Lift Temporary Restraining Order Texas

Document Sample
Lift Temporary Restraining Order Texas Powered By Docstoc
					                                                 CAUSE NO. 2009-550-359

 MIKE LEACH,                                                        §                IN THE DISTRICT COURT
            Plaintiff,                                              §
                                                                    §
 v.                                                                 §              LUBBOCK COUNTY, TEXAS
                                                                    §
 TEXAS TECH UNIVERSITY, ET AL.                                      §
            Defendant.                                              §                 99TH JUDICIAL DISTRICT


   DEFENDANTS TEXAS TECH UNIVERSITY’S, KENT HANCE’S, GUY BAILEY’S,
     GERALD MYERS’, AND CHARLOTTE BINGHAM’S MOTION TO DISMISS
   PLAINTIFF’S CLAIMS AGAINST THE INDIVIDUAL TEXAS TECH DEFENDANTS
  UNDER SECTION 101.106 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE


TO THE HONORABLE WILLIAM SOWDER:

          Defendants, TEXAS TECH UNIVERSITY, KENT HANCE, GUY BAILEY, GERALD MYERS, and

CHARLOTTE BINGHAM, hereby file their Motion to Dismiss Plaintiff’s Claims Against the Individual

Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code, and

in support thereof, would show this Court the following:

                                                             I.
                                                       INTRODUCTION

          Because Mike Leach has pled claims sounding in tort against Texas Tech University, both in

prior petitions in this lawsuit as well as in his Fifth Amended Petition, he has invoked the “election

of remedies” provision in the Texas Tort Claims Act, and all claims against Defendants Anders,

Turner, Hance, Bailey, Myers, and Bingham (“Individual Tech Defendants”) based on the same

subject matter (the suspension and termination of Mike Leach), are barred as a matter of law by

Sections 101.106(a) and (e) of the Texas Civil Practice and Remedies Code.



Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                      Page 1
          (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.

TEX. CIV. PRAC. & REM. CODE § 101.106(a) (West 2009)

          Mike Leach sued Texas Tech University on December 29, 2009, after the University

suspended him from his duties as then-Head Football Coach. Subsequently, Leach has amended his

petition three times pleading more detailed factual allegations, and asserting more causes of action

against Texas Tech University. In his fourth and fifth amended petitions, Leach attempts to add

several individuals as defendants, including four employees of Texas Tech University. Because

Leach asserted tort claims against Texas Tech University before adding the Individual Tech

Defendants as defendants, his claims against those Individual Tech Defendants are barred, as a

matter of law, by the Texas Tort Claims Act’s election of remedies provision found at §101.106 of

the Texas Civil Practice and Remedies Code. Under the election of remedies, Leach’s decision to

allege tort claims against Texas Tech University alone in his first four petitions acts as an immediate

and irrevocable bar to any claims against Texas Tech’s employees premised on the same subject

matter. Accordingly, Texas Tech University on behalf of the six Individual Tech Defendants,

Chairman Larry Anders, Vice-Chair Jerry Turner, Chancellor Kent Hance, President Guy Bailey,

Athletic Director Gerald Myers, and EEO Director Charlotte Bingham, hereby move for the

immediate dismissal of all claims asserted against them in Leach’s lawsuit.

                                                   II.
                                      UNDISPUTED PROCEDURAL FACTS

          Texas Tech University suspended Mike Leach from his position as Head Football Coach on

December 28, 2009. Subsequently, the University decided to terminate Leach’s employment;


Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code          Page 2
however, on December 29, 2009, prior to receiving notice of the University’s decision, Leach filed

an application for a temporary restraining order and temporary injunction requesting that this Court

order Texas Tech to lift the suspension. On December 30, 2009, the University’s decision to

terminate Leach’s employment was communicated to him, and Leach amended his lawsuit adding a

claim for “fraudulent inducement” against Texas Tech. Plaintiff’s First Amended Petition,

Application for Temporary Restraining Order, and Temporary Injunction, ¶ 9, pp. 2-3. Leach

subsequently amended his petition a second time on January 8, 2010, fleshing out his factual

allegations and adding a claim for defamation against Texas Tech. Plaintiff Mike Leach’s Second

Amended Petition, §§V(B)-(C), ¶¶ 17-18, p. 6. On January 12, 2010, Leach amended his petition,

adding yet another tort claim against Texas Tech alleging “negligent misrepresentation.” Plaintiff

Mike Leach’s Third Amended Petition, §§V(B)-(D), ¶¶ 33-35, pp. 12-14. In each of these

amendments, Leach alleged no claims against any defendant other than Texas Tech University.

