City of Corpus Christi v. Bacilia Trevino Appeal from County Court at Law No 3 of Nueces County (memorandum opinion)

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NUMBER 13-18-00442-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG CITY OF CORPUS CHRISTI, Appellant, v. BACILIA TREVINO, Appellee. On appeal from County Court at Law No. 3 of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Perkes Memorandum Opinion by Justice Perkes Appellee Becilia Trevino filed suit against appellant, the City of Corpus Christi (City), alleging several causes of action after the City issued a boil-water advisory. The trial court denied the City’s plea to the jurisdiction and the City argues by one issue on appeal that the trial court erred. We affirm in part and reverse and render in part. I. BACKGROUND The City provides water services for its residents. In May 2016, the City issued a twelve-day water boil advisory. Trevino, a City resident, sued the City in May 2018, alleging that she “was out of water for two weeks and was forced to pay for services she was not receiving.” She alleged causes of action for negligent misrepresentation, negligence, common law fraud, breach of contract, and “violation of [Trevino’s] civil rights pursuant to the Civil Rights Statute.” Trevino also announced her intent to have the case certified as a class action. The trial court denied the City’s multifaceted plea to the jurisdiction and this interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). II. APPLICABLE LAW “Sovereign immunity protects the State from lawsuits for money damages.” Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 853 (Tex. 2002). “Political subdivisions of the state, including cities, are entitled to such immunity—referred to as governmental immunity—unless it has been waived.” Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). “[T]o waive immunity, consent to suit must ordinarily be found in a constitutional provision or legislative enactment.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” TEX. GOV’T CODE ANN. § 311.034. “In Texas, governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from 2 suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) (internal citation omitted) (citing Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003)). While immunity from liability is an affirmative defense, immunity from suit deprives a trial court of subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam) (citing Amador v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex. App.—San Antonio 1999, pet. denied)). “As a general proposition, before a court may address the merits of any case, the court must have jurisdiction over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular judgment, and capacity to act as a court.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Immunity from suit protects governmental units from expending tax resources to defend lawsuits. Reata, 197 S.W.3d at 375 (citing IT–Davy, 74 S.W.3d at 854). Thus, “a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). “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.” Jones, 8 S.W.3d at 638 (citing Mo. Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex.1970)). “Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo.” Miranda, 133 S.W.3d at 226. 3 III. ANALYSIS We construe Trevino’s pleaded allegations liberally to determine whether they allege facts that establish a waiver of governmental immunity. See Harris County v. Annab, 547 S.W.3d 609, 612–13 (Tex. 2018). Because the City’s plea to the jurisdiction was based on Trevino’s pleadings, we accept the pleaded facts as true. See id. If the pleadings “conclusively negate the existence of jurisdiction[,] . . . the suit should be dismissed.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). A. Negligent Misrepresentation and Negligence Claims Without further explanation, Trevino’s petition alleges that “her health was jeopardized” by the City’s negligence. Her counsel explained during oral argument before this Court that the City had a duty to provide safe drinking water and Trevino, an elderly woman, drank un-boiled water during the advisory, causing her personal injury such as nausea. Trevino also alleges negligent misrepresentation “since [the City] failed to provide water to [Trevino] according to their contract.” Trevino relies on § 101.0215(a) of the Texas Tort Claims Act (TTCA) for the proposition that governmental immunity is waived for all claims arising out of a city’s performance of governmental functions. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a). To the contrary, § 101.0215(a) provides that “[a] municipality is liable under this chapter for damages arising from its governmental functions,” id. (emphasis added), which includes water service. Id. § 101.0215(a)(32). 4 Trevino fails to direct us to any waiver of immunity under the TTCA that would apply to her negligent misrepresentation claim, and we find none. The [TTCA] expressly waives sovereign immunity for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1); see County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002) (quoting Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000)). A plaintiff alleging negligent misrepresentation must establish, among other things, that the defendant supplied false information, typically of an existing fact, for the guidance of others and the defendant did not exercise reasonable care or competence in obtaining or communicating the information. McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999). The negligent use of information does not constitute “use of tangible personal . . . property.