Nikolette Ledesma and Elsa Estrada v. City of Houston

Opinion issued November 24, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00034-CV
———————————
NIKOLETTE LEDESMA AND ELSA ESTRADA, Appellants
V.
CITY OF HOUSTON, Appellee

On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2017-84026

OPINION

Appellants, Nikolette Ledesma and Elsa Estrada, appeal the trial court’s grant

of summary judgment in favor of appellee, City of Houston. Appellants sued the

City and one of its employees under the Texas Tort Claims Act (TTCA or the Act)
after a motor-vehicle collision. The City moved to dismiss appellants’ claims against

its employee under the Act’s election-of-remedies provision, and it later filed a

motion for summary judgment arguing that the trial court lacked subject-matter

jurisdiction over appellants’ claims against the City because its employee was not

acting in the scope of employment. In one issue, appellants contend that the trial

court erred by granting summary judgment because the City judicially admitted its

employee was acting in the course and scope of her employment when it moved to

dismiss the employee under the election-of-remedies provision. The City responds

that it conclusively proved that the trial court lacked subject-matter jurisdiction over

appellants’ claims.1

We reverse the trial court’s judgment and remand the case for further

proceedings consistent with this opinion.

Background

On Saturday, December 19, 2015, Houston Police Department (HPD) Officer

Miranda Martinez a/k/a Miranda Suarez (Suarez) allegedly rear-ended appellants’

1
The City also argues that appellants waived their sole issue on appeal because they
did not present it to the trial court. However, issues of subject-matter jurisdiction
may not be waived and may be raised for the first time on appeal. E.g., Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject matter
jurisdiction is an issue that may be raised for the first time on appeal; it may not be
waived by the parties.”). Thus, appellants did not waive their issue on appeal.

2
vehicle while looking for her cell phone charger. At the time of the collision, Suarez

was driving an HPD vehicle and wearing an HPD uniform.

Appellants sued Suarez and the City, Suarez’s employer, asserting claims of

negligence under the TTCA.2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–

.109. Section 101.021 of the TTCA waives a governmental unit’s sovereign or

governmental immunity for property damage and personal injury “caused by the

wrongful act or omission or the negligence of an employee acting within his scope

of employment if . . . the property damage [or] personal injury . . . arises from the

operation or use of a motor-driven vehicle . . . .” Id. § 101.021(1); see also id. §

101.001(3) (defining “[g]overnmental unit” as including “a political subdivision of

this state, including any city”). Appellants’ petition alleged, “At the time of the

collision, [Suarez] was in the course and scope of her employment with Defendant,

CITY OF HOUSTON . . . .”

The City and Suarez filed answers, generally denying liability and asserting

numerous defenses. The City also filed a motion to dismiss Suarez under the Act’s

election-of-remedies provision, section 101.106, which provides in part, “If suit is

filed under this chapter against both a governmental unit and any of its employees,

the employees shall be immediately dismissed on the filing of a motion by the

2
Appellants also sued Harris County, Texas, which is not a party to this appeal.

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governmental unit.” See id. § 101.106(e). Appellants filed an amended petition that

did not assert claims against Suarez and, as both parties agree, effected a nonsuit of

appellants’ claims against her. See TEX. R. CIV. P. 162, 163, 165; C/S Sols., Inc. v.

Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (“A plaintiff can dismiss a party from the lawsuit by filing an

amended petition that omits that party . . . .”). The record on appeal does not reflect

that the trial court ruled on the City’s motion to dismiss appellants’ claims against

Suarez.

The City later filed a traditional motion for summary judgment. See TEX. R.

CIV. P. 166a(b), (c). The City asserted that the trial court lacked subject-matter

jurisdiction over appellants’ claims against it because Suarez was not acting within

the scope of her employment at the time of the collision. According to its motion,

the incident occurred on a Saturday and Suarez was on call during that weekend, but

she was not being paid for her time, she did not perform any duties for the City, she

was not responding to a call for service, and she was not responding to any criminal

activity. Rather, she was driving to an off-duty job, and she was permitted to drive

an HPD vehicle even though she was not acting in her capacity as a law enforcement

officer. The City attached an affidavit from Suarez swearing to these facts.

