Philip T. Pixler v. City of Newark, Ashley D. McSwain, William Andrew Messer, MacK Reinwand, Rene Culp, Pamela Thompson, Taylor Burton, and Jeanine M. Inman

• Court: Court of Appeals of Texas
• Decided: August 26, 2019
• Docket: 02-18-00286-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00286-CV ___________________________

PHILIP T. PIXLER, Appellant

V.

CITY OF NEWARK, WILLIAM ANDREW MESSER, MACK REINWAND, ASHLEY D. MCSWAIN, RENE CULP, PAMELA THOMPSON, TAYLOR BURTON, AND JEANINE M. INMAN, Appellees

On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV17-10-820-A

Before Sudderth, C.J.; Gabriel, and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

In one issue, pro se Appellant Philip T. Pixler appeals the trial court’s grant of

the Appellees’1 plea to the jurisdiction and dismissal of Pixler’s counterclaims against

them. We affirm.

Background

This case arises from a dispute between the City of Newark and Pixler. In

October 2017, Newark sued Pixler to obtain injunctive relief to force him to remove

“junked vehicles” from his property, to collect administrative penalty fees, and to

recover civil penalties for violating city ordinances and for violating the Texas

Uniform Fraudulent Transfers Act. In response, Pixler filed counterclaims against

Newark and the Newark employees for constitutional violations, barratry and

malpractice (in his words, “Shyster Shenanigans”), and intentional infliction of

emotional distress.

The Appellees filed a motion to dismiss Pixler’s counterclaims and a plea to the

jurisdiction. They argued that the claims against the Newark Employees should be

immediately dismissed because Pixler sued Newark in addition to the employees. See

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). They further argued that the trial

court lacked subject-matter jurisdiction due to governmental immunity. In February

1 The Appellees are the City of Newark, William Andrew Messer, Mack Reinwand, Ashley D. McSwain, Rene Culp, Pamela Thompson, Taylor Burton, and Jeanine M. Inman. We will refer to them collectively as the Appellees; we will refer to the employees collectively as “the Newark Employees” where necessary.

2 2018, the trial court granted the motion to dismiss and plea to the jurisdiction and

dismissed Pixler’s counterclaims with prejudice. It later severed the counterclaims and

rendered a final judgment dismissing Pixler’s claims.

In August 2018, in response to Pixler’s petition for mandamus relief, we held

that the district court did not have subject-matter jurisdiction over Newark’s claim to

enforce administrative penalties, but that it did have subject-matter jurisdiction over

the remaining three claims. In re Pixler, No. 02-18-00181-CV, 2018 WL 3580637, at *7

(Tex. App.—Fort Worth Aug. 23, 2018, orig. proceeding). Newark subsequently

nonsuited without prejudice all of its claims against Pixler.

Discussion

Pixler’s brief is difficult to follow and relies upon evidence that is outside the

record. We cannot consider matters that are outside the record and therefore

disregard any such references. See Shelton v. Standard Fire Ins. Co., 816 S.W.2d 552,

553–54 (Tex. App.—Fort Worth 1991, no writ). And although the brief is not in

strict compliance with the rules for appellate briefing, we decline Appellees’ invitation

to dismiss the appeal for Pixler’s failure to so comply. See Tex. Mexican Ry. Co. v.

Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (directing that courts should liberally construe

briefing rules).

Because the trial court properly held that it did not have subject-matter

jurisdiction over Pixler’s counterclaim against Newark and his claims against the

Newark Employees, we affirm the trial court’s judgment. 3 I. Standard of review

A plea to the jurisdiction challenges the trial court’s authority to determine the

subject matter of the action. City of Westworth Vill. v. City of White Settlement, 558

S.W.3d 232, 239 (Tex. App.—Fort Worth 2018, pet. denied). Whether a trial court

has subject-matter jurisdiction, whether a plaintiff has alleged facts that affirmatively

demonstrate a trial court’s subject-matter jurisdiction, and whether undisputed

evidence of jurisdictional facts establishes a trial court’s jurisdiction are questions of

law that we review de novo. Id.; see also Tex. Nat. Res. Conservation Comm’n v. IT-Davy,

74 S.W.3d 849, 855 (Tex. 2002).

When 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, construing the pleadings liberally in the plaintiff’s favor and looking to the

pleader’s intent. Westworth, 558 S.W.3d at 239 (citing Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). If the 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. at 239–40.

If, however, a plea to the jurisdiction challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, taking as true all evidence favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts in the 4 nonmovant’s favor. Id. at 240. The burden is on the governmental unit as the

movant to meet the standard of proof. Id. If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the factfinder. Id. 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. Id.

II. Claims against the Newark Employees

The trial court properly dismissed Pixler’s claims against the Newark

Employees. “If a suit is filed . . . 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.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). Pixler sued

Newark, a “governmental unit.” Id. § 101.001(3)(B). The fact that the Newark

Employees were employees of Newark was not disputed. By suing Newark in

addition to Newark’s employees, the Newark Employees were entitled to immediate

dismissal of Pixler’s claims against them. See id. § 101.106(e). We therefore overrule

this portion of Pixler’s appeal.

III. Claims against Newark

Pixler seems to argue that he should be permitted to pursue his claims against

Newark on the basis of our holding that the trial court did not have jurisdiction to

consider the claim for the payment of administrative fees that was brought by

Newark. Not only does this argument fail to make sense, but Pixler provides no 5 authority for his argument that the trial court had any jurisdiction over his own claims

against Newark.

In fact, the trial court did not have subject-matter jurisdiction over Pixler’s

claims against Newark. The trial court could not consider Pixler’s claim that Newark

violated his rights to due course of law because there is no private right of action for

constitutional torts involving the Texas constitution. See City of Beaumont v. Boullion,

896 S.W.2d 143, 147 (Tex. 1995) (recognizing that courts may not look to the state

constitution to provide the elements of a cause of action). Newark was immune to

Pixler’s claim of intentional infliction of emotional distress because sovereign

immunity is not waived for intentional torts under the Texas Tort Claims Act. See

Tex. Civ. Prac. & Rem. Code Ann. § 101.057; Texas Dep’t of Public Safety v. Petta, 44

S.W.3d 575, 580 (Tex. 2001). And finally, to the extent that Pixler claims that Newark

(through its employees and agents) committed legal malpractice, such a claim is not

included in the Tort Claims Act’s limited governmental-immunity waiver for

negligence cases. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (providing that a

governmental unit in the state is liable for “property damage, personal injury, and

death” proximately caused by an employee if the damage, injury, or death arises from

the operation of a vehicle or motorized equipment). We therefore overrule the

remainder of Pixler’s arguments.

6 Conclusion

Having overruled Pixler’s arguments on appeal, we affirm the trial court’s

judgment.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice

Delivered: August 26, 2019