Texas Bay Cherry Hill, L.P. v. the City of Fort Worth, Texas, and Becky L. Haskin ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-325-CV
TEXAS BAY CHERRY HILL, L.P. APPELLANT
V.
THE CITY OF FORT WORTH, TEXAS, APPELLEES
AND BECKY L. HASKIN
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
Texas Bay Cherry Hill, L.P. (“Cherry Hill”) appeals from a trial court order
granting the City of Fort Worth’s plea to the jurisdiction and dismissing Cherry
Hill’s claims against former Fort Worth City council member Becky L. Haskin.
This appeal presents four key questions: (1) whether the City was engaged in
a governmental function—and therefore immune from suit—or a proprietary
function—and therefore subject to suit—when it allegedly committed the acts
made the basis of Cherry Hill’s claims for business disparagement, tortious
interference, and civil conspiracy; (2) whether Cherry Hill’s claims for a
declaratory judgment and injunctive relief were ripe for determination; (3)
whether Cherry Hill stated a claim for inverse condemnation; and (4) whether
Haskin was entitled to dismissal of Cherry Hill’s claims against her under
section 101.106 of the civil practice and remedies code. We affirm.
II. Background
Cherry Hill owns the Cherry Hill apartment complex in the Woodhaven
neighborhood on the east side of Fort Worth. Woodhaven primarily comprises
relatively low-income multifamily apartment complexes, but it also contains a
smaller enclave of higher-income single-family homes.
A. The Woodhaven redevelopment plan
In 2003, a consulting group prepared a report for the City council
recommending the “dispersion of low-income housing units throughout the
city.” After endorsing the recommendation, the City’s Housing and Workforce
Development Committee asked City staff to bring forward a project to
demonstrate the dispersal and deconcentration of low-income housing. The
City selected Woodhaven for the demonstration based on the high
concentration of assisted housing and Section 8 units in the neighborhood.
2
The City council hired a consultant, Gideon Toal, to create a Woodhaven
master development plan (“the Plan”). The City council also created a steering
committee of Woodhaven community volunteers and City officials, including
council member Becky Haskin, whose district included Woodhaven. Haskin is
also a Woodhaven resident.
The Plan sought to abate high crime rates, reverse declining property
values, and achieve a balance of incomes and housing types in Woodhaven.
To that end, it recommended the redevelopment of a key Woodhaven
intersection—Boca Raton Boulevard and Oakland Hills Drive—as a
“neighborhood center” to spur redevelopment in the area. The recommended
redevelopment called for the acquisition of two commercial properties and five
apartment complexes.
Cherry Hill is one of the apartment complexes. Cherry Hill and the other
four apartment complexes in question had unusually high police calls and
reported crimes—33% of all police calls to Woodhaven and 30% of all Part I
and II crimes.1 In 2004, providing police and emergency services to the
apartment complexes cost the City $4.4 million, while tax revenue from all of
Woodhaven was only $0.6 million.
1
… Part I and II crimes include homicide, rape, aggravated assault,
burglary, and vehicle theft.
3
The Plan identified a $13-$15 million “investment gap” as an obstacle to
redevelopment; in other words, the cost of acquisition and redevelopment of
the property in question was higher than the redevelopment’s expected revenue
or sales price, making it extremely unlikely that a private developer would
undertake the project. The Plan suggested a public-private partnership to bridge
the investment gap and identified several possible financing tools, including
implementing tax increment financing, capturing incremental sales and property
taxes from site-specific development, borrowing funds from community
development block grants, and creating a local development corporation.
Gideon Toal presented a draft of the Plan to the City council on June 28,
2005. On February 14, 2006, after several public hearings and a report from
the City manager, the City council passed a resolution endorsing the plan. The
Plan, the City manager’s report to the City council regarding the Plan, and the
resolution adopting the plan all explicitly state that the City will not use its
powers of eminent domain to acquire property under the Plan. The City
manager recommended that the City encourage the project through economic
development incentives, and the City council authorized City staff to “negotiate
a public-private partnership for implementation of the goals outlined in the Plan
by means of the City’s available economic community development incentive
4
tools, as City staff deems appropriate and feasible, including but not limited to,
tax abatement and increment financing.”
B. The City’s suit against Cherry Hill
Meanwhile, in September and October 2004, the City sued Cherry Hill to
abate common and public nuisances under chapter 125 of the civil practice and
remedies code,2 alleging that Cherry Hill’s apartment complex was a common
nuisance under section 125.0015.3 In January 2005, Cherry Hill and the City
signed a rule 11 settlement agreement in which they agreed to abate the
lawsuit and cooperate with one another to reduce criminal activity at the Cherry
Hill apartments. The City also agreed to dismiss its lawsuit after a year if
Cherry Hill fulfilled its end of the bargain, and the City eventually dismissed the
lawsuit.
C. Cherry Hill’s suit against the City
…
2
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 125.001-.002, .004, .044-.045,
.061 (Vernon Supp. 2007); .003, .042-.043, .046-.047, .062-.069 (Vernon
2005).
…
3
See id. § 125.0015(b) (“A person maintains a common nuisance if the
person maintains a multiunit residential property to which persons habitually go
to commit [various criminal acts listed in subsection (a)] and knowingly tolerates
the acts and furthermore fails to make reasonable attempts to abate the acts.”).
5
In September 2005, Cherry Hill filed this suit against the City, Haskin, and
Woodhaven Community Development, Inc., alleging they conspired to diminish
the apartment complex’s value by disparaging it and tortiously interfered with
its business relationships with existing and prospective tenants. Cherry Hill
alleged that the City’s chapter 125 suit was a sham intended to justify the
defendants’ statements that the apartments would soon close and be
demolished and that the defendants affirmatively steered prospective residents
away from the apartments, including Hurricane Katrina refugees. Cherry Hill
also sought a declaratory judgment and injunctive relief to stop the City from
using its eminent domain powers for economic development.
The City filed an original answer, a plea to the jurisdiction, and a motion
to dismiss Cherry Hill’s claims against Haskin. Cherry Hill amended its pleading
by adding an inverse condemnation claim, a request for a declaration that the
Plan is unlawful urban renewal under local government code sections 374.001-
.910, and a request to enjoin the City from continuing to fund and participate
in the Plan.
