Appeal from the 125th District Court Harris County, Texas
Trial Court Cause No. 2016-18523
consists of Justices Boyce, Jamison, and Brown (Jamison, J.,
William J. Boyce Justice.
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.
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.
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).
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."
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.
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
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).
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.
Standard of Review
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.
Texas Tort Claims Act Election of Remedies
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
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.
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.
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
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.
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 ...