Bradley Krause v. Kenneth Mayes

Reversed and Remanded and Majority Opinion filed August 23, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00656-CV
BRADLEY KRAUSE, Appellant
V.
KENNETH MAYES, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1148670
M A J O R I T Y O P I N I O N1
An employee of a city appeals the trial court’s denial of his Rule 91a motion
to dismiss in which he seeks dismissal of the plaintiff’s negligence claim against
him based on the immunity provided to him under section 101.106 of the Civil
Practice and Remedies Code. Concluding that the trial court erred in denying the
employee’s motion, we reverse the trial court’s order and remand for further
proceedings.
1
Justice Poissant concurs in the judgment only.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellee/plaintiff Kenneth Mayes alleges that on January 8, 2018, he was
injured in an automobile accident with appellant/defendant Bradley Krause, a
Houston police officer, when Krause allegedly “suddenly u-turned his vehicle in
front of [Mayes] causing a collision.” One day short of the two-year statute of
limitations, Mayes filed suit and asserted that at the time of the collision, Krause
“was thought to be working in the scope of his employment with the City of
Houston.” Mayes asserted negligence claims and named both Krause and the City
of Houston (the “City”) as defendants. Mayes amended his petition twice,
continuing to assert negligence claims against Krause and the City. In his Second
Amended Original Petition, Mayes alleged that at the time of the collision, Krause
“was working within the scope of his employment with the [City].”
The City was served with process on May 6, 2020.2 The City answered and
filed a motion to dismiss Mayes’s claim against Krause under section 101.106(e)
of the Civil Practice and Remedies Code. The City also filed a summary-judgment
motion seeking dismissal of Mayes’s claim against the City based on the statute of
limitations.
In Mayes’s response to the City’s motion to dismiss the claim against
Krause, Mayes stated that he was responding to this motion by providing notice of
non-suit of his claim against the City. Mayes filed a notice of non-suit of his claim
against the City “[s]o as to conform with the Texas Tort Claims Act . . . and
preserve [Mays’s] right to pursue [his] claim against [Krause].” The trial court
signed an interlocutory order granting a non-suit without prejudice of Mayes’s
2
In his original petition, Mayes incorrectly identified former Harris County Judge Ed Emmett as
the City’s agent for service of process, which according to Mayes, caused “a delay in delivery of
service of process.”
2
claim against the City.
After Krause was served with process, he answered asserting that section
101.106 of the Civil Practice and Remedies Code barred Mayes’s claim against
him and asserting governmental immunity from suit. Krause also filed a motion to
dismiss Mayes’s claim against him under Texas Rule of Civil Procedure 91a. In
the motion Krause asserted that even taking as true all the allegations in Mayes’s
live petition, Mayes’s claim against Krause had no basis in law because under
section 101.106 of the Civil Practice and Remedies Code, by suing both Krause
and the City, Mayes had irrevocably elected to seek his remedy only against the
City and is forever barred from suing Krause. This was the sole ground for
dismissal in Krause’s motion.
Mayes responded in opposition asserting that (1) when Mayes filed suit one
day before expiration of the statute of limitations, he did not know whether Krause
could be served timely because Krause had been uncooperative in Mayes’s efforts
to effect service of process; (2) therefore, to ensure that Mayes could obtain timely
service of process on a party, Mayes named the City as a defendant; (3) Krause
continues to reserve his right to argue that he was not acting in the course and
scope of his employment when the accident occurred; therefore, Mayes was forced
to sue Krause to preserve Mayes’s claim against Krause in the event that Krause
was not acting in the course and scope of his employment.
The trial court signed an order denying Krause’s Rule 91a motion and
stating that Mayes’s petition “does not allege a [claim] against the City.” Based on
this premise, the trial court concluded that section 101.106(a) of the Civil Practice
and Remedies Code “does not apply.”
Krause timely filed a notice of interlocutory appeal under section
51.014(a)(5) of the Civil Practice and Remedies Code.
