NUMBER 13-12-00215-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KEITH REDBURN, Appellant,
v.
CHARMELLE GARRETT,
INDIVIDUALLY AND AS CITY MANAGER
OF THE CITY OF VICTORIA, TEXAS,
AND LYNN SHORT, INDIVIDUALLY AND
AS DIRECTOR OF PUBLIC WORKS OF
THE CITY OF VICTORIA, TEXAS, AND
THE CITY OF VICTORIA, TEXAS, Appellees.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
By two issues, appellant, Keith Redburn, appeals the trial court’s order (1)
granting a plea to the jurisdiction filed by appellees, Charmelle Garrett, individually and
as the City Manager of the City of Victoria, Texas (“the City”), Lynn Short, individually
and as the Director of Public Works for the City, and the City, and (2) dismissing
appellant’s claims against appellees with prejudice. We reverse and remand.
I. BACKGROUND
This is a property dispute involving what the City alleges is a public improvement.
In 2004, appellant purchased property located at 902 West Stayton Street, consisting of
two tracts of land with a tributary between Tracts 1 and 2. According to the City, at the
time appellant purchased the property, there was a pre-existing public improvement
(specifically, a concrete culvert) that was visible and apparent. The purported public
improvement is an outlet that conveys water from underground to above ground and
into a naturally-flowing tributary that exists on appellant’s property. The City alleges that
the culvert and the natural tributary are part of the City’s Municipal Separate Storm
Sewer System (“MS4”), which acts as a filter and extracts contaminants and pollutants
before the toxins reach potable water. The City alleges that, even without the public
improvement, appellant’s downstream property is burdened by naturally-flowing water.
In 2006, appellant complained to the City about debris and water flowing onto his
property. In 2011, appellant plugged the culvert with five tons of concrete. The City
advised appellant that he was in violation of the City’s MS4 Ordinance, but the plug
remained. Subsequently, appellant filed suit against Garrett and Short for injunctive
relief to enjoin them from entering his property to repair the storm-water culvert on the
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basis that the repairs would result in the City’s alleged trespassing by virtue of
discharged storm water.
The City filed an answer on behalf of Garrett and Short. The City also filed a
plea to the jurisdiction, requesting dismissal of the individual employees in accordance
with section 101.106 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.106(e), (f) (West 2011). In addition, the City filed a
petition in intervention, alleging three cross-claims against appellant: (1) an
enforcement action for statutory penalties in the amount of $5,000 per day pursuant to
Chapter 54 of the Texas Local Government Code, in addition to a request for court
costs and attorney’s fees, see TEX. LOC. GOV’T CODE ANN. §§ 54.012, 54.014, 54.015,
54.107 (West 2008); (2) a claim for temporary and permanent injunctive relief to require
appellant to remove the plug and to prohibit future plugging; and (3) an action for
declaratory judgment with respect to the City’s easement and the public improvement,
see TEX. CIV. PRAC. & REM. CODE ANN. § 37.003 (West 2008).
The trial court held an evidentiary hearing on the City’s request for a temporary
injunction. Afterward, appellant was ordered to remove the concrete plug within seven
days of the court’s order. The parties were also ordered to mediation. Although
appellant removed the plug, the mediation was unsuccessful.
Subsequently, appellant amended his petition to name the City as a defendant
and to add an action for declaratory judgment. Appellant alleged that the City
constructed the culvert on and next to his property and that, periodically, the culvert
drains large amounts of storm water onto his property, causing significant and
irreparable damage. According to appellant, this constitutes an illegal trespass,
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nuisance, and violation of section 11.086 of the Texas Water Code. See TEX. W ATER
CODE ANN. § 11.086 (West 2008).
Thereafter, the City supplemented its plea to the jurisdiction, arguing that
appellant could not establish subject matter jurisdiction for four reasons: (1) sovereign
immunity had not been clearly and unambiguously waived under Chapter 11 of the
Texas Water Code and doing so would violate public policy; (2) a declaratory judgment
action could not be used when subject matter jurisdiction does not exist for the claim
under the water code; (3) the City is immune from intentional tort claims pursuant to
section 101.057(2) of the Texas Civil Practice and Remedies Code, see TEX. CIV. PRAC.
& REM. CODE ANN. § 101.057(2) (West 2011); and (4) the Texas Supreme Court’s
decision in City of El Paso v. Heinrich prohibits claimants, such as appellant, from
seeking to use the judiciary to control governmental functions, see City of El Paso v.
