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Fryday v. Michaelski

Court of Appeals of Texas, Fourteenth District

December 7, 2017

JACK FRYDAY D/B/A FRYDAY CONSULTING SERVICES, INC., Appellant
v.
LINDA MICHAELSKI, Appellee

         On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2016-18523

          Panel consists of Justices Boyce, Jamison, and Brown (Jamison, J., dissenting).

          MAJORITY OPINION

          William J. Boyce Justice.

         This is an interlocutory appeal from the trial court's order denying a motion to dismiss filed by appellant Jack Fryday d/b/a Fryday Consulting Services, Inc. The principal issue presented is whether Fryday was an employee of the City of Clear Lake Shores at the time he allegedly performed a faulty inspection of the rental home of appellee Linda Michaelski. Because the evidence establishes that Fryday was an employee of the City of Clear Lake Shores, we reverse the trial court's order and render judgment dismissing Michaelski's suit against Fryday.

         Background

         Michaelski sued Jack Fryday d/b/a Fryday Consulting Services, Inc. after Fryday allegedly performed "faulty building inspection work" when he inspected her rental home in Clear Lake Shores. In her original petition, she alleged claims for negligence and DTPA violations. She alleged that "[o]n or about August 2014 the Defendant was hired by the City of Clear Lake Shores to inspect the Plaintiff's rental home located at 1019 North Shore, Drive, Clear Lake Shores, Texas 77565 by the City of Clear Lake Shores, Texas." Michaelski alleged that, because of Fryday's faulty inspection, she had to incur expenses to comply with higher building standard requirements, she was deprived of rental income for the lower level of her rental home, and the value of her rental home decreased.

         Jack Fryday filed a motion to dismiss, contending that he is entitled to immunity from suit because Michaelski's claims against him "involve conduct within the general scope of his employment as a building official employed by the City of Clear Lake Shores. Under Texas law, therefore, tort claims, such as Plaintiff asserts here must be brought, if at all, against the City of Clear Lake Shores, Fryday's governmental employer." See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.002; 101.106(f) (Vernon 2011).

         In her response, Michaelski argued that Fryday is not entitled to immunity because he was not an employee of the City of Clear Lake Shores; instead, she asserted that Fryday was a "private contractor" and "private contractors hired by governmental entities are not entitled to sovereign immunity." She argued that, although she pleaded that the City of Clear Lake Shores "hired the Defendant, " she "never said the City of Clear Lake Shores hired the Defendant as an employee."

         Fryday contended in reply that (1) Michaelski failed to provide any evidence that Fryday was an independent contractor; and (2) her "own pleadings fail to substantiate how Fryday is an independent contractor of the City of Clear Lake Shores, rather than an immune governmental official." Fryday stated that he was "appointed as the City Building Official in 2009, " and served for nearly seven years in that capacity. He stated that his inspection of Michaelski's home was "entirely within the scope of Fryday's position as City Building Official" and his "responsibilities included reviewing all building permit applications and advising the City whether plans or proposals complied with applicable building codes, regulations, or ordinances." Fryday asserted that he "was an officer in the paid service of a governmental unit, sued for conduct within the general scope of his employment and should be dismissed from this lawsuit under Section 101.106(f)." To support these assertions, Fryday pointed to his written declaration attached to his reply.

         Michaelski filed a sur-reply to the motion to dismiss, contending that Fryday was not an employee of the City of Clear Lake Shores because "a d/b/a b[y] definition [is] not an employee as the d/b/a is not a person." Michaelski claimed that Fryday was "paid by the City of Clear Lake Shores through 1099's [sic] for the years 2013, 2014 and 2015 not by W2's, " and that there are "three 1099's [sic] of the Defendant specifically identifying him as a d/b/a subcontractor only, not as a person, for 2014 and 2015." Michaelski also claimed that Fryday "identifie[d] his work done for Clear Lake Shores as a part time job and not as an employee in a prior suit in the 10th Judicial District Court in Galveston." She argued that Fryday is therefore "not entitled to governmental immunity."

         The trial court denied Fryday's motion to dismiss on October 25, 2016. Fryday timely filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2016) (permitting interlocutory appeal from the denial of a motion for summary judgment based on an assertion of immunity by an officer or employee of the State or a political subdivision of the State); Singleton v. Casteel, 267 S.W.3d 547, 549-50 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (motion to dismiss filed pursuant to section 101.106 may be treated as a motion for summary judgment for purposes of appellate jurisdiction, despite defendant's use of incorrect procedural vehicle).

         Analysis

         Fryday contends that the trial court erroneously denied his motion to dismiss pursuant to the election of remedies provision in section 101.106(f) because (1) the claims asserted against him individually are based on conduct within the general scope of his governmental employment as the City's building official; and (2) suit could have been brought against the City under the Texas Tort Claims Act.

         I. Standard of Review

         A motion to dismiss filed by an employee of a governmental unit pursuant to section 101.106(f) is a challenge to the trial court's subject-matter jurisdiction, which we review de novo. Garza v. Harrison, No. 14-16-00615-CV, 2017 WL 3158946, at *2 (Tex. App.-Houston [14th Dist.] July 25, 2017, pet. filed); Singleton, 267 S.W.3d at 550.

         II. Texas Tort Claims Act Election of Remedies

         Sovereign immunity and governmental immunity protect the State and its political subdivisions, respectively, from lawsuits and liability. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655, 655 n.2 (Tex. 2008); Garza, 2017 WL 3158946, at *3. The Texas Tort Claims Act provides a limited waiver of that immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2011). After the Texas Tort Claims Act's enactment, "plaintiffs often sought to avoid the Act's damages cap or other strictures by suing governmental employees, since claims against them were not always subject to the Act." Garcia, 253 S.W.3d at 656.

         To prevent such circumvention and to protect governmental employees, the Texas Tort Claims Act was amended in 2003 to include an election of remedies provision. Garcia, 253 S.W.3d at 656; Garza, 2017 WL 3158946, at *3; Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL 6277409, at *3 (Tex. App.-Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem. op.); see also generally Tex. Civ. Prac. & Rem. Code Ann. § 101.106.

         The election of remedies provision "force[s] a plaintiff to decide at the outset 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, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery." Garcia, 253 S.W.3d at 657.

         Relevant to this case, the statute provides as follows:

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 [the Texas Tort Claims Act] 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.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Thus, an individual defendant is entitled to dismissal upon proof that the plaintiff's suit (1) is based on conduct within the scope of the defendant's employment with a governmental unit, and (2) could have been brought against the governmental unit under the Texas Tort Claims Act. See Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017).

         Here, the parties do not dispute that the City is a governmental unit and that Michaelski's claims could have been brought against the City under the Texas Tort Claims Act. Nor do the parties appear to dispute that, if Fryday is determined to be a City employee, then his conduct was within the scope of his employment with the City to provide building inspection services. The only disputed ...


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