3
II. ISSUES AND ANALYSIS
A. Does this court have appellate jurisdiction under section 51.014(a)(5)?
Although neither party contends that this court lacks appellate jurisdiction,
we have a duty to assess our own jurisdiction sua sponte. See M.O. Dental Lab v.
Rape, 139 S.W.3d 671, 673 (Tex. 2004). The order from which Krause appeals is
an interlocutory order, and this court has jurisdiction to consider immediate
appeals of interlocutory orders only if a statute explicitly provides appellate
jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). This Court
generally does not have jurisdiction over an appeal from an interlocutory order
denying a Rule 91a motion to dismiss. See Guerra v. Quiroz, No. 14-19-00228-
CV, 2020 WL 548350, at *1 (Tex. App.—Houston [14th Dist.] Feb. 4, 2020, no
pet.) (mem. op.). But an order denying a Rule 91a motion may be the subject of an
interlocutory appeal if a statute explicitly provides for an interlocutory appeal from
a ruling in the order. See id.Krause seeks to appeal the trial court’s order denying his Rule 91a motion to
dismiss under section 51.014(a)(5) of the Civil Practice and Remedies Code, which
permits an appeal from an interlocutory order in which a county court at law
“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.” Id. Though this statute mentions only a motion for
summary judgment, the Supreme Court of Texas has concluded that section
51.014(a)(5) provides for an interlocutory appeal by an officer or employee of the
state or a political subdivision thereof from an order denying an assertion of
immunity, regardless of the procedural vehicle used. Austin State Hosp. v.
Graham, 347 S.W.3d 298, 301 (Tex. 2011). The high court has held that section
51.014(a)(5) provides for an interlocutory appeal in a case in which the procedural
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vehicle was a motion to dismiss under section 101.106 of the Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West, Westlaw
through 2021 C.S.); Austin State Hosp., 347 S.W.3d at 301.
The only basis for dismissal Krause asserted in his Rule 91a motion was the
election-of-remedies provision in section 101.106. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.106. By invoking this election-of-remedies provision, Krause
raised the issue of his immunity under this statute. See Franka v. Velasquez, 332
S.W.3d 367, 371 n.9 (Tex. 2011) (stating that a motion for summary judgment by
an employee of a governmental unit based on section 101.106(f) asserted a claim
of governmental immunity); Austin State Hosp., 347 S.W.3d at 299–301
(concluding that section 51.014(a)(5) provides for an interlocutory appeal of an
order denying a motion to dismiss by the employees of a governmental unit based
on section 101.106(e)). It is undisputed that Krause is an employee of the City,
which is a political subdivision of the State. See Dohlen v. City of San Antonio, 643
S.W.3d 387, 392 (Tex. 2022). Thus, we have jurisdiction over this appeal because
section 51.014(a)(5) provides for an interlocutory appeal by Krause from the trial
court’s order denying his assertion of immunity under section 101.106 in his Rule
91a motion. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(5), 101.106;
Austin State Hosp., 347 S.W.3d at 301; Hung v. Davis, No. 01-20-00746-CV, 2022
WL 1008805, at *2–3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2022, no pet.)
(mem. op.).
B. Did the trial court err in denying Krause’s motion?
In his sole appellate issue, Krause asserts that the trial court erred in denying
his Rule 91a motion because by suing both Krause and the City, Mayes irrevocably
elected to pursue his claims against the City only and is forever barred from
asserting any claims against Krause.
5
1. Standard of Review
Rule 91a provides a mechanism for early dismissal of a claim that has no
basis in law or fact. See Tex. R. Civ. P. 91a.1. Courts generally review the merits
of a Rule 91a motion de novo. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724
(Tex. 2016). But the proper standard of review is not necessarily determined by the
type of motion to which the order relates, but rather it is determined by the
substance of the issue to be reviewed. Singleton v. Casteel, 267 S.W.3d 547, 550
(Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Here, Krause’s Rule 91a motion raised an issue of immunity as conferred by
Section 101.106 of the Civil Practice and Remedies Code. If that immunity applies,
the trial court lacks subject-matter jurisdiction over Mayes’s negligence claim
against Krause. See Franka, 332 S.W.3d at 371 n.9; Hung, 2022 WL 1008805, at
*3; Singleton, 267 S.W.3d at 550. Subject-matter jurisdiction is a question of law
which we review de novo. Likewise, matters of statutory construction are reviewed
under a de novo standard. City of San Antonio v. City of Boerne, 111 S.W.3d 22,
25 (Tex. 2003).
