Ector County and Ector County Sheriff's Office v. Henry Grace

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ECTOR COUNTY AND ECTOR COUNTY § No. 08-22-00127-CV SHERIFF’S OFFICE, § Appeal from the Appellants, § 161st Judicial District Court v. § of Ector County, Texas HENRY GRACE, § (TC# B-19-11-1524-CV) Appellee.

OPINION

This interlocutory appeal arises from the denial of a plea to the jurisdiction. Appellee,

Henry Grace, alleged he was injured during his apprehension for evading arrest or detention by an

Ector County Sheriff’s Office deputy. Grace subsequently sued Ector County and the Ector County

Sheriff’s Office (collectively Appellants) for negligence under the Texas Tort Claims Act (TTCA).

Appellants responded with a traditional and no-evidence motion for summary judgment and a plea

to the jurisdiction, asserting Grace’s claim was barred by sovereign immunity under the TTCA.

The trial court denied the summary-judgment motion by written order. In one issue on appeal,

Appellants challenge the trial court’s denial of their plea to the jurisdiction and summary-judgment

motion, arguing that Grace’s claim should have been dismissed because Appellants’ immunity under the TTCA had not been waived. For the following reasons, we reverse the trial court’s order

denying summary judgment and render judgment dismissing Grace’s claim. 1

I. FACTUAL AND PROCEDURAL BACKGROUND

According to Grace’s petition, during the late evening hours of November 27, 2017, Grace

was travelling on his motorcycle in Odessa, Texas, when he noticed a police vehicle following

him. After Deputy Alderman followed Grace “for quite some time,” he activated the patrol

vehicle’s emergency lights, but Grace, who did not know that he had violated any traffic rules,

continued to drive. When Grace turned onto another street and Deputy Alderman kept following

him, Grace “became afraid at that point and tried to get away from the patrol unit.” During the

ensuing chase, which lasted nearly seven minutes, Deputy Alderman repeatedly bumped the rear

tire of Grace’s motorcycle, which almost caused a loss of control and caused Grace to become

more afraid and continue to drive away. Deputy Alderman also told Grace over the patrol vehicle’s

loudspeaker that he was going to run Grace over. Grace claimed that after he “stalled” the

motorcycle, Deputy Alderman “hit and ran over the [motorcycle] causing [Grace] to crash and fall

hard to the ground,” resulting in Grace’s injuries. Grace was arrested for evading detention or

arrest with a motor vehicle. See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B).

Grace sued Appellants by an unverified petition, alleging a claim for “negligence” that we

enumerate in below. Appellants responded by filing a plea to the jurisdiction, arguing that

sovereign immunity under the TTCA barred Grace’s claim. Appellants simultaneously filed a

combined traditional and no-evidence motion for summary judgment that likewise asserted

Grace’s claims were barred by sovereign immunity. Attached to the summary-judgment motion

1 This case was transferred from our sister court in Eastland, and we decide it in accordance with the precedent of that court to the extent required by TEX. R. APP. P. 41.3.

2 were a dashcam video of the chase and Deputy Alderman’s official report concerning the incident.

Appellee neither objected to this evidence nor offered any of his own. Following a hearing on

Appellants’ plea to the jurisdiction and motion for summary judgment, the trial court entered an

“Order Denying Defendants’ Traditional and No-Evidence Motion for Summary Judgment,”

having found “that fact questions exist in the issues raised by such [m]otion.” However, the court

did not enter an oral or written order expressly ruling on Appellants’ plea to the jurisdiction. This

interlocutory appeal followed.

Appellants challenge the denial of their plea to the jurisdiction and summary-judgment

motion, arguing the trial court lacked jurisdiction because the TTCA did not waive immunity for

Grace’s claim. Grace never filed a responsive appellate brief; therefore, we proceed on the record

before us and Appellants’ brief.

II. LACK OF ORDER DENYING PLEA TO THE JURISDICTION

As a preliminary matter, we address whether we have jurisdiction to consider this appeal

despite the lack of order denying the plea to the jurisdiction. 2 See State v. Lueck, 290 S.W.3d 876,

880–81 (Tex. 2009) (an appellate court’s jurisdiction is a threshold matter). Appellants contend

that this Court has jurisdiction pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8),

which provides for interlocutory appeals from the grant or denial of a plea to the jurisdiction filed

by a governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8); see Lazarides v.

Farris, 367 S.W.3d 788, 796 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

As noted above, the trial court did not expressly grant or deny Appellants’ plea to the

jurisdiction but instead denied their summary-judgment motion in which Appellants raised the

2 Although Appellants do not squarely address the issue regarding a lack of denying order in their brief, we may raise jurisdictional issues such as this one sua sponte. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015).

3 same jurisdictional arguments. “When the record does not contain an order granting or denying a

plea to the jurisdiction, but does include an order denying a motion for summary judgment in

which the movant challenged the trial court’s jurisdiction, an interlocutory appeal may be taken

under subsection (a)(8) irrespective of the selected procedural vehicle.” Lazarides, 367 S.W.3d at

796–97 (citing Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006)). Thus, although the trial court

did not expressly rule on Appellants’ plea to the jurisdiction, we nonetheless retain jurisdiction to

review the trial court’s denial of summary judgment on the basis by which Appellants challenged

the trial court’s subject-matter jurisdiction. See id. (appellate court had jurisdiction to consider trial

court’s order denying a party’s motion for summary judgment on jurisdictional grounds in the

absence of order expressly ruling on the party’s plea to the jurisdiction raising the same

jurisdictional arguments).

