State v. Sledge

• Citation: 36 S.W.3d 152
• Parties: <!--36 S.W.3d 152 (Tex.App.-Houston 2000) THE STATE OF TEXAS, Appellant v. WILLIAM ROGER SLEDGE, PAULA S. MARTIN, and SUSAN A. KASPER, Appellees NO. 01-00-00372-CV In The Court of Appeals For The First District of Texas
• Decision Date: 28 December 2000
• Court: Texas Court of Appeals

Page 152

36 S.W.3d 152 (Tex.App.-Houston [1st Dist.] 2000)

THE STATE OF TEXAS, Appellant v WILLIAM ROGER SLEDGE, PAULA S. MARTIN, and SUSAN A. KASPER, Appellees

NO. 01-00-00372-CV

In The Court of Appeals For The First District of Texas.

December 28, 2000

Rehearing Overruled Jan. 19, 2001.

On Appeal from the County Court at Law No. 3 and Probate Court of Brazoria County, Texas Trial Court Cause No. 16,698B-1

[Copyrighted Material Omitted] Panel consists of Justices O'Connor, Hedges, and Price. ^*

OPINION

O'Connor, Justice.

This is an interlocutory appeal arising from the trial court's denial of the State of Texas's plea to the jurisdiction asserting sovereign immunity from suit against a counterclaim ¹ filed by William L. Sledge ² for damages for "pre-condemnation taking." Reduced to its simplest terms, the issue is whether the State of Texas can be sued for actions of the United States Army Corps of Engineers that damaged land belonging to Sledge. We hold it cannot, and reverse and render judgment for the State.

Background

In 1968, Sledge purchased four acres of land along the Gulf Intracoastal Waterway in Brazoria County at a sheriff's sale for $1,000. Since about 1939, the United States Army Corps of Engineers had intermittently deposited dredged material from the waterway on the land. As a result of those deposits, the four acres became 16 acres by accretion.

In 1989, the State petitioned to condemn Sledge's property. The State assumed Sledge had legal title to the four acres "together with accretions," for a total of 16.451 acres. The commission awarded Sledge $76,436 for the property. The State filed objections and appealed the award to the county court at law. In county court, Sledge filed a counterclaim against the State seeking damages for the dredging activity conducted on his property by the Corps between 1978 and 1989. In response, the State filed a plea to the jurisdiction asserting sovereign immunity from suit against any counterclaim for damages for pre-condemnation trespass by the Corps.

In response to Sledge's counterclaim, the State reassessed its earlier assumption that Sledge owned the entire 16.451 acres. Ultimately, the State concluded Sledge only had record title to the four acres he purchased at the sheriff's sale. Therefore, in 1990 the State filed an amended petition seeking to reduce the condemnation to the four-acre tract, and thus reduce the award. The State reasoned it should not be required to pay Sledge for the accreted land, which the State believed it owned.

In 1992, Sledge filed an amended counterclaim and a motion for frivolous claims. In his counterclaim, Sledge asked for damages as interest on the commissioners' award from 1978 to 1989, the date of the commissioners' award. The county court affirmed the commissioners' award of $79,436 for the property and severed Sledge's counterclaim from the condemnation action.

Nothing happened in Sledge's counterclaim for four years. Sometime in 1996, after the State inadvertently missed a hearing date, the county court rendered a default judgment for Sledge for $204,547.53, which included pre-judgment interest on the commissioners' award, calculated from 1978 to 1989, the date of the commissioners' award. That judgment was reversed by the Fourteenth Court of Appeals, which held the county court abused its discretion in denying the State's motion to reinstate. State v. Sledge, 982 S.W.2d 911, 913 (Tex. App.--Houston [14th Dist.] 1998, no pet.).

After the case was reinstated on the county court's docket, the State renewed its plea to the jurisdiction. After a hearing the county court denied the plea. At that hearing, Sledge stipulated he sought damages (1) in his counterclaim for pre-judgment interest on the $76,436 from 1978 to 1989, the date of the commissioners' award, and (2) additional damages in his motion for frivolous suit.

Jurisdiction

Immunity from suit bars an action against the State unless the State expressly consents to the suit. Texas Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The party suing the governmental entity must establish the State's consent, which may be alleged either by reference to a statute or to express legislative permission. See Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970). A trial court does not have subject matter jurisdiction over a suit against the State unless the State has consented to suit. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 403 (Tex. 1997); Hosner v. DeYoung, 1 Tex. 764, 769 (1847). The State contests a trial court's subject matter jurisdiction by filing a plea to the jurisdiction. Jones, 8 S.W.3d at 638.

