Walter Madern v. City of Pasadena

Opinion issued March 9, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00337-CV

WALTER MADERN, Appellant

V.

CITY OF PASADENA, Appellee

On Appeal from County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 810,947

MEMORANDUM OPINION

Appellant, Walter Madern, appeals from a judgment of dismissal rendered upon

the granting of a plea to the jurisdiction made by appellee, City of Pasadena (“City”).

We determine whether the trial court erred (1) by implicitly finding that a manhole in

which Madern was injured was not a special defect under the Texas Tort Claims Act

(“TTCA ” ),

(2) by implicitly ruling that Madern had not pleaded sufficient facts to

confer jurisdiction , (3) by implicitly ruling that Madern could not assert a declaratory-

judgment action regarding the constitutionality of the TTCA’s special defect and

premises defect definitions, (4) by sustaining the City’s objection to affidavits

authenticating photographs and to the photographs themselves, and (5) by allegedly

reviewing the City’s plea to the jurisdiction and Madern’s motion for new trial in the

same manner as a summary judgment. We also determine whether we need to reach

Madern’s challenge that the trial court erred by dismissing Madern’s claims on the

implicit ground that section 101.056 of the TTCA preserved the City’s governmental

immunity.

We affirm the judgment in all respects except to the extent that it

dismissed Madern’s declaratory judgment action, to which extent we reverse the

judgment. We remand the cause.

Facts

In February 21, 2002, Madern was walking along the side of Denkman Street

in Pasadena, Texas. He stepped onto a manhole cover, which slipped, causing his

right leg to fall into the manhole. Madern testified that the manhole had seemed to be

normal before the accident because he walked down Denkman Street “every day .”

Madern sued the City, alleging that it was negligent in creating the condition that

caused his injuries. Madern specifically alleged that the City’s governmental

immunity from suit and liability was waived under TTCA section 101.022(b) because

the manhole constituted a special defect and, in the alternative, sought a declaration

that the definition of a premises defect and a special defect was so vague as to be

meaningless and unenforceable. The City filed a plea to the jurisdiction requesting

that the trial court dismiss Madern’s claim for negligence because its governmental

immunity was not waived. The City alleged in its plea to the jurisdiction that (1) the

condition of the manhole did not qualify as a special defect because it did not pose a

danger to ordinary users of the roadway and was neither unexpected nor unusual; (2)

TTCA section 101.056 precluded waiver of governmental immunity because

maintenance of the manhole was a discretionary act; and (3) Madern could not

circumvent the City’s governmental immunity by requesting a declaratory judgment

on whether the definitions of special defect and premises defect were

unconstitutionally vague.

The City filed a written objection to Madern’s Exhibits B

and C,

included in Madern’s opposition to the City’s plea to the jurisdiction. The

City alleged that these exhibits had not been properly authenticated and were

irrelevant. The trial court sustained the City’s objections to Exhibits B and C. On

February 11, 2005, the trial court granted the City’s plea to the jurisdiction, without

explaining the basis for its ruling and dismissed both Madern’s negligence claim and

his declaratory judgment action against the City.

Standard of Review

On appeal, because the question of subject-matter jurisdiction is a legal question,

we review the trial court’s ruling on a plea to the jurisdiction under a de novo standard

of review. Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). To

determine whether a plaintiff has affirmatively demonstrated the court’s jurisdiction to

hear the case, we consider the facts alleged in the petition and, to the extent that it is

relevant to the jurisdictional issue, any evidence submitted by the parties to the trial

court. Tex. Natural Res. Conservation Comm’n v. White , 46 S.W.3d 864, 868 (Tex.

2001); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). We must

construe the pleadings in the plaintiff’s favor and look to the pleader’s intent. County

of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002); Peek v. Equip. Serv. Co. , 779

S.W.2d 802, 804 (Tex. 1989).