After a hearing, the trial court granted the City’s plea to the jurisdiction
and motion to dismiss Haskin. Cherry Hill nonsuited its claims against
Woodhaven Community Development, Inc. and filed this appeal.
III. The City’s Plea to the Jurisdiction
6
The City’s plea to the jurisdiction asserted two key reasons why the trial
court lacked jurisdiction over Cherry Hill’s claims: (1) the City is immune from
suit for the alleged actions made the basis of Cherry Hill’s business defamation,
tortious interference, and conspiracy claims and (2) Cherry Hill’s declaratory
judgment action and request for injunctive relief are not ripe for determination.
A. Standard of review
A plea to the jurisdiction challenges the trial court’s authority to determine
the subject matter of the action. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999). Whether a trial court has subject matter jurisdiction and
whether pleadings allege facts that affirmatively demonstrate the trial court’s
subject matter jurisdiction are questions of law that we review de novo. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex.
Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002).
The determination of whether a trial court has subject matter jurisdiction
begins with the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff has the
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,
7
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; City of Fort Worth v.
Crockett, 142 S.W.3d 550, 552 (Tex. App.—Fort Worth 2004, pet. denied)
(op. on reh’g).
If a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is required to do. See
Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (confining the evidentiary
review to evidence that is relevant to the jurisdictional issue). We take as true
all evidence favorable to the nonmovant and indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at
228. If the evidence creates a fact question regarding the jurisdictional issue,
then the trial court cannot grant the plea to the jurisdiction, and the fact
question will be resolved by the fact-finder. Id. at 227–28; Bland, 34 S.W.3d
at 555. If the relevant evidence is undisputed or fails to raise a fact question
on the jurisdictional issue, however, the trial court rules on the plea to the
jurisdiction as a matter of law. Miranda, 133 S.W.3d at 227–28; Bland, 34
S.W.3d at 555.
B. Governmental immunity
8
The doctrine of governmental immunity prohibits suits against a
governmental entity unless there has been a clear and unambiguous
constitutional or statutory waiver of that immunity. Dallas County MHMR v.
Bossley, 968 S.W.2d 339, 341 (Tex.), cert. denied, 525 U.S. 1017 (1998).
This immunity from suit defeats a trial court’s subject matter jurisdiction, which
is never presumed. Jones, 8 S.W.3d at 638–39; Tex. Air Control Bd., 852
S.W.2d at 443–44. The legislature granted a limited waiver of immunity in the
Texas Tort Claims Act, which permits suits to be brought against governmental
units in certain narrowly-defined circumstances. Tex. Dep’t of Criminal Justice
v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); see also Dallas County MHMR, 968
S.W.2d at 341.
1. Governmental functions versus proprietary functions
A municipality is a governmental entity entitled to sovereign immunity,
but only for some of its functions. A municipal corporation exercises two kinds
of functions, proprietary functions and governmental functions. Tooke v. City
of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). Generally speaking, a
municipality’s proprietary functions are those conducted in its private capacity,
for the benefit only of those within its corporate limits, and not as an arm of the
government. Id. In contrast, governmental functions concern purely
governmental matters solely for the public benefit. Id.
9
Section 101.0215 of the Tort Claims Act contains a nonexclusive list of
thirty-six functions the Legislature specifically identified as governmental and
three identified as proprietary. T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.0215(a)
(Vernon 2005).4 If a function is included in this nonexclusive list of
governmental functions, the Legislature has deemed it governmental in nature,
and we have no discretion or authority to hold otherwise. Ethio Express Shuttle
Serv., Inc. v. City of Houston, 164 S.W.3d 751, 756 (Tex. App.—Houston
[14th Dist.] 2005, no pet.); Tex. River Barges v. City of San Antonio, 21
S.W.3d 347, 357 (Tex. App.—San Antonio 2000, pet. denied).
4
… Section 101.0215(a) provides that the following functions are
governmental: (1) police and fire protection and control; (2) health and
sanitation services; (3) street construction and design; (4) bridge construction
and maintenance and street maintenance; (5) cemeteries and cemetery care; (6)
garbage and solid waste removal, collection, and disposal; (7) establishment
and maintenance of jails; (8) hospitals; (9) sanitary and storm sewers; (10)
airports; (11) waterworks; (12) repair garages; (13) parks and zoos; (14)
museums; (15) libraries and library maintenance; (16) civic, convention centers,
or coliseums; (17) community, neighborhood, or senior citizen centers; (18)
operation of emergency ambulance service; (19) dams and reservoirs; (20)
warning signals; (21) regulation of traffic; (22) transportation systems; (23)
recreational facilities, including but not limited to swimming pools, beaches, and
marinas; (24) vehicle and motor driven equipment maintenance; (25) parking
facilities; (26) tax collection; (27) fireworks displays; (28) building codes and
inspection; (29) zoning, planning, and plat approval; (30) engineering functions;
(31) maintenance of traffic signals, signs, and hazards; (32) water and sewer
service; (33) animal control; (34) community development or urban renewal
activities undertaken by municipalities and authorized by local government code
chapters 373 and 374; (35) latchkey programs conducted exclusively on a
school campus; and (36) enforcement of land use restrictions. Id.
10
A municipality is liable for torts arising from the exercise of its proprietary
functions, but it is generally immune from suit and liability for torts arising from
the exercise of its governmental functions, except for the limited waiver
provided by the Texas Tort Claims Act. T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 101.0215(a), (b) (“A municipality is liable under this chapter for damages
arising from its governmental functions . . . . This chapter does not apply to
the liability of a municipality for damages arising from its proprietary functions
. . . .”). The proprietary-governmental dichotomy has been used to determine
a municipality’s immunity from suit for tortious conduct. Tooke, 197 S.W.3d
at 343.
Determining a municipality’s immunity from suit is a two-step inquiry.
