San Antonio Park Police Officers Robert Coronado and Gabriel Escobedo, In Their Individual Capacities v. Robert W. Milam, Jr.--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00081-CV
Robert CORONADO and Gabriel Escobedo,
Appellants
v.
Robert W. MILAM, Jr.,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-17517
Honorable Rebecca Simmons, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 2, 2004

REVERSED AND RENDERED

Robert Coronado and Gabriel Escobedo appeal the trial court's order denying their motion for summary judgment. The motion for summary judgment asserted that Coronado and Escobedo were immune from the claims asserted by Robert W. Milam, Jr. based on section 101.106 of the Texas Tort Claims Act ("Act"). We reverse the trial court's order and render judgment that Milam take nothing in regard to his claims against Coronado and Escobedo. (1)

Background

Milam sued the City of San Antonio in federal court for various claims arising out of his arrest by park rangers. Coronado and Escobedo were two park rangers involved in the incident. Milam separately sued Coronado and Escobedo in state court. The federal court dismissed the intentional tort claims against the City based on the doctrine of sovereign immunity. After the dismissal, Coronado and Escobedo moved for summary judgment asserting immunity under section 101.106. The trial court denied the motion, and Coronado and Escobedo filed this appeal.

Discussion

Section 101.106 of the Act provides as follows:

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.

Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3305, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 886 (amendment not applicable in instant case which was filed before effective date of amendment). The phrase "involving the same subject matter" means claims arising out of the same actions, transactions, or occurrences. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998). Immunity under section 101.106 is triggered by any judgment in an action against a governmental unit, including a judgment in favor of the governmental unit. Id. at 343-44.

In Liu v. City of San Antonio, Liu sued her employer, the City of San Antonio, and two of her supervisors, Anna Deosdade and Jerry Pittman. 88 S.W.3d 737, 739 (Tex. App.--San Antonio 2002, pet. denied). Liu alleged a claim under the Texas Whistleblower Act as well as various intentional tort claims. See id. at 741. The trial court granted the City's plea to the jurisdiction, concluding that Liu was barred from bringing her claims against the City. See id. at 743. The trial court then granted summary judgment in favor of Deosdade and Pittman based on section 101.106. See id. at 741.

On appeal, Liu contended that the trial court's order dismissing the claims against the City was not a judgment under Section 101.106. See id. at 743. This court rejected Liu's contention, holding that the trial court's order was a judgment for purposes of section 101.106. Id. at 755. Liu also argued that section 101.106 was not applicable to her intentional tort claims because section 101.057(2) of the Act excludes claims arising out of intentional torts. See id. Liu contended that since section 101.106 only applied to "a claim under this chapter," it was not applicable to intentional torts because they were excluded from the application of the chapter. See id. This court rejected Liu's argument, stating that the Texas Supreme Court in Newman v. Obersteller, 960 S.W.2d 621, 622-23 (Tex. 1997), allowed section 101.106 to defeat an intentional tort claim, emphasizing that section 101.106 "bars any action." Id.

In a later case, we noted, "Although some effects of this statute may be harsh, the Texas Supreme Court [noted in another case] that the plaintiff has the option of seeking relief only against the employee, and not the governmental entity." Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 710 (Tex. App.--San Antonio 2002, pet. denied). We also note that under the 2003 amendments to section 101.106, the filing of a lawsuit against the governmental unit constitutes an irrevocable election that forever bars recovery against the individual employee regarding the same subject matter. Tex. Civ. Prac. & Rem. Code Ann. 101.106 (Vernon 2004). Similarly, the filing of a lawsuit against the individual employee also constitutes an irrevocable election that forever bars recovery against the governmental unit. Id. Accordingly, while the law was harsh before, the Legislature made it even stricter with the 2003 amendments.

In this case, both the federal lawsuit and the underlying state lawsuit involve the same subject matter, and the federal court's dismissal constitutes a judgment for purposes of section 101.106. Accordingly, Coronado and Escobedo are entitled to immunity under section 101.106, and the trial court erred in denying their motion for summary judgment.

Conclusion

The judgment of the trial court is reversed and judgment is rendered that Milam take nothing in regard to his claims against Coronado and Escobedo.

Alma L. L pez, Chief Justice

1. Although Milam contends that we do not have jurisdiction because section 51.014 of the Texas Civil Practice and Remedies Code does not permit multiple interlocutory appeals, nothing in the statute prohibits a defendant from filing more than one motion for summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon 2004); see also Newman v. Obersteller, 960 S.W.2d 621 (Tex. 1997) (holding appellate court had jurisdiction to consider appeal of order from second motion for summary judgment asserting immunity under section 101.106),