Heinrich, 284 S.W.3d 366 (Tex. 2009).
In addition, appellees argued that appellant could not establish subject matter
jurisdiction with regard to the claims against Garrett and Short for two reasons: (1)
claims against governmental employees in their individual capacities are barred by
section 101.106 of the Texas Civil Practice and Remedies Code, see TEX. CIV. PRAC. &
REM. CODE ANN. § 101.106(e), (f); and (2) appellant has not alleged that the employees
committed any act or omission in their individual capacity.
In his response, appellant made three arguments. First, a governmental unit that
voluntarily intervenes in a suit waives immunity. Second, the City’s immunity is waived
under the Uniform Declaratory Judgment Act. And third, Garrett and Short can be sued
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without the City because the threatened acts were illegal and therefore not official acts
of the City.
After a hearing, the trial court found in favor of the City. The court dismissed
appellant’s claims against Garrett, Short, and the City, leaving the City’s cross-claims
against appellant as the only claims pending in the suit. Thereafter, the City
supplemented its cross-claims to allege a claim of easement by implied dedication to
the extent the culvert extends onto appellant’s property and the tributary. This
interlocutory appeal ensued. See id. § 51.014(a)(8) (West Supp. 2011).
II. ANALYSIS
In his first issue, appellant contends that the trial court erred in granting
appellees’ plea and supplemental plea to the jurisdiction. In his second issue, appellant
contends that the trial court erred in dismissing his claims without giving him an
opportunity to amend his pleadings.
A. Standard of Review
A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction.
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000), overruled on other
grounds by Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). We
review the record de novo to determine whether the trial court has subject matter
jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). “We
consider only the evidence pertinent to the jurisdictional inquiry and do not weigh the
merits.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Also, we
construe the pleadings in favor of the plaintiff, accepting all his allegations as true.
Bland Indep. Sch. Dist., 34 S.W.3d at 555. To prevail, the defense must show that,
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even accepting all of the plaintiff’s allegations as true, an incurable jurisdictional defect
remains on the face of the pleadings that deprives the trial court of subject matter
jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston
[14th Dist.] 2005, no pet.).
B. Applicable Law
In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction
over lawsuits in which the State or certain governmental units have been sued unless
the State consents to suit. Miranda, 133 S.W.3d at 224. In a suit against a
governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by
alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d
540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged in the
pleadings unless the defendant presents evidence to negate their existence. Miranda,
133 S.W.3d at 226–27. If a plea to the jurisdiction challenges the jurisdictional facts, we
consider relevant evidence submitted by the parties to resolve the jurisdictional issues
raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133
S.W.3d at 227); see Bland Indep. Sch. Dist, 34 S.W.3d at 555. If that evidence creates
a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco, 298
S.W.3d at 622; Miranda, 133 S.W.3d at 227–28. “However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules
on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228. After
the defendant “asserts and supports with evidence that the trial court lacks subject
matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits
and subject matter jurisdiction are intertwined, to show that there is a disputed material
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fact regarding the jurisdictional issue.” Id. This standard “generally mirrors” that of a
traditional motion for summary judgment. Id. When reviewing a plea to the jurisdiction
in which the pleading requirement has been met and evidence has been submitted to
support the plea that implicates the merits of the case, we take as true all evidence
favorable to the non-movant. Id.
C. Dismissal of Appellant’s Claims against Garrett and Short
We begin with the dismissal of appellant’s claims against Garrett and Short.
Appellees argue that the trial court properly dismissed these claims because, under
section 101.106 of the Texas Civil Practice and Remedies Code, the City is the only
proper defendant. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106.
“The Tort Claims Act’s election scheme is intended to protect governmental
employees by favoring their early dismissal when a claim regarding the same subject
matter is also made against the governmental employer.” Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). As the Texas Supreme Court has
explained:
Under the Tort Claims Act’s election scheme, recovery against an
individual employee is barred and may be sought against the
governmental unit only in three instances: (1) when suit is filed against the
governmental unit only, [TEX. CIV. PRAC. & REM. CODE ANN.] § 101.106(a);
(2) when suit is filed against both the governmental unit and its employee,
id. § 101.106(e); or (3) when suit is filed against an employee whose
conduct was within the scope of his or her employment and the suit could
have been brought against the governmental unit, id. § 101.106(f).
