cen-tex-childcare-inc-fka-mesa-family-services-inc-v-sheila ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00308-CV
CEN-TEX CHILDCARE, INC. F/K/A APPELLANT
MESA FAMILY SERVICES, INC.
V.
SHEILA BRODERICK JOHNSON, AS APPELLEES
ADMINISTRATRIX OF THE ESTATE OF
SIERRA ODOM, DECEASED;
JONATHAN ODOM, INDIVIDUALLY;
TAWNYA BALLARD, AS NEXT FRIEND
OF DANTE ANDREUS JAMIESON
BALLARD, A MINOR; AND HEATHER
JAMIESON, INDIVIDUALLY
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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
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OPINION
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I. Introduction
Appellant Cen-Tex Childcare, Inc. f/k/a Mesa Family Services, Inc. (Cen-
Tex) is a private corporation that provides foster home services pursuant to a
contract with the Department of Family and Protective Services (the
Department). After a child died following abuse by her foster parents, Appellees
filed the underlying wrongful death lawsuit against Cen-Tex and others.1
Appellees allege that Cen-Tex failed to report physical abuse and neglect, failed
to properly supervise and train its employees, and negligently exercised its child-
placement duties. The trial court denied Cen-Tex‘s motion for summary
judgment based on official immunity, and Cen-Tex filed this interlocutory appeal.
Before the court is Appellees‘ motion to dismiss this appeal for lack of
subject matter jurisdiction. Because we hold that civil practice and remedies
code section 51.014(a)(5) does not permit immediate appellate review of the trial
court‘s interlocutory summary judgment order, we grant Appellees‘ motion and
dismiss this appeal for lack of subject matter jurisdiction.
II. Discussion
Civil practice and remedies code section 51.014(a)(5) provides that a
person may file an interlocutory appeal from an order that ―denies a motion for
summary judgment that is based on an assertion of immunity by an individual
who is an officer or employee of the state or a political subdivision of the state.‖
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon 2008). Cen-Tex
argues that we have jurisdiction over this interlocutory appeal because official
immunity extends to private contractors of the state. See, e.g., Putthoff v.
1
The Appellees are Sheila Broderick Johnson, as Administratrix of the
Estate of Sierra Odom, Deceased; Jonathan Odom, Individually; Tawnya Ballard,
as Next Friend of Dante Andreus Jamieson Ballard, a Minor; and Heather
Jamieson, Individually.
2
Ancrum, 934 S.W.2d 164, 169–70 & n.7 (Tex. App.—Fort Worth 1996, writ
denied). Appellees respond that section 51.014(a)(5) only permits interlocutory
appeals by those who are officers or employees of the state and that Cen-Tex is
not an officer or employee of the state.
We ―have jurisdiction to consider immediate appeals of interlocutory orders
only if a statute explicitly provides such jurisdiction.‖ Tex. A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (citing Stary v. DeBord, 967 S.W.2d
352, 352–53 (Tex. 1998)). The applicability of section 51.014(a) is a question of
law that we review de novo. Id. (citing State v. Holland, 221 S.W.3d 639, 642
(Tex. 2007)). When construing section 51.014, our sole objective is to give effect
to the legislature‘s intent. Id. (citing Monsanto Co. v. Cornerstones Mun. Util.
Dist., 865 S.W.2d 937, 939 (Tex. 1993)). ―In determining the Legislature‘s intent,
we begin by looking to the plain meaning of the statute‘s words.‖ Id. at 840–41
(citing Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484
(Tex. 1998)). ―We strictly construe Section 51.014(a) as ‗a narrow exception to
the general rule that only final judgments are appealable.‘‖ Id. at 841 (quoting
Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001)).
To appeal pursuant to section 51.014(a)(5), the appellant must be ―an
individual who is an officer or employee of the state or a political subdivision of
the state.‖ See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5). Cen-Tex
conceded at oral argument that it is not an ―officer of the state,‖ so it must be an
employee of the state to be entitled to an interlocutory appeal pursuant to section
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51.014(a)(5).2 In this regard, civil practice and remedies code section 101.001(2)
defines ―employee‖ to mean
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.
Id. § 101.001(2) (Vernon 2011) (emphasis added). Cen-Tex‘s contract with the
Department clearly defines Cen-Tex as an independent contractor.3 Thus,
because the definition of employee expressly excludes an independent
contractor, Cen-Tex is not an employee of the state. See id.
