On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-10-07860-A
The opinion of the court was delivered by: Kerry P. Fitzgerald Justice
Before Justices O'Neill, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
Richardson Hospital Authority ("RHA") brings this interlocutory appeal from the trial court's partial denial of RHA's Motion to Dismiss for Lack of Jurisdiction (the "Motion"). RHA raises a single issue in this Court, contending the trial court erred in refusing to dismiss three of Placidus Nnamdi Duru's claims for lack of subject matter jurisdiction. We agree with RHA. Accordingly, we reverse the trial court's order in relevant part, and we dismiss Duru's action for lack of subject matter jurisdiction.
Appellee Duru was hired as a nursing assistant at Richardson Hospital in June 2004. In November 2006, an elderly female patient accused Duru of sexual abuse. Duru was indicted, and the hospital terminated his employment. Four years later, on the day of trial, the State dismissed his case. Duru sued the hospital for malicious prosecution, business disparagement, breach of contract, and unjust enrichment. RHA included a general plea to the jurisdiction in its original answer. It subsequently filed a combined motion to dismiss for lack of jurisdiction and summary judgment motion. *fn1 The trial court granted the Motion as to the malicious prosecution claim; that ruling has not been appealed. The court otherwise denied the Motion. RHA appeals, contending the remaining claims-business disparagement, breach of contract, and unjust enrichment-should have been dismissed as well.
Motion to Dismiss for Lack of Jurisdiction
RHA contended in the Motion that it was protected from Duru's claims by sovereign immunity. Sovereign immunity (or governmental immunity in the case of local-government subdivisions) deprives courts of subject matter jurisdiction. Rusk State Hosp. v. Black, No. 10-0548, 2012 WL 3800218, at *5 (Tex. Aug. 31, 2012). RHA is a governmental unit within the meaning of the Tort Claims Act, see Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 85 (Tex. 1997), and a local governmental entity for purposes of chapter 271 of the local government code. See Tex. Local Gov't Code Ann. § 271.151(3)(C) (West 2005). The parties agree, therefore, that RHA enjoys governmental immunity absent an express waiver of that immunity.
Duru has made arguments both below and in this Court contending RHA's immunity is
predicated on whether its activities were governmental or proprietary. The distinction between
governmental and proprietary functions for purposes of waiving or retaining immunity arises under
the civil practice and remedies code in a section entitled "Liability of a Municipality." See Tex. Civ. Prac. & Rem.
Code Ann. § 101.0215 (West 2011). A hospital authority is not a municipality, and
it is not treated as one under Texas law. See Edinburg Hosp. Auth., 941 S.W.2d at 85. Thus, Duru's
arguments concerning classification of RHA's activities as governmental or proprietary are not
relevant in this case.
A motion to dismiss based upon a lack of jurisdiction is the functional equivalent of a plea to the jurisdiction; both challenge the trial court's power to determine the subject matter of a claim. Patton v. Jones, 212 S.W.3d 541, 545 (Tex. App.-Austin 2006, pet. denied). The existence of subject matter jurisdiction is a question of law, and we review the trial court's ruling de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). When the plea challenges the claimant's pleadings, we determine whether the claimant has pleaded facts that affirmatively demonstrate the trial court's jurisdiction, construing the pleadings liberally and in favor of the claimant. Id. at 226. If the pleadings affirmatively negate jurisdiction, the plea should be granted. Id. at 227. When the plea challenges the existence of jurisdictional facts, we consider evidence submitted by the parties just as the trial court did. Id. We take as true all evidence favorable to the claimant, and we indulge all reasonable inferences in his favor. Id. at 228. If the evidence is undisputed or if it does not raise a fact question on the jurisdictional issue, then the plea can be resolved as a matter of law. Id. If the evidence raises a fact question on the jurisdictional issue, then the fact finder must resolve the issue at trial. Id. Because the issue before us is subject matter jurisdiction, we are not limited to arguments made in the trial court; we remain mindful, of course, of whether Duru could address any jurisdictional issues by amending his pleadings. See Rusk State Hosp., 2012 WL 3800218, at *6.
We review Duru's three remaining claims in turn to determine whether each one falls within a waiver of RHA's immunity. Business Disparagement
Duru alleges that RHA forwarded false and misleading representations about the alleged abuse to a third party credit reporting agency, which published the representations. Duru claims the publication caused him to lose employment offers and injured his employment reputation. The Tort Claims Act does not waive immunity for intentional torts. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011) ("This chapter does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any other intentional tort."). Business disparagement is an intentional tort. See Forbes Inc. v. Granada Biosciences, Inc. 124 S.W.3d 167, 170 (Tex. 2003) (elements are "the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff"); see also Ethio Exp. Shuttle Serv., Inc. v. City of Houston, 164 S.W.3d 751, 758 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (business disparagement is intentional tort for which sovereign immunity is not waived). Thus, business disparagement does not fall within a ...