Donald E. Ghidoni v. Bexar Metropolitan Water District--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00377-CV
Donald E. GHIDONI,
Appellant
v.
BEXAR METROPOLITAN WATER DISTRICT,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-11069
Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 5, 2007

 

AFFIRMED

In this interlocutory appeal, we must decide whether governmental immunity bars suit against Bexar Metropolitan Water District. We hold that it does, and therefore affirm the trial court's judgment dismissing suit against Bexar Metropolitan Water District for lack of subject matter jurisdiction.

 

Factual and Procedural Background

Donald E. Ghidoni added Bexar Metropolitan Water District ("Bexar Met") as a defendant

in his lawsuit through his Fifth Amended Original Petition. (1)

Bexar Met subsequently filed an Original Answer asserting, among other things, that it was a governmental agency entitled to immunity from suit except to the extent such immunity is waived under the Texas Tort Claims Act. Ghidoni amended his pleadings again, and in his Sixth Amended Original Petition listed under "factual background" four claims against Bexar Met: (1) Bexar Met in concert with two other named defendants "induced Ghidoni to sign" a release of liability in a bankruptcy proceeding; (2) Bexar Met "conspired" with another defendant to "send Ghidoni bills for water which they did not own;" (3) Bexar Met "turned off the water and caused tens of thousands of dollars in damage to Ghidoni's plant nursery;" and (4) Bexar Met "refused to honor a freedom of information request." The petition further recited numerous causes of action against all nine named defendants collectively. (2)

Bexar Met filed a separate plea to the jurisdiction, contending the trial court had no jurisdiction because Ghidoni had not alleged a cause of action for which immunity is waived. Ghidoni responded by arguing Bexar Met had failed to produce evidence establishing its entitlement to immunity. With respect to his pleadings, Ghidoni maintained Bexar Met was not entitled to immunity for "fraud, conspiracy to commit fraud and fraudulent inducement." After hearing arguments, the trial court ruled in favor of Bexar Met, dismissing the suit for lack of subject matter jurisdiction. Ghidoni filed three motions for rehearing, all of which the trial court heard and denied. This appeal followed.

Standard of Review

A plea to the jurisdiction based on governmental immunity from suit challenges a trial court's subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We review the trial court's ruling on a plea to the jurisdiction de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In performing this review, we do not look to the merits of the case, but consider only the pleadings and the evidence relevant to the jurisdictional inquiry. Miranda, 133 S.W.3d at 227.

Analysis

We begin by addressing Ghidoni's claim that "[i]n all four hearings Bexar Met failed to produce any evidence" to support its claim of immunity. Contrary to Ghidoni's position, when suing an entity entitled to immunity, it is the plaintiff's burden to "affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). As indicated by its pleadings, Bexar Met is a governmental agency that was created pursuant to the Texas Constitution. See Tex. Const. art. XVI, 59(b) ("There may be created within the State of Texas . . . such number of conservation and reclamation districts . . . which districts shall be governmental agencies and bodies politic and corporate with such powers of government . . ."). As a governmental agency it is entitled to immunity from suit and liability unless immunity has been waived. Whitley, 104 S.W.3d at 542. Therefore, it was incumbent upon Ghidoni, not Bexar Met, to establish that immunity from suit had been waived.

Ghidoni next argues Bexar Met's governmental immunity from suit is waived under section 271.152 of the Local Government Code. See Tex. Loc. Gov't Code Ann. 271.152 (Vernon 2005). (3) We disagree. To come within the waiver of immunity contemplated by section 271.152, the plaintiff must be suing the local governmental entity based on a contract that meets the statutory definition. See Tex. Loc. Gov't Code Ann. 271.151(2) (Vernon 2005) (a "[c]ontract subject to this subchapter" is defined as "a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity"). Here, Ghidoni is not suing Bexar Met for breach of a written contract. Instead, Ghidoni seeks recovery against Bexar Met on theories of "fraud, conspiracy to commit fraud and fraudulent inducement." As reflected by his pleadings and arguments made during multiple hearings, Ghidoni maintains that Bexar Met intentionally caused him injury either directly (by turning off water or refusing to honor a freedom of information request) or by conspiring with others to do him harm. (4) Accordingly, his suit does not come within the limited waiver of section 271.152. See Tex. Loc. Gov't Code Ann. 271.152; see also Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex. 2006).

Ghidoni also contends that Bexar Met's immunity from suit is waived under section 49.066 of the Texas Water Code. Tex. Water Code Ann. 49.066 (Vernon 2000). Again, we disagree that section 49.066(a) waives Bexar Met's immunity from this lawsuit. Section 49.066(a) of the Water Code reads as follows:

A district may sue and be sued in the courts of this state in the name of the district by and through its board. A suit for contract damages may be brought against a district only on a written contract of the district approved by the district's board. . . .

Tex. Water Code Ann. 49.066(a) (Vernon 2000) (emphasis added). As previously discussed, Ghidoni's suit is simply not seeking recovery against Bexar Met on a written contract approved by Bexar Met's board. Furthermore, as noted by the Supreme Court in Tooke v. City of Mexia, the "sue and be sued" language found within section 49.066(a) does not, standing alone, constitute a waiver of immunity. See Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006); see also Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 31-32 (Tex. App.--San Antonio 2006, pet. filed).

Because Ghidoni's claims do not establish a valid waiver of immunity, we affirm the trial court's judgment dismissing this suit for lack of subject matter jurisdiction.

 

Phylis J. Speedlin, Justice

1. Ghidoni claims "Bexar Metropolitan Water District Public Facility Corporation," as a "corporation," is not subject to governmental immunity. The record confirms, however, that "Bexar Metropolitan Water District Public Facility Corporation" is not named as a defendant.

2. The causes of action pled included: "professional negligence, gross negligence, breach of fiduciary duty, fraud, conspiracy to commit fraud, cause portion of the trial proceeding . . . not to be transcribed, by conspiring to exclude evidence . . . and by conspiring not to disclose information and by falsely stating Plaintiff waved [sic] his rights and by making law which does not exist and by assigning and accepting an assignment of invalid Judgment by ignoring and by depriving Plaintiff of his Inalible [sic] Rights under the Texas Constitution Bill of Rights . . . by conspiring to prevent ongoing litigation to go to trial and by selling the litigation to the defendants with the purpose of depriving Plaintiff of his land and water rights, paying employee wages, filling [sic] false pleadings, committing perjury by filing false affidavits, fraud, fraudulent inducement to sign a contract and conspiracy to commit fraud with [fifteen named individuals or entities]."

3. Section 271.152 of the Texas Local Government Code reads as follows:

 

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.

Tex. Local Gov't Code Ann. 271.152.

4. We note that the Texas Tort Claims Act waives immunity from suit in limited circumstances not relevant to the case at issue. See Tex. Civ. Prac. & Rem. Code Ann. 101.021, 101.025 (Vernon 2005). In addition, the Act does not waive immunity for intentional torts or authorize exemplary damages. See Tex. Civ. Prac. & Rem. Code Ann. 101.057 (immunity from intentional tort not waived), 101.024 (exemplary damages not authorized) (Vernon 2005).