Fort Bend County Toll Rd. Auth. v. Olivares

• Decision Date: 15 June 2010
• Docket Number: No. 14-09-00161-CV.,14-09-00161-CV.
• Citation: 316 S.W.3d 114
• Parties: FORT BEND COUNTY TOLL ROAD AUTHORITY, Appellantv.Zuleima OLIVARES, Individually and as the Representative of the Estate of Pedro Olivares, Jr., and Pedro Olivares, Individually, Appellees.
• Court: Texas Court of Appeals

316 S.W.3d 114

Court of Appeals of Texas Houston (14th Dist.).

FORT BEND COUNTY TOLL ROAD AUTHORITY, Appellantv.Zuleima OLIVARES, Individually and as the Representative of the Estate of Pedro Olivares, Jr., and Pedro Olivares, Individually, Appellees.

No. 14-09-00161-CV.

June 15, 2010.

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Patricia L. Hayden, John J. Hightower, Houston, for appellee.

Michael Scott Beckelman, Rick Molina, Frank E. Sanders, Houston, Randall W. Morse, Richmond, Richard Alan Mason, Austin, for appellees.

Panel consists of Chief Justice HEDGES, Justice SEYMORE, and Senior Justice HUDSON.^*

OPINION

CHARLES W. SEYMORE, Justice.

Fort Bend County Toll Road Authority (“FBCTRA”) presents this accelerated appeal from the trial court's denial of its plea to the jurisdiction. In its plea, FBCTRA challenged the trial court's subject-matter jurisdiction over claims brought by Zuleima Olivares, individually and as representative of the estate of Pedro Olivares, Jr., and Pedro Olivares (collectively, “appellees”).

FBCTRA argues the trial court erred in denying its plea because appellees have not stated claims for which FBCTRA's governmental immunity is waived. In a separate appeal, Texas Department of Transportation (“TxDOT”), FBCTRA's co-defendant in the underlying lawsuit, also challenges the trial court's denial of its plea to the jurisdiction. For reasons outlined below, we reverse and remand in part and reverse and render in part.

I. BACKGROUND

On January 1, 2007, Pedro Olivares, Jr. and his wife were traveling westbound on the Westpark Tollway (“Tollway”) near Dairy Ashford Road in Harris County when they were struck by a vehicle driven by Michael Ladson. According to appellees, Ladson was traveling on the Tollway in the wrong direction after entering the westbound lanes near Gaston Road in Fort Bend County, approximately eight and one-half miles from the accident scene. Gaston Road intersects with FM 1093, a state road controlled by TxDOT, which merges into the Tollway. Pedro Olivares, Jr. sustained severe bodily injuries resulting in death.

In their second amended petition, appellees assert claims against FBCTRA, Fort Bend County, Harris County, Harris County Toll Road Authority (“HCTRA”), TxDOT, Brown and Gay Engineers, Inc., and Michael Stone Enterprises, Inc. The Estate of Michael Ladson has been designated as a responsible third party. Appellees allege FBCTRA is liable for certain premise defects and negligent acts or omissions involving the intersection at FM 1093-Gaston Road and the Tollway. Appellees also contend FBCTRA is liable under a joint enterprise theory.

FBCTRA filed a plea to the jurisdiction. Appellees then filed their first amended petition and a response to FBCTRA's plea. Subsequently, FBCTRA filed a supplemental plea. Following the hearing on FBCTRA's plea, appellees filed their second amended petition and a supplemental response to FBCTRA's plea. FBCTRA then filed a second supplement to its plea. On January 28, 2009, the trial court signed an order denying FBCTRA's plea. FBCTRA now appeals the trial court's denial of its plea to the jurisdiction.

II. INTERLOCUTORY APPEAL AND STANDARD OF REVIEW

We have statutorily-conferred authority to review the trial court's interlocutory order denying FBCTRA's plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008) (A party may appeal an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit....”). Appellate courts strictly construe statutes authorizing interlocutory appeals. See State v. Fiesta Mart, Inc., 233 S.W.3d 50, 54 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Subsection 51.014(a)(8) authorizes an appeal only when the trial court grants or denies a plea to the jurisdiction. An appellate court must consider challenges to the trial court's subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-51 (Tex.2000). ¹

We review the trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). In a plea to the jurisdiction, a party may challenge either the pleadings or existence of jurisdictional facts. Id. at 226-27; see also Rebecca Simmons & Suzette Kinder Patton Plea to the Jurisdiction: Defining the Undefined, 40 St. Mary's L.J. 627, 651-52 (2009).

When a defendant challenges the plaintiff's pleadings, the court's determination turns on whether the pleader has alleged facts sufficient to demonstrate subject-matter jurisdiction. Miranda, 133 S.W.3d at 226. To make this determination, courts should glean the pleader's intent and construe the pleadings liberally in favor of jurisdiction. Id. If the pleadings do not contain facts sufficient to affirmatively demonstrate the trial court's jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and plaintiffs should be afforded an opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate jurisdiction, a plea may be granted without allowing plaintiffs an opportunity to amend. Id. at 227. The opportunity to amend pleadings that are insufficient to establish, but do not affirmatively negate, jurisdiction arises after a court determines the pleadings are insufficient. White v. Robinson, 260 S.W.3d 463, 475-76 (Tex.App.-Houston [14th Dist.] 2008, pet. granted) (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex.2007)).

When a defendant challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts arising from such evidence in the nonmovant's favor. Id. at 228. If the relevant evidence is undisputed or a fact question is not raised relative to the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea, and the fact issue will be resolved by the fact finder. Id. at 227-28.

When resolution of an issue requires interpretation of a statute, we review under a de novo standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). In construing a statute, our objective is to determine and give effect to the legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the legislature selected and should not refer to extraneous matters for intent not expressed in the statute. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997).

III. ANALYSIS

FBCTRA contends the trial court lacks jurisdiction over appellees' claims because they cannot demonstrate that FBCTRA's governmental immunity has been waived. Disposition of whether immunity has been waived is governed by the Texas Tort Claims Act (“TTCA”). See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp. 2009).

A. Texas Tort Claims Act

Under our common law, sovereign or governmental immunity defeat a trial court's subject-matter jurisdiction. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). The TTCA provides a limited waiver of immunity for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental 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 2005). For premise-defect claims, the governmental unit generally “owes to the claimant only the duty that a private person owes to a licensee,” unless the claim involves special defects or “the duty to warn of the absence, condition, or malfunction of [traffic-control devices] as is required by Section 101.060.” Id. § 101.022(a), (b) (Vernon 2005 & Supp. 2009).

However, there are certain exceptions to waiver of immunity under the TTCA. There is no waiver when a claim arises from

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Id. § 101.056 (Vernon 2005). “In other words, the State remains immune from suits arising from its discretionary acts and omissions.” Tex. Dep't of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex.2002). Similarly, under subsection 101.060(a), the TTCA does not waive immunity as to claims arising from

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice[.]

Tex. Civ. Prac. & Rem.Code Ann. § 101.060(a)(1)(2) (Vernon 2005). “Under subsection (a)(1), the State retains immunity for discretionary sign-placement decisions.” State ex rel. State Dep't of Highways and Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326-27 (Tex.2002). “Under subsection (a)(2), the State retains immunity as long as it corrects a sign's defective [condition, absence, or malfunction] within a reasonable time after notice.” Id.

B. Claims Based on Traffic-Control Devices

FBCTRA first...