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City of El Paso v. Millard

Court of Appeals of Texas, Eighth District, El Paso

July 29, 2004

CITY OF EL PASO, Appellant
v.
ROBERT MILLARD, Individually and d/b/a EL PASO SPORTS & RECREATION CO., and SAR INVESTMENTS, INC., d/b/a CONSTRUCTION INVESTMENT DEVELOPMENT & PLAYGROUND CONSTRUCTOR, INC., Appellees.

          Appeal from County Court at Law No. 3 of El Paso County, Texas (TC# 2000-3128)

          Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

          MEMORANDUM OPINION

          ANN CRAWFORD MCCLURE, JUSTICE

         The City of El Paso appeals the partial denial of its plea to the jurisdiction. It brings this accelerated interlocutory appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. We affirm.

         FACTUAL SUMMARY

         Around October 30, 1990, Robert Millard purchased a trailer which he reconditioned and parked on property owned by SARS Investments and located in El Paso County. Millard used the trailer to store tools, equipment, furniture, and other personal property.

         In late July 1998, Millard needed tools and other items from the trailer and sent an employee out to the property to retrieve them. When the employee arrived, the trailer wasn't there. He notified Millard who then went to the property to see for himself. Upon verifying that the trailer was missing, Millard filed a report with the police department.

         Sam's Club Warehouse employees told Millard that the police department may have removed the trailer since they had seen three police vehicles in the area. When Millard went to the police department with this information, he was told that three patrol cars would not have been dispatched to handle such a situation. A detective was to be assigned to the case and Millard was advised to find out which company removed the trailer. He discovered that El Paso Towing had towed it and that there was a $1, 060 storage fee, which he was unable to pay. Millard asked to see the trailer and check its contents, but the towing company denied his request. Millard filed a complaint and ultimately learned that the trailer had been sold at auction by El Paso Towing without notice to him. He was later notified by the police department that an internal affairs investigation had been conducted. The impounding officer reported that he had removed the trailer for safekeeping because it had been heavily vandalized. The investigation resulted in a finding of misconduct by the officer and disciplinary action was taken.

         Millard sued the City of El Paso and El Paso Towing, alleging inverse condemnation. The City answered and filed a motion for summary judgment and plea to the jurisdiction. Millard then amended his pleadings, alleging inverse condemnation and fraud by the City, and conversion, negligence per se, and fraud by El Paso Towing. The trial court granted the plea as to the fraud allegations but denied it with regard to the constitutional taking. It also denied summary judgment on the issue of limitations. This accelerated appeal follows.

         GOVERNMENTAL ENTITY FRAUD

         For purposes of convenience, we will address the City's issues in reverse order. In Point of Error Two, the City complains that a governmental entity cannot be liable for fraud. Although the trial court granted the City's motion to dismiss based on the allegation of fraud, the City anticipated that Millard would raise the issue on appeal. Since the City raised this issue in anticipation of a cross point which did not materialize, we overrule Point of Error Two.

         PLEA TO THE JURISDICTION

         In Point of Error One, the City argues that Millard failed to properly plead a constitutional cause of action for a "taking" in order to waive sovereign immunity, and thus, the trial court erroneously denied its plea to the jurisdiction. A plea to the jurisdiction is a dilatory plea by which a party contests the trial court's authority to determine the subject matter of the cause of action. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.--Fort Worth 1999, pet. dism'd w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.--Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that ...


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