Preview
Filed: 3/28/2022 9:36 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 62997178
By: Shailja Dixit
3/28/2022 10:08 AM
Cause No. 18-CV-0756
ISABEL MEJIA and ROSA MEJIA, § IN THE DISTRICT COURT OF
Plaintiffs, §
§
v. § GALVESTON COUNTY, TEXAS
§
MICHELLE GALLAGHER and CITY §
OF HOUSTON, §
Defendants. § 405TH JUDICIAL DISTRICT
PLAINTIFFS’ TRADITIONAL MOTION FOR SUMMARY JUDGMENT
ON SCOPE OF EMPLOYMENT
__________________________________________________________________
Plaintiffs Isabel Mejia and Rosa Mejia file this Traditional Motion for Summary Judgment
on Scope of Employment, and show unto the Court the following:
I. BACKGROUND
1. This case arises out of a motor vehicle collision. Plaintiffs sued Michelle Gallagher
and the City of Houston after Gallagher negligently drove a City vehicle and caused a wreck.
Plaintiffs were injured in that wreck. Gallagher and the City answered and generally denied all
allegations against them, and asserted various defenses, including governmental immunity.
2. The City responded to Plaintiffs’ Request for Admissions and admitted that
Gallagher was acting within the scope of her employment at the time of the Incident. See Exhibit
A, p. 3. The City also filed its Motion to Dismiss Michelle Gallagher under Texas Tort Claims Act
section 101.106(e). See motion filed on July 13, 2018. The Court granted the City’s motion and
ordered that all claims against Michelle Gallagher were dismissed with prejudice. See Order of
Aug. 16, 2018.
3. Later, the City backtracked on its position on whether Gallagher was in the scope
of employment and filed a motion for leave to amend its responses to request for admissions. See
1
motion filed on Mar. 26, 2019. It also amended its responses to request for admissions and now
denied that Gallagher was acting within the scope of her employment at the time of the collision.
See Exhibit B, p. 3.
4. This change in position by the City and its amended responses to admissions opened
the door for it to move for summary judgment on claims made against it. The City moved for
summary judgment alleging that it could not be held liable because Gallagher was not in scope of
her employment and therefore the City was not liable for her actions. See motion filed on April 26,
2019. Of course, by this point in time the statute of limitations had run on any claims against
Gallagher, which had been dismissed with prejudice anyway.
5. This Court denied summary judgment, the City appealed, and the 14th Court of
Appeals upheld this Court’s judgment. See Exhibit C. The Court found that the evidence did not
support the City’s position that Gallagher “was merely a commuter on her way home from work”
and that her own affidavit reflected that a superior officer with the City “asked her to pick up his
City-issued vehicle from the City garage so her superior officer would have the available at the
beginning of his shift (a benefit to Gallagher’s employer, HPD).” Id. at p. 6. The City petitioned
the Texas Supreme Court for Review and that Court denied review. See Exhibit D. The case is
now properly back before the trial court.
II. SUMMARY OF ARGUMENT
6. When a governmental unit moves to dismiss an employee under Texas Civil
Practice & Remedies Code section 101.106(e), then the governmental unit judicially admits that
the employee was acting in the scope of employment and agrees to vicariously defend its
employee. Ledesma v. City of Houston, 623 S.W.3d 840, 848 (Tex. App.—Houston [1st Dist.]
2020, pet. denied) (citing Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex.
2
2013)). “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.” Bowen v. Robinson, 227 S.W.3d 86, 92 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied); see Ngakoue, 408 S.W.3d at 358. Here, the City
moved to dismiss Gallagher under section 101.106(e). The fact of scope of employment is
judicially admitted by the City, it cannot introduce any evidence to the contrary on that issue, and
scope of employment is established as a matter of law. Due to these rules, it is appropriate for this
Court to grant summary judgment on the issue of scope of employment.
III. EXHIBITS
7. Plaintiffs hereby give notice that they intend to rely on the following documents
and materials as summary judgment evidence. All documents and materials are attached hereto
and incorporated by reference as if set forth herein:
EXHIBIT DESCRIPTION OF DOCUMENT(S)