2. Applicable Law
The Texas Tort Claims Act (“Tort Claims Act”) provides a limited waiver of
the City’s governmental immunity for certain suits. See Tex. Civ. Prac. & Rem.
Code Ann. §§101.001–101.109 (West, Westlaw through 2021 C.S.); Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). The Tort
Claims Act generally waives governmental immunity to the extent that liability
arises from:
(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an employee
acting within his scope of employment if:
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(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven equipment;
and
(B) the employee would be personally liable to the claimant according
to Texas law[.]
Tex. Civ. Prac. & Rem. Code Ann. §101.021(1). After the Texas Legislature
enacted the Tort Claims Act, plaintiffs often sought to avoid the Tort Claims Act’s
damages cap or other strictures by suing governmental employees, since claims
against them were not always subject to the Tort Claims Act. Garcia, 253 S.W.3d
at 656. In 2003, to prevent such circumvention and to protect governmental
employees, the Texas Legislature revised section 101.106 to create a
comprehensive election-of-remedies provision, which requires a plaintiff to decide
on a theory of tort liability before filing suit. Tex. Civ. Prac. & Rem. Code Ann.
§101.106; Univ. of Tex. Health & Sci. Ctr. at Houston v. Rios, 542 S.W.3d 530,
536 (Tex. 2017). The election-of-remedies provision requires a plaintiff to decide
at the outset whether an employee acted independently and thus is solely liable, or
acted within the general scope of his or her employment, and thus the
governmental unit is vicariously liable. Rios, 542 S.W.3d at 536. “This early-
election requirement ‘reduce[s] the delay and expense associated with allowing
plaintiffs to plead alternatively that the governmental unit is liable because its
employee acted within the scope of his or her authority but, if not, that the
employee acted independently and is individually liable.’” Rios, 542 S.W.3d at
536–37 (quoting Garcia, 253 S.W.3d at 657). The Supreme Court of Texas has
warned that a plantiff’s decision as to whom to sue has irrevocable consequences,
and therefore a plaintiff should proceed cautiously before filing suit and carefully
consider whether to seek relief from the governmental unit or from the employee
individually. See Rios, 542 S.W.3d at 537.
7
In this appeal, we are concerned primarily with subsection (e) of the
election-of-remedies provision:
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). In other words, when a plaintiff
sues both a governmental unit and its employee asserting tort claims, subsection (e)
requires the immediate dismissal of the employee upon the governmental unit’s
motion. See Rios, 542 S.W.3d at 537. This requirement effectively makes a
plaintiff’s apparent nonchoice an election to sue only the governmental unit. Id.
3. Analysis
Krause argues that section 101.106(e) bars Mayes’s negligence claim against
him because Mayes sued both the City, a governmental unit, and Krause, the
governmental unit’s employee, for negligence. We agree. By pleading negligence
claims against both the City and Krause that were premised on Krause’s alleged
actions in the scope of his employment with the City, Mayes made an irrevocable
election to pursue a vicarious liability theory against the City. See Tex. Civ. Prac.
& Rem. Code Ann. §101.106; Rios, 542 S.W.3d at 538–39; Hung, 2022 WL
1008805, at *4. The City’s motion to dismiss Krause under section 101.106(e)
confirmed Krause’s status as an employee and triggered his right to dismissal from
the lawsuit. See Rios, 542 S.W.3d at 538–39; Texas Adjutant General’s Office v.
Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013) (stating that the filing of the
governmental unit’s motion to dismiss under section 101.106(e) effectively
confirmed employee’s status and actions within course and scope of employment).
The trial court’s statements in its order indicate that the trial court concluded
that Mayes’s nonsuit of his claim against the City meant that section 101.106 no
longer applied. Any such conclusion by the trial court conflicts with binding
8
precedent from the Supreme Court of Texas. In Rios, the plaintiff, a first-year
medical resident, sued the University of Texas Health Science Center at Houston
and several of its faculty doctors, alleging that they tried to discredit his reputation
and harm his future career in medicine. Rios, 542 S.W.3d at 532. The plaintiff
alleged contract claims against the Center and tort claims against the Center and
the doctors. Id. The Attorney General answered for the defendants and moved to
dismiss all but the tort claims against the Center. Id. As to the tort claims against
the doctors, the Attorney General’s motion sought dismissal under section
101.106(e). Id. at 532–33. The plaintiff responded by amending his petition to drop
his tort claims against the Center, leaving the doctors as the only tort defendants,
and thus no longer suing under the Tort Claims Act “both a governmental unit and
any of its employees.” Tex. Civ. Prac. & Rem. Code Ann. §101.106(e); Rios, 542
S.W.3d at 533. The trial court denied dismissal of the tort claims against the
doctors, and the court of appeals affirmed. Id.
The Supreme Court of Texas held that the trial court erred in denying
dismissal of the plaintiff’s tort claims against the doctors. Id. at 539. The high court
determined that the plaintiff’s action in amending his petition to drop his tort
claims against the Center did not deny the doctors or the Center a ruling on their
motion to dismiss under section 101.106(e) as to the claims against the doctors. Id.
at 537–38. The Rios court determined that the filing of a motion to dismiss, not its
content, triggers the employee’s right to dismissal under section 101.106(e). Id. at
538. And the statutory right to dismissal “is not impaired by later amendments to
the pleadings or motion.” Id. at 532. Thus, as to the plaintiff’s claims:
[The plaintiff] made an irrevocable election to pursue a vicarious-
liability theory against the Center by alleging in his original petition
state-law tort claims against both the Center and the [d]octors that
were premised on the [d]octors[ ] being Center employees. [The]
motion to dismiss the [d]octors under subsection (e) of the Act’s
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election-of-remedies provision confirmed the [d]octors’ status as
employees and accrued their right to dismissal from the lawsuit. [The
plaintiff] could not avoid this result by amending his petition to drop
the tort claims against the Center[.]
Id. at 538; see also Austin State Hosp., 347 S.W.3d at 301 (holding that even
though plaintiff nonsuited his claims against the governmental unit after the
governmental unit and its employees had moved to dismiss the claims against the
employees under section 101.106(e), the filing of the governmental unit’s motion
to dismiss triggered the employees’ right to dismissal of the claims against them
under section 101.106(e), and the nonsuit did not prevent the employees from
obtaining a ruling on their motion to dismiss).
Krause’s right under section 101.106(e) to immunity and dismissal of
Mayes’s negligence claim accrued upon the filing of the City’s motion to dismiss.
See Tex. Civ. Prac. & Rem. Code Ann. §101.106(e); Rios, 542 S.W.3d at 538;
Hung, 2022 WL 1008805, at *6. This was an irrevocable consequence of Mayes’s
election to sue both the City and Krause based on Krause’s alleged negligence. See
Tex. Civ. Prac. & Rem. Code Ann. §101.106(e); Rios, 542 S.W.3d at 536–37;
Hung, 2022 WL 1008805, at *6. Mayes could not avoid this consequence by
nonsuiting his claim against the City. See Rios, 542 S.W.3d at 537–38; Austin State
Hosp., 347 S.W.3d at 301; Hung, 2022 WL 1008805, at *6.
