Lynda J. Watkins v. Ohunene Ameena Isa ( 2012 )

MEMORANDUM OPINION
No. 04-11-00622-CV
Lynda J. WATKINS,
Appellant
v.
Ohunene Ameena ISA,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-11208
Honorable Olin B. Strauss, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: June 6, 2012
REVERSED AND REMANDED
The sole issue in this appeal is whether the trial court erred in granting Dr. Ohunene Isa’s
motion to dismiss under the election of remedies provision of the Texas Tort Claims Act.
Because we hold Isa did not prove she was acting within the scope of her employment at the time
of the automobile accident at issue, we reverse the trial court’s judgment.
04-11-00622-CV
BACKGROUND
The automobile accident giving rise to the underlying lawsuit occurred on August 5,
2009. Lynda Watkins timely filed her lawsuit against Isa alleging she was negligent in the
operation of her motor vehicle causing Watkins’s injuries. Isa moved for dismissal of the suit
against her asserting that at the time of the accident she was driving in the course and scope of
her employment as a medical resident for the Texas Tech University Health Sciences Center, a
governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011). Isa filed
two affidavits in support of her motion to dismiss—the affidavit of Gena Jones 1 and the affidavit
of Dr. Terry McMahon. 2 Watkins objected to both affidavits as conclusory. Watkins did not
amend her pleading to sue only Texas Tech University Health Sciences Center, but continued her
suit against Isa only. The trial court conducted a hearing on Isa’s motion to dismiss. The court
denied Watkins’s objections to the affidavits filed in support of Isa’s motion and granted Isa’s
motion to dismiss her from the suit. This appeal followed. On appeal, Watkins contends that the
trial court erred in (1) denying Watkins’s objections to the affidavit testimony filed in support of
Isa’s motion because the affidavits are conclusory, self-serving, and fail to give any foundation
to support the conclusions of fact and law made therein, and (2) granting Isa’s motion to dismiss
because Isa was not sued within the general scope of her employment with a governmental
entity.
1
Jones, the Assistant Vice President of Human Resources for Texas Tech University Health Sciences Center,
testified in relevant part that Isa was “employed” by TTUHSC from September 1, 2007 until August 31, 2010.
2
McMahon, Chairman of the Department of Psychiatry for Texas Tech University Health Sciences Center, testified
in relevant part that at the time of the accident on August 5, 2009, Isa “was acting within the course and scope of her
employment” with TTUHSC.
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04-11-00622-CV
APPLICABLE LAW AND BURDEN
Section 101.106 of the Tort Claims Act, entitled “Election of Remedies,” contains six
subsections, (a) through (f), dealing with grants of immunity and procedural requirements for
suits seeking to recover from a governmental unit, its employee, or both. TEX. CIV. PRAC. &
REM. CODE ANN. § 101.106(a)–(f) (West 2011). Subsection (f) of section 101.106 applies when
an individual employee of a governmental entity is sued in his official capacity and seeks
dismissal based on official immunity. Id. at § 101.106(f). Subsection (f) provides,
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.
Id. Based on the plain language of the statute, it is the governmental employee’s burden to seek
dismissal under section 101.106(f). Id. Thus, as the moving party, it is the employee’s burden to
present evidence establishing (1) that the suit is based on conduct within the general scope of the
employee’s employment and (2) that the suit could have been brought under the Texas Tort
Claims Act against the governmental unit. Id.; Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex.
2011). Actually, the first prong of the above test encompasses two inquires—whether the
individual defendant was an employee of a governmental unit and whether she was acting in the
scope of that employment at the relevant time. Turner v. Zellers, 232 S.W.3d 414, 417 Tex.
App.—Dallas 2007, no pet.), disapproved on other grounds by Franka, 332 S.W.3d at 382 n.67.
In the instant case, the parties do not dispute that Texas Tech University Health Sciences
Center is a governmental entity, that Isa was an employee of that governmental entity on the day
of the accident, or that the suit could have been brought under the Texas Tort Claims Act against
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04-11-00622-CV
the governmental entity. They do dispute, however, whether Isa was acting within the general
scope of her employment at the time of the automobile accident. The Tort Claims Act defines
“scope of employment” as “the performance for a governmental unit of the duties of an
employee’s office or employment and includes being in or about the performance of a task
lawfully assigned to an employee by competent authority.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.001(5) (West Supp. 2011).
STANDARD OF REVIEW
The election of remedies provision under the current Texas Tort Claims Act confers
immunity from suit or recovery. Franka, 332 S.W.3d at 371 n.9. “Immunity from suit deprives
a trial court of jurisdiction.” City of Houston v. Williams, 353 S.W.3d 128, 133 (Tex. 2011). We
review a trial court’s ruling on a challenge to the trial court’s subject matter jurisdiction de novo.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). We review
matters of statutory construction de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625
(Tex. 2008).
DISCUSSION
Dr. Terry McMahon, Chairman of the Department of Psychiatry for Texas Tech
University Health Sciences Center, testified by affidavit that Isa was acting in the course and
scope of her employment at the time of the automobile accident. His affidavit reads in relevant
part as follows:
During August of 2009, Dr. Ohunene Ameena Isa was in San Antonio as a part of
her residency training with Texas Tech University Health Sciences Center. At the
time of the accident on August 5, 2009, Dr. Ohunene Ameena Isa was acting
within the course and scope of her employment with Texas Tech University
Health Sciences Center.
