Cozby v. City of Waco

• Decision Date: 04 December 2002
• Docket Number: No. 10-02-095-CV.,10-02-095-CV.
• Parties: Warren R. COZBY and Lillian A. Cozby, Appellants, v. The CITY OF WACO, Appellee.
• Court: Texas Court of Appeals

110 S.W.3d 32

Warren R. COZBY and Lillian A. Cozby, Appellants, v. The CITY OF WACO, Appellee.

No. 10-02-095-CV.

Court of Appeals of Texas, Waco.

December 4, 2002.

Rehearing Overruled January 22, 2003.

COPYRIGHT MATERIAL OMITTED

John L. Bates, Waco, for appellants.

Enid A. Wade, Naman, Howell, Smith & Lee, P.C., Waco, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

Warren and Lillian Cozby filed suit against the City of Waco (the "City") and O'Reilly Automotive, Inc. to resolve a dispute among the parties regarding an alley which runs between a tract of land owned by the Cozbys and a tract owned by O'Reilly. The City filed a plea to the jurisdiction premised on sovereign immunity. The City filed a summary judgment motion three weeks later. The trial court conducted a hearing on these pleadings and signed an order granting the City's plea to the jurisdiction and "in the alternative" the summary judgment motion. The Cozbys bring this interlocutory appeal.¹ See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2003).

BACKGROUND

O'Reilly built an auto parts store on a tract of land next to the Cozbys' residence. A City-owned alley runs between their lots. At a hearing on O'Reilly's request for a building permit, Warren Cozby objected that he would need to build a fence to shield his property from the activity at the store. An O'Reilly representative assured him that O'Reilly would build a fence. O'Reilly poured a concrete parking lot which covers that portion of the alley running between the lots. O'Reilly built a fence in the alley, one foot away from the Cozbys' lot line. After the Cozbys objected to the location of the fence, O'Reilly removed it.

The Cozbys filed suit against the City and O'Reilly. Their petition alleges in pertinent part:

• the pavement of the alley created a 9-inch difference in elevation between the alley and their lot which has "prevented the use of their garage and the property on the side of their house which had over the years been used as a parking area";

• the City and/or O'Reilly poured "soil" at the edge of the concrete pavement to provide a transition from the alley to their property, "which washed away and created a mud hole";

• the City and O'Reilly are hi violation of a city fencing ordinance;

• the City "is guilty of selective enforcement" of the ordinance and of discrimination; and

• the Cozbys "have each suffered anxiety, loss of sleep, nervous problems, and aggravation of serious medical problems over the loss in value of their home, being subjected to constant traffic from the business of [O'Reilly], noise, and further being unable to use their garage and parking to which they are accustomed; all of which caused emotional distress."

The City filed a plea to the jurisdiction in which it contended that the Cozbys' claims "do not fall within any waiver of [the City's sovereign] immunity." The City specifically contended that the Cozbys' allegations do not state a claim under the Texas Tort Claims Act.

Thereafter, the City filed a traditional motion for summary judgment. The City contended in the summary judgment motion that it is entitled to judgment as a matter of law on the merits of the Cozbys' claims as well as on the basis of sovereign immunity. The City supported its motion with excerpts from the Cozbys' depositions and a copy of City ordinance 28-219 which requires "screening" by fence or vegetation along any commercial lot line which abuts a residential "district."

The trial court heard the plea to the jurisdiction and the summary judgment motion in a single proceeding. After hearing argument of counsel, the court took the matter under advisement. Eighteen days later, the court signed an order granting the City's plea to the jurisdiction and "in the alternative" the summary judgment motion. The court rendered judgment that the Cozbys take nothing from the City.

SCOPE OF APPEAL

The Cozbys present three points of error: one challenging the court's ruling on the plea to the jurisdiction and two challenging the summary judgment ruling.

Section 51.014(a)(8) of the Civil Practice and Remedies Code gives this Court jurisdiction to consider an interlocutory appeal from an order granting or denying a plea to the jurisdiction filed by a governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). However, we do not have jurisdiction to consider an appeal from an interlocutory order which grants or denies a summary judgment motion filed by a governmental unit, unless the governmental unit sought a summary judgment "based on" its employee's qualified or official immunity. City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993); City of Robstown v. Ramirez, 17 S.W.3d 268, 276 (Tex.App.-Corpus Christi 2000, pet. dism'd w.o.j.); see also TEX. Cw. PRAC. & REM.CODE ANN. § 51.014(a)(5) (Vernon Supp.2003).

