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City of Corpus Christi v. Trevino

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 6, 2019


          On appeal from County Court at Law No. 3 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Longoria and 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 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.

         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 ...

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