In Koseoglu, the Texas Supreme Court interpreted section 51.014(a) in the
context of an appeal by a government official from an interlocutory order denying
a plea to the jurisdiction based on sovereign immunity. See 233 S.W.3d at 837,
840–46. The court specifically decided that the appellate court had jurisdiction
over the interlocutory appeal pursuant to section 51.014(a)(8), but in doing so the
court also analyzed section 51.014(a)(5). Id. at 837, 842, 843. Discussing
section 51.014(a)(5), the court stated that ―there is no other way to read section
51.014(a)(5) than to conclude that only ‗an individual who is an officer or
2
Cen-Tex does not contend that it is an officer or employee of a political
subdivision of the state.
3
The first sentence of the contract states: ―The Texas Department of
Family and Protective Services, hereinafter referred to as the Department, and
Mesa Family Services, Inc., an independent contractor, hereinafter referred to as
the Contractor, do hereby make and enter into this contract.‖ Cen-Tex was
formerly known as Mesa Family Services, Inc.
4
employee of the state or a political subdivision of the state‘ may appeal an
interlocutory order denying a motion for summary judgment‖ based on official
immunity. Id. at 843.
Cen-Tex does not address Koseoglu but instead argues that it is entitled to
seek interlocutory review of the trial court‘s summary judgment order because
this and other Texas courts have held that official immunity extends to private
parties under contract to perform governmental duties. See Titus Reg’l Med. Ctr.
v. Tretta, 180 S.W.3d 271, 274 (Tex. App.—Texarkana 2005, no pet.); Guerrero
v. Tarrant Cnty. Mortician Servs., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth
1998, pet. denied); Knowles v. City of Granbury, 953 S.W.2d 19, 24 (Tex. App.—
Fort Worth 1997, pet. denied); Putthoff, 934 S.W.2d at 169–70 & n.7. However,
Cen-Tex confuses its potential entitlement to official immunity after a final
adjudication of the case with its entitlement to immediate appellate review of an
interlocutory order denying a motion for summary judgment. The issue
presented by Appellees‘ motion to dismiss is not whether Cen-Tex may ultimately
be entitled to official immunity but is instead whether Cen-Tex is ―an individual
who is an officer or employee of the state.‖ See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(5).
None of the cases that Cen-Tex cites resolves the issue presented.
Guerrero and Knowles are distinguishable because they were not interlocutory
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appeals.4 See Guerrero, 977 S.W.2d at 831–32; Knowles, 953 S.W.2d at 21.
Moreover, although they were both interlocutory appeals, neither Tretta nor
Putthoff undertook any analysis of whether the individual or entity seeking
immediate appellate review of the interlocutory orders was an individual who is
an officer or employee of the state. See Tretta, 180 S.W.3d at 273–74; Putthoff,
934 S.W.2d at 169–70 & n.7. Further, both Tretta and Putthoff were decided
before Koseoglu. Regardless of whether Cen-Tex may ultimately be entitled to
official immunity because of its contract with the Department, see Tretta, 180
S.W.3d at 274; Guerrero, 977 S.W.2d at 832; Knowles, 953 S.W.2d at 24;
Putthoff, 934 S.W.2d at 169–70 & n.7, Cen-Tex cannot seek immediate appellate
review of the trial court‘s interlocutory order denying its motion for summary
judgment because it is not ―an individual who is an officer or employee of the
state.‖ See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5); Koseoglu, 233
S.W.3d at 843.
We hold that we do not have jurisdiction to review the trial court‘s
interlocutory order denying Cen-Tex‘s motion for summary judgment based on
official immunity because Cen-Tex is not an officer or employee of the state. See
4
In Knowles, this court reaffirmed the rule that ―official immunity does
extend to private parties who contract to undertake governmental duties‖ and
ultimately applied the doctrine of official immunity to the independent contractor
seeking official immunity. See 953 S.W.2d at 24. Our holding today is not
inconsistent with Knowles because Knowles was not an interlocutory appeal.
See id. at 21. The issue of whether an independent contractor may be entitled to
official immunity following a full adjudication of the case is not before us.
6
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5); Koseoglu, 233 S.W.3d at 843.
We therefore dismiss this appeal for lack of subject matter jurisdiction. See Tex.
R. App. P. 42.3(a), 43.2(f).
III. Conclusion
In light of the foregoing, we grant Appellees‘ motion and dismiss this
appeal for lack of subject matter jurisdiction.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: March 31, 2011
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