Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 2 of Nueces County,
Chief Justice Valdez and Justices Rodriguez and Benavides.
V. RODRIGUEZ Justice.
Hayden Reaves and Billy Rochier sued appellee the City of
Corpus Christi ("the City") for personal injury
allegedly caused by its employee. The suit alleged that
Officer Jorge Fernandez negligently conducted a high-speed
chase of a drunk driver named Kimberly Balboa, which ended
when Balboa ran a red light and struck appellants'
vehicle. The City filed a rule 91a motion to dismiss, arguing
that because the City had governmental immunity, the suit
against the City had no basis in law. The trial court agreed.
The resulting dismissal under rule 91a is the subject of this
bring what we construe as three issues on appeal. By their
first issue, appellants argue that the trial court reversibly
erred when it granted the City's motion long after the
45-day deadline for ruling on a 91a motion. By their second
issue, appellants argue that the City's motion should be
reviewed as a rule 91a motion and not as a plea to the
jurisdiction, as the City suggests. By their third issue,
appellants contend that their petition alleged a basis in law
sufficient to survive review under rule 91a. We reverse and
Allegations in Appellants' Petition
filed their original petition in Nueces County Court at Law
No. 2 on May 23, 2014. Named as defendants were Officer
Fernandez of the Corpus Christi Police Department, the City,
Balboa, and Randy Vasquez, who allegedly entrusted the car to
Balboa. Appellants' first amended petition was the live
petition, and we judge this appeal based on its contents.
petition alleged as follows. Appellants were injured on
August 4, 2012, after Officer Fernandez initiated a
high-speed chase of Balboa. The pursuit ended when Balboa ran
a red light and struck appellants' vehicle on its
passenger door. Officer Fernandez was driving the patrol car
in the course and scope of his employment with the City, and
he did so "recklessly and without regard to public
safety." This collision caused appellants "severe
personal injuries, " which were specified. Appellants
were transported to Christus Spohn Memorial Hospital for
petition further alleged that their negligence claims
qualified for a waiver of sovereign immunity through Texas
Civil Practice and Remedies Code section 101.021(1) because:
Officer Fernandez acted within the course and scope of
employment, the personal injury claims were caused by Officer
Fernandez's negligent operation of a vehicle, and Officer
Fernandez would be personally liable otherwise under Texas
law. Appellants further alleged that in the absence of
immunity, the City was liable through respondeat superior.
Appellants also alleged direct negligence against the City,
including theories of negligent entrustment, negligent hiring
and/or screening of driver qualifications, negligent training
and supervision, negligent retention, negligent contracting,
and negligent maintenance. Appellants sought damages and
Further Procedural History
31, 2014, the City filed its 91a motion, which argued that
appellants' petition had no basis in law. "Not only
have Plaintiffs completely failed to claim a waiver of
immunity, there is no valid waiver of governmental immunity
that they can claim." The City theorized that under the
Texas Tort Claims Act (TTCA), only one form of waiver was
potentially applicable to the events alleged: a claim for
"personal injury . . . aris[ing] from the operation or
use of a motor-driven vehicle . . . ." Tex. Civ. Prac.
& Rem. Code Ann. § 101.021(1) (West, Westlaw through
2015 R.S.). The City cited appellants' allegation that it
was Balboa, not Officer Fernandez, who ran a red light and
struck appellants' car. According to the City, these
allegations made it per se impossible for appellants to
demonstrate the required causal "nexus" between the
injury and the government employee's operation of the
vehicle, which is necessary to establish a waiver of immunity
under the TTCA. See id. § 101.025(a) (West,
Westlaw through 2015 R.S.); City of Dallas v.
Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
The City's 91a motion did not discuss appellants'
direct negligence claims against the City for negligent
entrustment, negligent hiring and/or screening of driver
hearing was scheduled, and appellants filed their first
amended petition on September 5, 2014. On September 29, 2014,
Officer Fernandez was dismissed on grounds unrelated to the
City's 91a motion, and appellants do not protest his
dismissal on appeal. On January 5, 2015, the trial court
granted the City's 91a motion and dismissed
appellants' suit against the City in its entirety, with
prejudice. On appeal, appellants do not challenge the
dismissal of their direct negligence claims, but instead
solely challenge the dismissal of their claims relating to
Officer Fernandez's alleged negligence and recklessness,
and the corresponding waiver of immunity under section
General Applicable Law
2011, the Legislature directed the supreme court to adopt
rules providing for the dismissal of causes of action that
have no basis in law or fact, to be achieved "on motion
and without evidence." Tex. Gov't Code Ann. §
22.004(g) (West, Westlaw through 2015 R.S.). The result was
Texas Rule of Civil Procedure 91a, enacted in 2013.
