Opinion
14-23-00756-CV
12-17-2024
CITY OF HOUSTON, Appellant v. ERIC WARREN AND CASSANDRA WARREN, Appellees
On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2023-13508
Panel consists of Jewell, Zimmerer, and Hassan Justices.
MAJORITY MEMORANDUM OPINION
Jerry Zimmerer, Justice.
Appellant the City of Houston brings this interlocutory appeal from the trial court's denial of its Rule 91a motion to dismiss. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing interlocutory appeal from order that grants or denies a plea to the jurisdiction by a governmental entity); see Tex. R. Civ. P. 91a (authorizing dismissal of a cause of action that has no basis in law or fact); City of Houston v. Boodoosingh, No. 14-23-00220-CV, 2024 WL 3188617, at *1, n.1 (Tex. App.-Houston [14th Dist.] June 27, 2024, no pet.) (concluding this court had jurisdiction to address interlocutory appeal because a Rule 91a motion to dismiss is an appropriate procedural vehicle for a governmental entity to assert that a trial court does not have subject matter jurisdiction because the entity had not waived immunity). We reverse the trial court's order and dismiss appellees Eric Warren and Cassandra Warren's lawsuit for lack of subject matter jurisdiction.
Background
This is a Rule 91a car wreck case. Appellees initially sued Daniela Toledo Avila alleging that she negligently collided with their vehicle. While not mentioned in appellees' Original Petition or First Amended Petition, it was undisputed that Avila was an on-duty Houston police officer operating a police vehicle at the time of the alleged collision. Avila moved to dismiss the claims against her pursuant to section 101.106(f) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §101.106(f) (compelling an election by a plaintiff making suit against the governmental employer the exclusive remedy for a public employee's conduct within the scope of employment). Appellees nonsuited Avila and filed suit against Houston in their Second Amended Petition. Houston then filed its Special Exceptions and Answer to appellees' Second Amended Petition. In its answer Houston asserted governmental immunity and official immunity as affirmative defenses to appellees' lawsuit. Houston then filed a Rule 91a motion to dismiss arguing that appellees failed to plead facts (1) establishing a waiver of governmental immunity or (2) that would overcome official immunity.
Appellees then filed their Third Amended Petition, their live pleading. In this petition appellees alleged the following:
8. All allegations are pleaded in the alternative. On or about November 19, 2021, Plaintiff Eric Warren was driving in a reasonable
manner in Harris County, Texas, when Daniela Toledo Avila failed to control speed and collided into Plaintiffs' vehicle. Plaintiff Cassandra Warren was a passenger riding with Plaintiff Eric Warren.
9. At the time in question, Daniela Toledo Avila was in the course and scope of her employment with Defendant City of Houston, who was the owner of the vehicle driven by Daniela Toledo Avila.
. . . .
16. Specifically, the occurrence giving rise to this suit and the resulting injuries and damages were proximately caused by the negligent conduct of Daniela Toledo Avila, who was in the course and scope of her employment with Defendant City of Houston and operated her vehicle in a negligent manner because she violated the duty owed to Plaintiffs to exercise ordinary care in the operation of the motor vehicle in one or more of the following ways: failed to act as a reasonably prudent driver would have done under the same or similar circumstances; may have been driving while distracted; failed to maintain a proper lookout; failed to brake and failed to slow down soon enough; failed to pay attention to driving conditions; and/or failed to yield the right of way, all of which singularly or in concert constituted negligence and/or negligence per se that caused the wreck and Plaintiffs' injuries.
After appellees filed a response to the 91a motion, Houston filed a reply in support of its Rule 91a motion in which it argued appellees failed "to plead facts that would overcome the [Texas Tort Claims Act's] emergency and 9-1-1 exceptions and negate application of official immunity." The trial court denied Houston's motion and this interlocutory appeal followed.
