Opinion
01-21-00255-CV
09-01-2022
CITY OF HOUSTON, Appellant v. JOHN ANTHONY BRANCH, Appellee
On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2020-31674
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY, JUSTICE
In this personal injury suit, the City of Houston ("City") appeals the trial court's order denying summary judgment on Appellee John Anthony Branch's ("Branch") negligence claims. In two issues, the City contends (1) the trial court erred in denying its motion for summary judgment because the motor vehicle waiver under the Texas Tort Claims Act does not apply to privately owned vehicles or when an employee is neither operating nor using the motor vehicle, and (2) Branch's untimely amendment to his petition invoking the personal property waiver under the Texas Tort Claim Act does not salvage his claims.
We reverse and render.
Background
On October 13, 2018, the Booker T. Washington High School Alumni Association held a parade in Houston, Texas to commemorate the school's 125th anniversary. John Gibbs ("Gibbs"), the City's Community Outreach Liaison for Councilman Michael Kubosh ("Councilman Kubosh") and a Co-Chair of the parade, was responsible for driving Councilman Kubosh in the parade in the councilman's privately owned golf cart. The parade was not sponsored by the City.
Shortly before the parade began, Gibbs drove Councilman Kubosh in the golf cart to locate his proper position in the parade line-up. After Gibbs stopped the golf cart, he applied the golf cart's brake and emergency brake. With the emergency brake still on, Gibbs exited the golf cart. Branch approached the golf cart and leaned his elbows on the windshield. Kubosh, who was still seated in the passenger seat of the golf cart, leaned toward the driver's side of the golf cart to speak with someone. According to Branch, as he did so, the golf cart moved forward and struck Branch, injuring him.
Branch sued the City asserting negligence claims. Branch alleged in his Original Petition that Councilman Kubosh "operated a golf cart which ran over" Branch causing him injury. Branch alleged that Councilman Kubosh failed to (1) maintain a proper lookout, (2) control the operation of the golf cart, (3) avoid the incident in question, (4) pay attention to his surroundings, and (5) operate the golf cart as a person of ordinary prudence would have in the same or similar circumstances. Branch alleged waiver of immunity for the City under the Texas Tort Claims Act because his claims involved "personal injury caused by the negligent operation or use of a motor-driven vehicle by [the City's] employee." He alleged Councilman Kubosh was a City employee acting within the course and scope of his employment at the time of the incident and, thus, the City was liable under the doctrine of respondeat superior for his negligence. Branch did not assert negligence claims against Gibbs or allege that Gibbs, the driver of the golf cart, was negligent in his operation or use of the golf cart. The City filed a general denial asserting governmental immunity among other defenses.
The City moved for traditional summary judgment seeking dismissal of Branch's claims based on immunity. It argued the Texas Tort Claims Act's motor vehicle waiver did not apply because the golf cart was privately, not publicly, owned and Branch's injuries did not arise from an employee's negligent operation or use of the golf cart as a motor vehicle. The City attached to its motion a photo of the golf cart and Gibbs' affidavit. In his affidavit, Gibbs attested, in pertinent part that:
The day of the event, my role as Co-Chair was to drive Councilmember Kubosh in the parade, in his privately-owned golf cart.
I drove Councilmember Kubosh in the golf cart to find his correct position for the parade. I stopped the golf cart near where Chief Sam Pena was standing and applied the golf cart's brake and emergency brake. Mr. Branch approached the golf cart and leaned with his elbows on the windshield of the golf cart. His feet were underneath the front of the golf cart.
With the emergency brake still on, I started to exit the golf cart from the driver's side. Councilmember Kubosh started to slide toward the driver's side of the vehicle. I observed with my peripheral vision his left foot pass over the gas pedal without touching it. With his shift in body weight the golf cart shifted forward. I did not see an impact between the golf cart and Mr. Branch.
Branch responded to the City's motion for summary judgment arguing the City was not entitled to immunity based on the City's assertion that (1) the golf cart was privately, rather than publicly, owned, and (2) Councilman Kubosh was not operating or using the golf cart when the incident occurred. Branch attached his affidavit and Gibbs' affidavit to his response. In his affidavit, Branch stated, in part, that:
At the parade, City of Houston Councilmember Kubosh was sitting in the passenger seat of a stopped golfcart. Councilmember Kubosh leaned over to the driver's side of the golf cart to speak to someone. When Councilmember Kubosh did this, he reached out his hand and leaned his body to the driver's side of the golfcart. Then
Councilmember Kubosh's foot hit the gas pedal and I heard the golfcart's engine rev. I then felt the golfcart hit me.
John Gibbs was about 10 feet away, talking to someone else, when the golfcart hit me.
In its summary judgment reply, the City argued that Branch had presented no evidence or authority raising a genuine issue of material fact over the City's immunity. The City argued that the authorities Branch had cited to support his assertion that the motor vehicle waiver applies to privately owned vehicles addressed only the personal property waiver under the Texas Tort Claims Act-which Branch had not pleaded as a basis for the trial court's jurisdiction-not the motor vehicle waiver. The City further argued that Branch's evidence established that, at the time of the incident, Councilman Kubosh was not using or operating the golf cart as a motor vehicle but merely as a place to sit and talk before the parade began.