Ethio Express Shuttle Serv., Inc., 164 S.W.3d at 754 n.4. First we determine
whether the function is governmental or proprietary. Id.; Dalon v. City of
DeSoto, 852 S.W.2d 530, 536 (Tex. App.—Dallas 1992, writ denied);
McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex. App.—Fort Worth
1991, no writ). If it is governmental, the second step is to determine whether
immunity is waived under the Texas Tort Claims Act. Ethio Express Shuttle
Serv., Inc., 164 S.W.3d at 754 n.4; Dalon, 852 S.W.2d at 536; McKinney,
814 S.W.2d at 865.
11
When determining whether an action is proprietary or governmental, it is
contrary to the intent of the Tort Claims Act for the court to focus exclusively
on the municipality’s conduct without first considering the context within which
the conduct occurred. Inman v. City of Katy, 900 S.W.2d 871, 873 (Tex.
App.—Corpus Christi 1995, no writ) (holding city entitled to governmental
immunity for allegedly slanderous statements regarding former police officer
made by assistant police chief in the context of a police investigation).
2. The City’s adoption of the Plan is a governmental function.
Before turning to the specific conduct Cherry Hill alleged as the basis of
its tort claims, we first consider the context in which the conduct occurred.
See id. The context in which the conduct occurred—and the backdrop for all
of Cherry Hill’s claims—is the Plan. Thus, a threshold question is whether the
City’s adoption of the Plan is a governmental or a proprietary function.
The Plan arguably falls within four of the thirty-six governmental functions
enumerated in the Tort Claims Act: police and fire protection and control;
building codes and inspections; zoning, planning, and plat approval; and
community development or urban renewal activities undertaken by
municipalities and authorized by local government code chapters 373 and 374.
T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.0215(a)(1), (28)-(29), (34). The City
12
argues that adoption of the Plan was an exercise of its planning function under
section 101.0215(a)(29). We agree.
“Planning” connotes a systematic development contrived to serve the
common interest and contemplates the evolvement of an overall program or
design of the present and future development of the total area and services of
the municipality. 101A C.J.S. Zoning & Land Planning § 2(b) (1979). The Plan
fits neatly into this definition; it laid out a program for the future redevelopment
of the Woodhaven area for the common interest. Because the City’s adoption
of the Plan was an exercise of its planning power, the adoption of the Plan was
a governmental function.
In addition, community development under local government code section
373 closely matches the Plan and its stated objectives. The Legislature enacted
chapter 373 for the express purposes of eliminating slums and areas affected
by blight, reducing the geographic isolation of income groups, and alleviating
physical and economic distress through the stimulation of private investment
and community revitalization in slum or blighted areas, among other things. T EX.
L OC. G OV’T C ODE A NN. § 373.002(b)(1), (8)-(9) (Vernon 2005). Chapter 373
authorizes a municipality to adopt a community development program to aid in
the prevention or elimination of slums and blighted areas. Id. § § 373.004(3),
373.005(a) (Vernon 2005). A community development program may include
13
the demolition of buildings and improvements, including financing of private
acquisition of those properties; construction or reconstruction of public works;
and the rehabilitation of privately-owned properties. Id. § 373.005(b). Chapter
373 authorizes a variety of programs by which a municipality may provide
financing for the redevelopment of privately-owned property or to assist private,
for-profit entities to carry out an economic development project. Id.
§ 373.005(c), (d). But the chapter does not grant a municipality the power of
condemnation to rehabilitate or remove buildings or to acquire real property for
the purpose of resale. Id. § 373.007(a) (Vernon 2005). A municipality must
conduct public hearings on the proposed community development program
before adopting the program by resolution or ordinance. Id. § 373.006 (Vernon
2005).
The Plan calls for the demolition of certain buildings, the construction or
reconstruction of public works, and the rehabilitation of privately-owned
properties. It contemplates the use of various financial incentives and tools to
finance the redevelopment of private property by private entities. It specifically
rejects the use of the City’s eminent domain powers to achieve the stated
goals. The City held public hearings on the Plan before adopting it by
resolution. Thus, the Plan is a community development plan under local
government code chapter 373, and the City’s adoption of the Plan was the
14
exercise of a governmental function under civil practice and remedies code
section 101.0215(a)(34) as well. See T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 101.0215(a)(34).
3. Business disparagement, tortious interference, and
conspiracy claims
Having considered the context in which the City’s alleged wrongful
conduct occurred, we turn now to the specific wrongful acts alleged by Cherry
Hill, beginning with the alleged intentional torts, (1) business disparagement, (2)
tortious interference with existing and prospective business relationships, and
(3) conspiracy between the defendants to commit business disparagement and
tortious interference.
With regard to the business disparagement claim, Cherry Hill specifically
alleged the following:
Defendants Haskin . . . and City (by and through its employees or
officials) acting in furtherance of the Defendants’ collective or
collaborative private and/or proprietary interests, have made
statements to the press and/or to the community that Plaintiff is an
absentee owner whose property is mismanaged, unsafe for
habitation, crime-ridden or otherwise not suitable as apartment
dwellings [and] are going to be closed or condemned . . . .
Elsewhere in its petition, Cherry Hill made more specific allegations:
Haskin and Joe Epps, president of Defendant Development, Inc.
have been front and center in this effort. Both appeared in a news
15
report aired by Fox-4 News on August 23, 2005 in which the
public was informed that Plaintiff’s apartments, which they found
to be offensive, would soon be demolished. Haskin is quoted in the
October 4, 2005 Fort Worth Star Telegram stating that Plaintiff’s
properties are mismanaged.
. . . [T]he City’s actual and true agenda was publically revealed by
Libby Watson, the City’s Assistant City Manager, who is quoted in
the October 5, 2005 edition of Fort Worth Weekly as saying that
“those three apartment complexes in question were not operating
in the manner that we want to have in our community,” and “we
are not going to place folks in an apartment complex that we don’t
feel meets a minimal standard.”
