Jefferson County v. Dent

          Submitted on April 9, 2019

          On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-201, 782

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON JUSTICE

         In this accelerated appeal, Jefferson County asks the Court to reverse two interlocutory orders-one denying the County's plea to the jurisdiction, and one denying its request for declaratory judgment. As to the orders, we must first address the County's complaint the trial court erred by denying the County's plea.^[1] We conclude the trial court was required to deny the County's plea to the jurisdiction, so the trial court's ruling as to that order is affirmed. We further conclude we lack jurisdiction to review the trial court's order denying the County's request for declaratory judgment and dismiss that part of the County's appeal.

         Background

         In December 2017, Dudley Dent and Phillip Swan, Jr. were involved in a motor vehicle collision near the intersection of Fannett Road and 11th Street in Beaumont, Texas. When the wreck occurred, Swan, an employee of the County Sheriff's Office, was driving a county-owned SUV. The police report on the collision states Swan failed to yield the right of way to Dent when Swan turned from 11th Street onto Fannett Road.

         Less than a year later, Dent sued the County to recover damages for the personal injuries he alleges he suffered in the wreck. Dent alleged the County was responsible for Swan's negligent operation of the SUV because Swan was driving the SUV in the course and scope of his employment for the County when the collision occurred. When the County answered the suit, it filed a general denial and asserted that, as a governmental entity, it was immune from Dent's claims.

         About a week after filing its answer, the County filed a plea to the jurisdiction, a plea governmental entities use to challenge the trial court's right to hear suits filed against them without regard to whether the plaintiff's claims have merit.^[2] In its plea, the County alleged the trial court lacked jurisdiction over Dent's claims because Swan was not in the course and scope of his employment when he hit Dent's car. Swan's affidavit, which the County attached to its plea, states that Swan was on his way home from work when the wreck occurred.^[3] Swan's affidavit also states that while he was driving home, he was not responding to any calls and had not observed any criminal activity.

         Dent amended his petition twice before the trial court considered the County's plea.^[4] None of his petitions, however, assert a claim for property damages. When Dent responded to the County's plea, he alleged Swan told him shortly after the collision that he did not see Dent's car because he had been "distracted as a result of responding to a call from work[.]" According to Dent, the statement Swan made to him at the scene is evidence raising a fact issue on his course and scope of employment claim. Dent's affidavit, which he attached to his response, includes the following statement:

After the collision, myself and Officer Swan pulled over. Officer Swan came up to me and apologized for the collision. He told me he never saw my vehicle. He also told me he was distracted because he was responding to a call from work. Officer Swan then proceeded to call his supervisor. After he called his supervisor, Officer Swan stated he was worried because he had recently been in another at-fault collision while working for Jefferson County Sheriff's Office. He stated he was afraid that he may lose his job.

Dent also attached a copy of the deposition, which the County obtained during discovery, to his response.

         In November 2018, the County asked the trial court to declare that Dent could not sue for property damages because he did not own the car he was driving that was damaged in the wreck.^[5] Before the hearing on the County's plea, the County filed written objections to the exhibits that Dent was relying on to oppose the County's plea. The County asked the trial court to exclude Dent's affidavit and his deposition, arguing that Dent's affidavit, which he filed before he was deposed, does not state the hour the collision occurred. According to the County, Dent's statements about the issue of whether Swan was still working when the collision occurred were irrelevant, speculative, conclusory, made without personal knowledge, and hearsay. The County suggested that Dent's statements about whether he talked to Swan after the wreck were internally inconsistent, claiming the inconsistencies caused Dent's statements about what he claimed Swan said after the wreck to have no probative value. And, the County argued it provided the trial court with more probative evidence than Dent on the question of whether Swan was in the scope of his employment when the wreck occurred.

         In November 2018, the trial court considered the County's plea and request for declaratory judgment. The trial court overruled all but one of the County's objections to Dent's evidence. Given the trial court's rulings on the County's objections, the evidence the trial court considered included Dent's statement about Swan stating "he was distracted because he was responding to a call from work." In December 2018, the trial court signed separate orders denying both the County's plea to the jurisdiction and its request for declaratory judgment.

         In January 2019, the County appealed the trial court's rulings.^[6] In its brief, the County raised three issues, claiming the trial court erred (1) when it denied the County's plea, (2) when it overruled the objections the County raised to Dent's affidavit and deposition, and (3) when it denied the County's request for declaratory judgment.

         Tort Claims Act

         In general, the doctrine of governmental immunity protects governmental units, including counties, from lawsuits.^[7] While the Legislature can waive that immunity, the language in a statute waiving a governmental unit's immunity must be stated in "clear and unambiguous language."^[8] Generally, the Tort Claims Act provides the waivers relevant to tort claims, and Dent relied on that statute in response to the County's plea.^[9] Yet the Tort Claims Act provides a limited waiver, waiving governmental immunity only for property damage and personal injuries when caused "by the wrongful act or omission or the negligence of an employee acting within his scope of employment[, ] if . . . the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle[, ]" and "the employee would be liable to the [plaintiff] according to Texas law[.]"^[10] Under the Tort Claims Act, "[e]mployee" is defined as "a person…who is in the paid service of a governmental unit by competent authority[, ]" and "[s]cope of employment" is defined as "the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority."^[11]

         The crux of the parties' dispute is whether the evidence the trial court considered raises an issue of material fact on whether Swan was acting in the course and scope of his duties as a deputy sheriff when the wreck occurred. Under Texas law, "every peace officer [has a duty] to preserve the peace within the officer's jurisdiction."^[12] Peace officers, including deputy sheriffs, retain their status as peace officers "twenty-four hours a day[.]"^[13] Consequently, peace officers are not relieved of the duty to preserve the peace merely because they are no longer on duty.^[14]Because off-duty officers may still be engaged in discharging their duty to maintain the peace, it is not possible to determine whether a particular officer is acting in the course and scope of his employment by considering only whether the officer's shift has ended.^[15] Instead, in cases involving police officers, courts look to whether the officer or officers involved were discharging their duties as police officers when the tort occurred.^[16]

         Standard of Review

         Generally, trial courts cannot exercise jurisdiction over a plaintiff's claims against a governmental unit if the Legislature has not waived the unit's immunity from suit.^[17] When raised in a plea to the jurisdiction, the question of whether the trial court has jurisdiction over the suit is reviewed as a question of law.^[18] In a plea to the jurisdiction, governmental units "may challenge the pleadings, the existence of jurisdictional facts, or both."^[19] When, as here, the governmental unit's plea challenges the existence of jurisdictional facts, the appellate court's standard of review mirrors the standard appellate courts use to review a trial court's ruling on a traditional motion for summary judgment.^[20] Thus, the governmental unit carries the initial burden to present evidence establishing the trial court does not have subject matter jurisdiction over the plaintiff's claims.^[21] If that burden is met, the burden shifts to the plaintiff to present evidence sufficient to demonstrate that an issue of material fact exists on the question required to resolve the jurisdictional issue.^[22]

         In our review, we consider all relevant evidence submitted by the parties in deciding whether the trial court resolved the plea properly.^[23] When reviewing the evidence, we take as true all the evidence favoring the plaintiff's claims, and we ...