Appellants responded to the City’s motion for summary judgment, disputing

the City’s claim that Suarez was not acting in the scope of her employment.

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Appellants argued that, at the time of the collision, Suarez was wearing her HPD

uniform while driving a vehicle owned by HPD and was on call with HPD. Thus,

appellants argued, Suarez was acting within the general scope of her employment at

the time of the collision. The trial court granted the City’s motion for summary

judgment and dismissed appellants’ claims against the City for lack of jurisdiction.

This appeal followed.

Texas Tort Claims Act

A. Standard of Review

A party may challenge the trial court’s subject-matter jurisdiction in a motion

for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000); EPGT Tex. Pipeline, L.P. v. Harris Cty. Flood Control Dist., 176 S.W.3d

330, 334 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). The plaintiff bears the

burden of alleging facts affirmatively showing that a trial court has subject-matter

jurisdiction over the lawsuit. EPGT Tex. Pipeline, 176 S.W.3d at 334 (citing Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004), Blue, 34

S.W.3d at 554, and Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993)). A reviewing court should take the plaintiff’s allegations as true and

construe all inferences in favor of jurisdiction. Id. (citing Tex. Ass’n of Bus., 852

S.W.2d at 446). Whether a trial court has subject-matter jurisdiction is a question of

law that we review de novo. Id. (citing Miranda, 133 S.W.3d at 226).

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B. Governing Law

Generally, the state and certain governmental units are entitled to sovereign

or governmental immunity, which deprives a trial court of subject-matter

jurisdiction, unless the state waives immunity by consenting to suit. E.g., Miranda,

133 S.W.3d at 224; TEX. GOV’T CODE ANN. § 311.034; see also Tex. Adjutant Gen.’s

Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (“[N]o state can be sued in her

own courts without her consent, and then only in the manner indicated by that

consent.”) (quoting Hosner v. DeYoung, 1 Tex. 764, 769 (1847)). The TTCA

provides a limited waiver of this immunity. TEX. CIV. PRAC. & REM. CODE ANN. §§

101.001–.009; see Miranda, 133 S.W.3d at 224. Section 101.021(1) of the Act

provides:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an employee
acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle or motor-
driven equipment; and

(B) the employee would be personally liable to the claimant
according to Texas law[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1).

The Act also includes an election-of-remedies provision, section 101.106,

which requires a plaintiff, at the time of filing suit, to elect whether to sue the

6
governmental unit or its employee. Id. § 101.106; see Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 656–57 (Tex. 2008); see also TEX. CIV. PRAC. &

REM. CODE ANN. § 101.001(3)(b) (defining “[g]overnmental unit” to include “a

political subdivision of this state, including any city”); id. § 101.001(2) (defining

“[e]mployee”).

Although we are concerned primarily with subsection (e), it is useful to our

analysis to set forth section 101.106 in full. It provides:

(a) The filing of a suit under this chapter against a governmental unit
constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff
against any individual employee of the governmental unit
regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff
against the governmental unit regarding the same subject matter
unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall
immediately and forever bar the claimant from any suit against
or recovery from any employee of the same governmental unit
regarding the same subject matter.

(d) A judgment against an employee of a governmental unit shall
immediately and forever bar the party obtaining the judgment
from any suit against or recovery from the governmental unit.

(e) If a suit is filed under this chapter against both a governmental
unit and any of its employees, the employees shall immediately
be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based
on conduct within the general scope of that employee's

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 employment and if it could have been brought under this chapter
against the governmental unit, the suit is considered to be against
the employee in the employee's official capacity only. On the
employee's motion, the suit against the employee shall be
dismissed unless the plaintiff files amended pleadings dismissing
the employee and naming the governmental unit as defendant on
or before the 30th day after the date the motion is filed.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106.