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (emphasis added); see also Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994) (“[I]nformation itself is an abstract concept, lacking corporeal, physical, or palpable qualities. Information thus, is intangible; the fact that information is recorded in writing does not render the information 5 tangible property.”) (citing Jefferson County v. Sterk, 830 S.W.2d 260, 262 (Tex. App.— Beaumont 1992, writ denied)). Therefore, the trial court erred in denying the City’s jurisdictional challenge to Trevino’s claim for negligent misrepresentation. See Rusk State Hosp., 392 S.W.3d at 96; see also Harris County v. Sykes, 136 S.W.3d 635, 637 (Tex. 2004) (“We hold that such a dismissal is with prejudice because it fully and finally adjudicates whether the claims that were asserted, or that could have been asserted, come within the [TTCA]’s waiver of sovereign immunity.”) However, whether the water was potable constitutes the “condition” of the water. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); Webb County v. Sandoval, 88 S.W.3d 290, 295 (Tex. App.—San Antonio 2002, no pet.) (“The size of the chicken nuggets and their hard nature due to being overcooked constitutes the ‘condition’ of the nuggets or their particular mode or state of being.”); see also Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex. 2009) (per curiam) (“For a defective condition to be the basis for a complaint, the defect must pose a hazard in the intended and ordinary use of the property.”). We therefore conclude Trevino alleged a viable negligence claim for personal injury under the TTCA based on the condition of the water. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). The City argued in the alternative, though, that the trial court lacked jurisdiction because Trevino failed to comply with the TTCA’s notice requirement. See id. § 101.101. We agree. A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that incident giving rise to the claim occurred. The notice must reasonably describe: (1) the 6 damage or injury claimed; (2) the time and place of the incident; and (3) the incident. Id. § 101.101(a). This notice requirement is jurisdictional. Colquitt v. Brazoria County, 324 S.W.3d 539, 543 (Tex. 2010) (per curiam) (“[T]he notice requirement of the [TTCA] is a statutory prerequisite to the government’s immunity waiver and is, according to the Code Construction Act, now jurisdictional.”); see also TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”). Trevino acknowledges that she did not present the City with formal written notice of her claim within six months but counters that the City had actual notice of her claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(c) (“The notice requirements . . . do not apply if the governmental unit has actual notice . . . that the claimant has received some injury . . . .”). Trevino relies on the issuance of the boil-water advisory itself as proof of actual notice. But “actual notice to a governmental unit requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damages; and (3) the identity of the parties.” Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). The City’s notice to the public at large about a potential health hazard does not constitute actual notice that Trevino subsequently suffered an injury from that hazard. See id. Finally, Trevino argues that the City was performing a proprietary function, which, if true, would take her claim outside the TTCA and its notice requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(b) (“This chapter does not apply to the liability of a municipality for damages arising from its proprietary functions . . . .”). Trevino asserts 7 that, although “water and sewer service” is one of the governmental functions enumerated in the TTCA, see id. § 101.0215(a)(32), water service also constitutes a “public utility,” one of the enumerated proprietary functions. See id. § 101.0215(b)(1) (defining proprietary function to include “the operation and maintenance of a public utility”). This seeming conflict is resolved by the plain language of the statute. “The proprietary functions of a municipality do not include those governmental activities listed under Subsection (a).” Id. § 101.0215(c). Thus, the Legislature excepted water service from “the operation and maintenance of a public utility.” Id. § 101.0215(b)(1). And as such, Trevino’s negligence claim for personal injury caused by the condition of the water was subject to the TTCA’s notice requirements. See id. § 101.101. Because Trevino did not satisfy these requirements, the trial court erred in denying the City’s jurisdictional challenge to her negligence claim. See Colquitt, 324 S.W.3d at 543; Sykes, 136 S.W.3d at 637. B. Fraud Claims Trevino also alleges the City committed common-law fraud by charging her for services she did not receive. Similarly, she alleges the City’s failure to provide water according to the terms of their contract constituted fraudulent misrepresentation. The TTCA specially excepts intentional torts from its limited waiver of immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (“This chapter does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any other intentional tort . . . .”) (emphasis added); City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014) (“The [TTCA] waives governmental immunity for certain negligent conduct, but it 8 does not waive immunity for claims arising out of intentional torts . . . .”). Accordingly, the TTCA does not waive immunity from fraud claims because fraud is an intentional tort. LTTS Charter Sch., Inc. v. Palasota, 362 S.W.3d 202, 209 (Tex. App.