          On April 16, 2010, after substantial discovery in the case, Leach amended his petition a

fourth time, adding a host of new claims and for the first time naming seven individual defendants,

including Anders, Turner, Hance, Bailey, Myers, and Bingham, all of whom are officials at Texas

Tech. See generally, Plaintiff Mike Leach’s Fourth Amended Petition. The very next day, April 17,

2010, Leach filed his fifth amended petition, alleging all the same claims against all the same

defendants. See generally, Plaintiff Mike Leach’s Fifth Amended Petition. The Fifth Amended

Petition is Leach’s live pleading in this matter.




Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code      Page 3
                                                   III.
                                         ARGUMENT AND AUTHORITIES

A.        All of Leach’s Claims, whether Sounding in Tort or Otherwise, Which are Pled Against
          the Individual Tech Defendants (Anders, Turner, Hance, Bailey, Myers, and Bingham)
          in Both Their Individual and Official Capacities, are Barred by the “Election of
          Remedies” Provision Found in TEX. CIV. PRAC. & REM. CODE § 101.106(a) because
          Leach Invoked that Section by Filing Suit against Texas Tech on Several Tort Theories
          in Prior Iterations of his Petition.

          Leach’s Fifth Amended Petition (the current live pleading) pleads claims against newly-

added individual defendants: (1) Board of Regents Chairman Larry Anders, Vice-Chair Jerry Turner,

Chancellor Kent Hance, President Guy Bailey, Athletic Director Gerald Myers, and EEO Director

Charlotte Bingham (“Individual Tech Defendants”); and (2) Craig James. Against Anders, Turner,

Hance, Bailey, and Myers, Leach asserts claims for damages under the following causes of action:

(1) fraud in the inducement; (2) negligent misrepresentation; (3) defamation; (4) tortious

interference; and (5) conspiracy. See Plaintiff’s Fifth Amended Petition, ¶¶ 76-86, pp. 29-33.

Further, Leach asserts “equitable” claims for “declaratory relief” against Anders, Turner, Hance,

Bailey, and Myers for: (1) alleged ultra vires1 acts; and (2) defamation. See Plaintiff’s Fifth

Amended Petition, ¶¶ 92-95, pp. 34-35. Finally, though he does not specify any particular claim

against Defendant Bingham, Leach requests that Bingham be ordered to provide Leach with

whatever appeal procedures are available under OP 70.10 and other policies reflected in the Texas

Tech Operating Policies and Procedures. See Plaintiff’s Fifth Amended Petition, ¶ 88(d), p. 34.


          1
            Although in his “ultra vires” claim, Leach appears to complain about “Texas Tech’s” acts, Texas case law
provides that alleged ultra vires acts of a state official are not considered acts by the State. Thus any claim premised on
such acts must be brought against the state official about whose actions the plaintiff is complaining, not against the State
itself. Further, those claims must be pled against the official in his or her official, not individual capacity. Therefore,
Leach may only pursue his ultra vires claims against Anders, Turner, Hance, Bailey, and Myers (or any other state
officials) in their official capacities only. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex.2009) (“[Ultra vires]
“suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their
official capacity.”).

Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                             Page 4
However, because Leach has pled claims sounding in tort against Texas Tech University, both in

prior petitions in this lawsuit as well as in this latest Fifth Amended Petition, he has invoked the

“election of remedies” provision in the Texas Tort Claims Act, and all of the claims identified above,

as well as the entire suit on the same subject matter, are barred as a matter of law by Sections

101.106(a) and (e) of the Texas Civil Practice and Remedies Code. Accordingly, the Court should,

as a matter of law, immediately dismiss all claims pled against the Individual Tech Defendants

(Anders, Turner, Hance, Bailey, Myers, and Bingham), regardless of whether those claims are pled

against them in their individual or official capacities, and whether or not those claims sound in tort,

contract, or constitutional law.