With regard to its tortious interference claim, Cherry Hill alleged that it
“had lease contracts subject to interference, or a reasonable probability of
entering into lease contractual relationships, with which one or more of the
Defendants willfully and intentionally interfered, and such interference
proximately caused actual damages or loss to Plaintiff.” The specific acts of
interference alleged by Cherry Hill included the statements made the basis of
its disparagement claim and the City’s failure to include the apartments on a list
of housing available for Hurricane Katrina refugees:
Defendants have also affirmatively steered prospective residents of
Plaintiff’s apartments away from the apartments, including
evacuees of the recent hurricane Katrina tragedy, whom the
Plaintiff invited to reside at its property on very attractive terms
that would assist them in rebuilding their lives. In an effort to
ensure the ongoing vacancy of the apartments, the Defendant City
consciously elected to exclude Plaintiff’s apartments from its list of
available housing for Katrina evacuees.
16
In its conspiracy claim, Cherry Hill alleged that the defendants conspired
to injure its business and diminish the value of its property via business
disparagement and tortious interference.
a. Governmental or proprietary?
While Cherry Hill’s petition described the Plan at length, and it sought
declaratory and injunctive relief from the effects of the Plan, it did not
specifically reference the Plan in its business defamation, tortious interference,
and conspiracy claims. Cherry Hill argues that business defamation and tortious
interference are proprietary functions unrelated to the Plan and for which the
City has no immunity. The City responds that Cherry Hill’s artful pleading
cannot avoid the fact that all of its claims arise from the Plan and the exercise
of the City’s governmental functions.
As we have already noted, the Plan is the backdrop for all of Cherry Hill’s
allegations and involved the exercise of a governmental function. But the
specific statements made the basis of Cherry Hill’s disparagement, interference,
and conspiracy claims require individual scrutiny to determine whether they,
too, involve the exercise of governmental functions. Conduct is not
governmental merely because it touches upon a governmental function. City
of Corpus Christi v. Absolute Indus., 120 S.W .3d 1, 4 (Tex. App.—Corpus
17
Christi 2001, pet. ref’d) (holding that although garbage removal is a
governmental function, city’s threat to retaliate against companies that sent
their waste to a private landfill—thereby depriving the city of waste-removal
revenue—merely touched upon a governmental function).
First we consider the statement allegedly made by Haskin and City
employees that Cherry Hill’s apartments were mismanaged, unsafe for
habitation, crime-ridden, not suitable as apartment dwellings, and subject to
closure or condemnation. These alleged statements are directly and closely
related to the express reasons for and the goals of the Plan. The alleged
statements more than “touch upon” the Plan; they are more like a summary of
the Plan itself. Because adoption of the Plan was an exercise of a governmental
function, we hold that these alleged statements were also made in the
furtherance of a governmental function.
Likewise, the statements allegedly made by Haskin, Epps, and Watson
that the apartments were mismanaged, substandard, offensive, and subject to
demolition are closely related to the Plan’s goals and proposed means of
achieving those goals. Moreover, Watson’s alleged statement that the
apartments were substandard falls within another governmental function
specifically enumerated by the Legislature, building codes and inspections. See
18
T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.0215(a)(28). Thus, we hold that these
alleged statements were made in the furtherance of a governmental function.
Finally, we consider the allegation that the City steered Hurricane Katrina
refugees away from Cherry Hill’s apartments, thereby interfering with the
prospective business relationship between Cherry Hill and the refugees. The
Plan called for the acquisition and demolition of the apartments but identified
an investment gap that would discourage private investors from buying and
demolishing the apartments and redeveloping the property for other uses. The
City directed its staff to narrow the investment gap using the economic tools
available for community development. For the City to refer refugees—who
might become long-term City residents—to an apartment complex designated
for demolition under the Plan runs contrary to the Plan’s goals and would only
serve to widen the investment gap. Thus, the City’s alleged decision not to
refer refugees to the apartments was closely related to Plan, and we hold that
the decision was the exercise of a governmental function.
b. The City is immune from suit for Cherry Hill’s
intentional tort allegations.
Having determined that the intentional torts alleged by Cherry Hill
involved the exercise of governmental functions, we must proceed to the
second step of the immunity analysis and determine whether immunity is
19
waived under the Tort Claims Act. See Ethio Express Shuttle Serv., Inc., 164
S.W.3d at 754 n.4; Dalon, 852 S.W.2d at 536; McKinney, 814 S.W.2d at 865.
When a municipality is engaged in a governmental function, its immunity
is not waived for claims merely because they arise out of intentional torts. T EX.
C IV. P RAC. & R EM. C ODE A NN. § 101.057(2) (providing that governmental
immunity is not waived for intentional torts) (Vernon 2005); Benefit Realty
Group v. City of Carrolton, 141 S.W.3d 346, 349 (Tex. App.—Dallas 2004,
pet. denied). The Tort Claims Act permits suit against governmental units for
personal injuries or property damage in three general circumstances: personal
injuries caused by (1) the use of publicly owned automobiles, (2) a condition or
use of tangible personal or real property, and (3) a premises defect, or the
condition of real property. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.021(1)-
(2) (Vernon 2005), 101.022 (Vernon Supp. 2007); Perez v. City of Dallas, 180
S.W.3d 906, 910 (Tex. App.—Dallas 2005, no pet.).
Cherry Hill pleaded none of these waivers of immunity, and none appears
to be applicable to its allegations. We therefore hold that the City is immune
from suit for Cherry Hill’s disparagement, interference, and conspiracy claims
and that the trial court did not err by granting the City’s plea to the jurisdiction
on these claims. We overrule Cherry Hill’s first issue to the extent that it
concerns these claims.
20
C. Ripeness
Ripeness is an element of subject matter jurisdiction. Mayhew v. Town
of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144
(1999). A case is not ripe when its resolution depends upon contingent or
hypothetical facts or upon events that have not yet come to pass. Waco ISD
v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Ripeness, like other justiciability
doctrines, derives in part from the constitutional prohibition against advisory
opinions, which in turn stems from separation-of-powers principles. Patterson
v. Planned Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d 439, 442
(Tex. 1998).
In addition to restraining courts from issuing unconstitutional advisory
opinions, ripeness also has a pragmatic, prudential aspect that aims to conserve
judicial time and resources for real and current controversies, rather than
abstract, hypothetical, or remote disputes. Patterson, 971 S.W.2d at 443;
Mayhew, 964 S.W.2d at 928. These factual and prudential concerns underlie
the court’s determination of ripeness, in which it considers (1) the fitness of the
issues for judicial decision and (2) the hardship occasioned to a party by the
court’s denying judicial review. Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex.
