Valerie Hall, Individually and A/N/F of J.K., a Minor and Christopher Hall v. City of Jersey Village ( 2023 )

Opinion issued June 8, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00452-CV
———————————
VALERIE HALL, INDIVIDUALLY AND A/N/F OF J.K., A MINOR, AND
CHRISTOPHER HALL, Appellants
V.
CITY OF JERSEY VILLAGE, Appellee1
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2022-19671
1
The underlying case is Valerie Hall, Individually and as next friend of J.K., a
minor, and Christopher Hall v. Backyard Investments, Ltd d/b/a The Backyard
Grill, Terry R. Thomas, and City of Jersey Village, No. 2022-19671, in the 80th
District Court of Harris County, Texas. In this interlocutory appeal, the only
appellee is the City of Jersey Village.
MEMORANDUM OPINION
Appellant Valerie Hall was injured when a golf ball allegedly hit by Terry
Thomas struck her forehead while she was working at a restaurant on the premises
of a golf course. Hall and her husband sued the restaurant, Thomas, and the City of
Jersey Village (“the City”), which owns the golf course, for negligence. The City
filed a plea to the jurisdiction, asserting governmental immunity, which the trial
court granted.
On appeal, the appellants argue that the trial court erred by granting the plea
to the jurisdiction because the City did not conclusively prove that their claims
were barred by sovereign immunity and because the court should have afforded
them the opportunity to replead and to conduct discovery regarding jurisdictional
facts.
Because we agree that the appellants are entitled to an opportunity to replead
and that the City did not conclusively show that the trial court lacks jurisdiction,
we reverse the trial court’s order granting the City’s plea to the jurisdiction, and we
remand this case to the trial court for further proceedings in accordance with this
opinion.
Background
Valerie Hall worked as a manager of The Backyard Grill, a snack bar and
restaurant on the premises of the Jersey Meadows Golf Course, which is owned by
2
the City of Jersey Village. Hall alleged that while she was “stocking and/or
operating the rolling beverage cart . . . an errant golf ball hit by . . . Terry R.
Thomas . . . struck her directly in her forehead.” Hall further alleged that Thomas
“was either acting within the course and scope of his employment with Jersey
Meadows Golf Course involving his operation and use of a motorized golf cart and
golf clubs or was acting on his own at the time of the injury.”
Hall sued Backyard Investments, Ltd d/b/a The Backyard Grill, Thomas, and
the City for negligence.2 Hall pleaded that the trial court had jurisdiction under the
Texas Tort Claims Act because: “This claim, as set out more fully below, involves
personal injury caused by a condition or use of tangible personal or real property if
the governmental unit would, were it a private person, be liable to the claimant
according to Texas law.” Hall further alleged that no exception to the waiver of
2
Hall alleged that The Backyard Grill was negligent in the following ways:
1. Failing to provide a safe workplace;
2. Failing to provide adequate safety policies and practices;
3. Failing to follow adequate safety policies and practices;
4. Failing to provide proper assistance and training;
5. Failing to provide proper safety equipment;
6. Failing to provide properly trained supervisors and/or directors;
7. Requiring Plaintiff to perform tasks under conditions as stated above; and
8. Negligence in general.
Hall alleged that Thomas was negligent in the following ways:
1. Failing to exercise caution;
2. Failing to provide warning; and
3. Negligence in general.
3
immunity applied and that she was not required to give the City written notice of
her claim because the City had actual notice through its golf course employees and
the significant events report that was created shortly after the incident.
Hall alleged that the City was negligent in the following ways:
1. Failing to properly maintain said property in a reasonable
manner;
2. Failing to properly maintain said property in a safe manner;
3. Failing to exercise caution;
4. Failing to provide [a] warning;
5. Maintaining said property in a reckless and careless manner;
and
6. Negligence in general.
Hall sought compensatory damages for past and future medical expenses,
loss of earning capacity, pain, impairment, and disfigurement. Her husband and
son sought loss of consortium damages and damages for lost household services.
The City answered with a general denial and assertions of governmental
immunity, contributory negligence, and comparative fault. The City
simultaneously filed its plea to the jurisdiction. The City argued that the appellants’
factual allegations do not state a plausible premises liability claim under the Tort
Claims Act3 and that the jurisdictional evidence conclusively proves that Thomas
was not acting the course and scope of his employment with the City at the time of
Hall’s alleged injury. As jurisdictional evidence, the City provided a declaration
3
The City provided no further argument about this asserted ground for dismissal in
its plea to the jurisdiction.
