Keane Menefee v. Kathryn and Jeremy Medlen

• Court: Court of Appeals of Texas
• Decided: June 24, 2010
• Docket: 02-09-00440-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-09-440-CV

KEANE MENEFEE APPELLANT

V.

KATHRYN AND JEREMY MEDLEN APPELLEES

------------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

OPINION

I. INTRODUCTION

This is an interlocutory appeal by Appellant Keane Menefee from the trial

court’s denial of his motion to dismiss Appellees Kathryn and Jeremy Medlens’

lawsuit against him. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon

2008). The primary issue we address is whether Menefee was entitled to dismissal

based on section 101.106(f) of the Texas Tort Claims Act (TTCA), the “Election of

Remedies” section providing that a governmental employee is entitled to dismissal

of a suit brought against him when the suit is based on conduct within the general scope of the employee’s employment and if the suit could have been brought under

the TTCA against the governmental unit. See id. § 101.106(f) (Vernon 2005).

Because, as set forth below, Menefee failed to establish that the Medlens could have

brought their suit under the TTCA against his employer—the City of Fort W orth—he

was not entitled to dismissal under section 101.106(f). Accordingly, we will affirm the

trial court’s order denying Menefee’s motion to dismiss.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND

In July 2009, the Medlens’ dog Avery escaped from their backyard, and the

Animal Care and Control Division of the City of Fort Worth picked up the dog. That

same day, Jeremy went to the animal shelter and found Avery. An employee told

Jeremy that he could not take Avery home without first paying $95 in fines and fees.

Jeremy had only $80 with him, and the employee told Jeremy that he could return

any time during the next five days to pay the $95 and get Avery. The following day,

Kathryn and her son went to the animal shelter with the money owed, but an

employee told her that Avery could not be released until the veterinarian could

implant a microchip in Avery and give the dog a rabies vaccination. The employee

said that the veterinarian was not available at that time, and Kathryn and her son left

without Avery. Later that day, Jeremy called the animal shelter and was told that the

veterinarian would not be available until the following Monday and to return then to

pick up Avery. On Monday, Jeremy and his two children went to the animal shelter

to pick up Avery and learned that their dog had been euthanized.

2 The Medlens brought suit against Menefee in his individual capacity, alleging

that he was negligent in killing Avery when he knew or should have known that Avery

had owners who had reclaimed the dog and alleging that Menefee was negligent in

violating the rules, policies, and procedures of the City of Fort W orth.

Menefee filed a motion to dismiss the Medlens’ claims against him, asserting

that he was entitled to a dismissal pursuant to section 101.106(f) of the TTCA. The

trial court denied the motion, and Menefee perfected this interlocutory appeal. 1

III. M OTION TO D ISMISS P URSUANT TO S ECTION 101.106(F)

In his sole issue, Menefee argues that section 101.106(f) of the TTCA entitled

him to dismissal of the Medlens’ suit. The parties’ dispute centers on section

101.106(f)’s language providing that a governmental employee is entitled to

dismissal only if the suit “could have been brought under this chapter against the

governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

A. Standard of Review

1  W e have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5). That section provides for interlocutory appeals from denials of summary judgment motions based on governmental employees’ immunity and has been construed as providing for interlocutory appeals not only from denials of summary judgments but also from denials of motions to dismiss pursuant to section 101.106 of the TTCA. See City of Arlington v. Randall, 301 S.W .3d 896, 902 n.2 (Tex. App.—Fort W orth 2009, pet. filed); Leonard v. Glenn, 293 S.W .3d 669, 681 n.11 (Tex. App.—San Antonio 2009, pet. filed); Phillips v. Dafonte, 187 S.W .3d 669, 674–75 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

3 Although we generally review a motion to dismiss under an abuse of discretion

standard, the substance of the issue to be resolved dictates the standard of review.

See In re Doe, 19 S.W .3d 249, 253 (Tex. 2000) (determining that the proper

standard of review is based on “whether the [issue] is a question of fact or of law”).