The provision “force[s] a plaintiff to decide at the outset whether an employee

acted independently and is thus solely liable, or acted within the general scope of his

or her employment such that a governmental unit is vicariously liable.” Garza v.

Harrison, 574 S.W.3d 389, 399 (Tex. 2019) (quoting Garcia, 253 S.W.3d at 657).

The purpose of the provision is “to protect governmental employees by favoring

their early dismissal when a claim regarding the same subject matter is also made

against the governmental employer.” Garcia, 253 S.W.3d at 657. It thus “eas[es] the

burden placed on governmental units and their employees in defending duplicative

claims, in part by ‘favor[ing] the expedient dismissal of . . . employees when suit

should have been brought against the government’ under the Act.” Tex. Dep’t of

Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 415 (Tex. 2015) (quoting

Ngakoue, 408 S.W.3d at 355); see Garcia, 253 S.W.3d at 656–57. “The provisions

of section 101.106 provide a number of avenues for dismissal of governmental

employees and avoidance of duplicative litigation, but they generally favor a suit

8
against the governmental unit when appropriate rather than wholesale dismissal of a

plaintiff’s otherwise meritorious suit.” Ngakoue, 408 S.W.3d at 360.

“Judicial admissions result ‘when a party makes a statement of fact which

conclusively disproves a right of recovery or defense he currently asserts.’” H2O

Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 617 (Tex. App.—Houston [1st

Dist.] 2014, pet. denied) (quoting Khan v. GBAK Props., Inc., 371 S.W.3d 347, 357

(Tex. App.—Houston [1st Dist.] 2012, no pet.)); see Bowen v. Robinson, 227 S.W.3d

86, 92 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“A judicial admission is

a formal waiver of proof that dispenses with the production of evidence on an

issue.”). The elements of a judicial admission are: (1) the statement must be made in

the course of a judicial proceeding; (2) it must be made contrary to an essential fact

or defense asserted by the party; (3) it must be deliberate, clear, and unequivocal;

(4) it cannot be destructive of the opposing party’s theory of recovery or defense;

and (5) enforcing the statement as a judicial admission would be consistent with

public policy. H2O Sols., 438 S.W.3d at 617. “Judicial admissions that are clear and

unequivocal have a conclusive effect and bar the admitting party from later disputing

the admitted fact.” Id.; see Bowen, 227 S.W.3d at 92 (“A judicially admitted fact is

established as a matter of law, and the admitting party may not dispute it or introduce

evidence contrary to it.”). “This rule is based on the public policy that it would be

9
absurd and manifestly unjust to permit a party to recover after he has sworn himself

out of court by a clear and unequivocal statement.” H2O Sols., 438 S.W.3d at 617.

C. Analysis

In their sole issue, appellants argue that, by filing a motion to dismiss their

claims against Officer Suarez, the City judicially admitted that Suarez was acting in

the course and scope of her employment and, thus, the City was barred from later

disputing that admitted fact as it did in its motion for summary judgment.3 The City

denies that it made a judicial admission by moving to dismiss its employee under the

election-of-remedies provision because it did not make a clear, deliberate,

unequivocal statement of fact. The City also contends that appellants’ argument is

contrary to the purpose of the election-of-remedies provision, arguing there is

“nothing inconsistent in filing a § 101.106(e) motion to dismiss the government

employee and then asserting that such employee was acting outside the scope of her

employment.”

Appellants sued both the City and Suarez, alleging that, at the time of the

collision, Suarez was acting in the course and scope of her employment. The City

moved to dismiss appellants’ claims against Suarez under subsection 101.106(e) of

3
The parties do not dispute that Suarez was an employee of the City on the date of
the collision at issue in this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. §
101.001(2) (defining “[e]mployee”).

10
the TTCA. “By filing such a motion [to dismiss its employee under subsection (e)],

the governmental unit effectively confirms the employee was acting within the scope

of employment and that the government, not the employee, is the proper party.”