See Tex. R. Civ. P. 91a. The rule provides in part:
[A] party may move to dismiss a cause of action on the
grounds that it has no basis in law or fact. A cause of
action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not
entitle the claimant to the relief sought. A cause of action
has no basis in fact if no reasonable person could believe
the facts pleaded.
Id. R. 91a.1. The court may not consider evidence in
ruling on a 91a motion and must decide the motion based
solely on the pleading of the cause of action, together with
any pleading exhibits permitted by the rules of civil
procedure. Id. R. 91a.6; In re Butt, 495
S.W.3d 455, 461 (Tex. App.-Corpus Christi 2016, orig.
proceeding); see also Tex. R. Civ. P. 59 (permitting
a party to attach to a pleading certain
instruments-"[n]otes, accounts, bonds, mortgages,
records, and all other written instruments"-which
constitute the claim sued on or a matter set up in defense,
and providing that such instruments "may be made a part
of the pleadings").
court's determinations of whether a cause of action has
any basis in law and in fact are legal questions that we
review de novo. Sanchez, 494 S.W.3d at 724. To
determine whether dismissal under rule 91a is required in
this case, we thus consider whether the pleadings, liberally
construed according to the pleader's intent, allege
sufficient facts to invoke a waiver of governmental immunity
under the Tort Claims Act. See id. at 725;
Butt, 495 S.W.3d at 462; In Estate of
Sheshtawy, 478 S.W.3d 82, 86 (Tex. App.-Houston [14th
Dist.] 2015, no pet.). We apply the fair-notice pleading
standard applicable in Texas to determine whether the
allegations of the petition are sufficient to allege a cause
of action. Butt, 495 S.W.3d at 462; Koenig v.
Blaylock, 497 S.W.3d 595, 599 (Tex. App.-Austin 2016,
pet. denied); Stedman v. Paz, S.W.3d,, 2015 WL
5157598, at *2 (Tex. App.-Corpus Christi 2015, no pet.)
(citing Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex.
App.-Houston [14th Dist.] 2014, pet. denied)); Estate of
Sheshtawy, 478 S.W.3d at 86.
procedural rules merely require that the pleadings provide
fair notice of the claim and the relief sought such that the
opposing party can prepare a defense. In re Lipsky,
460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding) (citing
Tex.R.Civ.P. 45 & 47). A petition is sufficient if it
gives fair and adequate notice of the facts upon which the
pleader bases his claim. Italian Cowboy Partners, Ltd. v.
Prudential Ins. Co. of Am., 341 S.W.3d 323, 346 (Tex.
2011) (quoting Roark v. Allen, 633 S.W.2d 804, 810
(Tex. 1982)). "Even the omission of an element is not
fatal if the cause of action may be reasonably inferred from
what is specifically stated." Lipsky, 460
S.W.3d at 590 (internal quotations omitted); see also
Roark, 633 S.W.2d at 809-10 (finding that, even though
petition did not use the word "negligent, " the
allegations-that, during birth, a baby sustained a fractured
skull as a result of a doctor's delivery, and that
fracture caused anguish and expense-provided fair notice of
claim for negligent use of forceps by doctor). Under this
standard, courts assess whether an opposing party can
ascertain from the pleading the nature of the controversy,
its basic issues, and the type of evidence that might be
relevant. Low v. Henry, 221 S.W.3d 609, 612 (Tex.
2007); Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 896 (Tex. 2000).
Texas Tort Claims Act
subdivisions of the state, including cities, are entitled to
governmental immunity unless it has been waived by statute or
the constitution. Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (op. on
reh'g); see City of Galveston v. State, 217
S.W.3d 466, 469 (Tex. 2007). Where a government entity
challenges jurisdiction on the basis of immunity, the
plaintiff must affirmatively demonstrate the court's
jurisdiction by alleging a valid waiver of immunity.
Ryder Integrated Logistics, Inc. v. Fayette Cnty.,
453 S.W.3d 922, 927 (Tex. 2015) (per curiam). To determine if
the plaintiff has met that burden, the court reviewing a plea
to the jurisdiction will consider the facts alleged by the
plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the parties.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d
540, 542 (Tex. 2003).
