Opinion
NO. 03-14-00749-CV
02-03-2016
The University of Texas at Austin, Appellant v. William A. Bellinghausen, Jr., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-13-002198, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDINGMEMORANDUM OPINION
William A. Bellinghausen, Jr., brought suit against the University of Texas at Austin pursuant to the Texas Tort Claims Act (TTCA) seeking damages for personal injuries he sustained on the University's campus. See Tex. Civ. Prac. & Rem. Code §§ 101.001-.109. In this interlocutory appeal, the University challenges the trial court's denial of its plea to the jurisdiction and motion to dismiss based on sovereign immunity. See id. § 51.014(a)(8). For the reasons that follow, we reverse the trial court's order and dismiss Bellinghausen's claims for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 2011, Bellinghausen, who had come to the University campus to attend a Native American "powwow," a Boy Scout event, was injured while walking from the parking garage to the event. Bellinghausen alleges that he tripped on a raised section of the sidewalk. University police and EMS were dispatched to the scene, and it was ultimately determined that Bellinghausen suffered a broken arm and other injuries. David Henry, a maintenance supervisor for the University who was working approximately 150 to 200 feet from where Bellinghausen fell, went to the scene after Bellinghausen's fall. Henry informed the investigating police officer that earlier that morning he had observed an unidentified pedestrian fall "right there" and made a reference to people "not looking where they are going." The officer noted in his report that Bellinghausen "tripped over a protruding crack in the sidewalk" and that Henry "said that he saw another person trip and fall on the same protruding crack."
Bellinghausen filed suit against the University to recover damages for his injuries alleging that the University was negligent in, among other allegations, allowing the concrete sections of the sidewalk to become and remain disjointed, failing to ensure that its employees reduce or eliminate any unreasonably dangerous conditions, and failing to adequately warn of the unreasonably dangerous condition. The University filed a plea to the jurisdiction and motion to dismiss, arguing that Bellinghausen's negligence allegations constituted a premises defect claim under the TTCA and that the trial court lacked jurisdiction over Bellinghausen's claims because they did not fall within the limited waiver of sovereign immunity under the TTCA. See id. §§ 101.021, .022. The University argued that, as a licensee, Bellinghausen had to establish the University's actual knowledge of a dangerous condition and had failed to do so. The University presented evidence that prior to Bellinghausen's fall, it had received no complaints about or reports of accidents or injuries caused by the sidewalk on which Bellinghausen fell. The University also presented evidence that in 2008, a survey of campus sidewalks was conducted, indicating that the sidewalk where Bellinghausen fell was in "good" condition and had a remaining service life of 13 to 20 years.
The University's evidence also included the police report, photographs of the sidewalk and of Bellinghausen after the fall, and excerpts from Bellinghausen's and Henry's depositions. Henry testified that at the time Bellinghausen fell, he was working about 150 to 200 feet away. He stated that he did not see Bellinghausen fall but when a co-worker commented that someone was lying on the ground, he went over "to see what was going on." He further stated that when he arrived at the location where Bellinghausen had fallen, he observed the raised sidewalk and concluded that there was a good possibility that Bellinghausen had tripped on it. Henry also testified that earlier that morning he had seen a pedestrian with a cell phone, who appeared to be texting or checking his voicemail, trip and fall in the same vicinity—within five or ten feet of where Bellinghausen fell. When Bellinghausen's counsel read Henry the statement from the police officer's report that Henry said he had seen "another person trip and fall on the same protruding crack" and asked Henry if he remembered telling the officer that, Henry answered, "Yes." When asked if he remembered telling him that "exactly," Henry replied, "[N]ot that exactly. I think I said in the area, not that exact spot." Henry also testified that he did not remember telling the officer that both falls happened because of the elevated sidewalk. He stated that although he saw the unidentified pedestrian fall, he did not see his foot hit the elevated edge of the sidewalk. Henry testified that he did not go over to inspect the sidewalk because the pedestrian fell on "all fours," got up, and kept walking. Henry further testified that he did not see what caused the pedestrian to fall, and at the time thought the pedestrian had fallen because he was looking at his phone and was not paying attention. Henry did not think the sidewalk played a part. Henry also agreed that uneven sidewalks "exist all over campus" because of "tree roots and things like that."