We have jurisdiction over this interlocutory appeal because Rule 91a is an appropriate procedural vehicle to assert that a trial court does not have subject-matter jurisdiction because the defendant is a governmental unit that has not waived its governmental immunity. See Boodoosingh, 2024 WL 3188617, at *1, n.1.
Analysis
Houston challenges the trial court's denial of its Rule 91a motion to dismiss in two issues.
I. Standard of review and applicable law
If a cause of action has no basis in law or fact, a party may move for dismissal under Rule 91a. Tex.R.Civ.P. 91a; see also In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021). "A motion to dismiss . . . must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Tex.R.Civ.P. 91a.2. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex.R.Civ.P. 91a. This can arise in two circumstances: (1) the petition alleges too few facts to demonstrate a viable, legally cognizable right to relief; and (2) the petition alleges additional facts that, if true, bar recovery. Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex. App.- Houston [1st Dist.] 2016, no pet.). A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. Id. We review whether a cause of action has any basis in law de novo. San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 628 (Tex. 2021). We accept as true the factual allegations in the pleadings and liberally construe the pleadings in favor of the plaintiff. HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 808 (Tex. App.-Houston [14th Dist.] 2018, no pet.). If needed, the trial court may draw reasonable inferences from the factual allegations to determine if the cause of action has any basis in law or fact. Boodoosingh, 2024 WL 3188617, at *2. A court may not consider evidence and must decide the motion "based solely on the pleading of the cause of action." Tex.R.Civ.P. 91a.6; City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016).
Additionally, in deciding a Rule 91a motion to dismiss, "a court may consider the defendant's pleadings if doing so is necessary to make the legal determination of whether an affirmative defense is properly before the court." Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020). "Rule 91a permits motions to dismiss based on affirmative defenses "if the [claimant's] allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.'" Id. (quoting Tex.R.Civ.P. 91a.6). "Of course, some affirmative defenses will not be conclusively established by the facts in a plaintiff's petition. Because Rule 91a does not allow consideration of evidence, such defenses are not a proper basis for a motion to dismiss." Id.
Indeed, courts may sua sponte address perceived jurisdictional issues "but the adversary process remains the touchstone of litigation even in this context." Rattray v. City of Brownsville, 662 S.W.3d 860, 869 (Tex. 2023).
Governmental units are immune from suit unless immunity is waived by state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). If a governmental unit has immunity from suit, a trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). Houston, as a municipality and political subdivision of the State, cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Under the alleged facts of this case, possible waiver of Houston's immunity from suit and liability is found in section 101.021 of the Texas Tort Claims Act (the Act), which provides in relevant part:
A governmental unit in the state is liable for … 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[.] Tex. Civ. Prac. & Rem. Code § 101.021(1).
The Act also provides several exceptions and exclusions that function as a withdrawal of the waiver of immunity provided by section 101.021(1). Rattray, 662 S.W.3d at 866. There are two relevant here. Bethel, 595 S.W.3d at 656 ("In deciding a Rule 91a motion, a court may consider the defendant's pleadings if doing so is necessary to make the legal determination of whether an affirmative defense is properly before the court."). The first is the emergency exception, which provides that the Act's waiver of immunity does not apply "if the [governmental] employee was responding to an emergency, complied with applicable laws, and-in the absence of applicable laws-did not act with conscious indifference or reckless disregard for the safety of others." City of Houston v. Green, 672 S.W.3d 27, 30 (Tex. 2023) (per curiam) (citing Tex. Civ. Prac. & Rem. Code § 101.055(2)). A second relevant exception is the 9-1-1 exception which provides that the Act "applies to a claim against a public agency that arises from an action of an employee of the public agency . . . that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action." Tex. Civ. Prac. & Rem. Code § 101.062(b). The plaintiff has the burden to affirmatively demonstrate that the trial court has jurisdiction, which encompasses the burden to plead facts "establishing a waiver of sovereign immunity in suits against the government." Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). This requires the plaintiff to plead facts satisfying the provisions of the Act waiving immunity and negating any provisions of the Act creating exceptions to that waiver. Rattray, 662 S.W.3d at 867.
