The University of Texas Medical Branch at Galveston, Texas v. Wood, Kevin A.--Appeal from 56th District Court of Galveston County

Affirmed and Opinion filed December 31, 2002

Affirmed and Opinion filed December 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00497-CV

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THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, TEXAS,

Appellant

V.

KEVIN A. WOOD, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 01CV1075

O P I N I O N

Appellant, The University of Texas Medical Branch at Galveston, Texas, (AUTMB@) challenges the trial court=s denial of its plea to the jurisdiction. Appellee, Kevin A. Wood, alleged in his petition that UTMB negligently failed to remove a foreign object in his foot and that such failure constituted a negligent use of tangible property under the Texas Tort Claims Act (ATTCA@). UTMB argues that appellee=s failure to plead specific facts describing the actual negligent use of tangible property bars the waiver of governmental immunity. We affirm.

 

FACTUAL AND PROCEDURAL BACKGROUND

Appellee injured his foot after stepping on an oyster shell. Shortly thereafter, he presented himself to UTMB=s emergency facilities, where he was treated and released. The next day, he developed a number of new symptoms, including severe pain in his foot, a high fever, infection, and blood poisoning. Clear Lake Regional Medical Center surgeons operated and removed multiple foreign bodies imbedded in his foot. Appellee filed suit against UTMB alleging medical negligence in the use of its equipment and facilities.

UTMB=s answer included a brief plea to the jurisdiction. Under the TTCA, a governmental unit in the state is liable for Apersonal 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(2). UTMB contends that appellee wholly failed to allege any negligent use of tangible property which could bring the claim within the immunity waiver provisions of the TTCA.

UTMB later filed a plea to the jurisdiction and motion to dismiss with arguments and authorities.[1] Attempting to avail itself of the TTCA, appellee averred in his original petition that he was injured A[b]ecause Defendant was negligent in the use of its equipment and facilities by failing to remove an oyster shell fragment from the cut to Plaintiff=s foot.@ Appellee contends that the phrase Anegligent in the use of its equipment and facilities@ is sufficient to bring his claim under the TTCA, which holds a governmental unit liable for personal injury caused by Ause of tangible personal or real property.@ Reiterating this phrase, the plaintiff concluded his petition with the allegation that A[d]efendant=s negligence in the use of its equipment and facilities was a proximate cause of the medical complications resulting to Plaintiff=s foot and his damages.@ UTMB did not specially except to the language in the plaintiff=s original petition. Rather, UTMB maintains appellee has failed to allege any facts which, if proved, would bring his suit within the immunity waiver provisions of the TTCA. The trial court denied UTMB=s plea to the jurisdiction.

STANDARD OF REVIEW

Appellate courts review the trial court=s ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a dilatory plea is not to force the plaintiff to preview his case on the merits but to establish a reason why the merits of his claims should never be reached. Id. Throughout this inquiry, we are mindful that subject matter jurisdiction is never presumed and cannot be waived. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443B44 (Tex. 1993).

DISCUSSION

Our task is to decide whether the facts pleaded in the petition support the trial court=s jurisdiction. Univ. of Tex. Med. Branch at Galveston v. Mullins, 57 S.W.3d 653, 656 (Tex. App.CHouston [14th Dist.] 2001, no pet.). To determine whether appellee has affirmatively demonstrated the court=s jurisdiction to hear the case, we consider the facts alleged in the petition, and any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm=n v. White, 46 S.W.3d 864, 868 (Tex. 2001). Since a governmental unit is protected from suit by sovereign immunity, pleadings in a suit against a governmental unit must affirmatively demonstrate, either by reference to a statute or express legislative permission, that the legislature consented to the suit. Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). In his plea to the jurisdiction, UTMB argues that the bare assertion without the pleading of facts or offering of evidence describing the actual negligent use of tangible property does not allow appellee to avoid the application of governmental immunity and thus, there is no jurisdiction. Appellee maintains that the proper mechanism to challenge its pleading was not a plea to the jurisdiction but rather a special exception. In analyzing the distinction between these two procedural tools, the Supreme Court recently observed:

In deciding a plea to the jurisdiction, a court may not weigh the claims= merits but must consider only the plaintiffs= pleadings and the evidence pertinent to the jurisdictional inquiry. When we consider a trial court=s order on a plea to the jurisdiction, we construe the pleadings in the plaintiff=s favor and look to the pleader=s intent. When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Thus, we are called upon to determine whether this case involves a pleading deficiency or a jurisdictional defect.

To find that the plaintiff=s original petition affirmatively demonstrates an absence of jurisdiction, it must be true that the negligent use of equipment and facilities by a state entity is not actionable under the TTCA. Cf. Tex. Civ. Prac. & Rem. Code ' 101.021(2). Appellee=s allegations fall within the confines of the TTCA, as its purpose is to make liable governmental units for precisely that type of conduct. When an original petition does not affirmatively demonstrate an absence of jurisdiction, a liberal construction of the pleadings is appropriate. Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 805 (Tex. 1989). Indeed, unless it is clear from the pleadings that the court lacks jurisdiction, the court should retain the case. Id. (holding that the omission of any allegation regarding the amount in controversy from plaintiff=s petition did not deprive the court of jurisdiction, but was instead a defect in pleading subject to special exception and amendment).

