James Wetherbe, Ph. D. v. Debra Laverie, Ph. D.

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00306-CV
JAMES WETHERBE, PH. D., APPELLANT
V.
DEBRA LAVERIE, PH. D., APPELLEE
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2012-502,988, Honorable William C. Sowder, Presiding
August 8, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant James Wetherbe, Ph.D., and appellee Debra Laverie, Ph.D., are
members of the faculty of Texas Tech University’s Rawls College of Business. In 2012
Wetherbe sued Laverie alleging she slandered him in statements made to the university
provost and at a faculty meeting. Laverie moved to dismiss Wetherbe’s suit under the
election of remedies provision of the Texas Tort Claims Act (TTCA), specifically section
101.106(f).1 Ultimately, the claims based on the alleged statements to the provost were
resolved against Wetherbe while his remaining claim of slander at the faculty meeting
was remanded to the trial court.2 Back in the trial court, and following a hearing, that
claim was dismissed. This appeal followed. We will affirm the trial court’s dismissal order.
Factual Background
During the period relevant to this case, Laverie was senior associate dean of the
Rawls College. Asked her job duties, Laverie testified the job “relates to overseeing
faculty matters.”3 The record reflects also that Laverie had an oversight role for the
International Masters of Business Administration program that the Rawls College then
was developing. Wetherbe’s deposition testimony regarding that program contains the
statement that Laverie was “instrumental in getting the thing launched . . . .” Laverie’s
testimony likewise reflects that she became involved with the program at the request of
the Rawls College dean, then during the spring of 2012 “turned the program over to [Dr.
Steve Buchheit] to run.”
On February 2, 2012, Laverie, Buchheit and the College’s grant director, Argyres
Pitsilides, gathered in Laverie’s office for a meeting called by Laverie. The meeting’s
purpose was to discuss plans to bring “an expert from Harvard to teach the case method
for the IMBA Program” and to discuss “what faculty to invite to that seminar.” At the
1 TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2019).
2 Laverie v. Wetherbe, 517 S.W.3d 748, 750 (Tex. 2017) (op. on reh’g).
3She elaborated, “So to give you an example, I handle the dossiers being prepared
properly for promotion and tenure; I work with the area coordinators when they recruit
and hire faculty; I oversee some of our student services that we offer our students.”
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meeting, Laverie, Buchheit and Pitsilides discussed the seminar’s attendees and finalized
the Harvard team’s agenda for the trip, which included detailing the team’s day schedule.
Wetherbe’s name came up during the meeting. According to Wetherbe’s
pleadings and the evidence favorable to his position, which we accept for purposes of this
appeal, Laverie made a false statement to Pitsilides and Buchheit that Wetherbe wore a
device in his ear that allowed him to eavesdrop on the conversations of others. Laverie
further said she had been a victim of Wetherbe’s electronic eavesdropping.
Analysis
Through his first and second issues Wetherbe argues the trial court erred by
dismissing his case because Laverie acted outside the scope of her employment when
she allegedly stated at the meeting that Wetherbe used an electronic listening device to
eavesdrop on conversations.
A governmental employee’s motion to dismiss under Civil Practice and Remedies
Code section 101.106(f) is a claim of governmental immunity. Franka v. Velasquez, 332
S.W.3d 367, 371 n.9 (Tex. 2011). Sovereign immunity from suit defeats a trial court’s
subject matter jurisdiction and may be asserted in a plea to the jurisdiction. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A plea to the
jurisdiction is a dilatory plea functioning “to defeat a cause of action without regard to
whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000).
