In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-05-00433-CV
THE =
CITY OF=20
HOUSTON, Appellant
V.
U.S. =
FILTER=20
WASTEWATER GROUP, INC., Appellee
On =
Appeal from the=20
334th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2005-12322
O P I =
N I O=20
N
<=
/SPAN>The City of Houston brings this interlocutory =
appeal from=20
the trial court=E2=80=99s denial of the City=E2=80=99s plea to the =
jurisdiction, ![3DFootnote](3D"")
which it filed in response to U.S. =
Filter=20
Wastewater Group, Inc.=E2=80=99s Rule 202 presuit discovery =
petition. We=20
affirm
BACKGROUND
<=
/SPAN>The=20
City released a competitive bid proposal related to the =
procurement of=20
goods and services for odor control for use in conjunction with =
its=20
wastewater treatment operations. In December 2004, the City =
awarded the=20
bid to Altivia Corporation =
[=E2=80=9CAltivia=E2=80=9D].
<=
/SPAN>U.S.=20
Filter Wastewater Group, Inc. [=E2=80=9CU.S. Filter=E2=80=9D], =
which previously=20
demonstrated its patented odor treatment process to the City, =
contends=20
that the bid process was improper because the City structured the =
bid as a=20
request for the purchase of the chemicals contained in, but not =
covered=20
by, U.S. Filter=E2=80=99s patented process. U.S. Filter seeks to =
investigate=20
whether the City and Altivia, the high bidder, are using the =
chemicals the=20
City obtained through the bid process in such a manner as to =
violate U.S.=20
Filter=E2=80=99s patented odor control process.
<=
/SPAN>Pursuant=20
to Rule 202 of the Texas Rules of Civil Procedure, U. S. Filter =
filed a=20
petition in the trial court to take the presuit depositions of two =
employees of the City of Houston. U.S. Filter =E2=80=9Cseeks by =
[its] petition to=20
investigate a potential claim or suit against the City of Houston =
and=20
Altivia for the violation of proper competitive bidding procedures =
under=20
applicable State and Municipal law, potential theft of trade =
secrets=20
and/or misappropriation, and/or for the ongoing violation of its=20
intellectual property rights.=E2=80=9D U.S. Filter=E2=80=99s Rule =
202 petition also=20
alleged that =E2=80=9C[a]n important factual element regarding =
such potential=20
claims concerns the matter in which the City of Houston is using =
the=20
commodity chemical procured from Altivia Corporation. [U.S. =
Filter]=20
believes and therefore avers that the deponents Messrs. Mehta and =
Manno,=20
are the individuals most knowledgeable concerning such =
facts.=E2=80=9D=20
<=
/SPAN>The=20
City filed special exceptions, which the trial court granted. =
However, the=20
trial court conditioned the grant of the City=E2=80=99s special =
exceptions on the=20
City responding, by affidavit, to U.S. Filter=E2=80=99s questions =
about how the=20
chemicals obtained through the bidding process were being=20
used.
<=
/SPAN>The=20
City did not respond to U.S. Filter=E2=80=99s written questions, =
and, instead,=20
filed a plea to the jurisdiction. After an oral hearing at which =
no=20
evidence was adduced, the trial court denied the City=E2=80=99s =
plea to the=20
jurisdiction and ordered the City to present its =
employees=E2=80=94Yogesh Mehta=20
and Sal Manno=E2=80=94for deposition. This interlocutory appeal=20
followed.
DENIAL =
OF PLEA TO=20
THE JURISDICTION
<=
/SPAN>In=20
two issues on appeal, the City contends that the trial court erred =
by=20
denying its plea to the jurisdiction because (1) U.S. Filter =
failed to=20
state a potential state law claim against the City which could =
confer=20
jurisdiction on the trial court to order presuit depositions and =
(2) U.S.=20
Filter=E2=80=99s sole potential federal claim=E2=80=94patent =
infringement=E2=80=94cannot be=20
brought in state court.
Standard of=20
Review
<=
/SPAN>A=20
plea to the jurisdiction is a dilatory plea by which a party =
challenges a=20
court=E2=80=99s authority to determine the subject matter of the =
action. Bland=20
ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a =
dilatory=20
plea is not to force the plaintiffs to preview their case on the =
merits=20
but to establish a reason why the merits should never be reached.=20
Id. Because the question of subject matter jurisdiction is =
a legal=20
question, we review the trial court=E2=80=99s ruling on a plea to =
the jurisdiction=20
under a de novo standard of review. Mayhew v. Town of =
Sunnyvale,=20
964 S.W.2d 922, 928 (Tex. 1998).
<=
/SPAN>The=20
party suing the governmental entity bears the burden of =
affirmatively=20
showing that the trial court has jurisdiction. Tex. =
Dep=E2=80=99t of Criminal=20
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). To =
determine=20
whether U.S. Filter has affirmatively demonstrated the trial =
court=E2=80=99s=20
jurisdiction to hear the case, we consider the facts alleged in =
the=20
petition and any evidence pertinent to the jurisdictional inquiry. =
Tex.=20
Natural Res. Conservation Comm=E2=80=99n v. White, 46 S.W.3d =
864, 868 (Tex.=20
2001); Bland ISD, 34 S.W.3d at 555. We examine the claims =
in the=20
pleadings, taking as true the facts pleaded, and determine whether =
those=20
facts support jurisdiction in the trial court. Baston v. City =
of Port=20
Isabel, 49 S.W.3d 425, 427-28 (Tex. App.=E2=80=94Corpus =
Christi 2001, pet.=20
denied).
