the City of Houston v. Antoinette Washington ( 2011 )

Affirmed and Memorandum Opinion filed December 22, 2011.
In The
Fourteenth Court of Appeals
NO. 14-11-00305-CV
THE CITY OF HOUSTON, Appellant
V.
ANTOINETTE WASHINGTON, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2010-22305
MEMORANDUM OPINION
In this interlocutory appeal, the City of Houston appeals from the trial court’s
order denying its plea to the jurisdiction on the negligence claims of appellee, Antoinette
Washington. We affirm.
BACKGROUND
Washington simultaneously sued the City and its employee, Adelfred Grove, who
was driving a city-owned vehicle, for negligence in causing a collision with a vehicle
occupied by Washington resulting in personal injury to her. The City filed a motion to
dismiss its employee, Grove, pursuant to the election-of-remedies provision of the Texas
Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).
Washington subsequently filed an amended petition in which she dismissed Grove. The
City filed a plea to the jurisdiction, contending that Washington’s claims against it should
be dismissed pursuant to section 101.106(b) of the election-of-remedies provision. See
id. § 101.106(b). The trial court denied the City’s plea to the jurisdiction and this appeal
followed.
STANDARD OF REVIEW
Governmental immunity from suit defeats a trial court’s subject matter jurisdiction
and is properly asserted in a plea to the jurisdiction. Gatesco, Inc. Ltd. v. City of
Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). We review the trial court’s
ruling on a plea to the jurisdiction under a de novo standard. City of Dallas v. Carbjal,
324 S.W.3d 537, 538 (Tex. 2010); Miranda, 133 S.W.3d at 228.
ANALYSIS
In its sole issue in this appeal, the City asserts that the trial court erred in denying
its plea to the jurisdiction. Specifically, the City argues that it is entitled to the dismissal
of Washington’s claims against it pursuant to section 101.106(b).
Section 101.106(e)—the provision under which the City moved to dismiss Grove
from this case—provides:
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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). Once the governmental unit files a
motion to dismiss the claims against its employee under section 101.106(e), the trial court
must grant the motion and dismiss the claims against the employee from the suit.
Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005,
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pet. denied). In this case, Washington non-suited Grove after the motion to dismiss the
employee was filed.
After Washington non-suited the employee, the City further sought the dismissal
of Washington’s claims against itself pursuant to section 101.106(b), which provides:
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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b).
The City argues that the governmental unit has immunity from suit under
subsection (b) when a plaintiff files suit simultaneously against the governmental unit and
its employee regarding the same subject matter. Specifically, the City relies on Mission
Consolidated Independent School District v. Garcia, which states that ―to the extent
subsection (b) applies, it bars any suit against the governmental unit regarding the same
subject matter, not just suits for which the Tort Claims Act waives immunity or those that
allege common-law claims.‖ 253 S.W.3d 653, 659 (Tex. 2008). However, this court
recently rejected these identical arguments in cases involving the simultaneous filing of
suit against the City and its employee. See Amadi v. City of Houston, No. 14-10-01216-
CV, — S.W.3d —, 2011 WL 5099184, at *8 (Tex. App.—Houston [14th Dist.] Oct. 27,
2011, no pet. h.) (op. on reh’g en banc); see also City of Houston v. Rodriguez, No. 14-
11-00136-CV, — S.W.3d —, 2011 WL 5244366, at *2–3 (Tex. App.—Houston [14th
Dist.] Nov. 3, 2011, no pet. h.) (op. on reh’g).
Subsection (b) applies to bar a plaintiff’s recovery against the governmental unit
only when the governmental unit has not consented to suit. Amadi, 2011 WL 5099184, at
*4. Here, as in Amadi and Rodriguez, the City consented to suit based on the negligent
use or operation of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021 (providing for a waiver of immunity for property damage and personal injuries
resulting from the negligent operation or use of a motor-driven vehicle or motor-driven
equipment); see also Rodriguez, 2011 WL 5244366, at *3; Amadi, 2011 WL 5099184, at
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*4.
Therefore, under the plain language of subsection (b), the simultaneous filing of
suit against the City and Grove does not bar Washington’s suit against the City because
the City has consented to suit in this case. See Amadi, 2011 WL 5099184, at *8; see also
Rodriguez, 2011 WL 5244366, at *3 (applying Amadi and holding that subsection (b) did
not bar the plaintiff’s claims against the City because the City’s immunity relative to the
claims was waived under the TTCA). Because the City was not entitled to dismissal
pursuant to section 101.106(b), we overrule its sole issue.
Accordingly, we affirm the trial court’s judgment.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Christopher and McCally.
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