Opinion
No. 05-11-00519-CV
05-16-2012
JERRY, MARSHA, AND JASON CHAMBERS, Appellants v. THE TEXAS DEPARTMENT OF TRANSPORTATION, Appellee
AFFIRM and Opinion Filed May 16, 2012
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 82711-422
MEMORANDUM OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
Jerry, Marsha, and Jason Chambers (collectively appellants) appeal the trial court's grant of the Texas Department of Transportation's (TxDOT) plea to the jurisdiction. In their first three issues, appellants generally argue the trial court improperly granted the plea to the jurisdiction because (1) TxDOT received actual notice of the claim within the statutory time period, and (2) TxDOT's sovereign immunity was waived due to the existence of a special defect or a premise defect and because it failed to comply with a statutory duty. In their fourth issue, appellants assert the trial court improperly requested that Jerry Chambers (Chambers) change his testimony. Finally, appellants contend in their fifth issue that the judgment must be reversed due to cumulative error. We affirm the trial court's judgment. The background of this case and the evidence adduced at the various hearings are well know to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled. Background
On July 9, 2008, Chambers was riding his motorcycle east on State Highway 243, a two-lane highway, in Kaufman County when he attempted to pass a utility truck. When Chambers moved into the other lane to pass the truck, he saw there were actually three slow-moving vehicles in front of him. Chambers attempted to pass all three vehicles. The first of these vehicles, however, was actually turning right onto Sundown Road. As Chambers passed the three vehicles, a car turned left from Sundown Road into the westbound lane of State Highway 243 and hit Chambers. As a result of the collision, Chambers's right leg was amputated.
Chambers, his wife, Marsha, and his son, Jason, filed suit against a number of parties, including TxDOT. As relevant to their claims against TxDOT, appellants pleaded that tall weeds and vegetation growing on both sides of a fence bordering the right-of-way along the state highway and along Sundown Road blocked Chambers's view of the intersection with Sundown Road. Because Chambers was not familiar with State Highway 243, he did not know he was approaching an intersection, rather than a driveway. Appellants claim that, if Chambers had been aware he was approaching an intersection, he would not have attempted to pass the vehicles in front of him and would not have been involved in the collision. Appellants pleaded TxDOT was responsible for their damages because it failed to remove the high vegetation, failed to require the private landowner to remove the high vegetation, and failed to designate the area as a no-passing zone.
TxDOT filed a plea to the jurisdiction, arguing appellants' claims were barred by sovereign immunity and because appellants failed to give TxDOT notice of the claim within the statutory time period. Appellants did not appear at the hearing on TxDOT's plea to the jurisdiction. The trial court took judicial notice of the file, which included affidavits and exhibits attached to appellants' second amended petition and to TxDOT's plea to the jurisdiction, and heard testimony from Darwin Myers, TxDOT's area engineer. The trial court granted TxDOT's plea to the jurisdiction without stating the basis for the ruling and severed appellants' claims against TxDOT from their claims against the other defendants.
Appellants filed a motion for new trial. At the hearing on the motion, appellants asserted they did not receive notice of the hearing on the plea to the jurisdiction. TxDOT provided the trial court with proof that appellants received the envelope containing the notice of the hearing on the plea to the jurisdiction, but appellants asserted the envelope they received did not contain the notice. Without addressing appellants' complaint that they did not receive notice of the prior hearing, the trial court allowed appellants to argue their position on the plea to the jurisdiction. Although not placed under oath, Chambers also made statements during the hearing about how the accident occurred. The trial court denied the motion for new trial, and appellants filed a motion for reconsideration. After hearing appellants' motion for reconsideration, the trial court signed a "Final Order" finding that appellants had been provided a full and fair opportunity to present evidence and argument against TxDOT's plea to the jurisdiction. After having heard appellants' arguments, reviewing the record, and considering the law and the evidence, the trial court found that it did not have subject matter jurisdiction and TxDOT was dismissed from the case. Standard of Review
Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The existence of subject-matter jurisdiction is a question of law, and we review the trial court's ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226, 228.