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Watkins filed written objections to McMahon’s affidavit 3 and argued during the hearing that the
affidavit should be disregarded because it failed to state facts to support the legal conclusion that
Isa was acting within the course and scope of her employment with a governmental entity at the
time of the accident. The trial court denied Watkins’s objections to McMahon’s affidavit. We
review trial court rulings on the admissibility of evidence under an abuse of discretion standard.
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).
Evidentiary Challenge to Conclusory Affidavit
“A conclusory statement is one that does not provide the underlying facts to support the
conclusion.” Rodriguez v. Wal–Mart Stores, Inc., 52 S.W.3d 814, 823 (Tex. App.—San Antonio
2001), rev’d on other grounds, 92 S.W.3d 502 (Tex. 2002). Conclusory statements without
factual support are not credible, and are not susceptible to being readily controverted. Ryland
Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); TEX. R. CIV. P. 166a(f)
(“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.”). Here, McMahon provides absolutely no
factual basis or explanation for his statement that Isa was acting in the course and scope of her
employment at the time of the accident. By simply stating “at the time of the accident . . . Isa
was acting within the course and scope of her employment with Texas Tech University Health
Sciences Center,” McMahon asserts only a legal conclusion without factual basis or rationale.
See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Affidavit testimony that is
conclusory is substantively defective and amounts to no evidence. See Coastal Transport Co. v.
Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (opinion testimony that is
3
Watkins also filed objections to the affidavit of Gena Jones who testified that Isa was employed by Texas Tech
University Health Sciences Center. However, it is not necessary to our opinion to address Watkins’s objections to
the Jones affidavit. See TEX. R. APP. P. 47.1.
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04-11-00622-CV
conclusory or speculative is not relevant evidence, because it does not tend to make the existence
of a material fact more probable or less probable); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.
1991) (testimony comprised only of legal conclusions is insufficient to support summary
judgment as a matter of law); City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 717
(1956) (“Parol evidence in the form of opinions and conclusions without documentary basis is
inadmissible to establish such title, and even if admitted without objection is of no probative
force.”). For this reason, we conclude the trial court erred when it denied Watkins’s objection to
McMahon’s affidavit. We now turn to the remaining record to determine if there is other proof
that Isa was acting in the course and scope of her employment at the time of the accident.
Course and Scope of Employment
As a general rule, an employee is not in the course and scope of his employment while
driving his own vehicle to and from his place of work. See Kennedy v. Am. Nat’l Ins. Co., 130
Tex. 155, 107 S.W.2d 364, 365 (1937); Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274,
278 (Tex. App.—Texarkana 2003, no pet.) (holding that county employee, who killed person
with car, did not act in scope of employment because she was on her way to personal
appointment in her own car). Although there are exceptions to this general rule, Isa has wholly
failed to present any evidence about the circumstances of her driving on the day of the accident.
Other than the conclusory statement by McMahon, Isa has presented no evidence that she was in
the performance of the duties of her employment at the time of her automobile accident. As
stated earlier, we find McMahon’s affidavit substantively defective and therefore insufficient as
a matter of law. See Anderson, 808 S.W.2d at 55. On this record, Isa has failed to meet her
burden required for dismissal pursuant to section 101.106(f). Franka, 332 S.W.3d at 381; Univ.
of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233, 242 (Tex. App.—San
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Antonio 2010, no pet.) (“If the plaintiff decides to continue the suit against the employee, the
plaintiff need not take any action, and the employee’s motion can be granted only if the
employee proves that his conduct was within the general scope of his employment and that the
suit could have been brought against the governmental unit.”).
Nor are we persuaded by Isa’s argument that Watkins had a burden to establish that Isa
was not acting within the course of her employment. First, that contention is contrary to the
plain language of the statute which places the burden on the governmental employee to seek
dismissal under section 101.106(f). TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). It is the
movant’s burden to establish that the conditions of the statute have been met in order to obtain
dismissal under section 101.106(f). See Kelemen v. Elliott, 260 S.W.3d 518, 520 (Tex. App.—
Houston [1st Dist.] 2008, no pet.). In Kelemen, a former city police officer brought suit against
the city and a fellow officer claiming she was wrongfully terminated after reporting that she had
been sexually assaulted. Id. Her suit against the city asserted statutory claims of retaliation and
discrimination and her suit against the individual officer asserted various common law assault-
based claims. Id. The city moved to dismiss the individual officer from the lawsuit based on
immunity under section 101.106(f). Id. The Houston Court of Appeals refused to dismiss the
officer because he failed to meet the first prong of his burden of proof, that is, he failed to show
that the alleged assault of a fellow officer was within the general scope of his employment with
the city. Id. at 524.
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04-11-00622-CV
CONCLUSION
Because Isa did not meet her burden of establishing that she was acting in the course and
scope of her employment with a governmental entity at the time of the automobile accident, we
reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.
Phylis J. Speedlin, Justice
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