W hen the issue presented involves questions of statutory interpretation, as it does

here, the standard of review is de novo. Reedy v. Pompa, No. 13-08-00590-CV,

2010 W L 1010049, at *3 (Tex. App.—Corpus Christi Mar. 18, 2010, pet. filed); Hintz

v. Lally, 305 S.W .3d 761, 765 (Tex. App.—Houston [14th Dist.] 2009, pet. filed)

(citing City of San Antonio v. City of Boerne, 111 S.W .3d 22, 25 (Tex. 2003)).

B. Rules of Statutory Construction

Our primary objective in statutory construction is to give effect to the

legislature’s intent. State v. Shumake, 199 S.W .3d 279, 284 (Tex. 2006). W e look

first to the language in the statutory text. Lexington Ins. Co. v. Strayhorn, 209

S.W .3d 83, 85 (Tex. 2006). W e rely on the plain meaning of the text unless such a

construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W .3d 621,

625–26 (Tex. 2008); see Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). In

determining legislative intent, we may consider, among other things, the objective

the law seeks to obtain and the consequences of a particular construction. Tex.

Gov’t Code Ann. § 311.023(1), (5) (Vernon 2005); Helena Chem. Co. v. Wilkins, 47

S.W .3d 486, 493 (Tex. 2001); Hintz, 305 S.W .3d at 766. Additionally, we presume

4 that the entire statute is intended to be effective and that a just and reasonable result

is intended. Tex. Gov’t Code Ann. § 311.021(2), (3) (Vernon 2005).

C. Waiver of Governmental Immunity

Generally, sovereign immunity protects the state against lawsuits for money

damages unless the state has consented to suit. See Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W .3d 653, 655 (Tex. 2008); Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W .3d 217, 224 (Tex. 2004). Governmental immunity operates like

sovereign immunity to afford similar protection to subdivisions of the state, including

counties, cities, and school districts, unless that immunity has been waived. Harris

County v. Sykes, 136 S.W .3d 635, 638 (Tex. 2004); San Antonio Indep. Sch. Dist.

v. McKinney, 936 S.W .2d 279, 283 (Tex. 1996).

The TTCA establishes a limited waiver of this immunity and authorizes suits

to be brought against governmental units in certain narrowly-defined circumstances.

Tex. Dep’t of Criminal Justice v. Miller, 51 S.W .3d 583, 587 (Tex. 2001); see Dallas

County MHMR v. Bossley, 968 S.W .2d 339, 341 (Tex.), cert. denied, 525 U.S. 1017

(1998). Under the TTCA, governmental immunity is waived for property damage

caused by the negligence of a governmental employee acting in the course and

scope of his employment if the damage arises from the operation or use of a

motor-driven vehicle or motor-driven equipment. Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(1)(A) (Vernon 2005).

D. Election of Remedies Provision

5 After the TTCA was enacted, litigants often sought to avoid the TTCA’s

strictures by suing governmental employees individually instead of their

governmental employers in an effort to circumvent a governmental unit’s assertion

of immunity. See Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W .3d 379,

396–97 (Tex. App.—Fort W orth 2008, no pet.) (citing Garcia, 253 S.W .3d at 657).

The legislature countered this tactic by creating an election-of-remedies provision.

Garcia, 253 S.W .3d at 656; see Tex. Civ. Prac. & Rem. Code Ann. § 101.106.

Section 101.106 is designed to force a plaintiff to decide at the outset whether

an employee acted independently, and is thus solely liable, or whether he acted

within the general scope of his employment so that the governmental unit is

vicariously liable. See Garcia, 253 S.W .3d at 657. By requiring a plaintiff to make

an irrevocable election at the time suit is filed between suing the governmental unit

under the TTCA or proceeding against the employee alone, section 101.106 narrows

the issues for trial and reduces delay and duplicative litigation costs. 2 Tex. Bay

Cherry Hill, 257 S.W .3d at 397 (citing Garcia, 253 S.W .3d at 656–57).

Under the TTCA’s election scheme, seeking recovery against an individual

governmental employee is prohibited and seeking recovery against only the

2  “State agencies are required to indemnify their employees for litigation expenses if the employee’s actions were within the course and scope of his or her employment.” Garcia, 253 S.W .3d at 657 n.3 (citing Tex. Civ. Prac. & Rem. Code Ann. § 104.001(Vernon Supp. 2009), § 104.002 (Vernon 2005)). Similarly, local governments may indemnify their employees for negligent acts committed in the course and scope of their employment. See Tex. Civ. Prac. & Rem. Code Ann. § 102.002 (Vernon 2005).