III. SUMMARY JUDGMENT

Having determined that we have jurisdiction to decide this appeal, we consider Appellants’

argument that they were entitled to summary judgment because they had immunity from Grace’s

claim under the TTCA.

A. Standard of Review

We review de novo the jurisdictional challenges in Appellants’ summary-judgment

motion. See Long, 207 S.W.3d at 339–40. A summary-judgment motion challenging jurisdiction

may challenge either the pleadings or the existence of jurisdictional facts. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). When the motion challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the parties to resolve

the jurisdictional issues raised. See id. at 227. If the evidence presents a fact question regarding a

jurisdictional issue, the trial court is precluded from granting summary judgment on the

4 jurisdictional challenge and fact issues will be resolved by the factfinder. Id. at 227–28. However,

if the relevant evidence is undisputed or fails to raise a genuine fact issue regarding the

jurisdictional challenge, the trial court should grant summary judgment as a matter of law. Id. at

228.

Here, Appellants filed a combined traditional and no-evidence motion for summary

judgment. When a party with the burden of proof moves for traditional summary judgment, that

party “bears the burden to conclusively establish that [it] is entitled to judgment as a matter of law,

notwithstanding the nonmovant’s response or lack thereof.” B.C. v. Steak N Shake Operations,

Inc., 598 S.W.3d 256, 258-59 (Tex. 2020) (citing TEX. R. CIV. P. 166a(c)). A matter is conclusively

established when “reasonable people could not differ in their conclusions[.]” City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005); see also Triton Oil & Gas Corp. v. Marine Contractors

& Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982) (a matter is conclusively established if ordinary

minds could not differ as to the conclusion to be drawn from the evidence).

A no-evidence motion for summary judgment is similar to a pre-trial motion for directed

verdict. See Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021) (citing TEX. R. CIV. P. 166a(i)).

The motion must state the elements as to which the movant believes there is no evidence. TEX. R.

CIV. P. 166a(i). “A properly filed no-evidence motion shifts the burden to the nonmovant to present

evidence raising a genuine issue of material fact supporting each element contested in the motion.”

JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). “[A] no-evidence summary

judgment is improperly granted if the respondent brings forth more than a scintilla of probative

evidence to raise a genuine issue of material fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003). “More than a scintilla of evidence rises to the level that would enable reasonable

and fair-minded people to differ in their conclusions,” while less than a scintilla exists “when the

5 evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.” King

Ranch, 118 S.W.3d. at 751 (internal quotation marks omitted); see also Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600–01 (Tex. 2004).

When, as here, a party moves for both traditional and no-evidence summary judgment, we

first consider the no-evidence motion. Ford Motor Co., 135 S.W.3d at 600.

B. Waiver of immunity under the TTCA

Sovereign immunity generally shields the State, its agencies, and its officials from lawsuits

unless the Legislature waives immunity. See Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d

54, 57–58 (Tex. 2011). Texas recognizes two threads of immunity: (1) immunity from suit, even

when the government entity’s liability is not disputed; and (2) immunity from liability, even though

the government entity has consented to the suit. Rosenberg Dev. Corp. v. Imperial Performing

Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019). Here, we address immunity from suit, which

implicates a trial court’s subject-matter jurisdiction. Id. A plaintiff shoulders the burden of alleging

facts establishing that the trial court has subject-matter jurisdiction over its claims, i.e., that a

governmental defendant’s immunity from suit has been waived. See Sepulveda v. County of El

Paso, 170 S.W.3d 605, 610 (Tex. App.—El Paso 2005, pet. denied), citing Texas Assoc. of Bus. v.

Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

The Texas Tort Claims Act provides a limited waiver of sovereign immunity. Alexander v.

Walker, 435 S.W.3d 789, 790 (Tex. 2014) (per curiam). The TTCA waives immunity for claims

for acts of negligence arising out of a governmental employee’s negligent operation or use of a

motor vehicle but does not waive immunity for any intentional tort, including battery. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(1), 101.057(2); City of Watauga v. Gordon, 434

S.W.3d 586, 587 (Tex. 2014).

6 In City of Watauga v. Gordon, the Texas Supreme Court examined the delineation between

a negligence claim and a battery claim in the context of police officers’ use of force during an

arrest and whether an arrestee could sue under the TTCA. 434 S.W.3d at 587–88. There, officers

stopped a motorist for suspicion of driving while intoxicated and placed him under arrest. Id. at

588. The motorist sued the City of Watauga for negligent use of property, alleging injuries to his

wrists caused by the officers’ handcuffs that had been placed too tightly. Id. The trial court denied

the City’s plea to the jurisdiction on the ground that the City was immune from suit under the

intentional-tort exception in § 101.057(2). The Supreme Court ultimately dismissed the motorist’s

claims, holding that the City’s immunity had not been waived for the claims because they sounded

in an intentional tort (battery) instead of negligence. Id. at 593–94. In so doing, the court

recognized the distinction between negligence and battery claims and noted that the “gravamen of

[the motorist’s] complaints against the City is that its police officers used excessive force in

effecting his arrest. Claims of excessive force in the context of a lawful arrest arise out of a battery

rather than negligence, whether the excessive force was intended or not.” Id.

