Peter Obasogie v. Harris County Hospital District D/B/A Harris Health System

Affirmed and Memorandum Opinion filed March 30, 2021.
In the
Fourteenth Court of Appeals
NO. 14-19-00316-CV
PETER OBASOGIE, Appellant
v.
HARRIS COUNTY HOSPITAL DISTRICT D/B/A HARRIS HEALTH
SYSTEM, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2018-39325
MEMORANDUM OPINION
Pro-se appellant Peter Obasogie appeals the trial court’s final judgment
granting appellee Harris County Hospital District d/b/a Harris Health System’s
amended plea to the jurisdiction, arguing that governmental immunity did not
apply because appellee was not serving in a governmental function. Appellant also
argues that the trial court failed to properly apply the waiver of immunity in the
Texas Tort Claims Act. We disagree and affirm the judgment of the trial court.
I. BACKGROUND
Appellant has a lengthy and contentious history with the hospital1 stemming
from appellant’s employment with the hospital from 2007 to 2012. When appellant
was hired, his job title was Clinical Clerical Technician. At some point, the
hospital reclassified job titles and appellant’s job title was changed to Patient Care
Assistant I, a change to which appellant objected. Appellant filed suit against the
hospital in 2012 because he alleged the hospital incorrectly provided information
to the Texas Workforce Commission, preventing him from receiving
unemployment benefits. The hospital settled the 2012 lawsuit with appellant, and
both parties signed a settlement agreement. Appellant also filed a separate lawsuit
in federal court alleging age discrimination and failure to promote. His federal-
court lawsuit was also resolved with a settlement agreement. Neither settlement
agreement contains any language requiring the hospital to change appellant’s job
title for any purpose. And the settlement agreement of appellant’s federal-court
lawsuit specifically references appellant’s position as a “Patient Care Assistant.”
As relevant to the current lawsuit, appellant alleges that he entered into an
additional verbal agreement with the hospital, which the hospital allegedly violated
by advising prospective employers that appellant occupied the position of Patient
Care Assistant.2
1
The hospital is a unit of local government of the State of Texas duly established for the
governmental functions of providing medical and hospital care to the indigent or needy
inhabitants of Harris County, Texas. See Tex. Health & Safety Code Ann. §§ 281.002,
281.0517(d)(2); see also Tex. Const. art. IX, § 4.
2
The verbal contract is not consistently and clearly described by appellant. Appellant
also described the contract as simply requiring the hospital to provide truthful, rather than false,
references. In his reply filed in this court, which is not part of the appellate record, appellant
describes the verbal contract as follows: “Appellant warned the Appellee Attorney, Sara Thomas
not to retaliate against Appellant by giving false job reference [sic] to Appellant Potential
Employers, she agreed, but she failed to honor her agreement.”
2
Appellant brought the underlying suit against the hospital in 2018 alleging
the hospital breached its verbal agreement by advising prospective employers that
appellant was employed as a Patient Care Assistant I. Appellant also asserted
claims of defamation and “intentional infliction of severe pu[]nishment” against
the hospital. He argued that the hospital gave “false information about [appellant’s]
employment” because “[t]o say [appellant] was employed in the position of
‘Patient Care Assistant I’ is defamation of character . . . .” Appellant claims that he
has been unable to get another job because of the false and damaging references
provided by the hospital to his prospective employers. The hospital answered the
suit and filed a plea to the jurisdiction, which the trial court granted.
II. ANALYSIS
Appellant raises three issues in his appeal: (1) the trial erred in concluding
that the hospital was performing a governmental function rather than a proprietary
function; (2) the trial court failed to apply Civil Practice and Remedies Code
section 101.025; and (3) the trial court erred in “[m]erely saying that governmental
agency is immune to be sued without looking into the kind of function
(governmental or proprietary).” We read appellant’s argument broadly to challenge
the trial court’s determination that governmental immunity applied to deprive the
trial court of subject-matter jurisdiction. See Tex. R. App. P. 38.9 (briefing rules to
be construed liberally); Minix v. Gonzales, 162 S.W.3d 635, 637 n.1 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (pro-se appellant).