Special Defect

In his first point of error, Madern argues that “[t]he [trial] Court erred in ruling

that the defective manhole was a premises defect rather than a special defect in

response to both Appellee’s Plea to the Jurisdiction as well as Appellant’s Motion for

New Trial.” Because the trial court could not have implicitly determined that the

manhole was a premises defect for the reasons stated in footnotes four and ten and in

our discussions that follow, we construe appellants argument to be that the trial court

erred in implicitly ruling that the manhole was not a special defect.

The TTCA waives a governmental unit’s immunity from suit and liability for

violation of the duty to warn of special defects. Tex. Civ. Prac. & Rem. Code Ann.

§ 101.060(c) (Vernon 2005). To establish liability against a municipality under a

special defect theory, a plaintiff must plead and prove (1) that personal injury or death

occurred; (2) that it was proximately caused by the negligence of a municipal

employee; (3) that the employee was acting in his scope of employment; (4) that the

injury or death was caused by a special defect; (5) that the municipality knew or

reasonably should have known of the defect; and (6) that the municipality failed to

exercise ordinary care to protect the individual. State Dep’t of Highways v. Payne, 838

S.W.2d 235, 237 (Tex. 1992).

The TTCA does not expressly define special defects, except to state that they

include “excavations or obstructions on highways, roads, or streets.”

See Tex. Civ.

Prac. & Rem. Code Ann. § 101.022(b) (Vernon Supp. 2005) ; see also Harris County

v. Estate of Ciccia , 125 S.W.3d 749, 753 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied). The Texas Supreme Court has held that the two examples included in the

statute—excavations and obstructions—are not exhaustive and has construed special

defects to include other defects of the same kind or class. See City of Grapevine v.

Roberts , 946 S.W.2d 841, 843 (Tex. 1997); see also Payne , 838 S.W.2d 235, 238-39 .

However, to be considered a special defect, the defect must be of the same kind or class

as excavations or obstructions on a highway, road, or street. Id. ; Graf v. Harris

County, 877 S.W.2d 82, 86 (Tex. App.—Houston [1st Dist.] 1994, writ denied)

(holding that step on path at arboretum was not condition involving excavation or

obstruction on highway, road, or street). The defect must present an unexpected and

unusual danger to ordinary users of roadways. Payne , 838 S.W.2d at 239 (holding that

unmarked culvert 22 feet from roadbed and obscured by vegetation was located far

enough from road so as not to be danger to ordinary users of roadway). A condition

located so far from the roadway that vehicular passengers and other normal users of the

roadway are unlikely to encounter it is not a special defect. Id. at 239 . A special defect

is distinguished by some unusual quality outside the ordinary course of events.

Id.

A longstanding, routine, or permanent condition is, therefore, not a special defect. See

Estate of Ciccia , 125 S.W.3d at 753-54 ; Stokes v. City of San Antonio , 945 S.W.2d 324,

326 (Tex. App.—San Antonio 1997, no writ).

Madern contends that the manhole was a special defect because there were no

sidewalks and the manhole would, therefore, be encountered by pedestrians walking

along the street near the curb. However, the manhole was not in the roadway. It was

located more than five feet away from the road, so that vehicular passengers and other

normal users of the roadway were unlikely to encounter it. Only a pedestrian whose

destination required him to leave the proximity of the road was ever likely to walk on

the manhole.

Madern contends that the manhole was related to the roadway because it was the

access to the storm sewer, which extended into the street, and it was located next to the

storm sewer. However, special defects must unexpectedly and physically impair a

normal user’s ability to travel on the road. State v. Rodriguez , 985 S.W.2d 83, 85 (Tex.

1999); see, e.g. , Morse v. State , 905 S.W.2d 470, 475 (Tex. App—Beaumont 1995, writ

denied) (holding that 10-inch drop-off along shoulder that prevented car’s left wheels

from re-entering roadway once they had slipped off was special defect); Kitchen , 867

S.W.2d at 786 (holding that ice on bridge during winter was not special defect because

it was not unexpected or unusual). The condition presented by the covered manhole

was located five feet and four inches from the roadway. Here , Madern was not

traveling on the roadway at the time of his accident . In fact, if Madern had walked in

the roadway, he would have avoided the manhole.

