.W.3d at 358).
Thus, the City cannot have it both ways, seeking first to dismiss its employee from
suit under Section 101.106(e), then moving to dismiss all claims against the City
(the remaining defendant) alleging its employee was not acting in the course and
scope of employment. Id.
As we noted in Ledesma, we are not alone in our determination. The San
Antonio Court of Appeals reached a similar holding in Ramos v. City of Laredo, 547
S.W.3d 651 (Tex. App.—San Antonio 2018, no pet.). There, Ramos sued the City
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of Laredo and Officer Gustavo Guerra, Jr. (“Officer Guerra”) for injuries he
allegedly sustained when he was hit by Office Guerra’s police motorcycle. The City
of Laredo moved to dismiss Officer Ramos under Section 101.106(e), only later to
claim during the trial that Officer Ramos was not acting under the course and scope
of his employment at the time of the accident. Id. 653–54. The jury found Officer
Ramos negligent, but also found he was not acting in the scope of his employment
when the accident occurred. The trial court rendered a take-nothing judgment for
the City and Ramos appealed.
On appeal, our sister court held that the City of Laredo’s plea to the
jurisdiction seeking dismissal of Officer Guerra under Subsection (e) asserted
qualified immunity for its employee and “amounted to a judicial admission that
[Officer] Guerra was acting in the scope of employment.” Id. at 655–56. Allowing
a jury question on scope of employment was therefore reversible error. Id. at 656
(citing Ngakoue, 408 S.W.3d at 358). As the court held, “[a]ny issue of fact
regarding scope of employment was resolved by the City in its original answer and
plea to the jurisdiction” where the City argued “Guerra was entitled to official
immunity.” Id.
The Texas Supreme Court in Ngakoue similarly held that “[b]y filing such a
motion [under Subsection (e)], the governmental unit effectively confirms the
employee was acting within the scope of employment and that the government, not
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the employee, is the proper party.” Ngakoue, 408 S.W.3d at 358. Although
analyzing a slightly different issue,4 the Court in Ngakoue acknowledged that a
plaintiff may not always be in the best position to obtain information necessary to
determine initially whether to proceed against the employee or the governmental
unit, further noting that while Section 101.106 provides a number of avenues for
dismissal of governmental employees to avoid duplicative litigation, it “generally
favor a suit against the governmental unit when appropriate rather than wholesale
dismissal of a plaintiff's otherwise-meritorious suit.” Id. at 359.
2. The City’s Judicial Admission
Kim argues that when the City moved to dismiss Officer Gutierrez pursuant
to Section 101.106(e), the City’s counsel called her attorney and represented to him
that “Officer Gutierrez was an employee of the City of Houston.” She claims the
City never raised, either during the phone conversation with her attorney or in the
City’s motion to dismiss, any argument concerning the course and scope of Officer
Gutierrez’s employment. According to Kim, her counsel “was misled to believe that
there would be no coverage issue whatsoever” and, as a result, Kim filed a response
to the City’s motion to dismiss stating she did not contest the motion or object to
4
In Ngakoue, the Court held that “a government unit cannot use [Section 101.106]
subsection (b) to foreclose suit against if after having used [Section 101.106]
subsection (e) to dismiss its employee from the suit.” Tex. Adjutant General’s
Office v. Ngakoue, 408 S.W.3d 350, 359 (Tex. 2013).
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entry of the proposed order dismissing Officer Gutierrez. After securing Officer
Gutierrez’s dismissal,5 Kim argues the City then tried to “get itself off the hook” by
moving for summary judgment alleging Officer Gutierrez was not acting within the
course and scope of his employment when the accident occurred.
We construe Kim’s argument as an argument that having moved to dismiss
Officer Gutierrez under Section 101.106(e), the City was foreclosed from later
seeking summary dismissal of Kim’s claims against the City claiming Officer
Gutierrez was not acting in the course and scope of his employment. See TEX. CIV.
