Opinion
No. 04-07-00127-CV
Delivered and Filed: December 28, 2007.
Appeal from the 73rd Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CI-20152, Honorable Joe Frazier Brown, Jr., Judge Presiding.
AFFIRMED
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This appeal stems from a settlement agreement between Appellant Justin Pieniazek and Appellee the City of San Antonio (City). Pieniazek filed a lawsuit against the City and the Chief of the San Antonio Fire Department, Robert Ojeda, seeking to rescind the settlement agreement. The City filed a plea to the jurisdiction based on sovereign immunity, which the trial court granted. On appeal, Pieniazek presents five issues essentially claiming the trial court erred in granting the City's plea to the jurisdiction. We overrule each of these issues and affirm the judgment of the trial court.
Background
Pieniazek serves as a fire fighter for the City of San Antonio Fire Department. In 2003, Pieniazek was drafted into the Emergency Medical Service. As a result, Pieniazek needed to pass a certification examination. Despite five attempts, Pieniazek failed to pass the examination.
After his third attempt, Pieniazek was notified that his failure to pass the examination could result in disciplinary actions. Pieniazek received an eight-day suspension upon failing the exam on his fourth attempt. Pieniazek appealed the eight-day suspension through the administrative process. During the pendency of the appeal, Pieniazek attempted the exam but failed. He was notified of a proposed fifteen-day suspension and that another failed attempt could result in termination. On January 8, 2004, the City of San Antonio and Pieniazek executed a settlement agreement. Most significantly, under the terms of the agreement, the City would not take any further disciplinary action against Pieniazek for his failure to pass the certification examination and Pieniazek would accept a demotion from fire apparatus operator to fire fighter.
Before the trial court and on appeal, Pieniazek asserts that the City did not have the authority to terminate his employment based on his failure to pass the certification examination and therefore, the settlement agreement should be rescinded. The City maintains the settlement agreement is binding and sovereign immunity bars Pieniazek's claims. The trial court granted the City's plea to the jurisdiction and dismissed Pieniazek's claims.
Standard of Review
We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Dept. of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In order to establish subject-matter jurisdiction, the pleader must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. In any suit against the State, the plaintiff bears the burden of affirmatively establishing the court's subject-matter jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). When reviewing a ruling on a plea to the jurisdiction, we accept the allegations in the petition as true and construe them in favor of the pleader. Miranda, 133 S.W.3d at 227. In addition to the pleadings, a court may also consider other relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
Analysis
In his live pleading, and as best as we can discern, Pieniazek alludes to or states the following claims: (1) breach of fiduciary duty; (2) fraud by concealment or nondisclosure; and (3) rescission or cancellation of the settlement agreement due to duress or mutual mistake. In his prayer, Pieniazek requests that:
the settlement agreement executed between him and the City . . . be cancelled, a nullity, and declared for naught, that he be restored to his previous rank, . . . that he further recover all emoluments of office lost as a result of this demotion, including but not limited to his difference in income, seniority, pension benefits, promotional opportunities, his reasonable attorney's fees. . . .
In the alternative, in the event the Court should find that recovery of Plaintiff's past compensation and loss of emoluments and claim for attorney's fees is not recoverable as a matter of law, he nevertheless prays the Court to cancel the settlement agreement and restore Plaintiff to his original position of Fire Alarm Operator in the San Antonio Fire Department.
Pieniazek claims that the trial court erred in granting the City's plea to the jurisdiction because (1) the actions of the Chief were unlawful and ultra vires, thus, the lawsuit is not a suit against the State and (2) his lawsuit is for unpaid goods and services pursuant to Chapter 271.151 et. seq. We disagree.
A. Unlawful Acts
In his first issue, and relying on Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002), Pieniazek contends that his lawsuit does not implicate sovereign immunity because it is not a suit against the State. In relevant part, the Texas Supreme Court in IT-Davy stated:
Private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority. But such suits are not "suits against the State." This is because suits to compel state officers to act within their official capacity do not attempt to subject the State to liability. Therefore, certain declaratory-judgment actions against state officials do not implicate the sovereign-immunity doctrine.
In contrast, declaratory judgment suits against the state officials seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities are suits against the State.
Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002).
Pieniazek's reliance on IT-Davy, however, is misplaced. Based on his pleadings, Pieniazek is not seeking to compel a state officer to act within his or her official capacity. Further, Pieniazek did not file a declaratory judgment action. Accordingly, we disagree with Pieniazek that his claims are not a suit against the State as contemplated in IT-Davy.
B. Breach of Contract
In his issues number two through five, Pieniazek asserts that his suit is one for a breach of contract and the State has waived sovereign immunity under Chapter 271.152 and 271.153 of the Local Government Code. Specifically, Pieniazek claims that he has a contract to render services to the City under the Collective Bargaining Agreement.
Section 271.152 of the Local Government Code provides:
A local government 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 for breach of the contract, subject to the terms and conditions of this subchapter.
Tex. Loc. Gov't Code Ann. § 271.152 (Vernon 2005) (emphasis added).
A "contract subject to this subchapter" is defined as "a written contract stating the essential terms of the agreement for providing goods or services to the local government entity that is properly executed on behalf of the local governmental entity." Tex. Loc. Gov't Code Ann § 271. 151(2).
While Pieniazek asserts that he is under a contract to provide services to the City, Pieniazek's petition makes no reference to a collective bargaining agreement and multiple references to the settlement agreement. In any event, Pieniazek does not claim a breach of any contract. Pieniazek's claims are neither for breach of the settlement agreement nor breach of the Collective Bargaining Agreement. Rather, he claims the settlement agreement is void or should be rescinded. As such, waiving sovereign immunity would not be for the purpose of adjudicating a claim for breach of the contract. Thus, Pieniazek has failed to state a claim within the statute's waiver of immunity for breach of contract actions.
Conclusion
Because Pieniazek failed to affirmatively establish the trial court's subject-matter jurisdiction by alleging a valid waiver of immunity from suit, we affirm the trial court's judgment.