6 governmental unit is permitted in three instances: (1) when suit is filed against the

governmental unit only—the employee may not be sued regarding the same subject

matter per section 101.106(a); (2) when suit is filed against both the governmental

unit and its employee—the employee must be dismissed upon the governmental

unit’s motion per section 101.106(e); or (3) when suit is filed against an employee

based on conduct within the scope of his employment and the suit could have been

brought under the TTCA against the governmental unit—the suit must be dismissed

upon the employee’s motion unless the plaintiff substitutes the governmental unit per

section 101.106(f). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (e), (f).

Menefee’s motion to dismiss is based solely on subsection (f) of section

101.106, which 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.

Id. § 101.106(f). In effect, subsection (f) prevents a suit against an employee when

a governmental unit may be vicariously liable for the employee’s conduct by

requiring either the substitution of the governmental unit for the employee or the

dismissal of the plaintiff’s suit when the suit (1) is based on an employee’s conduct

within the general scope of his employment and (2) could have been brought under

7 the TTCA against the governmental unit. Leonard, 293 S.W .3d at 681 (citing

Phillips, 187 S.W .3d at 673).

E. The Parties’ Contentions

Concerning the first prong of subsection (f), the parties agree that the

Medlens’ suit against Menefee is based on his conduct as the supervisor of the

City’s Animal Care and Control Division. The focus of the parties’ arguments is on

the second prong of subsection (f)—whether the Medlens’ suit could have been

brought under the TTCA against the governmental unit.

Concerning the second prong of subsection (f), the Medlens asserted in the

trial court and argue on appeal that Menefee did not satisfy his burden to prove that

they could have brought their suit under the TTCA against the City. The Medlens

point out that their suit is for property damage (the euthanization of their dog) that

did not arise from the operation or use of a motor-driven vehicle or motor-driven

equipment as required to waive the City’s governmental immunity for property

damage under the TTCA. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A).

Consequently, the Medlens argue that the trial court properly denied Menefee’s

motion to dismiss because he failed to establish the second prong of subsection (f).

Menefee, on the other hand, argues that section 101.106(f)’s could-have-

been-brought-under-this-chapter language includes “all possible tort theories of

recovery, not merely ones for which the [TTCA] expressly waives immunity.” Garcia,

253 S.W .3d at 658–59. Thus, according to Menefee, although the TTCA does not

8 waive the City’s governmental immunity for the Medlens’ claims, their claims are still

brought “under [the TTCA] for purposes of dismissal under subsection (f).”

F. Interpretation of and Burden of Proof for “Could-Have-Been-Brought-Under-this-Chapter” Language of Section 101.106(f)

It is undisputed that a party moving to dismiss pursuant to any of the election

of remedies provisions of section 101.106 bears the burden of proof on his motion

to dismiss. See, e.g., Reedy, 2010 W L 1010049, at *5; Hintz, 305 S.W .3d at 767;

Lanphier v. Avis, 244 S.W .3d 596, 605 (Tex. App.—Texarkana 2008, pet. dism’d);

Hall v. Provost, 232 S.W .3d 926, 928 (Tex. App.—Dallas 2007, no pet.); Kanlic v.

Meyer, 230 S.W .3d 889, 893 (Tex. App.—El Paso 2007, pet. denied); Phillips, 187

S.W .3d at 675. Thus, here, Menefee bore the burden of proof to establish his right

to dismissal under subsection (f), including the second prong of subsection (f), that

the Medlens could have brought their suit under the TTCA against the City.

It is likewise undisputed that prior to the Texas Supreme Court’s decision in

Garcia, courts interpreted section 101.106(f)’s election of remedies provision as

applying only to suits presenting a claim within the TTCA’s limited waiver of

immunity. See, e.g., Lanphier, 244 S.W .3d at 600–01, 607; Hall, 232 S.W .3d at

928–29; Kanlic, 230 S.W .3d at 894–95; Clark v. Sell, 228 S.W .3d 873, 874–75 (Tex.