On appeal, Mayes asserts that (1) he consulted with his current counsel ten
days before the expiration of the statute of limitations; (2) Krause and the City
sought to “create service [of process] inefficiencies”; and (3) when Mayes filed his
original petition, it was not possible for him to discern whether Krause was acting
in the course and scope of his employment with the City at the time of the accident.
In this context, Mayes contends that the only way to preserve both a vicarious
liability claim against the City and a claim against Krause in the event he was not
acting in the course and scope of his employment was to sue both Krause and the
10
City, so that Mayes might timely effect service of process on both parties and
preserve his right to pursue either claim. The Supreme Court of Texas does not
agree with this reasoning.
The Supreme Court has admonished that a plaintiff should proceed
cautiously before filing suit and carefully consider whether to seek relief from the
governmental unit or from the employee individually. Molina v. Alvarado, 463
S.W.3d 867, 871 (Tex. 2015). However, the high court has recognized that a
plaintiff “may not be in the position of knowing whether the [employee] was acting
within the scope of employment” when the plaintiff files suit. Ngakoue, 408
S.W.3d at 359. The high court has recommended that if at the time a plaintiff files
suit the plaintiff possesses insufficient information to determine whether the
employee was acting within the scope of his employment at time of the occurrence
giving rise to the plaintiff’s tort claim, the prudent choice is to sue only the
employee and await a factual resolution of that question. See Tex. Civ. Prac. &
Rem. Code Ann. §101.106(f); Molina, 463 S.W.3d at 871; Alexander v. Walker,
435 S.W.3d 789, 791 (Tex. 2014). Section 101.106(f) provides that if a plaintiff’s
suit is “filed against an employee of a governmental unit based on conduct within
the general scope of that employee’s employment” and “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.” Tex. Civ. Prac. &
Rem. Code Ann. §101.106(f). A suit against an employee based on conduct within
the general scope of that employee’s employment is not a suit against the
employee; it is, “in all but name only, a suit against the governmental unit.”
Ngakoue, 408 S.W.3d at 357. Conversely, suits against an employee based on
conduct outside the scope of employment are suits against an employee in his
individual capacity and seek personal liability. Molina, 463 S.W.3d at 871.
11
If a plaintiff sues only the employee of a governmental unit and it turns out
that the conduct giving rise to the suit occurred outside the scope of employment,
the plaintiff may proceed with the claim against the employee in the employee’s
individual capacity. See id. If it turns out that the conduct giving rise to the suit
occurred within the general scope of that employee’s employment, the plaintiff has
an opportunity under section 101.106(f) to substitute the governmental unit in
place of the employee as the defendant, and the filing of suit and service of process
on the employee are effectively considered as the filing of suit and service of
process on the governmental unit for purposes of the statute of limitations. See
Univ. of Tex. Health. Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 401–02
(Tex. 2011). Thus, if the statute of limitations did not bar the plaintiff’s claim
against the employee, the statute of limitations will not bar the plaintiff’s claim
against the governmental unit substituted in as a defendant, even if the substitution
occurs after limitations has run. See id. Under these precedents, Mayes did not
have to sue the City in his original petition to avoid the bar of limitations in the
event it turned out that Krause was acting in the general scope of his employment
with the City at the time of the accident. See id.; Ngakoue, 408 S.W.3d at 357–59.
Mayes indicates that the Molina case is distinguishable from today’s case
because the employee’s alleged negligence in Molina involved driving a vehicle
under the influence of alcohol and Mayes does not allege that Krause drove his
vehicle under the influence of alcohol. This difference in the factual allegations
does not mean that the Molina court’s teachings about the operation of section
101.106 do not apply in today’s case. See Molina, 463 S.W.3d at 869–71.
By alleging common-law tort claims against the City and Krause premised
on Krause being an employee of the City, Mayes made an irrevocable election to
pursue a vicarious-liability theory against the City. The City’s motion to dismiss
12
Krause under section 101.106(e) triggered Krause’s right to dismissal from the
lawsuit based on immunity. See Rios, 542 S.W.3d at 538; Hung, 2022 WL
1008805, at *6. We conclude that the trial court erred by denying Krause’s Rule
91a motion. See Rios, 542 S.W.3d at 536–38; Austin State Hosp., 347 S.W.3d at
301; Hung, 2022 WL 1008805, at *6. Therefore, we sustain Krause’s sole issue.
