Nunez v. City of Sansom Park
197 S.W.3d 837
Tex. App.
2006
Check Treatment

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las because it had on Fire defaulted Valley. contract with River

underlying any Holes has not le

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gal authority, we have found suggests clearly the trial abuses attorney’s

its if it discretion awards fees dispute

when there is bona fide between lan parties. specific Based statute,

guage of the cannot conclude clearly

the trial court abused its discretion awarding expenses costs to Dallas sec

Fire. We resolve Horizontal Holes’s it.

ond issue attorney’s reverse the trial court’s

We Valley

fees award to River and render nothing. that River take

judgment Valley

We affirm the trial all judgment respects.

other Individually NUNEZ,

Maria Theresa

and on Behalf of Estate

Nunez, Reyther Next Elizabeth As Nunez, Minor, Ap-

Friend of Jared

pellants, PARK,

CITY OF SANSOM

Texas, Appellee.

No. 2-05-293-CV. Appeals

Court

Fort Worth.

June *2 Marcos, Behr, Appellant.

Bart San Elam, Olson, top of bunk bed Adkins, & tached to the Taylor, Sralla Sralla, L.L.P., Wayne K. Ol- Tim G. cell. Worth,

son, for Appellee. Fort Police sued the Sansom of Sansom *3 Department2 HOLMAN, LIVINGSTON, B: Panel death Park, alleging Ignacio’s that McCOY, JJ. tangi- by a or use of caused was the real and that ble OPINION pursuant to section City was liable McCOY, BOB Justice. 101.021(2) of the TTCA Tex. Prac. Civ. I.Introduction 101.021(2). Specifical- Ann. & Rem.Code Nunez, indi- Maria Appellants Theresa that ly, they alleged the of vidually on behalf the estate of booking proce- follow by failing to written Nunez, Reyther, as Ignacio Elizabeth dures, shoe- failing Ignacio’s to remove Nunez, appeal next friend of Jared a minor reasonably Igna- monitor strings, failing granting the trial court’s judgment from placing him in placing cio after the plea jurisdiction Appellee of in favor easily in a cell that not Ignacio Park, (the “City”). City of Sansom monitored, using and bunk cell issue, Appellants that single complain policy. bed violation written City’s granting the trial court erred plea jurisdiction, arguing City filed plea they alleged because facts establish- Ap- immune that it was from suit because ing City’s governmental a waiver of claim petition failed to state a pellants’ immunity from suit Tort under the Texas TTCA. the limited waiver of the within (“TTCA”).1 Claims Act hold Because we granted subsequently The trial court City’s has not immunity from suit appeal this plea, and followed. waived, been we affirm the trial court’s Immunity judgment. of Governmental III.Waiver issue, that Appellants In their sole Background II.Factual and Procedural City’s by granting court erred the trial in their second not jurisdiction “it is plea to the petition amended that Park the Sansom ... readily apparent pleadings from the son, Department Police detained Nunez’s City’s] as claims are barred [the July Ignacio, public intoxi- immunity.” sovereign ... matter of law Ignacio cation. to the Sansom taken They argue City’s negligent for booking p.m., Jail at 9:00 shoestrings conjunction with the Ignacio placed and officers in a cell at jail cell amounts to bed and p.m. 9:30 failed approximately The officers to section pursuant waiver him from to remove City responds of the TTCA. The ar- policy requiring a written despite state a Appellants’ allegations that none of booking all resting or officer to remove within the TTCA’s limited waiver ar- personal property from the items immunity. shoestrings. At person, including rested A. Plea to Jurisdiction following morning, 6:00 a.m. the officers chal jurisdiction hanged plea him- discovered had authority at- trial to deter- using shoestrings, lenges his which were court’s self po- subsequently dismissed 1. See Tex. Civ. Prac. & Rem.Code (Vernon 2005). party. department §§ 101.109 lice subject mine the matter of the action. MHMR v. (Tex.) Jones, Dep’t Transp. (recognizing Legislature Tex. in (Tex.1999).