Plaintiffs’ Exhibit A City Responses to Request for Admissions
Plaintiffs’ Exhibit B City Amended Responses to Request for Admissions
Plaintiffs’ Exhibit C Judgment and Opinion of the Fourteenth Court of Appeals
Plaintiffs’ Exhibit D Denial of Review by Texas Supreme Court
Plaintiffs’ Exhibit E Texas Peace Officer’s Crash Report for this Case
Plaintiffs’ Exhibit F Affidavit of Michelle Gallagher
Plaintiffs’ Exhibit G Attorney Affidavit
3
IV. ARGUMENT AND AUTHORITIES
A. Traditional Summary Judgment Standard.
8. To prevail on a traditional motion for summary judgment, a movant must establish
that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c). By moving for summary judgment, Plaintiffs bear the
burden of presenting competent evidence that conclusively disproves one or more elements of the
challenged causes of action. Id.; Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16
(Tex. 2003); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). If more than a scintilla of
evidence exists controverting the proof submitted by Plaintiffs in support of their summary
judgment request, then summary judgment must be denied. See McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993); see also Hinojosa v. Columbia/St. David’s
Healthcare Sys., L.P., 106 S.W.3d 380, 387-88 (Tex. App.—Austin 2003, no pet.).
B. As a Matter of Law, Gallagher Acted in Scope of Employment at the Time of
the Collision with Plaintiffs
9. Gallagher was an employee of the Houston Police Department and was driving a
vehicle owned by the City of Houston when she failed to yield the right-of-way at a stop sign and
crashed into a vehicle occupied by Plaintiffs. See Exhibits E and F. She was driving that vehicle
at the instruction of another officer. Exhibit F. Plaintiffs sued Gallagher and the City due to
Gallagher’s negligence in the collision and because she was in the scope of her employment with
the City.
10. The City initially admitted course and scope and took the step of filing a motion to
dismiss Gallagher pursuant to Texas Tort Claims Act section 101.106(e). That statute gives the
governmental unit authority to dismiss its employee when both are sued:
4
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.
TEX. CIV. PRAC. & REM. CODE § 101.106(e).
11. The purpose of this 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. Mission CISD v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). “By filing [a
motion to dismiss the employee under subsection (e)], the governmental unit effectively confirms
the employee was acting with the scope of employment and that the government, not the employee,
is the proper party.” Ngakoue, 408 S.W.3d at 358; see also 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.). When a governmental unit and its employee are both sued for tort claims,
subsection (e) does not require a governmental unit to dismiss its employee. See TEX. CIV. PRAC.
& REM. CODE § 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 of dismissal.”)
12. The governmental unit is in the best position to know whether its employee acted
in the course and scope of employment. Ledesma v. City of Houston, 623 S.W.3d 840, 847-848
(Tex. App.—Houston [1st Dist.] 2020, pet. denied) (citing Tex. Adjutant Gen.’s Office v. Ngakoue,
408 S.W.3d 350, 353 (Tex. 2013)). If the employee and governmental unit are sued, then the
governmental unit can move to dismiss itself for lack of jurisdiction if the employee was not within
scope of employment at the time of the incident. Id. However, when a governmental unit moves
to dismiss an employee under Texas Civil Practice & Remedies Code section 101.106(e), the
governmental unit judicially admits that the employee was acting in the scope of employment and
5
agrees to vicariously defend its employee. Id.; see Crockett County v. Damian, 08-19-00145-CV,
2020 WL 814013, at *3 (Tex. App.—El Paso Feb. 19, 2020, no pet.) (when a governmental unit
chooses to file a 101.106(e) motion…it “effectively confirms the employee was acting within the
scope of employment and that the government, not the employee, is the proper party.”); see also
Ramos v. City of Laredo, 547 S.W.3d 651, 655-656 (Tex. App.—San Antonio 2018, no pet.) (“The
City, having filed the plea to the jurisdiction in response to the plaintiff's pleadings, elected to
assert official immunity on [employee’s] behalf. Because of the election by the City to be held
vicariously responsible for its employee, we hold the City was bound to its judicial admission…”).
13. Here, the City not only admitted within discovery that Gallagher was within the
scope of employment but also took the step of moving to dismiss her from this lawsuit under
section 101.106(e). It made an election to vicariously defend Gallagher and judicially admitted
that Gallagher acted within the scope of her employment when she collided with Plaintiffs. The
City is bound by this election. Under Texas law, the fact of scope of employment is established as
a matter of law and the City cannot introduce evidence to counter it. As such, this Court should
grant summary judgment on the issue of course and scope against the City.
14. The precise issue before this Court now was before the First District Court of
Appeals just two years ago. See Ledesma v. City of Houston, 623 S.W.3d 840 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied). The procedural history will sound familiar because it’s the
same procedural history for this case: “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.” Id. at 843. The
appellate court held that when the City filed its motion to dismiss pursuant to section 101.106(e)
6
to dismiss its employee, then the fact of scope of employment was established and the City was
barred from later disputing that the employee was acting in the scope of employment. Id. at 846-
847. The passage of the decision applied the rules outlined within this motion:
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. 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. 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. We conclude that by moving to dismiss the claims against Suarez
under subsection (e), the City judicially admitted that Suarez was 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.