The purpose of a plea to the jurisdiction is to defeat a cause of action based on lack of jurisdiction, without regard to the merits of the claim. Bland ISD v. Blue, 34 S.W.3d 547 (Tex.2000). In a plea to the jurisdiction, a defendant contends that, even if all the allegations in a plaintiff's pleadings are true, there is an incurable jurisdictional defect that prevents the court from hearing the case on the merits. Id. at 553. To determine whether the court has jurisdiction, the court is not required to look solely at the pleadings, but may consider evidence to prove the jurisdictional facts. Id. at 554. A plea to the jurisdiction can be resolved by considering evidence on issues that are "primarily jurisdictional." Id.

In this case, the State pursued the issue of jurisdiction in both a plea to the jurisdiction and a motion for summary judgment. The record in this case is voluminous (2,738 pages), and consists of evidence in the form of affidavits, evidence received at hearings, exhibits, and a stipulation by Sledge.

A. Counterclaim for Damages

In issue one, the State argues the county court should have granted its plea to the jurisdiction based on sovereign immunity.

Sledge's claim for pre-judgment interest on the commissioners' award is based on pre-condemnation dredging activity conducted by the Corps of Engineers, not by the State. The issue is whether the State is vicariously liable for the dredging activities conducted by the Corps of Engineers on land later condemned by the State.

In his brief, Sledge claims that by filing the condemnation suit, the State waived sovereign immunity from suit for the condemnation action and all of the relief provided by Property Code chapter 21, "Eminent Domain," which, he contends, includes "pre-judgment interest for pre-condemnation entry." The State acknowledges the Texas Constitution waives immunity for condemnation proceedings. Tex. Const. art. 1, §17. Notwithstanding that waiver, the State contends Sledge has no claim for pre-judgment interest for pre-condemnation entry. As part of its argument, the State suggests Sledge's claim is actually for inverse condemnation, to which Sledge is not entitled, or for pre-condemnation trespass, an intentional tort excluded from the waiver of immunity in the Texas Tort Claims Act. ³

1. Pre-judgment interest for pre-condemnation entry

Sledge contends his claim for pre-condemnation injury permits him to recover pre-judgment interest for pre-condemnation entry. He argues his suit is authorized by Property Code chapter 21, "Eminent Domain." which governs all issues relating to condemnation. Sledge does not identify any particular section in Chapter 21 that authorizes pre-judgment interest for pre-condemnation injury.

For authority, Sledge points us to case law, citing three cases, Hartford Steam Boiler Insp. & Ins. Co. v. State, 729 S.W.2d 372 (Tex. App.--Austin 1987, writ ref'd n.r.e.), City of Waco v. Texas Coffin Co., 472 S.W.2d 800 (Tex. App.--Waco 1971, writ ref'd n.r.e.), and City of Sweetwater v. McEntyre, 232 S.W.2d 434 (Tex. App.--Eastland 1950, writ ref'd n.r.e.). None of the cases supports his argument that he is entitled to sue the State to recover pre-judgment interest for pre-condemnation injury. ⁴

The issue that none of the cases cited by Sledge addresses, is whether the State waived immunity from suit for Sledge's claim. Both parties agree the State has no immunity from suit for the condemnation suit and any related claims. Sledge claims that, because the State's immunity from suit is waived for a condemnation claim, he does not have a problem of immunity from suit for his claim. The question, in simple terms, is whether a party can use the waiver of immunity from suit for claim A, to sue the State for claim B? The answer is no. A party who sues the State must have an independent waiver of immunity from suit for each claim in the suit.

Here, Sledge cannot argue that his claim against the State is so closely related to the condemnation action that the waiver of suit for the condemnation action applies to his claim, and at the same time argue his claim is sufficiently different from the condemnation action to be a separate claim. The only damages to which Sledge was entitled for the taking of his land were those he received in the condemnation action.

Sledge's proposal for calculating "pre-judgment interest" betrays his goal, which is to recover additional compensation for the condemnation of his property, not interest on the condemnation award. By Sledge's calculations, he should recover pre-judgment interest on the commissioners' court award made in 1989 (not 1978) and retroactively calculate 10% from 1989 back to 1978. If Sledge had a legitimate claim for pre-judgment interest, it would have been calculated from 1978 and incorporated into the award, not calculated backwards and awarded in addition to the final award.

Sledge's claim for pre-judgment interest is a claim for damages outside the condemnation proceedings for which Sledge has not provided authority to show the State waived its immunity from suit.

2. "Takings" claim

Sledge contends he has a valid "takings" (inverse condemnation) claim against the State for the acts of the Corps when it deposited dredged material on his property....