Bellinghausen filed a response to the University's plea to the jurisdiction arguing that the police report showed that Henry had actual knowledge of the dangerous condition, that Henry acknowledged telling the police officer that the pedestrian had tripped on the same protruding crack, and that Henry was aware that there were uneven sidewalks all over campus. Bellinghausen's evidence included additional excerpts from Henry's deposition. The excerpts included the review of the police "dash cam" video recording made at the scene of the fall and questions about the accompanying audio. In his testimony, Henry agreed that the recording established that he had told the police officer that the pedestrian had fallen "right there" and explained that when he made the statement, he had been "visualizing from 150, 200 feet away" and had meant in the same vicinity. Henry also testified that the curvature of the sidewalk near the elevated section gave him "some perspective of where on the sidewalk a fall would have occurred . . . within a few feet." After a hearing, the trial court denied the University's plea to the jurisdiction and motion to dismiss. This appeal followed.
The police recording was not admitted into evidence and therefore is not a part of the record on appeal.
STANDARD OF REVIEW AND APPLICABLE LAW
We review a plea questioning the trial court's subject matter jurisdiction de novo. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus first on the plaintiff's petition to determine whether the facts that were pled affirmatively demonstrate that subject matter jurisdiction exists. Id. We construe the pleadings liberally in favor of the plaintiff. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). When evidence is submitted that implicates the merits of the case, as is the case here, our standard of review generally mirrors the summary judgment standard under Texas Rule of Civil Procedure 166a(c). Id. at 228; see also Tex. R. Civ. P. 166a(c). The burden is on the governmental unit to present evidence to support its plea. Miranda, 133 S.W.3d at 228. If the governmental unit meets this burden, the burden shifts to the nonmovant to show that a disputed material fact exists regarding the jurisdictional issue. Id. We take as true all evidence that is favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id.
"In general, the State of Texas retains sovereign immunity from suit." University of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010) (per curiam) (citing Miranda, 133 S.W.3d at 224). The TTCA, however, provides a limited waiver of immunity for certain tort claims. See Tex. Civ. Prac. & Rem. Code § 101.025 (waiving sovereign immunity "to the extent of liability created by this chapter" and allowing person with a claim under TTCA to sue governmental unit for damages). Thus, to sue a subdivision of the State for a tort, the pleadings must state a claim under the TTCA. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (per curiam); see Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (explaining that plaintiff bears burden of establishing waiver of immunity under TTCA). The TTCA provides a waiver of sovereign immunity for premises defect claims. See Tex. Civ. Prac. & Rem. Code § 101.022. The University is a subdivision of the State and is thus protected by sovereign immunity except as provided in the TTCA.
DISCUSSION
In a single issue on appeal, the University challenges Bellinghausen's premises defect claim on the ground that there is not more than a scintilla of evidence that the University had actual knowledge of any unreasonably dangerous condition of the sidewalk. Because Bellinghausen was not paying to use the premises, the University owed him "only the duty that a private person owes to a licensee." See id. § 101.022(a). "To establish a waiver of immunity for a premises-defect claim [under this standard], the plaintiff must show that the landowner failed to either (1) use ordinary care to warn a licensee of a condition that presented an unreasonable risk of harm of which the landowner is actually aware and the licensee is not, or (2) make the condition reasonably safe." Hayes, 327 S.W.3d 117. The University contends that the trial court erred in denying its plea to the jurisdiction and motion to dismiss because the University established that it had no actual knowledge of an unreasonably dangerous condition, and there is no evidence on which a reasonable factfinder could rely to conclude otherwise.
