Douglas W. Kirk v. Plano Independent School District Nancy Humphrey, Individually and in Her Official Capacity as President of the Board of Trustees of the Plano Independent School District Anika Vaughan, Individually and in Her Official Capacity as Teacher for Plano
03-15-00211-CV
| Tex. App. | Oct 5, 2015Background
- Pro se plaintiff Douglas W. Kirk sued Plano ISD and several employees (individually and in official capacity) alleging defamation and related claims after an internal safety/security inquiry and grievance process.
- Kirk abandoned his internal grievance (failed to attend a required level-two hearing) and did not exhaust administrative remedies.
- Defendants moved to dismiss on governmental immunity/Texas Tort Claims Act (TTCA) grounds and under the election-of-remedies provision, §101.106.
- Trial court granted dismissal; Kirk appealed, naming the court as a respondent and raising multiple statutory and common-law arguments.
- Appellees argue the court correctly applied Texas precedent (notably Mission Consol. Indep. Sch. Dist. v. Garcia) requiring dismissal when a plaintiff sues a governmental unit and its employees together, and that TTCA immunity was not waived for intentional torts like defamation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Applicability of TTCA election-of-remedies (§101.106) when plaintiff sues gov’t and employees for defamation | Kirk: TTCA doesn’t apply because TTCA does not waive immunity for intentional torts like defamation; he can sue outside the Act | Defs: Under Garcia, all common-law torts against a governmental unit are treated as “under” the TTCA for §101.106 purposes, so suing both gov’t and employees triggers dismissal of employees and immunity defenses | Court applied Garcia: §101.106 applies; employees dismissed and immunity bars suit against entity for intentional torts |
| 2. Whether non–motor-vehicle intentional tort claims escape TTCA immunity | Kirk: Because TTCA’s waiver is limited, if it doesn’t waive for a tort (e.g., defamation) plaintiff should be able to proceed regardless | Defs: Immunity is the baseline; plaintiff must affirmatively plead a statutory waiver of immunity; TTCA controls and does not waive immunity for intentional torts | Held for Defs: immunity bars suits not waived by TTCA, even for non–motor-vehicle claims |
| 3. Scope of “remedies additional” (§101.003) — does it permit common-law tort claims outside TTCA | Kirk: §101.003’s “remedies additional” allows suing outside TTCA (and avoids election-of-remedies constraint) | Defs: “Remedies additional” refers to other statutory causes of action, not to circumvent TTCA’s election-of-remedies for common-law torts; Garcia controls | Held for Defs: §101.003 doesn’t permit bypassing §101.106 for common-law torts against governmental units |
| 4. Waiver-by-conduct / waiver without express consent | Kirk: Governmental conduct can amount to a waiver (waiver-by-conduct) beyond contract contexts | Defs: Waiver-by-conduct is limited to narrow contract contexts where liability (not suit) is implicated; express consent is required to waive immunity from suit | Held for Defs: No general waiver-by-conduct for non-contract claims; express waiver required to permit suit |
Key Cases Cited
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (holds all common-law tort claims against a governmental unit are treated as "under" the TTCA for §101.106 election-of-remedies purposes)
- Brown v. Ke-Ping Xie, 260 S.W.3d 118 (Tex.App.-Houston [1st Dist.] 2008) (applies Garcia and dismisses employees where plaintiff sued both hospital and employees for torts)
- Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704 (Tex. 2003) (explains government waives immunity from liability by contract only in narrow circumstances; waiver of suit requires express consent)
- Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379 (Tex.App.-Fort Worth 2008) (applies election-of-remedies principles when plaintiff sues governmental unit and employees)
- City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102 (Tex.App.-Dallas 2013) (rejects broad waiver-by-conduct doctrine outside breach-of-contract context)
- Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653 (Tex.App.-Dallas 2008) (explains venue waiver does not equate to waiving merits or TTCA defenses)