The City did not seek a summary judgment on the basis of its employee's qualified or official immunity. Thus, we do not have jurisdiction to review that portion of the trial court's order granting the summary judgment. Id. For this reason, we dismissed that portion of the Cozbys' appeal which challenges the summary judgment ruling in an unpublished order we issued on April 24. Cozby v. City of Waco, No. 10-02-095-CV, slip op. at 3 (TEX.APP.-Waco Apr. 24, 2002, order) (not designated for publication) (citing Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 395 (Tex.App.-San Antonio 1999, no pet.); Bobbitt v. Cantu, 992 S.W.2d 709, 712 (Tex.App.-Austin 1999, no pet.); Metzger v. Sebek, 892 S.W.2d 20, 55 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Grace v. McCrary, 390 S.W.2d 397, 398 (Tex.Civ.App.-Waco 1965, writ dism'd)). Accordingly, we dismiss the Cozbys' second and third points for want of jurisdiction.

STANDARD OF REVIEW

Even though we do not have jurisdiction to review the summary judgment ruling, when as in this case the trial court has considered a plea to the jurisdiction together with a summary judgment motion which addresses jurisdictional issues, "we consider the facts alleged by the plaintiff [in the pleadings], and to the extent that it is relevant to the jurisdictional issue, the evidence submitted by the parties." Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001) (quoting Tex. Natural Resource Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001)); accord County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) ("In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry.

Plaintiffs must allege facts which affirmatively demonstrate that the trial court has jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Godley Indep. Sch. Dist. v. Woods, 21 S.W.3d 656, 658 (Tex.App.-Waco 2000, pet. denied). We construe the allegations in the plaintiffs' favor. Brown, 80 S.W.3d at 555; Woods, 21 S.W.3d at 658. Because the City does not claim that the Cozbys' allegations are fraudulent, we must take them as true. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Woods, 21 S.W.3d at 658.

If the plaintiffs fail to plead facts which establish jurisdiction, but their petition does not affirmatively demonstrate incurable defects in jurisdiction, the plaintiffs should be given an opportunity to amend. Brown, 80 S.W.3d at 555; Woods, 21 S.W.3d at 658. Conversely, if the facts alleged in the petition affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend. Id.

APPLICATION

The Cozbys claim in their first point that their petition alleges three distinct causes of action for which sovereign immunity has been waived: a claim under the Tort Claims Act; a takings claim; and a nuisance claim. Their petition avers the following facts² for which they seek to hold the City liable:

• the difference in elevation between the paved portion of the City-owned alley and their own property has prevented them from using a garage at the rear of their property or parking in their yard adjacent to the alley;

• the City's efforts to ameliorate the drop-off by placing soil at the edge of the paved alley left a mudhole on their property;

• the fence built in the alley, one foot from their property line restricted their access to their yard; and

• the City's failure to require O'Reilly to construct a fence along its own property line adjacent to the alley has caused a diminution in the value of their property and has caused them to suffer mental anguish.

TORT CLAIMS ACT

By the enactment of the Tort Claims Act (the "Act"), the Legislature waived governmental immunity from suit in cases in which liability exists under the terms of the Act. TEX. C IV. PRAC. & REM. CODE ANN. § 101.025(a) (Vernon 1997); Thompson v. City of Corsicana Hous. Auth., 57 S.W.3d 547, 551 (Tex.App.-Waco 2001, no pet.); Tex. Dep't of Mental Health & Mental Retardation v. Pearce, 16 S.W.3d 456, 459 (Tex.App.-Waco 2000, pet. dism'd w.o.j.). With respect to municipalities, the Act waives sovereign immunity "for damages arising from [a municipality's] governmental functions" including "street construction and design" and "street maintenance." TEX. C IV. PRAC. & REM.CODE ANN. § 101.0215(a)(3), (4) (Vernon Supp.2003). In general terms, the Act waives immunity from liability for personal injury "caused by a condition ... of ... real property if the governmental unit would, were it a private person, be liable to the claimant." Id. § 101.021(2) (Vernon 1997). For a premise defect, "the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises." Id. § 101.022(a) (Vernon 1997).

Plaintiffs who are licensees must establish the...