A. Standard of review
Subject-matter jurisdiction is a question of law that we review de novo.
Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When a plea to the jurisdiction challenges the claimant’s pleadings, we determine
whether the claimant has pleaded facts that affirmatively demonstrate the trial
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court’s jurisdiction, construing the pleadings liberally and in favor of the claimant.
Id. If the pleadings affirmatively negate jurisdiction, the plea should be granted. Id.
at 227. When the plea challenges the existence of jurisdictional facts, we consider
evidence submitted by the parties just as the trial court did. Id. We take as true all
evidence favorable to the claimant, and we indulge all reasonable inferences in his
favor. Id. at 228. If the evidence is undisputed or if it does not raise a fact question
on jurisdiction, then the plea can be resolved as a matter of law. Id. If the evidence
raises a fact question on jurisdiction, then the factfinder must resolve jurisdiction at
trial. Id.B. A hospital district does not engage in proprietary functions
Sovereign and governmental immunity are common-law concepts that
generally protect the State and its political subdivisions from the burdens of
litigation. Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). “Sovereign
immunity protects the state and its various divisions, such as agencies and boards,
from suit and liability, whereas governmental immunity provides similar protection
to the political subdivisions of the state, such as counties, cities, and school
districts.” Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex.
2011) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.
2003)). Hospital districts have such immunity. Harris Cnty. Hosp. Dist. v. Tomball
Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Dall. Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (unit of state government is immune
from suit and liability unless state consents).
Governmental immunity has two components: “immunity from liability,
which bars enforcement of a judgment against a governmental entity, and
immunity from suit, which bars suit against the entity altogether.” Tooke v. City of
Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit implicates a court’s
4
subject-matter jurisdiction to decide a claim against the State. Rosenberg Dev.
Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019). When a
governmental defendant challenges jurisdiction on immunity grounds, the plaintiff
has the burden to “affirmatively demonstrate the court’s jurisdiction by alleging a
valid waiver of immunity.” Whitley, 104 S.W.3d at 542. Immunity is waived only
by clear and unambiguous language. See Tex. Gov’t Code Ann. § 311.034 (“[A]
statute shall not be construed as a waiver of sovereign immunity unless the waiver
is effected by clear and unambiguous language.”).
Appellant’s issues one and three are the same. Appellant does not dispute
that the hospital is a governmental unit; rather, he maintains that the hospital’s
actions in allegedly providing false references to his potential employers, were
proprietary functions as it was not acting on behalf of the state, only for itself.3
Appellant believes the trial court erred by failing to analyze whether the hospital
engaged in a proprietary function. Because a hospital district cannot engage in
proprietary functions, we disagree with appellant.
The distinction between governmental and proprietary functions for
purposes of waiving or retaining immunity arises under the Civil Practice and
Remedies Code in a section entitled “Liability of a Municipality.” See Tex. Civ.
Prac. & Rem. Code Ann. § 101.0215. However, this statute codifies a
long-standing principle in Texas law that there is a distinction between
municipalities and other governmental units for governmental-immunity purposes.
See City of Galveston v. Posnainsky, 62 Tex. 118, 126 (1884) (“Counties and other
3
Appellant also argues in his reply brief that the hospital’s officials “acted ultra vires, and
without legal authority in carrying out his (sic) duties” and therefore his claims against the
hospital are not barred. However, appellant’s petition does not allege any claims against a
government official nor does he provide any explanation or authority for his argument that
employees of the hospital acted without legal authority. Appellant cannot raise a new issue on
appeal, nor can he raise a new issue in his reply brief. See Tex. R. App. 33.1(a), 38.3. Therefore,
we do not consider this argument.
