*1 trial grant court to a new permit a trial its initiative at all. own it of its deprive argues BMW explanation infringes
jury verdict without by jury. right to trial constitutional necessary it to reach
I do not think rules, this given procedural our
argument, decisions, consensus
Court’s jurisdictions. given that But
American request refuse late
trial court cannot reason, as we jury good trial without a I Gayle,28 Corp. Motors
held General can refuse
fail to see how a trial court jury without
render on a verdict good reason. with the broad discre- quarrel do century law has for well over a
tion Texas grant courts to new trials
given trial explana- But justice. a reasoned
achieve ruling a court’s does not curb
tion for the sound exercise of discretion
either rather, justice; helps guar-
the cause of why many are reasons
antee both. There may grant
a trial court new trial. should
expectation that at least one reason given is not The refusal
be exorbitant. dangerously peremptory. even one is BROWN, Appellant,
Gerald
CITY OF HOUSTON and General Company Of
Elevator
Appellees.
No. 10-98-166-CV. Texas, Appeals
Waco.
Aug. 1999.
Rehearing Dec. Overruled (Tex. 476-477
28. 951
of to Houston’s dismissing Appellant’s lawsuit. (and vrffe) Appellant Brown his brought pursuant of Houston (TTCA), Texas Tort Claims Act 6, 1993, alleging that on Appellant October was a passenger using ticketed the Hous- facilities; Airport ton that he was descend- ing an on escalator “when suitcase re- Endsley” Kara leased tumbled down escalator, striking him causing leg. severe fracture to his Appellant alleges posses- sion and control airport; of the that the airport facility tangible personal proper- ty of the City injury Ap- which caused pellant as a result of a condition or use property; such liable TTCA, Appellant damages for his 101.121,101.0215 Sections and 101.022. Appellant alleges also negligent in one or more of following: a. Failing to maintain in a the escalator manner; safe b. Failing persons wаrn about the weight luggage size or to be escalators; transported on c. Failing maintain control over the weight transport- size or of luggage escalators; ed on d. Failing provide adequate safety precaution passengers for the es- calators; Portz, Houston, Chuck Richard B. e. Failing adequately passen- inform III, FL, Petersburg, Graves St. Gerald gers public use and Brown, Houston, appellant. elevators; availability of f. Failing adequately pas- instruct Hall, Jr., Anthony City Atty., W. Laura sengers general public about and the Coats, City Atty., Anne Asst. transportation luggage through appellee. area; the terminal VANCE, GRAY, Before Justice Justice g. Failing passengers instruct (Retired). and Chief Justice McDONALD public not to lug- take certain
gage on the escalator or to restrict taking luggage on the certain OPINION escalator. McDONALD, G. FRANK Chief Justice Failing h. to control the size and (Retired). transported amount of luggage Appellant appeals an of the safety from order escalators to insure the sustaining court Appellee City public. trial undisputed that The record is
Appellant alleged foregoing each of the investigation on on-the-spot proximate- conducted an negligence which act the accident which made the basis the same ly the occurrence caused results of injured. The injuries Appellant his and dam- Appellant’s suit and re- put into a written his were investigation wife ages. Appellant and *3 by airport an signed both damages port in the that was for their City liable report This $1,000,000. supervisor. and his employee amount of report The con- City. was filed summary a motion for The filed accident, description of the a concise tains and Appellant nothing, take judgment that in- right leg was Appellant’s notes that jurisdiction. plea Such filed transported been jured, and that he had Appellant jurisdiction alleged that the also report hospital by ambulance. (1)never provided City with notice the address, name, tele- Apрellant’s contains with the TTCA for claims accordance sex, number, birth, race, and phone date of (2) suit; and failed made the basis his of Ms. Kara the names and addresses and of action under the TTCA. plead a cause (whose Appellant), Endsley luggage fell trial court sustained Jr., Rodriquiz, a witness. and Mr. Albert without reason giving had contends Appellant therefor, law- Appellant’s and dismissed re his claims due actual notice of suit. by airport personnel above port made contending did Appellant appeals that he named. comply with the notice City had that agree and hold We 101.101,Notice, pro- which TTCA. Section of the under Section аctual notice accident
vides: 101.101(c) investigated had and indeed (a) A unit is entitled to investigation report and occurrence. a claim
receive notice of
gave ac-
City’s employee
prepared by
six
not later than
chapter
under this
had
Appellant
notice
tual
after
that the incident
months
injury
an accident
received some
claim occurred. The
giving rise
1993,
6,
airport operated
at the
October
reasonably describe:
notice must
no-
by
Thus the
City.
