Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vinson v. Tucker

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 10, 2018

JILMA VINSON, Appellant,
v.
MARSHA (MARCY) TUCKER, Appellee. RAYMOND GARCIA, Appellant,
v.
MARSHA (MARCY) TUCKER, Appellee.

          On appeal from the 105th District Court of Kleberg County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          MEMORANDUM OPINION ON REHEARING

          DORI CONTRERAS, Justice

         On November 9, 2017, we handed down a memorandum opinion and judgments dismissing these appeals for want of jurisdiction. Appellants each filed a motion for rehearing or, in the alternative, rehearing en banc. We hereby grant the motions for rehearing, withdraw our memorandum opinion and judgments dated November 9, 2017, and substitute the following memorandum opinion and accompanying judgments in their place. The alternative motions for rehearing en banc are denied as moot.

         Appellee Marsha (Marcy) Tucker sued appellants Jilma Vinson and Raymond Garcia, her colleagues at Texas A&M University-Kingsville (TAMUK), for defamation, malicious prosecution, and intentional infliction of emotional distress. On appeal, Vinson[1]and Garcia[2] each contend by two issues that the trial court erred by denying their motions to dismiss Tucker's suits on jurisdictional grounds.

         Because we find that the trial court lacked subject matter jurisdiction over Tucker's suit, we will reverse the trial court's judgments and render judgment dismissing the suit.

         I. Background

         Tucker is an assistant professor and Vinson and Garcia are lecturers in TAMUK's Department of Language and Literature. In her petition against Vinson, Tucker alleged that, on July 10, 2015, Vinson reported to campus police that: (1) she saw Tucker in possession of a personnel file belonging to another TAMUK assistant professor, Jodi Briones; (2) Tucker had obtained Briones's personnel file by breaking into the office of Michelle Johnson-Vela, a TAMUK associate professor; and (3) Tucker had used confidential information in the personnel file to lodge an ethical complaint against Briones. In her petition against Garcia, Tucker alleged that Garcia reported to campus police that: (1) he assisted Tucker in breaking into Johnson-Vela's office to obtain Briones's personnel file; and (2) Tucker admitted to him that she used confidential information contained in the personnel file to lodge an ethical complaint against Briones. According to Tucker's petitions, TAMUK police investigated the reports made by Vinson and Garcia and determined that they were unfounded.

         Vinson and Garcia filed motions to dismiss on the basis of sovereign immunity, arguing specifically that the suits must be dismissed under section 101.106(f) of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (West, Westlaw through 2017 1st C.S.). Vinson and Garcia each attached affidavits to their motions in which they stated: "At no time have I made any reports to the TAMUK Police Department concerning Dr. Tucker." In response to the motions, Tucker argued that section 101.106 does not apply because her claims are for intentional torts which cannot be brought under the TTCA against a governmental unit. See id. After a hearing on August 22, 2016, the trial court denied the motions to dismiss. The trial court noted at the hearing that it may be "appropriate to refile" the motions to dismiss after more discovery is completed.

         Subsequently, Vinson and Garcia filed amended motions to dismiss which included three additional pieces of evidence. First, the amended motions included a "Summary of Hotline Investigation" report indicating that an anonymous complaint had been made to a university ethics hotline about the incident in question. The report states that a TAMUK police investigator, Todd Burris, interviewed "every party that was alleged to have participated in or had knowledge of the incident, " including Vinson and Garcia, but "could find no proof that the personnel file that was in Dr. Tucker's possession was obtained through criminal actions." Second, a TAMUK Police Department report authored by Burris stated that, as part of his investigation into the anonymous complaint, he interviewed both Vinson and Garcia. Third, the amended motions included a copy of a TAMUK regulation concerning "Control of Fraud, Waste and Abuse" which states in part that "[a]ll employees are to cooperate fully with those performing an investigation pursuant to this regulation." Vinson and Garcia argued in their amended motions that this evidence demonstrates that Tucker's allegations involve only "conduct within in the general scope" of their employment with TAMUK, and that the suits should therefore be dismissed under section 101.106(f) of the TTCA. See id. The amended motions also included an additional section contending that Tucker's allegations do not describe ultra vires actions such that sovereign immunity would be inapplicable. See Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex. 2015).

         Vinson and Garcia then filed second amended motions to dismiss which made the same arguments as the earlier motions and additionally requested sanctions against Tucker for alleged discovery violations. After another hearing, the trial court denied the second amended motions to dismiss and these accelerated interlocutory appeals followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (West, Westlaw through 2017 1st C.S.) (allowing the immediate appeal of an interlocutory order 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"); Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (holding that "an appeal may be taken from orders denying an assertion of immunity, as provided in section 51.014(a)(5), regardless of the procedural vehicle used").

         II. Appellate Jurisdiction

         On original submission, we concluded that we lacked jurisdiction over the appeals because Vinson's and Garcia's amended and second amended motions to dismiss raised the same ultimate issue as did their initial motions, and therefore were akin to motions to reconsider, the denial of which is not subject to interlocutory appeal. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012) ("Because the City made a new argument in its amended plea to the jurisdiction, but did not assert a new ground, the amended plea was substantively a motion to reconsider the denial of its [earlier] plea. The court of appeals did not have jurisdiction to consider any part of the merits of the interlocutory appeal."); Denton Cty. v. Huther, 43 S.W.3d 665, 667 (Tex. App.-Fort Worth 2001, no pet.) ("The mere fact that the motion cites additional authority in support of Appellants' plea to the jurisdiction that was not included in the plea to the jurisdiction when it was first presented to the trial court, did not transform the motion into a second, separate and distinct plea to the jurisdiction.").

         After briefing was completed in this case, the Texas Supreme Court handed down City of Magnolia 4A Economic Development Corp. v. Smedley, 533 S.W.3d 297 (Tex. 2017), in which the Court considered whether it had jurisdiction over an interlocutory appeal in a similar factual scenario. In Smedley, the appellants sought to appeal the trial court's denial of their motion for summary judgment based on governmental immunity, but the appellee argued that the appeals court lacked jurisdiction because the summary judgment motion was "nothing more than a motion for reconsideration" of the trial court's earlier denial of appellants' plea to the jurisdiction. Id. at 301. The Texas Supreme Court held that appellants' two motions were "sufficiently different based on both their substance and procedural nature" so as to allow the order denying the second motion to be appealable. Id. at 302. The motions were different in substance because there was "extensive evidence that the trial court considered for the first time, " and they were different in "procedural nature" because the first motion attacked the sufficiency of the pleadings, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.