5
governmental corporations are created by the legislature by general laws without
reference to the wish of their inhabitants, and thus for essentially public purposes”
whereas cities are incorporated through special charters and are “enacted at the
request of those who are to be most directly benefited by them and with a view to
this end.”). Municipalities are an exception to the general rule of governmental
immunity because a municipality is not immune for its proprietary functions. See
Tooke, 197 S.W.3d at 343.
However, a hospital district is not a municipality, and it is not treated as one
under Texas law. See Edinburg Hosp. Auth. v. Treviño, 941 S.W.2d 76, 84 (Tex.
1997) (Hecht, J., concurring but delivering opinion of court on issue addressed)
(“Unlike municipalities, hospital authorities have only governmental functions and
thus have always been immune from liability for all their actions, except to the
extent immunity is waived by the Tort Claims Act.”). In Treviño, the supreme
court addressed a hospital authority created under Health and Safety Code chapter
262, though its reasoning is applicable to a hospital district formed under Health
and Safety Code chapter 281. See id. at 83; Tex. Health & Safety Code Ann.
§§ 262.001–.050 (Municipal Hospital Authorities); Tex. Health & Safety Code
Ann. §§ 281.001–.124 (Hospital Districts in Counties of at least 190,000). The
definition of municipality does not include a hospital district formed under Health
and Safety Code chapter 281, as the hospital here was. See Treviño, 914 S.W.2d at
84 (“We are not aware of an instance when ‘municipality’ is used to describe a
governmental unit with a special, limited purpose, like a hospital authority.”); see
generally Tex. Loc. Gov’t Code Ann. § 1.005(3); Tex. Gov’t Code Ann. § 29.001.
The hospital is a governmental unit within the meaning of section 101.001(3), but
not a municipality.4 See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3).
4
Appellant relies upon several supreme court cases to support his argument that the
6
Thus, appellant’s arguments concerning classification of the hospital’s
activities as governmental or proprietary are not relevant in this case. See also
Richardson Hosp. Auth. v. Duru, 387 S.W.3d 109, 112 (Tex. App.—Dallas 2012,
no pet.). We overrule issues one and three.
C. Appellant does not bring his suit within the waiver provisions of the
Texas Tort Claims Act
In issue two, appellant argues that governmental immunity is waived by the
Texas Tort Claims Act.5 See Tex. Civ. Prac. & Rem. Code Ann. § 101.025.
However, appellant misreads the statute as providing a blanket waiver of
immunity. Instead, the statute provides that governmental immunity is waived “to
the extent of liability created by this chapter.” Id. § 101.025(a). We next determine
whether governmental immunity was waived with respect to appellant’s tort claims
or breach-of-contract claims.
The Texas Tort Claims Act waives immunity in three general areas: use of
publicly-owned vehicles, premises defects, and injuries arising from conditions or
use of property. Tex. Civ. Prac. & Rem. Code Ann. § 101.021; City of Hempstead
v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston [1st Dist.] 1995, no writ).
Appellant does not allege any facts related to the operation or use of a motor
hospital was acting in a proprietary function, rather than a governmental function. See Wasson
Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 433 (Tex. 2016) (addressing immunity of
city); Gates v. City of Dall., 704 S.W.2d 737, 738 (Tex. 1986) (addressing immunity of a home-
rule municipal corporation); Dilley v. City of Hous., 222 S.W.2d 992, 993 (Tex. 1949)
(addressing immunity of city). All three of these cases address the immunity of a municipality or
municipal corporation. Immunity applicable to a city or municipality varies because a city is not
always acting “as the agent of the State in furtherance of general law for the interest of the public
at large.” Gates, 704 S.W.2d at 738–39. However, as discussed above, a hospital district is not
subject to this analysis governing municipalities. See Treviño, 914 S.W.2d at 84.
5
Appellant actually argues that sovereign immunity to sue is waived under Civil Practice
and Remedies Code section 101.025. However, we construe his briefing liberally to argue that
governmental immunity, as specifically referenced in Civil Practice and Remedies Code section
101.025, was waived. See Tex. R. App. P. 38.9.