636, 638 the trial Whether tended the to be waiver TTCA subject jurisdiction limited), denied, court had matter ais cert. U.S. question (1998). of law that we review de novo. S.Ct. 142 L.Ed.2d 450 Mere Tex. Natural Res. Conservation Comm’n reference the TTCA does establish IT-Davy, consent to be sued. alleging has the burden of affirmatively 587. The must dem that affirmatively facts establish the trial jurisdiction by trial onstrate the court’s jurisdiction. Tex. alleging a valid waiver *4 Bd., Ass’n Bus. v. Tex. Air Control 852 of provides that a TTCA (Tex.1993). 440, S.W.2d 446 determin unit is liable for ing whether the has this bur met (1) property damage, personal injury, den, we look to in the the proximately and death caused the true, pleadings, accept them as and con wrongful negli- act or omission or the Id.; strue them in favor of pleader. gence employee acting of an within his Lee, Tex. Dep’t MHMR v. 38 S.W.3d of scope employment of if: 862, 2001, (Tex.App.-Fort pet. 865 Worth (A) damage, personal in- property denied). We must also consider evidence jury, operation or death arises from the jurisdiction relevant to when it is neces or use of a motor-driven vehicle or mo- sary jurisdictional to resolve the issue equipment; tor-driven and Blue, 547, raised. Bland ISD v. 34 S.W.3d (B) employee personally would be (Tex.2000). party presented 555 Neither according to claimant to hable any evidence to the trial court. We there law; and solely Appellants’ pleadings fore look to (2) personal injury and death so jurisdictional question. determine the tangible caused a condition or use of Immunity B. and the TTCA personal govern- or real if the Sovereign immunity from suit would, private mental unit were it a juris defeats a trial court’s person, be liable to the claimant accord- diction expressly unless the State consents ing to Texas law. Jones, to the suit. 8 at 638. Gov S.W.3d & 101.021. Tex. Civ. PRAC. Rem.Code immunity operates ernmental like sover Only section is relevant to this eign immunity protection to afford similar appeal. State, including subdivisions of the put bring “Use” means “to or counties, cities, and school districts. Har service; employ for or into action or 635, County Sykes, v. ris 136 S.W.3d 638 Miller, apply given purpose.” to a 51 (Tex.2004); Hosp. see Wichita Falls State 588; Archibeque at v. N. Tex. State S.W.3d 692, 694, n. Taylor, 106 S.W.3d 3 (Tex. 115 Hosp.-Wichita, S.W.3d 158 2003) (recognizing that courts often use App.-Fort pet.). gov Worth sovereign immunity govern the terms and ernmental unit not “use” does immunity interchangeably). mental property merely by allowing someone else provides TTCA a limited waiver of immu nothing it more. San Antonio use nity, brought allowing suits to be Cowan, certain, Hosp. v. 128 S.W.3d government narrowly de State units To state claim for which Dep’t fined Tex. circumstances. Crimi of Miller, waived, allege must nal Justice v. (Tex.2001); usage itself County see also Dallas available,’ make at meant ‘to injury. all ‘use’ were caused 588; Housing very Renteria v. Auth. statutory would have restriction (Tex. Paso, El little force.” denied). Paso The use App.-El Moreover, shoestrings presence of the injury proximately must have caused the more cell did no bunk bed death; proper mere involvement Igna- furnish the condition made than Bossley, at ty is insufficient. Bossley, 968 possible. See cio’s death 843; Archibeque, 115 S.W.3d at 159. “Re Appellants’ allegations only that a condition or use quiring used be involved would conflict with his are attenuated from bunk bed too immuni purpose waiving the Act’s basic have caused death to be said to it.4 ty only degree.” to limited “Property does not cause Appellants rely part Robinson injury if it no more than does furnish Center, Texas MHMR Central injury possible.” makes (Tex.1989), Lowe v. Texas Tech (1976), sup- University, 540 S.W.2d Analysis C. or Use —Condition *5 City has argument for their port Tangible Property Real Personal or Robinson, In immu- waived its mentally a claim that Appellants’ nity involve four was waived for a of tangible property: items the shoe- allowed to swim challenged patient was bed, jail cell, strings, and Robinson, preserver. a life 780 without equipment.3 Appellants video surveillance Louie, immunity S.W.2d allegation regarding make no a player’s for a claim that waived football property, of the items of them use. only him without a knee required play coach Lowe, Shoestrings 1. and Bunk Bed 540 300. The brace. S.W.2d prece- that supreme has stated City the shoe and is value of Robinson Lowe dential strings as contemplated bunk bed alleg- plaintiff in a “limited claims which Appellants’ pleadings the TTCA. show that provided property that a state actor has es jail Ignacio arrived at the with his shoe safety an integral component that lacks strings, and the officers remove failed to safety integral of this and that lack them from him. The bunk bed was locat injuries.” led component plaintiff’s City ined cell. The not “use” did 247; Kerrville State by simply the bunk bed or the shoestrings Clark, 582, Hosp. v. 585 allowing Ignacio to use items of those 1996). tangible “If nothing more. argument throughout liability only ory arises after has make no regarding the their entire brief video surveil- under sec established waiver equipment. lance We do not ad- TTCA). therefore tion 101.021 analysis. it in See dress our Tex.R.App. P. "[Ignacio] that also 47.1. video placed in cell that had no/limited Appellants alleged pleadings their Other cells in the surveillance available. the officers’ failure to remove shoe equipment readily avail- had surveillance negligent strings implementa constituted They argument appeal able.” make no They policy. do not this on tion of regarding the of video surveillance absence appeal. Guadalupe-Blanco See River Auth. v. equipment. at 587 See 326, Pitonyak, (Tex.App.-Cor (reasoning that cannot the nonuse 2002, pet.) (reasoning pus Christi no TTCA). support negligent implementation the assertion

