Hidalgo Cnty. v. Dyer

Decision Date25 October 2011
Docket NumberNos. 13–10–00228–CV,13–10–00251–CV.,s. 13–10–00228–CV
PartiesHIDALGO COUNTY, Appellant, v. Malcolm G. DYER, Appellee.Texas Department of Transportation, Appellant, v. Malcolm G. Dyer, Appellee.
CourtTexas Court of Appeals

OPINION TEXT STARTS HERE

Lisa Powell, Rex N. Leach, Servando Gonzales, Jr., Atlas & Hall, McAllen, for Appellant.

J.W. Dyer, Dyer & Associates, Sharon Almaguer, The Almaguer Law Firm, McAllen, for Appellee.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.

OPINION

Opinion by Justice PERKES.

These cases are interlocutory, accelerated appeals from the trial court's orders denying the Texas Department of Transportation (“the Department”) and Hidalgo County's (“the County”) respective pleas to the jurisdiction based on sovereign and governmental immunity.1 We conclude the trial court lacked subject-matter jurisdiction over all of appellee Malcolm G. Dyer's claims challenged on appeal. We reverse the trial court's respective orders denying the Department and the County's pleas to the jurisdiction and render judgment dismissing all of Dyer's claims with prejudice, except for Dyer's inverse-condemnation claim, which is not challenged on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 2006, the County filed a condemnation action in county court to acquire fee title to approximately 1.48 acres of land Dyer owned in Hidalgo County, Texas.2 The County sought the land for purposes of expanding Jackson Road in Hidalgo County.3 A Special Commissioners' Hearing was convened in July 2006 to assess damages the County owed Dyer for the condemnation. Dyer claimed he never received proper notice of the hearing, and he did not participate in the hearing.4 In August 2006, the county court adopted the Special Commissioners' findings as its judgment in the County's condemnation suit.

On or about April 1, 2007, the Department and the County entered and took possession of Dyer's property. According to Dyer, the Department and the County started storing equipment on his land, destroyed access to one parcel of his land without ever restoring it, and diminished his income from mining soil on his land.

In October 2007, Dyer filed a partial motion for summary judgment in the county court, seeking dismissal of the County's condemnation action for lack of jurisdiction. Among other things, Dyer complained he was not given proper notice of the Special Commissioners' Hearing. In January 2008, the county court granted Dyer's partial motion for summary judgment, and dismissed the County's condemnation action as defective. In April 2008, the county court signed an agreed order to sever Dyer's counterclaims against the County from the condemnation case.5

In June 2008, Dyer sued the Department and the County in the trial court, the 398th District Court of Hidalgo County. Against each defendant, Dyer alleged a claim for inverse condemnation under article 1, section 17 of the Texas Constitution, violation of the due-course-of-law provision in article 1, section 19 of the Texas constitution, violation of the Texas Private Real Property Rights Preservation Act, violation of title 42, section 1983 of the United States Code, trespass, and claims for attorney's fees. In February 2009, Dyer filed his First Amended Petition, adding claims for declaratory relief premised on the previously-filed claims in the lawsuit.

Both the Department and the County answered Dyer's suit and asserted pleas to the jurisdiction. The trial court held a hearing on the pleas to the jurisdiction at which Dyer testified. After the hearing, Dyer filed a Second Amended Petition, adding a claim for “negligent trespass.” 6

Several months later, the trial court denied the Department and the County's respective pleas to the jurisdiction. The trial court signed two orders denying the respective pleas. The County and the Department each filed a timely notice of accelerated, interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008) (authorizing interlocutory appeal from a district court's order denying a governmental unit's plea to the jurisdiction); see also Id. § 101.001 (West 2005) (defining “governmental unit” so as to include the Department and the County); Tex.R.App. P. 28.1 (identifying and setting forth procedural rules for accelerated appeals).

There being two orders, a separate cause number was assigned to each case on appeal. The appeals arise from a single case in the trial court and a single set of facts. The record on appeal has been consolidated in these cases. Although the appeals have not been consolidated, in the interest of judicial economy, we issue a single opinion herein disposing of both appeals.