7
vehicle, a premises defect, or the use or misuse of real property owned or
controlled by the hospital. In his petition, appellant asserted two intentional-tort
causes of action—defamation and “intentional infliction of severe pu[]nishment.”6
The Texas Tort Claims Act does not waive immunity for the alleged intentional
torts of the hospital. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (“This
chapter does not apply to a claim . . . arising out of assault, battery, false
imprisonment, or any other intentional tort . . . .”); see Delaney v. Univ. of Hous.,
835 S.W.2d 56, 59 (Tex. 1992) (“section 101.057(2) excludes from the Act’s
waiver of immunity claims for intentional torts”). Defamation is an intentional tort.
See Collins v. Ison-Newsome, 73 S.W.3d 178, 182 (Tex. 2001) (defamation is
intentional tort); see also Univ. of Tex. Med. Branch at Galveston v. Hohman,
6 S.W.3d 767, 777 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d w.o.j.)
(defamation is intentional tort excluded from waiver of immunity). Defamation
does not fall within a waiver of the hospital’s immunity. Therefore, appellant does
not bring his suit within the waiver provisions of the Texas Tort Claims Act.
D. Appellant does not bring his suit within the waiver provisions of the
Local Government Contract Claims Act
Appellant’s second cause of action is breach of contact. Though the hospital
argues that appellant has waived his breach-of-contract claim on appeal, we
construe appellant’s briefing broadly. See Tex. R. App. P. 38.9. In his appellate
briefing, appellant raised the waiver of immunity provision for breach-of-contract
actions in the Local Government Code and confirmed in his reply that he had not
abandoned his breach-of-contract claim. See Tex. Loc. Gov’t Code Ann.
§§ 271.151(2)(b), 271.153. Subject-matter jurisdiction may not be waived by the
6
Intentional infliction of severe punishment is not a cause of action in Texas. Appellant
did not raise this claim in his response to the plea to the jurisdiction, and he has not raised this
claim on appeal. Therefore, we presume appellant has abandoned this claim. See Tex. R. App.
P. 33.1.
8
parties and we are not confined to the precise arguments presented by the parties in
addressing it. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445
(Tex. 1993).
The Local Government Contract Claims Act7 provides that a local
government entity that “enters into a contract subject to this subchapter” waives
immunity “for the purpose of adjudicating a claim for breach of the contract,
subject to the terms and conditions of this subchapter.” Tex. Loc. Gov’t Code Ann.
§ 271.152. It is not disputed the hospital is a local government entity under the
meaning of the Local Government Contract Claims Act. The “subject to” phrase
“incorporates the other provisions of the Act to define the scope of its waiver of
immunity.” Hays St. Bridge Restoration Grp. v. City of San Antonio, 570 S.W.3d
697, 706 (Tex. 2019) (quoting Zachry Constr. Corp. v. Port of Hous. Auth. of
Harris Cnty., 449 S.W.3d 98, 108 (Tex. 2014)). The hospital argued in its plea to
the jurisdiction that the verbal contract alleged by appellant does not meet the
statutory definition of a “contract subject to this subchapter.” See Tex. Loc. Gov’t
Code Ann. § 271.151(2)(A) (defining term, in part, as “a written contract stating
the essential terms of the agreement for providing goods or services to the local
governmental entity that is properly executed on behalf of the local governmental
entity”). We agree. Because the alleged contract upon which appellant bases his
claims is verbal rather than written, there is no waiver of governmental immunity
for appellant’s breach-of-contract action. We conclude that appellant does not
bring his suit within the waiver provision of the Local Government Contract
Claims Act. We overrule issue two.
7
Tex. Loc. Gov’t Code §§ 271.151–.160; see Zachry Constr. Corp. v. Port of Hous. Auth.
of Harris Cnty., 449 S.W.3d 98, 105 (Tex. 2014).
9
III. CONCLUSION
Because appellant does not assert any claims against the hospital subject to a
waiver of governmental immunity, we affirm the trial court’s judgment as
challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
10