Ford ex rel. Williams v. City of Lubbock

• Decision Date: 10 May 2002
• Docket Number: No. 07-02-0107-CV.,07-02-0107-CV.
• Citation: 76 S.W.3d 795
• Parties: Glenda FORD, as Next Friend of Cedrick Lenard Williams, Appellant, v. CITY OF LUBBOCK, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 795

Glenda FORD, as Next Friend of Cedrick Lenard Williams, Appellant, v. CITY OF LUBBOCK, Appellee.

No. 07-02-0107-CV.

Court of Appeals of Texas, Amarillo.

May 10, 2002.

Dannie Boswell Botros, Lubbock, for appellant.

Jeff Hartsell, Lubbock, for appellant.

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

JOHN T. BOYD, Chief Justice.

Appellant Glenda Ford, as next friend of Cedrick Lenard Williams, appeals from a take-nothing judgment in favor of appellee, City of Lubbock, in her action seeking damages as a result of the drowning death of her son in a swimming pool owned and operated by appellee. The order of dismissal was entered as a result of a plea to the jurisdiction filed by appellee.

We now have before us appellee's motion to dismiss the appeal for the reason that the notice of appeal was not timely filed. The order was signed on November 30, 2001. On December 19, 2001, appellant filed a request for findings of fact and conclusions of law. On January 18, 2002, she filed a notice of past due findings of fact and conclusions of law. However, the trial court apparently never entered any such findings and conclusions. Notice of appeal was filed on February 27, 2002.

Rule 26.1 of the Rules of Appellate Procedure provides in relevant part:

The notice of appeal must be filed within 30 days after the judgment is signed, except as follows:

(a) the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files:

* * *

(4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court;....

Tex.R.App. P. 26.1(a). It is appellee's contention that findings of fact and conclusions of law are not required in this case and could not properly be considered by this court, thereby failing to extend the deadline for filing the notice of appeal. The basis for this contention is that the plea to the jurisdiction was granted as a matter of law without an evidentiary hearing where witnesses testified.

Appellant responds that the trial court may consider evidence in ruling on a plea to the jurisdiction and, because the trial court considered affidavits and deposition testimony attached to the plea and her response, there was, in effect, an evidentiary hearing. Thus, since the judgment was based in part on evidence, findings of fact and conclusions of law could properly be considered by the appellate court.

In support of its motion to dismiss, appellee cites IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997). That case was based on an interpretation of the prior version of Rule 26.1 (Rule of Appellate Procedure 41(a)(1)) which provided that a timely filed request for findings of fact and conclusions of law extends the deadline for perfecting an appeal from 30 to 90 days after the judgment is signed in a case tried without a jury. The court held that a request for findings of fact and conclusions of law does not extend the appellate deadline when findings and conclusions have no purpose and should not be requested, made, or considered on appeal. Id. at 443. Examples given by that court were summary judgment, judgment after directed verdict, judgment non obstante veredicto, default judgment awarding liquidated damages, dismissal for want of prosecution without an evidentiary hearing, dismissal for want of jurisdiction without an evidentiary hearing, dismissal based on pleadings or special exceptions and any judgment rendered without an evidentiary hearing. Id.

Appellant argues that it is appropriate for the court to hold an evidentiary hearing on a plea to the jurisdiction, and we agree that it has been recognized that there may be instances in which the consideration of factual evidence is appropriate. See Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex.2000). It has also been held that the consideration of stipulated evidence can constitute a "trial." See Davis v. State, 904 S.W.2d 946, 949 (Tex.App.-Austin 1995, no writ).

In this instance, the plea to jurisdiction was based on the fact that sovereign immunity has been waived under the Texas Tort Claims Act only when negligent conduct involves a condition or use of tangible personal or real property if the government unit would, if it were a private person, be liable to the claimant under the law. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1997). In its first plea to the jurisdiction, appellee claimed there were no allegations in the pleadings as to condition or use of property. Appellee attached to its plea portions of appellant's deposition stating no equipment was used, and the affidavit of Weldon Maples, who enumerated the type of safety equipment kept at city pools. Appellant then filed a second amended petition asserting that the telephone at the pool was misused by a lifeguard, who was ordering pizza while the victim was drowning, misuse of the entry area, and improper location of the pool phone and cash register outside the viewing area of the pool. Appellee...