the City of Houston v. Kelley Street Associates, LLC ( 2015 )

ACCEPTED
14-14-00818-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
2/2/2015 11:46:26 AM
CHRISTOPHER PRINE
CLERK
NO. 14-14-00818-CV
_____________________________
FILED IN
IN THE COURT OF APPEALS 14th COURT OF APPEALS
FOR THE FOURTEENTH JUDICIAL DISTRICTHOUSTON, TEXAS
2/2/2015 11:46:26 AM
AT HOUSTON, TEXAS
CHRISTOPHER A. PRINE
_____________________________ Clerk
CITY OF HOUSTON,
APPELLANT,
VS.
KELLEY STREET ASSOCIATES, LLC,
APPELLEE.
_____________________________
On Appeal from the 295th Judicial District Court of Harris County, Texas
The Honorable Caroline E. Baker, Presiding
Cause No. 2013-36796
________________________________________________________________________
APPELLEE’S BRIEF
________________________________________________________________________
H. Miles Cohn
Texas State Bar No. 04509600
mcohn@craincaton.com
Michelle V. Friery
Texas State Bar No. 24040934
mfriery@craincaton.com
CRAIN, CATON & JAMES, P.C.
1401 McKinney, Suite 1700
Houston, Texas 77010
Telephone: (713) 752-8668
Facsimile: (713) 685-1921
COUNSEL FOR APPELLANT
KELLEY STREET ASSOCIATES, LLC
February 2, 2015
ORAL ARGUMENT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
The following is a complete list of names and addresses of all parties to the trial
court proceeding and their counsel:
Plaintiff/Appellee: Kelley Street Associates, LLC
Represented by: H. Miles Cohn
Michelle V. Friery
CRAIN, CATON & JAMES, P.C.
1401 McKinney St., 17th Floor
Houston, Texas 77010
Telephone (713) 752-8668
Facsimile (713) 685-1921
Email: mcohn@craincaton.com
Email: mfriery@craincaton.com
Defendant/Appellant: City of Houston
Represented by: Robert W. Higgason (appellate counsel)
Senior Assistant City Attorney
Brian A. Amis (trial counsel)
Senior Assistant City Attorney
CITY OF HOUSTON LEGAL DEPARTMENT
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone (832) 393-6481
Facsimile: (832) 393-6259
Email: robert.higgason@houstontx.gov
Email: brian.amis@houstontx.gov
Trial Court Judge: Hon. Caroline E. Baker
Presiding Judge of the 295th Judicial District
Court of Harris County, Texas
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUE PRESENTED FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The district court properly denied the City’s Plea to the Jurisdiction
because there is a nexus between the City’s operation of the backhoe and
the resulting property damage.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Section 101.021(a) and the required “nexus”. . . . . . . . . . . . . . . . . . . . . . . . . 5
B. The City’s burden on a plea to the jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . 6
C. There is a sufficient nexus between the City’s use of a
backhoe and the resulting damage.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii
INDEX OF AUTHORITIES
Cases
Austin ISD v. Gutierrez, 54 S.W.3d 860 (Tex. App.-Austin 2001, pet. denied).. . . . . . . . 6
Breckenridge Indep. Sch. Dist. v. Valdez, 211 S.W.3d 402
(Tex. App.–Eastland 2006, no pet.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003). . . . . . . . . . . . . . . 5, 9
Dallas, Garland & Northeastern Railroad v. Hunt County, 195 S.W.3d
818 (Tex. App.–Dallas 2006, no pet.) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Gill v. Tex. Dep’t of Criminal Justice, 3 S.W.3d 576
(Tex. App.–Houston [1st Dist.] 1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Hunt County v. Dallas, Garland and Northeastern Railroad, 2004 WL
1178609 (Tex.App. – Dallas 2004, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001). . . . . . . . . . . . . . 13
LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49 (Tex. 1992). . . . . . . . . . . . . . . . . . 5, 9
San Antonio Water System v. Overby, 429 S.W.3d 716
(Tex. App.–San Antonio 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 618 (Tex. 2004).. . . . . . . . . . . 6
Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . 12
Other Authorities
TEX.CIV.PRAC.&REM.CODE §101.021(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
70 TEX.JR.3D Tort Liability §10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iii
NO. 14-14-00818-CV
_____________________________
IN THE COURT OF APPEALS
FOR THE FOURTEENTH JUDICIAL DISTRICT
AT HOUSTON, TEXAS
_____________________________
CITY OF HOUSTON,
APPELLANT,
VS.
