Cities Of: League City, Dickinson & Friendswood v. Sandra Adair

Opinion issued October 30, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00205-CV

____________

CITIES OF FRIENDSWOOD, LEAGUE CITY,

AND DICKINSON, TEXAS , Appellant s

V.

SANDRA ADAIR, RUTH AUBUCHON, ROY BAILEY, STEVEN AND

LYNETTE BAKER, CARL BARNETT, JAMES BARNETT, SR., JANICE

AND JOSEPH BARNETT, NATHAN AND LAURA BARNETT, NEIL G.

BARON, EDWARD AND MARTHA BARTHOLMEY, JOHN AND GERRY

BARTLETT, WAYNE AND JANET BAZEMORE, JANET L. BECICH,

DONALD BENARD, JIMMY AND ROXIE BERRY, GLADYS BIMAGE,

KATRINA BIMAGE, JIMMY RAY BISHOP, SR., DEBORAH AND

DANIEL BLY, DENNIS AND MARIA BOATRIGHT, LEO BOOKMAN,

THEOPHILUS AND JACQUELYN BOYCE, LOIS BRADLEY, LUNA

BRADLEY, JOSEPHINE BRAGGS, BRAD AND CELIA BRAHM, PENCIE

BREWINGTON, ODELL BROOM, EMILY BROWN, JOHN AND

MARTHA BURMESTER, DON AND MILLICENT BURNS, JACQULYN

CAGE, SCOTT AND MELINDA CAMPBELL, RICKY A. CAPPEL, JOHN

AND O. LYDIA CASTILLO, LEOPOLDO AND DIANNA CASTILLO, JOE

AND SYLVIA CERDA, PAMELA CHARLES, SIGRID CLARK, JAMES

COKER, THOMAS CONES, BARBARA WHITE COOPER, ODELL AND

BOBBIE COOPER, RAYMOND AND EDITH COX, FELICIANO AND

TEODORA CRUZ, ELEFTERIOS AND VELDA CUCLIS, SALLY AND

DON CUMMINGS, VERLENE CUMMINGS, ROBIN CUNNINGHAM,

LINDA CURL, AGATHA CURRIE, DAVID DADY, EVERETT AND MARY

DARDEN, ANITRA DAVIDSON, DARRELL AND ANITA DAVIS, COY A.