Madern further argues that the manhole was a special defect because the broken

support ring of the manhole is similar to an excavation . Madern relies on Harris

County v. Smoker, in which this Court held that an uncovered storm sewer located

where a pedestrian would normally walk on an unlighted street without a sidewalk

constituted a special defect. Id. , 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.]

1996, writ denied). Smoker is distinguishable. Here , the manhole was more than five

feet from the roadway and was in its permanent, covered condition . In contrast, the

storm sewer in Smoker was extended one and one-half to two feet into the street, and

the absence of a storm cover was a temporary condition. Id. The manhole here was

covered and was, therefore, a permanent condition .

See Mitchell v. City of Dallas ,

855 S.W.2d 741, 747-48 (Tex. App.—Dallas 1993), aff’d 870 S.W.2d 21 (Tex. 1994).

We hold that the covered manhole was not a special defect. Accordingly, the

TTCA did not waive the City’s immunity from suit, and the trial court did not err by

granting the City’s plea to the jurisdiction on Madern’s negligence claim.

We overrule Madern’s first point of error.

Sufficiency of Madern’s Petition

In his second point of error, Madern argues that “[t]he trial court erred to the

extent it ruled that [Madern] had not adequately pled [sic] a cause of action for

negligence [involving a special defect] against [the City].” Madern also argues in his

fifth point of error, in part, that “[a]ppellant Walter Madern’s most recent petition

alleged sufficient facts to confer jurisdiction. Certainly it cannot be said that it would

be impossible to amend the petition to allege sufficient facts to do so.” In other words,

Madern complains that he adequately pleaded sufficient facts to confer jurisdiction and,

alternatively, that the trial court should have given him an opportunity to amend his

pleading to demonstrate that the trial court had subject-matter jurisdiction.

To prevail on a plea to the jurisdiction, the defendant must show an incurable

jurisdictional defect apparent from the face of the pleadings, making it impossible for

any amendment of the plaintiff’s petition to confer jurisdiction on the trial court. Bybee

v. Fireman’s Fund Ins. Co., 331 S.W.2d 910, 914 (Tex. 1960); City of San Angelo v.

Smith , 69 S.W.3d 303, 305 (Tex. App.—Austin 2002, pet. denied). “[I]f the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiff an opportunity to amend.” County of Cameron

v. Brown , 80 S.W.3d 549, 555 (Tex. 2002); Galveston Racquet Club, Inc. v. City of

Galveston , 178 S.W.3d 167, 170 (Tex . App.—Houston [1st Dist.] 2005, no pet.).

Whether the pleader has alleged facts that affirmatively demonstrate subject-matter

jurisdiction is a legal question that we review de novo. Tex. Dep’t of Parks & Wildlife

v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004).

Because a governmental unit is protected from suit by sovereign immunity,

pleadings in a suit against a governmental unit must affirmatively demonstrate, either

by reference to a statute or express legislative permission, that the Legislature

consented to the suit. Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999).

The plaintiff bears the burden to allege facts affirmatively demonstrating the trial

court’s jurisdiction to hear the case. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d

540, 542 (Tex. 2003); Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446

(Tex. 1993). Absent the government’s consent to suit, the trial court has no jurisdiction

over the cause of action. Jones , 8 S.W.3d at 638 .

If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction

and such defect is incurable, then the cause is properly dismissed. Peek, 779 S.W.2d

at 804-05 . However, the mere failure of a petition to state a cause of action does not

show a want of jurisdiction in the court. Bybee, 331 S.W.2d at 917 . If the plaintiff’s

pleadings are insufficient to demonstrate the court’s jurisdiction, but do not

affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the

plaintiff an opportunity to amend before dismissal. Brown , 80 S.W.3d at 555 ; Peek ,

779 S.W.2d at 805 .

In his third amended original petition, Madern alleged that the condition of the

manhole constituted a special defect and that the City had a duty to inspect and to warn

him of the dangerous condition or to make the condition reasonably safe.

Madern

alleged in his petition that the City’s immunity was waived under TTCA section

101.022(b), which applies to special defects. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.022(b) .

