Jennifer Cooper and Theresa Turner v. City of Texas City ( 2004 )

Affirmed and Memorandum Opinion filed November 9, 2004

Affirmed and Memorandum Opinion filed November 9, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01285-CV

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JENNIFER COOPER AND THERESA TURNER, Appellants

V.

CITY OF TEXAS CITY, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 01CV0966

M E M O R A N D U M   O P I N I O N

Appellants, Jennifer Cooper, individually and as the surviving parent of Caroline Cooper and Alexis Cooper, and Theresa Turner, appeal the dismissal of their suit against appellee, the City of Texas City.  In three issues, appellants contend the trial court erred in (1) granting the City=s special exceptions and dismissing without allowing an opportunity to amend, (2) granting the City=s plea to the jurisdiction, and (3) granting the City=s motion for summary judgment.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

On April 21, 2001, Theresa Turner was babysitting Jennifer Cooper=s three young daughters: Ashleigh, Caroline, and Alexis.  Turner took the girls to the Texas City Dike.  Turner and the girls attempted to wade from the dike to Mosquito Island, a sandbar located several hundred feet from the dike.  The girls, who could not swim, were holding plastic pool floats.  As they were about halfway to Mosquito Island, the wake from a passing boat swept them into deeper water.  Alexis lost her pool float and began drifting away.  While Turner went to rescue her, Ashleigh and Caroline lost their pool floats as well.  Realizing she could not save the girls by herself, Turner swam back to shore to call for help.  Ashleigh was rescued by a fisherman, but Caroline and Alexis drowned before help could reach them.

Cooper sued the City for wrongful death.  Turner also sued the City; however, her pleadings are not part of the appellate record, so we do not know the nature of her claims.^[1]  The trial court consolidated Turner=s suit with Cooper=s suit.  The City filed a plea to the jurisdiction, a motion for summary judgment, and special exceptions as to all claims.  The trial court granted the City=s plea to the jurisdiction or motion for summary judgment and dismissed Cooper=s and Turner=s claims.^[2]

Discussion

In three issues, appellants contend the trial court erred in (1) granting the City=s special exceptions and dismissing without allowing opportunity to amend, (2) granting the City=s plea to the jurisdiction, and (3) granting the City=s motion for summary judgment. Because appellant=s third issue is dispositive, we will address only that issue.

The City moved for summary judgment on the grounds that (1) sovereign immunity bars all of appellants= claims against the City, (2) the Recreational Use Act^[3] establishes the liability standard applicable to this case, and under that standard, the City is not liable, and (3) no evidence exists that the injuries complained of occurred on property owned or possessed by the City.  On appeal, appellants argue that summary judgment was improper because (1) the City did not conclusively establish it was entitled to sovereign immunity, and (2) the City did not conclusively establish it was entitled to protection under the Recreational Use Act.  However, appellants do not address the City=s claim that it does not own or possess the property on which the injuries occurred.^[4]

When there are multiple grounds for summary judgment, and the order does not specify the ground on which summary judgment was granted, the appellant must attack all grounds on appeal. See Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)).  If the appellant fails to attack each ground upon which the judgment may have been granted, we must uphold the summary judgment.  Id.; see Fields v. City of Texas City, 864 S.W.2d 66, 68 (Tex. App.CHouston [14th Dist.] 1993, writ denied) (ABecause summary judgment may have been granted on a ground not challenged on appeal, i.e., consent, we may affirm the summary judgment on that basis alone.@). Because appellants do not attack a ground on which the trial court could have granted summary judgment, we must uphold the summary judgment.  See Lewis, 979 S.W.2d at 833; Fields, 864 S.W.2d at 68.  We overrule appellants= third issue.

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 9, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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^[1]  In its brief, the City states that Turner claimed Aunspecified injuries during her attempt to rescue the children.@  At the hearing on the City=s plea to the jurisdiction, motion for summary judgment, and special exceptions, the City referred to Turner=s claims as Abystander@ claims.

^[2]  The trial court=s judgment does not state the basis on which it was granted.  The judgment states only that AThe City of Texas City=s Renewed Plea to the Jurisdiction or, Alternatively, for Summary Judgment is granted.  Therefore, this action is dismissed with prejudice.@  Further, the final judgment does not mention the special exceptions.

^[3]  Tex. Civ. Prac. & Rem. Code Ann. '' 75.001B.004 (Vernon 1997).

^[4]  The City asserted common grounds for summary judgment with respect to both Cooper=s and Turner=s claims.  The City also asserted an additional ground for summary judgment with respect to Turner=s claims only. However, Turner did not file a brief on appeal, but, instead, adopted Cooper=s brief.  Thus, Turner also does not address the ground for dismissal unique to her claims.