City of Houston v. Branch

• Decision Date: 01 September 2022
• Docket Number: 01-21-00255-CV
• Parties: CITY OF HOUSTON, Appellant v. JOHN ANTHONY BRANCH, Appellee
• Court: Texas Court of Appeals

CITY OF HOUSTON, Appellant v. JOHN ANTHONY BRANCH, Appellee

No. 01-21-00255-CV

Court of Appeals of Texas, First District

September 1, 2022

On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2020-31674

Panel consists of Justices Goodman, Rivas-Molloy, and Farris.

MEMORANDUM OPINION

VERONICA RIVAS-MOLLOY, JUSTICE

In this personal injury suit, the City of Houston ("City") appeals the trial court's order denying summary judgment on Appellee John Anthony Branch's ("Branch") negligence claims. In two issues, the City contends (1) the trial court erred in denying its motion for summary judgment because the motor vehicle waiver under the Texas Tort Claims Act does not apply to privately owned vehicles or when an employee is neither operating nor using the motor vehicle, and (2) Branch's untimely amendment to his petition invoking the personal property waiver under the Texas Tort Claim Act does not salvage his claims.

We reverse and render.

Background

On October 13, 2018, the Booker T. Washington High School Alumni Association held a parade in Houston, Texas to commemorate the school's 125th anniversary. John Gibbs ("Gibbs"), the City's Community Outreach Liaison for Councilman Michael Kubosh ("Councilman Kubosh") and a Co-Chair of the parade, was responsible for driving Councilman Kubosh in the parade in the councilman's privately owned golf cart. The parade was not sponsored by the City.

Shortly before the parade began, Gibbs drove Councilman Kubosh in the golf cart to locate his proper position in the parade line-up. After Gibbs stopped the golf cart, he applied the golf cart's brake and emergency brake. With the emergency brake still on, Gibbs exited the golf cart. Branch approached the golf cart and leaned his elbows on the windshield. Kubosh, who was still seated in the passenger seat of the golf cart, leaned toward the driver's side of the golf cart to speak with someone. According to Branch, as he did so, the golf cart moved forward and struck Branch, injuring him.

Branch sued the City asserting negligence claims. Branch alleged in his Original Petition that Councilman Kubosh "operated a golf cart which ran over" Branch causing him injury. Branch alleged that Councilman Kubosh failed to (1) maintain a proper lookout, (2) control the operation of the golf cart (3) avoid the incident in question, (4) pay attention to his surroundings, and (5) operate the golf cart as a person of ordinary prudence would have in the same or similar circumstances. Branch alleged waiver of immunity for the City under the Texas Tort Claims Act because his claims involved "personal injury caused by the negligent operation or use of a motor-driven vehicle by [the City's] employee." He alleged Councilman Kubosh was a City employee acting within the course and scope of his employment at the time of the incident and, thus, the City was liable under the doctrine of respondeat superior for his negligence. Branch did not assert negligence claims against Gibbs or allege that Gibbs, the driver of the golf cart, was negligent in his operation or use of the golf cart. The City filed a general denial asserting governmental immunity among other defenses.

The City moved for traditional summary judgment seeking dismissal of Branch's claims based on immunity. It argued the Texas Tort Claims Act's motor vehicle waiver did not apply because the golf cart was privately, not publicly, owned and Branch's injuries did not arise from an employee's negligent operation or use of the golf cart as a motor vehicle. The City attached to its motion a photo of the golf cart and Gibbs' affidavit. In his affidavit, Gibbs attested, in pertinent part that:

The day of the event, my role as Co-Chair was to drive Councilmember Kubosh in the parade, in his privately-owned golf cart.

I drove Councilmember Kubosh in the golf cart to find his correct position for the parade. I stopped the golf cart near where Chief Sam Pena was standing and applied the golf cart's brake and emergency brake. Mr. Branch approached the golf cart and leaned with his elbows on the windshield of the golf cart. His feet were underneath the front of the golf cart.

With the emergency brake still on, I started to exit the golf cart from the driver's side. Councilmember Kubosh started to slide toward the driver's side of the vehicle. I observed with my peripheral vision his left foot pass over the gas pedal without touching it. With his shift in body weight the golf cart shifted forward. I did not see an impact between the golf cart and Mr. Branch.

Branch responded to the City's motion for summary judgment arguing the City was not entitled to immunity based on the City's assertion that (1) the golf cart was privately, rather than publicly, owned, and (2) Councilman Kubosh was not operating or using the golf cart when the incident occurred. Branch attached his affidavit and Gibbs' affidavit to his response. In his affidavit, Branch stated, in part, that:

At the parade, City of Houston Councilmember Kubosh was sitting in the passenger seat of a stopped golfcart. Councilmember Kubosh leaned over to the driver's side of the golf cart to speak to someone. When Councilmember Kubosh did this, he reached out his hand and leaned his body to the driver's side of the golfcart. Then Councilmember Kubosh's foot hit the gas pedal and I heard the golfcart's engine rev. I then felt the golfcart hit me.

John Gibbs was about 10 feet away, talking to someone else, when the golfcart hit me.

In its summary judgment reply, the City argued that Branch had presented no evidence or authority raising a genuine issue of material fact over the City's immunity. The City argued that the authorities Branch had cited to support his assertion that the motor vehicle waiver applies to privately owned vehicles addressed only the personal property waiver under the Texas Tort Claims Act-which Branch had not pleaded as a basis for the trial court's jurisdiction-not the motor vehicle waiver. The City further argued that Branch's evidence established that, at the time of the incident, Councilman Kubosh was not using or operating the golf cart as a motor vehicle but merely as a place to sit and talk before the parade began.

One day before the hearing on the City's motion for summary judgment, Branch filed his First Amended Petition alleging waiver of the City's immunity under the motor vehicle waiver or, alternatively, under the personal property waiver. See Tex. Civ. Prac. & Rem. Code § 101.021. Previously, Branch had asserted only the motor vehicle waiver. Branch did not allege that Councilman Kubosh "operated a golf cart" as he did in his Original Petition. Instead, he alleged that "City employee Michael Kubosh was in the passenger seat of a golf cart when he ran over Plaintiff" causing him injury. Branch did not name Gibbs or allege that Gibbs was negligent in his operation or use of the golf cart.

The City did not amend its motion for summary judgment to address Branch's alternative theory of waiver, and neither party argued the personal property waiver as a basis either to deny or grant the City's motion. Following the hearing on the City's motion for summary judgment, the trial court denied the City's motion. The trial court's order stated that "[a]fter considering Defendant's Traditional Motion for Summary Judgment, the pleadings, the response, the reply (if any), the affidavits, and other evidence on file, the Court DENIES Defendant's traditional motion for summary judgment." That same day, Branch filed a motion seeking leave to file his First Amended Petition.

The City filed this interlocutory appeal.^[1]

Standard of Review and Applicable Law

Subject matter jurisdiction is essential to a court's power to decide a case. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013); City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). To establish subject matter jurisdiction, a plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the claim. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). A plaintiff also bears the burden of establishing a waiver of sovereign immunity in suits against the government. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The lack of subject matter jurisdiction may be raised in a motion for summary judgment. See Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); see also Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006). We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To obtain a traditional summary judgment, a movant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). To determine whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Swanson, 590 S.W.3d at 551.

Texas Tort Claims Act

Sovereign immunity and its counterpart for political subdivisions governmental immunity, protect the State and its political subdivisions, including municipalities, from lawsuits and liability for money damages. Mission Consol. Indep. Sch Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see also Reata Constr. Corp., 197 S.W.3d at 374. The immunity...