                                  MEMORANDUM OPINION
                                         No. 04-10-00759-CV

                 SAN ANTONIO HOUSING AUTHORITY FOUNDATION, INC.
                       d/b/a San Antonio Housing Authority a/k/a SAHA,
                                          Appellant

                                                   v.

                             Herbert Allen SMITH and Missy Rene Smith,
                                             Appellees

                      From the 131st Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2009CI16412
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 17, 2011

REVERSED AND RENDERED

           This is an interlocutory appeal from the trial court’s denial of a plea to the jurisdiction

filed by appellant San Antonio Housing Authority Foundation, Inc. d/b/a San Antonio Housing

Authority a/k/a SAHA. On appeal, SAHA raises two issues, contending: (1) the trial court erred

in denying its plea to the jurisdiction, and (2) res judicata bars the Smiths’ claims. We reverse

the trial court’s order denying SAHA’s plea to the jurisdiction and render judgment dismissing

the Smiths’ claims.
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                                         BACKGROUND

       In 2007, Herbert Allen Smith and Missy Rene Smith were living in a home at 514

Precious, which was provided by SAHA. That year, the Smiths complained to SAHA about

mold in their home. SAHA moved the family to a temporary residence at Courtland Heights so

SAHA could “remediate” the problem. SAHA provided furniture to the Smiths during their stay

at Courtland Heights. The Smiths remained at Courtland Heights until 2008 when they moved

back into their home at 514 Precious. Almost immediately, the Smiths began to complain there

was still mold in the house. They also claimed that property they had left at 514 Precious during

their stay at Courtland Heights was supposed to be cleaned, but when they returned they found

some of the property damaged or missing.

       In March of 2008, SAHA moved the Smiths to a new home at 448 Precious. At this time,

the Smiths filed a damage claim with SAHA. SAHA paid the Smiths $41,000.00. SAHA

claimed the payment was for mold damage to personal property. From the record, it appears the

payment was for damages to property that occurred between June 18, 2007 and March 19, 2008.

       After moving into their new home at 448 Precious, the Smiths again complained of mold.

The Smiths filed a second claim for damages and a lawsuit. This time, SAHA paid to have the

Smiths’ personal belongings stored in a professional storage facility during the remediation of

the home at 448 Precious. According to SAHA, the second remediation was completed, but after

filing suit, the Smiths refused to pick up their personal belongings from the storage facility.

Because the Smiths would not pick up their property and the cost of storage was expensive,

SAHA moved the property to a SAHA warehouse, where the property apparently remains. The

Smiths claimed they requested the property be returned, but SAHA returned only a few items.




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The Smiths also claimed that when they viewed the items at the storage facility, they noted some

of their property was damaged.

       As noted above, the Smiths filed suit against SAHA. In their First Amended Petition,

which was the live pleading for purposes of the plea to the jurisdiction, the Smiths alleged claims

for negligence, retaliation, eviction, conversion, and takings. In response, SAHA filed an answer

and then a plea to the jurisdiction asserting sovereign immunity. After a hearing, the trial court

ruled by written order dated September 24, 2010, that SAHA’s plea should be granted as to the

Smiths’ claims for conversion and negligence, but denied as to their claims for retaliation,

eviction, and takings. SAHA thereafter perfected this interlocutory appeal.

       After the hearing on SAHA’s plea to the jurisdiction, the Smiths filed a Second Amended

Petition in which they alleged the same claims asserted in the First Amended Petition plus a

claim for breach of contract. By order dated October 28, 2010, the trial court severed the new

cause of action asserted in the Second Amended Petition from those ruled upon by the trial court

in its September 24, 2010 order. SAHA filed a plea to the jurisdiction in the severed cause and,

after a hearing, this plea to the jurisdiction was granted. We note that in the plea to the

jurisdiction in the severed cause, SAHA also asserted immunity as to the causes of action ruled

upon by the trial court in the first plea. SAHA apparently took this action because the Smiths

reasserted all of their claims in the Second Amended Petition.