We have already held that the manhole was not a special defect. Additionally,

given the undisputed evidence regarding the location of the manhole, and that it was

not in the road and was covered, we hold that the court did not err in implicitly

concluding that Madern’s petition was incurable because he could not allege facts that

raised a special defect basis for waiver of immunity from suit.

We overrule Madern’s second point of error and fifth point of error, to the extent

that the his fifth point of error was addressed in this section of the opinion.

Declaratory Judgment Regarding Constitutionality

In his third point of error, Madern argues that “[t]he trial court erred in implicitly

ruling that [Madern] was not permitted to assert a cause of action for declaratory

judgment that the definition of a ‘special defect’ is unconstitutionally vague.” Madern

sought a declaration regarding the constitutionality of the TTCA’s definitions of the

terms “premises defect” and “special defect.”

Here, Madern sought declaratory relief under the Uniform Declaratory

Judgments Act (“DJA”),

which is a “remedial” statute designed “to settle and to

afford relief from uncertainty and insecurity with respect to rights, status, and other

legal relations” and which “ is to be liberally construed and administered.” Tex. Civ.

Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1997). The DJA allows courts to

declare whether or not further relief is or could be claimed. Id. at § 37.003(a). Such

a declaration may be either affirmative or negative in form and effect and has the “force

and effect of a final judgment or decree.” Id. at § 37.003(b). The DJA provides:

A person interested under a deed, will, written contract, or

other writings constituting a contract or whose rights, status,

or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise may have determined any

question of construction or validity arising under the

instrument, statute, ordinance, contract, or franchise and

obtain a declaration of rights, status, or other legal relations

thereunder.

Id. at § 37.004(a).

The Texas Supreme Court has noted that certain declaratory judgment actions

do not implicate the doctrine of governmental immunity. See, e.g. , Tex. Educ. Agency

v. Leeper , 893 S.W.2d 432, 446 (Tex. 1994) (holding that declaratory-judgment action

to determine proper construction of compulsory school-attendance law does not

implicate governmental immunity); Tex. Highway Comm’n v. Tex. Ass’n of Steel

Importers, Inc. , 372 S.W.2d 525, 530 (Tex. 1963) (holding that declaratory-judgment

suit against Highway Commission to determine parties’ rights does not implicate

governmental immunity ); Cobb v. Harrington , 190 S.W.2d 709, 712 (1945) (holding

that declaratory-judgment suit against State comptroller to determine parties’ rights

under tax statute does not implicate governmental immunity ). The governmental-immunity doctrine is not implicated in such actions because they do not attempt to

subject the State to liability. IT-Davy , 74 S.W.3d at 855. Accordingly, Texas courts

“distinguish suits to determine a party’s rights against the State from suits seeking

damages,” and “[a] party can maintain a suit to determine its rights without legislative

permission.” Fed. Sign v. Tex. S. Univ. , 951 S.W.2d 401, 404 (Tex. 1997).

Madern asked the trial court to construe whether the relevant statutory

definitions of premises defect and special defect were unconstitutionally vague.

Compare IT-Davy , 74 S.W.3d at 859-60 (emphasizing that plaintiff was “not asking the

trial court to construe a legislative enactment,” but, instead, sought declaration that

plaintiff “performed additional work . . . and, thus, the [defendant] owed [the plaintiff]

more money.”). Madern did not seek money damages under the guise of a declaratory-judgment action. Compare Thayer v. Houston Mun. Employees Pension Sys. , 95

S.W.3d 573, 578 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Because the

governmental-immunity doctrine is not implicated in action, like Madern’s declaratory-judgment action that do not attempt to subject the State to liability , we hold that the

trial court had jurisdiction to determine whether the relevant statutory definitions of

premises defect and special defect were unconstitutionally vague . We thus hold that

the trial court erred in granting the City’s jurisdictional plea on Madern’s declaratory

judgment action.