—Dallas 2012, no pet.); Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 219 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Sanders v. City of Grapevine, 218 S.W.3d 772, 779 (Tex. App.— Fort Worth 2007, pet. denied); Gen. Elec. Co. v. City of Abilene, 795 S.W.2d 311, 313 (Tex. App.—Eastland 1990, no writ). The trial court erred in denying the City’s jurisdictional challenge to Trevino’s fraud claims. See Rusk State Hosp., 392 S.W.3d at 96; Sykes, 136 S.W.3d at 637. C. Breach of Contract Trevino alleges “[t]he [City] had a duty to provide water to [Trevino] and did not do that, thereby breaching their [sic] contract with [Trevino].” A governmental unit that enters a contract waives immunity from liability, but not immunity from suit. Tooke, 197 S.W.3d at 332 (citing Catalina Dev., 121 S.W.3d at 705–06). Chapter 271 of the Local Government Code provides a limited waiver of immunity from suit when a local governmental entity “enters into a contract subject to this subchapter,” TEX. LOC. GOV’T CODE ANN. § 271.152, defined as “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity.” Id. § 271.151(2). The agreement between Trevino and the City does not fall under this waiver because the City was providing goods or services to Trevino. §§ 271.151(2), 271.152. 9 See id. Trevino argues that her breach of contract claim is not subject to governmental immunity in the first instance because the City was performing a proprietary function. See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 439 (Tex. 2016) (“We therefore hold that the common-law distinction between governmental and proprietary acts—known as the proprietary-governmental dichotomy—applies in the contract-claims context just as it does in the tort-claims context.”). We have already determined that the City was performing one of the TTCA’s enumerated governmental functions by providing Trevino water services, see TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(32), and that determination forecloses Trevino’s argument. See Wasson, 489 S.W.3d at 439 (“Although the TTCA was enacted with the tort-claims context in mind, we see no reason its definitional guidance cannot or should not also apply in the contract-claims context. In determining the boundaries of immunity as it relates to whether a function is proprietary or governmental, therefore, courts should be guided—as we are today—by the TTCA’s treatment of the proprietary-governmental distinction.”) (internal citation omitted). The trial court erred in denying the City’s jurisdictional challenge to Trevino’s breach of contract claim. See Rusk State Hosp., 392 S.W.3d at 96; Sykes, 136 S.W.3d at 637. D. Civil Rights Violations In response to the City’s plea, Trevino filed an amended petition alleging for the first time that the City violated her “civil rights pursuant to the Civil Rights Statute.” See Monell v. N.Y.C. Dep’t of Social Servs., 436 U.S. 658, 690 (1978) (“Local governing bodies, therefore, can be sued directly under [42 U.S.C.] § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be 10 unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.”) (footnote omitted). In her brief to this Court, Trevino cites to 42 U.S.C. §§ 1981 and 1983 as the vehicle for bringing her civil rights claims but fails to identify any specific constitutional violation. Whatever they may be, and this Court expresses no opinion on the validity of such a claim under the circumstances of this case, federal constitutional claims enjoy supremacy over governmental immunity. Owen v. City of Independence, 445 U.S. 622, 647–48 (1980) (“By including municipalities within the class of ‘persons’ subject to liability for violations of the Federal Constitution and laws, Congress—the supreme sovereign on matters of federal law—abolished whatever vestige of the State’s sovereign immunity the municipality possessed.”) (footnote omitted). Therefore, a plea to the jurisdiction was not an appropriate procedural vehicle to dispose of Trevino’s civil rights claims and we affirm the trial court’s order denying the City’s plea as to these claims. 1 See Campos v. Nueces County, 162 S.W.3d 778, 785 (Tex. App.—Corpus Christi–Edinburg 2005, pet. denied) (“[T]he trial court could not have properly dismissed appellants’ section 1983 claims [against Nueces County] based on immunity.”) IV. CONCLUSION Because there is no legislative waiver of governmental immunity from Trevino’s claims for negligent misrepresentation, fraud, or breach of contract, we reverse that 1 Trevino suggests for the first time on appeal that she has a takings claim under the Texas Constitution. See TEX. CONST. art. I, § 17 (“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.”). “As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.” Dryer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (citing Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959)). Accordingly, we decline to address whether the trial court would have jurisdiction over a takings claim under the circumstances of this case. See id. 11 portion of the trial court’s order denying the plea to the jurisdiction as to those claims. And although Trevino has alleged a viable claim for negligence based on the condition of the water, she failed to comply with the jurisdictional notice requirement under the TTCA; therefore, we also reverse the portion of trial court’s order denying the plea to the jurisdiction as to the negligence claim. We render judgment granting the plea to the jurisdiction as to Trevino’s negligent misrepresentation, fraud, breach of contract, and negligence claims. The remainder of the trial court’s order is affirmed. GREGORY T. PERKES Justice Delivered and filed the 6th day of June, 2019. 12

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