DEAN, AVA LEE DEATS, ALLEN AND LILLIAN DENNEY, DON AND

SUZANNE DENSON, MIKE AND NITA DUFFEY, RICHARD AND

LILLIAN EASLEY, JOHN AND AGNES ECK, RAYMOND EDWARD,

DEAN AND CAROL ENDSLEY, LOUISE K. EVANS, LARESA EVANS,

BRETT FARMER, CHARLES AND ROSALIND FARMER, PEGGY

JOYCE FARMER, GLORIA M. AND THOMAS T. FISHER, JAMES AND

MERIDETH FISHER, ESTATE OF JOAN FOX, JOHN FRAZIER, RALPH

FRAZIER, OLA FREEMAN, SHERMAN GENTRY, DANIEL AND MARY

GOAN, EDWARD GOFFNEY, GEORGE AND IRENE GOFFNEY, SR.,

GERALD GOFFNEY, ARMANDO AND BEA GONZALES, GREATER

NEW HOPE MISSIONARY BAPTIST CHURCH, JAMES AND SUSAN

GREEN, DAVID AND MARY GUERRA, HAMILTON GUYTON, JR.,

KEITH AND JANICE GUYTON, JOSEPH AND JOANN HAGLER,

RHONDA HALILI, GLADYS HALL, GLADYS E. HALL, JAMES AND

WILMA HALL, PAULA HARRIS, RONALD AND JANIE HARTIS, PERRY

HATCH, LOIS HEIGHT, DOROTHY HENDERSON ESTATE, RAYMOND

AND JANET HENRIKSEN, AUDREY J. HILL, CORLISS HILL, DELMA

HILL, AARON L. AND JOYCE HOBBS, THELMA HOBBS, FRANCES

HODGE, MILTON AND FAY HOGG, DARLENE HOLMES, BEATRICE

HUFSTETLER, CAROL INA, STAFFON ISAAC, KIRK A. JACKSON,

WALTER E. JACKSON, JAMES AND FRANCINE JACKS, MARIE

JAMISON, JOHN M. JEFFORDS, KATHERINE JEFFERSON, JAMES

AND BRENDA JENKINS, OLIVER JENKINS, OTIS JENKINS, PONCE DE

LEON JENKINS, RONALD C. JENKINS, THELMA JENKINS,

MALCOLM AND LOIS JENNINGS, JOHN D. AND LILLIE D. JOHNSON,

JOYCE JOHNSON, VAN JOHNSON, JOHN P. AND SUSANNE R.

JOHNSTON, FORESTINE JONES, GENEVA JONES, JOE L. JONES,

LINDA G. JONES, MAXINE JONES, RETHA HOBBS KING, GARY AND

LINDA KIRKLAND, KAREN KLOCK, RUSSEL AND MARILYN KNAPP,

SCOTT AND LANA KOERBER, TOM AND ELIZABETH KWARTENG-AMANING, SOPHIA LAMB, ALCIDE AND PEARL LEE, LANEY AND

JOHNNIE LEE, MAVIS N. LEE, JAMES LITTLE, MYRTLE LEE LITTLE,

VIRGIL LITTLE, SR., CHERYL ANNE LITTON, DORIS LOVINGS,

CHARLES AND MILDRED LYMUEL, TERI LYMUEL, JACK C.

MADDOX, DENNIS AND CARLA MALONE, BETH MARTIN, STELLA

MARTIN, MORRIS AND MARY MASON, REBECCA J. MASON,

ROBERT AND LINDA MASON, DIANA MASTERS, JACOB AND

DANIELLE MATHEWS, GEORGE AND MARGARET MATHEWS,

THOMAS J. MCCORMICK, PAUL AND MARIA MCCORRY, RAYMOND

AND YOLANDA MEDINA, PATRICIA ANN MILLS, MARY MIXON, B.

MOODY, BARBARA MOONEY, LARRY AND MICHELLE MOORE,

CARLTON MORGAN, FREDDIE MORGAN, DEWEY AND SHIRLEY

MORRIS, JANET LEE MORRIS, MT. OLIVET BAPTIST CHURCH, D. R.

MURPHREE FAMILY TRUST, ESTELLE MURPHY, JAMES RUSSELL

NALEPA, JESSE AND IRENE NAVARRO, ESTELLE MURPHY O’NEAL,

MARGARET OSBORN, RICHARD AND KIMBERLEY OLMOS, WILL

THOMAS PALMER, DAVID AND ANNA PAYNE, JERRI PENDLETON,

CHRISTINE PETERSON, DOYLE PETERSON, BILL AND ROWENA

PORTER, JUAN AND WILMA PRADO, DEBRA AND JOHNNY LEE

PRAYLOR, EDNA PRAYLOR, WALTER AND PAMELA PRESLEY,

JOYCE PRICE, WILLIAM H. PRICE, SR., KATHY AND MICHAEL

PROTHRO, JACQUELIN PRUDEN, SERGIO AND GISELLE QUINTERO,

TED E. AND NORMA J. RAMIREZ, TASHONDA RANDLE, JESSE AND

DENICE RENDON, JOHN REISTINO, KAREN REMMERT,

CHARLOTTE RHODES, JANETH RHODES, JAMES AND CAMILLE

RHONE, CRUZ RIVERA, JAMES N. ROACH, WILBERT AND ROSIE

ROBINSON, GARY DWAYNE RODGERS, MANUEL AND ESTHER

RODRIGUEZ, GERTRUDE ROLLINS, ALAN AND SHARON ROWSEY,

FRANCISCO R. RUIZ AND ROSA E., DAVID SACK, BARTON C.

