Bexar County, Texas v. Helen Bloom--Appeal from 150th Judicial District Court of Bexar County

No. 04-01-00080-CV
BEXAR COUNTY, TEXAS,
Appellant
v.
Helen BLOOM,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI12037
Honorable Pat Boone, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: May 23, 2001

AFFIRMED

Bexar County appeals from the trial court's denial of its motion for summary judgment. We affirm the trial court's order.

Factual and Procedural Background

Helen Bloom was a court reporter for a state district judge in Bexar County. Bloom left her position because of health problems, allegedly caused by "Sick Building Syndrome." Bloom brought suit under the Texas Tort Claims Act, alleging that she suffered her injuries as a result of exposure to polychlorinated biphenyls (PCBs) at the courthouse. Specifically, she claimed that her injuries arose "as a direct and proximate result of the grossly negligent maintenance and willful and wanton failure by [the County] to warn [her] of existing premises defects, ... known to exist by [the County], as well as the fraudulent concealment by [the County] of such contamination...."

The County moved for summary judgment, claiming that Bloom's suit for fraudulent concealment was barred by sovereign immunity. The trial court denied the County's motion. It is from this denial that the County appeals.

Standard of Review

The underlying purpose of Texas' summary judgment rule is to eliminate unmeritorious claims. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). Accordingly, where there is no genuine issue as to any material fact, a summary judgment movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The movant must either disprove at least one element of the plaintiff's theory of recovery, or plead and conclusively establish each element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). Once the movant establishes its right to summary judgment, the burden then shifts to the nonmovant to present issues that preclude summary judgment. See id. at 678; see also Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 430 (Tex. App. -San Antonio 1993, writ denied).

We review a summary judgment de novo. See Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 725 (Tex. App. -San Antonio 1999, pet. denied), abrogated on other grounds, Lawrence v. CDB Servs., Inc., 44 Tex. Sup. Ct. J. 555, 2001 WL 299542 (March 29, 2001). In deciding whether the nonmovant raised a fact issue to preclude summary judgment, we take evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve all doubts in the nonmovant's favor. See Nixon v. Mr. Property Management Co. Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).

Discussion

In its sole issue, the County asserts the trial court erred in denying its motion for summary judgment on sovereign immunity grounds.

Perfection of Interlocutory Appeal:

Bloom, in response, asserts that the County "has failed to show that the denial of its motion for summary judgment is an appealable order from which this interlocutory appeal may be taken." Specifically, Bloom argues that for a party to appeal from an interlocutory order, Texas Civil Practices and Remedies Code section 51.014 requires a party asserting the sovereign immunity defense to do so through a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code 51.014(a)(8) (Vernon Supp. 2001); Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999) (affirming that "governmental immunity ... is properly asserted in a plea to the jurisdiction"). Because the County asserted its affirmative defense through a motion for summary judgment, Bloom claims this appeal should be dismissed.

It is of no moment that the County filed a motion for summary judgment rather than a plea to the jurisdiction. The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Accordingly, Bloom's assertion is without merit and her challenge to our jurisdiction is rejected.

Sovereign Immunity:

The County asserted in its motion for summary judgment that Bloom's suit was barred by sovereign immunity. Governmental entities enjoy sovereign immunity to the extent it has not been waived. Salvatierra v. Via Metro. Transit Auth., 974 S.W.2d 179, 182 (Tex. App.-San Antonio 1998, pet. denied). Immunity is waived in three circumstances: (1) where the injury arises from the operation or use of a motor vehicle; (2) where the injury was caused by a condition or use of tangible personal or real property; and (3) where the claim arises from premise defects. Tex. Civ. Prac. & Rem. Code Ann. 101.021, 101.022 (Vernon 1997); Ransom v. Center for Health Care Servs., 2 S.W.3d 643, 644 (Tex. App.-San Antonio 1999, pet. denied). Waiver of immunity, however, does not extend to claims arising out of an intentional tort. Tex. Civ. Prac. & Rem. Code Ann. 101.057 (Vernon 1997). If a cause of action has not been waived and is, instead, barred by sovereign immunity, a trial court lacks subject matter jurisdiction over the suit and should dismiss the cause with prejudice. Jones, 8 S.W.3d at 638-39.

In this case, it is undisputed that the County is a governmental entity to which the doctrine of sovereign immunity applies. "When an affirmative defense like sovereign immunity is established, the burden of raising a disputed fact issue shifts to the non-movant." Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex. App.-San Antonio 1999, no pet.). This court must, therefore, examine Bloom's pleadings and may review any summary judgment evidence to determine whether Bloom raised a fact issue regarding the application of immunity. Bland, 34 S.W.3d at 554-55; Medrano, 989 S.W.2d at 144. (1) In other words, we must determine whether Bloom established that her claim falls within a waiver of immunity to which no exception applies. Medrano, 989 S.W.2d at 144.

The County asserts that Bloom's claim arises out of an intentional tort, fraudulent concealment. Sovereign immunity does not extend to claims involving intentional torts. Tex. Civ. Prac. & Rem. Code Ann. 101.057 (Vernon 1997).

Bloom, however, argues that she asserted fraudulent concealment, not as an independent cause of action, but as an affirmative defense to the County's plea of limitations. "Fraudulent concealment" is an affirmative defense to the statute of limitations, and not an independent cause of action. Mayes v. Stewart, 11 S.W.3d 440, 452 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (citing Weaver v. Witt, 561 S.W.2d 792, 793 (Tex. 1977) and Chandler v. Chandler, 991 S.W.2d 367, 394 (Tex. App.-El Paso 1999, pet. denied)).

After the County filed its motion for summary judgment, Bloom amended her pleadings. (2) In her first amended pleadings, Bloom alleges she suffers from serious personal injuries arising from her exposure to PCB contaminates from leaking light ballasts at the Bexar County Courthouse. The Texas Civil Practice and Remedies Code provides that "[i]f a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises." Tex. Civ. Prac. & Rem. Code Ann. 101.022 (Vernon1997). In her amended petition, Bloom asserts that "Bexar County breached its duty to [her] as a licensee, by maintaining the Bexar County Courthouse in a grossly negligent manner, and by failing to promptly detect, warn, and replace the leaking light ballasts..." With respect to fraudulent concealment, Bloom alleged that her "claim should not be barred by the statute of limitations based upon the fraudulent concealment of her claim by Defendant Bexar County...."

Construing Bloom's pleadings in her favor, we cannot find the trial court improperly denied the County's motion for summary judgment. Her pleadings allege claims for injuries arising from a premises defect. Bloom's fraudulent concealment pleading is for the purpose of delaying the tolling of the statute of limitations.

We overrule the County's issue and affirm the denial of the County's motion for summary judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. In Bland, the Texas Supreme Court held that the absence of subject matter jurisdiction may be challenged by a plea to the jurisdiction or other procedural vehicle, such as a motion for summary judgment. Bland, 34 S.W.2d at 554. In that case, unlike here, the defendant challenged the trial court's subject-matter jurisdiction in a plea to the jurisdiction. Id. at 550. The Court held that "a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary." Id. at 555. To the extent that the motion for summary judgment here operates similarly to a plea to the jurisdiction, challenging the trial court's jurisdiction, we must consider Bloom's pleadings and may review any evidence presented. Id. Because the summary judgment evidence presented is not relevant to this appeal, we need not consider it.

2. Bloom's original petition is not part of the appellate record.