KELLEY STREET ASSOCIATES, LLC,
APPELLEE.
_____________________________
On Appeal from the 295th Judicial District Court of Harris County, Texas
The Honorable Caroline E. Baker, Presiding
Cause No. 2013-36796
________________________________________________________________________
APPELLEE’S BRIEF
________________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellee Kelley Street Associates, LLC (“Kelley Street Associates”) files this
Appellee’s Brief. For the reasons set forth herein, the district court’s order denying the
City of Houston’s plea to the jurisdiction should be affirmed, and the case should be
remanded for trial on the merits.
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STATEMENT REGARDING ORAL ARGUMENT
Appellee believes that oral argument would be helpful to the Court’s consideration
of the issue raised in this appeal. Therefore, Appellee requests the opportunity to present
oral argument.
ISSUE PRESENTED
The City of Houston used motor-driven equipment (a backhoe) in the
repair of an underground water main adjacent to an office building owned
by Kelley Street Associates. The backhoe dislodged debris that entered a
pipe that was opened during the repairs; the debris flowed into the building,
causing substantial damages. Is the claim to recover such damages within
the waiver of sovereign immunity in Section 101.021(1) of the Texas Tort
Claims Act, TEX.CIV.PRAC.&REM.CODE §101.021(1)(A), which applies to
“property damage [that] arises from the operation or use of a motor-driven
vehicle or motor-driven equipment”?
STATEMENT OF FACTS
Kelley Street Associates owns a commercial office building located at 5825 Kelley
Street in Houston, Texas. C.R. 5. On October 2, 2012, personnel of the Public Works
and Engineering Department of the City of Houston (the “City”) undertook repairs to a
water meter and valves for a water main located under Kelley Street in front of the
building. Id.
In the course of making these repairs, City personnel used a motor-driven vehicle
and motor-driven equipment, specifically a backhoe. Id. The backhoe was used to break
up and remove the concrete above the water main/meter. C.R. 123-24, 135. The repair
could not have been performed but for the use of the backhoe. C.R. 123. This process
dislodged dirt and rocks. C.R. 142-43. Hand tools were also used in the excavation and
repair. C.R. 88-89, 125. In order to repair the water main/meter, an old part was
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removed, opening the pipe and exposing it to the surrounding rocks, dirt and other debris.
C.R. 125-26. The debris that was dislodged by the backhoe could then enter the pipe.
C.R. 126.
The debris was in fact dislodged into the domestic water main and traveled into the
plumbing system of the building owned by Kelley Street Associates. C.R. 5. The debris
damaged the flush valves located in the building’s toilets, causing the holding tanks in the
building’s septic system to fill rapidly and resulting in water coming up through the floor
drains located throughout the building. Id.; C.R. 115, 117. The damage to the building
was immediate and substantial. C.R. 5.
Kelley Street Associates initiated this lawsuit against the City and United Fire and
Casualty Company (“United Fire”) on June 21, 2013. C.R. 4. As against the City, Kelley
Street Associates sought to recover damages resulting from the negligent operation of a
motor-driven vehicle and motor-driven equipment; as against United Fire, Kelley Street
Associates sought to recover on an insurance policy. C.R. 5-7.1 Kelley Street Associates
alleged that City personnel acting within the scope of their employment were negligent in
the operation of a motor-driven vehicle and motor-driven equipment, namely the
backhoe, in that the backhoe was operated in a manner that failed to prevent the
introduction of debris into the water main, and that this negligent operation proximately
caused the damages to the building. C.R. 5-6.