The plaintiff bears the burden to allege facts that affirmatively demonstrate the trial court's jurisdiction to hear a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A plea to the jurisdiction can be based on the pleadings or on evidence. Miranda, 133 S.W.3d at 226. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Id. We must look to the allegations in the pleadings, construe them in the plaintiff's favor, and look to the pleader's intent. City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to determine if a fact issue exists. Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Miranda, 133 S.W.3d at 228. That is, if the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Kirwan, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 228. Sovereign Immunity
Whether a governmental unit is immune from tort liability for a particular claim depends entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Torts Claims Act (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(2) (West 2011). However, immunity is not waived under the TTCA 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 (West 2011). "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). Further, the TTCA specifically does not waive immunity for claims arising from 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. Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(1) (West 2011); see also State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326 (Tex. 2002) ("Under subsection (a)(1), the State retains immunity for discretionary sign-placement decisions.").
Special or Premise Defect
In their first two issues, appellants argue the trial court erred by granting TxDOT's plea to the jurisdiction because appellants established that high vegetation along the right-of-way to State Highway 243 constituted either a special or premise defect. The TTCA recognizes potential liability for two types of dangerous conditions of real property, premise defects and special defects. Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (West 2011). "Whether a condition is a premise defect or a special defect is a question of duty involving statutory interpretation and thus an issue of law for the court to decide. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
If a claim arises from a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. Tex. Civ. Prac. & Rem Code Ann § 101.022(a). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. Payne, 838 S.W.2d at 237. Actual knowledge of the dangerous condition is required. City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14, 416 (Tex. 2008) (per curiam); Payne, 838 S.W.2d at 237. Constructive knowledge of the defect is insufficient. Stewart, 249 S.W.3d at 414-15, 416.
If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). That duty requires a premises owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of which the owner is or reasonably should be aware. Payne, 838 S.W.2d at 237. The Legislature has not defined "special defect," but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see also Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam); Cnty. of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978) (construing "special defect" as including those defects of the same kind or class as those expressly mentioned in the statute). Conditions can be special defects "only if they pose a threat to the ordinary users of a particular roadway." Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009) (citing Payne, 838 S.W.2d at 238 n.3). In deciding whether a condition is a special defect, we consider characteristics of the class of special defects, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. Hayes, 327 S.W.3d at 116 (citing York, 284 S.W.3d at 847).
Appellants first argue the tall vegetation growing on the right-of-way to the state highway is a special defect for purposes of section 101.022(b) of the TTCA. The class of special defects contemplated by the statute is narrow. Id. The defect must "pose a threat to 'ordinary users' in the manner that an excavation or obstruction blocking a road does." Beynon, 283 S.W.3d at 331-32; see also Hayes, 327 S.W.3d at 116. As noted in Sipes v Texas Department of Transportation, 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect. See Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.-Tyler 1999, pet. denied) (collecting cases); see also Chambers v. Kaufman Cnty., No. 05-11-00509-CV, 2011 WL 5088651, at *4 (Tex. App.-Dallas Oct. 26, 2011, pet. denied) (mem. op.).
Here, Chambers identified several causes of his accident. In an affidavit, he stated that his view of Sundown Road was blocked not only by vegetation on the right-of-way to State Highway 243, but also by vegetation on the county easement along Sundown Road and on privately-owned property bordering both roads. He also stated, however, that one of the vehicles in front of him that he attempted to pass was a large utility truck, and the truck prevented him from seeing the car turning left on to the state highway from Sundown Road. He also claimed the driver of the other car failed to yield the right-of-way, causing the accident.
Accepting Chambers's testimony as true, the vegetation was one of the causes of the collision. His testimony does not establish, however, that the vegetation presented an "unexpected or unusual danger to ordinary users" of the roadway. See Payne, 838 S.W.2d at 238. Rather, his obstructed view was one event in a series resulting in the collision and injury. We conclude the vegetation did not constitute a "special defect" for purposes of section 101.022(b) of the TTCA. See Chambers, 2011 WL 5088651, at *4-5.