We find that appellee adequately invoked the applicable provisions of the TTCA. In analyzing whether the trial court properly exercised jurisdiction over the case, we note that a plaintiff=s mere reference to the TTCA does not establish the state=s consent to be sued and thus is not enough to confer jurisdiction on the trial court. Texas Dep=t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Therefore, we must look to the terms of the TTCA to determine the scope of its waiver and then consider the particular facts of the case before us to determine whether it comes within that scope. Id. To state a claim under the TTCA a plaintiff must plead that his injuries were caused by a condition or use of tangible personal property. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2); see also Mullins, 57 S.W.3d at 657. Under Texas case law, to Ause@ means Ato put or bring into action or service; to employ for or apply to a given purpose.@ Miller, 51 S.W.3d at 588. Put simply, the use of the tangible property must have actually caused the injury. Id.

That the plaintiff=s original petition was vague as to the exact equipment or facilities alleged to be negligently used does not deprive the court of jurisdiction. In his original petition, appellee averred that UTMB was negligent in the use of its equipment and facilities by failing to remove the oyster shell fragment.[2] This language tracks that of the statute. At the hearing on UTMB=s plea to the jurisdiction, appellee speculated that Athere was a misuse of the probing instruments or the irrigation equipment used to clean the wound.@[3] We cannot say that such vagaries deprive the court of jurisdiction, especially when UTMB had procedural mechanisms at its disposal to force a clarification of the pleadings.

Under the Texas Rules of Civil Procedure, a special exception is the procedural device by which an adverse party may force clarification of vague pleadings. See Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex. App.CHouston [14th Dist.] 1992, no writ); Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 483 (Tex. App.CHouston [14th Dist.] 1991, no writ) (AOnly after special exceptions have been sustained and a party has been given an opportunity to amend its pleadings may a case be dismissed for failure to state a cause of action.@) UTMB did not specially except to appellee=s pleadings. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (noting that when a party fails to specially except courts should construe the pleadings liberally in favor of the pleader). An opposing party should use special exceptions to identify defects in a pleading so that they may be cured, if possible, by amendment. Id. Special exceptions that are not called to the trial court=s attention and on which the record does not show that the trial court acted are waived. Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 695 (Tex. App.CCorpus Christi 2000, pet. denied); McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.CHouston [14th Dist.] 1993, no writ). Thus, had UTMB specially excepted, it could have forced appellee to cure defects in his pleadings. Id.[4] We do not find, under the facts of this case, that a plea to the jurisdiction is the appropriate mechanism.

 

CONCLUSION

We affirm the judgment of the trial court denying UTMB=s plea to the jurisdiction.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed December 31, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] UTMB, a state entity, is entitled to sovereign immunity. See Bagg v. Univ. of Tex. Med. Branch at Galveston, 726 S.W.2d 582, 584 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e..) (AUTMB is clearly a state agency entitled to the same sovereign immunity enjoyed by the State of Texas.@). Accordingly, UTMB is not liable for the torts of its officers or agents unless a constitutional or statutory provision waives its immunity. Univ. of Tex. Med. Branch at Galveston v. Mullins, 57 S.W.3d 653, 656 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

[2] UTMB contends that appellee=s expert report establishes that it was not the use of tangible property which caused the injury. In considering this argument, we are mindful that the Texas Supreme Court has made clear that courts may consider evidence outside of the pleadings in reviewing the pleas to the jurisdiction. County of Cameron, 80 S.W.3d at 555 n.3; Blue, 34 S.W.3d at 554 (A[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised@). The plaintiff submitted the expert report in conjunction with his claim under the Texas Medical Liability and Insurance Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i et seq. However, the Act seems to prohibit the consideration of the expert report in the plea to the jurisdiction context. The Act states that A[n]otwithstanding any other law, an expert report filed under this section: (1) is not admissible in evidence by a defendant; (2) shall not be used in a deposition, trial, or other proceeding; and (3) shall not be referred to by a defendant during the course of the action for any purpose.@ See Tex. Rev. Civ. Stat. Ann. art. 4590i ' 13.01(k).

[3] UTMB argues that any alleged failure to remove an oyster fragment is not a use, but rather, a non-use of tangible property. The Texas Supreme Court has never held that a non use of property can support a claim under the Texas Tort Claims Act. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994).

[4] We do not hold, nor do we intimate, that the filing of special exceptions is a necessary prerequisite to a plea to the jurisdiction. To announce such a rule would prescribe an overly circuitous route for litigators. However, where, as here, a plaintiff=s vague original petition tracks statutory language, and such vagueness is the only deficiency identified as the incurable jurisdictional defect, a defendant must first file special exceptions before attempting to avail himself of a plea to the jurisdiction.