As discussed above, Bellinghausen initially asserted his claims as a negligence cause of action. However, the TTCA's "scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in section 101.022 by re-casting the same acts as a claim relating to the negligent condition . . . ." Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 233 (Tex. 2004). The University thus contends that Bellinghausen's negligence allegations actually constitute a premises defect claim under the TTCA. Bellinghausen appears to have conceded this point in the trial court and does not present an issue concerning his negligence claims on appeal. Therefore, we address Bellinghausen's claim as one based on a premises defect under the TTCA.
The parties do not dispute that Henry's knowledge is imputed to the University. See Wal-Mart Stores, Inc. v. Chavez, 81 S.W.3d 862, 864 (Tex. App.—San Antonio 2002, no pet.) (concluding that when defendant's employee learned of dangerous condition, defendant had actual knowledge of dangerous condition); Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 343 (Tex. App.—Austin 2002, pet. denied) (same). --------
The element of actual knowledge "requires the landowner to know 'that the dangerous condition existed at the time of the accident, not merely of the possibility that a dangerous condition c[ould] develop over time.'" Id. (quoting City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 (Tex. 2008) (per curiam) (quoting City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) (per curiam))) (brackets in original). "Hypothetical knowledge of a dangerous condition" is not actual knowledge. Id.; see Thompson, 210 S.W.3d at 604 (concluding plaintiff failed to present any evidence of city's "actual knowledge of the protruding coverplate"). In determining whether there is evidence of actual knowledge, we consider only the evidence and reasonable inferences therefrom that support a determination of actual knowledge. American Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 141 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Unreasonable inferences cannot constitute evidence of actual knowledge, and actual knowledge cannot be established by "piling inference upon inference." Id. at 142.
In determining whether a premises owner had actual knowledge of a dangerous condition, we are instructed to consider whether the owner had received reports of prior injuries or of the dangerous condition. See University of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 514 (Tex. 2008) (per curiam) (when determining whether premises owner had actual knowledge of dangerous condition, "courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger represented by the condition"). The University's unrebutted evidence established that it had received no prior reports of any accidents or injuries at the location on the sidewalk where Bellinghausen fell and that a 2008 survey of campus sidewalks indicated that the sidewalk where Bellinghausen fell was in "good" condition and had a remaining service life of 13 to 20 years. The University's evidence also showed that Henry was 150 to 200 feet away from the location where Bellinghausen fell and did not see Bellinghausen fall. Henry testified that earlier in the day, although he saw a pedestrian fall, he did not see what caused the pedestrian to trip, he did not see the pedestrian trip on the raised section of the sidewalk, he did not think the sidewalk played a role, he thought that the pedestrian had tripped because he was looking at his cell phone and was not paying attention, and he did not go over to inspect the sidewalk where the pedestrian fell because he got up and kept walking. Henry further testified that when he told the police officer the pedestrian had fallen "right there," he was describing what he had seen from 150 to 200 feet away and meant that the pedestrian had fallen in the same vicinity or within five or ten feet of the area where Bellinghausen fell. Thus, there is no direct evidence from which we can infer that the University had actual knowledge of an unreasonably dangerous condition prior to Bellinghausen's fall. See University of Tex. at El Paso v. Muro, 341 S.W.3d 1, 5 (Tex. App.—El Paso 2009, no pet.) (where there were no reports or complaints of prior injuries, there was no direct evidence from which to infer university's actual knowledge); Ruvalcaba, 64 S.W.3d at 142 (unreasonable inferences do not constitute evidence of actual knowledge). Because the University presented evidence to support a finding that it did not have actual knowledge of an unreasonably dangerous condition of the sidewalk, it met its burden to present evidence to support its plea to the jurisdiction. See Hayes, 327 S.W.3d at 117; Miranda, 133 S.W.3d at 228. The burden then shifted to Bellinghausen to present evidence to create a fact issue as to the University's actual knowledge. See Miranda, 133 S.W.3d at 228.
