RFVlRSE and 1)ISNIISS; Opinion issued Ioveniher 14, 2012




                                               In The
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                          3fiftli itrirt uf t!rxa at Ja11zii
                                       No. 05-12-00165-CV


                       RICHARDSON HOSPITAL AUTHORITY, Appellant

                                                 V.

                             PLACIDUS NNAMDI DURU, Appellee


                         On Appeal from the County Court at Law No. 1
                                     Dallas County, Texas
                             Trial Court Cause No. CC-iO-07860-A


                                           OPINION
                        Before Justices O’Neill, FitzGerald, and Lang-Miers
                                   Opinion By Justice FitzGerald

        Richardson Hospital Authority (“RHA”) brings this interlocutory appeal from the trial court’s

partial denial of RiIA’s Motion to Dismiss for Lack of Jurisdiction (the “Motion”). RHA raises a

single issue in this Court, contending the trial court erred in refusing to dismiss three of Placidus

Nnamdi Durus claims for lack of subject rnatterjurisdiction. Vvre agree with RHA. Accordingly,

we reverse the trial court’s order in relevant part. and we dismiss Duru’s action for lack of subject

matter jurisdiction.

                                          BAcKGRouND

        Appellee Duru was hired as a nursing assistant at Richardson Hospital in June 2004. In

November 2006. an elderly female patient accused Duru of sexual abuse. [)uru was indicted, and
the hospital terminated his employment. Four years later, on the day of trial, the State dismissed his

case. Duru sued the hospital for malicious prosecution. business disparagement, breach of contract,

and unjust enrichment. RIIA included a general plea to the jurisdiction in its original answer. It

subsequently filed a combined motion to dismiss for lack of jurisdiction and summary judgment

motion.      Ehe trial court granted the Motion as to the malicious prosecution claim: that ruling has

not been appealed. The court otherwise denied the Motion. RFIA appeals. contending the remaining

claims—business disparagement, breach of contract, and unjust enrichment—should have been

dismissed as well.

                                MOTION TO DISMISS FOR LACK OF JURIsDIcTION


          RHA contended in the Motion that it was protected from Duru’s claims by sovereign

immunity.       Sovereign immunity (or governmental immunity in the case of local—government

subdivisions) deprives courts of subject matter jurisdiction. Rusk Stale Hosp. v. Black, No. 10-0548,

2012 WL 3800218. at *5 (Tex. Aug. 31, 2012). RHA is a governmental unit within the meaning of

the Tort Claims Act. see Edinhurg Hosp. Auth.                       i’. Trevino,     941 S.W.2d 76. 85 (Tex. 1997). and a

local governmental entity for purposes of chapter 271 of the local government code. See TEx.

LOCAL Gov’T CODE             ANN.     §   271.15 1(3)(C) (West 2005). The parties agree, therefore, that RHA

enjoys governmental immunity absent an express waiver of that immunity.

          Duru has made arguments both below and in this Court contending RHA’s immunity is

predicated on whether its activities were governmental or proprietary. 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.




     The trial courts ruling on the summary judgment motion is not subject to an interlocutoi appeal it is not heftre us
PRAQ. & REM. CO[)E ANN.     §   101 .0215 (West 2011). A hospital authority is not a municipality, and

it is not treated as one under Texas law. See Edinburg Tbsp. Auth., 941 S.W.2d at 85. Thus, I)uru’s

arguments concerning classification of RFIA’s activities as governmental or proprietary are not

relevant in this case.

        A motion to dismiss based upon a lack ofjurisdiction is the functional equivalent of a plea

to the jurisdiction; both challenge the trial court’s power to determine the subject matter of a claim.

Patton v. Jones. 212 S.W.3d 541, 545 (Tex. App.-Austin 2006, pet. denied). The existence of

subject matter jurisdiction is a question of law, and we review the trial court’s ruling de novo. Tex.

Dep ‘t of Parks & Wi1dli/ v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). When the plea

challenges the claimant’s pleadings, we determine whether the claimant has pleaded facts that

affirmatively demonstrate the trial court’sjurisdiction, construing the pleadings liberally and in favor

of the claimant. Id. at 226. 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 the jurisdictional issue, then the plea

can be resolved as a matter of law. Id. If the evidence raises a fact question on the jurisdictional

issue, then the fact finder must resolve the issue at trial. Id. Because the issue before us is subject

matter jurisdiction, we are not limited to arguments made in the trial court; we remain mindful, of

course, ofwhether Duru could address anyjurisdictional issues by amending his pleadings. See Rusk

State Hosp., 2012 WL 3800218, at *6.

        We review Duru’s three remaining claims in turn to determine whether each one falls within

a waiver of RHA’s immunity.




