Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 6 Collin County,
Texas Trial Court Cause No. 006-02337-2018
Justices Brown, Whitehill, and Schenck.
appellant Kenneth Leo Buholtz appeals the trial court's
order dismissing his claims against the Texas Department of
Transportation (TxDOT) for lack of jurisdiction. We affirm
the trial court's order.
owns 3.75 acres of property in McKinney in Collin County,
Texas. In 2018, the State filed a petition for condemnation
seeking possession of 16, 509 square feet of Buholtz's
property to be used for expansion of FM 2478. At that time,
Buholtz was an inmate in federal prison. (He was recently
released to a halfway house.) The eminent domain proceeding
is not yet final. Meanwhile, Buholtz filed the instant,
related suit against TxDOT and its right-of-way agent Halff
Associates. His sole cause of action is fraud by
misrepresentation. Buholtz alleged he received an
appraisal/offer for his property ten days before any
counteroffer was due. In response, Buholtz sent Halff a
letter raising various complaints about the valuation of his
property. He later received a revised offer, but he still had
concerns about it and rejected it. He alleged that during the
condemnation process, defendants made material
representations they knew were false. For example, Buholtz
complained about defendants' representation there was a
"HazMat" site near his property and also their
representation that "far away" properties were
comparable for valuation purposes. He alleged defendants made
these misrepresentations to justify their low offer and that
the misrepresentations impacted his ability to present a
counteroffer. In addition to damages based on the market
value of his property, Buholtz sought exemplary damages.
filed an "Original Answer, Plea to the Jurisdiction, and
Request for Disclosures" in which it asserted a general
denial and also that it had immunity from suit and liability.
That same day, TxDOT filed a motion to dismiss Buholtz's
claims for lack of jurisdiction. TxDOT asserted the
allegations in Buholtz's pleadings did not set forth a
cause of action for which the State has waived its sovereign
immunity. TxDOT argued the Texas Tort Claims Act did not
waive TxDOT's immunity for fraud, an intentional tort.
The trial court granted TxDOT's motion to dismiss. This
interlocutory appeal followed. Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(8) (person may appeal from
interlocutory order that grants governmental unit's plea
to jurisdiction). Halff is not a party to this appeal, and
Buholtz's claims against it are still pending.
State and its agencies, like TxDOT, are immune from suit
absent legislative consent. State v. Lueck, 290
S.W.3d 876, 880 (Tex. 2009). If a governmental unit has
immunity from suit, a trial court lacks subject matter
jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d
88, 95 (Tex. 2012). TxDOT's immunity from suit for tort
claims is waived to the extent the tort claims act creates
liability. Tex. Civ. Prac. & Rem. Code Ann. §
101.025(a). Section 101.057(2) of the tort claims act makes
clear the general waiver of sovereign immunity does not apply
to a claim arising out of any intentional tort. Id.
§ 101.057(2); Dallas Cty. Schs. v. Vallet, No.
05-16-00385-CV, 2016 WL 7163824, at *5 (Tex. App.-Dallas Dec.
8, 2016, no pet.) (mem. op.).
governmental unit may assert its immunity from suit through a
plea to the jurisdiction which challenges the pleadings, the
existence of jurisdictional facts, or both. Alamo Heights
Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018). When, as here, 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. Ryder Integrated Logistics, Inc. v.
Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015). In doing
so, we must look to the allegations in the pleadings,
construe them in the plaintiff's favor, and look to the
pleader's intent. City of Dallas v. Turley, 316
S.W.3d 762, 767 (Tex. App.-Dallas 2010, pet. denied). We
review the trial court's ruling on a plea to the
jurisdiction de novo. City of Houston v. Houston Mun.
Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018).
first issue, Buholtz asserts sovereign immunity is waived
because his property was taken fraudulently. We disagree.
Buholtz has not alleged facts that affirmatively demonstrate
the trial court's jurisdiction. His claim is based on
alleged material misrepresentations made by TxDOT and Halff.
His sole cause of action is for fraud, an intentional tort
for which immunity has not been waived under the tort claims
act. See Vallet, 2016 WL 7163824, at *5. We overrule
Buholtz's first issue.
second issue, Buholtz argues that TxDOT is subject to
exemplary damages due to its "artificial
establishment" of a HazMat site. Because TxDOT is immune
from Buholtz's fraud suit, we need not address this issue
which involves only damages.
third issue, Buholtz asserts the county court at law did not
have jurisdictional authority to issue the interlocutory
dismissal order. He argues that his estimated damages surpass
the jurisdictional limits of the county court at law.
See Tex. Gov't Code Ann. § 25.0003(c). In
his pleadings, Buholtz alleged that he sought damages within
the jurisdictional limits of the county court. See Texas
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 224 n.4 (Tex. 2004) (allegations in petition about
amount in controversy control for jurisdictional purposes
unless party challenging jurisdiction pleads and proves
allegations were made fraudulently for purpose of obtaining
jurisdiction). Further, the county court properly dismissed
Buholtz's claims against TxDOT for lack of jurisdiction.
It is not necessary for us to address Buholtz's assertion
the court lacked jurisdiction for a different reason.
See Tex. R. App. P. 47.1 (court of appeals must
address every issue raised and necessary to final disposition
of appeal); see also Dolenz v. Vail, 200 S.W.3d 338,
341 (Tex. App.-Dallas 2006, pet. denied) (courts have
jurisdiction to determine their own subject matter
jurisdiction). We overrule Buholtz's third issue.
also identifies two issues "NOT Presented for
Review" in his brief. As these issues are admittedly not
presented for review and Buholtz has not presented any
argument on these issues, we do not address them. In a reply
brief, Buholtz raises three issues "on reply." To
the extent Buholtz raises issues not included in his opening
brief, they are overruled because an appellant may not raise
an issue for the first time in a reply brief. See Powell
v. Knipp, 479 S.W.3d 394, 408 (Tex. App.-Dallas 2015,
affirm the trial ...