505 S.W.3d 24
Tex. App.2016Background
- After turning 65, Larry Vick timely filed a tax-deferral affidavit under Tex. Tax Code § 33.06 for his homestead; in 2010 the appraisal district removed the exemption and the taxing entities sued to collect ad valorem taxes.
- Vicks filed an affidavit in the tax suit seeking abatement under § 33.06(c); they also asserted the deferral and moved to dismiss the tax suit.
- During the abatement, Bank of America (the mortgagee) paid the taxes; the taxing entities subsequently nonsuited their collection claims.
- Vicks then filed a separate damages and declaratory-judgment suit against the taxing entities, the appraisal district, Linebarger Goggan Blair & Sampson LLP, attorney Rashay Chapa, and others alleging torts, fraud, misrepresentation, conspiracy, and seeking money damages and declaratory relief.
- Defendants filed pleas to the jurisdiction asserting governmental immunity (and derivative immunity for the attorneys). The trial court granted the pleas and severed claims; Vicks appealed from the now-final orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court has jurisdiction over the appeal (timeliness) | Vicks appealed after severance and within 30 days of final orders, making appeal timely | Appellees argued interlocutory appeal deadlines applied and notice was untimely | Appeal was timely because Vicks filed within 30 days after orders became final following severance; court has jurisdiction |
| Whether governmental immunity bars Vicks’ tort claims arising from tax collection | Vicks contended defendants’ actions (including nonsuit) and contacting Bank of America waived immunity and caused recoverable harms | Defendants argued tax assessment/collection claims are immune under Tex. Civ. Prac. & Rem. Code § 101.055(1) | Immunity applies: tort claims ‘‘arising in connection with the assessment or collection of taxes’’ are not waived; pleas to jurisdiction properly granted |
| Whether the attorneys (Linebarger/Chapa) are immune for advice/acts in tax-collection role | Vicks alleged attorneys improperly induced Bank of America to pay, creating tort liability | Defendants argued attorneys are agents performing a governmental function and share immunity of taxing unit | Attorneys entitled to derivative governmental immunity for acts performed as agents of taxing entities; plea properly granted |
| Whether UDJA or initiating the tax suit waived immunity or allowed declaratory relief for money damages | Vicks asserted UDJA waives immunity and that defendants’ filing of the tax suit waived immunity for related claims | Defendants argued UDJA does not create broad waiver for money damages and nonsuit ended the tax suit; waiver doctrines inapplicable | UDJA did not waive immunity because Vicks sought money damages and did not challenge statute/ordinance validity; initiating suit and subsequent nonsuit did not waive immunity; dismissal stands |
Key Cases Cited
- Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (framework for plea to the jurisdiction and pleading sufficiency)
- State v. Holland, 221 S.W.3d 639 (Tex. 2007) (liberal construction of pleadings; review standard)
- Reata Constr. Co. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (waiver of immunity when governmental unit files suit limited to claims germane to affirmative relief)
- Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736 (Tex. App.--Houston [1st Dist.] 2010) (agents performing tax-collection functions share governmental immunity)
- City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (UDJA cannot be used to recover money damages against a governmental unit absent waiver)
- City of Houston v. First City, 827 S.W.2d 462 (Tex. App.--Houston [1st Dist.] 1992) (section 101.055 preserves immunity for taxing units performing collection functions)