SCHINDLER AS LEGAL REPESENTATIVE FOR MAURICE S.

SCHINDLER, PATRICIA A. SCHWALENBERG, JACK AND DIANE

SCHWARTZ, LISA SEGOVIA, PREM K. AND NITINA SEHGAL, ELNITA

SIMMONS, CHARLES AND GWENDOLYN SIMMONS, SR., LURA

SKEEL, MARGARET SLATER, DARREN W. SMITH, SHIRLEY AND

CARL SMITH, JEFF SMYERS, SHARON SPATES, KATHY D. SPELLS,

ST. JAMES A.M.E. CHURCH, JODY STARR, HAROLD AND VIRGINIA

STEPHENSON, ANTOINETTE AND OLIVER STEWART, JOHNNY AND

SHARON STOUT, WAYNE AND PATRICIA STRELSKY, ELLIOT W.

AND BRENDA STURMAN, MARLA SURFACE, JANE SURMAN, GRACE

TALAS, GERALD E. TAYLOR III, MICHAEL AND SUSAN TAYLOR,

ROBERT D. AND DIANA A. TAYLOR, JANET THOMPSON, ARTHUR

AND VIRGINIA TIJERINA, TONY TRAINER, GIL AND CARROLL

VALDEZ, EDWARD AND GLINDA VAN MALDEN, DONALD AND JULIE

VAUGHAN, TERRY AND CINDY VAUGHN, BARBARA WALKER, ETTA

WARNER, JUANITA WARREN, LEON AND NELVA WASHINGTON,

MICHAEL AND RHONDA WATKINS, ALICIA AND MILTON WADE

WHITE, BABE WHITE, JR., CHRISTINA WHITLOCK, ALSACE L.

WILLIAMS, BENNIE WILLIAMS, DAISY WILLIAMS, DAVID AND

MIRIAM WILLIAMS, LILLIE WILLIAMS, LUCINDA WILLIAMS,

WILLIE AND CHARLOTTE WILLIAMS, WINSTON AND ERNESTINE

WILLIAMS, SHARYN WILLIS, GISELE WILSON, PATRICIA WILSON,

MARGARET WITHERSPOON, ELNORA WOODS, ROSEMARY YOUNG,

WILLIE MAE YOUNG , Appellees

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 01CV1068

MEMORANDUM OPINION

In this interlocutory appeal,

appellants, the cities of Friendswood, League City

and Dickinson, Texas (collectively “the Cities”), contend that the trial court erred in

denying their plea to the jurisdiction because the Cities are immune from the

negligence/gross negligence , nuisance , and constructive fraud claims. We reverse the

order of the trial court and render judgment that plaintiffs’ causes of action against

the Cities are dismissed. Tex. R. App. P . 43.2.

Factual and Procedural Background

The Cities issued permits to EOG Resources, Inc. to conduct seismic testing

for oil and gas within their city limits . Pursuant to the permits, EOG began

conducting a 3-D seismic survey with the use of energy sources such as vibroseis

(creating vibrations with the use of specially designed trucks) and dynoseis (creating

vibrations with charges of dynamite) near the area around the appellees’ homes.

Following the completion of testing, the appellees claimed that they began to notice

damage to their homes and property that in turn caused them mental anguish.

The appellees sued Enron Corp., EOG, Veritas DGC Land Inc., Ameridian

Technologies, Inc., St. Paul Fire & Marine Insurance Co., and J. Nichols & Company,

L.L.C. for their involvement in the seismic testing, and they sued the Cities that

issued the permits authorizing the testing. The Cities filed a plea to the jurisdiction

asserting governmental immunity because the Cities “had no involvement in the

seismic testing activity and the issuance of the permits was a governmental function.”

The trial court denied the plea.

