Freer Volunteer Fire Department v. April Wallace, Individually and Next Friend of Gabriella Wallace
04-16-00373-CV
| Tex. App. | Oct 5, 2016Background
- In 2011 an ambulance driven by Martin Martinez, Jr., struck April Wallace’s vehicle while transporting a patient; Wallace’s daughter was injured.
- Wallace sued Martinez and the City of Freer; Martinez pleaded he was acting as a volunteer firefighter for Freer Volunteer Fire Department (FVFD) and thus immune under the Texas Tort Claims Act (TTCA).
- Wallace later added FVFD as a defendant; Martinez and FVFD filed a joint motion under Tex. Civ. Prac. & Rem. Code § 101.106(e) to dismiss Martinez, and Wallace subsequently dropped Martinez from the suit.
- FVFD paid Martinez nominal stipends ($7–$8) per run and per training; Wallace argued those payments made him a paid employee for TTCA purposes.
- FVFD filed a plea to the jurisdiction asserting governmental immunity; Wallace argued Martinez was an employee (not a volunteer) and alternatively that FVFD’s prior joint motion estopped FVFD from asserting immunity.
- The trial court denied FVFD’s plea; the court of appeals reversed and dismissed FVFD for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Martinez was an "employee" under the TTCA (i.e., in the paid service of the governmental unit) so that FVFD's immunity is waived for vehicle operation claims | Wallace: Martinez received stipends per run/training and thus was a paid employee | FVFD: stipends were nominal; Martinez remained a volunteer and not in paid service under TTCA | Court: Nominal stipends did not convert Martinez into a paid employee; he remained a volunteer, so FVFD retained immunity |
| Whether FVFD waived or is estopped from asserting immunity because it previously referred to Martinez as an employee in a joint motion and moved to dismiss him | Wallace: FVFD’s joint motion calling Martinez an employee creates an estoppel/waiver-by-conduct or at least a fact issue | FVFD: statements in the joint motion were not judicial admissions, no hearing was held, and waiver-by-conduct is not recognized here | Court: Declined to adopt a waiver-by-conduct exception based on these facts; FVFD did not waive immunity and jurisdiction was lacking |
Key Cases Cited
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for reviewing jurisdictional pleas and when evidence creates fact issues)
- Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849 (Tex. 2002) (explaining the policies behind sovereign immunity and rejecting waiver-by-conduct exceptions)
- Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) (refusing to create a waiver-by-conduct exception to governmental immunity)
- Norrell v. Gardendale Volunteer Fire Dep’t, 115 S.W.3d 114 (Tex. App.—San Antonio 2003, no pet.) (volunteers are not "employees" under TTCA definition)
- City of Dayton v. Gates, 126 S.W.3d 288 (Tex. App.—Beaumont 2004, no pet.) (same principle: nominal payments do not necessarily make a volunteer an employee)