Garcia, 253 S.W.3d at 657. “When suit is filed against the employee, recovery against
the governmental unit regarding the same subject matter is barred unless the
governmental unit consents to suit.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. §
101.106(b)).
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According to appellees, subsection (e) applies to this case. See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(e). Subsection (e) provides: “If a suit is filed under this
chapter against both a governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.” Id.
Appellees argue that the trial court correctly dismissed the claims against Garrett and
Short based on the City’s request under subsection (e). See id.
Initially, we note that appellant did not originally file suit against the City.1
Although appellant later named the City as a defendant in his amended petition, it is the
original petition that controls for purposes of the election-of-remedies provisions of
section 101.106(e). See City of Webster v. Myers, 360 S.W.3d 51, 58 n.4 (Tex. App.—
Houston [1st Dist.] 2011, pet. denied) (“[W]e must look to Myers's Original Petition,
rather than his amended petition, in deciding whether a tort claim was brought against
the City for purposes of the section 101.106(e) analysis.”); Brown v. Xie, 260 S.W.3d
118, 122 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (concluding that plaintiff’s
original petition, not amended petition, is proper pleading to scrutinize in determining
whether dismissal under section 101.106(e) is appropriate). Thus, we conclude that
subsection (e) does not apply to this case. Accordingly, the trial court could not properly
dismiss appellant’s claims against Garrett and Short based on the City’s request under
subsection (e).
1
See Tex. Dep’t of Pub. Safety v. Deakyne, 371 S.W.3d 303, 309 (Tex. App.—San Antonio 2012,
no pet.) (“If the plaintiff initially sues both the governmental unit and the employee (whether individually or
in the scope of employment) and the governmental unit moves to dismiss its employee, subsection (e)
forces an election: the employee becomes the non-elected defendant and is dismissed; the remaining
defendant—the governmental unit—is the elected defendant.”).
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In their supplemental plea to the jurisdiction, appellees also argued that dismissal
was appropriate pursuant to subsection (f). See TEX. CIV. PRAC. & REM. CODE ANN. §
101.106(f). Subsection (f) provides as follows:
If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if it
could have been brought under this chapter against the governmental unit,
the suit is considered to be against the employee in the employee’s official
capacity only. On the employee’s motion, the suit against the employee
shall be dismissed unless the plaintiff files amended pleadings dismissing
the employee and naming the governmental unit as defendant on or
before the 30th day after the date the motion is filed.
Id.
The Texas Supreme Court has explained that there are two conditions to
subsection (f). Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). First, the
employee acted within the general scope of his employment. Id. Second, “suit could
have been brought under the Texas Tort Claims Act — that is, [the] claim is in tort and
not under another statute that independently waives immunity.” Id. If both conditions
are met, the suit “is considered to be against the employee in the employee’s official
capacity only, and the plaintiff must promptly dismiss the employee and sue the
government instead.” Id.
The Tort Claims Act defines “scope of employment” as “the performance for a
governmental unit of the duties of an employee’s office or employment and includes
being in or about the performance of a task lawfully assigned to an employee by
competent authority.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5) (West Supp.
2011). In their supplemental plea to the jurisdiction, appellees argued that “the
pleadings undeniably reveal that [appellant’s] suit is based on alleged conduct that . . .
is within the general scope of the named employees’ respective employment.”
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Appellees offered no evidence to substantiate their contention See Univ. of Tex.
Southwestern Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 551 (Tex. 2010) (“The
employee must show that the suit was filed against him based on conduct within the
general scope of his employment.”). Therefore, we conclude that appellees did not
establish their entitlement to dismissal pursuant to subsection (f). See Kelemen v.
Elliott, 260 S.W.3d 518, 524 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (refusing to
dismiss the officer because he failed to meet the first prong of his burden of proof, that
is, he failed to show that the alleged assault of a fellow officer was within the general
scope of his employment with the city). Accordingly, the trial court could not properly
dismiss appellant’s claims against Garrett and Short based on subsection (f).
Finally, in their plea to the jurisdiction, appellees sought dismissal “because the
two individuals have committed no acts or omissions that places [sic] them before the
Court in their individual capacities.” According to appellees’ plea to the jurisdiction, “to
maintain an ultra vires claim against an official in his individual capacity, one must [not]
complain of the individual’s exercise of discretion . . . [but rather must] allege and prove
the individual acted without legal authority or failed to perform a purely ministerial act.”