maintained
and
(b)
(a)
requirements under
and
Sec-
tice
(1)
claimed;
damage
apply.
tion 101.101did not
(2)
incident;
place
the time
of the
and
had actual
that since
We hold
any dismissal
of the occurrence and
notice
(3) the incident.
for lack of notice would
by the trial court
(b)
city’s
provi-
A
charter and ordinance
proper.
have
been
within a charter
requiring
sions
However,
jur
City’s plea to the
permitted
ap-
by law are ratified
alleged
Appellant
isdiction further
proved;
plead
a cause
action
had
failed
(c)
requirements provided
of Texas
Before
State
the TTCA
by
approved
ratified and
subsection
sovereign
the limited waiver
granted
(a)
(b)
govern-
apply
do not
TTCA,
its
the State and
unit has actual notice that
mental
full
had
political subdivisions
agencies and
occurred, thаt the claimant
death has
liability
from
torts.
injury,
has received
or that
some
Brannan,
(Tex.Civ.App.—
TOM Act. Tex. Civ. ant to the PRAC.& Rem.Code need for clarifi- highlights This case (Vernon’s filed § 101.001 immu- governmental law of cation Texas asserting that a Plea to Jurisdiction types generally are two nity. There jurisdic- subject matter lacked court Immunity from immunity. (1) reasons; Brown failed tion for two pleaA liability. suit and from provisions of the comply with the way dispose proper the Act and validated Charter as entity is of a case (2) plead a claim within failed to immune from suit. As subdivision limited waiver Texas, enjoys Houston grant- Act. The trial court provided by the of governmental the benefits and dis- ed the Plea to Jurisdiction been the extent has not waived. specifying claims without missed Brown’s governmental entity suing When summary A motion for grounds.1 function, a governmental connection with that had been filed statutory which definition includes not decided. was therefor operation airport, plaintiff of an must entity has waived immu- show that *5 THE APPEAL nity that the claim is the terms it Brown asserts that was appeal, On commonly of the waiver. This most the Plea grant for the trial court to error by alleging a claim under the Texas done failure to based on to the Jurisdiction (the Act). Tort Claims Act Charter which con- comply I, too, Because believe that Brown failed provision. Though tains a 90 Act, join I to a claim under the 101.101(b) requires compli- § of the Act portion that of Chief Justice McDonald’s provisions, with Charter notice ance opinion judg- court’s holding trial provision ap- only that this Brown asserts However, proper. ment was I also would municipal- plies against to asserted claims hold that Brown faded to the notice proprietary capaci- operating in their ities by the statute and required 101.101(a) requires § ty, while to Charter and therefore failed invoke the claimant within six months where waiver of the Act. func- to recover seeks Thus, Act. Brown contends tion under the THE RELEVANT BACKGROUND only required comply with he was right leg Brown that his was alleges 101.101(a). § injured down an riding while escalator Alternatively, contends Brown Airport. Bush Intercontinental Houston’s (b) 101.101(a) He § are in conflict. incident, airport personnel Just after further contends because out investigated the occurrence and filled statute, in the Charter creates conflict report report. The accident accident only required be the claimant should by airport employee who signed re- provision six month comply with the investigated by a review- incident argues the statute. He thus quired by report with supervisor. was filed ing court committed error the trial six of Houston. Just less than 101.101(b) § compliance with requiring incident, after the Brown sent a months Act. his claim City giving notice оf letter to the trial Finally, asserts that it. Brown and his wife filed granted it the Plea just years court erred when short of 2 after the incident. appeal. party at trial. Her a notice of Brown’s wife was file claims were also dismissed. She did not Jurisdiction, importance because could have Act is of vital to the State and found that of- Houston did not political all A subdivisions. denial of Brown, have actual According notice. immediately can be actual provided by notice was the accident appealed. Tex. Civ. PRAC. Rem.Code report city employees. filled out 51.014(a)(8). However, § failure Alternatively, actual provided notice was plead a claim within the waiver provisions by Brown’s notice letter which was sent simply the Act is another defense which within the six period month required pleaded proven, must be only it can be 101.101(a) § of the Act. challenged by summary judg- a motion for holds, Chief Justice McDonald I (for ment motion to dismiss failure to agree, pleading that Brown’s failed to state claim). state There is no method a claim I under the thus concur in the immediately appeal a denial of either