One day before the hearing on the City's motion for summary judgment, Branch filed his First Amended Petition alleging waiver of the City's immunity under the motor vehicle waiver or, alternatively, under the personal property waiver. See Tex. Civ. Prac. & Rem. Code § 101.021. Previously, Branch had asserted only the motor vehicle waiver. Branch did not allege that Councilman Kubosh "operated a golf cart" as he did in his Original Petition. Instead, he alleged that "City employee Michael Kubosh was in the passenger seat of a golf cart when he ran over Plaintiff" causing him injury. Branch did not name Gibbs or allege that Gibbs was negligent in his operation or use of the golf cart.
The City did not amend its motion for summary judgment to address Branch's alternative theory of waiver, and neither party argued the personal property waiver as a basis either to deny or grant the City's motion. Following the hearing on the City's motion for summary judgment, the trial court denied the City's motion. The trial court's order stated that "[a]fter considering Defendant's Traditional Motion for Summary Judgment, the pleadings, the response, the reply (if any), the affidavits, and other evidence on file, the Court DENIES Defendant's traditional motion for summary judgment." That same day, Branch filed a motion seeking leave to file his First Amended Petition.
The City filed this interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing interlocutory appeal from trial court's order denying governmental unit's challenge to subject matter jurisdiction); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019) ("[S]ection 51.014(a)(8) allows an interlocutory appeal to be taken when 'the trial court denies the governmental entity's claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise.'") (quoting Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).
Standard of Review and Applicable Law
Subject matter jurisdiction is essential to a court's power to decide a case. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013); City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009). To establish subject matter jurisdiction, a plaintiff must allege facts that affirmatively demonstrate the court's jurisdiction to hear the claim. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). A plaintiff also bears the burden of establishing a waiver of sovereign immunity in suits against the government. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
The lack of subject matter jurisdiction may be raised in a motion for summary judgment. See Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); see also Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006). We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To obtain a traditional summary judgment, a movant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). To determine whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Swanson, 590 S.W.3d at 551.
Texas Tort Claims Act
Sovereign immunity and its counterpart for political subdivisions, governmental immunity, protect the State and its political subdivisions, including municipalities, from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see also Reata Constr. Corp., 197 S.W.3d at 374. The immunity doctrine includes two distinct principles: immunity from liability and immunity from suit. City of Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. City of Hous. v. Nicolai, 539 S.W.3d 378, 386 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).
The City of Houston is a governmental unit generally immune from tort liability except where the legislature specifically waives that immunity. Id.; see Dall. Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Relevant to this appeal, Section 101.021 of the Texas Tort Claims Act ("TTCA") provides that a governmental unit in the state is 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 governmental unit would, were it a private person, be liable to the claimant according to Texas law.Tex. Civ. Prac. & Rem. Code § 101.021. The party suing a governmental entity has the burden to establish jurisdiction by pleading-and ultimately proving-not only a valid immunity waiver but also a claim that falls within the waiver. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 135-36 (Tex. 2015); Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 586-87 (Tex. 2001). We interpret waivers of immunity narrowly because the intent to waive must be expressed by clear and unambiguous language. Garcia, 253 S.W.3d at 655; Reata Constr. Corp., 197 S.W.3d at 375. As the Texas Supreme Court repeatedly has stated, "any purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity." PHI, Inc. v. Tex. Juv. Just. Dep't, 593 S.W.3d 296, 303 (Tex. 2019) (quoting Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513 (Tex. 2012)).
A. Section 101.021(1): Motor-Driven Vehicle Waiver
In its first issue, the City contends the trial court erred in denying its motion for summary judgment because the TTCA's motor vehicle waiver applies only to publicly owned vehicles and it is undisputed the golf cart involved in this incident was privately owned by Councilman Kubosh. It also argues that Councilman Kubosh was not using or operating the golf cart as a motor vehicle but rather as a waiting area or holding cell and, thus, the City's immunity is not waived under Section 101.021(1).
1. Operation or Use of a Motor-Driven Vehicle
The City cites several Texas Supreme Court decisions in support of its contention that it retains immunity under Section 101.021(1) of the TTCA because the golf cart that struck Branch is privately owned and the TTCA's motor vehicle waiver applies only to publicly owned vehicles. The City points out that in Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976), the Texas Supreme Court stated, "The [Texas Tort Claims Act] provide[s] for waiver of governmental immunity in three general areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property." Id. at 298. The City points out that the Court has repeated this statement in subsequent cases. See Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) ("Section 101.021 has been interpreted to waive sovereign immunity in three general areas: 'use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.'") (quoting Lowe, 540 S.W.3d at 298); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002) ("The Tort Claims Act expressly waives sovereign immunity in three general areas: "'use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.'") (quoting Able, 35 S.W.3d at 611); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004); (same) (quoting Brown, 80 S.W.3d at 554); Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016) ("Thus, a governmental unit is immune from suit unless the Tort Claims Act expressly waives immunity, which it does in three areas when the statutory requirements are met: (1) use of publicly owned automobiles; (2) injuries arising out of a condition or use of tangible personal property; and (3) premises defects.") (citing Miranda, 133 S.W.3d at 224-25).