II. Appellees did not plead sufficient facts to invoke a waiver of governmental immunity.
In its second issue Houston argues that the trial court erred when it denied Houston's motion to dismiss because appellees failed to allege sufficient facts to negate application of the emergency exception. We agree.
After appellees filed their Second Amended Petition naming Houston as the defendant, Houston filed its Rule 91a motion to dismiss asserting, among other arguments, that appellees failed to allege facts negating the application of the emergency exception. Appellees then filed their Third Amended Petition which added: "No exceptions or exclusions to the Texas Tort Claims Act apply in this suit, thus waiver is not withdrawn." Houston filed a reply in support of its motion to dismiss asserting that appellees' Third Amended Petition still failed to allege sufficient facts negating application of the emergency exception.
We conclude that appellees' additional sentence, quoted above, is not a factual allegation but is instead a conclusory statement because it does not provide underlying factual allegations to support the legal conclusion that no exceptions or exclusions to the Texas Tort Claims Act applied. See La China v. Woodlands Operating Co., L.P., 417 S.W.3d 516, 520 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (explaining that a conclusory statement "expresses a factual inference without providing underlying facts to support that conclusion."). When deciding an appeal from the denial of a Rule 91a motion, we need not accept conclusory statements as true. See Vasquez v. Legends Natural Gas III, LP, 492 S.W.3d 448, 451 (Tex. App.-San Antonio 2016, pet. denied) ("In the case at bar, although we take all of Laura's factual allegations as true, we need not afford the same deference to plaintiff's legal conclusions or conclusory statements.") (emphasis in original). A plaintiff must include more than a threadbare recital of the elements of a cause of action supported by conclusory statements in its petition to survive a Rule 91a motion to dismiss. See Rattray, 662 S.W.3d at 867 (explaining that a plaintiff must plead facts satisfying the provisions of the Act waiving immunity and negating any provisions of the Act creating exceptions to waiver of immunity); Stallworth, 510 S.W.3d at 190 (stating that a cause of action has no basis in law if plaintiff's petition alleges too few facts to demonstrate a viable, legally cognizable right to relief); cf. Kaufman Cnty. v. Leggett, 396 S.W.3d 24, 30 (Tex. App.- Dallas 2012, pet. denied) (holding plaintiff's factual allegations, which included "nine particulars" describing how the officer was negligent, grossly negligent, and reckless, sufficiently established a waiver of immunity and the non-applicability of the emergency exception). Here, appellees did not plead facts alleging that Officer Avila acted recklessly in the time leading up to the collision with appellees' vehicle. See Green, 672 S.W.3d at 30 (stating that when emergency exception is at issue the question "largely collapses into a single inquiry of whether [the police officer] acted recklessly."). Because appellees pled insufficient facts to negate application of the emergency exception, we hold that the trial court erred when it denied Houston's Rule 91a motion to dismiss. See Rattray, 662 S.W.3d at 868 ("The fundamental rule is that the court may not reach the merits if it finds a single valid basis to defeat jurisdiction. When one such ground exists, it is not necessary that every other potential jurisdictional defect be raised, fleshed out, or resolved at the outset."); City of Houston v. Hernandez, No. 14-23-00916-CV, 2024 WL 3867828, at *2 (Tex. App.-Houston [14th Dist.] Aug. 20, 2024, no pet.) (mem. op.) ("Thus, even construing his pleadings liberally, we cannot conclude that Cervantes alleged sufficient facts to affirmatively show a waiver of immunity."). We sustain Houston's second issue.
Because "one valid jurisdictional obstacle is enough for [a trial] court to halt further proceedings," we need not address Houston's first issue. Rattray, 662 S.W.3d at 868.
Conclusion
Having sustained Houston's second issue on appeal, we reverse the trial court's order denying Houston's Rule 91a motion to dismiss and dismiss appellees' claims against Houston for lack of subject matter jurisdiction.