Ngakoue, 408 S.W.3d at 358. “The role of subsections (e) and (f) is to ensure that

tort claims within the purview of the Act do not proceed against a government

employee for conduct within the scope of his employment.” Cannon, 453 S.W.3d at

418 (citing Ngakoue, 408 S.W.3d at 355). Subsections (e) and (f) “simply do not

apply to claims against the employee individually that are outside the Act’s scope.”

Id. These subsections contrast with subsection (a), which bar certain suits “against

any individual employee,” which seek to hold the employee personally liable. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.106(a); see Franka v. Velasquez, 332 S.W.3d

367, 383 (Tex. 2011).

When a governmental unit and its employee are both sued for tort claims,

subsection (e) does not require a governmental unit to move to dismiss its employee.

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e); Univ. of Tex. Health Science

Ctr. at Houston v. Rios, 542 S.W.3d 530, 538 (Tex. 2017) (“[I]t is the filing of a

motion to dismiss, not its content, that triggers the right to dismissal.”); Garcia, 253

S.W.3d at 659 (stating that governmental unit did not move to dismiss its employee,

but explaining consequences if it had moved for dismissal under subsection (e));

Crockett Cty. v. Damian, — S.W.3d —, No. 08-19-00145-CV, 2020 WL 814013, at

11
*3 (Tex. App.—El Paso Feb. 19, 2020, no pet. h.) (“If a plaintiff fails to make the

election between the governmental unit and the employee in his individual capacity

when suit is first filed and instead sues both parties, as happened here, the

governmental unit can, but is not required, to file a motion to dismiss all state-law-

tort claims against its employee.”).

The governmental unit is in the best position to know whether its employee

acted in the course and scope of employment. See Ngakoue, 408 S.W.3d at 359

(stating that plaintiff may not be in position of knowing whether defendant was

acting in scope of employment when suit was filed and, for purposes of subsection

(f), may not be able to obtain information within short time frame necessary to make

decision about whether to proceed against governmental unit or its employee, and

erroneous decision “would mean that suit is forever barred”). If the employee did

not act in the course and scope of employment, the governmental unit can move to

dismiss claims against itself for lack of jurisdiction. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(1) (waiving governmental unit’s immunity for negligence of

employee acting within scope of employment). However, by moving to dismiss

claims against its employee under subsection (e), the governmental unit judicially

admits that the employee was acting in the scope of employment and agrees to

vicariously defend its employee. See Ngakoue, 408 S.W.3d at 358. Such was the

case here.

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 Appellants made their election based on the knowledge they had at the time

they filed the lawsuit, which the record reflects included knowledge that Suarez,

while wearing an HPD uniform and driving an HPD vehicle, allegedly caused a

motor-vehicle collision with appellants’ vehicle. Based on this information,

appellants pleaded that Suarez was acting in the scope of her employment. The City

and Suarez were entitled to have Suarez dismissed under subsection (e) to reduce

the City’s costs in defending redundant litigation against both it and its employee,

but that entitlement required the City to confirm appellants’ allegation that Suarez

was acting in the scope of her employment. See Cannon, 453 S.W.3d at 418;

Ngakoue, 408 S.W.3d at 358. The City was in the best position to know, at the time

it filed the motion to dismiss Suarez under section 101.106(e), whether Suarez had

acted in the scope of employment. See Ngakoue, 408 S.W.3d at 359. Indeed, the City

was able to obtain an affidavit from her denying that she was acting in the course

and scope of her employment at the time of the accident to support its later motion

for summary judgment. If it was the City’s position that Suarez was not acting in the

course and scope of her employment, it should have filed a motion to dismiss

appellants’ claims against itself for lack of jurisdiction rather than a motion to

dismiss the claims against Suarez. Compare TEX. CIV. PRAC. & REM. CODE ANN. §

101.021(1) with id. § 101.106(e). We conclude that by moving to dismiss the claims

against Suarez under subsection (e), the City judicially admitted that Suarez was

13
acting in the scope of employment and agreed to vicariously defend her, and the City

was barred from later disputing that Suarez was acting in the scope of her

employment. See Ngakoue, 408 S.W.3d at 358; Bowen, 227 S.W.3d at 92 (“A

judicially admitted fact is established as a matter of law, and the admitting party may

not dispute it or introduce evidence contrary to it.”).