Bellinghausen contends there is direct evidence that the University, through Henry, had actual knowledge of an unreasonably dangerous condition. Bellinghausen points to Henry's knowledge of the pedestrian's earlier fall, his statement to the police officer that he "saw another person trip and fall on the same protruding crack," and his acknowledgment in deposition of that statement. Based on this evidence, Bellinghausen argues that a reasonable factfinder could determine that Henry had actual knowledge of the unreasonably dangerous condition at the time of Bellinghausen's fall. We cannot agree.
The fact that Henry, from 150 to 200 feet away, saw a pedestrian fall while looking at his cell phone does not support the inference that Henry saw the uneven section of the sidewalk from that distance or was made aware of a dangerous condition, particularly considered in the context of his testimony. See Ruvalcaba, 64 S.W.3d at 142 (unreasonable inferences do not constitute evidence of actual knowledge). While knowledge of prior similar incidents is relevant, see Aguilar, 251 S.W.3d at 514, the evidence showed that the University had no knowledge that the earlier pedestrian's fall may have been similar to Bellinghausen's fall until after Bellinghausen fell. Henry testified that he did not see the pedestrian's foot hit the elevated section of the sidewalk, did not go to the scene when the pedestrian fell, did not believe the sidewalk was a factor in the pedestrian's earlier fall, believed the pedestrian had fallen because of inattentiveness, and concluded that Bellinghausen possibly tripped on the uneven section of the sidewalk only after he went to the scene following Bellinghausen's fall. Henry's knowledge of the pedestrian's prior fall in the vicinity of the location where Bellinghausen fell does not constitute actual knowledge of an unreasonably dangerous condition. See id. (evidence that property owner could have discovered dangerous condition was not evidence of actual knowledge of dangerous condition).
As for the statement in the police report that Henry said he saw the pedestrian "trip and fall on the same protruding crack," there is no direct evidence that Henry made the statement. At Henry's deposition, counsel for Bellinghausen read Henry the police report sentence by sentence and asked if he remembered the events described or remembered telling the officer the information attributed to him. Henry acknowledged remembering certain events and making the statements in the report attributed to him, but he also stated that he did not remember telling the officer "exactly" what the officer wrote in the report or telling him that both falls happened because of the elevated sidewalk. Moreover, as Bellinghausen admits, the statement that Henry saw someone "trip and fall on the same protruding crack" does not appear on the police recording of the incident. Rather, the recording reflects that Henry told the officer that the pedestrian had fallen "right there," which Henry testified meant in the vicinity, and that Henry referred to people "not looking where they are going."
Further, the statement in the police report is the officer's statement summarizing what Henry told him. It is not a quote and does not purport to represent Henry's exact words; in fact, that the officer reported that Bellinghausen "tripped over a protruding crack" and then stated that Henry saw the pedestrian trip on "the same protruding crack" suggests the phrase is the officer's words rather than Henry's. The officer's summary of Henry's statement and Henry's general acknowledgment of the substance of the police report, read in the context of his entire deposition testimony, do not support a reasonable inference that Henry had actual knowledge of an unreasonably dangerous condition of the sidewalk prior to Bellinghausen's fall. See Muro, 341 S.W.3d at 5; Ruvalcaba, 64 S.W.3d at 142; see also Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997) (explaining that trier of fact may draw inferences, but only reasonable and logical ones). Moreover, even if we were to assume that Henry did tell the officer that the pedestrian had fallen on the same elevated section of the sidewalk as Bellinghausen, that would not constitute evidence that Henry knew prior to Bellinghausen's fall what caused the pedestrian to fall—only evidence that Henry had reached that conclusion at the time he gave information to the officer after seeing the sidewalk following Bellinghausen's fall. See Hayes, 327 S.W.3d 117 (licensee must show that owner actually knew of dangerous condition at time of accident).
