Cnty. of El Paso v. Baker

579 S.W.3d 686

The COUNTY OF EL PASO, Texas, Appellant,

v.Janice BAKER, Appellee.

No. 08-18-00012-CV

Court of Appeals of Texas, El Paso.

May 31, 2019

ATTORNEY FOR APPELLEE: Hon. Milad Kaissar Farah, Guerra & Farah, PLLC, 1231 Missouri, El Paso, TX 79902.

ATTORNEY FOR APPELLANT: Hon. Jo Anne Bernal, County Attorney, 500 E. San Antonio, Room 503, El Paso, TX 79901.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This is an accelerated interlocutory appeal from a trial court's order denying El Paso County's plea to the jurisdiction. The only question we need to resolve is whether Janice Baker made out a prima facia premises liability case against the County arising from an injury she claims was caused by a set of elevator doors at the County Courthouse. The County presented evidence that it had no knowledge of the claimed defect with the elevator doors which is a necessary element of Baker's claim. We conclude that Baker offered no evidence raising a fact issue on that specific question. Accordingly, the trial court erred in overruling the County's plea to the jurisdiction. The order below is reversed and the case against El Paso County is dismissed for want of jurisdiction.

FACTUAL SUMMARY

Janice Baker visited the El Paso County Courthouse on July 17, 2014. While entering elevator number six, she claims the doors shut on her causing bodily injury. She reported the injury that day and spoke with Deputy Sheriff Alfredo Colorado, who prepared a report documenting the incident. The El Paso Fire Department treated her on scene, but she refused to go to the hospital. Officer Colorado transported her by wheelchair to a nearby bus stop.

A month after the incident, her lawyer sent a letter to the El Paso County Judge stating that he had been retained in connection with Baker's personal injuries sustained on July 17, 2014 at the County Courthouse. An attorney for the County promptly acknowledged the correspondence. The County's attorney stated "[o]nce you have provided sufficient information for us to evaluate your client's allegations, I will present the matter to Commissioner's Court for their consideration of your claim."

In April 2016, Baker filed suit against the County asserting a claim for negligence. The County answered and later named ThyssenKrupp Elevator Corporation as a responsible third party, claiming that entity services the elevators for the County. Following several amended petitions, ThyssenKrupp Elevator Corporation and ThyssenKrupp Elevator Americas Corporation appeared as defendants below.

The County eventually filed a combined plea to the jurisdiction, traditional and no-evidence motion for summary judgment. The motion advanced two arguments relevant here. First, the County claimed it was not given proper notice of the claim as required by TEX.CIV.PRAC.&REM.CODE ANN. § 101.101(a) (a governmental unit is entitled to receive notice of a claim within six months of the incident which describes: "(1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident."). Second, the County argued that the claim against it is limited to a premises liability theory, and under that theory, a licensee such as Baker must show that the County had actual knowledge of the claimed defect. Supported by several maintenance records and the affidavit of its maintenance supervisor, the County urged it had no actual knowledge of the claimed dangerous condition in elevator six.

On the notice of claim issue, Baker responded by offering proof of the oral report of injury that she made that day, the incident report prepared by Officer Colorado, and the notice of representation letter that her lawyer sent the month following the incident. She contends that the County had formal notice as contemplated by Section 101.101(a), or alternatively, actual notice as permitted by Section 101.101(a). As to the premises liability issue--whether the County had actual knowledge of the claimed defect--she offered only a photocopy of a news article that we describe in more detail below.

The trial court denied the County's motion following a non-evidentiary hearing. This interlocutory appeal follows.¹ See TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(a)(8) (allowing interlocutory appeal from order that grants or denies a plea to the jurisdiction by a governmental unit).