          1.         Section 101.106(a) requires the immediate dismissal of Individual Tech
                     Defendants

          Subsection (a) of the Tort Claims Act’s “election of remedies” provision applies to cases in

which a plaintiff brings suit under the Act against a governmental entity. The applicable subsection

provides for an immediate, irrevocable election when the plaintiff sues the governmental unit

alleging a theory sounding in tort:

          (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.

TEX. CIV. PRAC. & REM. CODE § 101.106(a) (West 2009). Since the Act was amended in 2003 to

allow this immediate, irrevocable bar, plaintiffs have sought to avoid its harsh effects by attempting

to distinguish their claims from the statute’s express language. Therefore, Texas courts of appeal

have discussed extensively the effects of the statutory language on a wide variety of claims. Leach’s




Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code          Page 5
claims present no novel or unforeseen circumstances, and because the language in the statute is clear,

Leach’s claims against the Individual Tech Defendants are barred as a matter of law.

          2.         Section 101.106(a) clearly and unequivocally applies to all of Leach’s claims
                     against the Individual Tech Defendants.

                      (a)      Leach has “filed suit under this chapter against a governmental unit,”
                               thus invoking the election of remedies.

          Without question, Leach has “filed suit under [Chapter 101]” against Texas Tech University,

a governmental unit, as contemplated by §101.106(a). Leach’s first four petitions (original and three

amended) all sue only Texas Tech University. See generally, Plaintiff’s Petition for TRO and First

Amended, Second Amended, and Third Amended Petitions.                                       Courts in Texas have always

recognized the University as an arm of the Texas state government. Texas Tech University Health

Sci. Ctr. v. Lucero, 234 S.W.3d 158, 168 (Tex.App.—El Paso 2007, pet. denied); United States v.

Texas Tech University, 171 F.3d 279, 289 n.14 (5th Cir.1999).

          Leach’s first three amended petitions expanded his initial application for temporary

restraining order beyond a mere request for temporary injunctive relief and sought damages against

Texas Tech University under a variety of tort theories. Thus, it is without question that Leach has

filed his suit “against a governmental entity” and has invoked the election of remedies provision in

§101.106.

          According to the Texas Supreme Court’s definitive answer to this question, Leach’s lawsuit

clearly was brought under the Tort Claims Act. Mission Consolidated Indep. Sch. Dist. v. Garcia,

253 S.W.3d 653 (Tex.2008). In Mission Consolidated, three plaintiffs sued the school district that

employed them and the district’s superintendent. Against the district, they alleged claims for

intentional infliction of emotional distress (a common law tort claim) and discriminatory discharge


Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                         Page 6
under the Texas Commission on Human Rights Act. Against the superintendent, the plaintiffs

brought only tort claims: defamation, fraud, and negligent misrepresentation. Mission Consolidated,

253 S.W.3d at 655. The school district filed a plea to the jurisdiction seeking dismissal of the tort

claims brought against it citing the Tort Claims Act’s election of remedies in §101.106. After the

district court denied the plea and the intermediate court of appeals affirmed, the Supreme Court

accepted the case to determine the scope of the Tort Claims Act’s election of remedies provision. Id.

          In addressing the scope of the election, the Supreme Court noted that the intermediate court

of appeals had concluded that the language “under this chapter” limits the applicability of the

election of remedies provision solely to situations in which a plaintiff sues a governmental entity

alleging claims for which the Tort Claims Act had expressly waived immunity. Id. at 658. The

Court then went on to expressly reject that reasoning:

          [W]e have never interpreted “under this chapter” to only encompass tort claims for
          which the Tort Claims Act waives immunity. To the contrary, in Newman v.
          Obersteller … we held that former section 101.106’s limiting phrase “under this
          chapter” operated to bar an intentional tort claim against an employee after a final
          judgment on a claim involving the same subject matter had been rendered against the
          governmental unit, even though the Act by its terms expressly excluded intentional
          torts from the scope of the Act's immunity waiver …. [T]here is nothing in the
          amended version that would indicate a narrower application of the phrase “under this
          chapter” was intended. Because the Tort Claims Act is the only, albeit limited,
          avenue for common-law recovery against the government, all tort theories alleged
          against a governmental unit, whether it is sued alone or together with its employees,
          are assumed to be “under [the Tort Claims Act]” for purposes of section 101.106.

