William Pena, Next Friend, in Behalf of Abel Hernandez, Jr. v. Bill Carl Himstedt ( 2002 )

William Pena v. Bill Carl Himstedt, et al

  IN THE

TENTH COURT OF APPEALS

No. 10-01-388-CV

     WILLIAM PENA, AS NEXT FRIEND

     OF ABLE HERNANDEZ, JR.,

                                                                              Appellant

     v.

     BILL CARL HIMSTEDT, ET AL.,

                                                                              Appellees

From the 278th District Court

Leon County, Texas

Trial Court # AP-00-272A

                                                                                                               Â

MEMORANDUM OPINION

                                                                                                               Â

      Prison inmate William Pena, as next friend of fellow inmate Able Hernandez, Jr., filed a personal injury lawsuit against Appellees. Pena filed a “Motion for Judgment Nihil Dicit” premised on Appellee Himstedt’s failure to answer the suit. The trial court signed an order denying Pena’s motion as moot because “Pena has no authority to proceed as next friend in this action on behalf of Abel [sic] Hernandez.” Pena appealed.

      Pena purports to act on Hernandez’s behalf because of a statutory durable power of attorney Hernandez signed which authorizes Pena “to endorse my name and place his name or initials thereon [sic] any and all legal documents or otherwise pertinent to my civil action [against Appellees].” See Tex. Prob. Code Ann. § 490 (Vernon Supp. 2002). Nevertheless, it appears that Pena and Hernandez both signed the original petition and a jury demand both filed on July 26, 2000. Hernandez alone signed a pauper’s oath filed on that date. Pena signed and filed all subsequent pleadings in the trial court, including the motion for judgment nihil dicit, and the first amended petition.

      The trial court signed an order on November 1, 2001 which reads in pertinent part as follows:

William Pena attempted to appear as “Next Friend” and on behalf of Abel Hernandez at this hearing. The Court determined that William Pena has not satisfied the requirements to appear as next friend. Accordingly, the Motion [for Judgment Nihil Dicit] is denied as moot. It is hereby ORDERED that said motion be, denied as moot based on the fact it was filed by William Pena on behalf of Abel Hernandez. The Court further finds that William Pena has no authority to proceed as next friend in this action on behalf of Able Hernandez.

      This does not appear to be a “final” judgment from which an appeal may be taken. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” Id. at 205. The order quoted above does not satisfy this test.

      The order appealed from does not purport to dispose of the merits of Hernandez’s claims against Appellees. Thus, it is interlocutory and not appealable. See Lucas v. Burleson Pub. Co., 39 S.W.3d 693, 696 (Tex. App.—Waco 2001, no pet.). Accordingly, we dismiss this appeal for want of jurisdiction.

 

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 27, 2002

Do not publish

[CV06]

i>, 34 S.W.3d 547, 555 (Tex. 2000).  When a plea to the jurisdiction challenges the existence of jurisdictional facts, implicating the merits of the plaintiff’s cause of action, the trial court reviews the relevant evidence to determine if a fact issue exists.  Miranda, 133 S.W.3d at 227.

          Special defects “unexpectedly and physically impair a vehicle’s ability to travel on the road.”  Harris County v. Est. of Ciccia, 125 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999)).  The condition of the road must be analogous to and of the same degree as “excavations or obstructions on highways, roads, or streets.”  Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (Vernon 1997).  It must present “an unusual and unexpected danger to ordinary users of roadways.”  State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992); City of Mission v. Cantu, 89 S.W.3d 795, 809 (Tex. App.—Corpus Christi 2002, no pet.).  The dangerous condition need not have been created or caused by the government unit to constitute a special defect for which the governmental unit has a duty to warn. Est. of Ciccia, 125 S.W.3d at 754 (citing County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)).

          Pictures of the wooden bridge were introduced into evidence by the County.  They depict a significant hole in front of the bridge.  Portions of the bridge surrounding the depression appear to have rotted away, and erosion has occurred immediately before the edge of the bridge.  One of the wooden planks appears to have been removed from the edge of the bridge.  Appellants argue that the vehicle struck this depression, causing the tires to hit the front edge of the bridge and flip over.  The County argues that this depression is not a special defect because it is not an unusual or unexpected danger to ordinary users of the road.  They argue that the ordinary use of the road is to travel on the center of the bridge, and not to drive off it.  However, the depression, while not in the middle of road, is still within the parameters of the driving portion of the bridge and can be considered an obstruction.  In one of the County’s photographs, traffic cones surrounding the depression are some feet away from the edge of the bridge.  See e.g. Morse v. State, 905 S.W.2d 470, 475 (Tex. App.—Beaumont 1995, writ denied) (10 inch drop-off along shoulder that prevented car’s left wheels from reentering roadway once they slipped off was special defect); Stambaugh v. City of White Oak, 894 S.W.2d 818, 820 (Tex. App.—Tyler 1994, no writ) (caved-in portion of road 15 feet by 10 feet special defect); State v. Nichols, 609 S.W.2d 571, 573 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.) (3-4 foot caved-in portion of highway special defect); State v. McBride, 601 S.W.2d 552, 558 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.) (slick, muddy excavation special defect); Miranda v. State, 591 S.W.2d 568, 569 (Tex. Civ. App.—El Paso 1979, no writ) (flood water two feet deep across highway special defect).

          Because there is conflicting evidence as to the character of the depression, fact issues exist as to whether the depression is a special defect.  Miranda, 133 S.W.3d at 227-28 (“if the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder”).  Accordingly, we sustain Appellants’ first issue.

Conclusion

          Because Appellant’s first issue is dispositive of the case, we need not address their other issues.  We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.  

 

 

                                                                   FELIPE REYNA

                                                                   Justice

 

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray dissents to this opinion issued after rehearing without a separate opinion.  See withdrawn opinion in this appeal issued April 6, 2005).

Reversed and remanded

Opinion delivered and filed September 14, 2005

[CV06]

 

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    [1]       Appellants include Julia P. Diaz, individually and on behalf of Diaz, her son, and Michael Brashear and Deborah Stayton, individually and on behalf of Brashear, their son.  Afterwards, Bernardo Diaz, Diaz’s father, filed a plea in intervention.

 

    [2]       Bernardo Diaz, the intervenor, did not submit evidence in response to the County’s plea.