Appellants argue Martinez, that “it would seem of 1002399, the TTCA. 2001 WL obvious that immunity similarly waived at *7. (normal- where a state actor uses This court declined to follow both Vela itself) ly safe property by with a harmful and Hester in Tarrant County Hospital (as component opposed withholding 434, Henry, District v. 442 n. safety component) and the addition of the 444 (Tex.App.-Fort Worth no [component] harmful plaintiffs leads pet.). Other courts have done the same. injury.” But expand we are not inclined to Univ., Scott Prairie View & M upon express limita- (Tex.App.-Houston [1st tion of Robinson and Lowe. Consequently, denied) 1999, pet. (disagreeing Dist.] Appellants’ claims do not fall with- part with reasoning holding Hester’s scope cases, they those are inap- the room where the was at posite. Accordingly, Appellants’ allega- tacked was not capacity defective some tions about the and bunk bed “too attenuated from the actual are insufficient to state a claim within sec- injury to be considered the proximate 101.021(2)’s

tion waiver of immunity. cause of injury”); Hester’s Laman v. Big 2. Jail Cell Spring Hosp., State denied) (“To (Tex.App.-Eastland Appellants argue City “used” the extent that Vela and Hester can be which is a apparently understood to state that a room is person within the They Sansom Jail. alty or that a cause of action will lie for the McAllen, cite Vela v. property, respect use of real (Tex.App.-Corpus Christi *6 fully decline follow our sister courts. writ), Hester, City v.Waco 805 S.W.2d duty The real property owner with denied), 807 (Tex.App.-Waco writ regard to premises others defined as a Brownsville, Martinez v. No. defect.”).5 We likewise decline follow 13-00-00425-CV, 2001 WL 1002399 Hester, Vela, and Martinez. App.-Corpus Aug. Christi denied) (not designated publication), for as Because Appellants’ claims involve support argument for their that the room, property real prop —not jail “used” the cell-—a room. The court in See, erty e.g., at issue. San Antonio —is Vela held that booking the “use” of a Lang, Area Found. v. 35 S.W.3d placement and the of a stool therein (Tex.2000) “land, (defining real as equivalent to personal proper the “use” of generally whatever is grow erected or 102.021(2). ty as contemplated by section land”). ing upon or affixed to Neither a Vela, 894 S.W.2d at 840. The court Hester of action cause for use of real determined that a room in plain which the property nor a cause of action involving a tiff was assaulted and a television set that separate condition of real exists guards watched were “used” within the and apart from a cause of action for a Hester, meaning of the Laman, TTCA. premises defect. 671-72; Renteria,

at 815. Martinez relies on Vela and Hes see also at 458; Scott, ter for proposition government at 720. The term employees purposes can “use” a room for “premises” building has been defined as a Bossley, In found it un- does not state cause of action [TTCA], necessary premise an address amicus curiae brief under the unless it is a defect by 101.022(1).” Bossley, Attorney arguing filed General claim section "negligence in the use or of real S.W.2d at 341. LIVINGSTON, Justice, grounds appurtenances. or thereof its TERRIE part with n, concurring. 970 S.W.2d at 672. Lama has been “Defect” defined as shortcom majority respectfully I concur to the ing, imperfection, or want of some in this the “use” opinion case discuss Id; necessary thing completeness. prong of the Texas Tort Claims Act. Ctr., v.