The City also cites numerous appellate court decisions for the same proposition. See, e.g., Tex. Dep't of Crim. Just. v. Parker, No. 10-18-00024-CV, 2020 WL 5833869, at *3 (Tex. App.-Waco Sept. 30, 2020, no pet.) (mem. op.); Tex. Dep't of Transp. v. Ives, No. 05-18-01527-CV, 2020 WL 2715367, at *1 (Tex. App.- Dallas May 26, 2020, pet. denied) (mem. op.); State Bar of Tex. v. Wilson, No. 03-18-00649-CV, 2019 WL 1272616, at *2 (Tex. App.-Austin Mar. 20, 2019, pet. denied) (mem. op.); Tex. Dep't of Transp. v. Tarver, No. 01-17-00919-CV, 2018 WL 3468475, at *2 (Tex. App.-Houston [1st Dist.] July 19, 2018, no pet.) (mem. op.); City of El Paso v. Viel, 523 S.W.3d 876, 889 (Tex. App.-El Paso 2017, no pet.); Liverman v. Denton Cnty., No. 02-17-00240-CV, 2017 WL 6377437, at *2 (Tex. App.-Fort Worth Dec. 14, 2017, no pet.) (mem. op.); Patterson v. Marcantel, No. 09-16-00173-CV, 2017 WL 4844514, at *9 (Tex. App.-Beaumont Oct. 26, 2017, no pet.) (mem. op.); City of Canadian v. Klein, No. 07-15-00452-CV, 2017 WL 2334233, at *2 (Tex. App.-Amarillo May 22, 2017, pet. denied) (mem. op.); Wilkins v. Nueces Cnty., No. 13-14-00570-CV, 2017 WL 2180695, at *1 (Tex. App.-Corpus Christi May 18, 2017, no pet.) (mem. op.); Riddle v. City of Abilene, 478 S.W.3d 842, 846 (Tex. App.-Eastland 2015, pet. denied); Uvalde Cty. Hosp. Auth. v. Garcia, 452 S.W.3d 1, 4 (Tex. App.-San Antonio 2014, no pet.); Univ. of Tex. Health Sci. Ctr. at Hous. v. Garcia, 346 S.W.3d 220, 224 (Tex. App.-Houston [14th Dist.] 2011, no pet.); Tex. Dep't of Transp. v. Pate, 170 S.W.3d 840, 844 (Tex. App.-Texarkana 2005, pet. denied); Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex. App.-Tyler 1996, writ denied).
Branch argues that none of the cited cases support the City's position that the motor vehicle waiver applies only to injuries arising from a governmental employee's operation or use of a publicly owned vehicle or even involve the motor vehicle waiver provision in the first instance. Rather, he asserts the passages are merely inartful dicta that originated with the Lowe decision and had no bearing on the courts' analyses. Branch argues the language is contrary to the plain language of the statute and that other courts have recognized that no such ownership requirement exists. See, e.g., Cnty. of Galveston v. Morgan, 882 S.W.2d 485, 490 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ("There is no requirement that the vehicle in question be a county vehicle, only that a county employee 'used' or 'operated' the vehicle."); Sem v. State, 821 S.W.2d 411, 415-16 (Tex. App.-Fort Worth 1991, no writ) (examining motor vehicle and tangible personal property waivers and concluding "[n]othing in this section requires that the State own the tangible property in question, and we have found no case holding that the State must own the property in order to be subjected to liability under the act."); Metro Transit Auth. v. Smith, 14-17-00807-CV, 2018 WL 6494141, at *6 (Tex. App.-Houston [14th Dist.] Dec. 11, 2018, no pet.) (mem. op.) ("Further, we find it instructive that cases interpreting section 101.021(1) have held that waiver may exist from injuries caused by the use of a non-government owned motor vehicle."); Vidor Indep. Sch. Dist. v. Bentsen, No. 09-04-401-CV, 2005 WL 1653873, at *2 (Tex. App.- Beaumont July 14, 2005, no pet.) (mem. op.) (concluding school district waived immunity under TTCA where plaintiff's claims arose from government employee's operation or use of motor-driven vehicle that was not owned by school district); City of El Campo v. Rubio, 980 S.W.2d 943, 945-46 (Tex. App.- Corpus Christi 1998, pet. dism'd w.o.j.) (holding immunity was waived under motor vehicle waiver because officer "used" or "operated" vehicle by exercising control over it, even though City did not own vehicle in question); City of Socorro v. Hernandez, 508 S.W.3d 1, 11 (Tex. App.-El Paso 2015, pet. denied) (concluding police officer's orders to drivers, who had been involved in two-car automobile accident, to push privately-owned and disabled vehicle out of roadway constituted negligence arising from officer's "operation or use of a motor vehicle" for purposes of waiving immunity).
The Texas Supreme Court recently noted "no court has the authority, under the guise of interpreting a statute, to engraft extra-statutory requirements not found in a statute's text." PHI, Inc. v. Tex. Juvenile Justice Dep't, 593 S.W.3d 296, 305 (Tex. 2019) ("The statute itself-and only the statute-provides the governing rule of decision.").
Even if Branch were correct that the motor vehicle exception extends to privately owned vehicles, an issue we need not decide today, Branch must still plead and prove that his injuries arose from the negligence of a governmental employee while operating or using a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). Specifically, under Section 101.021(1), a governmental unit is liable for personal injury "caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment" if the personal injury "arises from the operation or use of a motor-driven vehicle" and "the employee would be personally liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(1). This requires evidence both of (1) "operation or use" of a motor-driven vehicle, and (2) a causal connection between the "operation or use" and the plaintiff's injuries. See Williams v. City of Baytown, 467 S.W.3d 566, 573 (Tex. App.-Houston [1st Dist.] 2015, no pet.).
