the City of Wichita Falls v. Mary E. Romm ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-237-CV
THE CITY OF WICHITA FALLS APPELLANT
V.
MARY E. ROMM APPELLEE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant The City of Wichita Falls (“the City”) appeals the trial court’s
order denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (Vernon 2008). In seven issues, the City argues that the trial
court erred by denying its plea to the jurisdiction because Appellee Mary E.
Romm did not establish a waiver of the City’s governmental immunity under the
1
 See Tex. R. App. P. 47.4.
Texas Tort Claims Act (“TTCA”). See id. §§ 101.001–.109. We will reverse
the trial court’s order and render judgment dismissing Romm’s suit for lack of
subject matter jurisdiction.
II. B ACKGROUND
Romm alleged in her first amended original petition that on or about
September 21, 2006, she was “operating her 2000 Honda motorcycle traveling
eastbound on the highway exit ramp and entering in the 1000 block of Sixth
Street” in Wichita Falls when Samantha Angeles, who was “operating her 1998
Toyota Tacoma eastbound in the 1000 block of Sixth Street,” “[s]uddenly, and
without warning, . . . entered merged [sic] into the lane [in] which [Romm] was
traveling and struck [Romm’s] motorcycle.” According to Romm, at the time
of the incident, the City was responsible for the road signs posted on the
highways and streets of Wichita Falls, and “the road sign directing the lanes of
travel for both the eastbound traffic and the oncoming traffic from the highway
exit ramp was not properly placed and maintained to direct the public to
maintain their lane of travel.” Romm averred that the improperly maintained
road sign was an “unreasonably dangerous condition” on the roadway and that
the City had actual or constructive knowledge of its improper placement and
maintenance; had failed to warn of the existence of the condition; had
previously undertaken the duty to properly position the sign; and was negligent
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in failing to properly maintain, inspect, repair, or replace the sign. Romm
alleged that the City was also negligent for leaving the sign turned in the wrong
direction and for failing to discover and correct the sign’s condition within a
reasonable time. Romm allegedly suffered injuries as a direct and proximate
result of the City’s negligence, and she brought the suit “pursuant to
§ 101.060(a)(2)” of the civil practice and remedies code, expressly complaining
of the “condition” of the sign.
The City filed its plea to the jurisdiction, arguing that at the time of the
incident, the Texas Department of Transportation (“TxDOT”), not the City, had
exclusive control over the Sixth Street exit ramp and “signage” and that the
City had not entered into any contract with TxDOT “concerning the City
accepting, sharing, or participating in the maintenance or control of the 6th
Street exit ramp or the street signs on the 6th Street exit ramp.” The trial court
denied the plea, and this appeal followed.
III. S TANDARD OF R EVIEW
A plea to the jurisdiction is a dilatory plea, the purpose of which is to
defeat a cause of action without regard to whether the claims asserted have
merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether the trial
court has subject matter jurisdiction is a question of law that we review
de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
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(Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d
849, 855 (Tex. 2002).
The determination of whether a trial court has subject matter jurisdiction
begins with the pleadings. Miranda, 133 S.W.3d at 226. The plaintiff has the
burden to plead facts affirmatively showing that the trial court has jurisdiction.
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
We construe the pleadings liberally in favor of the pleader, look to the pleader’s
intent, and accept as true the factual allegations in the pleadings. See Miranda,
133 S.W.3d at 226, 228; City of Fort Worth v. Crockett, 142 S.W.3d 550,
552 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g). 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. See Bland ISD, 34 S.W.3d at 555. 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.
Miranda, 133 S.W.3d at 227–28; Bland ISD, 34 S.W.3d at 555. But if the
relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a
matter of law. Miranda, 133 S.W.3d at 227–28; Bland ISD, 34 S.W.3d at
555. This standard mirrors our review of summary judgments, and we
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therefore take as true all evidence favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in the nonmovant’s favor. City
of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).