       We hold, however, these claims were not severed into the new cause; rather, pursuant to

the specific language in the trial court’s October 28, 2010 order, only the cause of action not

ruled upon in the previous plea, i.e., the breach of contract claim, was severed. Accordingly, we

find this is the only claim to which the trial court’s order granting SAHA’s plea in the severed

cause was applicable. The Smiths appealed the granting of the plea in the severed cause to this



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court, but ultimately filed a motion to dismiss the appeal, which was granted. See Smith v. San

Antonio Housing Auth. Found., Inc., No. 04-10-00875-CV, 2011 WL 61195 (Tex. App.—San

Antonio Jan. 5, 2011, no pet.) (mem. op.). Accordingly, it is only the Smiths’ breach of contract

claim that was finally disposed.

                                                ANALYSIS

          SAHA raises two issues on appeal. SAHA first contends the trial court erred in denying

its plea to the jurisdiction as to the Smiths’ takings, eviction, and retaliation claims. SAHA also

contends the claims in this appeal are barred by res judicata based on the trial court’s order

granting the second plea to the jurisdiction.

                                        Plea to the Jurisdiction

          In its first issue, SAHA argues the trial court erred in denying its plea to the jurisdiction

because SAHA, as a governmental unit, is immune from liability as there has been no waiver of

immunity. It also argues the Smiths’ pleadings failed to state facts sufficient to support their

claims.

          Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A plea to the

jurisdiction challenges a court’s authority to determine the subject matter of the action. Texas

Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 387 (Tex. App.—Fort Worth 2008,

no pet.) (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). Therefore, a

claim of sovereign immunity is properly asserted in a plea to the jurisdiction. Miranda, 133

S.W.3d at 226.




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Retaliation

       In their petition, the Smiths asserted a claim for retaliation based on section 92.331 of the

Texas Property Code. That section gives tenants a right to recover against landlords who

retaliate by filing eviction actions or taking other adverse actions against tenants who, among

other things, ask the landlord for repairs. See TEX. PROP. CODE ANN. § 92.331 (West 2007). The

Smiths claimed SAHA retaliated against them for complaining about the mold “by engaging in

conversion and eviction.” SAHA argued in its plea to the jurisdiction, and on appeal, that

immunity is not waived for any claims arising out of an intentional tort, and retaliation is an

intentional tort.   SAHA therefore contends the trial court erred in denying its plea to the

jurisdiction as to the retaliation claim. We agree.

       The waiver of governmental immunity is a matter addressed to the Texas Legislature.

Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 775 (Tex. App.—Houston

[1st Dist.] 1999, pet. dism’d w.o.j.) (citing City of LaPorte v. Barfield, 898 S.W.2d 288, 291

(Tex. 1995)). To waive a governmental entity’s sovereign immunity, the Legislature must do so

in clear and unambiguous language.        Id.   Section 101.057 of the Texas Civil Practice &

Remedies Code, which is part of the Texas Tort Claims Act, specifically states there is no waiver

of immunity for intentional torts. TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West

2011); see Midland Indep. Sch. Dist. v. Watley, 216 S.W.3d 374, 383 (Tex. App.—Eastland

2006, no pet.); Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 356 (Tex. App.—San

Antonio 2000, pet. denied).

       In this case, the Smiths alleged SAHA damaged and destroyed their personal property

because the Smiths complained about mold in their housing unit. We hold retaliation, as alleged

by the Smiths, is an intentional tort. Cf. Walton v. Tex. Dep’t of Criminal Justice, No. 13-07-



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00656-CV, 2008 WL 3868113, at *1 (Tex. App.—Corpus Christi 2008, pet. denied) (mem. op.)

(affirming grant of plea to jurisdiction as to inmate suit that included retaliation claim, which

court described as intentional tort under section 101.057 of Civil Practice & Remedies Code).

Accordingly, the Smiths are statutorily precluded from asserting retaliation against SAHA. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.057. Because there has been no waiver of immunity

for the intentional tort of retaliation, we hold the trial court erred in not granting SAHA’s plea as

to this claim.

Takings

        In their petition, the Smiths alleged SAHA took and damaged their property without

adequate compensation in violation of Article 1, Section 17 of the Texas Constitution. See TEX.

