Lauren McPherson and Chris Langston v. Matt Wylie, Individually and as Next Friend of H.W., a Minor

IN THE
TENTH COURT OF APPEALS
No. 10-15-00419-CV
LAUREN MCPHERSON AND CHRIS LANGSTON,
Appellants
v.
MATT WYLIE, INDIVIDUALLY AND AS
NEXT FRIEND OF H.W., A MINOR,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 52540
MEMORANDUM OPINION
In this accelerated appeal, Lauren McPherson and Chris Langston appeal the trial
court’s interlocutory order denying their plea to the jurisdiction. We will affirm.
Background
Matt Wylie, individually and as next friend of his daughter H.W., a minor, sued
McPherson and Langston (Appellants), alleging that H.W. sustained injuries as a result
of Appellants’ negligence. Wylie’s original petition provided the following factual
background: On June 18, 2013, H.W. attended a “summer athletic program” being held
in Blum ISD’s “old gym,” but the program was not part of Blum ISD’s curriculum.
McPherson supervised and directed the program’s activities and, at some point, directed
H.W. to line up at a bench to perform “plyometric exercises” or “jump training.”
Langston was supervising the athletic drill, and, while H.W. was performing the
exercises, he “ordered” her to “jump faster.” As H.W. was trying to comply, she severely
injured her left leg. Before this incident, Wylie and his wife had “had a conference that
included McPherson” to discuss a previous injury H.W. had suffered while performing
“jump training.” At the conference, Wylie had presented a doctor’s note and requested
that H.W. not perform the “jump training” anymore.
Appellants filed an unverified, combined answer to Wylie’s original petition and
plea to the jurisdiction. Appellants asserted that the trial court lacks subject matter
jurisdiction over Wylie’s claims because Appellants have statutory immunity under
Education Code section 22.0511 and that Appellants have “common law official and
governmental immunity” from Wylie’s claims under Education Code section 22.051.
Appellants also generally denied all of Wylie’s allegations and pleaded several
affirmative defenses, including that they are statutorily immune from Wylie’s claims
under Education Code section 22.0511 and that they have “common law official and
governmental immunity” from Wylie’s claims under Education Code section 22.051.
McPherson v. Wylie Page 2
Wylie filed a response to Appellants’ plea to the jurisdiction, arguing that the plea
should not be granted. Wylie disputed that Appellants have immunity under the
Education Code and “that [Appellants] were employees or volunteers for . . . any
educational program associated with any school district or college.” Wylie asserted that,
instead, his petition stated that the incident occurred in the summer, that the program
was not part of the school curriculum, and that the incident was the sole negligence of
Appellants “as individuals.” Wylie further noted that Appellants made no allegation of
insufficient legal capacity under Rule of Civil Procedure 93.
Appellants then filed a brief in support of their plea to the jurisdiction. Appellants
attached to and incorporated into their brief the affidavit of the superintendent of Blum
ISD, Elsa Scott, as well as the decision of the Commissioner of Education. Appellants
again argued that they are immune from Wylie’s suit because they have statutory
immunity under Education Code section 22.0511. Appellants additionally asserted that
if they are being sued in their official capacities, they enjoy the same immunity as Blum
ISD and are immune from suit. Finally, Appellants contended that they are entitled to
attorney’s fees and costs under Education Code section 22.0517.
Wylie filed an objection and reply to Appellants’ brief in support of their plea to
the jurisdiction. Wylie complained that Appellants’ unverified answer and plea to the
jurisdiction did not present any defect in his pleading and that, instead, the alleged defect
was presented in a supporting brief with affidavits filed after his response. Wylie argued,
McPherson v. Wylie Page 3
“If the courts are to consider pleas to the jurisdiction the same as summary judgments,
then the moving party should be required to follow the same requirements and have any
evidence that they wish the court to consider to be timely filed.” Wylie thus requested
that the trial court sustain his objection to Appellants’ brief and affidavits as untimely
and consider only the pleadings in its ruling.
The trial court denied Appellants’ plea to the jurisdiction without explanation and
without specifically ruling on Wylie’s objection.
Discussion
In their first issue, Appellants contend that the trial court erred in denying their
plea to the jurisdiction because they are “immune from suit” under Education Code
section 22.0511 because “they are professional educators who were acting in their official
capacities, performing their duties, and using judgment when [H.W.] injured her knee
performing exercises.” Appellants also argue within this issue that, if they are being sued
in their official capacities, they are immune from suit because they enjoy the same
immunity as Blum ISD.1
We begin with Appellants’ argument that, if they are being sued in their official
capacities, they are immune from suit because they enjoy the same immunity as Blum
1 In their brief’s table of contents, Appellants appear to have mistakenly stated the following as their first
issue: “Blum Independent School District is immune from suit because Appellee Wylie failed to exhaust
his administrative remedies.” Blum ISD, however, is not a party to this suit, and Appellants have not made
any argument to support this contention. Instead, Appellants state in the argument section of their brief
that “H.W. actually exhausted administrative remedies by filing a grievance.” Accordingly, we overrule
this issue to the extent Appellants presented it for review.