Id. at 848.
15. As it was with Ledesma, so it is with this case. The City made its election and had
its employee dismissed with prejudice. When it made that election, Texas law holds that scope of
employment is decided against the City as a matter of law. Accordingly, summary judgment is
proper. This Court should grant this motion for summary judgment and hold that Gallagher was
acting within the scope of her employment at the time of the crash with Plaintiffs as a matter of
law.
7
V. CONCLUSION AND PRAYER
16. Under well-established Texas law, the City judicially admitted the issue of scope
of employment. It can no longer dispute this fact. Plaintiffs are relieved of the burden of offering
proof of this fact. This fact is established as a matter of law. As such, Plaintiffs respectfully request
that the Court grant this motion for summary judgment on scope of employment. Plaintiffs further
pray for such other and further relief to which Plaintiffs may be justly entitled.
Respectfully submitted,
KGS LAW
By: /s/ Brandon A. Kinard
Brandon A. Kinard
Texas Bar No. 24079744
150 W. Parker Rd. Suite 705-B
Houston, Texas 77076
Tel. (281) 962-7772
Fax. (281) 962-7773
kgs@kgslawgroup.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded to
all counsel of record and/or parties on March 28, 2022 pursuant to Texas Rules of Civil Procedure
21a:
/s/ Brandon A. Kinard
Brandon A. Kinard
8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
BRANDON KINARD on behalf of Brandon Kinard
Bar No. 24079744
KGS@KGSLAWGROUP.COM
Envelope ID: 62997178
Status as of 3/28/2022 10:09 AM CST
Associated Case Party: Isabel Mejia
Name BarNumber Email TimestampSubmitted Status
Andrea L.Rejas arejas@me.com 3/28/2022 9:36:55 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
ANDRES REJAS KGS@KGSLAWGROUP.COM 3/28/2022 9:36:55 AM SENT
Associated Case Party: City of Houston
Name BarNumber Email TimestampSubmitted Status
Christy L.Martin christy.martin@houstontx.gov 3/28/2022 9:36:55 AM SENT
Suzanne R.Chauvin suzanne.chauvin@houstontx.gov 3/28/2022 9:36:55 AM SENT
Kelly A.Dempsey kelly.dempsey@houstontx.gov 3/28/2022 9:36:55 AM SENT
Preview
Filed: 3/28/2022 9:36 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 62997178 By: Shailja Dixit 3/28/2022 10:08 AM Cause No. 18-CV-0756 ISABEL MEJIA and ROSA MEJIA, § IN THE DISTRICT COURT OF Plaintiffs, § § v. § GALVESTON COUNTY, TEXAS § MICHELLE GALLAGHER and CITY § OF HOUSTON, § Defendants. § 405TH JUDICIAL DISTRICT PLAINTIFFS’ TRADITIONAL MOTION FOR SUMMARY JUDGMENT ON SCOPE OF EMPLOYMENT __________________________________________________________________ Plaintiffs Isabel Mejia and Rosa Mejia file this Traditional Motion for Summary Judgment on Scope of Employment, and show unto the Court the following: I. BACKGROUND 1. This case arises out of a motor vehicle collision. Plaintiffs sued Michelle Gallagher and the City of Houston after Gallagher negligently drove a City vehicle and caused a wreck. Plaintiffs were injured in that wreck. Gallagher and the City answered and generally denied all allegations against them, and asserted various defenses, including governmental immunity. 2. The City responded to Plaintiffs’ Request for Admissions and admitted that Gallagher was acting within the scope of her employment at the time of the Incident. See Exhibit A, p. 3. The City also filed its Motion to Dismiss Michelle Gallagher under Texas Tort Claims Act section 101.106(e). See motion filed on July 13, 2018. The Court granted the City’s motion and ordered that all claims against Michelle Gallagher were dismissed with prejudice. See Order of Aug. 16, 2018. 3. Later, the City backtracked on its position on whether Gallagher was in the scope of employment and filed a motion for leave to amend its responses to request for admissions. See 1 motion filed on Mar. 26, 2019. It also amended its responses to request for admissions and now denied that Gallagher was acting within the scope of her employment at the time of the collision. See Exhibit B, p. 3. 4. This change in position by the City and its amended responses to admissions opened the door for it to move for summary judgment on claims made against it. The City moved for summary judgment alleging that it could not be held liable because Gallagher was not in scope of her employment and therefore the City was not liable for her actions. See motion filed on April 26, 2019. Of course, by this point in time the statute of limitations had run on any claims against Gallagher, which had been dismissed with prejudice anyway. 