CONST. art. I, § 17 (stating “[n]o person’s property shall be taken, damaged or destroyed or

applied to public use without adequate compensation being made, unless by the consent of such

person.”). To establish such a claim, the Smiths were required to plead facts establishing SAHA

(1) intentionally performed certain acts in the exercise of its lawful authority (2) that were a

proximate cause of the taking, damaging, or destroying of the Smiths’ property (3) for public

use. See City of Houston v. Boyle, 148 S.W.3d 171, 177 (Tex. App.—Houston [1st Dist.] 2004,

no pet.). In its plea to the jurisdiction, SAHA alleged the Smiths’ pleadings affirmatively negate

the trial court’s jurisdiction over the takings claim. SAHA also challenged the existence of facts

alleged by the Smiths to establish the trial court’s subject matter jurisdiction.

        Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject

matter jurisdiction is a question of law we review de novo. Miranda, 133 S.W.3d at 226. When

the plea to the jurisdiction challenges the pleadings, we must determine if the pleader has alleged

facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Id. The pleadings



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must be construed liberally in favor of the pleader, and we look to the pleader’s intent. Id. “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 plaintiffs should be afforded the opportunity to amend.” Id. If,

however, the pleadings affirmatively negate the existence of jurisdiction, then a plea to the

jurisdiction may be granted without allowing the pleader a chance to amend. Id.

       However, “[w]hen a plea to the jurisdiction challenges the existence of facts alleged by

the pleader to establish the trial court’s subject matter jurisdiction, as occurred in this case, the

trial court must consider relevant evidence submitted by the parties.” Miranda, 133 S.W.3d at

227 (citing Bland, 34 S.W.3d at 555). This standard generally mirrors that of a traditional

summary judgment. Id. at 228; TEX. R. CIV. P. 166a(c). Thus, the trial court may consider

affidavits and other summary judgment-type evidence. FKM P’ship v. Bd. of Regents of Univ. of

Houston Sys., 255 S.W.3d 619, 628 (Tex. 2008). The court takes as true evidence favorable to

the nonmovant and indulges every reasonable inference and resolves any doubts in the

nonmovant’s favor. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). It is for the

defendant to assert the absence of subject matter jurisdiction and present conclusive proof the

trial court lacks subject matter jurisdiction. Miranda, 133 S.W.3d at 228 (party asserting plea to

jurisdiction must meet summary judgment standard of proof); City of Austin v. Rangel, 184

S.W.3d 377, 382 (Tex. App.—Austin 2006, no pet.) (defendant must first establish as matter of

law absence of subject matter jurisdiction); Dallas County v. Wadley, 168 S.W.3d 373, 377, 378-

79 (Tex. App.—Dallas 2005, pet. denied) (plaintiffs had no burden on defendant’s plea to

jurisdiction until defendant met its burden).




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       If the defendant discharges this burden, the plaintiff must present evidence sufficient to

raise a material issue of fact regarding jurisdiction or the plea will be sustained. Miranda, 133

S.W.3d at 228; City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex. App.—Dallas 2008, pet.

denied). However, as with a traditional motion for summary judgment, if the defendant fails to

present conclusive proof of facts negating subject matter jurisdiction, the burden does not shift to

the plaintiff to establish the existence of an issue of material fact. See Wadley, 168 S.W.3d at

378-79. This means a defendant may not merely offer a pleading denying the existence of

jurisdictional facts and by so doing force the plaintiff to present evidence sufficient to raise an

issue of fact. Rangel, 184 S.W.3d at 382; cf. TEX. R. CIV. P. 166a(i) (no-evidence motion for

summary judgment). The plaintiff is thus protected from having to put on its case simply to

establish jurisdiction. See Miranda, 133 S.W.3d at 228; Wadley, 168 S.W.3d at 377.

       We shall deal with SAHA’s evidentiary challenges first. SAHA submitted evidence to

controvert certain factual allegations made by the Smiths in support of jurisdiction with regard to

the takings claim. We must, therefore, consider that evidence to decide this jurisdictional

challenge. See Miranda, 133 S.W.3d at 231. SAHA contends, among other things, it presented

evidence that conclusively proves SAHA did not take or damage the Smiths’ property for public

use; rather, the undisputed evidence established SAHA merely stored the property during the

mold remediation. SAHA contends this negates the Smiths’ takings claim. We agree.