App.—Amarillo 2007, pet. filed); Franka v. Velasquez, 216 S.W .3d 409, 412–13

(Tex. App.—San Antonio 2006, pet. granted); Tejada v. Rowe, 207 S.W .3d 920, 925

(Tex. App.—Beaumont 2006, pet. filed); Phillips, 187 S.W .3d at 676–77.

9 In Garcia, the supreme court interpreted subsection (e) of section 101.106, not

subsection (f). See 253 S.W .3d at 658–59. Subsection (e) provides for dismissal

of a governmental employee when “a suit is filed under this chapter against both a

governmental unit and any of its employees.” Id. (quoting Tex. Civ. Prac. & Rem.

Code Ann. § 101.106(e)). The supreme court held that the phrase “filed under this

chapter” encompassed not only common law tort causes of action for which the

TTCA waived immunity but also common law tort causes of action for which the

TTCA did not waive immunity. Id. The supreme court explained that because the

TTCA is the only, albeit limited, 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 section 101.106. Id. at 659. The supreme court expressly noted in

Garcia, however, that it was not addressing subsection (f) and pointed out that

subsection (f) “contains a slightly different phrase”—entitling an employee who is

sued alone, without simultaneous suit against the governmental unit, to dismissal

when the suit “could have been brought under this chapter against the governmental

unit.” Id. at 660 n.5 (emphasis added).

The courts of appeals are split on whether the supreme court’s Garcia

analysis of section 101.106(e)’s filed-under-this-chapter language applies to section

101.106(f)’s could-have-been-brought-under-this-chapter language. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(e) (authorizing dismissal of employee when “a

10 suit is filed under this chapter against both a governmental unit and any of its

employees”) (emphasis added), § 101.106(f) (authorizing dismissal of employee

when suit is brought only against him “based on conduct within the general scope

of [his] employment and if it could have been brought under this chapter against the

governmental unit”) (emphasis added). Compare Kelemen v. Elliott, 260 S.W .3d

518, 522–24 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Garcia for

proposition that “all tort claims against government entity are ‘under’ Tort Claims

Act”),3 and Castro v. McNabb, No. 08-07-00074-CV, 2009 W L 3462982, at *7 (Tex.

App.—El Paso Oct. 28, 2009, no pet.) (stating, “[W ]e believe [Garcia’s] holding

applies equally to [subsection (f)],” but holding employee not entitled to dismissal

under subsection (f) because suit was brought for declaratory judgment, Declaratory

Judgments Act provides waiver of immunity and, consequently, suit was not brought

“under [the TTCA]” for purposes of subsection (f)), with Reedy, 2010 WL 1010049,

at *5 (disagreeing with Kelemen’s application of Garcia to subsection (f) and holding

that “phrase ‘could have been brought’ unambiguously invokes the [TTCA]’s limited

waiver of immunity”), Lieberman v. Romero, No. 05-08-01636-CV, 2009 W L

3595128, at *2 (Tex. App.—Dallas Nov. 3, 2009, pet. filed) (mem. op.) (rejecting

argument that Garcia eliminated the requirement to show that the plaintiff’s claims

3  The court of appeals in Kelemen ultimately held that the governmental employee was not entitled to dismissal under subsection (f) because he did not meet his burden of proving the first prong because his assaultive conduct did not fall within the general scope of his employment. Id.

11 fell within a waiver of immunity), and Leonard, 293 S.W .3d at 681–85 (upholding trial

court’s denial of motion to dismiss under subsection (f), without reference to Garcia,

because plaintiff’s claims could not have been brought against governmental unit).

W e have not interpreted subsection (f) since Garcia.

W e hold that the reasoning of Garcia—applicable to motions to dismiss under

subsection (e)—is not applicable to motions to dismiss under subsection (f). As the

Corpus Christi court explained in Reedy,

[T]he phrase “could have been brought” [in subsection (f)] modifies the phrase “under this chapter.” W e conclude the phrase “could have been brought” unambiguously invokes the [TTCA]’s limited waiver of immunity from suit and liability, and the Texas Supreme Court [in Garcia] did not intend to undo the scores of opinions holding otherwise. Accordingly, we hold that Reedy was required to show that the Pompas’ suit invoked a waiver of immunity from suit and liability under the [TTCA] in order to prevail on her motion to dismiss under section 101.106(f) . . . .

