Kenneth Leo Buholtz v. Texas Department of Transportation ( 2019 )

AFFIRM; and Opinion Filed September 16, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01284-CV
KENNETH LEO BUHOLTZ, Appellant
V.
TEXAS DEPARTMENT OF TRANSPORTATION, Appellee
On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 006-02337-2018
MEMORANDUM OPINION
Before Justices Brown, Whitehill, and Schenck
Opinion by Justice Brown
Pro se 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.
Buholtz 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.1 Meanwhile, Buholtz filed the instant, related suit against TxDOT and its right-of-way agent
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An interlocutory appeal in that case is currently pending in this Court. In appellate cause number 05-19-00810-CV, Buholtz has appealed
the trial court’s June 2019 denial of his motion to transfer jurisdiction from the county court at law to district court, but recently filed a motion to
withdraw his notice of appeal.
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.
TxDOT 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.
The 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
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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.).
A 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).
In his 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.
In his 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.
In his 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
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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.
Buholtz 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, pet. denied).
We affirm the trial court’s order.
/Ada Brown/
ADA BROWN
JUSTICE
181284F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KENNETH LEO BUHOLTZ, Appellant On Appeal from the County Court at Law
No. 6, Collin County, Texas
No. 05-18-01284-CV V. Trial Court Cause No. 006-02337-2018.
Opinion delivered by Justice Brown,
TEXAS DEPARTMENT OF Justices Whitehill and Schenck
TRANSPORTATION, Appellee participating.
In accordance with this Court’s opinion of this date, the trial court’s October 10, 2018 order
is AFFIRMED.
It is ORDERED that appellee the Texas Department of Transportation recover its costs of
this appeal from appellant Kenneth Leo Buholtz.
Judgment entered this 16th day of September, 2019.
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