Id. at 658-59 (internal citations and footnotes omitted) (emphasis added). Thus, the Court held that

any lawsuit alleging a tort claim against a governmental entity is sufficient to invoke the election of

remedies provisions in §101.106.

          Here, Leach’s first, second, and third amended petitions all asserted tort claims solely against

Texas Tech. Plaintiff’s First Amended Petition, Application for Temporary Restraining Order, and

Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code            Page 7
Temporary Injunction, ¶ 9, pp. 2-3; Plaintiff Mike Leach’s Second Amended Petition, §§V(B)-(C),

¶¶ 17-18, p. 6; Plaintiff Mike Leach’s Third Amended Petition, §§V(B)-(D), ¶¶ 33-35, pp. 12-14.

Moreover, his fourth and fifth amended petitions continue to assert a common law “fraud in the

inducement” claim against Texas Tech. See Plaintiff’s Fourth Amended Petition, ¶¶ 76-78, pp. 29-

30; see also Plaintiff’s Fifth Amended Petition, ¶¶ 76-78, pp. 29-30. Because “all tort theories

alleged against a governmental unit . . . are assumed to be ‘under [the Tort Claims Act]’ for purposes

of section 101.106,” it is without question that Leach invoked the election of remedies in § 101.106,

regardless of which iteration of his amended pleadings is examined. Accordingly, Leach has elected

to sue Texas Tech University, and is therefore precluded from suing and/or obtaining any relief

against individual Texas Tech officials based on any claims arising under the same subject matter.

                     (b)       The bar on Leach’s claims against the Individual Tech Defendants became
                               effective immediately upon the filing of his First Amended Petition.

          The clear and unambiguous language of the election of remedies provision in §101.106(a)

states that the bar prohibiting “suit or recovery” against an employee of the governmental unit sued is

“immediate.” TEX. CIV. PRAC. & REM. CODE §101.106(a) (West 2009). Further, the statutory

language plainly states that the election occurs when the suit is filed. Id. (“The filing of a suit . . .

constitutes an irrevocable election . . . .”). Thus, the election is made immediately upon the filing of

the first pleading asserting a claim “under this chapter” against the governmental unit. Hintz v. Lally,

___ S.W.3d ___, 2009 WL 3851634 at *8 (Tex.App.—Houston [14th Dist.] Nov. 19, 2009, Rule

53.7 motion granted); see also Galvan v. City of San Antonio, No. SA-07-CA-371-OG, 2008 WL

630059, at *3 (W.D.Tex.2008) (unpublished). Here, Leach first asserted a tort claim2 against Texas


          2
          Fraudulent inducement is a theory of recovery grounded in tort. Formosa Plastics Corp., USA v. Presidio Eng.
& Contr., Inc., 960 S.W.2d 41, 46-47 (Tex.1998).

Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                       Page 8
Tech on December 30, 2009, when he filed his First Amended Petition setting forth a claim for

fraudulent inducement naming Texas Tech as the only defendant. Plaintiff’s First Amended Petition,

Application for Temporary Restraining Order, and Temporary Injunction, ¶ 9, pp. 2-3. Leach clearly

invoked the Tort Claims Act’s election of remedies on December 30, 2009. Therefore, any

subsequent claims against the Individual Tech Defendants arising out of the same subject matter are

barred as a matter of law.

                     (c)       The bar applies to all of Leach’s claims against the Individual Tech
                               Defendants, regardless of the relief requested or the capacity in which
                               they are sued, because all of Leach’s claims arise out of the same subject
                               matter as his tort claims alleged against Texas Tech.

          Having established that Leach’s tort claims against Texas Tech invoked the election of remedies

barring his subsequent claims against individual employees of Texas Tech, the question then remains:

What claims are barred? Again, this Court must look to the plain language of the statute at issue to

determine what claims may be barred by the election of remedies. Section 101.106(a) states that its bar

applies to “any suit or recovery by the plaintiff against any individual employee of the governmental unit

regarding the same subject matter.” TEX. CIV. PRAC. & REM. CODE §101.106(a) (West 2009). Thus, the

unequivocal language of the statute clearly applies to any and all suits, regardless of their nature, which

regard the “same subject matter” as the suit against the governmental unit.

