In=20 The
For=20 The
DENNIS =
JAMES=20
POLEDORE, JR., Appellant FRANK =
JEROME FRALEY,=20
Appellee
On =
Appeal from the=20
268th District Court Fort =
Bend County,=20
Texas Trial =
Court Cause=20
No. 06-CV-153748
MEMORANDUM=20
OPINION Appellant, Dennis James =
Poledore, Jr.,=20
appeals the trial court's granting of a no-evidence summary =
judgment in=20
favor of appellee, Frank Jerome Fraley. We reverse and =
remand. Poledore, =
an inmate in=20
the Texas Department of Corrections--Institutional Division, filed =
a civil=20
suit against Fraley, the court-appointed attorney who represented =
him in=20
his criminal case, alleging that Fraley had (1) committed forgery =
by=20
amending a waiver of arraignment document that Poledore had =
previously=20
signed, and (2) failed to hire a private investigator to work on=20
Poledore's case. Poledore's petition alleged that it was a "Tort =
Civil=20
Action at Law for Damages" and that jurisdiction was "invoked by =
the Texas=20
Tort Claims Act." By way of the suit, Poledore sought to recover =
$50,000=20
in monetary damages from Fraley. Fraley filed a no-evidence =
motion for=20
summary judgment alleging that there was "no evidence of one or =
more of=20
the following elements of Tort Claim." Specifically, Fraley =
claimed that=20
Poledore had not produced any evidence that Fraley was an =
"employee" as=20
that term is defined by the Tort Claims Act. See Tex. =
Civ. Prac.=20
& Rem. Code Ann. =A7 101.001(2) (Vernon 2005). The trial court =
granted=20
Fraley's motion.
In his sole issue on appeal, =
Poledore=20
contends the trial court erred in granting Fraley's no-evidence =
motion for=20
summary judgment. Standard of=20
Review =
To prevail on a no-evidence =
summary=20
judgment motion, a movant must allege that there is no evidence of =
an=20
essential element of the adverse party's cause of action. Tex. R. =
Civ. P.=20
166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 =
S.W.3d=20
94, 99 (Tex. 2004). We review a no-evidence summary judgment under =
the=20
same legal sufficiency standard used to review a directed verdict. =
Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex. App.--Houston =
[1st Dist.]=20
2006, no pet.). Although the non-movant need not marshal its =
proof, it=20
must present evidence that raises a genuine issue of material fact =
on each=20
of the challenged elements. Tex. R. Civ. P. 166a(i); Ford =
Motor Co. v.=20
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence =
summary=20
judgment motion may not properly be granted if the non-movant =
brings forth=20
more than a scintilla of evidence to raise a genuine issue of =
material=20
fact on the challenged elements. See Ridgway, 135 S.W.3d =
at 600.=20
More than a scintilla of evidence exists when the evidence "rises =
to a=20
level that would enable reasonable and fair-minded people to =
differ in=20
their conclusions." Merrell Dow Pharms., Inc. v. Havner, =
953=20
S.W.2d 706, 711 (Tex. 1997). "[T]he Tort Claims Act does not =
create a=20
cause of action; it merely waives sovereign immunity as a bar to a =
suit=20
that would otherwise exist." City of Tyler v. Likes, 962 =
S.W.2d=20
489, 494 (Tex. 1997); see also City of Houston v. Boyle, =
148=20
S.W.3d 171, 179 (Tex. App--Houston [1st Dist] 2004, no pet.) ("The =
TCA=20
does not create a cause of action, but merely establishes a waiver =
of=20
governmental immunity."). As such, Poledore's failure to =
prove that=20
Fraley is an employee of a governmental unit means that Poledore =
has not=20
established a waiver of sovereign immunity. However, no party has =
claimed=20
immunity in this case, and Poledore is not seeking to hold a =
governmental=20
unit responsible for Fraley's actions. Quite simply, sovereign =
immunity=20
and the application of the Tort Claims Act are not issues in this=20
case. Because the Tort Claims Act =
does not=20
create a cause of action, whether Fraley is an "employee" of a=20
governmental unit is not an "element" of Poledore's cause of =
action. We reverse the judgment of the =
trial=20
court and remand for further proceedings. Sherry Radack Chief Justice Panel consists of Chief Justice =
Radack=20
and Justices Keyes and Higley. 1. ' - -- ' =