PLEAS TO THE JURISDICTION

Sovereign immunity (from suit) implicates a trial court's subject matter jurisdiction over a lawsuit unless the State expressly consents to suit. Engelman Irrigation Dist. v. Shields Brothers, Inc. , 514 S.W.3d 746, 751 (Tex. 2017). Governmental immunity operates like sovereign immunity and affords similar protection to subdivisions of the State, including its counties. Harris County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004) ; Bates v. Pecos County , 546 S.W.3d 277, 283 (Tex.App.--El Paso 2017, no pet.). El Paso County is entitled to immunity from lawsuits seeking monetary damages unless its immunity is waived. See Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 636 (Tex. 2012) ; Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004). The Legislature has provided a limited waiver of governmental immunity in the Texas Tort Claims Act. That act allows suits against governmental entities for, among other things, personal injuries arising from a "premise defect," as well as from the "condition or use of tangible personal ... property[.]" TEX.CIV.PRAC.&REM.CODE ANN. §§ 101.021, 101.022 ; see also State v. Gonzalez , 82 S.W.3d 322, 326 (Tex. 2002).

A plaintiff must fall within the limited waiver of immunity and a governmental entity may challenge whether the plaintiff has done so through a plea to the jurisdiction. Miranda , 133 S.W.3d at 225-26. The plea may challenge the sufficiency of the pleadings, or it might also include jurisdictional evidence which thereby places into issue the existence of a jurisdictional fact. Id. ; Univ. of Texas at El Paso v. Ochoa , 410 S.W.3d 327, 330 (Tex.App.--El Paso 2013, pet. denied). When a plea to the jurisdiction challenges the pleadings, we look to the pleader's intent, construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings as true to determine if the pleader has alleged sufficient facts to affirmatively demonstrate the trial court's jurisdiction to hear the case. Heckman v. Williamson County , 369 S.W.3d 137, 150 (Tex. 2012) ; JNC Land Co., Inc. v. City of El Paso , 479 S.W.3d 903, 907 (Tex.App.--El Paso 2015, pet. denied). "If the pleadings do not contain sufficient facts 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 the plaintiffs should be afforded the opportunity to amend." Miranda , 133 S.W.3d at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend their pleading. Id. at 227.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Id. at 226. "If there is no question of fact as to the jurisdictional issue, the trial court must rule on the plea to the jurisdiction as a matter of law." City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009). "If, however, the jurisdictional evidence creates a fact question, then the trial court cannot grant the plea to the jurisdiction, and the issue must be resolved by the fact finder." Id. "This standard mirrors our review of summary judgments" where the reviewing court takes as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant's favor. Id.

While akin to a summary judgment, a plea to the jurisdiction is not a substitute for a "no evidence" motion for summary judgment. Instead, to trigger the plaintiff's obligation to submit some evidence creating a fact issue, the government entity must first present evidence conclusively negating one or more elements of the plaintiff's claim. Miranda , 133 S.W.3d at 226 ; Texas Dept. of Fam. and Protective Services v. Howard , 429 S.W.3d 782, 786 (Tex.App.--Dallas 2014, pet. denied). As the Miranda court explained, "[b]y requiring the [governmental entity] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to ‘put on their case simply to establish jurisdiction.’ " Miranda , 133 S.W.3d at 228, quoting Bland Independent School Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). But if there is no fact question on the jurisdictional issue, the trial court should rule on the plea to the jurisdiction as a matter of law. Heinrich , 284 S.W.3d at 378.

We review de novo the question of whether a plaintiff has alleged facts sufficient to affirmatively demonstrate a trial court's subject matter jurisdiction, and whether the jurisdictional facts establish a trial court's jurisdiction (or lack thereof). Miranda , 133 S.W.3d at 226-27 ; State Dept. of Highways and Public Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002) ; Tabrizi v. City of Austin , 551 S.W.3d 290, 295-96 (Tex.App.--El Paso 2018, no pet.).

DISCUSSION

The County raises two issues on appeal. In its first issue, it claims that the notice of claim was deficient. In the County's second issue, it contends that Baker has not overcome the County's evidence that it had no actual notice of a premises defect. Even if we assume perfect notice was given as required by law, the appeal can be resolved on the County's second issue, which we find dispositive.

PREMISES LIABILITY

The Tort Claims Act waives 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...