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Brown v. City of Ingram

Court of Appeals of Texas, Fourth District, San Antonio

November 20, 2019

Twanda BROWN, Appellant
v.
CITY OF INGRAM, Appellee

          From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 19355B Honorable Rex Emerson, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE.

         Appellant Twanda Brown ("Brown") files this accelerated appeal from the trial court's order granting appellee's plea to the jurisdiction and dismissing Brown's counterclaim in a suit regarding the provision of utility services. We affirm the trial court's order and judgment.

         Background

         Appellee the City of Ingram ("the City") sued Brown and eight other defendants, seeking declaratory judgment that Ordinance No. 2015-1 and Chapter 13 of the City Code are "valid and reasonable exercises of the City's police powers." Ordinance No. 2015-1 adopted and enacted Chapter 13 of the City Code and creates a penalty for violation of Chapter 13. Chapter 13, entitled "Utilities," regulates the City's wastewater system.

         Brown answered the City's suit and asserted a counterclaim for breach of contract, alleging the City "breached its Contract for Wastewater Services by knowingly permitting an unqualified, unlicensed subcontractor" to connect her property to the City's sewer system. Brown alleged the subcontractor's negligence "sever[ed] a gas line and caus[ed] damages to Brown and her property."

         In response to Brown's counterclaim, the City filed a plea to the jurisdiction, later amended, asserting sovereign immunity from suit. The trial court held a hearing on the plea to the jurisdiction and miscellaneous other motions. During the hearing, the City offered Kerr County employee Ashli Badders's affidavit, which states Ms. Badders was present and personally witnessed the destruction of Brown's septic tank. The trial court admitted the affidavit with the attached photographs. Following the hearing, the trial court granted the plea to the jurisdiction and dismissed Brown's counterclaim.

         Several days after the trial court granted the plea to the jurisdiction, the City filed a "Supplement to Correct the Record," asking the trial court to strike the Badders affidavit on the basis that counsel for the City learned, after the trial court granted the plea to the jurisdiction, that Badders "made a mistake as to the location of where she took the photographs attached to her Affidavit." Brown filed an objection to the City's request to correct the record and, in the alternative, requested that the trial court re-open the hearing on the plea to the jurisdiction. The record does not reflect that the trial court ruled on either the City's request to correct the record or Brown's request to re-open the hearing on the plea to the jurisdiction.

         Brown files this accelerated appeal from the order granting the plea to the jurisdiction and judgment dismissing her counterclaim.

         Standard of Review

         "'Sovereign immunity protects the State from lawsuits for money damages.'" Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (quoting Tex. Natural 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." Id. "Sovereign immunity encompasses immunity from suit, which bars a suit unless the state has consented, and immunity from liability, which protects the state from judgments even if it has consented to the suit." Id. Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction. Id.

         We review the trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the plea to the jurisdiction challenges the pleadings, we construe the pleadings liberally to determine whether the plaintiff has alleged facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Id. If the plea to the jurisdiction challenges the existence of ...


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