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Wetherbe v. Laverie

Court of Appeals of Texas, Seventh District, Amarillo

August 8, 2019

JAMES WETHERBE, PH. D., APPELLANT
v.
DEBRA LAVERIE, PH. D., APPELLEE

          On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2012-502, 988, Honorable William C. Sowder, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL, JUSTICE

         Appellant 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).[1] 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.[2] Back in the trial court, and following a hearing, that claim was dismissed. This appeal followed. We will affirm the trial court's dismissal order.

         Factual Background

         During 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."[3] 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."

         On 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.

         Wetherbe's 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.

         Analysis

         Through 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.

         A 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).

         We 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.

         The 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 ...

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