II. ISSUES PRESENTED

The Department and the County each present this single issue, with several sub-issues for review; Does the trial court lack subject-matter jurisdiction over the following:

(1) Dyer's claim under article 1, section 19 of the Texas Constitution;

(2) Dyer's claim under title 42, section 1983 of the United States Code;

(3) Dyer's claim under the Texas Private Real Property Rights Preservation Act;

(4) Dyer's trespass claim;

(5) Dyer's declaratory-judgment claims; and

(6) Dyer's attorney's fees claims? 7

III. STANDARD OF REVIEW AND BURDEN OF PROOF

To render a binding judgment, a court must have both subject-matter jurisdiction over the controversy and personal jurisdiction over the parties. Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex.2010). A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea challenges the trial court's subject matter jurisdiction over a pleaded cause of action. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Cameron County, Tex. v. Ortega, 291 S.W.3d 495, 497 (Tex.App.-Corpus Christi 2009, no pet.). Subject-matter jurisdiction is a question of law; therefore, we review the trial court's ruling on a plea to the jurisdiction de novo. See Miranda, 133 S.W.3d at 228; Ortega, 291 S.W.3d at 497.

A plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002); State of Tex. Parks & Wildlife Dept. v. Morris, 129 S.W.3d 804, 807 (Tex.App.-Corpus Christi 2004, no pet.). In deciding a plea to the jurisdiction, a court may not weigh the merits of the causes of action, but must consider only the plaintiff's pleadings and any evidence in the record pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); City of Laredo v. Nuno, 94 S.W.3d 786, 788 (Tex.App.-San Antonio 2002, no pet.). The appellate court must examine the pleader's intent and construe the pleading in the plaintiff's favor. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867. However, a plea to the jurisdiction may be granted without allowing the plaintiff to amend the pleading if the pleading affirmatively negates the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867.

IV. ANALYSIS

On appeal, Dyer argues this Court should not analyze on a claim-by-claim basis whether the trial court had subject-matter jurisdiction because the Department and County's pleas to the jurisdiction were general and asked that all of Dyer's claims be dismissed. The reporter's record on appeal shows that at the special-appearance hearing, without objection, the Department challenged the trial court's subject-matter jurisdiction claim-by-claim, the County adopted the Department's arguments as its own, and afterward the trial court denied the respective pleas to the jurisdiction. In Thomas v. Long, the Supreme Court of Texas held a trial court should address subject-matter jurisdiction claim-by-claim, dismissing claims over which it lacks subject-matter jurisdiction and retaining claims in the same case over which it has jurisdiction. 207 S.W.3d 334, 338–39 (Tex.2006). Accordingly, we address Dyer's claims individually to determine whether the trial court lacked subject-matter jurisdiction over them. See id.

A. Dyer's Trespass Claim

The Department and the County argue that immunity from suit has not been waived for Dyer's trespass claim because Dyer has alleged an intentional tort for which the Texas Tort Claims Act does not waive immunity. We agree.

The Texas Tort Claims Act (the Act) provides a limited waiver of immunity for certain suits against governmental entities and caps recoverable damages. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021, 101.023 (West 2005). The Act does not waive immunity for claims arising from any intentional tort. Id. § 101.057 (West 2005). In determining whether a plaintiff's claims are barred by immunity, we look to the substance of the claims alleged because governmental immunity cannot be circumvented by artful pleading. See Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 577 & 580 (Tex.2001); Harris County v. Cabazos, 177 S.W.3d 105, 111–12 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Delaney v. Univ. of Houston, 835 S.W.2d 56, 60 (Tex.1992)).

The intentional tort of trespass involves the intent to commit an act which violates a property right or is practically certain to have that effect, although the actor may not know the act he intends to commit is a violation of a property right. Warwick Towers Council of Co–Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P. 298 S.W.3d 436, 447 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Harris County v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Dyer pleaded that the Department and the County trespassed on his property by entering it and “staging” construction materials/equipment, concrete, and piping on it. Dyer pleads the Department and the County's contractor for...

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