State of Texas, Office of the Governor, Division of Emergency Management and Texas Department of State Health Services v. Metrocare EMS, LP--Appeal from 60th District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-010 CV
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STATE OF TEXAS, OFFICE OF THE GOVERNOR,
DIVISION OF EMERGENCY MANAGEMENT, and
TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Appellants
V.
METROCARE EMS, LP, Appellee
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-177,440
MEMORANDUM OPINION

The State of Texas, the Office of the Governor - Division of Emergency Management, and the Texas Department of State Health Services (collectively "the State") pursue this interlocutory appeal from a denial of its plea to the jurisdiction by the trial court. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2006). We reverse and dismiss Metrocare's suit.

Plaintiff MetroCare EMS, LP ("MetroCare") sued the State on July 31, 2006, in the nature of inverse condemnation, initially seeking a variety of damages, including "economic damages in excess of "$690,000.00[.]" See Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992) (discussion of law of inverse condemnation). A few months later, MetroCare amended its petition to add a claim pursuant to the Texas Declaratory Judgment Act. See Tex. Civ. Prac. & Rem. Code Ann. 37.001 - .011 (Vernon 1997 & Supp. 2006). MetroCare's dispute centers on additional money it claims is owed to it by the State for emergency medical services rendered to the State of Louisiana in the aftermath of Hurricane Katrina. MetroCare contends the services it provided Louisiana were in response to a proclamation issued on September 1, 2005, by Texas Governor Rick Perry under certain Texas statutory authority. See Tex. Gov't Code Ann. 418.001 - .183 (Vernon 2005 & Supp. 2006) (Texas Disaster Act); Tex. Health & Safety Code Ann. 778.001 (Vernon 2003) (Emergency Management Assistance Compact).

In its plea to the jurisdiction, the State contends, inter alia, that the true nature of MetroCare's claims is a breach of contract action, but that Metrocare's pleadings are couched in terms of an unconstitutional taking and declaratory judgment in an attempt to circumvent applicable authority to the contrary. The State reiterates this argument to us in the present appeal. MetroCare responds that the State has misinterpreted the litigation in question:

[A]ssuming the Appellee's pleadings are true, Appellee has alleged a valid declaratory judgment claim under various State statutes to declare Appellee's rights in this matter, and that claim is not barred by sovereign immunity.

 

. . . .

 

Appellant's argument in its Brief implies that somehow Appellee is trying to bring separate and distinct causes of action created under these two statutes. This is incorrect. Appellee is asserting a declaratory judgment claim asking the Court to declare its rights under these statutes, specifically, whether or not Appellee has a right to assert an eminent domain, condemnation or takings claim pursuant to these statutes (which clearly allow for such a claim by their statutory language), when Appellee's services are specifically used and commandeered under these statutes. Appellee is seeking a Declaratory Judgment from the trial court asking the Court to declare its rights under the statute.

 

Sovereign immunity from suit defeats a trial court's subject matter jurisdiction unless the State expressly consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A trial court's ruling on a plea to the jurisdiction is reviewed de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When reviewing a ruling on a plea to the jurisdiction, we must determine whether the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction. Id. In deciding whether the plaintiff has affirmatively demonstrated the trial court's subject matter jurisdiction, "we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties." See Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). Pleadings are liberally construed in favor of jurisdiction. Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804 (Tex. 1989).

The Texas Supreme Court has held that a "'private part[y] cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages, such as a contract dispute, as a declaratory judgment claim.'" City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) (quoting Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002)). Additionally, the Texas Supreme Court has made it clear that only the Texas Legislature can waive sovereign immunity from suit in a breach-of-contract claim. See City of Galveston v. State, 217 S.W.3d 466, 469-71 (Tex. 2007); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695-96 (Tex. 2003).

Like MetroCare, the plaintiff in IT-Davy sought a declaratory judgment "only in an attempt to have the trial court decide its breach-of-contract claim." IT-Davy, 74 S.W.3d at 860. However, MetroCare has neither pleaded nor produced jurisdictional evidence indicating it has legislative consent -- either by statute or resolution - - to sue the State for any additional compensation allegedly owed under any putative contract it had with the State. (1) Maintaining its declaratory judgment action is proper, MetroCare is requesting that the trial court declare MetroCare's rights under the two emergency management acts, to permit it to sue the State under inverse condemnation, a claim for which sovereign immunity does not shield the State. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (Governmental immunity did not shield the City from plaintiff's claim for the government's destruction of plaintiff's property.). However, it is firmly settled that for the Texas Legislature to have intended to waive the State's sovereign immunity, the legislative acts in question must contain a clear and unambiguous expression of the Legislature's waiver of immunity. See Taylor, 106 S.W.3d at 696.

