Bexar Metropolitan Water District v. Alfred V. Evans, Jr., Individually, et al.--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00133-CV
BEXAR METROPOLITAN WATER DISTRICT,
Appellant
v.
Alfred V. EVANS, Individually and on Behalf of the Estate of
Coralie Ruth Evans, Deceased; Alfred L. Evans; Susan Elizabeth Tripp; Larry Tripp;
John E. Swaney; Francis M. Gomez, Individually and on Behalf of the Estate of
John Alonzo Gomez, Deceased; Philip J. Gomez; Patrick M. Gomez;
Rudy S. Martinez; and Alice P. Martinez,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-11755
Honorable Karen H. Pozza, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: September 5, 2007

 

REVERSED AND RENDERED

Bexar Metropolitan Water District appeals the trial court's order denying its plea to the jurisdiction. We reverse and render judgment dismissing the claims against Bexar Metropolitan Water District for lack of jurisdiction.

Factual and Procedural Background

The underlying lawsuit was filed after an outbreak of Legionnaire's disease at a hospital in San Antonio during May and June 2006. Alfred V. Evans, Jr. and seven other plaintiffs (jointly referred to as "Evans") alleged the outbreak resulted from the congruence of several factors-- disruption of the building water system that caused water to stagnate; failure of the water heating system that caused water to be delivered throughout the hospital at temperatures well below the range required to kill bacteria; and delivery of water to the hospital by Bexar Metropolitan Water District ("the Water District") that contained an inadequate amount of chlorine. Evans alleged the inadequate chlorination was due to the Water District's agents' or employees' negligence and that governmental immunity was waived by section 101.021(2) of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) (Vernon 2005) (waiving governmental unit's immunity for claims relating to the negligent condition or use of tangible personal property).

The Water District filed a plea to the jurisdiction contending Evans could not establish the jurisdictional facts required to waive governmental immunity under the Tort Claims Act. Specifically, the Water District argued the residual concentration level of chlorine in the water distribution system during the relevant period of time met the requirements set by the Texas Commission on Environmental Quality ("TCEQ"). The Water District attached evidence in support of its plea and argued there was no fact issue as to whether it breached its duty. (1) The Water District also contended the court had no jurisdiction over the claims of plaintiffs Rudy and Alice Martinez because it did not have timely actual or written notice of their claims. See id. 101.101 (requiring notice); Tex. Gov't Code Ann. 311.034 (Vernon Supp. 2006) (failure to give statutory notice deprives court of jurisdiction). Evans filed a response arguing the petition alleged facts sufficient to bring the cause of action within the limited waiver of immunity in the Tort Claims Act and that whether the Water District breached its duty of care by inadequately chlorinating the water was a fact issue to be tried. Evans argued the Water District had actual notice of the Martinezes' claims by virtue of the demand letters sent to the Water District on behalf of the other plaintiffs. The only evidence Evans submitted with his response were copies of the demand letters. The trial court denied the Water District's plea and this interlocutory appeal was filed. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2006).

Applicable Law

The Water District is a political subdivision of this state that performs only governmental functions. See Bexar Metro. Water Dist. v. Educ. and Econ. Dev. Joint Venture, 220 S.W.3d 25, 28 (Tex. App.-San Antonio 2006, pet. filed). It therefore has governmental immunity from suit in the absence of a clear and unambiguous waiver. See Kerrville State Hosp. v. Fernandez, 281 S.W.3d 1, 3 (Tex. 2000). Governmental immunity from suit deprives a trial court of subject matter jurisdiction. See Miranda v. Tex. Dep't of Parks & Wildlife, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Legislature waived governmental units' immunity from suit in the Texas Tort Claims Act, "to the extent of liability created by this chapter." Tex. Civ. Prac. & Rem. Code Ann. 101.025(a) (Vernon 2005). Thus, under the Tort Claims Act's "unique statutory scheme," a governmental unit's immunity from suit is waived only if its immunity from liability is waived by the Act. See Miranda, 133 S.W.3d at 224-25. Because immunity from suit and immunity from liability are coextensive under the Texas Tort Claims Act, a governmental unit's plea to the jurisdiction challenging the existence of jurisdictional facts may implicate the merits of the plaintiff's cause of action. See, e.g., id.; Brazoria County v. Colquitt, 226 S.W.3d 551, 554-56 (Tex. App.-Houston [1st Dist.] 2007, no pet.).