Courts strictly construe the terms "operation or use" of a motor vehicle under Section 101.021(1)(A). Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015). Section 101.021(1)(A) "does not explicitly require that the operation or use [of a motor vehicle] be 'active' or that it be ongoing 'at the time of the incident.'" PHI, Inc. v. Tex. Juv. Just. Dep't, 593 S.W.3d 296, 305 (Tex. 2019). But a plaintiff's alleged damage or injury must "arise from" the motor vehicle's "operation or use." That is, the statute "requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle." Id. at 302 (quoting LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992)). The claim must be based on "more than mere involvement of property;" rather, "the use or operation 'must have actually caused the injury.'" Id. (quoting Tex. Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001)); Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) ("The operation or use of a motor vehicle does not cause injury if it does no more than furnish the condition that makes the injury possible.").
The Texas Supreme Court recently addressed the "arises from" and "operation or use" requirements in PHI, Inc. v. Texas Juvenile Justice Department, 593 S.W.3d 296 (Tex. 2019). There, a governmental employee drove and parked a Department van on an incline near a PHI-owned helicopter, turned off the ignition, and exited the van without setting the emergency brake. See id. at 300. As the employee walked away, the van began rolling backwards and crashed into PHI's helicopter. See id. PHI sued the Department alleging it breached its duty to act with ordinary care in maintaining and operating the van based on its employee's negligence. See id. The Department filed a combined plea to the jurisdiction and motion for summary judgment which the trial court denied. See id. at 301. In a divided opinion, the court of appeals reversed and rendered a take-nothing judgment for the Department. See id.
On petition for review, the Department argued PHI's negligence claims were barred because its employee was not even in the van, much less actively operating it, when the collision occurred. See id. In support of its argument, the Department relied on the Court's statement in Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922 (Tex. 2015) that "a government employee must have been actively operating the vehicle at the time of the incident." Id. at 304-06 (quoting Ryder, 453 S.W.3d at 927). The Court clarified that while the statement remains an important inquiry, the court of appeals erred in treating it as statutory text. See id. at 305. ("Ryder correctly suggests that whether a government vehicle was in 'active' operation 'at the time of the incident' is an important consideration in determining whether an alleged injury arises from the operation or use of a vehicle. But a single sentence from that opinion is not itself the rule of decision."). The Court held that although the employee was not in the van at the moment of impact, the evidence raised a fact issue as to whether the accident "arose from" the employee's failure to set the emergency brake. Id. at 304.
As to whether the employee's failure to engage the emergency brake qualified as "operation or use" of the van, the Court noted it had previously defined "use" as "to put or bring into action or service; to employ for or apply to a given purpose" and "operation" as "a doing or performing of a practical work." Id. at 303 (citing Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989)). After noting these definitions, although correct, were not particularly enlightening, the Court concluded that "ensuring your car will not roll away after you leave it, including engagement of the emergency brake when necessary, is an integral part of the 'operation or use' of a vehicle." Id. at 303-04. Notably, no one refuted that the government employee had been operating or using (driving) the van moments before the incident. Rather, the sole question before the Court was whether applying the emergency brake was an "'essential' and 'final' aspect of driving the van . . . ." Id. at 303-04 ("PHI's allegation that Webb negligently performed this 'essential' and 'final' aspect of driving the van fits squarely within the textual parameters of section 101.021(1)(A).").
As part of its analysis, the Court discussed its interpretation of the "operation and use" requirement in LeLeaux v. Hamshire-Fannett Independent School District, 835 S.W.2d 49 (Tex. 1992). In LeLeaux, a school bus took students from the defendant school district to a marching band contest where the students watched other bands perform. See id. at 51. While the school bus was "parked [and] empty, with the motor off," a student jumped onto the rear of the bus and hit her head. Id. The Court held the injury did not arise out of the operation or use of the bus because the bus "was nothing more than the place where [the student] happened to injure herself" and was "only the setting for the injury." Id. at 51-52. The PHI Court distinguished LeLeaux, stating, "[h]ere, by contrast, the Department's van was not simply the venue of the injury. The van itself rolled away and collided with the helicopter, and PHI alleges this happened because of the driver's negligent failure to make sure the van did not immediately roll away after he exited it. The bus driver in LeLeaux had nothing to do with the accident, whereas PHI's allegation is that the van driver caused the accident by negligently performing the final act of driving, which is making sure the vehicle he just finished driving wouldn't roll away." PHI, Inc., 593 S.W.3d at 302 (emphasis in original).
2. Analysis
The City contends that at the time of the accident, the golf cart was not being used or operated as a motor vehicle but, rather, as a waiting area or holding cell. It argues the unrefuted evidence established that, moments before the alleged accident, Councilman Kubosh was sitting in the passenger seat of the golf cart and shifted over to the driver's side-not to put the cart into motion-but so he could speak to someone on the driver's side of the cart. The City contends the evidence also established that the actual cause of the incident was not a government employee's negligent operation or use of a motor vehicle but Branch's decision to stand directly in front of the golf cart with his elbows on the windshield and his feet under the wheels.