When the trial court granted the City’s jurisdictional plea, it necessarily

dismissed Madern’s declaratory-judgment action without reaching the merits of

Madern’s constitutional challenge. See Freedman v. Univ. of Houston , 110 S.W.3d

504, 507 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (explaining how court must

dismiss cause of action without ruling on merits if it grants jurisdictional plea).

Because the trial court has not yet ruled on the merits of Madern’s constitutional

challenge, we decline to do so on appeal, as Madern requests that we do. See R

Communications v. Sharp, 875 S.W.2d 314 (Tex. 1994) (holding that, because trial

court had jurisdiction to hear such claim for declaratory relief, claim should be

remanded to that court to permit issue to be finally resolved); see also Wood v. Wood ,

320 S.W.2d 807, 813 (1959) (holding that constitutionality of statute will be considered

only when question is properly raised and decision becomes necessary and appropriate

to disposal of case; also holding that no statute should be overruled without careful and

mature consideration).

We sustain Madern’s third point of error to the extent that he complains of the

dismissal of his declaratory-judgment action. We decline to reach the remainder of his

third point of error, which concerns the merits of his declaratory-judgment action.

Affidavits Authenticating Photographs

In his fourth point of error, Madern argues that “[t]he Trial Court Erred in

Sustaining [the City’s] Objection to Attorney Englehart’s Affidavit Authenticating

Photos, and Also in Sustaining [the City’s] Objection to Madern’s Affidavit

Authenticating Photos.”

We review a trial court’s admission of photographs under an abuse-of-discretion

standard. See Reichhold Chemicals, Inc. v. Puremco Mfg. Co. , 854 S.W.2d 240, 247-48

(Tex. App.—Waco 1993, writ denied). This standard requires that we determine

“whether the trial court acted without reference to any guiding rules or principles; in

other words, whether the act was arbitrary or unreasonable.” Worford v. Stamper , 801

S.W.2d 108, 109 (Tex. 1990).

Madern attempted to lay a foundation for Exhibits B and C, which were included

in Madern’s opposition to the City’s plea to the jurisdiction, by attaching affidavits

from himself and his attorney that stated that the photographs of the manhole were

“true and correct” and that each affiant had “personal knowledge.” The City filed a

written objection to Madern and his attorney’s affidavits. The City argues on appeal

that the affidavits were not based on personal knowledge and that the photographs were

not properly authenticated .

Assuming without deciding that the exclusion of the evidence was error, we

determine whether sufficient harm resulted for reversal. A party complaining of error

in the admission or exclusion of evidence need not show that, but for the error, a

different judgment would necessarily have resulted, but must instead show that the

error probably resulted in an improper judgment. City of Brownsville v. Alvarado , 897

S.W.2d 750, 753-54 (Tex. 1995); McCraw , 828 S.W.2d at 758; see also Tex. R. App.

P. 44.1(a). We review the entire record to determine if the error was harmful . Tex.

Dep’t of Transp. v. Able , 35 S.W.3d 608, 617 (Tex. 2000). A successful challenge to

a trial court’s evidentiary rulings usually requires the complaining party to show that

the judgment turns on the particular evidence excluded or admitted. See Interstate

Northborough P’ship v. State , 66 S.W.3d 213, 220 (Tex. 2001). Therefore, this Court

ordinarily will not reverse a judgment for erroneous rulings on the admissibility of

evidence when the evidence in question is cumulative and not controlling on a material

issue dispositive to the case. See Gee , 765 S.W.2d at 396; Reina v. Gen. Accident Fire

& Life Assurance Corp. , 611 S.W.2d 415, 417 (Tex. 1981).

In this case, the trial court did not allow Madern to introduce photographs of the

manhole. However, in ruling on the plea to the jurisdiction, the trial court considered

the following matters describing the manhole and its location: Madern’s pleading; his

response to the plea to the jurisdiction; his deposition testimony; a detailed map drawn

by Madern, which was attached to his deposition; the affidavit of Rinehart; and the

City’s photograph exhibits of the location of the manhole. The pleading and evidence

showed that the manhole was not in the road, the manhole was covered when Madern

stepped on it, and the manhole cover did not seem unusual or different when Madern

had stepped on it in the past . Exhibit B depicted not only the location of the manhole,

but also the condition of the support ring, which was not relevant to determine whether

the manhole was a special defect. Exhibit C clearly showed that the manhole was not

located in the roadway, which in fact supported the City and was also redundant of

other evidence before the trial court. After reviewing the record and Madern’s

arguments, we hold that any error in the exclusion of this evidence was harmless . See

Tex. R. App. P. 44.1(a).