We review de novo the ruling of a trial court on a plea to the jurisdiction as the
existence of jurisdiction is a question of law. Houston Mun. Emps. Pension Sys. v. Ferrell,
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248 S.W.3d 151, 156 (Tex. 2007). Review of the trial court’s ruling on a plea to the
jurisdiction begins with the live pleadings. Miranda, 133 S.W.3d at 226. A plaintiff must
affirmatively demonstrate the trial court’s jurisdiction. Id. “When a plea to the jurisdiction
challenges the existence of facts alleged by the pleader to establish the trial court's
subject-matter jurisdiction, the trial court must consider relevant evidence submitted by
the parties.” Id. at 227 (citing Bland Indep. Sch. Dist., 34 S.W.3d at 555). This standard
generally mirrors that applicable to a traditional motion for summary judgment. Id. at 228;
TEX. R. CIV. P. 166a(c). Thus, the trial court may consider affidavits and other summary
judgment-type evidence. FKM P’ship v. Board of Regents of Univ. of Houston Sys., 255
S.W.3d 619, 628 (Tex. 2008). The court takes as true evidence favorable to the
nonmovant and indulges every reasonable inference and resolves any doubts in the
nonmovant’s favor. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). “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 issue will be resolved by the fact
finder.” Miranda, 133 S.W.3d at 227-28.
The TTCA provides a limited waiver of immunity. Laverie, 517 S.W.3d at 752
(citing TEX. CIV. PRAC. & REM. CODE § 101.023). It also contains an election of remedies
provision which in relevant part 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.
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TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).4 “By adopting section 101.106(f), the
Legislature has effectively mandated that only a governmental unit can be sued for a
governmental employee’s work-related tortious conduct.” Garza v. Harrison, 574 S.W.3d
389, 393-94 (Tex. 2019). Thus, before filing suit a plaintiff must decide “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.” Laverie,
517 S.W.3d at 752 (citing Mission Consol. ISD, 253 S.W.3d at 657). The Legislature did
not purpose section 101.106(f) “to adjudicate the underlying tort claim but to quickly
dismiss government employees when the suit should be brought against their employer.”
Laverie, 517 S.W.3d at 755.
Under the TTCA “‘scope of employment’ means 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 2019). “An official acts
within the scope of her authority if she is discharging the duties generally assigned to
her.” City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (holding defendant
4 Concerning section 101.106(f)’s requirement that suit could have been brought
under the TTCA against the governmental unit, defamation is an intentional tort. Univ. of
Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—Houston [1st
Dist.] 1999, pet. dism’d w.o.j.) (op. on reh’g). And the TTCA does not waive immunity for
intentional torts, TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West 2019); hence,
there would have been no TTCA waiver of Wetherbe’s defamation claim had he sued
Texas Tech. However, “[b]ecause the [TTCA] is the only . . . 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
TTCA] for purposes of § 101.106.” Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657
(Tex. 2008) (internal quotation marks omitted). Thus, for the application of section
101.106(f), Wetherbe’s suit could have been brought under the TTCA against Texas
Tech.
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officers were within the scope of their authority while conducting a high speed chase of a
suspect because each was on duty, in a squad car, pursuing a suspect); see Garza, 574
S.W.3d at 401 (“Simply stated, a governmental employee is discharging generally
assigned job duties if the employee was doing [her] job at the time of the alleged tort”).
The scope-of-employment inquiry under section 101.106(f) is not concerned with
the reasons motivating the complained-of conduct but whether the conduct fell within the
general scope of the employee’s employment. Melton v. Farrow, No. 03-13-00542-CV,
2015 Tex. App. LEXIS 1224, at *8 (Tex. App.—Austin Feb. 10, 2015, pet. denied) (mem.
op.) (citing TEX. CIV. PRAC. & REM. CODE § 101.106(f)); Cf. Laverie, 517 S.W.3d at 755
(“An employee will of course sometimes have personal motives for performing her job a
particular way, and a statement made or an act done may simultaneously fulfill a job
responsibility while furthering an ulterior motive”). It is fundamentally objective; that is,
whether the employee’s job duties and the alleged tortious act are connected. Garza,
574 S.W.3d at 401 (citing Laverie, 517 S.W.3d at 753).
Wetherbe does not challenge Laverie’s status as an employee of a governmental
unit or that his suit could have been brought against the governmental unit, Texas Tech.