Texas Tort Claims Act (TTCA) "provides a limited waiver
of governmental immunity." Alexander v. Walker,
435 S.W.3d 789, 790 (Tex. 2014). Under the TTCA, a
governmental unit's immunity is waived for personal
injury proximately caused by the wrongful act or omission or
the negligence of an employee acting within the scope of his
employment if: (A) the personal injury arises from the
operation or use of a motor-driven vehicle or motor-driven
equipment; and (B) the employee would be personally liable to
the claimant according to Texas law. Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(1); see Whitley, 104
S.W.3d at 542.
phrase "arises from" requires a causal nexus
"between the operation or use of the motor-driven
vehicle or equipment and a plaintiff's injuries."
Ryder, 453 S.W.3d at 928. The threshold for the
"arising from" inquiry is "something more than
actual cause [i.e., cause in fact] but less than proximate
cause." Id. at 929. The components of proximate
cause are cause in fact and foreseeability. Id. The
test for cause in fact is whether the act or omission was a
substantial factor in causing the injury, without which the
harm would not have occurred. IHS Cedars Treatment Ctr.
of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799
(Tex. 2004). Foreseeability means the actor, as a person of
ordinary intelligence, should have anticipated the dangers
his negligent act created for others. Doe v. Boys Clubs
of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.
proximate cause is ultimately a question for a fact-finder,
we need only determine whether the petition creates a fact
question regarding the causal relationship" between the
employee's conduct and the alleged injury. See
Ryder, 453 S.W.3d at 928. However, the
operation or use of a motor vehicle does not cause injury if
it does no more than furnish the condition that makes the
injury possible. Whitley, 104 S.W.3d at 543.
Timing of a 91a Motion
first issue complains of the lapse of time between the filing
of the 91a motion and the resulting order of
dismissal-roughly 159 days. A rule 91a "motion to
dismiss must be . . . granted or denied within 45 days after
the motion is filed." Tex.R.Civ.P. 91a.3(c); see
Butt, 495 S.W.3d at 460; see also Tex.
Gov't Code Ann. § 22.004(g). According to appellants,
because the trial court missed this deadline, it had no
authority to grant the City's 91a motion. That is,
appellants argue that the 45-day deadline is jurisdictional
and that missing the deadline robbed the trial court of the
power to grant the motion. This presents a question of
construing a statute, this Court's objective is to
determine and give effect to the Legislature's intent.
In re Lopez, 372 S.W.3d 174, 176 (Tex. 2012) (orig.
proceeding) (per curiam). Rule 91a declares that the trial
court "must" grant or deny the motion within 45
days after it is filed. Tex.R.Civ.P. 91a.3(c). Similarly, the
authorizing statute requires that any resulting rule
"provide that the motion to dismiss shall be granted or
denied within 45 days of the filing of the motion to
dismiss." Tex. Gov't Code Ann. § 22.004(g).
When used in a statute, the terms "must" and
"shall" are generally recognized as mandatory,
creating a duty or obligation. Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing Tex.
Gov't Code Ann. § 311.016(2)-(3) (West, Westlaw
through 2015 R.S.)). In Walker v. Owens, the Houston
First Court of Appeals applied this principle from Helena
Chemical to rule 91a. See 492 S.W.3d 787, 790
(Tex. App.- Houston [1st Dist.] 2016, no pet.). The
Walker court recognized that rule 91a's use of
the word "must" creates a mandatory duty.
Id. We agree.
even if a statutory requirement is mandatory, this does not
mean that compliance is necessarily jurisdictional.
Helena Chem., 47 S.W.3d at 494. When attached to a
deadline, words like "must" and "shall"
are plainly mandatory in the sense that the non-movant has
recourse if the trial court misses the deadline for ruling on
the motion, but are not necessarily jurisdictional in the
sense that missing the deadline will forever strip the trial
court of the power to act. See State v. $435,
000.00, 842 S.W.2d 642, 644 (Tex. 1992) (per curiam).
Rather, to determine whether the Legislature intended for a
deadline to be jurisdictional, we look to the three factors
set out in Helena Chemical: "the presence or
absence of specific consequences for noncompliance, "
the implications "that result from each possible
interpretation, " and the "overall statutory
objective" to be achieved. Helena Chem., 47
S.W.3d at 495.
Third and Fourteenth Courts of Appeal have held that rule
91a's deadline is not jurisdictional. See
Koenig, 497 S.W.3d at 599; Walker, 492 S.W.3d
at 791. We also conclude that rule 91a's deadline is not
jurisdictional, but we do so based on an application of the
Helena Chemical factors rather than the reasons set
forth in Koenig and Walker, as we explain
Application of Helena Chemical Factors to Rule 91a
No Consequences ...