Court of Appeals of Texas, Seventh District, Amarillo
JAMES WETHERBE, PH. D., APPELLANT
DEBRA LAVERIE, PH. D., APPELLEE
Appeal from the 99th District Court Lubbock County, Texas
Trial Court No. 2012-502, 988, Honorable William C. Sowder,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. CAMPBELL, JUSTICE
James Wetherbe, Ph.D., and appellee Debra Laverie, Ph.D., are
members of the faculty of Texas Tech University's Rawls
College of Business. In 2012 Wetherbe sued Laverie alleging
she slandered him in statements made to the university
provost and at a faculty meeting. Laverie moved to dismiss
Wetherbe's suit under the election of remedies provision
of the Texas Tort Claims Act (TTCA), specifically section
101.106(f). Ultimately, the claims based on the
alleged statements to the provost were resolved against
Wetherbe while his remaining claim of slander at the faculty
meeting was remanded to the trial court. Back in the trial
court, and following a hearing, that claim was dismissed.
This appeal followed. We will affirm the trial court's
the period relevant to this case, Laverie was senior
associate dean of the Rawls College. Asked her job duties,
Laverie testified the job "relates to overseeing faculty
matters." The record reflects also that Laverie had
an oversight role for the International Masters of Business
Administration program that the Rawls College then was
developing. Wetherbe's deposition testimony regarding
that program contains the statement that Laverie was
"instrumental in getting the thing launched . . .
." Laverie's testimony likewise reflects that she
became involved with the program at the request of the Rawls
College dean, then during the spring of 2012 "turned the
program over to [Dr. Steve Buchheit] to run."
February 2, 2012, Laverie, Buchheit and the College's
grant director, Argyres Pitsilides, gathered in Laverie's
office for a meeting called by Laverie. The meeting's
purpose was to discuss plans to bring "an expert from
Harvard to teach the case method for the IMBA Program"
and to discuss "what faculty to invite to that
seminar." At the meeting, Laverie, Buchheit and
Pitsilides discussed the seminar's attendees and
finalized the Harvard team's agenda for the trip, which
included detailing the team's day schedule.
name came up during the meeting. According to Wetherbe's
pleadings and the evidence favorable to his position, which
we accept for purposes of this appeal, Laverie made a false
statement to Pitsilides and Buchheit that Wetherbe wore a
device in his ear that allowed him to eavesdrop on the
conversations of others. Laverie further said she had been a
victim of Wetherbe's electronic eavesdropping.
his first and second issues Wetherbe argues the trial court
erred by dismissing his case because Laverie acted outside
the scope of her employment when she allegedly stated at the
meeting that Wetherbe used an electronic listening device to
eavesdrop on conversations.
governmental employee's motion to dismiss under Civil
Practice and Remedies Code section 101.106(f) is a claim of
governmental immunity. Franka v. Velasquez, 332
S.W.3d 367, 371 n.9 (Tex. 2011). Sovereign immunity from suit
defeats a trial court's subject matter jurisdiction and
may be asserted in a plea to the jurisdiction. Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225-26 (Tex. 2004). A plea to the jurisdiction is a
dilatory plea functioning "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).
review de novo the ruling of a trial court on a plea to the
jurisdiction as the existence of jurisdiction is a question
of law. Houston Mun. Emps. Pension Sys. v. Ferrell,
248 S.W.3d 151, 156 (Tex. 2007). Review of the trial
court's ruling on a plea to the jurisdiction begins with
the live pleadings. Miranda, 133 S.W.3d at 226. A
plaintiff must affirmatively demonstrate the trial
court's jurisdiction. Id. "When a plea to
the jurisdiction challenges the existence of facts alleged by
the pleader to establish the trial court's subject-matter
jurisdiction, the trial court must consider relevant evidence
submitted by the parties." Id. at 227 (citing
Bland Indep. Sch. Dist., 34 S.W.3d at 555). This
standard generally mirrors that applicable to a traditional
motion for summary judgment. Id. at 228;
Tex.R.Civ.P. 166a(c). Thus, the trial court may consider
affidavits and other summary judgment-type evidence. FKM
P'ship v. Board of Regents of Univ. of Houston Sys.,
255 S.W.3d 619, 628 (Tex. 2008). The court takes as true
evidence favorable to the nonmovant and indulges every
reasonable inference and resolves any doubts in the
nonmovant's favor. City of Waco v. Kirwan, 298
S.W.3d 618, 622 (Tex. 2009). "If the evidence creates a
fact question regarding the jurisdictional issue, then the
trial court cannot grant the plea to the jurisdiction, and
the fact issue will be resolved by the fact finder."
Miranda, 133 S.W.3d at 227-28.
TTCA provides a limited waiver of immunity. Laverie,
517 S.W.3d at 752 (citing Tex. Civ. Prac. & Rem. Code
§ 101.023). It also contains an election of remedies
provision which in relevant part provides:
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 this chapter 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 ...