       Attached to SAHA’s plea to the jurisdiction is an affidavit from Jennifer Gonzales, the

Risk Specialist for SAHA. In her affidavit, Gonzales averred that when the Smiths were first

moved from their home during the initial mold remediation, the property was at all times stored

in a mobile storage unit on the home’s driveway. When the Smiths made their second mold

complaint, their personal property was packed by Armstrong Moving and Storage Company at



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the direction of SAHA. According to Gonzalez, the Smiths’ property was always stored in the

possession of either Armstrong Moving and Storage Company or SAHA.

       Gonzales’s testimony establishes as a matter of law that the Smiths’ property was stored

at all times, thereby establishing an absence of public use of that property. Because SAHA

established as a matter of law an absence of a taking for public use, it was incumbent upon the

Smiths to present evidence sufficient to raise a material issue of fact regarding jurisdiction. We

have reviewed all of the evidence attached to the Smiths’ response to the plea to the jurisdiction

and the record, and cannot find even a scintilla of evidence that SAHA took the Smiths’ property

and damaged it for some public use. In fact, it is clear from the record that the Smiths agree their

property was in storage during each remediation, and continues to be held in storage to date.

       Accordingly, we conclude the evidence in the record establishes SAHA did not take and

damage the Smiths’ personal property for a public use. The Smiths have failed to raise a fact

issue regarding this element of their takings claim. Therefore, the trial court lacked subject

matter jurisdiction over this claim and should have granted SAHA’s plea with regard to the

takings allegation.   Given our holding on the takings claim, we need not review SAHA’s

evidentiary challenge to another element of the takings claim, nor are we required to review

SAHA’s challenges to the Smiths’ pleadings.

Eviction

       In their live petition, the Smiths claimed SAHA wrongfully evicted them, violating

landlord duties under numerous provisions of the Texas Property Code. In response, SAHA

presented evidence in an attempt to negate the Smiths’ allegation of eviction. We will again

consider SAHA’s evidence to decide whether the trial court has jurisdiction over this claim. See

Miranda, 133 S.W.3d at 231.



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       SAHA presented as evidence in support of its plea the properly authenticated depositions

of the Smiths, both Missy and Herbert. In Missy’s deposition, she was asked what SAHA did

that constitutes an eviction. In response, Missy testified SAHA filed several eviction notices, but

admitted, “They never evicted me or nothing, just take me to court.” When specifically asked if

she was ever “actually” evicted, Missy said, “No.”

       Similarly, Herbert admitted there had never been an actual eviction. Rather, according to

both Missy and Herbert, they considered it an eviction when the family was asked to move to

another SAHA dwelling because of mold contamination and when SAHA filed suit for the

Smiths’ failure to pay rent. Both admitted, however, there was never any actual, legal eviction.

       The Smiths’ deposition testimony, which was submitted as evidence in support of

SAHA’s plea to the jurisdiction, establishes as a matter of law that the Smiths were never

evicted. Rather, the evidence shows SAHA moved the Smiths to other locations when the

Smiths complained about mold contamination. We have found nothing in the record to establish

the Smiths were ever actually “evicted.” We must therefore conclude the trial court lacked

subject matter jurisdiction over the Smiths’ eviction claim.

       Having determined the trial court lacked jurisdiction over the Smiths’ retaliation, takings,

and evictions claims, we sustain SAHA’s first issue and hold the trial court erred in denying

SAHA’s plea to the jurisdiction as to these claims. Given our disposition of this issue, we need

not reach SAHA’s claim that this appeal is moot under the doctrine of res judicata.




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                                           CONCLUSION

       Based on the foregoing, we sustain SAHA’s first issue. We hold the trial court erred in

denying SAHA’s plea to the jurisdiction. We reverse the trial court’s judgment and dismiss the

Smiths’ retaliation, takings, and eviction claims for lack of subject matter jurisdiction.


                                                   Marialyn Barnard, Justice




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