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 ( 2019 )

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
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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.
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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.
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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
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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
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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.
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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
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