In their appellate brief, appellees acknowledge that appellant “has pleaded that
defendants must be enjoined from illegally trespassing.” In other words, appellant
complains about Garrett and Short entering his property without legal authority. See
Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 389–90 (Tex. 2011)
(holding that suit to enjoin governmental entity from entering plaintiff’s property without
authority “is an ultra vires [claim] that must be brought against the governmental official
and not the State”). This falls within the ultra vires exception. See Heinrich, 284
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S.W.3d at 372–73 (“To fall within this ultra vires exception, a suit must not complain of a
government officer’s exercise of discretion, but rather must allege, and ultimately prove,
that the officer acted without legal authority or failed to perform a purely ministerial
act.”). Therefore, the trial court could not properly dismiss appellant’s claims against
Garrett and Short based on appellees’ contention that the claims were not ultra vires.
In sum, we have reviewed each of the three grounds on which appellees
requested dismissal of appellant’s claims against Garrett and Short and have concluded
that the trial court could not properly dismiss appellant’s claims based on any of the
three grounds. Accordingly, we conclude that the trial court erred in dismissing
appellant’s claims against Garrett and Short.
D. Dismissal of Appellant’s Claims against the City
Next, we consider the dismissal of appellant’s claims against the City. In his
amended petition, appellant alleges causes of action against the City for declaratory
judgment and injunctive relief. See id. at 377 (“[c]onsidering the nature of the liability
sought to be imposed, and construing [plaintiff’s] pleadings liberally”). As set forth more
fully below, the “real substance” of appellant’s claims involves a suit for land. See
Sawyer Trust, 354 S.W.3d at 390 (“The central test for determining jurisdiction is
whether the ‘real substance’ of the plaintiff's claims falls within the scope of a waiver of
immunity from suit.”). Appellant seeks to quiet title to his property and to establish his
exclusive right of possession. See id. at 389–90 (holding that plaintiff’s claims to
establish ownership of property through an action for declaratory judgment and to obtain
injunctive relief to prevent a governmental entity from entering the property are “in
substance [a suit] to determine title to land”). Appellant also seeks injunctive relief to
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enjoin the City from trespassing, which is an intentional tort. Hidalgo County v. Dyer,
358 S.W.3d 698, 704 (Tex. App.—Corpus Christi 2011, no pet.) (“The intentional tort of
trespass involves the intent to commit an act which violates a property right or is
practically certain to have that effect, although the actor may not know the act he
intends to commit is a violation of a property right.”). Thus, it appears that appellant’s
claims against the City are barred by immunity. See Sawyer Trust, 354 S.W.3d at 388
(“When in this state the sovereign is made a party defendant to a suit for land, without
legislative consent, its plea to the jurisdiction of the court based on sovereign immunity
should be sustained”); Dyer, 358 S.W.3d at 704–05 (“The Department and the County
argue that immunity from suit has not been waived for Dyer’s trespass claim because
Dyer has alleged an intentional tort for which the Texas Tort Claims Act does not waive
immunity. We agree.”); Harris County v. Cypress, 50 S.W.3d 551, 554 (Tex. App.—
Houston [14th Dist.] 2001, no pet.) (“Appellee’s Second Amended Petition clearly
asserts that appellant’s dumping of hazardous materials on its property was intended[;
thus, it] states a cause of action for intentional trespass[ for which immunity has not
been waived.]”).
However, because the City filed a petition in intervention, in which it alleged
cross-claims against appellant for statutory penalties, declaratory relief and injunctive
relief, along with a request for attorney’s fees and court costs, it is nonetheless possible
that appellant’s claims are not barred by immunity. See Sweeny Cmty. Hosp. v.
Mendez, 226 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“This
Court likewise has held that by asserting compulsory counterclaims in response to a suit
brought by a company, the governmental entity waived immunity from suit for the
12
company’s claims for the intentional torts of fraud and conspiracy because they were
germane to the matter in controversy.”). As the Texas Supreme Court has recently
explained:
Once a governmental entity has asserted an affirmative claim for
monetary relief, it must participate in the litigation process as an ordinary
litigant as to that claim. And when a governmental entity asserts
affirmative claims for monetary recovery, whether by filing suit or by
counterclaim, the trial court acquires jurisdiction over the entity’s claims
and certain offsetting, defensive claims asserted against the entity. That
is not because the entity effected a change in its immunity by filing a
claim, but because the judiciary has abrogated the entity’s common law
immunity from suit as to certain offsetting claims.