2010 WL 1010049, at *5 (citations omitted). In other words, giving the language of

subsection (f) its plain meaning, a suit that “could have been brought under this

chapter against the governmental unit” necessarily means a suit that falls within the

TTCA’s limited waiver of sovereign immunity. See Tex. Gov’t Code Ann. § 311.011.

This construction of subsection 101.106(f) is not only supported by the plain

language of subsection (f), it also harmonizes the language of the entire subsection

and avoids an absurd consequence. See id. §§ 311.021(2), (3), .023(5). W hen an

employee establishes the two prongs of subsection (f)—that the employee was

12 acting within the general scope of the employee’s employment and that the plaintiff’s

suit could have been brought under the TTCA against the governmental unit—then

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.” Tex. Civ. Prac. & Rem.

Code Ann. § 101.106(f). Consequently, when the employee establishes that the suit

could have been brought under the TTCA against the governmental entity, in order

to avoid complete dismissal of the suit, a plaintiff must file amended pleadings suing

the governmental entity. See id. Applying subsection (f) when a plaintiff’s claims do

not fall within the TTCA’s limited waiver of sovereign immunity—that is, requiring a

plaintiff to dismiss the employee and to sue a governmental unit when the plaintiff’s

claims do not fall within the TTCA’s limited waiver of immunity—would constitute a

statutory mandate requiring a plaintiff to file an unmeritorious suit. See Tex. R. Civ.

P. 13 (providing sanctions for filing groundless pleadings brought in bad faith or for

harassment purposes); see also Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001–.014

(Vernon 2002) (allowing sanctions for filing groundless pleadings in bad faith or for

harassment), §§ 10.001–.006 (Vernon 2002) (allowing sanctions for filing pleadings

and motions not warranted by existing law and brought for improper purposes). The

consequences of this construction — requiring a plaintiff to file a groundless suit

against a governmental entity — cannot have been intended by the legislature. See

Tex. Gov’t Code Ann. § 311.023(1), (5) (explaining that, in construing statute, court

13 may consider object sought to be obtained by statute and consequences of

particular construction). Applying subsection (f) when a plaintiff’s claims do not fall

within the TTCA’s limited waiver of sovereign immunity would create an additional

incongruity; such a construction of subsection (f) would mean that the employee

would ostensibly obtain dismissal because the plaintiff’s suit could have been

brought under the TTCA while the subsequently sued governmental unit would

undoubtedly seek dismissal in a plea to the jurisdiction based on the assertion that

the plaintiff’s suit cannot be brought under the TTCA. See Franka, 216 S.W .3d at

413 (rejecting defendant doctors’ position that it is sufficient to raise a fact issue on

the could-have-been-brought prong of subsection (f) because of the potential result

that plaintiff would be left without a remedy).

Additionally, construing subsection (f) to mean that an employee is not entitled

to dismissal when he moves to dismiss under subsection (f) and fails to meet his

burden to establish both prongs of that subsection does not leave the employee

without other avenues of relief. He may file a plea to the jurisdiction asserting that

the plaintiffs’ suit is actually a suit against him in his official capacity and that the

plaintiffs have failed to demonstrate a waiver of governmental immunity. Tex. Dep’t

of Transp. v. Jones, 8 S.W .3d 636, 638 (Tex. 1999), Terrell v. Sisk, 111 S.W .3d 274,

281–82 (Tex. App.—Texarkana 2003, no pet.). He may also seek summary

14 judgment on the basis of the affirmative defense of official immunity. 4 See

Ballantyne, 144 S.W .3d at 424.

But, when an employee moves to dismiss under subsection (f) and meets his

burden to establish both prongs of that subsection, then “the suit is considered to be

against the employee in the employee’s official capacity only,” and, upon the

employee’s motion, the suit shall be dismissed unless the plaintiff substitutes the

governmental unit as the defendant in accordance with subsection (f). Tex. Civ.