I judgment. affirm also the trial political these motions. Thus the subdivi- court’s on the alternative basis expenses incur sion must all the of a full that there was error sustaining trial before it can have the trial сourt’s to the because of decision reviewed. § lack of notice required by 101.101 of the Act. Chief opinion Justice McDonald’s legislature clearly expressed its the court holds there was actual notice. I interlocutory intention to allow review of explain will my disagreement with that pleas jurisdiction. CIV. TEX.. analysis. Because Justice Vance has filed 51.014(a)(8). PRAC. REM. CODE Be- issue, opinion dissenting pleading I believe it the legislature’s I separately write address that issue. prevent intent the needless waste of will the pleading address issue first and -public funds to endure an entire trial be- *6 the then notice issue.2 appellate fore review whether claim is a proper govern- under the limited waiver of IS PLEAD A FAILURE TO CAUSE OF Act, mental of the I would hold THE ACTION UNDER TORT pleading a valid claim under the waiv- A CLAIMS ACT JURISDICTIONAL jurisdictional er of is and not DEFECT? merely another garden variety defense. suing When State of Texas a jurisdictional defect, a proper As is the political subdivision thereof for a claim subject plea jurisdiction, of a to the arising out of a is governmental activity, immediately appeal- denial of which can be plead the failure to a cause action under case, applied ed. As to this unlike the jurisdictional Tort a the Texas Claims Act dissent, I that it is a proper conclude basis plea to a ability defect? raisе to the sustaining trial jurisdiction upon plead a court’s order dis- based failure to within missing claim the waiver of the Brown’s claims. jurisdiction mary judgment. plea
2. The to the was based contends the He to the First, grounds. give proper two only failure to jurisdiction was on the issue of based Second, plead notice. failure to a cause of timely pleadings show notice. otherwise. governmental action within the waiver of im- plea jurisdiction to was also based munity. City’s The trial court sustained upon the failure state a claim under the Act plea jurisdiction. The trial court's by governmental that was not barred immuni specify upon does not the basis Having challengе ty. failed to the alternate only which it was sustained. Brown has at- ruling. basis of the trial court’s Brown has inadequate tacked the basis of notice. preserve failed to error. San Jacinto River challenged possibility Brown has not Duke, Authority v. 783 S.W.2d 209-210 ruling was on the trial court's alter Co., (Tex. 1990); Eagle Langston Printing v. theory plead native that Brown failed a 1990). (Tex.App. 797 S.W.2d However, - Waco cause of action within justice in the we interest of have pleading trial court. Brown contends de addressed the merits of the issues. part was for sum fect motion in the context this issue have addressed HAD NO JURISDIC- TRIAL COURT case, jurisdiction.3 In plea to a TION chal- specifically pleading Brown’s line сases dat In an almost unbroken jurisdiction. plea to the lenged a 1847, governmental at ing least back analy- Justice McDonald’s concur Chief been considered Texas has pleading failed amended sis that Brown’s DeYoung, jurisdictional. Hosner 1 Tex. gov- waiver of within the claim (1847). simply A has no trial court immunity of the Act. ernmental claim jurisdiction to entertain a arising out political subdivision immunity has not Because immuni unless function Brown, plead by to the claims been waived legis waived ty from suit been pre- properly and because issue subject jurisdic matter lature. Like other plea to the trial court sented issues, jurisdiction can be lack of tion propеrly sus- jurisdiction, the trial court aberration in any raised time. The dis- tained the line of cases Davis. Davis of missed Brown’s suit. Antonio, (Tex.1988). San Davis held could the “de you waive REQUIREMENT governmental immunity, and that
fense” of
THE NOTICE
jurisdictional
it was not
and thus could
unit,
any governmental
In order to sue
appeal.
time on
be raised for the first
municipality, under the
including a
Antonio,
Davis v.
San
required
com-
party bringing
suit is
at 519.
provision found
ply with the
very
Davis
At
distinguishable.
§ 101.101. Tex. Civ. Prac.
Ann.
& Rem.Code
least,
it should be limited
its facts.
Houston
(Vernon
§ 101.101
Davis the issue of the
jurisdic-
trial
court’s
Torres,
In our
appeal.
tion was not raised before
derives from
of action
Where
case,
of action
plead
failure
a cаuse
statute,
provisions are man-
statutory
waiver
complied
and must be
datory
exclusive
in a
specifically
of the Act was
raised
otherwise,
with;
maintain-
action is not
motion. Thus Davis
pretrial
is distin-
jurisdiction.
the court lacks
able because
procedural
guishable on
facts.