City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011). Thus, we will examine the
City’s affirmative claims for relief to determine the extent to which, if at all, the trial court
acquired jurisdiction over appellant’s claims against the City.
As noted above, the City’s cross-claims against appellant include an enforcement
action under Chapter 54 of the Texas Local Government Code. See TEX. LOC. GOV’T
CODE ANN. §§ 54.012, 54.014, 54.015, 54.107. In connection with this claim, the City
alleges in relevant part:
Mr. Redburn violated the MS4 Ordinance by dumping pollutants and
obstructing into the City’s separate storm sewer system when he capped
the concrete culvert with 5 tons of concrete. Mr. Redburn was advised
through his attorney of this violation by letter dated April 7, 2011, and
warned of the consequences of non-compliance. Mr. Redburn fails to
cooperate and intentionally continues to defy the law by failing to remove
the concrete barrier and placing the public at risk of imminent harm. Mr.
Redburn’s defiance puts the City’s residents in jeopardy. This culvert is
an improvement to an existing waterway historically referred to as the
Phillips ditch which burdened appellant’s property prior to any City action
in connection with the drainage structure involved. It serves as a
watershed during rains, and prevents flooding. Mr. Redburn only recently
took it upon himself to plug it. Undoubtedly, during the next rain, the water
that flows into this culvert will back up and cause flooding and other
damages to the City.
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The City seeks a temporary injunction to “allow access upon [appellant’s]
property for purposes of removing obstructions to the public MS4 storm sewer
immediately to return the parties to the status quo.” The City also “asks the court to
order the demolition or removal of the concrete cap and to order daily civil penalties for
every day and every independent violation of the MS4 ordinance by Redburn.”
In its action for declaratory judgment, the City “claims an easement in and to the
property [belonging to appellant] for purposes of maintaining the MS4.” The City seeks
a final judgment that would include “awarding title and possession of the area burdened
by the drainage ditch known as the Phillips ditch easement to the City.” The City
requests a “finding [that] the concrete culvert is a public improvement not subject to
abatement.” In addition, the City seeks a judicial declaration as follows:
Redburn unlawfully interfered with the City’s public improvement and
easement on or about March 28, 2011. Furthermore, Redburn plugged
the 60-inch public improvement with 5 tons of concrete on or about March
28, 2011. Redburn improperly prohibits the City from using the easement
to access the public improvement to maintain it for public health and
safety.
In sum, the City has asserted an affirmative claim for monetary relief, a claim to
quiet title to an easement on appellant’s property, and a claim to enforce its rights to
access a public improvement through an award of injunctive relief against appellant. As
set forth below, we believe appellant’s claims are “claims that would offset, in whole or
in part, any recovery by the City and that [are] germane to, connected with, and properly
defensive to the City’s claims.” See City of Dallas, 354 S.W.3d at 375. In fact, the
claims could not be more closely related.
In his amended petition, appellant alleges in relevant part as follows:
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The City of Victoria[,] Texas constructed a storm water drain culvert next
to and on Plaintiff’s property which said culvert periodically drains large
amounts of water onto and across Plaintiff’s property causing significant
and irreparable damage to Plaintiff’s property. The City of Victoria does
not have the Plaintiff’s consent or permission and the City of Victoria does
not have an easement or other legal authority to enter Plaintiff’s property
and are illegally trespassing in violation of the Texas Water Code section
11.086.
Appellant requests relief that includes the following:
Declaratory judgment declaring that under section 11.086 of the Texas
Water Code the Defendants are illegally draining storm water from the City
of Victoria’s STORM WATER drainage system onto and across the
Plaintiff’s property and are trespassing on Plaintiff’s property.
Declaratory judgment declaring that under section 11.086 of the Texas
Water Code the Plaintiff is not obligated or required to accept the storm
water this [sic] is periodically drained storm water from the City of
Victoria’s STORM WATER system onto and across Plaintiff’s property.
[Declaratory judgment declaring that] Plaintiff is the owner of the property
including all surface rights in a certain tract of land located in Victoria
County Texas known as 902 Stayton Street Victoria Texas upon which the
Defendants are trespassing.