Branch responds that he presented evidence to satisfy the "operation or use" and "arise from" requirements of Section 101.021(1)(A). In support of his contention, Branch points to his affidavit testimony that Councilman Kubosh was sitting in the passenger seat of a stopped golf cart, he saw Councilman Kubosh reach out his hand and lean his body toward the driver's side of the golf cart to speak to someone and, as the Councilman did this, his foot hit the gas pedal of the golf cart, causing the engine to rev and Branch felt the golf cart hit him. Branch asserts this evidence raises at least a fact question as to whether his injuries "arose from" Councilman Kubosh's operation or use of the golf cart as a motor vehicle and whether there was a direct nexus between the "employee's active operation or use of the golfcart and [Branch's] damages." Branch further argues, contrary to the City's contention that the golf cart was being used merely as a "holding cell" or "waiting area," that when Councilman Kubosh's foot hit the gas pedal "the golf cart was doing or performing a practical work and was being employed for a given purpose-indeed, its specifically designed purpose as a motor vehicle: moving forward."
Taking the evidence in the light most favorable to Branch and indulging every reasonable inference in his favor, as we must, we conclude the evidence does not satisfy the "operation or use" requirement under Section 101.021(1)(A). Even assuming the golf cart struck Branch when Councilman Kubosh's "foot hit the gas pedal" as he leaned his body toward "the driver's side of the golf cart," this evidence does not establish that the Councilman was "doing or performing a practical work" or that he put the golf cart "into action or service" or "employed it for a given purpose." See PHI, Inc., 593 S.W.3d at 303 (defining "use" as "to put or bring into action or service; to employ for or apply to a given purpose" and "operation" as "a doing or performing of a practical work").
Rather, both Branch and Gibbs testified that Councilman Kubosh, who was "sitting in the passenger seat of [the] stopped golf cart," "leaned over to the driver's side of the golf cart to speak to someone" while waiting for the parade. See Ryder, 453 S.W.3d at 927 (stating motor vehicle must have been used as vehicle, and not as waiting area or holding cell); LeLeaux, 835 S.W.3d at 51 (concluding unsupervised students were not using parked bus as vehicle when they chose to meet there to talk). That the Councilman may have "hit the gas pedal" with his foot while leaning over to speak to someone does not transform this act into the "operation or use" of the golf cart as a motor vehicle for purposes of Section 101.021(1)(A).
The dissent argues that "stepping on the gas pedal of a motor vehicle is an 'integral part of the "operation or use" of a vehicle.' [] Indeed, the application of the gas pedal is the penultimate 'operation or use' of a vehicle, given that this act causes the motor vehicle to move." Thus, the dissent concludes, Councilman Kubosh's act of hitting the gas pedal falls squarely within the definition of "use" which means "to put or bring into action or service." It is undisputed, however, that (1) Councilman Kubosh was not the driver of the golf cart, (2) the driver, Gibbs, stopped the golf cart and exited the cart; and (3) Councilman Kubosh was "sitting in the passenger seat of a stopped golfcart" when he leaned over to speak to someone. Branch did not present evidence that Councilman Kubosh was trying to use or operate the golf cart. Branch testified that Councilman Kubosh's foot hit the gas pedal as he leaned over to the driver's side to speak to someone, not as the dissent contends, that the Councilman stepped on or applied the gas pedal.
"Step" is defined as "to press down with the foot." Merriam-Webster, https://www.merriam-webster.com/dictionary/step (last visited August 30, 2022).
Unlike the government employee in PHI, Councilman Kubosh was not the driver of the golf cart, but merely a passenger. And while it is true that nothing in the statute requires the use or operation of a motor vehicle to be intentional, the conclusion that a person sitting in the passenger seat of a "stopped golf cart" has "used or operated" the motor vehicle by inadvertently hitting the gas pedal while leaning over to the driver's side to speak to someone stretches the definition of "operation or use" too far.
There is nothing in the record indicating the precise timing of events or how soon the parade was set to begin after the participants lined up.
Branch contends, alternatively, that the evidence creates a fact question as to whether Gibbs negligently failed to park and engage the golf cart's emergency brake properly or completely or otherwise negligently failed to ensure the golf cart would not move and hit pedestrians while he left it unattended. This argument lacks merit. In both his Original and First Amended Petitions, Branch predicated the City's alleged liability solely on the actions of Councilman Kubosh. Branch did not name Gibbs as a party or allege that Gibbs was negligent in his operation or use of the golf cart. And Branch did not argue during the summary judgment hearing that Gibbs' negligence precluded summary judgment. Because Branch neither pleaded nor raised this alternative theory below, we may not consider it. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (recognizing Texas courts, like federal courts, have no jurisdiction to render advisory opinions).
Because the evidence establishes Councilman Kubosh was not operating or using the golf cart as a motor vehicle, Branch's alleged injuries did not arise from a government employee's negligent operation or use of a motor vehicle. See Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). The City retained its immunity under the TTCA's motor vehicle waiver. We sustain the City's first issue.