1
Kelley Street Associates and United Fire filed cross motions for summary judgment with regard
to coverage under the insurance policy, and judgment was entered in favor of United Fire. The
case was severed, and Kelley Street Associates has appealed the judgment in a separate appeal
pending under Case No. 14-14-00755.
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On March 21, 2014, the City filed a Plea to the Jurisdiction. C.R. 33. Kelley
Street Associates responded, C.R. 110, and on October 3, 2014, the trial court denied the
Plea to the Jurisdiction. C.R. 153. The City then filed this interlocutory appeal; the
lawsuit has been abated pending the outcome of this appeal.
SUMMARY OF THE ARGUMENT
The City does not dispute that a backhoe is a “motor-driven vehicle” or “motor-
driven equipment” within the meaning of TEX.CIV.PRAC.&REM.CODE §101.021(1)(A).
Nor does the City deny that a backhoe was used in the excavation and repair that
damaged the building owned by Kelley Street Associates. Rather, the City asserts that it
is immune from suit because a nexus does not exist between the use of the backhoe and
the resulting damages.
The trial court properly concluded that there is a sufficient nexus between the use
of a backhoe and the damages in this case. The backhoe did not merely deliver the City
personnel to the site or otherwise “set the stage” for an accident, rather it was an integral
part of the City’s negligent repairs that caused the accident. The City’s immunity is
therefore waived under Section 101.021(1), and the trial court properly denied the City’s
Plea to the Jurisdiction.
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ARGUMENT
The district court properly denied the City’s Plea to the Jurisdiction
because there is a nexus between the City’s operation of the backhoe
and the resulting property damage.
A. Section 101.021(a) and the required “nexus”
The City’s immunity from lawsuits is waived in this case pursuant to Section
101.021(1) of the Texas Tort Claims Act, which states in full:
A governmental unit in the state is liable for:
(1) 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; and
(B) the employee would be personally liable to the claimant
according to Texas law.
TEX.CIV.PRAC.&REM.CODE §101.021(1).
As the City correctly notes, this statute does not apply merely because a motor-
driven vehicle or equipment appears somewhere in the background or circumstances of an
accident. Rather, there must be a “nexus” between the operation or use of the vehicle or
equipment and the resulting damages. LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d
49, 51 (Tex. 1992). More specifically, the operation or use of the vehicle or equipment
must have been a cause of the injury. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d
540, 543 (Tex. 2003); Breckenridge Indep. Sch. Dist. v. Valdez, 211 S.W.3d 402, 407
(Tex. App.–Eastland 2006, no pet.).
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B. The City’s burden on a plea to the jurisdiction
The City’s Plea to the Jurisdiction did not invoke the merits of this case. At this
early stage of the case, the plaintiff need not prove that the City actually used a motor-
driven vehicle or equipment and that such use actually caused its damages. Rather, when
challenging jurisdiction the burden is on the City to prove as a matter of law that the
statutory exception to sovereign immunity does not apply. See Austin ISD v. Gutierrez,
54 S.W.3d 860, 863 (Tex. App.-Austin 2001, pet. denied).
In considering a plea to the jurisdiction, a court must first determine whether the
allegations of the petition affirmatively “demonstrate or negate the court’s jurisdiction.”
City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). If the pleading does neither,
then the court may consider evidence submitted by the parties on jurisdictional facts. In
doing so, the court must “‘take as true all evidence favorable to the nonmovant’ and
‘indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.’”
Id., citing Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 618, 628 (Tex. 2004).
In this case, the City did not assert that Kelley Street Associates’ pleadings negated
the applicability of Section §101.021(1) and thus established the City’s immunity as a
matter of law. Rather, the City introduced evidence – as did Kelley Street Associates –
regarding the City’s use of a backhoe in the repairs that damages Kelley Street
Associates’ building. The issue here, therefore, is whether the evidence, construed most
favorably to Kelley Street Associates, negates the applicability of Section 101.021(1) as a
matter of law.