5. This Court denied summary judgment, the City appealed, and the 14th Court of Appeals upheld this Court’s judgment. See Exhibit C. The Court found that the evidence did not support the City’s position that Gallagher “was merely a commuter on her way home from work” and that her own affidavit reflected that a superior officer with the City “asked her to pick up his City-issued vehicle from the City garage so her superior officer would have the available at the beginning of his shift (a benefit to Gallagher’s employer, HPD).” Id. at p. 6. The City petitioned the Texas Supreme Court for Review and that Court denied review. See Exhibit D. The case is now properly back before the trial court. II. SUMMARY OF ARGUMENT 6. When a governmental unit moves to dismiss an employee under Texas Civil Practice & Remedies Code section 101.106(e), then the governmental unit judicially admits that the employee was acting in the scope of employment and agrees to vicariously defend its employee. Ledesma v. City of Houston, 623 S.W.3d 840, 848 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (citing Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2 2013)). “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.” Bowen v. Robinson, 227 S.W.3d 86, 92 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); see Ngakoue, 408 S.W.3d at 358. Here, the City moved to dismiss Gallagher under section 101.106(e). The fact of scope of employment is judicially admitted by the City, it cannot introduce any evidence to the contrary on that issue, and scope of employment is established as a matter of law. Due to these rules, it is appropriate for this Court to grant summary judgment on the issue of scope of employment. III. EXHIBITS 7. Plaintiffs hereby give notice that they intend to rely on the following documents and materials as summary judgment evidence. All documents and materials are attached hereto and incorporated by reference as if set forth herein: EXHIBIT DESCRIPTION OF DOCUMENT(S) Plaintiffs’ Exhibit A City Responses to Request for Admissions Plaintiffs’ Exhibit B City Amended Responses to Request for Admissions Plaintiffs’ Exhibit C Judgment and Opinion of the Fourteenth Court of Appeals Plaintiffs’ Exhibit D Denial of Review by Texas Supreme Court Plaintiffs’ Exhibit E Texas Peace Officer’s Crash Report for this Case Plaintiffs’ Exhibit F Affidavit of Michelle Gallagher Plaintiffs’ Exhibit G Attorney Affidavit 3 IV. ARGUMENT AND AUTHORITIES A. Traditional Summary Judgment Standard. 8. To prevail on a traditional motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). By moving for summary judgment, Plaintiffs bear the burden of presenting competent evidence that conclusively disproves one or more elements of the challenged causes of action. Id.; Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). If more than a scintilla of evidence exists controverting the proof submitted by Plaintiffs in support of their summary judgment request, then summary judgment must be denied. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993); see also Hinojosa v. Columbia/St. David’s Healthcare Sys., L.P., 106 S.W.3d 380, 387-88 (Tex. App.—Austin 2003, no pet.). B. As a Matter of Law, Gallagher Acted in Scope of Employment at the Time of the Collision with Plaintiffs 9. Gallagher was an employee of the Houston Police Department and was driving a vehicle owned by the City of Houston when she failed to yield the right-of-way at a stop sign and crashed into a vehicle occupied by Plaintiffs. See Exhibits E and F. She was driving that vehicle at the instruction of another officer. Exhibit F. Plaintiffs sued Gallagher and the City due to Gallagher’s negligence in the collision and because she was in the scope of her employment with the City. 10. The City initially admitted course and scope and took the step of filing a motion to dismiss Gallagher pursuant to Texas Tort Claims Act section 101.106(e). That statute gives the governmental unit authority to dismiss its employee when both are sued: 4 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. TEX. CIV. PRAC. & REM. CODE § 101.106(e). 11. The purpose of this 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. Mission CISD v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). “By filing [a motion to dismiss the employee under subsection (e)], the governmental unit effectively confirms the employee was acting with the scope of employment and that the government, not the employee, is the proper party.” Ngakoue, 408 S.W.3d at 358; see also 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.). When a governmental unit and its employee are both sued for tort claims, subsection (e) does not require a governmental unit to dismiss its employee. See TEX. CIV. PRAC. & REM. CODE § 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 of dismissal.”) 