B. Section 101.021(2): Tangible Personal Property Waiver
In its second issue, the City contends Branch's untimely amendment to his petition invoking the tangible personal property waiver under Section 101.021(2) of the TTCA does not save his claims. The City argues the personal property waiver does not waive its immunity for two reasons: (1) the motor vehicle and tangible personal property waivers are mutually exclusive and cannot be pleaded in the alternative, and (2) the City itself did not use the golf cart, precluding application of the waiver.
On May 3, 2021, the day before the hearing on the City's motion for summary judgment, Branch filed his First Amended Petition asserting for the first time the tangible personal property waiver under Section 101.021(2) as an alternative basis for the trial court's jurisdiction. Branch does not explain the basis for jurisdiction in his First Amended Petition. Branch merely alleges, without more, that the "Court has jurisdiction over this claim under the Texas Tort Claims Act because the Texas Legislature waived Defendant's sovereign immunity under Tex. Civ. Prac. & Rem. 101.021(1) or in the alternative Tex. Civ. Prac. & Rem. 101.021(2)."
Branch filed a motion for leave to file his First Amended Petition on May 4, 2021, the day of the summary judgment hearing. The trial court entered its order denying the City's motion for summary judgment that same day. In its summary judgment order, the trial court stated: "After considering Defendant's Traditional Motion for Summary Judgment, the pleadings, the response, the reply (if any), the affidavits, and other evidence on file, the Court DENIES Defendant's traditional motion for summary judgment." (Emphasis added.)
A party may not amend his pleadings within seven days of a summary judgment hearing without leave of court. See Tex. R. Civ. P. 63. When as here, however, a summary judgment states that all pleadings were considered, "leave of court is presumed." B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 261 (Tex. 2020) ("[L]eave of court is presumed when a summary judgment states that all pleadings were considered, and when, as here, the record does not indicate that an amended pleading was not considered, and the opposing party does not show surprise.") (quoting Cont'l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex. 1996)). Although the City objected to the timeliness of Branch's amended pleading at the summary judgment hearing, it did not seek or obtain a ruling on that objection. We thus cannot conclude the trial court did not consider Branch's amended pleading. See B.C., 598 S.W.3d at 262 ("And although Steak N Shake objected to the timeliness of B.C.'s response, it neither sought nor obtained a ruling on that objection before or after the trial court's order; therefore, we have no basis to conclude the trial court did not consider all summary-judgment evidence on file at the time the motion was heard."). Because the trial court's summary judgment order expressly states it considered "the pleadings," we presume leave of court was granted and that the trial court considered Branch's First Amended Petition during the hearing on the City's motion for summary judgment. See id.
The City nonetheless argues that dismissal of Branch's suit is proper because the tangible personal property waiver does not apply for two reasons. The City argues the motor vehicle and personal property waivers are mutually exclusive and further that "Houston itself did not 'use' the golf cart." In considering grounds for reversal on appeal, we are ordinarily limited to those grounds expressly set forth in the summary judgment motions, answers, or other responses. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)). The City did not present these arguments to the trial court either in its summary judgment motion or during the summary judgment hearing. Instead, the City moved for summary judgment solely on the motor vehicle waiver because that was the only immunity waiver Branch had pleaded when the City filed its motion.
Lack of subject matter jurisdiction, however, cannot be waived and may be raised for the first time on appeal. See State v. Morello, 547 S.W.3d 881, 888-89 (Tex. 2018) (stating "challenges to lack of subject matter jurisdiction may be raised for the first time on appeal"); Oncor Elec. Delivery Co. LLC v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018) ("Because a challenge to the court's subject-matter jurisdiction cannot be waived, a party may raise exclusive jurisdiction for the first time on appeal."). As the Texas Supreme Court has clarified, because immunity from suit implicates a court's jurisdiction, appellate courts must consider all of a defendant's immunity arguments on appeal, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all. See Rusk v State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012) (holding court of appeals erred when it declined to consider state hospital's new immunity arguments on appeal). Thus, we must consider the City's jurisdictional argument, raised for the first time on appeal, that the personal property waiver does not waive its immunity in this case.
In his First Amended Petition, Branch alleged "[t]he Court has jurisdiction over this claim under the Texas Tort Claims Act because the Texas Legislature waived Defendant's sovereign immunity under Tex. Civ. Prac. & Rem. [Code] 101.021(1) or in the alternative Tex. Civ. Prac. & Rem. [Code] 101.021(2)." Section 101.021(2) of the TTCA waives immunity for claims for "personal injury and death so caused by a condition or use of tangible personal or real property." Tex. Civ. Prac. & Rem. Code § 101.021(2). The Texas Supreme Court has "consistently defined 'use' to be more than making tangible personal property available for use by another. To use something, the governmental unit must 'put [it] or bring [it] into action or service [or] employ [it] for or apply [it] to a given purpose.'" Harris Cnty. v. Annab, 547 S.W.3d 609, 613 (Tex. 2018) (quoting San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004)). For the government to "use" tangible personal property, the governmental unit must itself be the user and the injury must be contemporaneous with the use of the tangible personal property. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016). A governmental unit "does not 'use' tangible personal property within the meaning of section 101.021(2) by merely providing, furnishing, or allowing access to it." Id.
