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Pixler v. City of Newark

Court of Appeals of Texas, Second District, Fort Worth

August 26, 2019

Philip T. Pixler, Appellant
v.
City of Newark, William Andrew Messer, Mack Reinwand, Ashley D. McSwain, Rene Culp, Pamela Thompson, Taylor Burton, and Jeanine M. Inman, Appellees

          On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV17-10-820-A

          Before Sudderth, C.J.; Gabriel, and Womack, JJ.

          MEMORANDUM OPINION

          Bonnie Sudderth Chief Justice.

         In one issue, pro se Appellant Philip T. Pixler appeals the trial court's grant of the Appellees'[1] plea to the jurisdiction and dismissal of Pixler's counterclaims against them. We affirm.

         Background

         This case arises from a dispute between the City of Newark and Pixler. In October 2017, Newark sued Pixler to obtain injunctive relief to force him to remove "junked vehicles" from his property, to collect administrative penalty fees, and to recover civil penalties for violating city ordinances and for violating the Texas Uniform Fraudulent Transfers Act. In response, Pixler filed counterclaims against Newark and the Newark employees for constitutional violations, barratry and malpractice (in his words, "Shyster Shenanigans"), and intentional infliction of emotional distress.

         The Appellees filed a motion to dismiss Pixler's counterclaims and a plea to the jurisdiction. They argued that the claims against the Newark Employees should be immediately dismissed because Pixler sued Newark in addition to the employees. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). They further argued that the trial court lacked subject-matter jurisdiction due to governmental immunity. In February 2018, the trial court granted the motion to dismiss and plea to the jurisdiction and dismissed Pixler's counterclaims with prejudice. It later severed the counterclaims and rendered a final judgment dismissing Pixler's claims.

         In August 2018, in response to Pixler's petition for mandamus relief, we held that the district court did not have subject-matter jurisdiction over Newark's claim to enforce administrative penalties, but that it did have subject-matter jurisdiction over the remaining three claims. In re Pixler, No. 02-18-00181 -CV, 2018 WL 3580637, at *7 (Tex. App.-Fort Worth Aug. 23, 2018, orig. proceeding). Newark subsequently nonsuited without prejudice all of its claims against Pixler.

         Discussion

         Pixler's brief is difficult to follow and relies upon evidence that is outside the record. We cannot consider matters that are outside the record and therefore disregard any such references. See Shelton v. Standard Fire Ins. Co., 816 S.W.2d 552, 553-54 (Tex. App.-Fort Worth 1991, no writ). And although the brief is not in strict compliance with the rules for appellate briefing, we decline Appellees' invitation to dismiss the appeal for Pixler's failure to so comply. See Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (directing that courts should liberally construe briefing rules).

         Because the trial court properly held that it did not have subject-matter jurisdiction over Pixler's counterclaim against Newark and his claims against the Newark Employees, we affirm the trial court's judgment.

         I. Standard of review

         A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. City of Westworth Vill. v. City of White Settlement, 558 S.W.3d 232, 239 (Tex. App.-Fort Worth 2018, pet. denied). Whether a trial court has subject-matter jurisdiction, whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject-matter jurisdiction, and whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction are questions of law that we review de novo. Id; see also Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

         When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause, construing the pleadings liberally in the plaintiffs favor and looking to the pleader's intent. Westworth, 558 S.W.3d at 239 (citing Tex. Dept of Parks & Wildlife v. Miranda,133 S.W.3d 217, 226 (Tex. 2004)). If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable ...


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