In Taylor, the Texas Supreme Court cited a legislative enactment which read in pertinent part as follows: "'(a) A treatment facility or mental health facility that violates a provision of, or a rule adopted under, this chapter . . . is liable to a person receiving care or treatment in or from the facility who is harmed as a result of the violation. (b) A person who has been harmed by a violation may sue for injunctive relief, damages, or both.'" Taylor, 106 S.W.3d at 698 (quoting Tex. Health & Safety Code Ann. 321.003 (a)-(b) (Vernon 2001). As the Supreme Court pointed out, the statute neither expressly, nor by implication, waives the State's sovereign immunity from suit, notwithstanding the fact that relevant statutory provisions included state-operated facilities in its definition of "mental health facility." See id. at 698-99, 701. An examination of the statutes at issue reveals no language even as compelling as that discussed in Taylor, nor any that could reasonably be construed as containing a clear and unambiguous waiver of sovereign immunity. Id. at 696. See also Tex. Gov't Code Ann. 311.034 (Vernon Supp. 2006). MetroCare's characterization of its suit as a declaratory action is unsupported by the record evidence and the law.

Equally transparent is MetroCare's inverse condemnation claim pursuant to Tex. Const. art. I, 17. To establish this exception to the State's immunity from suit, a plaintiff must show that a governmental actor acted intentionally to take or damage property for a public use. See Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). Whether particular facts are enough to constitute a "taking" is a question of law. Id. The jurisdictional facts contained in the record before us fail to establish the type of intent necessary when the State acts under its eminent domain powers. See State v. Holland, 50 Tex. Sup. Ct. J. 642, 2007 WL 1163699, at *3-4 (Tex. Apr. 20, 2007) (citing Little-Tex, 39 S.W.3d at 598-99). Furthermore, the "absence of an express contract between [plaintiff] and the State, or uncertainties about the existence of an implied contract between them, are immaterial to determining the capacity in which the State is acting." Holland, 2007 WL 1163699, at *3.

The jurisdictional facts before us lead to the conclusion that, irrespective of any contract status between the parties, the State did not intend to exercise its eminent domain powers when it activated MetroCare as an emergency assistance provider to the State of Louisiana. The jurisdictional evidence originating from MetroCare clearly establishes its personnel voluntarily proceeded to Louisiana and rendered a variety of emergency services that were accepted by the State of Louisiana on behalf of its hurricane victims. See generally id. MetroCare cannot point to any record evidence, and we find none, whereby state employees or agents of the state physically confiscated emergency medical equipment or vehicles belonging to MetroCare, or involuntarily drafted or pressed into service any MetroCare personnel for use in Louisiana in furtherance of hurricane relief. Neither does the record contain any judicial or executive order, making it mandatory for all emergency medical providers in the State of Texas, or for MetroCare specifically, to immediately proceed to the State of Louisiana for hurricane relief duty, or any order imposing civil or criminal penalties on any emergency medical provider failing or refusing such duty.

Whether or not an express or implied contract between MetroCare and the State can be found, the evidence indicates MetroCare voluntarily provided emergency medical equipment and personnel to the State of Louisiana following Governor Perry's September 1, 2005, state-of-emergency proclamation. See Holland, 2007 WL 1163699, at *4. It is undisputed that MetroCare was thereafter reimbursed by the State in the amount of $460,290.38 prior to the State's securing reimbursement for its expenses from the State of Louisiana. Additional record evidence indicates that negotiations were taking place prior to September 1, 2005, in an attempt to have private emergency medical service providers agree to assist the State of Louisiana with hurricane relief.

From all of the above-discussed jurisdictional evidence, we conclude that MetroCare's declaratory judgment action is, in fact, a suit against the State for purported contractual reimbursement for which the State has not waived sovereign immunity. We further conclude that MetroCare has failed to plead and prove the appropriate requisite intent so as to raise a fact question on whether the State engaged in a "taking" of any MetroCare-owned property under its eminent domain powers. See Miranda, 133 S.W.3d at 227-28. Because an eminent-domain type of taking by the State has not been shown, the State is not subject to suit under article I, section 17 of the Texas Constitution. The trial court erred in denying the State's plea to the jurisdiction. Therefore, we reverse the trial court's order denying the State's plea to the jurisdiction and dismiss the cause for lack of jurisdiction.

REVERSED AND DISMISSED.

 

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CHARLES KREGER

Justice

 

Submitted on May 3, 2007

Opinion Delivered June 7, 2007

 

Before Gaultney, Kreger and Horton, JJ.

1. The record indicates MetroCare believed it had a firm agreement with the State on August 30, 2005, that the State would pay MetroCare "between $5,000 and $5,500 per day per staffed ALS ambulance." The State's letter to MetroCare, dated September 13, 2005, reads, in pertinent part: "This letter is to verify [] that [Texas Department of State Health Services] did activate you in the Hurricane Katrina response to provide assistance to the State of Louisiana under an Emergency Management Assistance Compact. You will be eligible for reimbursement of reasonable charges since your response was authorized by the State of Texas. We will notify you on how to submit for reimbursement once we have that information."