Plea to the Jurisdiction

In four points of error, the Cities argue that the trial court erred in denying their

plea to the jurisdiction because the Cities were immune from the appellees’ nuisance,

negligence/gross negligence, and constructive fraud claims.

Standard of Review

Subject-matter jurisdiction is essential to the authority of a court to decide a

case. Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993).

A plaintiff bears the burden of alleging facts affirmatively showing that the trial court

has subject-matter jurisdiction. Id . at 446. “The absence of subject-matter

jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural

vehicles, such as a motion for summary judgment.” Bland Indep. Sch. Dist. v. Blue ,

34 S.W.3d 547, 554 (Tex. 2000). Here, we review the Cities’ challenge to the trial

court’s subject-matter jurisdiction through a plea to the jurisdiction.

Whether a trial court has subject-matter jurisdiction is a question of law and is

reviewed de novo. Mayhew v. Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). When

conducting a de novo review, the appellate court exercises its own judgment and

redetermines each legal issue, giving no deference to the trial court’s decision. Quick

v. City of Austin , 7 S.W.3d 109, 116 (Tex. 1998).

In deciding a plea to the jurisdiction, a court may not weigh a claim’s merits,

but must consider only the plaintiff’s pleadings and the evidence pertinent to the

jurisdictional inquiry. County of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex.

2002). The court of appeals must take the allegations in the petition as true and

construe them in favor of the pleader. Tex. Ass’n of Bus. , 852 S.W.2d at 446 .

Sovereign Immunity

Sovereign immunity protects the State, its agencies, political subdivisions, and

officials from lawsuits for damages, absent legislative consent to sue. Federal Sign

v. Tex. S. Univ. , 951 S.W.2d 401, 405 (Tex. 1997). Sovereign immunity encompasses

two principles: immunity from suit and immunity from liability. Id . The State

retains immunity from suit, without legislative consent, even if its liability is not

disputed. Id . Immunity from suit bars a suit against the State unless the State

expressly gives its consent to the suit. Id . The State may grant consent to sue by

statute or by legislative resolution. Id . A waiver of immunity must be made by clear

and unambiguous language. Univ. of Tex. Med. Branch v. York , 871 S.W.2d 175, 177

(Tex. 1994). The burden is upon the party suing the political subdivision to establish

consent to suit by alleging either a statute or express legislative consent. Tex. Dep’t

of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999).

Proprietary v. Governmental Function

The appellees contend that the doctrine of sovereign immunity does not apply

to the Cities’ actions because the actions were “proprietary” rather than

“governmental” functions. They argue that the Cities engaged in a proprietary act

when they issued permits to a private corporation designed to inure to the benefit of

the citizens of each city. We disagree.

The issuance and denial of permits has been held to be a governmental

function. See Maguire Oil Co. v. City of Houston , 69 S.W.3d 350, 364 (Tex.

App.—Texarkana 2002, pet. denied) (oil permit); Trevino & Gonzalez Co. v. R.F.

Muller Co. , 949 S.W.2d 39, 42 (Tex. App.—San Antonio 1997, no writ) (construction

permit); Kirschke v. City of Houston , 330 S.W.2d 629, 633 (Tex. Civ. App.—Houston

1959, writ ref’d n.r.e.), overruled on other grounds , City of Austin v. Teague , 570

S.W.2d 389, 393 (Tex. 1978) (development permit) . Therefore, the Cities issuance

of the permits entitled them to sovereign immunity. We must now determine if the

Cities waived the immunity.

Texas Tort Claims Act

The Cities argue that the trial court did not have jurisdiction over the

negligence/gross negligence and constructive fraud causes of action.

Under the Tort Claims Act, a governmental unit’s sovereign immunity is

waived for “property damage, personal injury, and death proximately caused by the

wrongful act or omission or the negligence of an employee acting within his scope

of employment if: (A) the property damage, personal injury, or death arises from the

operation or use of a motor-driven vehicle or motor-driven equipment.” Tex. Civ.