IV. D UTY
In its first issue, the City argues that it was not a possessor of the
premises where the incident occurred because it did not own or exercise control
over the highway exit ramp or the ramp’s street sign identified in Romm’s
pleading. The City contends that its jurisdictional evidence shows that TxDOT
controlled the Sixth Street exit ramp and “signage” when the incident occurred
and that the City did not enter into any contract with TxDOT evidencing the
City’s control over the premises. The City thus argues that it owed no legal
duty to Romm regarding the alleged complained-of dangerous condition of the
sign. 2
A plaintiff relying on the TTCA “must prove the existence and violation
of a legal duty owed him by the defendant.” City of Denton v. Page, 701
S.W.2d 831, 834 (Tex. 1986) (describing duty as a “threshold issue”);
2
 At the hearing on its plea to the jurisdiction, the City characterized
Romm’s claim complaining of the condition of the sign as only a premises
defect claim. The City makes the same characterization in its first issue.
Romm did not contest this characterization at trial, nor does she contest it here
on appeal.
5
Anderson v. Anderson County, 6 S.W.3d 612, 614 (Tex. App.—Tyler 1999,
pet. denied) (“Duty is a threshold question in a tort case.”); Dominguez v. City
of Fort Worth, No. 02-06-00196-CV, 2008 WL 623583, at *2 (Tex. App.—Fort
Worth Mar. 6, 2008, pet denied) (mem. op.) (“If a plaintiff fails to prove the
existence and violation of a legal duty sufficient to impose liability under the
[TTCA], sovereign immunity remains intact.”). The existence of a duty is a
question of law. Military Highway Water Supply Corp. v. Morin, 156 S.W.3d
569, 572 (Tex. 2005).
The TTCA waives governmental immunity for personal injury or death
caused by a condition or use of tangible personal or real property under
circumstances where a private person similarly situated would be liable. Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(a) (Vernon 2005); see id. § 101.022
(Vernon Supp. 2009) (identifying duties owed). Section 101.060(a)(2), which
Romm alleged to have brought her suit “pursuant to,” is a limitation on a
governmental unit’s waiver of immunity, retaining immunity for claims arising
from “the absence, condition, or malfunction of a traffic or road sign, signal, or
warning device unless the absence, condition, or malfunction is not corrected
by the responsible governmental unit within a reasonable time after notice.” Id.
§ 101.060(a)(2) (emphasis added); see Tex. Dep’t of Transp. v. Garza, 70
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S.W.3d 802, 806 (Tex. 2002); see also City of Grapevine v. Sipes, 195
S.W.3d 689, 692 (Tex. 2006).
Ordinarily, a person who does not own the real property must assume
control over and responsibility for the premises before there will be liability for
a dangerous condition existing on the real property. Page, 701 S.W.2d at 835;
see Wilson v. Tex. Parks and Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999)
(“As a rule, to prevail on a premises liability claim a plaintiff must prove that the
defendant possessed—that is, owned, occupied, or controlled—the premises
where the injury occurred.”). The relevant inquiry is whether the defendant
assumed sufficient control over the part of the premises that presented the
alleged danger so that the defendant had the responsibility to remedy it. 3
County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002); Carter v. City
of Galveston, No. 01-07-01010-CV, 2008 WL 4965351, at *2–3 (Tex.
App.—Houston [1st Dist.] Nov. 20, 2008, no pet.) (mem. op.) (“In both a
regular premises defect case and a special defect case, the duty of care ‘arises
only for an occupier with control of the premises.’”) (citing Gunn v. Harris
3
 The court in Page noted two exceptions: when one creates a
dangerous condition and when one agrees to make safe a known dangerous
condition. Page, 701 S.W.2d at 835.
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Methodist Affiliated Hosps., 887 S.W.2d 248, 251 (Tex. App.—Fort Worth
1994, writ denied).
Here, the City included in its jurisdictional evidence the affidavits of Mark
Beauchamp and Lydia Ozuna. Beauchamp stated in his affidavit that he is the
Traffic Superintendent for the City; that he is in charge of and supervises the
City’s streets, street signs, and streetlights; and that the street sign and
highway exit ramp cited in Romm’s petition “were owned and controlled by
[TxDOT].” Beauchamp also stated the following:
The [City] did not own or control the property or sign on or before
September 21, 2006. I have no knowledge of any contract
between the [City] and TxDOT that would allow the City to accept,
share, or participate in the maintenance or control of street signs
on the Sixth Street overpass exit on or prior to September 21,
2006. I nor anyone I know at the [City] thought of or treated the
Sixth Street overpass exit and street signs as City property. The
property was always recognized by the [City] as belonging to
TxDOT and being under the control of TxDOT.