When a plea to the jurisdiction challenges the existence of jurisdictional facts and implicates the merits of the plaintiff's cause of action, the parties may submit evidence if necessary to resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227. The trial court reviews the relevant evidence to determine if a fact issue exists by applying a standard that "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. at 228. If the governmental unit supports its assertion of lack of jurisdiction with evidence meeting the summary judgment standard of proof, the burden shifts to the plaintiff to submit evidence showing there is a disputed material fact regarding the jurisdictional issue. Id. "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Id. at 227-28.

We review the trial court's ruling de novo. Id. When evidence implicating the merits of the case is submitted to the trial court on the jurisdictional issues, "we take as true all evidence favorable to the nonmovant" and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. at 228.

Discussion
The Evidence

The Water District concedes Evans's pleadings sufficiently allege a waiver of immunity for personal injury or death caused by the negligent use or condition of personal property. See Tex. Civ. Prac. & Rem. Code Ann. 101.021(2). It argues the trial court erred in denying its plea to the jurisdiction because the Water District conclusively established it complied with its duty to chlorinate the water; accordingly, it was not negligent and retains its immunity from liability and suit.

The TCEQ requires the Water District to disinfect the water in its distribution system. See 30 Tex. Admin. Code 290.110 (2007) (Tex. Comm'n on Envtl. Quality, Public Drinking Water). The "distribution system" includes Bexar Met's pump stations, storage tanks, potable water mains, and potable water service lines up to, but not including, the water customer's service lines. Id. 290.38(15). To accomplish this, the Water District injects the water with free chlorine. TCEQ regulations require the residual disinfectant concentration in the water entering the distribution system and in the water within the distribution system to be at least 0.2mg/L free chlorine. Id. 290.110(b) (2), (4). The Water District is required to monitor the disinfectant residual at representative locations in the distribution system at least once a day. Id. 290.110(c)(5)(B). It must also monitor the residual disinfectant concentration each time a bacteriological sample is collected. Id. 290.110(c)(5)(D).

In support of its plea to the jurisdiction, the Water District submitted affidavits from Scott Okland, its Production Manager, and Rogelio Placencia, its Water Quality Manager. Okland testified he oversees the injection of free chlorine in the water as it comes from ground water pumps. The water is then sent to ground storage tanks, the entry point of the distribution system. Okland testified technicians check the chlorine residual at the entry point on a daily basis and record the information on a Daily Operator Read Sheet. Attached to the affidavit are the Daily Operator Read Sheets for the months of April, May, and June 2006 for the two water plants that serve the hospital. The records reflect residual levels of greater than 0.2mg/L free chlorine for each day.

Rogelio Placencia testified that as the Water District's Water Quality Manager he oversees the Monitoring Plan for the wells that provide the water to the plants that serve the hospital. He testified that to determine the residual concentration level within the distribution system, a sample is collected daily at different locations throughout the distribution system. Among the business records attached to Placencia's affidavit are the Water District's "Disinfectant Level Quarterly Operating Reports" ("DLQORs") for the first and second quarters of 2006. The DLQORs are signed and certified by Placencia and indicate they were filed with the TCEQ. In these reports, the Water District certifies that the disinfectant residual in its water system for each month from January through June 2006 never fell below the minimum requirement of 0.2mg/L free chlorine. Placencia also attached the Water District's "Daily Disinfectant Residual Worksheets" for April, May, and June 2006. These worksheets record the daily samples taken of water within the distribution system and identify the date, the sample site, and the residual concentration found. The worksheets reflect the lowest residual found in the samples for the three months was 0.8mg/L free chlorine. Placencia also submitted copies of "Drinking Water Sample Identification Sheets," which are completed when bacteriological samples are collected from different locations within the distribution system. There are two sheets for each weekday during the months of April through June 2006, and each includes a record of the disinfectant residual concentration found when the bacteriological sample was collected. None of the samples is below 0.2mg/L free chlorine.