McPherson v. Wylie Page 4
ISD. Employees of the State or its political subdivisions may be sued in their official
capacities as representatives of the government, in their individual capacities, or in both
capacities. Harless v. Niles, 100 S.W.3d 390, 395 (Tex. App.—San Antonio 2002, no pet.).
As noted by Appellants, Wylie’s petition does not expressly state in which capacity
Appellants are being sued. In his response to Appellants’ plea to the jurisdiction,
however, Wylie stated that he disputes whether Appellants were employees or
volunteers of any educational program associated with a school district. He also noted
in his response that his petition states that the program during which H.W. was injured
was not part of the school curriculum and that the incident occurred in the summer and
was the sole negligence of Appellants “as individuals.” Accordingly, we conclude that
Wylie is suing Appellants only in their individual capacities.
We thus turn to Appellants’ contention that the trial court erred in denying their
plea to the jurisdiction because they are “immune from suit” under Education Code
section 22.0511. Certain government employees sued in their individual capacities enjoy
statutory immunity under Education Code section 22.0511, which states in relevant part:
(a) A professional employee of a school district is not personally liable for
any act that is incident to or within the scope of the duties of the employee’s
position of employment and that involves the exercise of judgment or
discretion on the part of the employee, except in circumstances in which a
professional employee uses excessive force in the discipline of students or
negligence resulting in bodily injury to students.
TEX. EDUC. CODE ANN. § 22.0511(a) (West 2012); see id. § 22.051(b) (West Supp. 2016) (“The
statutory immunity provided by this subchapter is in addition to and does not preempt
McPherson v. Wylie Page 5
the common law doctrine of official and governmental immunity.”). Section 22.0511,
titled “Immunity from Liability,” is an affirmative defense that provides professional
school employees immunity from liability for certain actions taken within the scope of
their employment. TEX. EDUC. CODE ANN. § 22.0511; Gonzalez v. Ison-Newsome, 68 S.W.3d
2, 4 (Tex. App.—Dallas 1999), pet. dism’d w.o.j. sub nom. Collins v. Ison-Newsome, 73 S.W.3d
178 (Tex. 2001); see Rivera v. Port Arthur Indep. Sch. Dist., No. 13-14-00214-CV, 2016 WL
1613285, at *7 (Tex. App.—Corpus Christi Apr. 21, 2016, no pet.) (mem. op.).
Immunity from liability and immunity from suit are two distinct principles. Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Immunity from suit is a
jurisdictional issue and prevents a plaintiff from bringing suit unless immunity is waived.
See State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Jones, 8 S.W.3d at 638. In contrast,
immunity from liability prevents the recovery of damages even when immunity from
suit is waived. See Lueck, 290 S.W.3d at 880; Jones, 8 S.W.3d at 638. Furthermore, unlike
immunity from suit, immunity from liability does not affect a court’s jurisdiction to hear
a case and cannot be raised in a plea to the jurisdiction. Lueck, 290 S.W.3d at 880; Jones, 8
S.W.3d at 638; see Ahmed v. Metro. Transit Auth., 257 S.W.3d 29, 31 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (“A plea to the jurisdiction challenges the court’s subject matter
jurisdiction.”). Therefore, the trial court did not err in denying Appellants’ plea to the
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jurisdiction based on Education Code section 22.0511.2 We overrule Appellants’ first
issue.
In their second issue, Appellants contend that they are entitled to attorney’s fees
as a matter of law because they have immunity. In light of our reasoning and decision
regarding Appellants’ first issue, we overrule Appellants’ second issue.
Having overruled both of Appellants’ issues, we affirm the trial court’s
interlocutory order denying their plea to the jurisdiction.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed December 14, 2016
[CV06]
2We recognize that the nature of a pleading is determined by its substance, not by its format or caption.
TEX. R. CIV. P. 71; Baylor College of Med. v. Tate, 77 S.W.3d 467, 471 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). We cannot conclude, however, that Appellants were asserting a motion for summary judgment based
on immunity from liability and not a plea to the jurisdiction based on immunity from suit. The content of
Appellants’ plea to the jurisdiction asserts that the trial court lacks subject matter jurisdiction based on
Education Code section 22.0511.
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