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Reaves v. City of Corpus Christi

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 13, 2017


         On appeal from the County Court at Law No. 2 of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Benavides.


          NELDA V. RODRIGUEZ Justice.

         Appellants 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 appeal.

         Appellants 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 remand.

         I. Background

         A. Allegations in Appellants' Petition

         Appellants 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. [1]

         The 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 treatment.

         The 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 other relief.

         B. Further Procedural History

         On July 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 qualifications, etc.

         A 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 101.021.

         II. General Applicable Law

         A. Rule 91a

         In 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").

         A trial 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.

         B. Fair Notice

         Our 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).

         C. Texas Tort Claims Act

         Political 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).

         The 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.

         The 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. 1995).

         "Because 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.

         III. Timing of a 91a Motion

         Appellants' 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).[2] 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 interpretation.

         A. Applicable Law

         In 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.[3]

         However, 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.

         The 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 below.

         B. Application of Helena Chemical Factors to Rule 91a

         1. No Consequences ...

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