          Same Subject Matter.

          Courts applying the election of remedies provision have uniformly held that the term refers to

any suits “arising out of the same actions, transactions, or occurrences.” Waxahachie Indep. Sch.

Dist. v. Johnson, 181 S.W.3d 781, 787 (Tex.App.—Waco 2005, pet. denied) (citing Dallas County

MHMR v. Bossley, 968 S.W.2d 339, 344 (Tex.1998). Leach’s claims against the employees and

Texas Tech undoubtedly involve the “same subject matter.”

Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code            Page 9
          Leach’s tort claims against Texas Tech included allegations that the University, acting

through its officials, including Anders, Turner, Hance, Bailey, and Myers, fraudulently tricked him

into signing a five-year contract they had no intention of honoring, negligently misrepresented their

intentions, conspired to establish a trumped up justification for terminating his employment, defamed

him with untrue statements about his treatment of Adam James, and ultimately terminated his

employment contract. See Plaintiff’s Third Amended Petition, ¶¶ 33-35, pp. 12-14. These are all the

very same allegations Leach makes against the individual defendants in his Fifth Amended Petition,

the only difference being the level of specificity with which the claims have been pled. See

Plaintiff’s Fifth Amended Petition, ¶¶ 78, 80, 82, 84, 86, pp. 29-33. It is clear from all of the

pleadings in this case that Leach’s claims against all of the Defendants are premised on the course of

alleged conduct beginning with the negotiation of his 2009 contract and extending through the date

that contract was terminated by Texas Tech for cause. There is no question that the facts supporting

the claims pled against the Individual Tech Defendants involve the same subject matter raised in

Leach’s four prior amended petitions.

          Capacity in which Each Defendant is Sued and Relief Requested are Irrelevant.

          Furthermore, the clear language of §101.106(a) mandates that the Court dismiss all claims

alleged against the Individual Tech Defendants, regardless of whether the claim seeks monetary,

declaratory, or injunctive relief, and regardless of whether the claim is asserted against each Tech

Employee in his/her individual or official capacity. Reading the unambiguous language of the

statute, the Legislature indisputably used the phrase “any suit or recovery” when describing the kinds

of suits barred by the election of remedies. TEX. CIV. PRAC. & REM. CODE §101.106(a) (West 2009).

Given its plain meaning, the term “any suit or recovery” means just that:


Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code       Page 10
          [T]he words “any suit” in subsection (a) – given their plain meaning – mean that any
          same-subject-matter suit against the employee is barred regardless of the capacity in
          which the plaintiff sues the employee. The legislature’s inclusion of the modifier
          “individual” before the word “employee” in subsection (a) but not elsewhere in
          section 101.106 reinforces this conclusion; read in context, it can only refer to the
          employee's individual liability. Thus, under subsection (a), a Tort Claims Act suit
          against a governmental unit bars a same-subject-matter suit against an employee of
          the governmental unit in both the employee’s official and individual capacities.

          In other words, a suit under the Tort Claims Act against a governmental unit bars a
          same-subject-matter suit against an employee in both the employee’s official and
          individual capacities.

Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 401 (Tex.App.—Fort Worth

2008, no pet.). Accordingly, whether Leach brings claims against the Individual Tech Defendants in

their individual capacities (Anders, Turner, Hance, Bailey, and Myers) or in their official capacities

(Anders, Turner, Hance, Bailey, Myers, and Bingham), the claims are barred by the application of

the election of remedies provision of §101.106(a). Because all of Leach’s claims against the

Individual Tech Defendants are barred, he may not recover any award, whether monetary,

declaratory, or injunctive against them for any of the claims he has asserted, including his ultra vires

claims and any other declaratory judgment claims (e.g., Count X-Declaratory Judgment Defamation)

directed against the Individual Tech Defendants. Therefore, the Court should dismiss Defendants

Anders, Turner, Hance, Bailey, Myers, and Bingham from this lawsuit.