We overrule Madern’s fourth point of error.

Trial Court’s Manner of Review

In the remainder of his fifth point of error, Madern argues that “[t]he trial court

erred in evaluating [the City’s] Plea to the Jurisdiction as well as [Madern’s] Motion

for New Trial hearings as [the City] treats its Plea to the Jurisdiction and [Madern’s]

Opposition thereto, as well as [Madern’s] Motion for New Trial as though [the City]

had filed a Motion for Summary Judgment.” Specifically, Madern argues that “[t]he

trial court erred in evaluating the [City’s] Plea to the Jurisdiction as a motion for

summary judgment with a much deeper evidentiary investigation than was warranted.”

In other words, Madern appears to argue that the trial court improperly delved into

more evidence than was proper for a preliminary ruling on subject-matter jurisdiction.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, the

trial court may consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised. See Miranda , 133 S.W.3d at 226-29 ; Bland , 34

S.W.3d at 555 (confining evidentiary review to evidence that is relevant to

jurisdictional issue). 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 should await a fuller development of the case, mindful that this

determination must be made as soon as practicable. Bland , 34 S.W.3d at 554.

In his brief, Madern specifically contends that the trial court’s questioning of

Madern’s counsel, at the hearing on the plea to the jurisdiction, regarding whether there

was evidence that the City had knowledge of the condition (a matter relevant to

premises defect, rather than special defect, under the TTCA) was evidence that the trial

court improperly delved into more evidence than was proper for a preliminary ruling

on subject-matter jurisdiction based on his having pleaded a special defect. Here, the

trial court had before it Madern’s third amended petition; his response to the plea to the

jurisdiction; his deposition testimony; a detailed map drawn by Madern, which was

attached to his deposition; the affidavit of Rinehart; and the City’s photograph exhibits

of the location of the manhole . We have no reporter’s record from that hearing and we

thus cannot speculate what else may have been discussed or presented at the hearing

or what the trial court’s complained-of statement meant. The matters proved by the

pleading and evidence, even viewed in the light most favorable to Madern,

affirmatively removed his negligence cause of action from the TTCA’s waiver of

immunity. Simply put, nothing in the record shows that the trial court imposed an

improper evidentiary burden on Madern, as he alleges.

We overrule the remainder of Madern’s fifth point of error.

TTCA Section 101.056

In his sixth point of error, Madern argues that “[t]he Trial Court Erred to the

Extent It Dismissed [his] Claims on the Ground that the Texas Tort Claims Act Section

101.056 Discretionary Act Exception Preserved Immunity.” The City’s jurisdictional

plea had alternatively asserted that TTCA section 101.056 prevented any waiver of

immunity from suit.

TTCA section 101.056 provides for an exception to the TTCA’s waiver, for

discretionary decisions, of sovereign immunity from suit and liability. See Tex. Civ.

Prac. & Rem. Code Ann § 101.056 (Vernon 2005). If a claim does not fall within the

TTCA’s waiver of immunity, then section 101.056’s exception to that waiver of

immunity is irrelevant; a defendant need not rely on an exception to the waiver of

immunity from suit if there is no waiver of immunity in the first place. We have

already held that the TTCA does not waive the City’s immunity from suit for Madern’s

negligence claim. Given that disposition, we need not reach Madern’s argument under

his sixth point of error regarding the propriety of the trial court’s ruling under section

101.056.

Conclusion

We affirm the judgment in all respects except to the extent that it dismissed

Madern’s declaratory-judgment action, to which extent we reverse the judgment. We

remand the cause.

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.