Court of Appeals of Texas, Fifth District, Dallas
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-09-06753-C
Before Justices Moseley, Bridges, and Lang-Miers
DAVID L. BRIDGES, JUSTICE
The City of Dallas appeals the trial court's order denying in part the City's plea to the jurisdiction. In three issues, the City argues the trial court erred in denying its plea to the jurisdiction because the City is immune from suit and immunity has not been waived. The City further complains the trial court should not have considered certain affidavits. We reverse the trial court's order to the extent the order denied the City's plea to the jurisdiction and render judgment that appellees take nothing on their claims.
Between 6:30 and 7:00 p.m. on May 15, 2008, Paul Ferguson was dispatched through 911 to a reported automatic fire alarm call at a Lowe's Home Improvement store on Lemmon Avenue. Ferguson, driving a fire engine, left the fire station and headed west on Lemmon Avenue. Ferguson had the engine's emergency lights and siren activated, and the roadway was dry. It was daylight, and rush hour had just ended. Ferguson activated his air horn intermittently as he drove, activating it liberally at each intersection on Lemmon Avenue. He also kept his foot over the brake at each intersection. Two blocks before the intersection at Lemmon Avenue and Lomo Alto Drive, Ferguson activated the air horn at Herschel Street, approximately 400 feet from the intersection of Lemmon and Lomo Alto.
As he approached the intersection of Lemmon and Lomo Alto, Ferguson slowed down and looked for any oncoming traffic. All three westbound lanes on Lemmon were filled with vehicles, but there were no vehicles in the left turn lane to the southbound Dallas North Tollway entrance. When Ferguson first approached the intersection, he saw two vehicles in the three southbound lanes of Lomo Alto. One vehicle was stopped on Lomo Alto in the left turn lane for travel eastbound onto Lemmon, yielding the right-of-way to Ferguson. A second vehicle was stopped in the right turn only lane for travel onto westbound Lemmon, also yielding the right-of way. Ferguson believed the vehicles were all stopped to allow the fire engine to pass through the intersection.
Because the three westbound lanes of Lemmon were blocked, the only alternate route to continue westbound on Lemmon was the left turn lane for the southbound Dallas North Tollway entrance. Ferguson continued to slow down and again looked around for oncoming vehicles before entering the intersection of Lemmon and Lomo Alto. Ferguson "stayed on the air horn" as he passed through the intersection. Ferguson saw a car driven by Brian Loncar in the center lane of southbound Lomo Alto about a half block from the intersection. The center lane of southbound Lomo Alto is a straight-through lane only, and Ferguson believed the car would not come straight through the intersection because the southbound North Dallas Tollway entrance ramp was closed and blocked with barrels due to construction. Ferguson believed the car would hear the emergency siren and horn, see the emergency lights, and stop and yield the right-of-way like the other two vehicles traveling south on Lomo Alto had done.
As Ferguson entered the left-turn only lane, he continued to slow down and looked for oncoming traffic. Just before Ferguson entered the intersection, William Walters, a firefighter riding in the engine's front passenger seat, told Ferguson it was "all clear right." In a subsequent affidavit, Walters stated that "all clear right" is commonly understood by drivers and acting officers within the Dallas Fire-Rescue Department to mean the traffic to the right is clear or is yielding the right-of-way to an emergency vehicle.
Ferguson had his foot covering the brake as he entered the intersection, and he was traveling "at or just under the speed limit" of thirty-five miles per hour. As the engine crossed the middle of the intersection, it collided with a car driven by Brian Loncar. The Texas Peace Officer's Crash Report filed following the accident indicated that Loncar "entered the intersection with a yellow light into the path of" Ferguson's engine. A witness stopped at the intersection indicated Loncar "was accelerating into the intersection" and, in the witness's opinion, Loncar was trying to "beat" the yellow light. Another witness stated Loncar "did not yield" to Ferguson's engine. Loncar subsequently sued the City, asserting negligence claims. The City filed a plea to the jurisdiction arguing it retained immunity from suit for Loncar's claims. The trial court granted in part and denied in part the City's plea to the jurisdiction, and this appeal followed.
In its first issue, the City argues the trial court erred in denying its plea to the jurisdiction. Specifically, the City argues it is immune from suit as a result of Ferguson's official immunity.
Immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction are questions of law. Id. at 226. Therefore, we review de novo a trial court's ruling on a jurisdictional plea. Id.
When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.
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. When the consideration of a trial court's subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable. Id. Then, in a case in which the jurisdictional challenge implicates the merits of the plaintiffs' 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. Id. If the evidence creates a fact issue regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact issue on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
This standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). Id. The standard allows the state in a timely manner to extricate itself from litigation if it is truly immune. Id. After the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction, the plaintiffs are required, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue. Id. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from ...