James Wetherbe, Ph. D. v. Debra Laverie, Ph. D.

• Court: Court of Appeals of Texas
• Decided: August 8, 2019
• Docket: 07-17-00306-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00306-CV

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

August 8, 2019

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

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

1 TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2019). 2 Laverie v. Wetherbe, 517 S.W.3d 748, 750 (Tex. 2017) (op. on reh’g). 3She elaborated, “So to give you an example, I handle the dossiers being prepared properly for promotion and tenure; I work with the area coordinators when they recruit and hire faculty; I oversee some of our student services that we offer our students.”

2 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,

3 248 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 employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

4 TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).4 “By adopting section 101.106(f), the

Legislature has effectively mandated that only a governmental unit can be sued for a

governmental employee’s work-related tortious conduct.” Garza v. Harrison, 574 S.W.3d

389, 393-94 (Tex. 2019). Thus, before filing suit a plaintiff must decide “whether an

employee acted independently and is thus solely liable, or acted within the general scope

of his or her employment such that the governmental unit is vicariously liable.” Laverie,

517 S.W.3d at 752 (citing Mission Consol. ISD, 253 S.W.3d at 657). The Legislature did

not purpose section 101.106(f) “to adjudicate the underlying tort claim but to quickly

dismiss government employees when the suit should be brought against their employer.”

Laverie, 517 S.W.3d at 755.

Under the TTCA “‘scope of employment’ means 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West 2019). “An official acts

within the scope of her authority if she is discharging the duties generally assigned to

her.” City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (holding defendant

4 Concerning section 101.106(f)’s requirement that suit could have been brought under the TTCA against the governmental unit, defamation is an intentional tort. Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (op. on reh’g). And the TTCA does not waive immunity for intentional torts, TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West 2019); hence, there would have been no TTCA waiver of Wetherbe’s defamation claim had he sued Texas Tech. However, “[b]ecause the [TTCA] is the only . . . avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be under [the TTCA] for purposes of § 101.106.” Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008) (internal quotation marks omitted). Thus, for the application of section 101.106(f), Wetherbe’s suit could have been brought under the TTCA against Texas Tech.

5 officers were within the scope of their authority while conducting a high speed chase of a

suspect because each was on duty, in a squad car, pursuing a suspect); see Garza, 574

S.W.3d at 401 (“Simply stated, a governmental employee is discharging generally

assigned job duties if the employee was doing [her] job at the time of the alleged tort”).

The scope-of-employment inquiry under section 101.106(f) is not concerned with

the reasons motivating the complained-of conduct but whether the conduct fell within the

general scope of the employee’s employment. Melton v. Farrow, No. 03-13-00542-CV,

2015 Tex. App. LEXIS 1224, at *8 (Tex. App.—Austin Feb. 10, 2015, pet. denied) (mem.

op.) (citing TEX. CIV. PRAC. & REM. CODE § 101.106(f)); Cf. Laverie, 517 S.W.3d at 755

(“An employee will of course sometimes have personal motives for performing her job a

particular way, and a statement made or an act done may simultaneously fulfill a job

responsibility while furthering an ulterior motive”). It is fundamentally objective; that is,

whether the employee’s job duties and the alleged tortious act are connected. Garza,

574 S.W.3d at 401 (citing Laverie, 517 S.W.3d at 753).

Wetherbe does not challenge Laverie’s status as an employee of a governmental

unit or that his suit could have been brought against the governmental unit, Texas Tech.

Rather, Wetherbe argues “the issue is whether the trial court correctly found a connection

between Laverie’s job duties as Senior Associate Dean and the alleged tortious conduct,

i.e., was the conduct itself ‘pursuant to’ Laverie’s job responsibilities?” But in answering

this question it matters not whether Laverie did her job well or poorly, or whether she did

her job selfishly or altruistically. Laverie, 517 S.W.3d at 755; Garza, 574 S.W.3d at 401

(explaining for “purposes of section 101.106(f), the employee’s state of mind, motives,

6 and competency are irrelevant so long as the conduct itself was pursuant to the

employee’s job responsibilities”).

Laverie’s allegedly defamatory statements were made in her conversation with two

Rawls College faculty and staff members, at a meeting at which one topic was which

Rawls faculty members to invite to the seminar with the team of visitors from Harvard.

The substance of her statements was Wetherbe’s workplace conduct toward his Rawls

College co-workers. Objectively, Laverie was performing her duties as senior associate

dean with oversight over the IMBA program when she allegedly slandered Wetherbe at

the February 2 meeting. Laverie, 517 S.W.3d at 756; see Melton, 2015 Tex. App. LEXIS

1224 (allegedly defamatory statements concerning professional engineer were made in

the general scope of employment of defendant governmental board members; trial court

properly dismissed plaintiff’s case when he failed to substitute governmental employer for

employees after employees filed section 101.106(f) motion to dismiss); Hopkins v.

Strickland, No. 01-12-00315-CV, 2013 Tex. App. LEXIS 2982 (Tex. App.—Houston [1st

Dist.] Mar. 21, 2013, no pet.) (mem. op.) (allegedly slanderous statements made by mayor

about former police chief to prospective employer were within general scope of mayor’s

duties and mayor was entitled to dismissal of former police chief’s suit under section

101.106(f)).

Wetherbe alternatively argues an ultimate fact issue remains in the jurisdictional

determination because Laverie denies making the listening-device statement while

Buchheit testified she made the statement. But, as we have noted, for purposes of our

de novo review we accept as true the pleaded allegations and evidence favorable to

Wetherbe, Miranda, 133 S.W.3d at 228, and therefore accept that Laverie made the

7 listening-device statement at the meeting, just as Wetherbe contends. Because the

listening-device statement was uttered within the general scope of Laverie’s employment,

Wetherbe’s first and second issues are overruled.

By his third issue, Wetherbe argues if we find his pleadings contain a curable

jurisdictional defect then the trial court abused its discretion by dismissing the case

without affording him the opportunity to amend his petition. Wetherbe accurately points

out that a plaintiff should have the opportunity to correct by amended petition a defective

but curable jurisdictional allegation before his suit is dismissed for want of jurisdiction.

Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). We find, however,

that rule has no application here. Wetherbe filed detailed pleadings and responded in

opposition to Laverie’s motion to dismiss with evidence. Laverie supported her motion

with evidence and Wetherbe filed a surreply. The record is lengthy and includes nine

depositions. Buchheit was deposed twice. We are not told, and can scarcely imagine,

what material fact might have been omitted from Wetherbe’s petition. Wetherbe’s third

issue is overruled.

Conclusion

Because it is undisputed that Wetherbe could have brought his lawsuit against

Texas Tech and Laverie is an employee of Texas Tech and because the evidence on the

sole disputed issue of Laverie’s request for dismissal under section 101.106(f)

conclusively establishes Laverie acted within the general scope of her employment,

Wetherbe’s suit is against Laverie in her official capacity only. TEX. CIV. PRAC. & REM.

8 CODE ANN. § 101.106(f); Laverie, 517 S.W.3d at 756. The trial court did not err by

dismissing Wetherbe’s lawsuit. Its order of dismissal is affirmed.

James T. Campbell Justice