Kelemen v. Elliot

Appellant, Brandi Kelemen, appeals the trial courts order dismissing her suit against appellee, Robert Elliot. In her first issue, Kelemen challenges the trial courts dismissal under section 101.106 of the Texas Tort Claims Act by asserting that her suit was not brought "under" the Tort Claims Act and thus section 101.106 did not require dismissal. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001--.109 (Vernon 2005 & Supp. 2007). We conclude that the trial court erred by dismissing the lawsuit against Elliott under section 101.106 of the Tort Claims Act because (1) Kelemen did not file claims against both Elliott and the City and, therefore, section 101.106(e) does not apply; and (2) Elliott did not carry his burden to show that he was entitled to dismissal under section 101.106(f). We therefore do not reach the second issue asserted in the alternative by Kelemen, in which she asserts that section 101.106 violates the "Open Courts" provision of the Texas Constitution. See Tex. Const. art. I, § 13. We reverse the trial courts order of dismissal and remand the cause.