Prac. & Rem. Code § 101.021 (Vernon 1997); Dallas Area Rapid Transit v. Whitley ,

104 S.W.3d 540, 542 (Tex. 2003) . The Texas Supreme Court has defined “use” as

“‘to put or bring into action or service; to employ for or apply to a given purpose.’”

Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg , 766 S.W.2d 208, 211 (Tex.

1989) (quoting Beggs v. Tex. Dep’t of Mental Health & Mental Retardation , 496

S.W.2d 252, 254 (Tex. Civ. App.—San Antonio 1973, writ ref’d)).

The appellees argue that their injuries arose from the seismic testing and that

police cars were used around the testing sites to provide traffic control. There is no

evidence in the record that police cars were actually used. The permits included a

provision that indicated how police officers would be compensated if they were used.

Assuming that the police officers provided traffic control, the Cities counter that the

appellees did not allege a “use” of the police cars.

The Texas Supreme Court has consistently required a nexus between the

operation or use of the motor-driven vehicle or equipment and a plaintiff’s injuries.

See, e.g., Tex. Natural Res. Conservation Comm’n v. White , 46 S.W.3d 864, 869 (Tex.

2001) ; LeLeaux v. Hamshire-Fannett Indep. Sch. Dist. , 835 S.W.2d 49, 51 (Tex.

1992) (“The phrase ‘arises from’ requires a nexus between the injury negligently

caused by a governmental employee and the operation or use of a motor-driven

vehicle or piece of equipment.”); Hopkins v. Spring Indep. Sch. Dist. , 736 S.W.2d

617, 619 (Tex. 1987). This nexus requires more than mere involvement of property.

See generally Dallas County Mental Health & Mental Retardation v. Bossley , 968

S.W.2d 339, 343 (Tex. 1998). Rather, “the [vehicle]’s use must have actually caused

the injury.” White , 46 S.W.3d at 869 (citing Bossley , 968 S.W.2d at 342-43 ). Thus,

as with the condition or use of property, 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.” Bossley , 968 S.W.2d at 343 .

We hold that the appellees failed to affirmatively demonstrate the trial court’s

jurisdiction by alleging a valid waiver of immunity with respect to the

negligence/gross negligence and constructive fraud claims. See Miller , 51 S.W.3d

at 587; City of Fort Worth v. Pastusek Indus., Inc. , 48 S.W.3d 366, 372 (Tex.

App.—Fort Worth , 2001, no pet.) (constructive fraud).

Nuisance

In their third amended petition, the appellees alleged that

Defendants’ intentional invasion of Plaintiffs (sic) property resulting

from substantial interference with the use and enjoyment constitutes

nuisance liability. . . . Defendants’ conduct created numerous nuisances,

which were intentional in the sense that they created the conditions, and

continued it with full knowledge of the consequences.

The Cities were immune if the private nuisance was caused by the negligent

performance of a governmental function. See Lethu Inc. v. City of Houston , 23

S.W.3d 482, 489 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Governmental

immunity is waived, however, for the creation or maintenance of a nuisance in the

course of “non-negligent” performance of a governmental function. Shade v. City of

Dallas , 819 S.W.2d 578, 581 (Tex. App.—Dallas 1991, no writ). In other words, if

the nuisance was caused by the intentional or reckless performance of a governmental

function, immunity is waived. See id .

It is clear that the intentional acts referred to in the appellees’ petition did not

include the issuance of a permit. The Cities did not “intentionally invade Plaintiffs’

property” and create a nuisance. The pleadings and evidence on file do not indicate

that the Cities created a nuisance in their non-negligent performance of a

governmental function; therefore, there was no waiver of immunity. See Lethu Inc. ,

23 S.W.3d at 489.

Conclusion

We reverse the order of the trial court and render judgment that the plaintiffs’

causes of action against the Cities are dismissed for lack of subject matter

jurisdiction.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Jennings, and Hanks.