HOUSTON UNLIMITED, INC. v. MEL ACRES RANCH
Court of Appeals of Texas, Fort Worth.
389 S.W.3d 583
This testimony demonstrates that McKinney‘s opinion is unreliable because she used a sales price produced by a “sweetheart deal” involving the Sebastian site to bolster her inclusion of the Sheridan Superfund site as a comparable sale. The significant difference in contamination levels at the Sheridan site cannot be overcome by relying upon a sales price differential attributable to a “sweetheart deal” involving a different tract. On this record, the Sheridan site is not comparable to Mel Acres Ranch.
The remaining support for McKinney‘s “before” and “after” computation consists of conversations she had with “a bunch” of people “in the marketplace” to “find out what their feel was for properties that ... had environmental stigma attached to them.” This is not a reliable basis for her proffered expert appraisal opinion. See Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 578-80 (Tex.App.-Beaumont 2008, pet. denied) (Appraiser‘s opinion regarding diminution in house‘s market value due to stigma, which was “based on ‘much conversation, particularly, over the years with realtors that sell these properties’ and on his experience with selling flooded properties,” was unreliable and inadmissible to establish 20 percent reduction in house‘s market value attributable to flood).
Finally, I note that McKinney did not “attempt to attribute any portion of the diminution in value ... to any activity of Houston Unlimited” and did not “attempt to calculate what amount of that diminution in value is due to activities not related to HUI ....” Even if it is assumed for argument‘s sake that Mel Acres Ranch established a causal connection between Houston Unlimited‘s conduct and the harm Mel Acres Ranch attributes to that conduct, McKinney‘s methodology cannot support the jury‘s award.
For these reasons, I respectfully dissent.
CITY OF WATAUGA, Appellant, v. Russell GORDON, Appellee.
No. 02-12-00221-CV.
Court of Appeals of Texas, Fort Worth.
Nov. 21, 2012.
Kenneth P. Trosclair, Dallas, TX, for Appellee.
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
OPINION
SUE WALKER, Justice.
Appellee Russell Gordon filed suit against Appellant City of Watauga, alleging that he suffered personal injuries when two City of Watauga Police Officers, while arresting him and again while transporting him to jail, negligently used tangible personal property—handcuffs—to pin his hands behind his back too tightly.1 The City filed a plea to the jurisdiction, asserting that it was immune from suit because the police officers’ conduct fell within the intentional tort exception to the Texas Tort Claims Act‘s (TTCA) waiver of sovereign immunity. See
In a single issue, the City contends that the trial court erred by denying its plea to the jurisdiction. For the reasons set forth below, we will affirm the trial court‘s denial of the City‘s plea to the jurisdiction.
The standard of review of an order granting a plea to the jurisdiction based on governmental immunity is de novo. Tex. Natural Res. Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). It is the plaintiff‘s burden to allege facts that affirmatively establish the trial court‘s subject matter jurisdiction. See Tex. Assn. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether the plaintiff has met this burden, we look to the allegations in the plaintiff‘s pleadings, accept them as true, and construe them in favor of the plaintiff. See Tex. Dep‘t of Parks Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).
However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). In a case in which the jurisdictional challenge implicates the merits of the plaintiff‘s cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. See Miranda, 133 S.W.3d at 227. 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 factfinder. Id. This standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). Id. at 228.
Under the doctrine of sovereign immunity, the State is not liable for the negligence of its employees absent a constitutional or statutory provision for liability. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). Statutory provisions authorizing imposition of liability on the State for the negligence of its employees are set forth in section 101.021(2) of the TTCA; that section expressly waives sovereign immunity for “personal injury and death so caused by a condition or use of tangible personal ... property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”
Here, the City conceded in its brief and during oral argument that the police officers’ use of handcuffs constitutes the use of tangible personal property for purposes of section 101.021(2)‘s limited waiver of immunity. The City argues, however, that the evidence it submitted in support of its plea to the jurisdiction established that the handcuffs were not negligently used but instead were intentionally used. The City points to the affidavits of the police officers that the City filed in support of its plea to the jurisdiction and argues that the officers applied the handcuffs to
Premised on the police officers’ affidavits stating that they had intentionally applied the handcuffs to Gordon and that the handcuffs were not used “in any manner other than exactly how [the officers] intended them to be used and applied” and were applied “[a]s per training,” the City argues that this intent—that the officers intended their acts as opposed to intended to cause the injuries at issue—qualifies their conduct in applying the handcuffs as an intentional tort. In its brief, the City thoroughly analyzes and attempts to delineate and distinguish between the case law holding, according to the City, that to qualify as an intentional tort, the state actor must have only intended his act3 and the case law holding that to qualify as an intentional tort, the state actor must have intended the injury he caused.4 The City urges us to resolve this purported split of authority and argues that only the former intent is required.
We need not decide in this case whether a police officer must have intended only his act or must have intended the injury he caused for a tort that he commits to fall within section 101.057‘s intentional tort exception to section 101.021(2)‘s limited waiver of immunity. Gordon pleaded facts supporting his claim that the police officers’ negligent use of tangible personal property caused his injuries; he did not plead facts that would support an intentional tort. Gordon specifically pleaded that, both when he was arrested and when he was transported from the police station to the jail, he consented to the application of handcuffs and did not resist their application. Thus, under Gordon‘s pleadings, the officers’ application of the handcuffs did not involve an offensive touching or contact of Gordon by the officers as required to constitute the intentional tort of assault or battery. See
Likewise, the particular police officers’ affidavits filed by the City in this case—which indicate that they intentionally applied the handcuffs to Gordon “exactly as they intended to do” and in “accordance with their training,” do not plead facts indicating that Gordon‘s negligent-use-of-personal-property claim is actually an intentional tort claim. Each officer stated in his affidavit, in pertinent part, that Gordon was handcuffed with his hands behind his back using ASP brand handcuffs and
[a]s per training, I checked the handcuffs to insure they were double locked ... and not too tight. I check for over tightness by running a finger between the handcuffs and the suspect‘s wrists.... The checks for double locking and tightness are checks which were taught to me in the basic police academy at the beginning of my law enforcement career and are procedures which I follow every time a prisoner is handcuffed.
....
I applied the handcuffs in the manner described and conducted the double-lock check and fitness check with my finger intentionally. At no time were the handcuffs which were applied to Mr. Gordon used in any manner other than exactly how I intended them to be used and applied.
These affidavits state no jurisdictional facts establishing an intentional tort; no facts are stated indicating that the police officers committed assault, battery, false imprisonment, sexual assault, wrongful death or injury via excessive force, or other intentional tort. Accord
We overrule the City‘s sole issue, and we affirm the trial court‘s denial of the City‘s plea to the jurisdiction on Gordon‘s claim for personal injuries based on the police officers’ allegedly negligent use of tangible personal property—the handcuffs.