The City contends the personal property waiver does not waive its immunity because the City itself did not use the golf cart. It argues the undisputed evidence shows the City did not make the golf cart available to Councilman Kubosh and there is no indication that anyone from the City specifically authorized him to use it during the parade. The City asserts no authorization would have been, in fact, required because Councilman Kubosh used his own personal golf cart and the City neither organized nor sponsored the parade. In response, Branch argues Councilman Kubosh was a City employee acting within the scope of his employment, the golf cart constitutes tangible personal property, Councilman Kubosh used the golf cart within the meaning of the statute, and the use of the golf cart caused Branch's personal injury.
Branch's allegations do not trigger the TTCA's personal property immunity waiver under Section 101.021(2) because the City itself did not use the golf cart. Even if merely providing the golf cart to Councilman Kubosh were sufficient to waive the City's immunity-which it is not-the undisputed evidence demonstrates the City did not furnish the golf cart to the Councilman because it was the Councilman's privately owned golf cart. See Sampson, 500 S.W.3d at 389 (stating governmental unit "does not 'use' tangible personal property within the meaning of section 101.021(2) by merely providing, furnishing, or allowing access to it"); see also Annab, 524 S.W.3d at 801-02 (concluding county did not waive immunity under personal property waiver where record showed county did not make firearm available to deputy constable and deputy admitted he owned firearm prior to employment with county); Dall. Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41-42 (Tex. 2013) (concluding patient's alleged injury resulting from being struck by falling whiteboard did not arise from nonprofit organization's "use" of personal property, and therefore organization did not waive immunity, where organization did not "use" whiteboard within meaning of Texas Tort Claims Act merely by making it available for use).
Branch argues, alternatively, that his injuries resulted from a condition of the golf cart and Gibbs' testimony that he applied the golf cart's brake and emergency brake before exiting the cart establishes that a fact issue exists as to whether the golf car was defective or inadequate. This argument is problematic. Within the context of the TTCA, the Texas Supreme Court has defined "condition" as "either an intentional or an inadvertent state of being." Sampson, 500 S.W.3d at 388. Branch's First Amended Petition does not allege any facts to suggest he premises his claim on the "inadvertent state of being" of the golf cart. Nor does he base his claims on the actions of Gibbs. Rather, his negligence claims against the City are based solely on Councilman Kubosh's alleged failure to (1) maintain a proper lookout, (2) control the operation of the golf cart, (3) avoid the incident in question, (4) pay attention to his surroundings, and (5) operate the golf cart as a person of ordinary prudence would have in the same or similar circumstances. Thus, because Branch raises his alternative theory based on the "condition" of the golf car for the first time on appeal, we may not consider it. See Tex. Ass'n of Bus, 852 S.W.2d at 444.
Branch argues that because the City's summary judgment motion hinged on the motor vehicle waiver, the case should be remanded to afford him a fair opportunity to address the City's arguments based on the personal property waiver. "When a defendant raises a jurisdictional argument for the first time on appeal, remand may be appropriate to afford the plaintiff 'a fair opportunity to address' the jurisdictional argument." Annab, 547 S.W.3d at 616 (quoting Rusk State Hosp., 392 S.W.3d at 91). However, if the party who raised the jurisdictional defense, in this case the City, establishes that (1) "the pleadings or record . . . conclusively negate the existence of jurisdiction," (2) the plaintiff did in fact have a "full and fair opportunity in the trial court to develop the record and amend the pleadings," or (3) even with a remand "the plaintiff would be unable to show the existence of jurisdiction," then the case should be dismissed without a remand. Rusk, 392 S.W.3d at 96.
There is no allegation in Branch's First Amended Petition, and no evidence in the record, from which a reasonable inference could be drawn that the City itself used the golf cart. The undisputed evidence establishes the City itself did not furnish the golf cart or have any involvement in Councilman Kubosh's use of his privately owned cart at the parade that the City neither organized nor sponsored. Branch's amending his petition or conducting future discovery will not change this key and undisputed evidence. Thus, because we conclude no amount of future discovery or rephrasing of the allegations could properly invoke the TTCA's personal property waiver, remand is inappropriate. See Annab, 547 S.W.3d at 616 (concluding court of appeals erred in remanding case to trial court to allow plaintiff to replead and conduct additional discovery where no amount of discovery or rephrasing of allegations could result in plaintiff's establishing county's liability for deputy constable's off-duty criminal act).
We sustain the City's second issue.
In light of our conclusion that the personal property waiver does not waive the City's immunity, we do not reach its argument that the motor vehicle and tangible personal property waivers are mutually exclusive.
Conclusion
We reverse the trial court's order denying summary judgment and render judgment dismissing Branch's suit for lack of subject matter jurisdiction.
DISSENTING OPINION
APRIL L. FARRIS JUSTICE
John Anthony Branch alleged that he was injured when Houston City Councilmember Michael Kubosh hit the gas pedal of a golf cart with his foot, causing the golf cart to strike Branch. The act of hitting the gas pedal-even inadvertently-distinguishes this case from those in which the Texas Supreme Court has found that the injury did not arise "from the operation or use of a motor-driven vehicle or motor-driven equipment." Taking the facts alleged in Branch's favor, Branch has raised a fact issue on whether the golf cart was in operation or use when it struck him. I respectfully dissent.