B.        Leach’s Tort Claims against the Individual Tech Defendants are further Barred by
          TEX. CIV. PRAC. & REM. CODE § 101.106(e) because Leach has brought His Claims
          against Both the Individual Tech Defendants and Texas Tech University itself.

          Although the Movants assert that §101.106(a) is the applicable provision in this case, and that

no separate motion by Texas Tech is required to invoke the election of remedies provisions of the

Texas Tort Claims Act, in the alternative, Texas Tech University hereby moves, pursuant to

§101.106(e) for an order of dismissal of all Individual Tech Defendants. Section 101.106(e) governs

Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code          Page 11
suits in which tort claims are brought “under this chapter” against both the governmental unit and

one or more of its employees:

          (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.

TEX. CIV. PRAC. & REM. CODE §101.106(e) (West 2009). As noted more fully in the preceding

sections, the current live pleadings clearly demonstrate that Leach has filed a suit “under this

chapter.” See Mission Consolidated, 253 S.W.3d at 658-59. Therefore, if the Court finds that

Leach’s subsequent Fifth Amended Petition constitutes a suit against both Texas Tech and the six

Individual Tech Defendants, Anders, Turner, Hance, Bailey, Myers, and Bingham, (see Plaintiff

Mike Leach’s Fifth Amended Petition, §V(D)-(H), ¶¶ 76-86, pp. 29-33), §101.106(e) expressly

provides that the individuals must be dismissed upon Texas Tech’s filing of a motion. This motion

constitutes Texas Tech’s invocation of the election of remedies under TEX. CIV. PRAC. & REM. CODE

§101.106(e). Accordingly, for the reasons set forth above, all claims asserted against all of the

Individual Tech Defendants should be dismissed from this law suit as a matter of law.

                                                                          Respectfully submitted,

                                                                          GREG ABBOTT
                                                                          Texas Attorney General

                                                                          C. ANDREW WEBER
                                                                          First Assistant Attorney General

                                                                          DAVID S. MORALES
                                                                          Deputy Attorney General for Civil Litigation

                                                                          ROBERT B. O=KEEFE
                                                                          Chief, General Litigation Division




Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                       Page 12
                                                                          /s/Daniel C. Perkins
                                                                          DANIEL C. PERKINS
                                                                          Attorney-in-Charge
                                                                          Texas Bar No. 24010301
                                                                          LYNN E. CARTER
                                                                          Texas Bar No. 03925990
                                                                          ERIC L. VINSON
                                                                          Texas Bar No. 24003115
                                                                          Assistant Attorneys General
                                                                          Texas Attorney General=s Office
                                                                          General Litigation Division
                                                                          P.O. Box 12548, Capitol Station
                                                                          Austin, Texas 78711-2548
                                                                          (512) 463-2120
                                                                          (512) 320-0667 FAX

                                                                          ATTORNEYS FOR DEFENDANTS TEXAS TECH
                                                                          UNIVERSITY, KENT HANCE, GUY BAILEY,
                                                                          GERALD MYERS, AND CHARLOTTE BINGHAM


                                                                          /s/Dicky Grigg
                                                                          DICKY GRIGG
                                                                          State Bar No. 08487500
                                                                          Spivey & Grigg, L.L.P.
                                                                          48 East Avenue
                                                                          Austin, Texas 78701
                                                                          (512)474-6061
                                                                          (512)474-1605 FAX

                                                                          ATTORNEY FOR DEFENDANT TEXAS TECH UNIVERSITY


                                                                          HANCE SCARBOROUGH, LLP
                                                                          111 Congress Avenue, Suite 500
                                                                          Austin, Texas 78701
                                                                          (512) 479-8888
                                                                          (512) 482-6891 (fax)

                                                                   By: /s/Terry Scarborough
                                                                       Terry Scarborough
                                                                       State Bar No. 17716000

                                                                          ATTORNEYS FOR DEFENDANT HANCE


Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                       Page 13
                                                                          /s/R.Rogge Dunn
                                                                          ROGGE DUNN
                                                                          State Bar No. 06249500
                                                                          Email: rdunn@cdklawyers.com
                                                                          GREGORY M. CLIFT
                                                                          State Bar No. 00795835
                                                                          Email: gclift@cdklawyers.com
                                                                           CLOUSE DUNN KHOSHBIN LLP
                                                                          1201 Elm Street, Suite 5200
                                                                          Dallas, TX 75270-2142
                                                                          Telephone: (214) 220-3888
                                                                          Facsimile: (214) 220-3833