Bellinghausen also contends that circumstantial evidence establishes the University's actual knowledge of the dangerous condition of the sidewalk. Actual knowledge can be established by circumstantial evidence, but only when the evidence directly or by reasonable inference supports that conclusion. Muro, 341 S.W.3d at 5 (citing Aguilar, 251 S.W.3d at 513). Bellinghausen argues that Henry's awareness that sidewalks tend to become uneven over time from "tree roots and things like that" and that uneven sidewalks "exist all over campus" constitutes actual knowledge that the sidewalk in question had become unreasonably dangerous at the time Bellinghausen fell. However, knowledge of the possibility that a condition may become unreasonably dangerous over time does not constitute actual knowledge required for liability. Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (per curiam) (holding that "[a]wareness of a potential problem is not actual knowledge of an existing danger"); Stewart, 249 S.W.3d at 414-15 (concluding that actual knowledge element of premises defect cause of action requires knowledge that dangerous condition existed at time of accident); Thompson, 210 S.W.3d at 603 (holding that fact that materials deteriorate over time and may become dangerous does not create dangerous condition; that actual knowledge required for liability is of dangerous condition at time of accident, not merely of possibility that dangerous condition can develop; and that city's knowledge that coverplate over expansion joint could loosen over time and protrude did not satisfy requirement of actual knowledge of dangerous condition at time of accident).
Nor does Henry's knowledge of uneven sidewalks around campus combined with other circumstantial evidence establish that Henry was aware of the uneven sidewalk prior to Bellinghausen's fall, as Bellinghausen argues. Bellinghausen contends that Henry's knowledge of the existence of other uneven sidewalks, coupled with the lack of testimony that it was impossible for Henry to see the uneven sidewalk from 150 to 200 feet away, with the fact that Henry did see the uneven sidewalk after Bellinghausen fell, and with his knowledge of a prior fall in the same area constitute actual knowledge of an unreasonably dangerous condition prior to Bellinghausen's fall. However, to conclude that this circumstantial evidence supports a conclusion that Henry had actual knowledge of an unreasonably dangerous condition where Bellinghausen fell prior to his fall would require us to infer that Henry could see the uneven sidewalk from 150 to 200 feet away, that he did see the uneven sidewalk when the pedestrian fell, that he saw the pedestrian trip on the uneven sidewalk, and that he therefore knew the uneven sidewalk was unreasonably dangerous—and to do so in the face of express testimony to the contrary. The only way we could conclude that this circumstantial evidence demonstrated the University's actual knowledge would be to disregard Henry's testimony and to impermissibly "pile inference upon inference," which does not establish actual knowledge. See Ruvalcaba, 64 S.W.3d at 142; see also In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012) (citing Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968) (vital fact may not be established by piling inference upon inference).
Bellinghausen also contends that Henry's deposition testimony creates a fact issue as to the University's actual knowledge of the unreasonably dangerous condition. First, he argues that Henry's referring for the first time in deposition to the pedestrian's using his cell phone is "suspicious" and is less credible than his earlier statement at the time of the incident. We do not find this argument persuasive. The record supports the inference that Henry mentioned the cell phone to the police officer in that the police recording contains a reference to people "not looking where they are going." Further, even if Henry did not mention the cell phone to the police officer, it is reasonable to conclude that a witness would give additional details when questioned in greater depth in deposition. Bellinghausen also argues that Henry's clarification of what he meant by "right there" creates a fact issue. He contends that Henry's clarification that he meant "in the vicinity" is inconsistent with the use of the term "right there." However, we do not find Henry's explanation that when he said "right there," he was speaking from the perspective of having seen the pedestrian fall from 150 to 200 feet away and meant "in the vicinity" to be inconsistent with his original statement. In common usage, "right there" can mean "generally in that location," and it is undisputed that Henry witnessed the pedestrian's fall from a distance of 150 to 200 feet. We cannot conclude that either Henry's testimony clarifying his use of the expression "right there" or his testimony referring to the pedestrian's cell phone, read in the context of his entire deposition testimony, creates a fact issue as to the University's actual knowledge of a dangerous condition on the sidewalk where Bellinghausen fell. See Aguilar, 251 S.W.3d at 514 (holding that university's safety manual on indoor safety did not create fact issue as to university's actual knowledge that water hose lying across sidewalk was unreasonably dangerous); Miranda, 133 S.W.3d at 228; Muro, 341 S.W.3d at 5 (concluding that testimony that university traditionally "flushed" posts, cutting them off at ground, when removing sign posts did not create fact issue as to whether university created condition of remnant of post on which plaintiff tripped).