C. Should this court remand the case to the trial court for further
proceedings?
In the prayer of his appellate brief, Mayes appears to ask this court to set
aside his non-suit of the City and allow Mayes to reinstate his negligence claim
against the City. To the extent Mayes seeks this relief, he raises issues outside the
scope of whether Krause was entitled to a dismissal of the claim against him based
on immunity, and thus we lack appellate jurisdiction to address these issues. See
Iverson v. Putnam, No. 14-16-00416-CV, 2017 WL 1719100, at *2 (Tex. App.—
Houston [14th Dist.] May 2, 2017, no pet.) (mem. op.); Boozier v. Hambrick, 846
S.W.2d 593, 596 (Tex. App.—Houston [14th Dist.] 1993, no writ).
In another part of his brief, Mayes indicates that if this court concludes that
the trial court should have granted Krause’s motion to dismiss, then Mayes
requests that we remand this case to the trial court so that Mayes may be heard on a
motion for new trial seeking to have the nonsuit of his claim against the City set
aside and to have this claim reinstated. See Wilkins v. McManemy, No. 14-06-
00876-CV, 2009 WL 838139, at *1, *5 (Tex. App.—Houston [14th Dist.] Mar. 31,
2009, pet. denied) (reviewing the trial court’s denial of plaintiff’s motion for new
trial asking the trial court to vacate the voluntary dismissals of plaintiff’s claims
against two doctors and reinstate the claims against the doctors, in a case in which
the plaintiff voluntarily dismissed the claims against the doctors after they filed
motions to dismiss under section 101.106(f)) (mem. op.); Griffin v. Miles, 553
13
S.W.2d 933, 934–35 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ dism’d)
(reviewing the trial court’s denial of plaintiffs’ motion for new trial asking the trial
court to set aside their nonsuit of claims against a doctor and to reinstate these
claims). The record does not reflect that Mayes has yet sought this relief in the trial
court. However, if the trial court had granted Krause’s motion to dismiss, the trial
court’s order would have created a final judgment in this case, and Mayes would
have had thirty days from the signing of the order granting Krause’s motion to
timely file any motion for new trial asking the trial court to set aside the non-suit
order and reinstate Mayes’s claim against the City. See Tex. R. Civ. P. 329b(a). In
this context we conclude that a remand is necessary for further proceedings to
allow Mayes an opportunity to file a motion seeking this relief in the trial court and
obtain a ruling on it. See Tex. R. App. P. 43.3; Courtland Building Co., Inc. v.
Jalal Family P’ship, Ltd., 403 S.W.3d 265, 277 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Therefore, rather than rendering judgment, we will reverse the trial
court’s order and remand this case on the terms stated below. See Tex. R. App. P.
43.3; Courtland Building Co., Inc., 403 S.W.3d at 277.
III. CONCLUSION
We have jurisdiction over this appeal under section 51.014(a)(5) of the Civil
Practice and Remedies Code. For the reasons stated above, we conclude that the
trial court erred in denying Krause’s Rule 91a motion to dismiss, and we sustain
Krause’s sole issue. Therefore, we reverse the trial court’s order and remand this
case to the trial court with instructions to the trial court (1) to sign an order
granting Krause’s motion to dismiss and dismissing Mayes’s negligence claim
against Krause with prejudice; and (2) to consider the merits of any timely filed
motion for new trial or other timely motion that Mayes may file asking the trial
court to set aside the non-suit order and reinstate Mayes’s negligence claim against
14
the City. We make no comment whatsoever on the propriety or merits of such a
motion or such relief.
/s/ Randy Wilson
Justice
Panel consists of Chief Justice Christopher and Justices Poissant and Wilson
(Poissant, J., concurring in the judgment only).
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