Appellants argue, in the alternative, that the vegetation was a "premise defect" under section 101.022(a) of the TTCA. Assuming, without deciding, that the vegetation was a "premise defect," TxDOT's duty was to not injure Chambers by willful, wanton, or grossly negligent conduct. Payne, 838 S.W.2d at 237. If TxDOT had actual knowledge of the defect and Chambers did not, TxDOT had a duty to use ordinary care to either warn Chambers of the condition or make it reasonably safe. Hayes, 327 S.W.3d at 117; Payne, 838 S.W.2d at 237.
Chambers offered evidence that he had been using State Highway 243 as a route to and from work for only a short period of time before the accident occurred, and he was unaware of the vegetation. However, appellants did not offer evidence that TxDOT had actual knowledge of any dangerous condition presented by the vegetation. Instead, appellants contend TxDOT must have known about the allegedly overgrown vegetation because TxDOT policy requires weekly inspections of state highways by the Area Maintenance Supervisor who would have seen the tall vegetation in the course of the inspection. As noted above, however, constructive notice is not sufficient. City of Corsicana, 249 S.W.3d at 416. Further, even had TxDOT observed the vegetation, appellants did not offer evidence that TxDOT knew it presented a dangerous condition. See Sipes, 949 S.W.2d at 521-22 (evidence that State inspected grass periodically was not evidence State had knowledge of dangerous condition). We conclude appellants failed to establish TxDOT had actual knowledge of the defect. We resolve appellants' first two issues against them. Failure to Designate No-Passing Zone
In their third issue, appellants contend TxDOT failed to comply with a statutory duty to designate the area around the intersection as a no-passing zone. Appellants specifically argue the Manual on Uniform Traffic Control Devices (the MUTCD) required TxDOT to designate the area a no-passing zone because the high vegetation either caused inadequate sight distance or was a special condition.
Section 3B.02 of the MUTCD, relied upon by appellants, states, in relevant part, "On two-way, two- or three-lane roadways where centerline markings are installed, no-passing zones shall be established at vertical and horizontal curves and other locations where an engineering study indicates that passing must be prohibited because of inadequate sight distances or other special conditions."
Sovereign immunity is waived when a governmental unit fails to perform an act required by law. Tex. Civ. Prac. & Rem. Code Ann. § 101.056. However, the MUTCD does not establish a mandatory duty to install a particular traffic control device. Tex. Dep't of Transp. v. Perches, 339 S.W.3d 241, 252 (Tex. App.-Corpus Christi 2011, no pet.); Hanna v. Impact Recovery Systems, Inc., 295 S.W.3d 380, 394 (Tex. App.-Beaumont 2009, pet. denied); Tex. Dep't of Transp. v. Andrews, 155 S.W.3d 351, 359 (Tex. App.-Fort Worth 2004, pet. denied) (citing State Dep't of Highways & Pub. Transp. v. King, 808 S.W.2d 465, 466 (Tex. 1991) (per curiam)). Accordingly, the MUTCD did not impose a mandatory duty on TxDOT to designate the intersection of State Highway 243 and Sundown Road as a no-passing zone.
We, therefore, turn to whether TxDOT's decision not to designate the area as a no-passing zone was otherwise required by law. The design of a roadway is a "discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions." Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002), abrogated on other grounds, Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 n.11 (Tex. 2009)). "Likewise, decisions about installing safety features are discretionary decisions for which the State may not be sued." Id. "[S]ection 101.060(a) of the [TTCA] specifically applies this principle to traffic control devices, preserving sovereign immunity for the decision to install or not install road signs and warning devices on roads where not mandated by law." City of Mission v. Cantu, 89 S.W.3d 795, 811 (Tex. App.-Corpus Christi 2002, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (sovereign immunity not waived for claim arising from 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. . . ."). Roadway striping falls within the category of warning devices. See Cantu, 89 S.W.3d at 806.
A governmental unit does not retain immunity for the failure to warn of "special defects." See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.060(c), 101.022(b); Cantu, 89 S.W.3d at 811-12 n.28. As noted above, however, appellants have failed to establish the existence of a special defect in this case.
TxDOT offered evidence that it determined whether to designate a T-intersection in a rural area, such as the one at issue in this case, as a no-passing zone based on roadway geometry and sight distance for traffic. In making the determination, TxDOT considers the number of crossings within the rural area. TxDOT does not designate every intersection and driveway as a no-passing zone because, when there are large number of such crossings, a less than optimal driver could believe it was safe to pass simply because an area was not designated as a no-passing zone. TxDOT uses engineering judgment so as to provide drivers with the appropriate amount of information.