ANALYSIS
The Texas Tort Claims Act ("TTCA") states that a governmental unit in the state is liable for personal injury that "arises from the operation or use of a motor-driven vehicle or motor-driven equipment." Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). The Texas Supreme Court has defined "use" to mean "to put or bring into action or service; to employ for or apply to a given purpose." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Mount Pleasant Indep. Sch. Dist. v. Est. of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989). The court has rejected the notion that the government employee's use or operation of the vehicle must be intentional. See PHI, Inc. v. Tex. Juv. Just. Dep't, 593 S.W.3d 296, 303-04 (Tex. 2019). As the majority correctly notes, PHI held that the requirements of section 101.021 were satisfied where an employee exited a government van without setting the emergency brake, causing the van to roll backwards down an incline and crash into a helicopter. Id.
In so holding, the Texas Supreme Court emphasized that it must apply the "plain meaning of statutory text 'unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.'" Id. at 303 (quoting Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)). The words "use" and "operation"-the court noted-are "nothing if not common, everyday words." Id. When the Texas Legislature opts for such "ordinary" language, "[o]rdinary citizens should be able to rely on the plain language of a statute to mean what it says." Id. (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)).
Applying a "simple construction" of the ordinary language to the facts of the case, the court concluded that the driver's failure to engage the emergency break constituted the "operation or use" of a motor vehicle even though the driver was not in the vehicle when it struck the helicopter. Id. at 303-04. The court noted that "[i]n terms of the everyday experience of driving, we think it self-evident that ensuring your car will not roll away after you leave it, including engagement of the emergency brake when necessary, is an integral part of the 'operation or use' of a vehicle." Id.
The same result should follow here. In an affidavit supporting his response to the City of Houston's motion for summary judgment, Branch averred as follows:
At the parade City of Houston Councilmember Kubosh was sitting in the passenger seat of a stopped golfcart. Councilmember Kubosh leaned over to the driver's side of the golf cart to speak to someone. When
Councilmember Kubosh did this, he reached out his hand and leaned his body to the driver's side of the golfcart. Then Councilmember Kubosh's foot hit the gas pedal and I heard the golfcart's engine rev. I then felt the golfcart hit me.
Applying an ordinary construction of the plain statutory language, stepping on the gas pedal of a motor vehicle is an "integral part of the 'operation or use' of a vehicle." See id. at 304. Indeed, the application of the gas pedal is the penultimate "operation or use" of a vehicle, given that this act causes the motor vehicle to move. This act squarely fits within Mount Pleasant's definition of "use" as meaning "to put or bring into action or service." See Mount Pleasant Indep. Sch. Dist., 766 S.W.2d at 211. Nothing in the statute requires this use or operation to be intentional.
The allegation that Councilman Kubosh's foot hit the gas pedal distinguishes this case from those in which the Texas Supreme Court held that the TTCA did not waive immunity. In LeLeaux v. Hamshire-Fannett Independent School District, the Texas Supreme Court held that the TTCA does not waive immunity where the vehicle itself is "only the setting" for the plaintiff's injury. See 835 S.W.2d 49, 52 (Tex. 1992) (emphasis added). In that case, a student jumped into a parked school bus through the emergency rear door and hit her head, causing injury. Id. at 51. The bus was not moving, the driver was not aboard, and no students were aboard. Id. at 50-51. Simply put, the bus was "nothing more" than the place where the student happened to injure herself. Id. at 51. Thus, the TTCA did not waive immunity because the parked bus was merely the setting for the plaintiff's injury. Id. at 52; see also Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015) (per curiam) (stating that, for immunity waiver in section 101.021(1) to apply, "the vehicle must have been used as a vehicle, and not, e.g., as a waiting area or holding cell").
That is not the case here. Branch's summary judgment evidence refutes the notion that the golf cart was "only the setting" for Branch's injury. Likewise, this is not a case where the golf cart was "nothing more" than the place where the injury occurred. Even if the golf cart was, as the City contends, being used as a holding cell or waiting area for the parade, the golf cart came into use or operation at the point that Councilman Kubosh's foot hit the gas pedal. The fact that the golf cart's resulting motion allegedly caused Branch's injury distinguishes the case from Mount Pleasant, where a driver's alleged failure to supervise children at a bus stop could not be characterized as a government agent's negligent use or operation of the bus. See Mount Pleasant Indep. Sch. Dist., 766 S.W.2d at 211-12. Although John Gibbs testified that Councilmember Kubosh's foot did not touch the gas pedal, we are required to take as true all evidence favorable to Branch and indulge every reasonable inference in his favor at this juncture. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). Because Branch's affidavit is some evidence that Councilmember Kubosh's foot did hit the gas pedal, we cannot disregard it. Consequently, I would hold that Branch has raised a fact issue sufficient to bring this case within the waiver of immunity in section 101.021 for the "operation or use" of a motor vehicle.
I would also hold that section 101.021's immunity waiver is not limited to government-owned vehicles. The majority is correct in noting that "[t]he statute itself-and only the statute-provides the governing rule of decision." PHI, 593 S.W.3d at 305. Reading the plain text of section 101.021, I agree with those intermediate courts holding that "[t]here is no requirement that the vehicle in question be a county vehicle, only that a county employee 'used' or 'operated' the vehicle." See, e.g., Cnty. of Galveston v. Morgan, 882 S.W.2d 485, 490 (Tex. App.- Houston [14th Dist.] 1994, writ denied). As such, I would affirm the trial court's denial of the City's motion for summary judgment.