2001).
1. Cherry Hill’s declaratory judgment action is not ripe.
21
Declaratory judgment actions are subject to a ripeness review. See
Firemen’s Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex.
1968) (holding Declaratory Judgments Act does not empower courts to issue
advisory opinions). Our sister courts have held that a declaratory judgment
action is premature if governmental proceedings which will impact the parties’
respective rights remain pending. In Save Our Springs Alliance v. City of
Austin, the court held that the trial court lacked jurisdiction to grant a
declaratory judgment that a development agreement was invalid because no
permit had yet been issued. 149 S.W.3d 674, 678 (Tex. App.—Austin 2004,
no pet.). In Texas A & M University v. Hole, the W aco court held that a
declaratory judgment action concerning student disciplinary proceedings was
not ripe because the students had not yet completed the disciplinary process.
194 S.W.3d 591, 593 (Tex. App.—Waco 2006, pet. denied); see also Tex.
Ass’n of Bus., 852 S.W.2d at 444 (holding the Declaratory Judgments Act
does not enlarge the court’s jurisdiction but merely provides a procedural device
for deciding cases already within that jurisdiction).
In its first amended petition, Cherry Hill sought six declarations. Five of
the requested declarations expressly relate to the alleged illegality and
unconstitutionality of the City’s exercise of its eminent domain powers in
connection with the Plan. The sixth declaration sought by Cherry Hill indirectly
22
referred to the City’s eminent domain power; Cherry Hill sought a declaration
that the Plan was illegal under local government code chapter 374 because the
City failed to hold an election to designate Woodhaven as a slum or blighted
area, and chapter 374 authorizes the use of eminent domain to redevelop such
areas. See T EX. L OC. G OV’T C ODE A NN. §§ 374.011, .016 (Vernon 2005).
Thus, all of the declarations sought by Cherry Hill are related to the exercise of
the City’s eminent domain power in connection with the Plan.
But the Plan expressly states that the City will not use its eminent domain
power in connection with the Plan. Moreover, the City council resolution
endorsing the Plan states that “the City cannot exercise its powers of eminent
domain for the purpose of acquiring property for economic development
purposes.”
Because the City has expressly stated that it will not use its eminent
domain power in connection with the Plan, Cherry Hill’s request for a
declaration regarding the use of eminent domain in connection with the Plan is
not ripe. The declaratory judgment action does not present a real and current
controversy; rather, it presents an abstract, hypothetical, and remote dispute.
See Patterson, 971 S.W.2d at 443; Mayhew, 964 S.W.2d at 928. The
declaratory judgment claim is not fit for judicial review, and the trial court’s
refusal to review it presents no hardship to Cherry Hill, which can assert its
23
declaratory judgment action if and when the City does attempt to exercise its
eminent domain power. See Perry, 66 S.W.3d at 239. Because Cherry Hill’s
declaratory judgment action is not ripe, the trial court lacked jurisdiction over
it. See Mayhew, 964 S.W.2d at 928. We therefore hold that the trial court did
not err by granting the City’s plea to the jurisdiction with regard to Cherry Hill’s
declaratory judgment action.
2. Cherry Hill’s request for an injunction is not ripe.
For the same reasons, the trial court did not err by granting the City’s
plea to the jurisdiction with regard to Cherry Hill’s request for injunctive relief.
A request for injunctive relief is subject to a ripeness review. See Tex. A & M
Univ., 194 S.W.3d at 593 (vacating injunction for lack of ripeness).
Cherry Hill sought an injunction prohibiting the City from participating in
the Plan because the Plan threatened Cherry Hill with eminent domain
condemnation. Because the City expressly stated that it would not exercise its
eminent domain power in connection with the Plan, Cherry Hill’s request for
injunctive relief is not ripe, and the trial court did not err by dismissing this
claim for want of jurisdiction.
Because the trial court properly dismissed Cherry Hill’s claims for
declaratory judgment and injunctive relief, we overrule the remainder of its first
issue.
24
D. Inverse Condemnation
We turn now to Cherry Hill’s inverse condemnation claim. After the City
filed its plea to the jurisdiction, Cherry Hill amended its pleading and alleged
that the “City has acted in bad faith to damage Plaintiff’s business and diminish
the value of Plaintiff’s property” and that such acts constituted a taking under
article I, section 17 of the Texas Constitution. Cherry Hill identified “steering
prospective tenants . . . away from Plaintiff’s property” as one basis for its
takings claim, but it is otherwise unclear whether the claim is based on the
Plan, the City’s alleged tortious interference and business disparagement, or
some combination thereof. Although the City’s plea to the jurisdiction did not
address the inverse condemnation claim, the trial court dismissed it along with
Cherry Hill’s other claims without explanation.
Cherry Hill points out that the City did not challenge the inverse
condemnation claim in its plea to the jurisdiction, but it does not explicitly argue
that this is grounds for reversal. Even if we construe Cherry Hill’s briefs as
making this argument, it must fail because subject matter jurisdiction can be
raised at any time: “Not only may an issue of subject matter jurisdiction be
raised for the first time on appeal by the parties or by the court, a court is
obliged to ascertain that subject matter jurisdiction exists regardless of whether
the parties have questioned it.” Univ. of Tex. Sw. Med. Ctr. at Dallas v.
25
Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004); see Barto Watson, Inc. v.
City of Houston, 998 S.W.2d 637, 639 (Tex. App.—Houston [1st Dist.] 1999,
pet. denied) (analyzing takings allegations to determine subject matter
jurisdiction even though plaintiff asserted takings claim in amended pleading
filed after the defendant city filed its plea to the jurisdiction).
Cherry Hill argues that the trial court erred by dismissing its inverse
condemnation claim because a governmental entity has no immunity from an
inverse condemnation suit. The City concedes that article I, section 17
generally waives its immunity from suit for such claims, but argues that the
waiver does not apply when a plaintiff does not allege a “valid” inverse
condemnation claim.
