City of Mission v. Cantu

• Decision Date: 24 October 2002
• Docket Number: No. 13-01-00786-CV.,13-01-00786-CV.
• Citation: 89 S.W.3d 795
• Parties: CITY OF MISSION, Appellant, v. Veronica Garza CANTU, Angelica Sifuentes, Reynaldo Alvarado and Silvia Alvarado, Individually and as Representative of the Estate of Neria N. Alvarado, Deceased, et al., Appellees.
• Court: Texas Court of Appeals

89 S.W.3d 795

CITY OF MISSION, Appellant, v. Veronica Garza CANTU, Angelica Sifuentes, Reynaldo Alvarado and Silvia Alvarado, Individually and as Representative of the Estate of Neria N. Alvarado, Deceased, et al., Appellees.

No. 13-01-00786-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

October 24, 2002.

Rehearing Overruled November 21, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark Sossi, McAllen, for Appellant.

John H. Eaton, Eaton & Associates, McAllen, Peter Ferraro, Austin, Rene Segundo, McAllen, Ruben R. Pena, Law Offices of Ruben R. Pena, P.C., Harlingen, William B. Harrison, Corpus Christi, Robert A. Allen, Allen Stein Powers Durbin & Hunnicut, San Antonio, for Appellees.

Before Justices HINOJOSA, CASTILLO and CHAVEZ.¹

OPINION

Opinion by Justice CASTILLO.

The City of Mission presents an interlocutory appeal from the denial of a plea to the jurisdiction.² In two issues, the City argues that the trial court improperly denied its plea to the jurisdiction because the Texas Tort Claims Act does not waive sovereign immunity for a municipality's allegedly negligent design of a city road. We reverse and render.

FACTUAL BACKGROUND

Veronica Garza Cantu and several friends were traveling south on Glasscock Road, a two-lane road. In front of the County Estates subdivision, the road widens from forty to sixty feet in width. At the end of the subdivision, the road returns to its original forty-foot width. No particular markings denote either the expansion of the road or its return to its original dimensions. Near this area, Cantu, the driver, while traveling southbound, attempted to pass another vehicle, driven by Robert Treviño, traveling in the same direction. At that point the road returned to its normal forty-foot width. Unable to overtake Treviño's vehicle traveling parallel to hers and seeing an approaching northbound vehicle, Cantu attempted to return to the southbound lane. In doing so, she lost control of her vehicle, left the road, and came to a stop after colliding with a tree. Two passengers in her car were killed, and the others were injured.

Suit was filed by Yvonne Cantu, Angelica Sifuentes, Reynaldo Alvarado, and Silvia Alvarado, individually and on behalf of the estate of Neria N. Alvarado, deceased, against the City of Mission and other private defendants.³ A petition in intervention was filed by Jose Guadalupe Aguirre, individually and as representative of the estate of Maria G. Aguirre, deceased, and Maria Luisa Lopez Aguirre, individually. Both the plaintiffs and the intervenors (hereinafter referred to jointly as "appellees") asserted in their petitions that the change in the width of the roadway without any road sign or warning device was a dangerous condition constituting a special defect for which they alleged the City was liable by virtue of failing to warn or make reasonably safe. They also alleged the City failed to properly construct and design the relevant portion of road, specifically by not having proper barriers, signs, or warning devices and by failing to place warning signs and traffic control devices listed in the 1980 Texas Manual on Uniform Traffic Control Devices for Streets and Highways ("MUTCD"). The City filed a plea to the jurisdiction as to both the plaintiffs' petition and the intervenors' petition, asserting sovereign immunity under the provisions of the Texas Tort Claims Act.⁴ The trial court denied the plea, and this appeal ensued.

STANDARD OF REVIEW

This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2002). The appellees bear the burden to allege facts affirmatively demonstrating the trial court's jurisdiction to hear this case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.). "Subject matter jurisdiction is never presumed and cannot be waived." Tex. Ass'n of Bus., 852 S.W.2d at 443-44. Since a governmental unit is protected from suit by sovereign immunity, pleadings in a suit against a governmental unit must affirmatively demonstrate, either by reference to a statute or express legislative permission, that the legislature consented to the suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Absent the government's consent to suit, the trial court has no jurisdiction. Id.

On appeal, because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). To determine whether appellees have affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged in the petitions, and to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties to the trial court, if any. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Our task is not to decide the merits of the case but rather to examine the petitions, taking as true the facts pled,⁵ and determine whether those facts support jurisdiction in the trial court. Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex.App.-Corpus Christi 2001, pet. denied).

We must construe the pleadings in the plaintiff's favor and look to the pleader's intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, then the cause is properly dismissed. Peek, 779 S.W.2d at 804-05; City of Austin v. L.S. Ranch, 970 S.W.2d 750, 753 (Tex.App.-Austin 1998, no pet.). However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the court. Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960). If the plaintiff's pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show incurable defects in jurisdiction the proper remedy is to allow the plaintiff an opportunity to amend before dismissal. Brown, 80 S.W.3d at 555; Peek, 779 S.W.2d at 805.

ISSUES PRESENTED

In the present case, the City asserts that it is entitled to sovereign immunity as to appellees' claims. Specifically, the City claims that the trial court erred in denying the plea to the jurisdiction because: (1) governmental immunity barred appellees' claims and had not been waived by the Texas Tort Claims Act; and (2) the trial court had no jurisdiction over a claim against it for personal injury damages allegedly caused by the design of a city road. As we have noted, both issues raise the same basic argument: the trial court erred in denying the plea to the jurisdiction because sovereign immunity is not waived under the Texas Tort Claims act for negligent design of a roadway, including the decision whether to equip the roadway with certain warning devices or signs. Hence, we will consider these two issues as one question, which we will review in the course of determining whether appellees have stated a claim over which the trial court in the instant case had jurisdiction.

THE TEXAS TORT CLAIMS ACT AND WAIVER OF SOVEREIGN IMMUNITY FOR MUNICIPALITIES

As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Dallas Co. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). Sovereign immunity extends to municipalities when they are carrying out governmental functions. City of Galveston v. Posnainsky, 62 Tex. 118, 127 (1884). Municipalities, then, are immune from tort liability under the doctrine of sovereign immunity for governmental functions unless such immunity is specifically waived.⁶ City of La Porte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995).

The Texas Tort Claims Act ("the Act") provides a limited waiver of the sovereign immunity of governmental units, allowing them to be held liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997).

Although the Act speaks in terms of waiver of immunity from liability, it also waives immunity from suit to the same extent. Tex. Dep't of Grim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001) (citing TEX. CIV. PRAC. & REM.CODE ANN. § 101.025(a) (Vernon 1997)) ("Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter."). However, the mere invocation of the Act in a petition does not in itself waive sovereign immunity and confer jurisdiction on the trial court. Id. Rather, the claim raised must fall within the specific scope of the waiver of immunity provided by the Act and so affirmatively demonstrate the trial court's jurisdiction to hear the case. Id.

The first question that must be considered then, in the case of municipalities, is whether the claimed tort action arises from a governmental function, to which the Act applies, or a proprietary function that is not covered by the Act. Dalon v. City of De Soto, 852 S.W.2d 530, 535 (Tex.App.-Dallas 1992, writ denied). For this...