Dr. Carrol Thomas and Beaumont Independent School District v. Cynthia M. White, as Parent and Next Friend of Gearrin M. White

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-02-313 CV

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DR. CARROL THOMAS AND BEAUMONT INDEPENDENT

SCHOOL DISTRICT, Appellants

V.

CYNTHIA M. WHITE, as Parent and Next Friend of

GEARRIN M. WHITE, Appellee

On Appeal from the 172nd District Court

Jefferson County, Texas

Trial Cause No. E-164,874

OPINION

Cynthia M. White enrolled her child, Gearrin M. White, in Amelia Elementary

School and its after school daycare program. On the first day, she arrived at school at

approximately 4:30 p.m. to pick up Gearrin and was informed by the principal that Gearrin

had walked off the school campus and had been retrieved from a street corner by a teacher

after a citizen had called the school. White sued Beaumont Independent School District

("BISD"), alleging that the district failed to adequately supervise Gearrin during the after

school daycare period; she also sued the Superintendent, Dr. Carrol Thomas, individually

and in his official capacity, alleging that Thomas "failed and ignored to take the

appropriate actions to resolve this matter." Thomas and BISD filed a motion for summary

judgment on the grounds of sovereign immunity. The trial court denied the motion, and

the defendants appealed pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5)

(Vernon Supp. 2003)("A person may appeal from an interlocutory order of a district court

. . . 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. . . .").

As a government employee asserting immunity, Thomas may appeal the denial of

his motion for summary judgment. See City of Cockrell Hill v. Johnson, 48 S.W.3d 887,

892 (Tex. App.--Fort Worth 2001, pet. denied)("The application of section 51.014(a)(5)

does not depend on whether a person is sued in his individual or official capacity."); see

also Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997)(The denial of a claim

under an immunity statute may be appealed under Section 51.014(a)(5)). For BISD to

pursue an interlocutory appeal under Section 51.014(a)(5), the motion for summary

judgment must have been based upon an assertion of immunity by its employee. City of

Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex. 1993); Brazos Transit Dist. v. Lozano,

72 S.W.3d 442, 444 (Tex. App.--Beaumont 2002, no pet.). That may be accomplished,

as it was noted in Kilburn and in Brazos, through the state's derivative assertion of the

employee's qualified or official immunity. Id. We also have jurisdiction over the

government's appeal when the individual employee, such as Dr. Thomas, asserts and

appeals any claim of immunity. (1) See Garza v. Morales, 923 S.W.2d 800, 801-02 (Tex.

App.--Corpus Christi 1996, no writ)(City could appeal where individual employee raised

judicial and official immunity); Village of Bayou Vista v. Glaskox, 899 S.W.2d 826,

828-30 (Tex. App.--Houston [14th Dist.] 1995, no writ)(City could appeal where

individual employee raised government immunity and qualified immunity).

The appellants argue that White filed a tort suit for which the government's

sovereign immunity has not been waived. Unless waived, sovereign immunity protects the

State and its subdivisions from both suit and liability for damages. Texas Dep't of

Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Without the State's express

consent to the suit, the trial court lacks subject matter jurisdiction to hear the suit. Id. ; see

also Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997). A

defendant is entitled to summary judgment on an affirmative defense, such as sovereign

immunity, if he conclusively establishes all of the elements of the affirmative defense.

Foster v. Denton Indep. School Dist., 73 S.W.3d 454, 459 (Tex. App.--Fort Worth 2002,

no pet.).

The plaintiff's original petition articulates her cause of action, as follows:

Defendant, BEAUMONT INDEPENDENT SCHOOL DISTRICT,

carelessly and negligently failed to adequately supervise GEARRIN M.

WHITE during the after school day care period. The incident made the basis

of this lawsuit and damages sustained by Plaintiff were all approximately

caused by the negligence of Defendants for which Defendants are liable to

Plaintiff. Further, DR. CARROL THOMAS, Individually and as

Superintendent of BEAUMONT INDEPENDENT SCHOOL DISTRICT by

his actions failed and ignored to take the appropriate actions to resolve this

matter.

It is the position of Plaintiff that all of the actions of Defendants were

the sole and proximate cause of her injuries. Further, Defendants actions or

omissions were other than what a reasonable and prudent person would be

doing, or done under the same or similar circumstances. Plaintiff, by her

actions, did not cause or contribute in any manner to cause the incident made

the basis of this cause of action.

As articulated in her petition, the cause of action is for the tort of negligence arising from

inadequate supervision. The allegations against Thomas relate to his failure to act in his

official capacity as superintendent. BISD's status as a governmental unit and Thomas's

status as an employee of the district were established by an affidavit attached to the motion

for summary judgment. Although the Tort Claims Act is not the only statute through

which the State has waived its sovereign immunity, White limits her pleadings and

arguments to the Act and does not identify any other grounds upon which she is

prosecuting her suit. The State has waived its sovereign immunity in tort actions to the

extent set forth in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.001 et seq. (Vernon 1997 & Supp. 2003) ("the Act"). Under the Act, a school

district is only liable for injuries arising from the operation or use of a motor vehicle.

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 ; 101.051 (Vernon 1997). The appellee's

pleadings clearly cannot comprise a claim for personal injury arising from the operation

or use of a motor-driven vehicle.

In her response to the motion for summary judgment, White identified the following

fact issues:

1. Whether Plaintiff was misinformed and misled by Defendants

following the incident which is made the basis of this cause of action?

2. Whether Defendants intentionally ignored and refused to cooperate

with Plaintiff following the incident which is made the basis of this cause of

action?