The doctrine of governmental immunity does not shield a governmental
entity from an action for compensation under the takings clause. Gen. Servs.
Com’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). But
when a plaintiff fails to allege facts that constitute a taking, dismissal for want
of jurisdiction is appropriate. See id. at 600 (dismissing inverse condemnation
claim for want of jurisdiction because allegations did not state a takings claim).
Whether alleged facts are enough to constitute a takings claim is a question of
law. Id. at 598. Thus, we must determine whether Cherry Hill’s allegations
constitute a takings claim.
26
To establish a takings claim, a plaintiff must prove (1) the governmental
entity intentionally performed certain acts, (2) that resulted in a “taking” of
property, (3) for public use. Gen. Servs. Com’n, 39 S.W.3d at 598. A taking
can be either a physical taking or a regulatory taking. Mayhew, 964 S.W.2d
at 923.
A physical taking occurs when the government physically authorizes an
unwarranted physical occupation of the property. Id. Cherry Hill did not allege
a physical occupation; thus, it has not alleged a physical taking.
A regulatory taking may occur, in the absence of any physical invasion,
by means of a governmental restriction that constitutes an unreasonable
interference with the use and enjoyment of the property. Taub v. City of Deer
Park, 882 S.W.2d 824, 826 (Tex. 1994), cert. denied, 513 U.S. 1112 (1995).
A regulation is a taking if (1) it compels the owner to suffer a physical invasion
of the owner’s property, Sheffield Dev. Co. v. City of Glenn Heights, 140
S.W.3d 660, 671 (Tex. 2004); (2) it deprives the owner of all economically
beneficial use of the property, Mayhew, 964 S.W.2d at 935; or (3) it imposes
restrictions that unreasonably interfere with the owner’s right to use and enjoy
the property, id. at 936–37.5
5
… The United States Supreme Court recently rejected a fourth theory of
regulatory taking, namely, takings arising from regulations that do not
27
Assuming that the Plan is a “regulation,” 6 Cherry Hill has not alleged facts
that raise an issue under the first two theories of regulatory taking. The Plan
does not compel Cherry Hill to suffer a physical invasion of its property, and
Cherry Hill alleged that the City’s action “damage[d] Plaintiff’s business and
diminish[ed] the value of Plaintiff’s property,” not that it deprived Cherry Hill of
all economically beneficial use of the property.
The third theory of regulatory taking, also called the Penn Central
analysis, is implicated when there is not a complete taking, either physically or
by regulation, but the regulation goes “too far,” causing an unreasonable
interference with the landowner’s right to use and enjoy the property. See
Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 124–25, 98 S. Ct. 2646,
2659 (1978). There is no formulaic test for these ad hoc factual inquiries. Id.
at 124, 98 S. Ct. at 2659. Nonetheless, factors to be considered include (1)
the economic impact of the regulation and (2) the extent to which the
substantially advance legitimate state interests. Lingle v. Chevron U.S.A., Inc.,
544 U.S. 528, 541–45, 125 S. Ct. 2074, 2077–78 (2005). The Texas
supreme court has not addressed whether the substantial advancement test
remains valid for purposes of Texas Constitutional law in light of Lingle. In any
event, Cherry Hill has not claimed that the Plan does not advance legitimate
state interests.
6
… The other acts alleged by Cherry Hill—business disparagement and
tortious interference—are not “regulations” and thus cannot serve as the basis
of a regulatory takings claim.
28
regulation interferes with reasonable investment-backed expectations. Id.; see
also Sheffield, 140 S.W.3d at 671–72.
Cherry Hill’s allegations raise issues with regard to neither Penn Central
factor. Because of the Plan’s $13-$15 million “investment gap” between the
cost of acquiring and developing the property and its anticipated
postdevelopment value, no investor has come forward to join the City’s
proposed “public-private partnership” and put the Plan into action. Thus, the
Plan has had no economic impact on Cherry Hill’s apartments; or at the very
least, the extent of the Plan’s economic impact is impossible to discern at this
time. See Williamson County Reg’l Planning Com’n v. Hamilton Bank, 473 U.S.
172, 181, 105 S. Ct. 3108, 3119 (1985) (holding court lacked jurisdiction over
regulatory takings claim when it was impossible to discern what the economic
impact of the challenged regulation would be or the extent to which it would
interfere with the developer’s reasonable investment-backed expectations).
Likewise, Cherry Hill has not alleged, and the pleadings and record do not
otherwise show, any reasonable investment-backed expectation on Cherry Hill’s
part nor the Plan’s interference with same.
Stated another way, the Plan currently exists only on paper, and unless
and until the Plan is implemented, Cherry Hill cannot allege facts that constitute
a regulatory taking. Therefore, dismissal for want of jurisdiction is appropriate.
29
See Gen. Servs. Com’n, 39 S.W.3d at 598. We overrule Cherry Hill’s second
issue.
IV. Dismissal of Cherry Hill’s claims against Haskin
In its third and fourth issues, Cherry Hill argues that the trial court erred
by dismissing its claims against Haskin under section 101.106 of the Tort
Claims Act.
A. Section 101.106
After the Tort Claims Act was enacted, plaintiffs often sought to avoid
the Act’s damages cap or other strictures by suing governmental employees,
since claims against them were not always subject to the Act. Mission Consol.
ISD v. Garcia, Nos. 05-0734, 05-0762, 05-0763, — S.W.3d —, —, 2008 WL
821037, at *2 (Tex. Mar. 28, 2008). To prevent such circumvention, and to
protect governm ental em ployees, th e L e gislature created an
election-of-remedies provision. Id. As originally enacted, section 101.106,
entitled “Employees Not Liable After Settlement or Judgment,” provided:
A judgment in an action or a settlement of a claim under this
chapter bars any action involving the same subject matter by the
claimant against the employee of the governmental unit whose act
or omission gave rise to the claim.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws
3242, 3305 (current version at T EX. C IV. PRAC. & R EM. C ODE A NN. § 101.106).
30
Employees were thus afforded some protection when claims against the
governmental unit were reduced to judgment or settled, but there was nothing
to prevent a plaintiff from pursuing alternative theories against both the
employee and the governmental unit through trial or other final resolution.
