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Annab v. Harris County

Court of Appeals of Texas, Fourteenth District

March 14, 2017

LORI ANNAB, Appellant
v.
HARRIS COUNTY, TEXAS, Appellee

         On Appeal from the 165th District Court Harris County, Texas Trial Court Cause No. 2015-58707

          Panel consists of Justices Busby, Donovan, and Brown.

          MAJORITY OPINION

          Marc W. Brown Justice.

         In this interlocutory appeal, Lori Annab contends the trial court erred in granting Harris County's plea to the jurisdiction. Annab raises three issues on appeal: (1) the trial court erred if the grant of Harris County's plea was based on the Texas Tort Claims Act (TTCA) intentional torts exclusion; (2) the trial court erred in granting the plea because the evidence raised a fact issue as to Harris County's use or misuse of property; and (3) the trial court erred in granting the plea because Harris County failed to conclusively prove the trial court lacked jurisdiction. We affirm in part and reverse and remand in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 11, 2014, Kenneth Caplan, using his Glock firearm, shot and injured Annab. At the time of the incident, Caplan was a Deputy Constable for Harris County. In applying for employment with Harris County, Caplan disclosed that he was on medication for mood stabilization due to a chemical imbalance. In the five years prior to his employment with Harris County, Caplan held 21 jobs and was fired from 12. Caplan was dismissed from the College of the Mainland Law Enforcement Academy within four months of entering. The separation form indicated Caplan's dismissal was the result of: (1) failing minimum standards for safety in performing traffic stops and building entries for Patrol Procedures - liability concerns; (2) violation of rules by jumping chain of command on three occasions; (3) inability to function as a team member and increasing hostility towards classmates; and (4) ethics - lying.

         After Caplan was hired, he identified and disclosed his Glock firearm as his primary weapon. Harris County approved and authorized the use and possession of the firearm at all times during Caplan's employment. Harris County had the authority to withdraw its approval and authorization of the firearm.

         Before the November 11 incident, Caplan was involved in four other incidents. Caplan exhibited anger management issues working as a security guard on August 7, 2012. He yelled, screamed, and cursed at supervisors and threatened a supervisor or co-worker that if stopped for a traffic violation he would go to jail, not simply receive a ticket. Caplan was involved in a road rage incident on November 11, 2013. During the incident, Caplan sped up to make sure the driver could see him motioning as though he was shooting at her. He repeatedly yelled at her, loud enough for her and her children to hear, that he intended to shoot them. The driver believed Caplan was armed as he was in uniform. Caplan again exhibited road rage behavior by stopping his personal vehicle in the middle of the street to stop a driver on July 4, 2014. Caplan exited his vehicle and approached the driver who was a uniformed Houston Police Department officer. He voiced expletives at the officer prior to returning to his car. Caplan exhibited hostility towards two other officers by striking their vehicle twice on July 24, 2014.

         Annab filed suit against Harris County, Caplan, and Carole Busick, Ph.D. Annab's claims against Harris County arise under the TTCA. Specifically, in her third amended original petition, Annab alleged: (1) use and misuse of property by hiring Caplan insofar as Harris County used and devoted funds and property toward him; (2) use and misuse of property by repeatedly approving, authorizing, and qualifying Caplan to have, possess, and use the firearm; and (3) use and misuse of property by negligently failing to withdraw and revoke approval and authorization for Caplan to possess and use the firearm before the November 11 incident. Annab contends the negligent acts were the proximate cause of the incident in question and the severe injuries and losses she sustained.

         Harris County filed a plea to the jurisdiction. Annab filed a response arguing the trial court had jurisdiction and requesting the plea be denied. Evidence was submitted with Harris County's and Annab's motions. Following a hearing, the trial court granted Harris County's plea to the jurisdiction.[1] This interlocutory appeal followed.

         II. ANALYSIS

         A. Sovereign Immunity

         In Texas, a governmental unit is immune from tort liability unless immunity has been waived by the legislature or the governmental unit has consented to suit. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (consent to suit); Dallas Cty. Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998) (legislative waiver). "The Texas Tort Claims Act provides a limited waiver of sovereign immunity." Miranda, 133 S.W.3d at 224. Sovereign immunity includes immunity from suit and immunity from liability. Id. "Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction." Id. The two immunities are co-extensive under the TTCA. Id. Absent express waiver under the TTCA, Harris County will be immune from suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B) (West Supp. 2016) (defining governmental unit to include a political subdivision of the state); Miranda, 133 S.W.3d at 224-25.

         B. Standard of Review

         Sovereign immunity is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 226. A plea to the jurisdiction is a dilatory plea; its purpose is "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). The plea challenges the trial court's jurisdiction over the subject matter of a pleaded cause of action. Miranda, 133 S.W.3d at 226. We review a trial court's ruling on a plea to the jurisdiction de novo. Id. at 228.

         A plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction. Id. at 226. "When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Id. We must accept as true all factual allegations in the petition, construe the pleadings liberally, and look to the pleader's intent. Id. at 226-27. A plea to the jurisdiction may be granted without allowing amendment if the pleading affirmatively negates the existence of jurisdiction. Id. at 227. If the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, the plaintiff should be afforded the opportunity to amend. Id.

         Where the governmental unit challenges the existence of jurisdictional facts, and the parties submit evidence relevant to the jurisdictional challenge, we consider that evidence when necessary to resolve the jurisdictional issues raised. Id. We credit as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant's favor. Id. at 228. The standard of review for a jurisdictional plea or motion based on evidence "mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. The movant must present conclusive proof that the trial court lacks subject matter jurisdiction. Id. If the movant discharges its burden to establish that the trial court lacks jurisdiction, the nonmovant must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained. Id.

         C. Harris County's Plea to the Jurisdiction

         Annab challenges the trial court's grant of Harris County's plea in three issues. We begin by addressing Annab's third issue as our resolution of that broad issue resolves all issues raised on appeal. In her third issue, Annab contends the trial court erred because Harris County failed to conclusively establish the trial court lacked jurisdiction. Harris County challenged the trial court's jurisdiction based on Annab's pleadings and the existence of jurisdictional facts.

         Annab relies on Section 101.021(2) of the TTCA in contending Harris County's sovereign immunity is waived. Section 101.021(2) provides a waiver of sovereign immunity for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). In the trial court, Harris County argued: (1) Annab alleged an intentional tort which was excluded under the TTCA; (2) the TTCA does not recognize a claim for negligent entrustment, hiring, or supervision; and (3) sovereign immunity was not waived because Caplan was not within the scope of his employment at the time he committed the tort. On appeal, Harris County also contends the trial court lacked jurisdiction as Annab did not allege a "use" of the tangible personal property under Section 101.021(2). See id. Harris County had the burden to conclusively prove the trial court's ...


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