                                                                          ATTORNEYS FOR DEFENDANT BAILEY


                                                                          JONES, FLYGARE, BROWN & WHARTON
                                                                          A Professional Corporation

                                                                   By: /s/James L. Wharton
                                                                       JAMES L. WHARTON
                                                                       State Bar No. 21243500
                                                                       1600 Civic Center Plaza
                                                                       P.O. Box 2426
                                                                       Lubbock, Texas 79408
                                                                       (806) 765-8851
                                                                       (806) 765-8829 FAX

                                                                          ATTORNEYS FOR DEFENDANT MYERS




Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                  Page 14
                                             CERTIFICATE OF SERVICE

       I certify that a copy of the above Defendants Texas Tech University’s, Kent Hance’s, Guy
Bailey’s, Gerald Myers’, and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The
Texas Individual Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies
Code was served by the following manner, on the 4th day of May 2010, upon the following
individuals at the listed addresses:

          Paul J. Dobrowski                                                    X       Via Email: pjd@doblaw.com
                                                                                       Via Hand Delivery
          Frederick T. Johnson                                                         Via Certified Mail Return Receipt Requested
          4601 Washington Ave., Suite 300                                              Via Facsimile (713) 659-2908
          Houston, Texas 77007                                                         Via Regular Mail


          Ted A. Liggett                                                       X       Via Email: ted@liggettlawgroup.com
                                                                                       Via Hand Delivery
          The Liggett Law Group, P.C.                                                  Via Certified Mail Return Receipt Requested
          1001 Main Street, Suite 502                                                  Via Facsimile (806) 589-0765
          Lubbock, Texas 79401                                                         Via Regular Mail


          ATTORNEYS FOR PLAINTIFF

          Stephen Rasch                                                        X       Via Email: stephen.rasch@tklaw.com
                                                                                       Via Hand Delivery
          Thompson & Knight LLP                                                        Via Certified Mail Return Receipt Requested
          One Arts Plaza                                                               Via Facsimile (214) 880-3239
          1722 Routh Street, Suite 1500                                                Via Regular Mail
          Dallas, Texas 75201-2533

          ATTORNEYS FOR DEFENDANT ANDERS

          Pat Lochridge                                                        X       Via Email: plochridge@mcginnislaw.com
                                                                                       Via Hand Delivery
          Jim Raup                                                                     Via Certified Mail Return Receipt Requested
          McGinnis, Lochridge & Kilgore, L.L.P.                                        Via Facsimile (512) 505-6344
          600 Congress Ave., Suite 2100                                                Via Regular Mail
          Austin, Texas 78701

          ATTORNEYS FOR DEFENDANT TURNER

          Scott McLaughlin                                                     X       Via Email: smclaughlin@jw.com
                                                                                       Via Hand Delivery
          Jackson Walker, LLP                                                          Via Certified Mail Return Receipt Requested
          1401 McKinney Street, Suite 1900                                             Via Facsimile
          Houston, Texas 77010                                                         Via Regular Mail




Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                                    Page 15
          James Drakely
                                                                               X       Via Email: jdrakeley@hhdulaw.com
          Hiersche, Hayward, Drakeley                                                  Via Hand Delivery
             & Urbach, P.C.                                                            Via Certified Mail Return Receipt Requested
          15303 Dallas Parkway, Suite 700                                              Via Facsimile
                                                                                       Via Regular Mail
          Addison, Texas 75001

          ATTORNEYS FOR DEFENDANT CRAIG JAMES



                                                                          /s/Daniel C. Perkins
                                                                          DANIEL C. PERKINS
                                                                          Assistant Attorney General




Defendants Texas Tech University’s, Kent Hance’s, Guy Bailey’s, Gerald Myers’,
and Charlotte Bingham’s Motion to Dismiss Plaintiff’s Claims Against The Individual
Texas Tech Defendants Under Section 101.106 of the Texas Civil Practice and Remedies Code                                    Page 16

				
DOCUMENT INFO
Description: Lift Temporary Restraining Order Texas document sample