Mission Consol. ISD, 2008 WL 821037, at *2.
In 2003, as part of a comprehensive effort to reform the tort system, the
Legislature amended section 101.106. Id. That section, entitled “Election of
Remedies,” now provides:
(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.
(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.
31
(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.
T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.106.
The revision’s apparent purpose was 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, thereby reducing the resources that the
government and its employees must use in defending redundant litigation and
alternative theories of recovery. Mission Consol. ISD, 2008 WL 821037, at *3;
see also Waxahachie ISD v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco
2005, pet. denied) (op. on reh’g); Villasan v. O’Rourke, 166 S.W.3d 752, 758,
759–60 (Tex. App.—Beaumont 2005, pet. denied). By requiring a plaintiff to
make an irrevocable election at the time suit is filed between suing the
governmental unit under the Tort Claims Act or proceeding against the
employee alone, section 101.106 narrows the issues for trial and reduces delay
32
and duplicative litigation costs. Mission Consol. ISD, 2008 WL 821037, at *3.
The Act’s election scheme is intended to protect governmental employees by
favoring their early dismissal when a claim regarding the same subject matter
is also made against the governmental employer. Id.
B. Was Haskin a City employee?
Cherry Hill first argues that Haskin, in her capacity as City council
member, was not a City employee. “Employee,” as defined by the Tort Claims
Act, means a person, including an officer or agent, who is in the paid service
of a governmental unit by competent authority, but does not include an
independent contractor, an agent or employee of an independent contractor, or
a person who performs tasks the details of which the governmental unit does
not have the legal right to control. T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 101.001(2) (Vernon 2005). Cherry Hill contends that because the City does
not have the legal right to control the details of a council member’s tasks, a
council member is not an employee. 7 We disagree for three reasons.
7
… We find no Texas cases squarely addressing the question of whether
a city council member is an employee of the city under the Tort Claims Act.
We did not reach the question in Sanders v. City of Grapevine, 218 S.W.3d
772, 777 (Tex. App.—Fort Worth 2007, pet. denied) (dismissing for want of
jurisdiction interlocutory appeal from dismissal of city council members under
section 101.106(e)). The Amarillo court declined to answer the question in
Hohstadt v. Madden, No. 07-99-00326-CV, 2000 WL 513756, at *4 (Tex.
App.—Amarillo Apr. 24, 2000, no pet.) (not designated for publication).
33
First, the City presented uncontroverted evidence that the City paid
Haskin for her services as a City council member. Thus, Haskin was “in the
paid service of a governmental unit.” See T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 101.001(2).
Second,
[t]he Act’s definition of ‘employee’ does not require that a
governmental unit control every detail of a person’s work. The
operator of a motor vehicle, for example, must exercise
independent judgment, but this does not mean that he or she
cannot be considered an employee under the Act. If it did, a
governmental unit could never ‘be liable for . . . injury . . .
proximately caused by . . . the negligence of an employee . . .
aris[ing] from the operation or use of a motor-driven vehicle’ even
though section 101.021(1) of the Act provides for such liability.
Murk v. Sheele, 120 S.W.3d 865, 867 (Tex. 2003) (rejecting argument that
physician was not government employee even though exercise of physician’s
independent professional judgment was outside governmental unit’s right of
control). Thus, even if the City did not have the legal right to control all of
Haskin’s work as a council member, this factor does not exclude her from the
definition of “employee.”
Finally, Haskin’s status as an elected official does not place her outside
the definition of “employee.” Section 101.001(2)’s precursor specifically
34
included “elective” officials in the definition of “employee,” 8 but “elective” and
other qualifiers were omitted as superfluous from the definition when article
6252-19 was recodified as chapter 101 of the civil practice and remedies code:
In the definition of “employee” the source material allowing the
employment to be either “full or part-time,” “elective or
appointive,” and “supervisory or nonsupervisory” is omitted
because the definition is not limited by any of those conditions.
T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.001 revisor’s note (emphasis added).
We therefore hold that Haskin, in her capacity as a City council member, was
a City employee as defined by the Tort Claims Act.
C. Individual versus official capacity and “under this chapter”
Cherry Hill next argues that the trial court erred by dismissing its claims
against Haskin because it sued her in her individual capacity, not in her official
capacity as a City council member, and because it brought none of its claims
under the Tort Claims Act. These arguments fail because whether a plaintiff
sues a governmental employee in the employee’s official or individual capacity
is irrelevant under the applicable subsections of section 101.106 and because
all tort theories alleged against a governmental unit are assumed to be claims
under the Tort Claims Act for purposes of section 101.106.
8
… Act of May 14, 1969, 61st Leg., R.S., ch. 292, 1969 Tex. Gen. Laws
874, 875, repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985
Tex. Gen. Laws 3242, 3322.
35
In Mission Consol. ISD, three terminated school district employees
(collectively, “Garcia”) sued the district and its superintendent for violations of
the Texas Commission on Human Rights Act and various common-law claims
that do not fit within the Tort Claims Act’s limited waiver of immunity,
including claims for defamation, fraud, and intentional infliction of emotional
distress. Id. at *1. The school district filed a plea to the jurisdiction, arguing
that Garcia’s decision to sue both the district and the superintendent barred her
suit against the district under section 101.106(b). Id. The trial court denied
the plea, and the Corpus Christi court of appeals affirmed the denial. Id.
Before addressing the school district’s right to dismissal under
101.106(b), the supreme court considered the effect subsection (e) would have
on Garcia’s suit against the superintendent if it applied (the district did not
move to dismiss Garcia’s claims against the superintendent under subsection
(e)). Id. at *4. The supreme court rejected the court of appeals’s conclusion
that because Garcia’s claims did not fit within the Tort Claims Act waiver of
immunity, they were not brought “under this chapter” and that subsection (e)
did not apply. Id. The supreme court looked to earlier decisions interpreting the
former section 106.101. Id. In Newman v. Obersteller, the court held that
former section 101.106's limiting phrase “under this chapter” operated to bar
an intentional tort claim against an employee after a final judgment on a claim
36
involving the same subject matter had been rendered against the governmental
unit, even though the Act by its terms expressly excluded intentional torts from
the scope of the Act’s immunity waiver. 960 S.W.2d 621, 622–23 (Tex.