The City argues that this conclusion would alter and defeat the election-of-

remedies scheme. We disagree. As we stated above, the election-of-remedies

provision places the duty on the plaintiff to decide at the outset of litigation, often

before any discovery has been conducted or evidence gathered, “whether an

employee acted independently and is thus solely liable, or acted within the general

scope of his or her employment such that a governmental unit is vicariously liable.”

Garza, 574 S.W.3d at 399 (quoting Garcia, 253 S.W.3d at 657). A plaintiff’s

incorrect election is still an election. See Garcia, 253 S.W.3d at 657 (“Because the

decision regarding whom to sue has irrevocable consequences, a plaintiff must

proceed cautiously before filing suit and carefully consider whether to seek relief

from the governmental unit or from the employee individually.”).

The purpose of the provision is “to protect governmental employees by

favoring their early dismissal when a claim regarding the same subject matter is also

made against the governmental employer,” which in turn reduces the governmental

unit’s expenditure of resources by preventing duplicative claims. Id.; see Cannon,

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453 S.W.3d at 415 (quoting Ngakoue, 408 S.W.3d at 355). Holding a governmental

unit to its admission that it is the proper party does not defeat these goals. The

plaintiff can still sue only one party—either the governmental unit or its employee

but not both—which reduces redundant litigation against duplicative parties. See

Garcia, 253 S.W.3d at 657. Moreover, such an admission serves the election-of-

remedies goal of protecting the governmental employee, who will be dismissed upon

the governmental unit’s motion acknowledging that the employee was acting in the

scope of employment. “[A] central goal of the TTCA as a whole is to allow certain

types of suits against the government.” Ngakoue, 408 S.W.3d at 359 (citing Garcia,

253 S.W.3d at 656). “The provisions of section 101.106 provide a number of

avenues for dismissal of governmental employees and avoidance of duplicative

litigation, but they generally favor a suit against the governmental unit when

appropriate rather than a wholesale dismissal of a plaintiff’s otherwise-meritorious

suit.” Id. at 360. Thus, our conclusion achieves the purposes of the election-of-

remedies provision.

Our sister court recently decided a case involving a similar issue. See Ramos

v. City of Laredo, 547 S.W.3d 651 (Tex. App.—San Antonio 2018, no pet.). Like

appellants here, Ramos sued the city and one of its employees under the TTCA after

the employee, a law enforcement officer, crashed his motorcycle into Ramos’s

motorcycle. Id. at 652. The city filed a plea to the jurisdiction and requested that the

15
trial court dismiss the claims against the officer under section 101.106(e). Id. at 653

(citing TEX. PRAC. & REM. CODE ANN. § 101.106(e)). Ramos nonsuited the officer,

and the city amended its plea, arguing that the TTCA did not waive the city’s

governmental immunity because the officer was not acting in the scope of his

employment at the time of the crash. Id. Ramos responded that the city had judicially

admitted its officer acted in the course and scope of his employment by pleading

official immunity, which he argued could only be asserted if the officer was acting

in the scope of his employment. Id. The trial court denied the city’s amended plea,

and the case went to trial. Id. Over Ramos’s objection based on the city’s failure to

plead scope of employment as an affirmative defense, the court allowed a jury

question on whether the officer was acting in the course and scope of employment.

Id. at 653–54 & n.1. The jury found that the officer negligently caused the

motorcycle accident, but it determined that he did not act in the scope of his

employment. Id. at 653–54. Thus, the trial court entered a take-nothing judgment

against the city. Id. at 654.