B. Grace’s claim is barred by the TTCA

The question of whether Appellants’ immunity here is waived under the TTCA turns on

whether Grace’s claim sounds in negligence or an intentional tort. See id. In his unverified petition,

Grace alleged that Deputy Alderman’s patrol vehicle “bumped the rear tire of the motorcycle,

almost causing a complete loss of control and further frightening [Grace]. . . . [Grace] at one point

began to stall, and the Deputy hit and ran over the bike causing [Grace] to crash and fall hard to

the ground, resulting in injuries and damages to [him].” He further alleged that Deputy Alderman

“can be heard to repeatedly say [that] he was going to run over [Grace]. His actions were excessive

7 and placed [Grace] in extreme danger … [and] resulted in the injuries and damages sustained by

[Grace].” And under the heading “Negligence,” Grace alleged that

At the time and on the occasion in question, the deputy of the Ector County Sheriff’s [O]ffice failed to use ordinary care in exercising his responsibilities while working for the Ector County Sheriff’s Office and thus Ector County in one or more of the following particulars:

(a) He failed to keep a proper lookout;

(b) He failed to timely apply his brakes;

(c) He failed to perform an evasive action to avoid colliding with [Grace’s] vehicle in front of him;

(d) He failed to use due caution;

(e) He failed to yield the right of way where [Grace’s] vehicle was located;

(f) He failed to control his speed colliding into [Grace’s motorcycle] in front of him;

(g) He used excessive force when administering his duties; and

One or more of the above acts and/or omissions constitutes negligence and as such was a proximate cause of the collision and injuries in question.

Although Grace framed his claim as sounding in negligence, at least in part, his factual

allegations that Deputy Alderman struck and ran over his motorcycle and frightened him, along

with the allegation that Deputy Alderman “used excessive force” during the encounter, place his

claim within the realm of intentional torts. Because Grace does not allege a distinct negligence

claim that does not arise out of an intentional tort, we conclude that his claim is barred by the

intentional-tort exception to the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. 101.057(2);

Gordon, 434 S.W.3d at 594. Thus, the trial court erred by denying Appellants’ motion for summary

judgment on this basis.

8 C. Even if the TTCA did not bar Grace’s claim, he failed to produce more than a scintilla of evidence to raise a genuine issue of material fact

Even if Grace’s claim was not barred, it would still fail because he has not produced more

than a mere scintilla of evidence in response to Appellants’ no-evidence motion for summary

judgment. See King Ranch, 118 S.W.3d at 751. In the trial court, Appellants attached to their

summary-judgment motion the dashcam video recording of the chase and Deputy Alderman’s

report explaining the events in the video. Grace did not object to the officer’s report and he

produced no evidence in the trial court to controvert Appellants’ evidence, but instead relied solely

upon the dashcam footage to raise a fact issue. And on appeal, Grace has not filed any responsive

appellate briefing or arguments.

Our review of the dashcam footage indicates that the moment of the collision is out of

frame of the video; as such, it is unclear whether Deputy Alderman struck Grace’s motorcycle

with the patrol vehicle or Grace struck Deputy Alderman’s patrol vehicle with his motorcycle. The

dashcam evidence does nothing more than create a “mere surmise” that Deputy Alderman struck

Grace; leaving jurors to guess this fact legally amounts to no evidence. See Ford Motor Co., 135

S.W.3d at 601 (asserting that “[w]hen the evidence offered to prove a vital fact is so weak as to do

no more than create a mere surmise or suspicion of its existence, the evidence is no more than a

scintilla and, in legal effect, is no evidence”) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,

63 (Tex. 1983). And although we typically disregard evidence contrary to the nonmovant’s

position, here, we cannot ignore the only other evidence contextualizing the dashcam footage—

Deputy Alderman’s report and account of what occurred. See City of Keller, 168 S.W.3d at 811–

12. Deputy Alderman’s report stated that Grace ran his motorcycle into the patrol vehicle, not the

other way around; this report places the dashcam video in context by establishing what the video

9 could not. See id. As Grace did not testify, did not present any other summary-judgment evidence,

did not raise any objections to the police report in the trial court, and without briefing, we are left

to conclude that any purported negligence claim would fail because less than a scintilla of evidence

exists in response to Appellants’ no-evidence motion.

V. CONCLUSION

We reverse the trial court’s order denying Appellants’ plea to the jurisdiction and render

judgment dismissing Grace’s claims for lack of subject-matter jurisdiction.

LISA J. SOTO, Justice

February 21, 2023

Before Rodriguez, C.J., Soto, J., Marion, C.J. (Ret.) Marion, C.J. (Ret.) (sitting by assignment)