PRAC. & REM. CODE § 101.021(1) (providing that TTCA’s waiver of immunity under
this subsection applies only if employee is “acting within his scope of
employment”). As in Ledesma, the question is whether the City’s motion to dismiss
Officer Gutierrez under Subsection (e) was in effect a judicial admission that later
precluded the City’s motion for summary judgment.6
5
The dismissal of Officer Gutierrez was not without consequence. Section
101.106(a) provides that “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.”
TEX. CIV. PRAC. & REM. CODE § 101.106(a).
6
Kim did not make this argument in the trial court. As noted, the trial court denied
the City’s summary judgment motion within two days of its filing, precluding Kim’s
ability to file a response. Kim’s argument, however, implicates the trial court’s
subject-matter jurisdiction. Because subject-matter jurisdiction cannot be waived,
we conclude, pursuant to Ledesma, that we can address this issue on appeal.
Ledesma, 623 S.W.3d at 843 n.1 (holding plaintiff’s argument that City was not
entitled to immunity from suit because City had judicially admitted employee was
not acting in scope of employment could be raised for first time on appeal because
13
A judicial admission results “when a party makes a statement of fact which
conclusively disproves a right of recovery or defense he currently asserts.” H2O
Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 617 (Tex. App.—Houston [1st
Dist.] 2014, pet. denied) (citations omitted); see Bowen v. Robinson, 227 S.W.3d 86,
92 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“A judicial admission is a
formal waiver of proof that dispenses with the production of evidence on an issue.”)
(citation omitted). A statement is a judicial admission when it (1) is made during a
judicial proceeding, (2) contradicts an essential fact or defense asserted by the party,
(3) is deliberate, clear, and unequivocal, (4) is not destructive of the opposing party’s
theory of recovery or defense, and when (5) enforcing the statement as a judicial
admission is consistent with public policy. H2O Sols., Ltd., 438 S.W.3d at 617.
“Judicial admissions that are clear and unequivocal have a conclusive effect and bar
the admitting party from later disputing the admitted fact.” Id. (citations omitted);
see Bowen, 227 S.W.3d at 92 (“A judicially admitted fact is established as a matter
of law, and the admitting party may not dispute it or introduce evidence contrary to
it.”) (citation omitted). The rule is based on public policy and the premise that “it
would be absurd and manifestly unjust to permit a party to recover after he has sworn
it implicated subject-matter jurisdiction) (citing Tex. Ass’n of Bus., 852 S.W.2d at
444–45); see also Tex. Ass’n of Bus., 852 S.W.2d at 444–45 (stating subject-matter
jurisdiction is essential to authority of court to decide case, is never presumed and
may be raised for first time on appeal by party or sua sponte by reviewing court).
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himself out of court by a clear and unequivocal statement.” H2O Sols., Ltd., 438
S.W.3d at 617.
The City’s motion to dismiss here is virtually identical to the one the City filed
in Ledesma. In Ledesma, we held that by moving to dismiss Officer Suarez from
the suit under Section 101.016(e), the City admitted judicially that Officer Suarez
was acting in the course and scope of employment at the time of the accident and
agreed vicariously to defend her. As such, the City was foreclosed from later
disputing that Officer Suarez was acting in the course and scope of her employment
and seeking summary dismissal on that basis. We see no reason to depart from our
holding in Ledesma in this case.
By moving to dismiss Officer Gutierrez from the suit under Section
101.106(e), the City admitted judicially that he was acting in the course and scope
of his employment when the accident occurred, and the City agreed vicariously to
defend him. See Ngakoue, 408 S.W.3d at 358; Ledesma, 623 S.W.3d at 850; Ramos,
547 S.W.3d at 655. Consequently, the City was foreclosed from later arguing in its
motion for summary judgment that Officer Gutierrez was not acting in the scope of
his employment at the time of the accident. See Bowen, 227 S.W.3d at 92 (“A
judicially admitted fact is established as a matter of law, and the admitting party may
not dispute it or introduce evidence contrary to it.”) (citation omitted); see also
Ramos, 547 S.W.3d at 656 (holding issue of fact “regarding scope of employment
15
was resolved by the City in its original answer and plea to the jurisdiction” where
the City argued the officer “was entitled to official immunity”).
Conclusion
We affirm the trial court’s denial the City’s motion for summary judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.
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