Marilyn P. Weaver v. Paul McKeever
01-12-00851-CV
| Tex. App. | Feb 25, 2014Background
- Weaver sued McKeever for malicious prosecution based on numerous roofing-code citations after Ike 2008.
- McKeever, a Missouri City code enforcement officer, moved to dismiss under Tort Claims Act 101.106(f) and the trial court granted.
- McKeever submitted affidavits stating he was a full-time City employee performing code enforcement duties.
- Weaver contended McKeever acted outside his authority and in bad faith, citing a contractor’s affidavit and court records.
- The court held McKeever was entitled to dismissal, applying the Franka/Anderson scope-and-claim test and concluding the claim could have been brought against the City under the Tort Claims Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 101.106(f) dismissal was proper despite not suing under the Act | Weaver argues 101.106(f) does not apply since her suit isn’t under the Act | McKeever argues the Act applies and requires dismissal | Yes; suit barred as against employee in official capacity under 101.106(f) |
| Whether McKeever’s acts fell within the scope of employment | Weaver claims he acted outside the scope due to personal motives | McKeever acted within his duties as code enforcement officer | Within the scope of employment; personal motives do not remove scope |
| Whether the City could have been sued under the Tort Claims Act | Weaver asserts the Act does not waive immunity for intentional torts | Franka/Anderson context shows acts within scope assumed under the Act | Yes; the City could have been sued under the Tort Claims Act for these acts |
| Whether dismissal should be avoided because McKeever acted individually rather than officially | Weaver argues individual capacity claims survive | 101.106(f) treats suit as official-capacity only | McKeever entitled to dismissal under 101.106(f) |
Key Cases Cited
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (interpretation of 101.106(f) can apply where suit could have been brought against City)
- Anderson v. Bessman, 365 S.W.3d 119 (Tex. App.—Houston [1st Dist.] 2011) (scope and immunity framework under 101.106(f))
- City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) (scope of authority and duties for official actions)
- Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417 (Tex. 2004) (scope of employment in municipal actions remains if within duties)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (sovereign immunity and jurisdiction principles in Tex. govt actions)