3. Whether the actions of Defendants caused Plaintiff to incur costs

and medical expenses on behalf of her son?

4. Whether Defendants complied with their own policy in their

handling of the incident which is made the basis of this cause of action?

None of the issues identified by the appellee in her response to the motion for summary

judgment relate to the waiver of sovereign immunity. On appeal, she argues for the first

time that "her son wondering [sic] around Major and College Street at 4:30 p.m.

constituted an emergency situation" under Section 101.055 of the Act. Tex. Civ. Prac.

& Rem. Code Ann. § 101.055 (Vernon 1997). If applicable, the emergency function

exception would be an additional ground for summary judgment, not a bar to it. See id.

The appellee's brief also presents an argument that the intentional tort exception

does not apply to a claim if the government employee's negligent conduct is the subject of

the complaint. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (2) (Vernon 1997).

In the case to which she refers, Delaney v. University of Houston, 835 S.W.2d 56, 59

(Tex. 1992), the court held that a suit by a rape victim against the University for failing

to repair the lock to her dormitory did not arise out of an intentional tort. Section

101.057(2) does not apply in this case because White did not allege the commission of an

intentional tort by an employee of BISD. The inapplicability of an irrelevant exclusion

under the Act does not render BISD and its superintendent liable for a tort claim that does

not fall within the statutory waiver of sovereign immunity in the Act.

The motion for summary judgment states, "Because defendants are a school district

and an employee sued in his capacity as superintendent of said school district, they are

immune from claims of negligence." The motion does not address the claims against

Thomas in his individual capacity. Although it asserts he acted in the course of his

employment, it does not contain an affidavit by Thomas that establishes that his actions,

or more properly, omissions, were discretionary acts performed in good faith. Compare

City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex. 1994). Therefore, the

motion for summary judgment does not establish the defense of official immunity from the

claims asserted against Thomas in his individual capacity.

We sustain in part the issue presented in the appellants' brief. To the extent White

asserted claims against BISD and Thomas in his official capacity, White failed to assert a

claim for which sovereign immunity is waived. The trial court erred in denying the motion

for summary judgment that sought a summary judgment for BISD and Thomas in his

official capacity. The judgment of the trial court is reversed, and judgment is rendered

dismissing the claims of Cynthia M. White, as parent and next friend of Gearrin M. White,

against Beaumont Independent School District and Dr. Carrol Thomas in his official

capacity as Superintendent of Beaumont Independent School District. Because Thomas did

not establish the good faith and discretionary act elements of official immunity as grounds

for summary judgment, to the extent any of White's claims are against Thomas in his

individual capacity, those claims are remanded to the trial court for further proceedings

consistent with this opinion.

REVERSED AND RENDERED IN PART; CAUSE REMANDED.

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STEVE MCKEITHEN

Chief Justice

Submitted on January 2, 2003

Opinion Delivered March 20, 2003

Before McKeithen, C.J., Burgess and Gaultney, JJ.

DISSENTING AND CONCURRING OPINION

I respectfully dissent, but necessarily concur with the partial remand.

The defendants' joint motion for summary judgment alleged, "Because defendants

are a school district and an employee sued in his capacity as superintendent of said school

district, they are immune from claims of negligence." The motion for summary judgment

is based upon an assertion of sovereign immunity by the governmental unit and by Thomas

in his official capacity. The defendants also raised sovereign immunity as an affirmative

defense in their answer, but they did not file a plea to the jurisdiction. A plea to the

jurisdiction is not required to preserve sovereign immunity as a defense, but it is the order

denying such a plea for which interlocutory appeal may be had on the issue of sovereign

immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(8) (Vernon Supp.

2003).

The appellants' notice of appeal specifies that the appeal is brought pursuant to

Section 51.014(a)(5) of the Civil Practice and Remedies Code. I continue to believe our

prior determination, in Brazos Transit Dist. v. Lozano, 72 S.W.3d 442, 444 (Tex. App.--Beaumont 2002, no pet.) (2) , based upon Houston v. Kilburn , 849 S.W.2d 810 (Tex. 1993),

that this section permits only an interlocutory appeal from the denial of a motion for

summary judgment that asserts a claim of qualified or official immunity, not a claim of

sovereign immunity by a governmental unit, was correct.

Because the appellants neither sought summary judgment on a matter that is

appealable under Section 51.014(a)(5), nor filed a plea to the jurisdiction, the denial of

which would be appealable under Section 51.014(a)(8), the order denying the appellants'

motion for summary judgment is not subject to review on interlocutory appeal. Having

determined that our appellate jurisdiction has not been invoked I would dismiss the entire

appeal for want of jurisdiction. Because my result would, in effect, remand the entire

case, I necessarily concur in the majority's partial remand.

DON BURGESS

Justice

Dissent Delivered

March 20, 2003

1. In Brazos, we were not presented with an appeal by an individual who is an officer or

employee of the governmental unit. We construed Kilburn as a limitation of the "assertion of

immunity" clause in Section 51.014(a)(5). See Brazos, 72 S.W.3d at 444 . Actually, Kilburn

expansively construed the term "person" to include the government employing the individual.

Kilburn, 849 S.W.2d at 812 . The statute does not limit the type of immunity claim that may be

brought by the individual. For example, in Newman, 960 S.W.2d at 622 , the Texas Supreme Court

interpreted Section 51.014(a)(5) as permitting an appeal of immunity conferred by statute. To the

extent that our rationale in Brazos is inconsistent with our application of the law in this case, this

opinion controls.

2.

The majority relies upon a footnote to "overrule" Brazos.