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C. There is a sufficient nexus between the City’s use of a backhoe and
the resulting damage.
The City asserts that the backhoe was not used for the excavation and repair of the
water line itself – that the backhoe was instead used to remove the concrete surface and
that the work on the open line was done by hand tools. Appellant’s Brief at 8, 10-12.
However, removing the concrete was a necessary part of the repair – the water main could
not have been reached without excavating the location. C.R. 123-24. Perhaps most
importantly, the backhoe dislodged the dirt, rocks and other debris that could then enter
the water main. C.R. 143, 115, 117.
The first step in the repair was to use the backhoe to break up and remove the
concrete above the water main/meter. C.R. 123-24, 135. This process dislodged the
debris. C.R. 142-43. When the water main was opened to finish the repair, the debris
entered the pipe. C.R. 125-26. The repair could not have been performed but for the use
of the backhoe. C.R. 123. Thus, the backhoe dislodged or contributed to the dislodging
of the debris that entered and damaged the plumbing system of the building owned by
Kelley Street Associates.
John Zenn, one of the City employees who made the repairs on Kelley Street,
acknowledged that the debris created by the backhoe could have fallen into the pipe:
Q: So in that area, just like in the pictures, I suppose if -- if there’s concrete or
dirt or rocks, that the -- that have been dislodged by the backhoe and haven't
been picked up, they’ll just be sitting somewhere on the ground or on that
surface?
A: Yeah, I guess.
Q: Okay. And so it’s possible --
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A: It’s possible.
Q: -- that rocks or debris could then fall into the pipe, into the hole?
A: Yes, yes.
C.R. 126. Jarrad Newsome, another City employee who made the repairs on Kelley
Street, also testified:
Q: Do you remember whether in the process of taking the concrete off the top
that there would be, I assume, dirt or –
A: Um-hum.
Q: -- pebbles or rocks under the concrete that’s dislodged?
A: Well, yes, sir. I mean, that will happen. But there’s dirt and rocks
everywhere, but –
...
Q: There’s dirt and rocks because it’s in the ground, right?
A: Yeah, exactly.
Q: But when you use the backhoe and you pull off concrete, you can dislodge
additional dirt and rocks?
A: Yes, sir. Yes, sir, you can.
Q: And as you said there was an open pipe. And I -- that’s the pipe that would
leave -- lead into the wheel valve that’s in Exhibit 2?
A: Yes, sir.
...
Q: But in order to do the repair, you would dig down and open up the pipe?
A: Yes, sir.
-8-
Q: Take the wheel valve off?
A: Right.
Q: Is that correct? Because you’ve got to repair it?
A: Yes, sir. But before you actually do the repair, you would have to move the
sidewalk....
C.R. 142-43. Thus, both City employees acknowledged that the use of the backhoe
dislodged or contributed to the dislodging of the debris that entered the pipe. C.R. 126,
142-43. The undisputed evidence is that the debris then damaged the plumbing system of
the building owned by Kelley Street Associates, flooding it. C.R. 115, 117.
The City cites five cases in support of its argument that the facts give rise to no
causal nexus in this case. Appellant’s Brief at 13-19. Three of those cases involve
vehicles and stand for a much narrower proposition. See Dallas Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 541 (Tex. 2003) (passenger was assaulted at a bus stop by
another passenger after both had been dropped off); Gill v. Tex. Dep’t of Criminal
Justice, 3 S.W.3d 576, 578 (Tex. App.–Houston [1st Dist.] 1999, no pet.) (inmate was
standing on the bed of a truck when a tree stump being loaded onto the truck rolled and
injured his leg); LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 50-51 (Tex. 1992)
(student hit her head while closing the back door of a school bus). In each of these cases,
the vehicle is “only the setting for the injury.” LeLeaux, 835 S.W.2d at 51-52 (vehicle
was parked); see also Whitley, 104 S.W.3d at 541-42 (vehicle had left prior to the
assault); Gill, 3 S.W.3d at 581-82 (vehicle was parked). But in this case, the backhoe is
not merely a “setting.” Nor did the backhoe merely bring the plaintiff to a place where he
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was injured, nor was it merely a place at which an injury occurred. The work of the
backhoe, in digging and dislodging debris, was a necessary part of the negligent repair
and directly responsible for at least some of the debris that was present during the repair.
