City of Houston v. Harris
| Decision Date | 16 March 2006 |
| Docket Number | No. 14,14 |
| Citation | 192 S.W.3d 167 |
| Parties | CITY OF HOUSTON, Appellant, v. Thomas and Chorlottiea HARRIS, Individually and as Next Friend of Joshua Harris, a Minor, Appellees. |
| Court | Texas Court of Appeals |
Rosemary Sylvia Ward, Andrea Chan, Houston, for appellants.
Darrell Mark Steidley, Houston, for appellees.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
MAJORITY OPINION
This is the second time that this case has been before us on the City of Houston's ("City") plea to the jurisdiction. In our previous opinion (Harris I),1 we held that plaintiffs Thomas and Chorlottiea Harris, suing individually and on behalf of their minor son Joshua (collectively, "plaintiffs"), had stated a claim under the Texas Tort Claims Act for a defective condition of tangible personal property. We now review the trial court's denial of the City's second plea to the jurisdiction. Because the record evidence shows that plaintiffs do not have a claim under the Texas Tort Claims Act, we reverse the judgment of the trial court and render judgment dismissing the case for lack of jurisdiction.
This case arises from a May 29, 2000 incident involving plaintiffs' minor son, Joshua Harris, and a large metal statue of an elephant ("statue") that is affixed near one of the entrances to the Houston Zoological Gardens (the "Zoo"). While taking pictures outside of the Zoo, Joshua placed his hand on the statue. When he removed his hand, he severed part of one of his fingers. Plaintiffs filed suit against the City under the Texas Tort Claims Act ("TTCA"), seeking damages for Joshua's injury.
The City filed a plea to the jurisdiction, arguing that plaintiffs had failed to plead a claim under the TTCA. When the trial court denied the City's plea, the City filed its first interlocutory appeal. In Harris I, we affirmed the trial court's denial of the City's plea, holding that plaintiffs' pleadings stated a claim under the TTCA for a defective condition of tangible personal property.
The City then filed a second plea to the jurisdiction, this time supporting its plea with evidence. Plaintiffs responded by submitting their own evidence. Among other things, the evidence established that (1) the elephant statue was and continues to be affixed to the ground, bolted into place on three buried concrete piers; (2) the statue has been moved in the past; (3) it is difficult to move the statue because it is large and unwieldy and weighs five tons; (4) there are currently barriers in front of the statue, and a planted flower bed to prevent the public from making contact with it; and (5) there is also a commemorative plaque affixed to the ground near the statue depicting its sculptor and donors. After a hearing on the issue of the statue's status, the trial court again denied the City's plea. The City filed this appeal, arguing in one issue that the trial court erred in denying its plea to the jurisdiction.
Before reaching the City's issue, we must first address two procedural arguments raised by plaintiffs. Plaintiffs first claim this Court lacks appellate jurisdiction because of the City's earlier interlocutory appeal. Plaintiffs also claim our review of the trial court's jurisdiction is barred by the law of the case. Because we conclude that neither of these arguments has merit, we ultimately reach the City's challenge to jurisdiction under the TTCA.
This case has created the ironic situation in which the procedural device of the interlocutory appeal—designed to quickly resolve questions of sovereign immunity—has generated unwarranted delay by permitting successive appeals under TEX. CIV. PRAC. & REM.CODE § 51.014(8) (). See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 358 (Tex.2001)
(). Plaintiffs are understandably frustrated by this delay, and have raised a challenge to this court's appellate jurisdiction in light of it, relying on Denton County v. Huther, 43 S.W.3d 665, 667 (Tex.App.-Fort Worth 2001, no pet.) ( that an appellate court had no jurisdiction where the appellant failed to timely appeal the trial court's first denial of a plea to the jurisdiction).
However, there is no real question of appellate jurisdiction in this case. Unlike the county in Huther, here the City has filed timely notices of appeal from each of the trial court's orders, and has therefore complied with the appellate timetables governing jurisdiction. In addition, the City has raised different issues with each appeal. The first appeal involved a challenge to the sufficiency of the pleadings, and the second appeal involves a challenge to the existence of jurisdictional facts, which requires an examination of evidence to determine, in summary judgment fashion, whether plaintiffs have evidence to support the claim pled under the TTCA. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004)
().
The City unquestionably should have proceeded more efficiently. But plaintiffs do not cite any authority for the proposition that the City is barred from raising a new jurisdictional challenge in a second plea, and we have found none. Indeed, plaintiffs' argument ignores the established principle that challenges to a court's jurisdiction cannot be waived, but may be raised at any time. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex.2000)
().
Section 51.014(8) does not limit interlocutory appeals, but instead permits an appeal from an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit. . . ." See also Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004)
(). We are bound by the statutory language authorizing interlocutory appeals. Accordingly, although we do not approve of the City's successive interlocutory appeals, under section 51.014(8), we must review the trial court's denial of the City's second plea to the jurisdiction.2
Plaintiffs also contend that our review of the trial court's denial of the second plea to the jurisdiction is barred by our prior holding in Harris I under the law of the case. We disagree. The previous opinion solely addresses a challenge to the sufficiency of the pleadings, holding that plaintiffs pleaded facts sufficient to state a claim involving a defective condition of tangible property under the TTCA. 2004 WL 349924 at *4. This appeal presents a different question, requiring us to review evidence submitted by both parties on the issue of whether jurisdiction exists under the TTCA. See Miranda, 133 S.W.3d at 227
().
The law of the case is a doctrine of uniformity and judicial economy dictating that "questions of law decided on appeal to a court of last resort . . . govern the case throughout its subsequent stages." Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003) (quoting Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986)
). The doctrine does not apply if pertinent facts are not substantially the same in the two proceedings. Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 466 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Application of the doctrine is flexible and must be left to the discretion of the court and determined according to the circumstances of the case. Heggy v. Am. Trading Employee Retirement Account Plan, 123 S.W.3d 770, 778 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).
Here, the law of the case doctrine does not apply to an analysis of the evidence relating to the statue's status under the TTCA. Although we held in our prior opinion that the pleadings were sufficient to state a claim for defective tangible personal property, at that stage in the proceedings the record did not contain evidence regarding whether or how the statue was affixed to the ground. Indeed, Harris I expressly notes that there was no evidence in the record to support the argument that the City made at the time, that the statue was an "improvement" to real property. 2004 WL 349924, at *5. Instead, we reviewed plaintiffs' pleadings, which stated that the statue was moveable because the City had moved the statue prior to the injury. Accordingly, applying the appropriate standard of review, we construed the pleadings in plaintiffs' favor and refused to conclude, at the stage of a challenge to the pleadings, that the case involved premises liability. Id.
On remand to the trial court, both parties introduced evidence pertaining to the statue, and held a hearing regarding the statue's status. The record now before us therefore differs from the record in the first appeal, and we must review the evidence challenging the existence of pleaded jurisdictional facts. Miranda, 133 S.W.3d at 227. Under these circumstances, the law of the case doctrine does not apply to preclude us from reconsidering the statue's classification for the purposes of a claim under the TTCA. See, e.g., Rodgers v. Comm'n for Lawyer Discipline, 151 S.W.3d 602, 609 (Tex.App.-Fort Worth 2004, pet. denied) (...
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