Waxahachie Independent School District v. Tim Johnson and Ed White--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00367-CV

Waxahachie  Independent

School District,

Appellant

v.

Tim Johnson and Ed White,

Appellees

From the 40th District Court

Ellis County, Texas

Trial Court No. 68721

DISSENTING Opinion

It is probably the type niceties discussed at length in the majority opinion that caused the legislature to use the equivalent of a meat cleaver to try to prevent a plaintiff from suing everybody in sight when the statute was recently amended. The meat cleaver had only one prerequisite in this section; the bar to suit under section 101.106(b) applied to a suit or recovery regarding the same subject matter . Tex. Civ. Prac. Rem. Code Ann. 101.106(b) (Vernon 2005) (emphasis added). The majority has neatly categorized the events leading up to the events as relating to the claim for wrongful termination brought against WISD and the claim for wrongful prosecution brought against the school district employees. If it could stop there, with a decision that the facts give rise to two claims that could have been asserted by the plaintiffs in two separate suits, we might be finished with our analysis.

But we are not finished. We are not finished for two reasons. The first, which I will not belabor, is the use of the term suit in section 101.106(b) as contradistinguished from the term claim used elsewhere in the statute, and the second, is the unity of actual damages as pled by the plaintiffs.

The first is simple. The legislature used the broader term suit in section 101.106(b) than the term claim as used elsewhere in the statute, for example in section 101.106(c). The legislature must have meant something by the use of different terms.

Second, judicial economy not withstanding, I expect real and substantial problems for the plaintiffs in segregating the actual damages caused by the alleged wrongful termination claim from the damages for the malicious prosecution claim. A fact finder in a single suit is probably the only way to sort out the difference in damages, if any. This problem is made evident and persuasively argued by WISD by reference to the plaintiffs prayer for relief where the prayer is that plaintiffs recover jointly and severally, their actual damages and then goes on to seek punitive damages only against the individual defendants. Based on the pleading, the recovery sought must relate to the same actual damages for both claims. See Tex. Civ. Prac. Rem. Code Ann. 101.106(b) (Vernon 2005). How else could they be jointly and severally liable for any damages?

As currently pled, with the prayer for joint and several liability for damages, there can be little question that the actions are alleged to arise out of the same transaction, occurrence, or series of transactions or occurrences. See Tex. R. Civ. P. 40(a). But in this instance, I think the trial court recognized that this may be only a technical issue, overcome with a pleading amendment, to be followed up with appropriate segregation of damages by the evidence and with an instruction limiting the use of damage evidence for only the claim to which it applied. Thus, while I believe the plaintiffs defeated the trial court s jurisdiction by the manner of their pleading, I believe it is a pleading defect that could be, and must be, remedied. Thus, the appropriate result is to reverse the trial court s order denying the plea to the jurisdiction and remand the case to the trial court for further proceedings consistent with our opinion. See Subaru of American, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002); Johnson v. Tims, No. 10-05-00006-CV, 2005 Tex. App. LEXIS 5053 (Tex. App. Waco June 29, 2005, no pet. h.). Because the majority does not, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed September 7, 2005

Dissenting opinion reissued November 23, 2005