Brooks Ditto, Billy Pembleton, and Karina Castaneda v. Judith Campos and Jessy Campos
13-15-00517-CV
| Tex. App. | Dec 16, 2015Background
- Plaintiffs Judith and Jessy Campos sued Weslaco police officers Brooks Ditto, Billy Pembleton, and Karina Castaneda (among others) alleging malicious prosecution, abuse of process, civil conspiracy, and loss of consortium arising from the officers’ investigation and arrest of Jessy Campos.
- Plaintiffs’ petition pleads that Castaneda used her position as a Weslaco police officer and that Ditto and Pembleton cooperated in the arrest/prosecution.
- Plaintiffs served a §101.101 tort-claims notice on the City of Weslaco before filing suit stating the officers were acting in the course and scope of employment and expressing intent to sue the City.
- Defendants moved under TRCP 91a to dismiss and later filed a plea to the jurisdiction invoking §101.106(f) (TTCA) and attaching the §101.101 notice and an affidavit from then-Interim Police Chief Ted Walensky stating the officers acted within the course and scope of employment.
- The trial court denied the Rule 91a motion and the jurisdictional plea and issued orders stating it would not consider the attached evidence; defendants appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §101.106(f) requires dismissal of individually named officers sued for conduct within the scope of employment | Campos argues the petition names officers in their individual capacities and did not explicitly sue them in their "official capacity" or name the City, so §101.106(f) does not mandate dismissal | Defendants argue the pleadings, the §101.101 notice, and Walensky affidavit show the alleged conduct was within the officers’ course and scope, so §101.106(f) converts the suit into one against the governmental unit and requires dismissal of the officers unless Plaintiffs substitute the City within 30 days | Trial court denied defendants’ motions (order below); defendants appeal the denial asserting they should have been dismissed under §101.106(f) |
| Whether the trial court could consider the §101.101 notice and affidavit in resolving the jurisdictional plea | Campos opposed consideration, relying on form of pleading (individual capacity only) | Defendants say courts may consider relevant evidence when resolving jurisdictional facts and the notice/affidavit are proper pleading exhibits under TRCP 59 and Rule 91a | Trial court stated it would not consider the evidence and denied the plea; defendants assert that was error and appeal |
| Whether intentional-tort claims defeat TTCA waiver and subject-matter jurisdiction | Campos pursues intentional torts (malicious prosecution, abuse of process, civil conspiracy, loss of consortium) as pleaded | Defendants note TTCA §101.057(2) does not waive immunity for intentional torts and many of Plaintiffs’ claims are intentional or derivative, so the City (and thus official-capacity claims) remain immune | Trial court denied dismissal below; defendants argue such claims are immune and jurisdiction is lacking |
| Whether Plaintiffs’ failure to timely amend to substitute the City bars later suit against the City | Campos contends she has pleaded only against individuals and elected to proceed individually | Defendants contend Plaintiffs had notice the officers acted in scope and, having failed to amend within §101.106(f)’s 30-day window after defendants moved, Plaintiffs are barred from later suing the City on the same subject matter | Trial court denied motions below; defendants argue the failure to substitute should result in dismissal with prejudice and appeal |
Key Cases Cited
- Austin State Hosp. v. Graham, 347 S.W.3d 298 (Tex. 2011) (standard for reviewing denials of immunity assertions)
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (court may consider evidence on plea to jurisdiction)
- Texas Adjutant General's Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013) (interpretation of §101.106(f) and that suits against employees in official capacity are suits against governmental units)
- Molina v. Alvarado, 463 S.W.3d 867 (Tex. 2015) (plaintiff must dispute official-capacity nature or implicitly concede when §101.106 invoked)
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (context on §101.106 revisions and election-of-remedies jurisprudence)
- Univ. of Texas Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-Arancibia, 324 S.W.3d 544 (Tex. 2010) (§101.101 notice is jurisdictional prerequisite to suing a governmental unit)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (plaintiff must carefully choose whether to sue governmental unit or employee; consequences of misjoinder)