On appeal, the San Antonio Court of Appeals agreed with Ramos that, when

the city requested its employee be dismissed under section 101.106(e), it confirmed

Ramos’s allegation in his petition that the officer was acting in the scope of his

employment, and it agreed to vicariously defend its employee. Id. at 655. In reaching

its conclusion, the court stated, “By filing a Section 101.106(e) motion to dismiss, a

16
governmental unit ‘effectively confirms the employee was acting within the scope

of employment and that the government, not the employee, is the proper party.’” Id.

(quoting Ngakoue, 408 S.W.3d at 358, and citing Univ. of Tex. M.D. Anderson

Cancer Ctr. v. Stewart, No. 01-16-00865-CV, 2017 WL 2590230, at *4 (Tex.

App.—Houston [1st Dist.] June 15, 2017, no pet.) (mem. op.)). The court also stated,

The role of subsections (e) and (f) is to ensure that tort claims within
the purview of the Act do not proceed against a government employee
for conduct within the scope of his employment. But those provisions
simply do not apply to claims against the employee individually that
are outside the Act’s scope.

Id. (quoting Cannon, 453 S.W.3d at 418). The court held that the city’s motion to

dismiss its employee under subsection (e) asserted qualified immunity for its

employee and amounted to a judicial admission that the officer was acting in the

scope of employment at the time of the accident, and that allowing a jury question

on scope of employment was therefore reversible error. Id. at 655–56.

The City argues that Ramos improperly relied on dictum from Texas Adjutant

General’s Office v. Ngakoue, in which the Texas Supreme Court stated, “By filing

such a motion [to dismiss its employee under section 101.106(e)], the governmental

unit effectively confirms the employee was acting within the scope of employment

and that the government, not the employee, is the proper party.” 408 S.W.3d at 359;

see Ramos, 547 S.W.3d at 655 (quoting Ngakoue, 408 S.W.3d at 359). We disagree.

“Dictum is an observation or remark made concerning some rule, principle, or

17
application of law suggested in a particular case, which observation or remark is not

necessary to the determination of the case.” Edwards v. Kaye, 9 S.W.3d 310, 314

(Tex. App.—Houston [14th Dist.] 1999, pet. denied) (citing Dictum, BLACK’S LAW

DICTIONARY (5th ed. 1979)). Although dictum does not generally bind courts as

precedent under stare decisis, “[j]udicial dictum, a statement by the supreme court

made very deliberately after mature consideration and for future guidance in the

conduct of litigation, is ‘at least persuasive and should be followed unless found to

be erroneous.’” Id. (quoting Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764,

773 (Tex. 1964)). Even assuming without deciding that the quoted language is

dictum, the City does not argue how it is erroneous. To the contrary, the language

has been quoted approvingly by the Texas Supreme Court, this Court, and our sister

courts. See Rios, 542 S.W.3d at 535 (quoting Ngakoue, 408 S.W.3d at 358); Cannon,

453 S.W.3d at 414 n.7 (same); Damian, — S.W.3d —, 2020 WL 814013, at *3

(same); Ramos, 547 S.W.3d at 655 (same); Stewart, 2017 WL 2590230, at *4

(same). We conclude that the Ramos court properly relied on Texas Supreme Court

precedent as at least persuasive precedent that should be followed, dictum or not,

and that we too are likewise bound by that precedent. See Edwards, 9 S.W.3d at 314

(quoting Perkins, 386 S.W.2d at 773).

We hold that, by moving to dismiss appellants’ claims against Suarez under

section 101.106(e), the City judicially admitted that Suarez was acting within the

18
scope of her employment and agreed to vicariously defend her, and the City’s

judicial admission barred it from later disputing that Suarez was acting within the

scope of her employment. See Cannon, 453 S.W.3d at 418; Ngakoue, 408 S.W.3d at

358; Ramos, 547 S.W.3d at 656–57; Bowen, 227 S.W.3d at 92. Thus, the trial court

erred by granting the City’s motion for summary judgment.

Conclusion

We reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion. We dismiss any pending motions as moot.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Lloyd, and Landau.

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