Dennis James Poledore, Jr. v. Frank J. Fraley ( 2008 )

  Opinion issued June 19, 2008  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-07-00583-CV

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DENNIS JAMES POLEDORE, JR., Appellant

V.

FRANK JEROME FRALEY, Appellee

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On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 06-CV-153748

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MEMORANDUM OPINION

Appellant, Dennis James Poledore, Jr., appeals the trial court's granting of a no-evidence summary judgment in favor of appellee, Frank Jerome Fraley. We reverse and remand.

BACKGROUND

Poledore, an inmate in the Texas Department of Corrections--Institutional Division, filed a civil suit against Fraley, the court-appointed attorney who represented him in his criminal case, alleging that Fraley had (1) committed forgery by amending a waiver of arraignment document that Poledore had previously signed, and (2) failed to hire a private investigator to work on Poledore's case. Poledore's petition alleged that it was a "Tort Civil Action at Law for Damages" and that jurisdiction was "invoked by the Texas Tort Claims Act." By way of the suit, Poledore sought to recover $50,000 in monetary damages from Fraley.

Fraley filed a no-evidence motion for summary judgment alleging that there was "no evidence of one or more of the following elements of Tort Claim." Specifically, Fraley claimed that Poledore had not produced any evidence that Fraley was an "employee" as that term is defined by the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2) (Vernon 2005). The trial court granted Fraley's motion.

PROPRIETY OF NO-EVIDENCE SUMMARY JUDGMENT

In his sole issue on appeal, Poledore contends the trial court erred in granting Fraley's no-evidence motion for summary judgment.

Standard of Review

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party's cause of action. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex. App.--Houston [1st Dist.] 2006, no pet.). Although the non-movant need not marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not properly be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

Analysis

In his motion for no-evidence summary judgment, Fraley argued that Poledore had no evidence to prove an "element" of his claim under the Texas Tort Claims Act. Specifically, Fraley argued that there was no evidence that he was an "employee" of a governmental unit, and that he was, instead, an independent contractor.

"[T]he Tort Claims Act does not create a cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist." City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997); see also City of Houston v. Boyle, 148 S.W.3d 171, 179 (Tex. App--Houston [1st Dist] 2004, no pet.) ("The TCA does not create a cause of action, but merely establishes a waiver of governmental immunity.").

As such, Poledore's failure to prove that Fraley is an employee of a governmental unit means that Poledore has not established a waiver of sovereign immunity. However, no party has claimed immunity in this case, and Poledore is not seeking to hold a governmental unit responsible for Fraley's actions. Quite simply, sovereign immunity and the application of the Tort Claims Act are not issues in this case.

Because the Tort Claims Act does not create a cause of action, whether Fraley is an "employee" of a governmental unit is not an "element" of Poledore's cause of action. ⁽¹⁾ Fraley's no-evidence motion for summary judgment does not attack an essential element of Poledore's cause of action, thus the trial court erred in granting summary judgment in Fraley's favor.

CONCLUSION

We reverse the judgment of the trial court and remand for further proceedings.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

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