The City of Houston v. Hollie Gerber--Appeal from 165th District Court of Harris County

Reversed and Rendered and Memorandum Opinion filed July 27, 2004

Reversed and Rendered and Memorandum Opinion filed July 27, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00786-CV

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CITY OF HOUSTON, Appellant

V.

HOLLIE GERBER, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 01-65295

M E M O R A N D U M O P I N I O N

The City of Houston appeals the denial of its plea to the jurisdiction, claiming Hollie Gerber failed to allege a cause of action that falls within the Texas Tort Claims Act=s waiver of sovereign immunity. We hold Gerber=s pleadings are insufficient to state a cause of action; accordingly, we reverse and render.

Factual and Procedural Background

On December 31, 1999, at approximately 3:30 a.m., appellee tripped or slipped on the edge of a tree planter box located on a sidewalk in downtown Houston. The box contained a tree surrounded by dirt, but the dirt was approximately four to six inches below the sidewalk level. When appellee fell, her knee collided with a metal rim outlining the perimeter of the tree planter box, resulting in an injury to her knee.

Appellee sued the City of Houston (Athe City@) and Harris County. The City filed a plea to the jurisdiction alleging the trial court lacked subject matter jurisdiction because appellee failed to allege a cause of action permitted by the Texas Tort Claims Act (ATTCA@). After the trial court denied the City=s plea to the jurisdiction, this interlocutory appeal ensued.[1]

Standard of Review

A plea to the jurisdiction challenges the trial court=s authority over the subject matter of the controversy. Lopez v. McMillion, 113 S.W.3d 447, 449 (Tex. App.CSan Antonio 2003, no pet.); Michael v. Travis County Hous. Auth., 995 S.W.2d 909, 911 (Tex. App.CAustin 1999, no pet.). In reviewing the trial court=s decision on a plea to the jurisdiction, we may not weigh the merits of the claims asserted by appellee, but must consider only appellee=s pleadings and evidence pertinent to the jurisdictional issue. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The party suing the governmental entity must affirmatively show the trial court has jurisdiction to hear the cause. Lopez, 113 S.W.3d at 449. We construe the pleadings liberally in appellee=s favor and look to the pleader=s intent to determine whether the pleadings are sufficient to state a cause of action that falls within the waiver of immunity found in the TTCA. Brown, 80 S.W.3d at 555; Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). To determine whether appellee has met her burden, we consider the facts alleged in the petition, presume those facts to be true,[2] and consider the evidence submitted by the parties to the extent it is relevant to the jurisdictional issue. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); City of Galveston v. Gray, 93 S.W.3d 587, 590B91 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). Whether the trial court has subject matter jurisdiction is a legal question; thus, we review the trial court=s denial of a plea to the jurisdiction de novo. State ex rel. State Dep=t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

Texas Tort Claims Act

The State and its subdivisions generally enjoy sovereign immunity unless immunity has been expressly waived. Brown, 80 S.W.3d at 554. The TTCA waives governmental immunity 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 Ann. ' 101.021(2) (Vernon 1997). However, the TTCA contains several exceptions and exclusions which preserve sovereign immunity against claims that meet the conditions for general liability found in section 101.021; thus, if an exception or exclusion applies, sovereign immunity is not waived. See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.CDallas 1993), aff=d, 870 S.W.2d 21 (Tex. 1994). One such exception is section 101.056, which relates to a governmental unit=s discretionary powers and provides that the waiver of immunity does not apply to a claim based on:

(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.

Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 1997). The purpose of section 101.056 is to avoid judicial review of governmental policy decisions; thus, if the injury results from the formulation of policy, the governmental unit is immune. See Ramirez, 74 S.W.3d at 866B67. When, however, the injury results from the negligent implementation of that policy, the governmental unit is not immune. Mitchell, 855 S.W.2d at 745.

Appellee bears the burden to plead facts, which taken as true, would invoke the trial court=s jurisdiction. Univ. of Tex. Med. Branch at Galveston v. Mullins, 57 S.W.3d 653, 657 (Tex. App.CHouston [14th Dist.] 2001, no pet.). A trial court does not have jurisdiction over discretionary acts performed by the City; thus, appellee was required to plead facts that show the City=s nondiscretionary acts caused her injuries. Appellee is arguing the City failed to maintain the property and, as a result, negligently allowed the sidewalkCor more specifically, the tree planter boxCto become a hazardous obstacle. Thus, appellee is alleging the failure of a governmental unit to perform an act that it is required by law to perform. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.056. Appellee, however, did not allege any facts in her petition demonstrating the City was required by law to maintain the tree planter box in a certain manner.[3]

The City of Houston=s charter provides that the City shall have the power to maintain and improve the streets and sidewalks. Houston, Tex., City Charter ' 4 (1905). Another ordinance provides that when the city council finds that construction, reconstruction, or repair of sidewalks is necessary, it shall order the work to be completed. Houston, Tex., Ordinances ch. 40, art. III, ' 40-82 (1968). The City=s charter and ordinance indicate the decision to repair a street or sidewalk is a discretionary decision that is made by the city council. The City is liable only for negligent implementation of a policy; thus, appellee must allege facts showing the City had an existing policy, or the city council made a previous policy decision, to maintain or repair the tree planter box in a certain manner. Appellee, however, did not allege the city council ordered the repair or reconstruction of the sidewalks or the tree planter box, and appellee has not alleged any facts showing the City negligently implemented an existing policy. Thus, because appellee did not plead any facts in her petition to show the inapplicability of section 101.056, her petition does not state facts essential to establish the trial court=s jurisdiction. Accordingly, we hold appellee has failed to state a cause of action that falls within the TTCA=s waiver of immunity. The City=s sole issue is affirmed.

Appellee has requested an opportunity to amend her pleadings if this court holds the petition is deficient. We recognize that when the pleadings are insufficient to establish jurisdiction, the plaintiff is usually afforded an opportunity to amend her pleadings to cure the defect. Brown, 80 S.W.3d at 555. However, because appellee did not request an opportunity to amend in the trial court, she has waived any complaint on appeal that she has been denied this opportunity. Tex. R. App. P. 33.1(a); Kassen v. Hatley, 887 S.W.2d 4, 13 n.10 (Tex. 1994); Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 n.6 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Higbie Roth Const. Co. v. Houston Shell & Concrete, 1 S.W.3d 808, 811 (Tex. App.CHouston [1st Dist.] 1999, pet. denied). Appellee=s failure to request an opportunity to amend her pleadings in the trial court precludes any such relief in this court.

Having affirmed the City=s sole issue, and after holding appellee has no right to amend her pleadings, we reverse the trial court=s denial of the City=s plea to the jurisdiction and render judgment dismissing all claims against the City for want of jurisdiction.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 27, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon 1997).

[2] Unless the defendant pleads and proves that the plaintiff=s factual allegations were fraudulently made in order to confer jurisdiction, we will accept those allegations as true. Michael, 995 S.W.2d at 911. Here, the City has not asserted any such fraudulent pleading; thus, we accept appellee=s allegations as true.

[3] After reviewing the city ordinances for the City of Houston, we have not found, nor has appellee cited, any provisions requiring the City to maintain the dirt level in the tree planter box flush with the sidewalk.