1997). The court cited several other cases reaching the same conclusion under
the former section 101.106. Mission Consol. ISD, 2008 WL 821037, at *3
(collecting cases). Although these cases construed the prior version of section
101.106, there is nothing in the amended version that would indicate a
narrower application of the phrase “under this chapter” was intended. Id.
Because the Tort Claims Act 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 Tort Claims Act for purposes of section 101.106.
Id. (citing Newman, 960 S.W.2d at 622). 9
9
… A different panel of this court reached a different conclusion when
interpreting section 101.106(e) in Meroney v. City of Colleyville, 200 S.W.3d
707, 714–15 (Tex. App.—Fort Worth 2006, pet. granted, judgment vacated
and remanded by agreement) (declining to apply Newman’s holding to new
section 101.106(a) and (e) and holding that subsection (a) did not bar claims
against governmental employee in his personal capacity). The supreme court
vacated this court’s judgment in Meroney by agreement of the parties, and our
opinion in that case conflicts with, and was therefore overruled by, the supreme
court’s subsequent interpretation of section 101.106 in Mission Consolidated
ISD. See Mission Consol. ISD, 2008 WL 821037, at *3–5. Therefore,
Meroney is not binding precedent.
37
Therefore, in this case, we must assume that all of Cherry Hill’s tort
claims against the City—which we have held arise from the exercise of the
City’s governmental functions—are claims “under” the Tort Claims Act for
purposes of section 101.106, despite the fact that Cherry Hill did not invoke
or refer to the Tort Claims Act in its pleadings and despite the fact that its tort
claims against the City resulted in dismissal as a result of the City’s
governmental immunity. See Newman, 960 S.W.2d at 622 (holding summary
judgment in favor of school district on basis of immunity rendered district’s
employee immune from any further claims under former section 101.106).
Thus, subsection 101.106(e) compels dismissal of Cherry Hill’s claims against
Haskin—assuming the other requirements of section 101.106 are met.
Cherry Hill argues that section 101.106(a) and (e)’s requirements are not
met because it sued Haskin in her individual capacity, not in her official capacity
as a City employee. A suit against a governmental employee in the employee’s
individual capacity seeks to impose personal liability on the employee for
actions taken under color of state law. Hidalgo County v. Gonzalez, 128
S.W.3d 788, 793 (Tex. App.—Corpus Christi 2004, no pet.). A suit against an
employee in the employee’s official capacity seeks to impose liability on the
governmental entity itself. Id.; De Miño v. Sheridan, 176 S.W.3d 359, 365–66
(Tex. App.—Houston [1st Dist.] 2004, no pet.). To determine whether the
38
capacity in which Cherry Hill sued Haskin matters, we turn again to the statute.
When construing a statute, we must determine and give effect to the
legislature’s intent, considering the statute as a whole and not its provisions in
isolation. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002).
Thus, we will examine the relevant provisions of section 101.106—subsections
(a) and (e)—in the context of the entire statute.
Section 101.106(a) expressly provides that “[t]he 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.” T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.206(a)
(emphasis added). Subsection (b) is the reciprocal of subsection (a) and
provides that “[t]he 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.” Id.
§ 101.106(b). The Legislature’s selective inclusion and omission of the phrase
“under this chapter” in the two subsections is significant.
In Waxahachie ISD, the Waco court held that the omission of the phrase
“under this chapter” in subsection (b) means that the subsection applies to suits
39
against an employee in both the employee’s official capacity and individual
capacity. 181 S.W.3d at 785. “The governmental unit is protected under both
situations”; i.e., subsection (b) bars same-subject-matter suits against the
government regardless of the capacity in which the plaintiff sued the employee.
Id.
Subsection (a) also includes the phrase “under this chapter”—but the
phrase modifies only “suit . . . against a governmental unit.” T EX. C IV. P RAC. &
R EM. C ODE A NN. § 101.106(a). It does not modify “suit . . . against any
individual employee.” Id. Moreover, the words “any suit” in subsection
(a)—given their plain meaning—mean that any same-subject-matter suit against
the employee is barred—regardless of the capacity in which the plaintiff sues
the employee. The Legislature’s inclusion of the modifier “individual” before the
word “employee” in subsection (a) but not elsewhere in section 101.106
reinforces this conclusion; read in context, it can only refer to the employee’s
individual liability. Thus, under subsection (a), a Tort Claims Act suit against
a governmental unit bars a same-subject-matter suit against an employee of the
governmental unit in both the employee’s official and individual capacities. See
id.
In other words, a suit under the Tort Claims Act against a governmental
unit bars a same-subject-matter suit against an employee in both the
40
employee’s official and individual capacities. We therefore hold that Cherry
Hill’s assertion that it sued Haskin only in her individual capacity does not bar
dismissal under subsection (e).
D. Same subject matter
The sole remaining question is whether Cherry Hill’s claims against the
City and its claims against Haskin are “regarding the same subject matter.” See
id. § 101.106(a). Cherry Hill asserts the same tort claims against the City and
Haskin arising from the same alleged facts. It further alleges that they
conspired to commit the torts in question and seeks to hold them jointly and
severally liable for its alleged damages. We therefore hold that Cherry Hill’s
claims against the City and its claims against Haskin regard the same subject
matter.
In summary, Haskin is a City employee under the Tort Claims Act. Under
section 101.106(a), Cherry Hill’s claims against the City bar any suit against
Haskin regarding the same subject matter, regardless of whether Cherry Hill
sued Haskin in her official or individual capacity. See id. Haskin was entitled
to dismissal of the claims against her upon filing of the City’s motion to
dismiss. See Mission Consol. ISD, 2008 WL 821037, at *5. We therefore
hold that the trial court did not err by granting the motion to dismiss, and we
overrule Cherry Hill’s third and fourth issues.
41
V. Conclusion
Having overruled all of Cherry Hill’s issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J., dissents without opinion.
DELIVERED: May 29, 2008
42