Finally, Bellinghausen argues that the police report creates a fact issue regarding the University's actual knowledge of the unreasonably dangerous condition. He again cites the police officer's statement that Henry told the officer that he saw the pedestrian "trip and fall on the same protruding crack" and Henry's acknowledgment of that statement. However, as discussed above, there is no direct evidence that Henry told the officer that the pedestrian fell "on the same protruding crack." The officer's report is the officer's statement and reflects his perception. The report does not purport to quote Henry, and there is no evidence that Henry made the statement as written; in fact, Henry testified that he did not remember saying "that exactly," and the police recording reflects only that he said the pedestrian fell "right there" and contains no reference to "the protruding crack." The officer reported that Bellinghausen "tripped over a protruding crack" and then stated that Henry saw the pedestrian trip on "the same protruding crack," indicating that the phrase is the officer's rather than Henry's. While it may have been reasonable for the officer to infer that Henry meant that the pedestrian fell on "the same protruding crack," it is not a reasonable inference to make on the record before us. See Ruvalcaba, 64 S.W.3d at 142; Muro, 341 S.W.3d at 5; see also Hammerly Oaks, 958 S.W.2d at 392.
Even if we were to conclude that it is a reasonable inference, because the report does not quote Henry, it would become a matter of speculation whether Henry used the phrase "the same protruding crack" or whether the officer drew his own conclusion that Henry meant "the same protruding crack" when he stated that the pedestrian fell "right there." Consequently, the conclusion that Henry, and thus the University, had actual knowledge of the condition of the sidewalk based on this statement in the police report would be one of two equally plausible but opposite inferences that could be drawn from the totality of the circumstantial evidence, and such speculative circumstantial evidence is legally insufficient to support a finding. See Wal-Mart Stores, Inc. v. Gonzales, 968 S.W.2d 934, 936 (Tex. 1998) (circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support finding); Muro, 341 S.W.3d at 5 (when there are two equally plausible but opposite inferences, neither can be inferred). At most, then, the police report would create "nothing more than mere suspicion" that the University, through Henry, had actual knowledge of the condition of the sidewalk, and it therefore would not create a fact issue. See Gonzales, 968 S.W.2d at 937 (holding that presence of dirt and footprints in macaroni salad on floor equally supported inference that it had just been dropped and quickly contaminated and inference that it had been on floor a long time and was no evidence that Wal-Mart had constructive knowledge of condition); Muro, 341 S.W.3d at 5-6 (where neither of opposite inferences was more plausible than other, evidence created "nothing more than mere suspicion" that university had actual knowledge of condition and could not be basis for fact question). Finally, also as discussed above, even if we were to infer that Henry told the officer that the pedestrian had fallen on the same elevated section of sidewalk as Bellinghausen, that would establish only his knowledge at the time of the officer's report following Bellinghausen's fall, not his actual awareness at the time of Bellinghausen's fall. See Hayes, 327 S.W.3d at 117 (licensee must show that owner actually knew of dangerous condition at time of accident). We sustain the University's issue on appeal.
CONCLUSION
Having sustained the University's sole issue, we reverse the trial court's order denying the University's plea to the jurisdiction and motion to dismiss and dismiss Bellinghausen's claims for lack of subject matter jurisdiction.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Goodwin and Field Reversed and Dismissed Filed: February 3, 2016