In his prayer, appellant requested the following relief:
That after a final hearing the Court Grant Plaintiff’s request for Declaratory
Judgment that the Defendants are trespassing on Plaintiff’s property and
[t]hat the Court permanently enjoin . . . the Defendants, to desist, cease
and stop draining storm water upon and onto and across Plaintiff’s
property located at 902 Stayton Victoria Texas.
As noted above, “a governmental entity does not enjoy immunity from suit in the
first instance for claims against it that are germane to, connected with, and properly
defensive to claims that the governmental entity asserts.” Sweeny, 226 S.W.3d at 592.
Thus, we must determine whether appellant’s claims for declaratory judgment and
injunctive relief are sufficiently related to the City’s cross-claims for statutory penalties,
declaratory judgment, and injunctive relief. We conclude that they are.
15
“In common usage, the term ‘germane’ means closely akin, being at once
relevant and appropriate, closely or significantly related, relevant, and pertinent.” Id.
“[T]he term ‘germane’ . . . is not narrower in scope than the test for a compulsory
counterclaim.” Id. Rule 97 of the Texas Rules of Civil Procedure requires parties to
assert any counterclaim “not the subject of a pending action, which at the time of filing .
. . the pleader has against any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing party’s claim” and does not require
the presence of third parties over whom the trial court could not exercise jurisdiction.
TEX. R. CIV. P. 97(a) (“Compulsory Counterclaims”). Consequently, “[a] compulsory
counterclaim is germane to the opponent’s claim by its very nature.” City of Dallas v.
Redbird Dev. Corp., 143 S.W.3d 375, 383 (Tex. App.—Dallas 2004, no pet.). “In
common usage, the term ‘connected’ means united, joined or linked and joined together
in sequence; linked coherently and having parts or elements logically linked together.”
Sweeny Cmty. Hosp., 226 S.W.3d at 592.
In this case, appellant’s claims against the City are “germane” to the City’s claims
against appellant in the sense that they are “significantly related, relevant, and
pertinent.” Id. A resolution of the rights of the parties will depend on facts common to
all the claims because, to a great extent, the pleadings mirror each other. See id. (“[W]e
disagree that it is necessary for [the defendant’s] counterclaims to mirror the cause of
action brought by [the governmental entity].”). In addition, appellant’s claims fit within
the definition of compulsory counterclaims. See TEX. R. CIV. P. 97(a); see Redbird Dev.
Corp., 143 S.W.3d at 382 (“[W]hen a governmental entity files suit against a party, that
entity waives, at a minimum, immunity for suit for counterclaims filed as a consequence
16
of the suit”). Moreover, appellant’s claims are “connected to” the City’s cross-claims
and “properly defensive”2 to those claims because, if established, the practical effect of
appellant’s claims would be to rebut one or more essential elements of the City’s claims.
See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429, 430 (Tex. 2005) (“An inferential
rebuttal defense operates to rebut an essential element of the plaintiff's case by proof of
other facts.”); Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978) (“The basic
characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory
from the claim relied upon for recovery.”). “In this situation, we believe it would be
fundamentally unfair to allow [the City] to assert affirmative claims against [appellant]
while claiming it had immunity as to [appellant’s] claims against it.” Reata Construction
Corp. v. City of Dallas, 197 S.W.3d 371, 376–77 (Tex. 2006).
Accordingly, the trial court erred in granting appellees’ plea to the jurisdiction with
regard to appellant’s claims against the City. We sustain appellant’s first issue and
dismiss appellant’s second issue as moot.
2
See Anderson v. State, 62 S.W.2d 107, 110 (Tex. 1933) (“Where a state voluntarily files suit
and submits its rights for judicial determination, it will be bound thereby, and the defense will be entitled to
plead and prove all matters properly defensive [including] the right to make any defense . . . germane to
the matter in controversy.”); see also Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371, 377
(Tex. 2006) (applying the Anderson rule and stating, “we see no substantive difference between a
decision by the City to file an original suit and the City’s decision to file a claim as an intervenor in [the
plaintiff’s] suit. Accordingly, when the City filed its affirmative claims for relief as an intervenor, the trial
court acquired subject-matter jurisdiction over claims made against the City which were connected to,
germane to, and properly defensive to the matters on which the City based its claim for damages.”).
17
III. CONCLUSION
The order of the trial court is reversed and the cause remanded for further
proceedings consistent with this opinion.
_______________________
NORA L. LONGORIA
Justice
Delivered and filed the
28th day of February, 2013.
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