Court declines to rule on sovereign immunity, but dismisses on procedural grounds instead

Miller v Ector County Hospital District, No. 11-11-00221-CV (Tex. App. – Eastland, August 8, 2013).

This is an employment case where the Plaintiff brought tort claims as a means to challenging his termination. The trial court granted the District’s plea to the jurisdiction and Plaintiff Miller appealed.

Miller was terminated after the District received an anonymous complaint that Miller had come to work intoxicated and had stolen prescription medications. Miller denied the charges and blamed another employee for sending the anonymous charge.  Miller alleged that terminating him based on the complaint and documenting the reason constituted libel, slander, defamation, and he sought intentional-infliction-of-emotional-distress.

Miller’s appellate challenge focused on the fact the trial court failed to allow him to complete discovery (even though it had gone on for over a year). Miller claimed in his continuance that he would be able to show a waiver of immunity based on the use of tangible personal property, which is a waiver under the Texas Tort Claims Act. However, the Eleventh District noted that he failed to provide any support or evidence for this assertion if he were permitted to continue discovery. Additionally, the court notes that he did not properly file a motion for continuance at the trial court level and only now attempts to argue for the first time on appeal, the specific type of evidence he claims is needed (prescription inventories, swipe-card activity logs, camera images, etc.).  The court never got to the true sovereign immunity argument in that these are all intentional torts for which there is no waiver of immunity.  The court simply noted that since he did not properly file a motion for continuance at the trial court level and that being the only issue raised on appeal, the trial court did not abuse its discretion in granting the plea. The dismissal was affirmed.

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