Evans did not attach or cite to any evidence on this issue in his response to the Water District's plea.

Analysis

We must examine this evidence to determine whether it establishes the Water District complied with its duty to chlorinate the water in the distribution system that served the hospital. See Miranda, 133 S.W.3d at 232. Okland's affidavit and the attached documents establish that the residual disinfectant concentration in the water entering the distribution system on each day during the relevant time period exceeded 0.2mg/L free chlorine. Placencia's affidavit and the attached documents established that the water within the distribution system serving the hospital was monitored daily in accordance with TCEQ regulations and that the residual disinfectant concentration within the distribution system for the months of January through June 2006 never fell below the minimum required level of 0.2mg/L free chlorine.

Evans argues this evidence does not establish that the water delivered to the hospital contained the minimum required residual disinfectant concentration because none of the samples in the evidence were taken at the point where the Water District's service lines meet the hospital's service lines. Evans contends the proffered evidence thus fails to establish the Water District's claim of immunity. We disagree. The DLQORs certify that the disinfectant residuals in the water distribution system as a whole exceeded the minimum required levels during the relevant period of time. Because the distribution system includes the point where the Water District's service lines meet the hospital's service lines, it was incumbent on Evans to bring forward some evidence raising a fact question on this issue.

Evans argues a fact issue is raised by the allegation in its petition that "[w]hen the outbreak of Legionnaires' disease was identified, the water being provided the hospital by [the Water District] was analyzed [and] [i]t was discovered that the chlorine level was far below those levels required to control bacterial growth and proliferation." However, an allegation in the petition is insufficient. See Miranda, 133 S.W.3d at 221 ("if the plaintiffs' factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction"). Evans did not attach any evidence supporting its allegation in its response to the plea nor does it cite to any supporting evidence in the record.

Evans also suggests the plea to the jurisdiction was properly denied because at the time Evans responded to the plea, he had not had the opportunity to depose Okland or Placencia and had not received responses to discovery requests from the Water District. (2) However, Evans did not move for a continuance of the hearing on this ground nor did he request any targeted discovery on the jurisdictional issues. Moreover, after the plea to the jurisdiction was filed, but before Evans filed his response, Evans entered into a Rule 11 agreement with the Water District, agreeing to extend the Water District's deadline for objecting and responding to Evans's interrogatories and requests for production until further order of the court. Under these circumstances, the trial court did not have discretion to deny the plea on the ground there had been an inadequate opportunity for discovery.

We conclude the evidence in the record establishes the Water District did not breach its duty to maintain the minimum required residual disinfectant concentration in the water entering its distribution system and within the distribution system during the relevant time period, and that Evans failed to raise a fact question regarding the Water District's alleged negligence. (3)

Conclusion

For the reasons discussed above, the Water District established it was not negligent and Evans failed to raise a fact question on that issue. Accordingly, the Water District's immunity from suit has not been waived and the trial court lacked subject matter jurisdiction over the claims against the Water District. We therefore reverse the trial court's order and dismiss Appellees' claims against the Water District for lack of jurisdiction.

Steven C. Hilbig, Justice

1. The Water District also argued that the Tort Claims Act does not waive immunity for a claim that it should have maintained chlorine levels higher than required by the TCEQ. See Tex. Civ. Prac. & Rem. Code Ann. 101.056 (Vernon 2005) (stating that Act does not apply to claims that governmental unit failed to perform an act it is not required by law to perform). At the oral argument of this appeal, Evans's attorney expressly stated that plaintiffs contend only that the Water District did not comply with the minimum requirements in the TCEQ regulations and do not contend the District had a duty to maintain higher chlorination levels than required by the regulations.

2. The Water District had responded to Evans's and other parties' requests for disclosure.

3. Because of our resolution of this issue, we need not decide whether the Water District had timely actual notice of the Martinezes' claims.