*7
Dist., 707
Sch.
Indep.
v. Tolar
Grounds
889,
Accordingly,
891
S.W.2d
Why Davis held that failure
state
bring
under the
party seeking
jurisdictional
a claim
is
such
required by the
provide
as
Davis
must
notice
explain
reconcile
clear.
cannot
comply with the stat-
of
Failure to
it with the other
of the courts
statute.
decisions
v.
the claim. Smith
and after Davis ute will bar
this State. Courts before
of
State,
Sign
Tex
Federal
v.
CASES AFTER DAVIS:
BEFORE DAVIS: Duhart v.
CASES
(Tex.
740, (Tex.1980);
University,
339
applicable to
them
by
Id. at 590. This made
law.”
period permitted
charter
Tex.
101.101(b)
func-
proprietary
as
as
§
well
PRAC. & Rem.Code
Ann.
Civ.
(Vernon
сhallenged
has
tions.
provision.
validity of the
charter
The
Courts
Houston
mu-
a
specifically
a claimant
sues
Where
in Houston have
appellate courts
Both
Act,
of
provisions
under the
all
nicipality
city
in
char
provisions
notice
also held the
101.101(b)
§
To
apply.
read
mandatory.
are
In
ters and ordinances
for
provision only
Act as
notice
actions
a
Dinh,
city
notice re
the court states
brought
(proprietary
of the Act
outside
by
are ratified
the Act under
quirements
functions)
contends,
make
as Brown
101.101(b).
Hosp.
County
Dinh v. Harris
(b) pointless. City
v.
sub-part
LaPorte
of
Dist.,
(Tex.App.—
896
253
(Tex.1995).
S.W.2d
Barfield, 898
292
S.W.2d
dism’d
[1st Dist.]
Houston
REQUIREMENT
CHARTER NOTICE
party
that once a
w.o.j.). The court held
Suprеme
specifi
The Texas
of the Act
procedural
devices
invokes
by
city
cally
required
that notice
held
action, they
of
bound
bring
a cause
are
provided.
Hous
City
must be
charter
of
including the
limitations of the Act
Torres,
v.
588
ton
S.W.2d
comply
In
provision.
Id.
order to
notice
Torres,
against
was
In
action
instituted
party
comply with
with the
must
injuries
for
a letter
city
sustained when
(a)
(b)
of the Act.
both subsections
stepped into an uncovered residen
carrier
the 14th
receptacle.
Appeals
of
Dis
City
water meter
Hous
The Court
tial
of
Torres,
provisions
held the notice
v.
at 589. Torres
trict has also
ton
S.W.2d
in
complied
at
must be
with
order to
brought his
Act. Id.
101.101
claim under the
the Act.
Smith v.
provision
bring
at issue
a claim under
590. The same charter
Houston,
passenger
City
in
an automobile
at issue
Torres.
case was also
city employee for
question presented
city
was whether
sued the
and a
sole
vehi
City injuries
in a collisionwith a
giving
excused from
sustained
Torres was
ninety
employee.
City
cle
Smith
injury
writing
notice of
driven
Houston,
(Tex.App.—
as
mental Court of Texas CONCLUSION requires knowledge that there be must stated, For the reasons affirm (1) death, injury, or property damage; the trial judgment, court’s which sustained (2) unit’s fault jurisdiction, to the on both death, producing contributing grounds plea. raised (3) injury, damage; or property identity parties Cathey involved. VANCE, Justice, dissenting. BILL Booth, I agree with Chief Justice McDonald on disposition contends that the had actual notice” ques- the “actual report disagree his claims due to a made tion. I with the remainder of the by airport personnel opinion. on the
341 is wheth- question before us to uations. The plea filed a the The of Houston claim under the TTCA summary failing state a motion for er to jurisdiction and a jurisdiction subject plea to a The the defect plea jurisdictional is a judgment. subject the court mat- if the jurisdiction asserted that lacked as it would be to the (1) jurisdiction plain- the Browns the ter because the and fell outside TTCA claim exception to the plead failed to an sue obtained tiff had not consent they governmental immunity because did I it is not. State. believe within allege falling act or not оmission Court acknowledge that the Beaumont I Act Texas Torts purview Claims plead held the failure that (“TTCA”) (2) the claims were barred plea a to the subject TTCA is a of law for failure as matter of waiver jurisdiction. pleading “A mere Summary for proper The Motion notice. not consti immunity does that, a Judgment as matter of asserted tute, subject jurisdiction pur matter for (1) duty no to the owed law: La immunity.” a such poses, waiver of Browns; (2) governmental Doe, 191, 196 Univ. v. 971 mar S.W.2d (8) claim; if governmental barred the 1998, pet.). (Tex.App . —Beaumont waived, immunity were the Browns could Thus, plead Court held