Rather, Wetherbe argues “the issue is whether the trial court correctly found a connection
between Laverie’s job duties as Senior Associate Dean and the alleged tortious conduct,
i.e., was the conduct itself ‘pursuant to’ Laverie’s job responsibilities?” But in answering
this question it matters not whether Laverie did her job well or poorly, or whether she did
her job selfishly or altruistically. Laverie, 517 S.W.3d at 755; Garza, 574 S.W.3d at 401
(explaining for “purposes of section 101.106(f), the employee’s state of mind, motives,
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and competency are irrelevant so long as the conduct itself was pursuant to the
employee’s job responsibilities”).
Laverie’s allegedly defamatory statements were made in her conversation with two
Rawls College faculty and staff members, at a meeting at which one topic was which
Rawls faculty members to invite to the seminar with the team of visitors from Harvard.
The substance of her statements was Wetherbe’s workplace conduct toward his Rawls
College co-workers. Objectively, Laverie was performing her duties as senior associate
dean with oversight over the IMBA program when she allegedly slandered Wetherbe at
the February 2 meeting. Laverie, 517 S.W.3d at 756; see Melton, 2015 Tex. App. LEXIS
1224 (allegedly defamatory statements concerning professional engineer were made in
the general scope of employment of defendant governmental board members; trial court
properly dismissed plaintiff’s case when he failed to substitute governmental employer for
employees after employees filed section 101.106(f) motion to dismiss); Hopkins v.
Strickland, No. 01-12-00315-CV, 2013 Tex. App. LEXIS 2982 (Tex. App.—Houston [1st
Dist.] Mar. 21, 2013, no pet.) (mem. op.) (allegedly slanderous statements made by mayor
about former police chief to prospective employer were within general scope of mayor’s
duties and mayor was entitled to dismissal of former police chief’s suit under section
101.106(f)).
Wetherbe alternatively argues an ultimate fact issue remains in the jurisdictional
determination because Laverie denies making the listening-device statement while
Buchheit testified she made the statement. But, as we have noted, for purposes of our
de novo review we accept as true the pleaded allegations and evidence favorable to
Wetherbe, Miranda, 133 S.W.3d at 228, and therefore accept that Laverie made the
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listening-device statement at the meeting, just as Wetherbe contends. Because the
listening-device statement was uttered within the general scope of Laverie’s employment,
Wetherbe’s first and second issues are overruled.
By his third issue, Wetherbe argues if we find his pleadings contain a curable
jurisdictional defect then the trial court abused its discretion by dismissing the case
without affording him the opportunity to amend his petition. Wetherbe accurately points
out that a plaintiff should have the opportunity to correct by amended petition a defective
but curable jurisdictional allegation before his suit is dismissed for want of jurisdiction.
Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). We find, however,
that rule has no application here. Wetherbe filed detailed pleadings and responded in
opposition to Laverie’s motion to dismiss with evidence. Laverie supported her motion
with evidence and Wetherbe filed a surreply. The record is lengthy and includes nine
depositions. Buchheit was deposed twice. We are not told, and can scarcely imagine,
what material fact might have been omitted from Wetherbe’s petition. Wetherbe’s third
issue is overruled.
Conclusion
Because it is undisputed that Wetherbe could have brought his lawsuit against
Texas Tech and Laverie is an employee of Texas Tech and because the evidence on the
sole disputed issue of Laverie’s request for dismissal under section 101.106(f)
conclusively establishes Laverie acted within the general scope of her employment,
Wetherbe’s suit is against Laverie in her official capacity only. TEX. CIV. PRAC. & REM.
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CODE ANN. § 101.106(f); Laverie, 517 S.W.3d at 756. The trial court did not err by
dismissing Wetherbe’s lawsuit. Its order of dismissal is affirmed.
James T. Campbell
Justice
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