<=
/SPAN>We=20
must construe the pleadings in the plaintiff=E2=80=99s favor and =
look to the=20
pleader=E2=80=99s intent. County of Cameron v. Brown, 80 =
S.W.3d 549, 555=20
(Tex. 2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 =
(Tex.=20
1989). A plaintiff bears the burden to allege facts affirmatively=20
demonstrating the trial court=E2=80=99s jurisdiction to hear a =
case. Tex. Ass=E2=80=99n=20
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. =
1993). If a=20
plaintiff pleads facts that affirmatively demonstrate an absence =
of=20
jurisdiction, and the defect is incurable, then the cause is =
properly=20
dismissed. Id. If the plaintiff=E2=80=99s pleadings are =
insufficient to=20
demonstrate the court=E2=80=99s jurisdiction, but do not =
affirmatively show=20
incurable defects in jurisdiction, the proper remedy is to allow =
the=20
plaintiff an opportunity to amend before dismissal. Brown, =
80=20
S.W.3d at 555; Peek, 779 S.W.2d at 805.
Law =
and=20
Analysis
<=
/SPAN>Rule=20
202 of the Texas Rules of Civil Procedure provides as=20
follows:
&=
nbsp; A=20
person may petition the court for an order authorizing the taking =
of a=20
deposition on oral examination or written questions=20
either:
(a) to perpetuate or obtain the =
person=E2=80=99s own=20
testimony or that of any other person for use in an anticipated =
suit; or=20
b) to investigate a potential claim or=20
suit.
Tex. R.=20
Civ. P. 202.1.
<=
/SPAN>The=20
City contends that the trial court erred by ordering its employees =
deposed=20
because =E2=80=9CU.S. Filter failed to state any valid potential =
state law cause=20
of action which could serve as the future basis for bringing suit =
in state=20
court against the City.=E2=80=9D Specifically, the City contends =
that it is immune=20
from any state law claims and that the only potentially actionable =
claim=20
against it=E2=80=94patent infringement=E2=80=94lies exclusively in =
federal court. In sum,=20
the City argues that, because there is no possibility of liability =
against=20
it if suit were ever filed in state district court, the state =
district=20
court, likewise, has no jurisdiction over the Rule 202=20
petition.
<=
/SPAN>Even=20
if we were to agree that the state district court would have no=20
jurisdiction over the City for the claims that U.S. Filter =
seeks to=20
investigate, the district court would have jurisdiction over=20
Altivia. For example, if the depositions reveal facts =
constituting=20
a civil conspiracy between the City and Altivia, U.S. Filter could =
pursue=20
a claim against Altivia, even if the City were =
immune.
See Dennis v. Sparks, 499 U.S. =
24, 30, 101=20
S. Ct. 183, 186=E2=80=9387 (1980) (holding that immunity given =
judge under section=20
1983 does not inure to benefit of those accused of conspiring with =
him);=20
B. K. v. Cox, 116 S.W.3d 351, 358=E2=80=9359 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 2003, no pet.) (holding that private individuals who =
conspired with=20
judge could be sued, even though judge could not). There is no =
requirement=20
in Rule 202 that the person sought to be deposed be a potentially =
liable=20
defendant in the claim under investigation.
<=
/SPAN>Because=20
a portion of the claim under investigation=E2=80=94a claim against =
Altivia=E2=80=94is=20
under the jurisdiction of the state district court, the court did =
not err=20
in denying the City=E2=80=99s plea to the jurisdiction. See =
City of Willow Park=20
v. Squaw Creek Downs, L.P., 166 S.W.3d 336, 340=E2=80=9341 =
(Tex. App.=E2=80=94Fort=20
Worth 2005, no pet.) (holding city=E2=80=99s plea to the =
jurisdiction in Rule 202=20
proceeding properly denied because district court had jurisdiction =
over=20
portion of claim under investigation, even if city and =
governmental agency=20
had exclusive jurisdiction over another portion of=20
claim).
CONCLUSION
<=
/SPAN>We=20
affirm the trial court=E2=80=99s order denying the City=E2=80=99s =
plea to the=20
jurisdiction.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Sherry=20
Radack
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Chief=20
Justice
Panel consists of Chief Justice Radack =
and=20
Justices Alcala and=20
Bland.