that where prove “ordinary of an elements defect, premises condi do а ings premises Special defect.” The filed tangible personal property, tion use Exceptions Original to the Browns’ Peti- vehicle, plaintiffs a or use of motor a alleging they that had not tion the trial court with sub provide “failed The cause of action under the TTCA. plead ject jurisdiction by failing to matter a response filed to the Browns Id. at under the [TTCA].” cause of action jurisdiction only addressing University’s granted Court question adequate notice. Id. plea jurisdiction. disagree granted plea the court Although with decision. jurisdiction, specify did not order guid- is, Supreme offers “It The Texas Court grounds. simply It stated: State, 740, In Duhart v. therefore, 610 S.W.2d ance. ORDERED Defendant (Tex.1980), plaintiffs sued City of Houston’s Plea to the Jurisdiction 742 exemplary ordered the TTCA for dam- SUSTAINED and this State under wrongful though ruled on death suit even ages DISMISSED.” The court never exemplary summary expressly disallowed judgment. the motion for damages. governmen- State asserted immunity protects Governmental exceptions special filed tal legislative from sued absent being State Id. at 740. The plea abatement. Sign v. consent. Federal Texas Southern want of the cause for trial court dismissed Univ., (Tex.1997). 401, S.W.2d jurisdiction plaintiffs refused to after the in a When the State is made defendant Id. upheld Supreme amend. consent, legislative without juris- for want of the trial court’s dismissal im based diction, had not finding legislature be sustained. munity should exemplary for the State’s waived Lain, 579, 162 Tex. damages. (Tex.1961). suit, In a non-TTCA the court to maintain the suit lacks Duhart Supreme Court clarified plaintiff not obtain consent. legislative did Antonio, San Davis Id.; Sharp, Ins. Liberty Mutual Co. Davis, city em- (Tex.App. - Austin defamation, rights civil ployee sued denied). conversion, prose- violations, malicious cution. Id. TTCA, trial court direct- legislature 519. The By enacting the city all of the causes immunity in sit- a verdict waived the State’s certain ed *11 except defect, of action prosecution. malicious Id. dictional I the proper believe vehi- granted court n.o.v. on the cle was thе summary-judgment mo- prosecution malicious gov- tion, action based on which the court never reached. On however, ernmental immunity. city, remand, City may be able to establish pled had governmental never immunity. as a matter of law that the have Browns question governmental was whether failed to state a cause action under the immunity is a defense that be can waived. TTCA, juris- but the dismissal want improper. diction reverse city argued that im- dismissal order and remand the case munity is different from other defenses trial court for further proceedings. because the trial court lacks legislature’s claim lies outside the waiver of Id. immunity. at 520. The Su-
preme rejected this argument, Court clari-
fying Duhart: do not our opinion
We read in Duhart holding
as that the trial court lacked case,
subject matter any
and that judgment rendered for the
plaintiff would been have void. We fur- perceive
ther in requiring unfairness pleаd units their immu- Texas, Appellant, The STATE of
nity liability in order to avoid ground. By enactment of the Tort Claims Act in Legisla- the Texas WEISS, Appellee. Donald Edward expressly ture waived to suits injured No. claimants and consented to CR. 09-98-072 liability specified under circumstances. Texas, of Appeals We sovereign immunity conclude that Beaumont. may jurisdictional not be as a asserted power obstacle to the trial court’s Sept. Submitted 1999. against governmental hear cases defen- Instead, judgments dants. erroneous Decided Nov. 1999. against governmental may units be cor- Rehearing Overruled Jan. rected, cases, in as appeal. other Id.
As I holding, understand the Davis be-
cause the TTCA waives cer- circumstances,
tain failing facts show waiver of immu-
nity is not a defect that TTCA
deprives the subject juris- court of matter Rather,
diction. See id. gov- the claim of
ernmental must be asserted
special exception byor a motion for sum- judgment.
mary
Here, asserted the Browns pled
had not action within the immunity provided by
limited waiver of opinion TTCA. Because Davis juris- pleading
holds that defect is not