Prac. & Rem. Code Ann. § 101.106(f). A suit against an employee in his official

capacity seeks to impose liability on the governmental unit itself; therefore, dismissal

of a suit brought against an employee in his official capacity—if the plaintiff does not

substitute the governmental unit as the defendant in accordance with subsection

(f)—accomplishes the purpose of the election-of-remedies provision because the suit

is, in actuality, a suit against the governmental unit. See, e.g., Bexar County v.

Giroux-Daniel, 956 S.W .2d 692, 695 (Tex. App.—San Antonio 1997, no pet.) (“Suits

4  A governmental employee, when sued in his individual capacity, might assert official immunity as a defense to personal monetary liability, which is well suited for resolution in a motion for summary judgment. Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W .3d 835, 843 (Tex. 2007). A suit against a governmental employee in his individual capacity seeks to impose personal liability on the employee himself, rather than on his employer, for actions taken under color of state law. See Tex. Bay Cherry Hill, 257 S.W .3d at 400; see also City of El Paso v. Heinrich, 284 S.W .3d 366, 373 n.7 (Tex. 2009) (“Judgments against state officials in their individual capacities will not bind the state.”). A government employee sued in his individual capacity is entitled to official immunity from suit arising from (1) the performance of his discretionary duties (2) in good faith (3) as long as he is acting within the scope of his authority. See Ballantyne v. Champion Builders, Inc., 144 S.W .3d 417, 424 (Tex. 2004).

15 against a government employee in his or her official capacity are just another way

of pleading a suit against the government entity of which the official is an agent.”).

In other words, if a suit against an individual governmental employee that actually

seeks to impose liability on the governmental unit were allowed to continue upon the

filing of a motion to dismiss, the purpose of the election-of-remedies provision would

be thwarted. See Garcia, 253 S.W .3d at 657 (noting purpose of election-of-

remedies provision is to force plaintiff to decide whether employee acted

independently, and is thus solely liable, or whether he acted within general scope of

his employment so that governmental unit is vicariously liable). Thus, the object

sought to be attained by subsection (f) is promoted by this construction of subsection

(f), a just and reasonable result is reached, the entire subsection is effective, and the

absurd consequences of construing the “could-have-been-brought-under-this-

chapter” language to include claims that cannot be brought under the TTCA are

avoided. See Tex. Gov’t Code Ann. §§ 311.021(2), (3), .023(1), (5).

For all of these reasons, we construe subsection (f)’s could-have-been-

brought-under-this-chapter language to require an employee seeking dismissal

under subsection (f) to prove that the plaintiff’s claims could have been brought

under the TTCA against the governmental unit—that is, that the plaintiff’s claims fall

within the TTCA’s limited waiver of sovereign immunity.

16 G. Application of Section 101.106(f) to the Present Facts

In this case, the Medlens elected to sue Menefee rather than the City. The

Medlens’ petition alleges that they are suing Menefee in his individual capacity for

negligence in killing their dog and for violating the City’s rules, policies, and

procedures; the petition specifically alleges that Menefee “is not being sued in his

official capacity.” In order to be entitled to dismissal under subsection (f), Menefee

then had the burden to prove that the Medlens’ suit is based on conduct within his

general scope of employment and that their suit could have been brought under the

TTCA against the City. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f); Reedy,

2010 W L 1010049, at *3; Lieberman, 2009 W L 3595128, at *2. Regarding the

second prong, Menefee had to prove that the Medlens’ claims against him for

property damage—the euthanasia of their family pet—arose from the operation or

use of a motor-driven vehicle or motor-driven equipment. See Tex. Civ. Prac. &

Rem. Code Ann. § 101.021(1)(A). Menefee does not argue, and nothing in the

pleadings suggest, that the motor-driven vehicle or equipment exception to the City’s

governmental immunity applies to the Medlens’ claims.

Because Menefee did not satisfy his burden to show that the Medlens’ suit

could have been brought under the TTCA against the City, we hold that the trial

court did not err by denying his motion to dismiss pursuant to section 101.106(f).

W e overrule Menefee’s sole issue.

17 IV. C ONCLUSION

Having overruled Menefee’s sole issue, we affirm the trial court’s order

denying Menefee’s motion to dismiss, and we remand this case to the trial court for

further proceedings consistent with this opinion.

SUE W ALKER JUSTICE

PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.

DELIVERED: June 24, 2010