12. The governmental unit is in the best position to know whether its employee acted in the course and scope of employment. Ledesma v. City of Houston, 623 S.W.3d 840, 847-848 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (citing Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013)). If the employee and governmental unit are sued, then the governmental unit can move to dismiss itself for lack of jurisdiction if the employee was not within scope of employment at the time of the incident. Id. However, when a governmental unit moves to dismiss an employee under Texas Civil Practice & Remedies Code section 101.106(e), the governmental unit judicially admits that the employee was acting in the scope of employment and 5 agrees to vicariously defend its employee. Id.; see Crockett County v. Damian, 08-19-00145-CV, 2020 WL 814013, at *3 (Tex. App.—El Paso Feb. 19, 2020, no pet.) (when a governmental unit chooses to file a 101.106(e) motion…it “effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.”); see also Ramos v. City of Laredo, 547 S.W.3d 651, 655-656 (Tex. App.—San Antonio 2018, no pet.) (“The City, having filed the plea to the jurisdiction in response to the plaintiff's pleadings, elected to assert official immunity on [employee’s] behalf. Because of the election by the City to be held vicariously responsible for its employee, we hold the City was bound to its judicial admission…”). 13. Here, the City not only admitted within discovery that Gallagher was within the scope of employment but also took the step of moving to dismiss her from this lawsuit under section 101.106(e). It made an election to vicariously defend Gallagher and judicially admitted that Gallagher acted within the scope of her employment when she collided with Plaintiffs. The City is bound by this election. Under Texas law, the fact of scope of employment is established as a matter of law and the City cannot introduce evidence to counter it. As such, this Court should grant summary judgment on the issue of course and scope against the City. 14. The precise issue before this Court now was before the First District Court of Appeals just two years ago. See Ledesma v. City of Houston, 623 S.W.3d 840 (Tex. App.— Houston [1st Dist.] 2020, pet. denied). The procedural history will sound familiar because it’s the same procedural history for this case: “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.” Id. at 843. The appellate court held that when the City filed its motion to dismiss pursuant to section 101.106(e) 6 to dismiss its employee, then the fact of scope of employment was established and the City was barred from later disputing that the employee was acting in the scope of employment. Id. at 846- 847. The passage of the decision applied the rules outlined within this motion: 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. 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. 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. We conclude that by moving to dismiss the claims against Suarez under subsection (e), the City judicially admitted that Suarez was 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. Id. at 848. 15. As it was with Ledesma, so it is with this case. The City made its election and had its employee dismissed with prejudice. When it made that election, Texas law holds that scope of employment is decided against the City as a matter of law. Accordingly, summary judgment is proper. This Court should grant this motion for summary judgment and hold that Gallagher was acting within the scope of her employment at the time of the crash with Plaintiffs as a matter of law. 7 V. CONCLUSION AND PRAYER 16. Under well-established Texas law, the City judicially admitted the issue of scope of employment. It can no longer dispute this fact. Plaintiffs are relieved of the burden of offering proof of this fact. This fact is established as a matter of law. As such, Plaintiffs respectfully request that the Court grant this motion for summary judgment on scope of employment. Plaintiffs further pray for such other and further relief to which Plaintiffs may be justly entitled. Respectfully submitted, KGS LAW By: /s/ Brandon A. Kinard Brandon A. Kinard Texas Bar No. 24079744 150 W. Parker Rd. Suite 705-B Houston, Texas 77076 Tel. (281) 962-7772 Fax. (281) 962-7773 kgs@kgslawgroup.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was forwarded to all counsel of record and/or parties on March 28, 2022 pursuant to Texas Rules of Civil Procedure 21a: /s/ Brandon A. Kinard Brandon A. Kinard 8 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. BRANDON KINARD on behalf of Brandon Kinard Bar No. 24079744 KGS@KGSLAWGROUP.COM Envelope ID: 62997178 Status as of 3/28/2022 10:09 AM CST Associated Case Party: Isabel Mejia Name BarNumber Email TimestampSubmitted Status Andrea L.Rejas arejas@me.com 3/28/2022 9:36:55 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status ANDRES REJAS KGS@KGSLAWGROUP.COM 3/28/2022 9:36:55 AM SENT Associated Case Party: City of Houston Name BarNumber Email TimestampSubmitted Status Christy L.Martin christy.martin@houstontx.gov 3/28/2022 9:36:55 AM SENT Suzanne R.Chauvin suzanne.chauvin@houstontx.gov 3/28/2022 9:36:55 AM SENT Kelly A.Dempsey kelly.dempsey@houstontx.gov 3/28/2022 9:36:55 AM SENT