Because TxDOT exercised judgment in deciding not to designate the area as a no-passing zone and because the MUTCD's provisions are not mandatory, TxDOT did not waive immunity due to the failure to designate the intersection as a no-passing zone. We resolve appellants' third issue against them. Trial Errors
Based on our conclusion that appellants did not plead a waiver of sovereign immunity, we need not address whether the trial court could have properly granted the plea to the jurisdiction based on appellants' alleged failure to give TxDOT the statutorily required notice of the claim.
Appellants state their fourth issue as:
Can the Trial Court ask a witness to CHANGE their testimony concerning what the witness actually saw and can the Trial Court ask a witness to Agree with the Trial Court's statements which are exactly the opposite of what the witness testified to just moments before the Trial Court ask[ed] the ambiguous question in an attempt to completely CHANGE the meaning and intent of the witness'[s] prior testimony?
Further, although not set out as an issue, appellant's state several times in their brief that the trial court should have granted their motion for new trial because they did not receive notice of the hearing on the plea to the jurisdiction.
Appellants appear pro se. We construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Id. at 212.
An appellate brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). Appellate courts must construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); see Tex. R. App. P. 38.9. However, an issue on appeal that is not supported by argument or citation to legal authority presents nothing for the court to review. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Birnbaum v. Law Offices of G. David Westfall, 120 S.W.3d 470, 477 (Tex. App.-Dallas 2003, pet. denied).
Appellants make no argument in their brief in support of their fourth issue or in support of their claim the trial court erred by denying the motion for new trial. Therefore, appellants have waived any argument that the trial court erred by attempting to have a witness change his testimony or by denying the motion for new trial. See Tex. R. App. P. 38.1(i); Lundy v. Masson, 260 S.W.3d 482, 503 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) (concluding appellant failed to provide argument or cite authority for contention on appeal and appellate court was "not required to do the job of the advocate"). We resolve appellants' fourth issue against them. Cumulative Error
We note that at the hearing on the motion for new trial, the trial court allowed appellants to argue their position on TxDOT's plea to the jurisdiction. In its "Final Order," the trial court found that appellants had been provided the opportunity to argue their position on the plea to the jurisdiction and that the trial court had considered the argument and reviewed both the record and the evidence in reaching its decision.
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In their fifth issue, appellants assert that cumulative error requires the reversal of the trial court's judgment. Although appellants' brief does not contain a specific section addressing this issue, their summary of the argument states (1) there are genuine issues of material facts and these issues were not placed before a fact finder, (2) the "Duty Owed concerning Adequate Notice of an Unreasonable Risk of Harm Defect which is NOT Open and Obvious IF More Than One Vehicle At A Time Is Using The State Highway" is a question of fact, (3) the "Lack of Proper Maintenance of the State Highway" is a question of fact, and (4) appellants had the right to be given notice of hearing, the right to be heard before the plea to the jurisdiction was granted, and the right to have the trial court not attempt to change a witness's testimony. To the extent these arguments apply to the trial court's ruling on TxDOT's plea to the jurisdiction, we have considered them above. Because we have concluded that TxDOT's sovereign immunity has not been waived for appellants' claims, we resolve appellants' fifth issue against them. Conclusion
Because sovereign immunity bars appellants' claims against TxDOT, we affirm the trial court's order granting TxDOT's plea to the jurisdiction.
ROBERT M. FILLMORE
JUSTICE
110519F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JERRY, MARSHA, AND JASON CHAMBERS, Appellants
V.
THE TEXAS DEPARTMENT OF TRANSPORTATION, Appellee
No. 05-11-00519-CV
Appeal from the 422nd Judicial District Court of Kaufman County, Texas. (Tr.Ct.No. 82711- 422).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee The Texas Department of Transportation recover its costs of this appeal from appellants Jerry, Marsha, and Jason Chambers.
Judgment entered May 16, 2012.
ROBERT M. FILLMORE
JUSTICE