C.R. 126, 142-43.
San Antonio Water System v. Overby, 429 S.W.3d 716, 722 (Tex. App.–San
Antonio 2014, no pet.), also cited by the City, stands for no broader rule. In Overby, the
plaintiffs complained that the city’s water system used motor-driven equipment to
maintain the sewer system including an alley adjoining their property and that the alley
collected rainwater and sewage that flooded their home. However, the Overby plaintiffs
did not attempt to explain how any particular use of a vehicle or equipment caused the
flooding; rather, their evidence showed only that “motor driven equipment” was used “to
maintain the alley” and that “the alley collected rainwater which sometimes floods [the
plaintiffs’] yard.” Id. at 722. On these vague allegations, the Overby court held that
Section 101.021(1) did not apply because the use of the motor-driven equipment did not
damage the property; it merely created a condition that caused injury. Id. In this case,
by contrast, the use of a backhoe was an integral part of the repair at issue and the very
source of at least some of the debris present when the water main was opened.
Dallas, Garland & Northeastern Railroad v. Hunt County, 195 S.W.3d 818, 819
(Tex. App.–Dallas 2006, no pet.), also cited by the City, involved a train derailment. The
plaintiff railroad asserted that a county work crew had used a motor-driven vehicle or
equipment in performing road maintenance on a county road where it crossed a railroad
track; the tracks were covered over with road-base material, causing a train to derail, and
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the railroad sought property damages. Id. In an earlier appeal, the appellate court
affirmed the trial court’s denial of the plea to the jurisdiction and remanded the case for
further proceedings because “the [r]ailroad’s pleadings were broad enough to include a
claim for damages actually caused by the use of the motor-driven vehicle and
equipment.” Hunt County v. Dallas, Garland and Northeastern Railroad, 2004 WL
1178609 at *2-3 (Tex.App. – Dallas 2004, no pet.). In the subsequent appeal, the Hunt
County court affirmed summary judgment against the plaintiff, holding that there was no
evidence of damage caused by the vehicle’s placement of road-base material as opposed
to the derailment itself. 195 S.W.3d at 822-23.
Hunt County can be read to support the City’s position, in that the road-base
material placed with motor-driven equipment (like the debris dislodged by the City’s
backhoe) was a cause of the accident but nevertheless the court held there was an
insufficient nexus between the equipment and the derailment. However, there is an
important distinction: the placement of material on the railroad tracks and the subsequent
derailment were two separate events, one occurring at some time before the other. In this
case, by contrast, the backhoe was used in the course of the very same negligent repairs
that caused the accident. On October 2, 2012, the City undertook the repair on Kelley
Street, the backhoe was used, and the debris damaged the plumbing system of the
building owned by Kelley Street Associates. C.R. 49-51, 115, 117. It is not reasonable to
parcel out the repair into separate stages and pretend that one key part of the repair, in
which motor-drive equipment dislodged debris, is something separate and apart from the
work that allowed debris to enter the water main.
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Moreover, the relevant facts related in the two Hunt County opinions are so sparse
that it is difficult to fully understand their reasoning. Neither opinion describes the
“motorized equipment” that was used to “spread road-base material” on the railroad
tracks, nor do the opinions describe the manner in which the equipment was alleged to
have been negligently used.