                                                  —j—
                                        B?Lciness Disparagement

        Duru alleges that RI-IA forwarded false and misleading representations about the alleged

abuse to a third party credit reporting agency. which published the representations. Duru claims the

publication caused him to lose employment offers and injured his employment reputation. The Tort

Claims Act does not waive immunity for intentional torts. See TEx. Civ. PRAc. & REM. CODE ANN.

S 101.057(2) (West 2011) (“This chapter does not apply to a claim.., arising out of assault. battery,

false imprisonment, or any other intentional tort.’). Business disparagement is an intentional tort.

See Forbes inc. v. Granada Biosciences, inc. 124 S.W.3d 167, 170 (Tex. 2003) (elements are “the

defendant published false and disparaging information about it. (2) with malice. (3) without

privilege. (4) that resulted in special damages to the plaintiff’); see also Elhio Exp. Shuttle Serv., Inc.

v. City ofHouston. 164 S.W.3d 751, 758 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (business

disparagement is intentional tort for which sovereign immunity is not waived). Thus. business

disparagement does not fall within a waiver of RI-iA’s immunity. Because Duru’s pleadings

aflrmatively negate jurisdiction in this case, the trial court should have granted the Motion on this

issue and dismissed the claim. See Miranda, 133 S.W.3d at 227; see also County o/ Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002).

                                          Breach of Contract

        Duru contends he contracted with RHA to provide him legal services. Duru alleges RHA

withheld just under seven dollars from his bimonthly paychecks as consideration for this agreement,

but RHA failed to provide the services when Duru was charged with sexual abuse. We construe

these pleadings liberally in Duru’s favor, and we look to his intent. See Miranda, 133 S.W.3d at

226.




                                                   -4-
          The Texas Lecislature has waived a local uovernmental entity’s immunity for breach—of’—

contract claims in certain limited circumstances:

          A local overnmenial entity that is authorized by statute or the constitution to enter
          into a contract and that enters into a contract subject to this subchapter waives
          sovereign immunity to suit for the purpose of adjudicating a claim [or breach of the
          contract. subject to the terms and conditions of’ this subchapter.

TEx.   LOCAL   Gov’T CODE ANN.    § 271.1 52.   The term “contract subject to this subchapter” is defined

within the statute:

          “Contract subject to this subchapter” means 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.

Id.   § 271.151(2) (emphasis added).   But Duru’s claim is that he contracted with RHA, not to provide

goods or services to RF-IA. but to receive services from RI-IA. namely legal services. Thus. if we

assume—without deciding—that Duru’s pleadings are sufficient, and if we take all his allegations

as true. the “contract’ he has pleaded does not fall within the limited legislative waiver of RHA’s

immunit. See Id. Once again, Duru’s pleadings affirmatively negate jurisdiction.

          In addition. RHA challenged the existence of a jurisdictional fact in this case, namely a

written contract between Duru and RHA. Therefore, even assuming adequate pleadings by Duru.

RHA had the burden to assert and support its jurisdictional contention with evidence. Miranda, 133

S.W.3d at 228. RHA did come forward with evidence establishing that the legal-services benefit

chosen by Duru was not a written contract with RI-IA, hut merely an employment benefit facilitated

by RHA.       According to RI-lA’s evidence. RIIA deducted Durus premium and immediately

forwarded it to MetLife Insurance Company, which administered the legal-insurance plan provided

by Hyatt Legal Services. Once RHA offered evidence indicating there was no contract between Dunt

and RI-IA. Duru needed to raise a material fact issue regarding the jurisdictional fact to survive the
Motion. hi. 1-le did not do so. fhus. the only evidence before the trial court was that there was no

written contract between the parties. Because the evidence did not raise a tact question on the

jurisdictional issue, the Motion can be resolved as a matter of law on this ground as well. Id.

       Thus, whether we focus on Duru’s pleading or the existence of jurisdictional facts, the result

is the same: there is no waiver of Ri-lA’s governmental immunitY. The trial court should have

dismissed the breach-of-contract claim for lack of subject matterjurisdiction.

                                        Unjust Enrichment

       Finally, Duru contends that RHA deducted $6.92 from each of his paychecks as payment for

a legal-services plan. I-Ic argues that because he was not afforded representation under that plan.

RHA was unjustly enriched. Duru seeks recovery of the premiums he paid under this theory.