Ozuna stated in her affidavit that she is the City Clerk for the City; that
she is the records retention officer for the City; that she researched all City
ordinances and resolutions prior to September 21, 2006; and that the City “did
not enter into any contract with [TxDOT], or any other governmental entity,
that involved the [C]ity accepting, sharing, or participating in the maintenance
or control of the 6th Street exit ramp or of any street sign on the 6th Street exit
ramp.”
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The City’s jurisdictional evidence thus shows that, at the time of the
incident, TxDOT, not the City, owned the sign and exit ramp that Romm
complains of in her amended petition and that the City did not exercise any
control—either through maintenance or by contract—over the sign and exit
ramp.
Romm argued at the hearing on the City’s plea that the City had exercised
control over the sign, but she did not submit any jurisdictional evidence in
response to the City’s plea to support that contention, and she even
acknowledged at the hearing that she had no proof to support her allegation. 4
Romm argues on appeal that the City has the right to control the sign and exit
ramp under transportation code section 311.001, which states that a local
authority may “improve a public highway, street, or alley of the municipality,”
and section 544.003, which states that a local authority may “designate an
intersection on a highway under its jurisdiction as a stop intersection or a yield
intersection and place a sign at one or more entrances to the intersection.” See
Tex. Transp. Code Ann. § 311.001(b)(3) (Vernon Supp. 2009),
4
 Romm states in her brief that she “has obtained proof from [TxDOT]
employees that, in fact, the City of Wichita Falls is responsible for the sign in
question.” This allegation (1) contains no support in the record and
(2) nonetheless, constitutes no evidence of control. See Cameron County v.
Velasquez, 668 S.W.2d 776, 780 (Tex. App.—Corpus Christi 1984, writ ref’d
n.r.e.) (recognizing that ownership is not synonymous with control).
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§ 544.003(b)(2) (Vernon 1999). But the mere existence of these statutes,
which authorize action, does not controvert the City’s jurisdictional evidence
demonstrating that the City did not exercise control over the sign or exit ramp.
Romm put forth no evidence raising a fact question in regard to the City’s
jurisdictional evidence that it exercised or assumed no control over the sign or
exit ramp. See Brown, 80 S.W.3d at 556. Because the jurisdictional evidence
demonstrates that the City did not have control over the sign or exit ramp, it
did not owe Romm a duty of care to remedy any alleged dangerous condition
of the sign or exit ramp. 5 See Page, 701 S.W.2d at 834; see also Brown, 80
S.W.3d at 556. Accordingly, taking as true all evidence favorable to Romm and
indulging every reasonable inference and resolving any doubts in her favor, we
hold that Romm failed to assert a claim sufficient to invoke a waiver of the
City’s governmental immunity under the TTCA. 6 See Tex. Civ. Prac. & Rem.
5
 Romm does not argue that the City created the alleged dangerous
condition or agreed to make the known condition safe. See Page, 701 S.W.2d
at 835.
6
 To the extent that Romm’s response to the City’s second issue can
be construed as contending that the sign is a special defect, the City would not
have waived immunity under the TTCA for that claim because, among other
reasons, it owed Romm no duty. Romm does not contend that she alleged a
waiver of the City’s governmental immunity under any other provision of the
TTCA. See City of Midland v. Sullivan, 33 S.W.3d 1, 7 (Tex. App.—El Paso
2000, pet. dismissed w.o.j.) (identifying three specific areas of liability for
which immunity under the TTCA is waived—use of publicly owned vehicles or
other motor-driven equipment, a condition or use of personal property, and a
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Code Ann. §§ 101.021(a), 101.060(a)(2); Page, 701 S.W.2d at 834. We
sustain the City’s first issue. 7
Va. C ONCLUSION
We reverse the trial court’s order denying the City’s plea to the
jurisdiction and render judgment dismissing Romm’s suit against the City for
lack of subject matter jurisdiction.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: February 18, 2010
condition of real property (premises liability)).
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 Having sustained the City’s first issue, and in light of the other
arguments and issues before us, we need not address the City’s remaining six
issues. See Tex. R. App. P. 47.1.
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