Ali R. Ondemir v. Bexar County Clerk and Bexar Appraisal District

No. 04-00-00497-CV Ali R. ONDEMIR, Appellant v. BEXAR COUNTY CLERK and Bexar Appraisal District, Appellees From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2000-CI-07524 Honorable Andy Mireles, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Alma L. López, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: September 26, 2001 AFFIRMED Ali R. Ondemir appeals both the summary judgment rendered against him and the granting of special exceptions and dismissal with prejudice of his claims against the Bexar County Clerk (BCC) and the Bexar Appraisal District (BAD). We affirm the trial court's judgments. Factual and Procedural Background In October of 1997, Ondemir filed a court order with the BCC's office indicating transfer of title to a residential property from himself to Ocwen Federal Bank. However, due to a clerical error in recording the court's order, the BCC's records continued to reflect Ondemir as owner of the property. The BAD records, based on the BCC records, likewise reflected that Ondemir owned the property, when in fact, title had been transferred to the bank. A homeowner's association assessed a $150 fee on the property for the period of October 1996 through December 1997. Ondemir paid the $150 fee, as well as an additional $90 late fee. Ondemir filed this suit for monetary damages against BCC and BAD. BAD filed special exceptions to Ondemir's original petition. Ondemir filed a response and a first amended original petition. A hearing was held on BAD's special exceptions, and the trial court found that BAD's affirmative defense of sovereign immunity was established on the face of the Plaintiff's petition. The court further found that the nature of the claims asserted by Ondemir and the immunity defense asserted by BAD were such that the defects in Ondemir's pleadings could not be cured by further amendment. The trial court, therefore, granted BAD's special exceptions and dismissed Ondemir's claims with prejudice. BCC moved for summary judgment with regard to all of Ondemir's claims, also claiming sovereign immunity. BCC asserted that as Ondemir's only complaint was that the clerk's office incorrectly recorded and reflected the property title information, he did not present a viable claim under the Texas Tort Claims Act. The trial court granted summary judgment in favor of BCC. Ondemir brings this appeal, challenging the trial court's orders dismissing his claims against BAD and granting BCC's summary judgment. Sovereign Immunity The Texas Supreme Court "has long recognized that sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State." Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (citations omitted), overrruled on other grounds by Gen. Serv. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001). Sovereign immunity consists of two distinct principles, immunity from suit and immunity from liability. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Immunity from suit bars an action against the State unless it expressly consents to the suit. Id. (citing Fed. Sign, 951 S.W.2d at 405; Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970)). The party suing the governmental entity must establish the State's consent, which may be alleged either by reference to a statute or to express legislative permission. Id. (citations omitted). Immunity from liability protects the State from judgments even if the Legislature has expressly given consent to the suit. Fed. Sign, 951 S.W.2d at 405 (citation omitted). The Texas Tort Claims Act creates a limited waiver of sovereign immunity. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). The waiver applies only when the damages are caused from the operation or use of a motor-driven vehicle or equipment or by a condition or use of tangible personal or real property. Id. Special Exceptions BAD asserted in its special exceptions that Ondemir failed to allege a valid cause of action and that the facts as alleged in Ondemir's petition established BAD's affirmative defense of governmental immunity. Ondemir filed a response to the special exceptions and amended his petition. In his amended petition, Ondemir pled three causes of action: (1) negligence; (2) breach of contract; and (3) obstruction of justice. As to the negligence cause of action, he asserted that his claim was actionable against BAD under the Texas Tort Claims Act, because his claim involved the use or condition of tangible personal property. Ondemir argues that under the Texas Tort Claims Act, BAD is not immune from suit as his injuries were caused by the use of BAD's computers, which are tangible personal property. He also asserts that the negligent keeping of files, records or other documentation may be grounds for a suit under the exception as a use or condition of tangible personal property. Ondemir's claim is for damages arising from BCC's misfiling of information which BAD, in turn, erroneously reflected in its records. This fact scenario does not fit within the Tort Claims Act limited waiver. The Texas Supreme Court has held that information "is an abstract concept, lacking corporeal, physical, or palpable qualities." Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 179 (Tex. 1994). The fact that information is recorded in writing does not render it tangible. Id. Thus, the Legislature has not eliminated governmental immunity for dangers resulting from the misuse of information, even if that information is in writing. Id. Following York, the Eastland Court of Appeals held that information put "in the wrong category in the computer" is a case of misuse of information, not a case of misuse of tangible property. Martinez v. City of Abilene, 963 S.W.2d 559, 560-61 (Tex. App.--Eastland 1998, no pet.). Likewise, the First Court of Appeals held that the government does not waive immunity through the erroneous use of information contained in the computer or the computer printout. Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 312 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). Ondemir's claims are factually similar to the above-discussed cases. Accordingly, we find that Ondemir's negligence claims are not waived by the Texas Tort Claims Act. Ondemir's breach of contract and obstruction of justice claims also fail. Ondemir has not identified a contract that was subject to breach. And, obstruction of justice is not a civil cause of action; rather, it is a criminal act subject to prosecution under the Texas Penal Code. See Carney v. State, 31 S.W.3d 392, 395 (Tex. App.-Austin 2000, no pet.) (discussing that statute under consideration was "one of a number of Texas penal statutes related to the obstruction of justice"). Ondemir cites no legal authority permitting a civil suit for obstruction of justice. Therefore, the trial court did not err by dismissing Ondemir's claims against BAD. Summary Judgment The underlying purpose of Texas' summary judgment rule is to eliminate unmeritorious claims. City of San Antonio v. Bullock, 34 S.W.3d 650, 652 (Tex. App.-San Antonio 2000, pet. denied) (citing Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989)). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff's claims, or establishes all elements of an affirmative defense to each claim. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). BCC filed a summary motion judgment, asserting the affirmative defense of sovereign immunity. Ondemir's claims against BAD are similar to his claims against BCC, as they are based on incorrectly recorded title information. BAD is likewise immune from liability as Ondemir's claims do not fall within the Texas Tort Claims Act. See Fed. Sign, 951 S.W.2d at 405. We hold that the trial court's summary judgment was proper. Conclusion We find that the trial court did not err in dismissing Ondemir's claim against BCC, nor did it err in granting summary judgment in BAD's favor. We affirm the judgments of the trial court. Karen Angelini, Justice DO NOT PUBLISH