       This Court has held that unjust enrichment is not an independent cause of action. The term,

instead, “characterizes the result of a failure to make restitution of benefits either wrongfully or

passively received under circumstances which give rise to an implied or quasi-contractual obligation

to repay.” Walker v. (‘otter Properties, Inc., 181 S.W.3d 895, 900 (Tex. App.—Dallas 2006. no

pet.): see also Ox/ird Fin. (‘os. v. Velez, 807 S.W.2d 460. 465 (Tex. App.—Austin 1991. writ

denied). The unjust enrichment doctrine applies principles of restitution to disputes in which no

actual contract exists. In re Guardianship of Fortenberrv. 261 S.W.3d 904,915 (Tex. App.—Dallas

2008, no pet.). It is based on the equitable principle that one who receives benefits that would be

unjust to retain, should make restitution of those benefits. Id. Of course, to the extent that an

independent cause of action for unjust enrichment does not exist, Duru’s claim could not fall within

a waiver of governmental immunity, and it should have been dismissed.

       If we construe Duru’s pleadings liberally and look to his intent, it is clear he has attempted

to make an equitable claim for the return of money which, he claims. RI-IA has retained unfairly.
1-lowever. the 1   exas   Legislature has not created a wai ‘er of governmental immunity for equitable

claims that seek money damages. “The primary purpose of governmental immunity from suit is to

protect state agencies and their officials from lawsuits for damages.” .lnderson v. City q!McKinney,

236 S.W.3d 481. 482 (Tex. App.—Dallas 2007. no pet.). Thus, regardless of the nature of the

equitable claim, if money damages are the remedy sought. then the claim is barred by governmental

immunity. See, e.g.. Ilarris (‘ouniv Flood Control Disi. v. Great Am. Ins. Co.. 309 S.W.3d 614. 617

(Tex. App.—llouston [14th Dist.] 2010, no pet.) (quantum meruit): City ofSeagoville v. Lylle. 227

S.W.3d 401, 410(Tex. App—Dallas 2007. no pet.) (declaratory judgment); Bell v. City of Grand

Prairie. 221 S.W.3d 317. 325 (Tex. App.—--Dallas 2007, no pet.) (injunction). Thus, even if RHA

retained the benefit of Durus services without paying lbr them. his claim would sound in quantum

meruit, and it would be barred by immunity. See Harris County Flood Control 131st., 309 S.W.3d

at 617.

          The sole exception we have found to this rule is when officers of the governmental entity are

wrongfully withholding money from the rightful owner; under those circumstances, a claim for

return of the mone may sometimes be heard. See, e.g., WD. Haden Co. v. Dodgen. 308 S.W.2d

838, 841 (Tex. 1958) (“suits for property alleged to be unlawfully or wrongfully withheld from the

rightful owner by officers of the state are not suits against the sovereign itself and may be maintained

without permission of the sovereign”): City ofRound 1?ock v. Whiteciker, 241 S.W.3d 609, 634-35

(Tex. App.-----Austin 2007, pet. denied) (‘suits to recover money or other property wrongfully taken

or withheld by state officials from their rightful owners do not implicate sovereign imnmnity

because, in concept, the disputed property never belongs to the state”). But there is no evidence in

Duru’s case that any officer or employee of RHA has ever wrongfully held any of the premiums
RI-IA deducted IIom his paycheck. The only evidence is to the contrary. i.e.. that those premiums

were all forwarded immediately to MetLife.

       Durus unjust enrichment claim does not fall within a waiver of RF-IA’s governmental

immumtv: this claim should have been dismissed as well.

                                           CoNCLUSION

       We have concluded that RI-IA retains its   immunity for     all claims brought against it by Duru.

We sustain RI-lA’s appellate issue. and we reverse the portion of the trial court’s order that denied

the Motion as to Duru’s claims for business disparagement. breach of contract, and unjust

enrichment. We dismiss Duru’s action in its entirety for lack of subject matter jurisdiction.




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                                               ---8---
                               (!nurt uf Atipia1
                        Yift1 Diatrirt nf Jixa at DuI1a
                                       JUDGMENT
RiCHARDSON HOSPITAL AUTHORITY,                     Appeal from the County Court at Law No. 1
Appellant                                          of Dallas County. Texas. (Tr.Ct.No. CC-b
                                                   07860-A).
ISo. 05-12-00l65-CV          V                     Opinion delivered by Justice FitzGerald.
                                                   Justices O’Neill and Lang-Miers
PLACIDUS NNAMDI DURU, Appellee                     participating.


        In accordance with this Court’s opinion of this date. the order of the trial court is
REVERSED insofar as it denied the Motion to Dismiss for Lack of Jurisdiction as to claims for
business disparagement. breach of contract, and unjust enrichment. This cause is DISMISSED
for lack of subject matterjurisdiction. It is ORDERED that appellant Richardson Hospital
Authority recover its costs of this appeal from appellee Placidus Nnamdi Duru.


Judgment entered INovember 14, 2012.


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