If in fact material was placed on the railroad tracks due to the negligent use of
motorized equipment, and if that material later caused the derailment, then Hunt County
was wrongly decided. In other cases discussing the nature of the “cause” that gives rise
to a sufficient “nexus,” the comment is made that the use of motor-driven vehicles or
equipment cannot merely “set the stage” for the later accident. That explanation makes
sense based on the distinction between “cause in fact,” often referred to as a “but for”
cause, and cause that is “foreseeable.” See, e.g., Travis v. City of Mesquite, 830 S.W.2d
94, 98 (Tex. 1992); see generally 70 TEX.JR.3D Tort Liability §10 (Relationship between
Wrongful Act and Injury – Proximate and Producing Cause), and cases cited therein. If a
bus driver leaves a passenger off at a particular stop where he is beaten by another
passenger, as in Whitley, supra, at 541, operation of the bus is a cause in fact because the
accident would not have occurred but for the bus ride, i.e., the bus “set the stage;”
nonetheless, operation of the bus is not a “proximate cause” since it is not reasonably
foreseeable that driving the bus to a particular stop will lead to a beating. But placing
materials to a 4" depth over a railroad track is more than merely “setting the stage.” If
motor-driven equipment was negligently used to place that material, and if it should have
been foreseeable that the material would cause an accident and it did in fact do so, then
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the facts of Hunt County should have fit well within Section 101.021(1).
Finally, it should be noted that there may be more than one proximate cause of an
accident or injury. See, e.g., Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778,
784 (Tex. 2001). Section 101.021(1) requires only that the damage “arise from” the
operation or use of the motor vehicle or equipment. Courts have construed “arise from”
to mean a nexus between operation of the vehicle or equipment and the resulting damage
and have said that this “nexus” requires that the operation “cause” the damage. However,
the statute does not state, and no court has held, that the operation of the vehicle or
equipment must be the sole cause of the damage. If the use of the backhoe to excavate
and dislodge debris in this case was not the sole cause of damage, it certainly was a
proximate cause. The district court thus properly denied the City’s Plea to the
Jurisdiction.
CONCLUSION AND PRAYER
For these reasons, Section 101.021(1) applies to the facts of this case and the
district court properly denied the City’s Plea to the Jurisdiction. Appellee Kelley Street
Associates, LLC respectfully prays that this Court affirm the trial court’s order denying
the Plea to the Jurisdiction and remand the case to the trial court for a trial on the merits.
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Respectfully submitted,
CRAIN, CATON & JAMES, P.C.
By: /s/H.Miles Cohn
H. Miles Cohn
State Bar No. 04509600
Michelle V. Friery
State Bar No. 24040934
CRAIN, CATON & JAMES, P.C.
1401 McKinney Street, Suite 1700
Houston, Texas 77010
Telephone: (713) 752-8668
Facsimile: (713) 658-1921
Email: mcohn@craincaton.com
COUNSEL FOR APPELLEE
KELLEY STREET ASSOCIATES, LLC
CERTIFICATE OF SERVICE
I hereby certify that on this the 2nd day of February, 2015 a true and correct copy
of the foregoing Appellee’s Brief was served, by EFSP Efile.txcourts.gov electronic
service, on all counsel of record:
Robert W. Higgason
Senior Assistant City Attorney
City of Houston Legal Department
900 Bagby, 4th Floor
Houston, Texas 77002
Telephone (832) 393-6481
Facsimile: (832) 393-6259
Email: robert.higgason@houstontx.gov
Counsel for Appellant
/s/H. Miles Cohn
H. Miles Cohn
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CERTIFICATE OF COMPLIANCE
This document contains 3,064 words. This word count was created by highlighting
portions of the WordPerfect document and performing a word count on such highlighted
portions. This word count does not include words excluded from the count by Rule
9.4(i)(1), such as caption, identity of parties and counsel, table of contents, index of
authorities, statement of issues presented, signature, certificate of service, or certificate of
compliance.
/s/H.Miles Cohn
H. Miles Cohn
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