Court of Appeals of Texas, Eighth District, El Paso
Appeal from 171st District Court of El Paso County, Texas. (T.C. # 2009-2736).
Before McClure, C.J., Rivera, and Rodriguez, JJ.
ANN CRAWFORD McCLURE, Chief Justice
The City of El Paso appeals from an order denying its plea to the jurisdiction arising from a lawsuit involving injuries to a child at a City swimming pool. For the reasons that follow, we affirm in part, reverse and render in part, and reverse and remand in part.
Six-year-old Jade Collins and her twin sister, Jasmine, were under the care and control of Children's Place Daycare on June 13, 2008. The Daycare transported the twins to Veterans' Park Swimming Pool which is owned, operated, and maintained
by the City. Jade, who did not know how to swim, went unsupervised into an area of the pool where she could not stand up and remained under water for a long period of time. Someone pulled Jade out of the water but she was unconscious and suffered substantial injuries as a result of the near-death drowning. The petition alleges that the Daycare and the City permitted the children to swim in a pool that appeared to be extremely cloudy to the point that black lines at the bottom of the pool could not be seen.
Appellees sued the Daycare for negligence and gross negligence. Asserting that the incident was caused by a defective filtration system in the pool, the Daycare filed a motion to designate the City as a responsible third party. The trial court granted that motion. Appellees amended their petition and added the City as a defendant. In their fifth amended petition, Appellees alleged three causes of action against the City. They incorporated the Daycare's motion to designate the City as a responsible third party and named the City as a defendant on this basis. Appellees also alleged premises liability and negligence claims against the City. The City filed a plea and supplemental pleas to the jurisdiction to challenge each cause of action. The trial court denied the plea and the City brought this interlocutory appeal.
RESPONSIBLE THIRD PARTY
In its first issue, the City challenges the denial of its plea to the jurisdiction regarding Appellees' incorporation of the Daycare's responsible third party designation as an independent cause of action. Under Section 33.004(a) of the Civil Practice and Remedies Code, a defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. See Tex.Civ.Prac.& Rem.Code Ann. § 33.004(a)(West Supp. 2013). The trier of fact must determine the proportionate responsibility of each claimant, defendant, settling person, and designated responsible third party. See Tex.Civ.Prac.& Rem.Code Ann. § 33.003(a)(West 2008). The filing or granting of a motion for leave to designate a person as a responsible third party does not impose liability against that person and may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on that person. See Tex.Civ.Prac.& Rem.Code Ann. § 33.004(i)(1), (2).
The City argues that Appellees' incorporation and adoption of the Daycare's responsible third party designation does not invoke the trial court's subject matter jurisdiction because a responsible third party designation does not establish liability against a party, but merely is a procedural tool that allows the party's proportionate responsibility to be considered by the trier of fact. The City is correct that the filing or granting of a motion for leave to designate a person as a responsible third party or a finding of fault against the person " does not by itself impose liability on the person." Tex.Civ.Prac.& Rem.Code Ann. § 33.004(i)(1). To the extent Appellees' pleadings seek to impose liability on the City based solely on the responsible third party designation and without establishing a waiver of the City's immunity, the trial court erred by denying the City's plea to the jurisdiction.
The City also contends that the pleadings do not satisfy the pleading requirements under the Texas Rules of Civil Procedure and do not provide the City with fair notice of a claim. While a person
may object under Section 33.004(g) to a motion for leave to designate a responsible third party on the ground that the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure, the record does not reflect that the City made such an objection in the trial court or that the trial court ruled on it. See Tex.Civ.Prac.& Rem.Code Ann. § 33.004(g)(1); Tex.R.App.P. 33.1. More importantly, the City cites no authority supporting a conclusion that this issue can be raised in a plea to the jurisdiction or that it can be considered in this interlocutory appeal.
The City's complaints regarding alleged deficiencies in the pleadings and lack of notice do not constitute a challenge to the trial court's subject matter jurisdiction. The City is permitted to appeal a trial court's denial of its plea to the jurisdiction under Section 51.014(a)(8) of the Civil Practice and Remedies Code, regardless of the basis on which it asserts a lack of jurisdiction. See Texas Department of Transportation v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex.App.--Austin 1999, no pet.). A governmental unit's challenge to the court's subject matter jurisdiction need not be based upon a claim of sovereign immunity for it to bring an interlocutory appeal under Section 51.014(a)(8). Id. We bear in mind, however, that Section 51.014(a)(8) is a narrow exception to the general rule that only final judgments and orders are appealable, and for that reason, the statute must be strictly construed. Id. We conclude that our appellate jurisdiction in this interlocutory appeal is limited to the issues of subject-matter jurisdiction. See Houston Independent School District v. 1615 Corporation, 217 S.W.3d 631, 635 (Tex.App.--Houston [14th Dist.] 2006, pet. denied). Consequently, we will not address this aspect of Issue One because we lack jurisdiction to do so. Issue One is otherwise sustained.
In its second issue, the City contends that the trial court erred by denying its plea to the jurisdiction with respect to the premises liability claim because Appellees' pleadings (1) do not demonstrate gross negligence; (2) affirmatively negate that the City owed them any duty; and (3) affirmatively negate that the City's conduct proximately caused the injuries.
Standard of Review
A plea to the jurisdiction is a dilatory plea by which a party challenges the court's authority to determine the subject matter of the action. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); City of El Paso v. Mazie's, L.P., 408 S.W.3d 13, 18 (Tex.App.--El Paso 2012, pet. denied). The plaintiff shoulders the burden of alleging facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Mazie's, 408 S.W.3d at 18. Whether a party has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction and whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction are questions of law which we review de novo. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Texas Natural Resource Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mazie's, 408 S.W.3d at 18. In a plea to the jurisdiction, a defendant may challenge either the plaintiff's pleadings or the existence of jurisdictional facts. Miranda, 133 S.W.3d at 226. The City's plea to the jurisdiction is directed exclusively at the pleadings. Accordingly, our review is restricted to the pleadings and we will construe them liberally in favor of conferring jurisdiction. See Texas Department
of Transportation v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002).
" Sovereign immunity protects the State from lawsuits for money damages." Reata Construction Corporation v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006), quoting Texas Natural Resources Conservation Commission v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Political subdivisions of the state, including cities, are entitled to such immunity--referred to as governmental immunity--unless it has been waived. Reata, 197 S.W.3d at 374. Sovereign immunity encompasses immunity from suit, which bars a suit unless the state has consented, and immunity from liability, which protects the state from judgments even if it has ...