Billstrom Mem’l Med. 598 S.W.2d Supreme Court case of San 642, 646 (Tex.Civ.App.-Corpus Christi clearly Hospital, Antonio State Cowan writ). 1980, no triggering governmental held that just to be personal property “use” of had not stated a premises have 101.021(2) that; immunity “section waives they have defect because personal property only when for a use defect, imperfection shortcoming, or itself user.” governmental unit is jail To cell. the extent that (Tex.2004); 245-46 see impliedly of the also Tex. Civ. Prac. & equivalent Rem.Code cell per- is the to the “use” of (Vernon 2005). here, Thus jail cell property, proxi- sonal one was the who death, it mately Ignacio’s cause mere- bed, shoestring, bunk used the ly See at involved. cell, unit, opposed 343; Archibeque, 115 S.W.3d at 159. pur- has not been waived for Appellants’ argument immu 101.021(2). poses of section See nity considering is waived when all of the This description conjunction tangible property is also by also followed the su- “use” has been unpersuasive and does not result in a dif case, preme court a recent Texas & outcome. Archibeque, ferent Like University Bishop. M Appellants’ complaint true substance of 583-84 appears to be that death faculty advisor Bishop, provided bed, shoestrings, caused not knife to a actor for use in a real student City’s but failure to Id production. drama club Ignacio. monitor Archibeque, *7 actor, knife, using the real missed student This, however, 160. does not one of pad the stab stabbed state a claim within the limited TTCA’s injured actor sued his co-actors. immunity. Accordingly, waiver of Id “deciding A & M to use a real Texas for Appellants’ looking to failing provide adequate and in knife true, pleadings, accepting them as violating university’s pad” stab for favor, construing them in their hold we prohibition deadly weapons campus. trial failed invoke the simply court held that Id The jurisdiction by al the actor insuf- furnishing knife to leging establishing gov facts waiver of a “use” ficient to establish ernmental under TTCA. We by unit. Id at governmental issue. Appellants’ overrule sole Cowan, merely providing per- 583. As by use someone else sonal IY. Conclusion statutory waiv- insufficient establish issue, Having Appellants’ only overruled id; er judgment grant- we affirm trial court’s City’s plea jurisdiction. ing the by the approach has been used similar LIVINGSTON, Appeals Depart- Texas opinion. J. concurs with Dallas Court Hawkins, ment Criminal Justice v. HUNTLEY, Appellant, L. (Tex.App.-Dallas

S.W.3d 529 William pet.). case, In that Irving Police Aubrey Officer escapees Hawkins was killed when from PARTNERSHIP, ENON LIMITED the Texas Department of Criminal Justice Partnership, A Texas Limited (TDCJ) weapons stole from during TDCJ Appellee. escape Connally their from the Unit in No. 2-04-388-CV. Huntsville, 2000. Id. at 531. Hawkins’s survivors asserted claims Appeals Court of negligence. TDCJ for Id. at 531- Fort Worth. Appeals The Dallas Court of reversed June the trial court’s denial of plea TDCJ’s jurisdiction. Id. at 534-35. The court agreed that did weap- TDCJ not “use” the

ons meaning within the of the tort claims

act’s use of governmental waiver immuni-

ty. Id. at 533. Citing both Cowan and

Bishop, the Dallas court determined that escapees’ weapons use of the

constitute weapons misuse of the merely negli- TDCJ and that TDCJ had

gently provided access to the

which is insufficient to constitute “use” the tort claims act. Id. at 533.

I believe the decision in our case turns

simply upon the lack of a govern-

mental I unit. do not believe that we causation, majori-

reach the issue of as the has,

ty until govern- we first review the

mental unit’s If agree “use.” unit “used” the

property, only then do we look to its “use” reason,

in terms of causation. For this I

respectfully concur.