Miller v. S. E. Tex. Reg'l Planning Comm'n
| Decision Date | 11 July 2013 |
| Docket Number | NO. 03-11-00817-CV,03-11-00817-CV |
| Parties | Caroline Miller, Catherine Austin, Dewey T. Bell, Kimberly Bell, Mike Bellows, Rhonda Bellows, Curtis Dwayne Breaux, Lisa Gayle Breaux, Thomas J. Canton, Vera Canton, Warren J. Clark, Patricia K. Clark, Barbara Garry, Donna Ann Green, Clifford Guidry, Shirley Guidry, Bradley K. Kloefkorn, Patricia C. Kloefkorn, Jerald Paul LeBlanc, Janet Elizabeth LeBlanc, Don Lofton, Mattie L. Lofton, Joel Daniel Love Jr., Drew Potter, Ronald James Prince, Roger D. Rashall Jr., Roger D. Rashall Sr., Cynthia G. Rashall, Larry C. Shoemaker, Martha Shoemaker, Anton Smikal, and Martha Smikal, Appellants v. South East Texas Regional Planning Commission, Jefferson County Appraisal District, Roland R. Bieber, and Jefferson County Drainage District No. 6, Appellees |
| Court | Texas Court of Appeals |
NO. D-1-GN-10-003240, HONORABLE TIM SULAK, JUDGE PRESIDING
After appellants' homes were damaged by Hurricane Ike, they brought suit seeking damages and declaratory relief against multiple governmental entities, officials, and others. In June 2011, the trial court granted the motion to dismiss, plea to the jurisdiction, and motion for summary judgment of appellees South East Texas Regional Planning Commission, Jefferson County Appraisal District (JCAD), Roland R. Bieber, and Jefferson County Drainage District No. 6.1Appellants raise five issues on appeal, challenging the trial court's ruling. For the reasons that follow, we overrule appellants' issues and affirm the trial court's order.2
BACKGROUND
Appellants filed suit on September 13, 2010, against 24 defendants, including the State of Texas, local governmental entities and officials, private companies, and individual surveyors. Appellants asserted the same federal and state causes of action against each defendant based upon their alleged actions and inactions surrounding appellants' property damage sustained during Hurricane Ike. The causes of action were: (i) federal statutory and constitutional claims, see U.S. Const. amend. I, V; 42 U.S.C. §§ 1983, 1985, 1988, 5121-5207; (ii) state statutory and constitutional claims, see Tex. Const. art. I, § 17; Tex. Bus. & Com. Code §§ 17.46-59 (DTPA), 27.01 (real estate fraud); Tex. Loc. Gov't Code §§ 271.001-.907; (iii) fraud; (iv) breach of contract; (v) fraud in the inducement of a contract; (vi) negligence and gross negligence; (vii) civil conspiracy; and (viii) claims for declaratory relief, see Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 (UDJA).3
Appellants factually pleaded that their homes were built in the 100-year flood plain as a result of the "mishandling of information about the elevation of their homes by JeffersonCounty officials, surveyors and others"; the defendants published, approved, and concealed false flood plain and elevation data prior to Hurricane Ike; and the defendants failed to warn appellants despite knowing that the elevations concerning their properties were incorrect. Appellants also sought damages arising out of their participation in a Federal Emergency Management Agency (FEMA) flood buyout program. As part of this program, appellants, except appellant Drew Potter, sold their property to Jefferson County. Appellants alleged that defendants misled them and that funds were available to pay additional amounts to them for their property but were used for other purposes. Appellants alleged: "FEMA agreed to pay the statutory maximum of 75% of the value of each of the Plaintiffs' homes and the State of Texas was obligated to pay the remaining 25% from funds made available by the state." They sought a declaration that "the State of Texas [was] required to pay to Plaintiffs the 25% matching funds in the FEMA buyout and a mandate that the Texas Comptroller of Public Accounts make such payment instanter."
In January 2011, appellees filed a plea to the jurisdiction, motion to dismiss, and motion for traditional and no-evidence summary judgment. The local governmental entities asserted governmental immunity with respect to the state claims, and Bieber, the Chief Appraiser for JCAD, asserted official and qualified immunity from appellants' claims. They sought to have the state claims asserted against Bieber dismissed based upon the election of remedies section of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code § 101.106(e). They further asserted that, "as a matter of law," they "were entitled to summary judgment on all claims alleged by Plaintiffs as the pleadings, evidence, and lack of evidence, do not specifically plead, or establish, a claim against Defendants under the statutes, constitutional or common law causes of action pled."
Appellants filed a response to appellees' plea to the jurisdiction, motion to dismiss, and motion for traditional and no-evidence summary judgment in June 2011. One of their arguments was that appellees' motion was improper because they should have filed special exceptions. Attached to their response was a preliminary report dated March 26, 2009, by the Governor's Commission for Disaster Recovery and Renewal. Appellees filed a reply and addressed appellants' contention that they should have filed special exceptions. They argued that appellants should not be allowed an opportunity to amend their pleadings because they had failed to show how they would amend their pleadings to plead a viable claim against appellees and that repleading in this case would serve no legitimate purpose.
After a hearing, the trial court granted appellees' plea and motions. After the trial court's order became final, this appeal followed.
ANALYSIS
Appellants raise five issues on appeal. They contend: (i) they have a private cause of action under the Stafford Act, (ii) appellees were required to have special exceptions sustained prior to having appellants' suit dismissed for failure to state a claim, (iii) Texas immunity law does not protect appellees from liability for each of the causes of action appellants asserted, (iv) provisions of chapter 271 of the local government code allow suit against local government entities and their employees, and (v) the immunity defense is "abrogated" because the statutes at issue required ministerial acts.
Special Exceptions
We begin with appellants' second issue. Appellants argue that appellees' motion was "essentially no more than a tarted-up Special Exception," that appellees may not bypass the special exceptions requirement, and that the trial court should not have granted appellees' motion without first requiring appellees to have special exceptions sustained. See Tex. R. Civ. P. 91 (). Appellees counter that their plea to the jurisdiction and motion to dismiss were not based upon the pleading's lack of clarity but appellants' failure to allege an actionable claim against appellees. Appellees challenged the trial court's jurisdiction to hear appellants' claims, as factually pleaded, based upon, among other grounds, governmental and official immunity.
"A plea to the jurisdiction is a dilatory plea, the purpose of which is generally to defeat an action 'without regard to whether the claims asserted have merit.'" Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). A plea to the jurisdiction may be based solely on the plaintiffs' pleadings. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). "Typically, the plea challenges whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case." Garcia, 372 S.W.3d at 635 (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)); see Miranda, 133 S.W.3d at 226 ().
Governmental immunity, which is properly asserted in a plea to the jurisdiction, deprives a trial court of subject matter jurisdiction in suits against political subdivisions of the State unless the political subdivision consents to suit. See Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (per curiam) (); Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009) (); Miranda, 133 S.W.3d at 225-26 ().
Similarly, a governmental official may seek dismissal in a plea to the jurisdiction. "Under Texas law, a suit against a government employee in his official capacity is a suit against his government employer with one exception: an action alleging that the employee acted ultra vires." Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011); see also City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009) ().4 "With that exception, an employee sued in his official capacity has the same governmental immunity, derivatively as his government employer." Franka, 332 S.W.3d at 382-83. A government employee sued in hisindividual capacity also may assert official or qualified immunity. Official immunity protects public employees "'from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.'" Id. at 383 (quoting City of Lancaster v. Chambers, 883 S.W.2d...
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