Carolyn R. Milton v. Texas State Dental Board of Examiners and Julianne Hildebrand ( 2014 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-14-00346-CV
    Carolyn R. Milton, Appellant
    v.
    Texas State Dental Board of Examiners and Julianne Hildebrand, Appellees
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
    NO. D-1-GN-14-000616, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
    MEMORANDUM OPINION
    Carolyn R. Milton appeals a trial-court judgment granting appellees’ plea to the
    jurisdiction based on governmental immunity and dismissing her claims against the Texas State
    Dental Board of Examiners and Julianne Hildebrand (collectively, the Board). We will affirm the
    trial court’s judgment.
    BACKGROUND
    Milton, appearing pro se, sued the Board and Hildebrand in Travis County
    district court. In her petition, Milton alleged that she has suffered “severe financial harm” as
    a result of the Board’s alleged failure to “enforc[e] the laws of Texas.” Milton asserted that her
    suit was “not a mandamus suit” and that she was “only seeking concrete damages” within the
    jurisdictional limits of the district court. Milton’s petition asks that the court award her monetary
    damages in an “appropriate” amount. The gist of Milton’s complaint appears to be that she is
    dissatisfied with the Board’s handling of a complaint she filed against a Houston dentist.1 The
    trial court granted the Board’s plea to the jurisdiction, and Milton perfected this appeal. In her
    appeal, Milton challenges the dismissal order on the ground that sovereign immunity does not bar
    her claim. She also contends that, rather than dismiss her case, the trial court should have afforded
    her the opportunity to amend her pleadings.
    DISCUSSION
    A plea to the jurisdiction challenges a trial court’s authority to decide a case. See
    Texas Dep’t of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 225-26 (Tex. 2004). The plaintiff
    has the initial burden of alleging facts that affirmatively demonstrate the trial court’s jurisdiction
    to hear the case. 
    Id. (citing Texas
    Ass’n of Bus. v. Texas Air Control Bd., 
    852 S.W.2d 440
    ,
    446 (Tex. 1993)). Whether the plaintiff has met this burden is a question of law that we review
    de novo. 
    Id. Sovereign immunity,
    unless waived, protects the State of Texas, its agencies, and its
    officials from lawsuits for damages, absent legislative consent to sue the State. See, e.g., Kerrville
    State Hosp. v. Fernandez, 
    28 S.W.3d 1
    , 3 (Tex. 2000). Milton has not identified any waiver,
    statutory or otherwise, of the Board’s immunity from her suit for damages. In her brief to this Court,
    Milton asserts that the trial court had subject-matter jurisdiction over her claim because she sought
    a writ of mandamus “without any monetary damages.” See City of El Paso v. Heinrich, 
    284 S.W.3d 1
              Milton had previously filed a health-care-liability claim against this dentist, which was
    dismissed because she failed to timely serve the defendant with an expert report. See Milton
    v. Nguyen, No. 01-11-00958-CV, 
    2012 WL 3228835
    (Tex. App.—Houston [1st Dist.] Aug. 9, 2012,
    pet. denied) (mem. op.).
    2
    366, 372 (Tex. 2009) (suits to require state officials to comply with statutory or constitutional
    provisions not prohibited by sovereign immunity if suit alleges that officer acted without legal
    authority or failed to perform a purely ministerial act). Milton’s argument is directly contradicted
    by the pleading she filed in the trial court, which affirmatively stated that it was not a mandamus
    and that she sought only monetary damages. As such, Milton’s pleadings affirmatively negated the
    trial court’s jurisdiction over her claim. The trial court correctly granted the plea to the jurisdiction
    based on the Board’s assertion of immunity.
    Milton also complains on appeal that the trial court should have permitted her an
    opportunity to amend her pleadings rather than dismiss her case. See 
    Miranda, 133 S.W.3d at 226
    .
    If the plaintiff’s pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s
    jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one
    of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. 
    Id. In the
    present case, however, Milton’s pleadings affirmatively negate the existence of jurisdiction by
    seeking to recover monetary damages from a state agency and a state official under circumstances
    in which immunity has not been waived. Thus, the trial court could properly grant a plea to the
    jurisdiction on that claim without allowing Milton an opportunity to amend. See 
    id. Nor was
    Milton entitled to an opportunity, after the rendition of judgment, to amend
    her petition to assert a different claim (mandamus) over which the trial court might have subject-
    matter jurisdiction, as opposed to alleging additional jurisdictional facts supporting the
    claim she did assert. See Smith v. City of Blanco, No. 03-08-00784-CV, 
    2009 WL 3230836
    , at *6
    (Tex. App.—Austin Oct. 8, 2009, no pet.) (mem. op.) (“Smith asks for the opportunity to amend not
    3
    to plead additional jurisdictional facts that would cure his pleading defects, but rather to assert
    additional causes of action for which governmental immunity might be waived. However, since
    Smith’s pleadings affirmatively negate subject-matter jurisdiction for the causes of action he pleaded,
    he is not entitled to the opportunity to amend.”); see also Texas A & M Univ. Sys. v. Koseoglu,
    
    233 S.W.3d 835
    , 846 (Tex. 2007) (when pleadings are incurably defective for reason that they
    state cause of action for which state is immune, remanding to trial court for amendment serves no
    legitimate purpose and dismissal without affording opportunity to amend is proper). The trial court
    did not err in dismissing Milton’s case without affording her an opportunity to amend her petition.
    CONCLUSION
    Milton’s claim seeking monetary damages against the Board allegedly arising out
    of its disposition of her complaint against a Houston dentist is barred by sovereign immunity.
    Milton’s pleadings affirmatively negated the existence of jurisdiction, and the trial court did not err
    by granting the Board’s plea to the jurisdiction and dismissing her case without affording her an
    opportunity to amend her pleadings. The trial court’s judgment is affirmed.
    _____________________________________________
    J. Woodfin Jones, Chief Justice
    Before Chief Justice Jones, Justices Rose and Goodwin
    Affirmed
    Filed: December 30, 2014
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