4
from Matt Jones, the Head of Golf Operations, along with several pages of golf
course employee work schedules and Thomas’s time entry history. Jones declared:
On May 1, 2020, the date of the accident made the basis of this
lawsuit, Terry Thomas was not playing golf in his capacity as a city
employee when his errant golf shot hit Valerie Hall. He was not
scheduled to work that day (May 1, 2020) and was not compensated
for any time that day.
The time entry history shows a start date of May 1, 2020, and an end date of
May 30, 2020, and there is no time entry for May 1, 2020. The time entry history
also shows Thomas’s position as “cart attendant” and that he is a “regular hourly”
employee. Based on this evidence, the City argued that Thomas was not within the
course and scope of his employment when he made the errant golf shot that
allegedly hit Hall, and therefore the negligence of Thomas, if any, could not be
attributed to the City.
In response, the appellants contended that the City’s argument about their
alleged premises liability claim is an assertion of pleading insufficiency, for which
they were entitled to an opportunity to replead. The appellants also argued that the
City failed to produce evidence that conclusively proved that Thomas was not
acting within the course and scope of his employment at the time of the incident.
The appellants called the Jones declaration conclusory and asserted that because
the City’s evidence did not supply the facts relevant to a course-and-scope inquiry,
the City did not carry its burden on the plea to the jurisdiction.
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Finally, the appellants noted that they had not yet had an opportunity to
conduct discovery. The appellants’ original petition was filed March 31, 2022, and
the City’s plea to the jurisdiction was filed April 29, 2022, with its original answer.
The plea to the jurisdiction was set for submission without an oral hearing on May
16, 2022. The appellants insisted that this was premature: Thomas had not yet
answered or made an appearance in the case, and the appellants had not had an
opportunity to conduct discovery. The appellants asked for an opportunity to
conduct limited jurisdictional discovery, including deposing Thomas about the
details of his employment by and duties as an employee of the City of Jersey
Village.
The City filed a reply arguing that the appellants’ original petition was
incurably defective because “no amount of re-pleading can turn Mr. Thomas’s golf
swing into a premises defect,” and inviting the trial court to “take judicial notice of
the fact that an errantly hit golf ball is not a premises defect.” The City also
reurged that it had conclusively proved that Thomas was not a City employee at
the time of the incident. As to the appellants’ request to conduct discovery on
jurisdictional facts, the City asserted that they were “not entitled to do unlimited
discovery in anticipation of the Court’s ruling on the face of the pleadings.”
The appellants filed a sur-reply brief accusing the City of “blatant
misrepresentation” and again asserting that it sought limited discovery into the
6
details of Thomas’s employment that form the basis for the City’s jurisdictional
argument.
The trial court granted the plea to the jurisdiction, and Hall and her husband
appealed.
Analysis
On appeal, the appellants raise three issues challenging the trial court’s order
granting the plea to the jurisdiction. First, the appellants maintain that because the
City challenged only the sufficiency of the premises-liability pleading, the trial
court should have given them an opportunity to replead before dismissing their
claims with prejudice. Second, the appellants maintain that the City did not
conclusively prove Thomas was not in the course and scope of his employment
when he hit the golf ball, and therefore the City did not conclusively prove that the
appellants’ negligent activity claim was barred by governmental immunity. Third,
the appellants assert that the trial court abused its discretion by implicitly denying
the appellants an opportunity to conduct limited discovery regarding the
jurisdictional facts argued by the City.
I. Plea to the jurisdiction
A party may challenge a trial court’s subject matter jurisdiction by filing a
plea to the jurisdiction, which we review de novo. Univ. of Tex. M.D. Anderson
Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019) (citing Tex. Dep’t of
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Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). Ordinarily a plea
to the jurisdiction challenges the plaintiff’s pleadings, asserting that the alleged
facts do not affirmatively demonstrate the court’s jurisdiction. See Mission Consol.
Indep. Sch. Dist. v. Garcia (“Mission Consol. II”), 372 S.W.3d 629, 635 (Tex.
2012). “When a plea to the jurisdiction challenges the pleadings, we determine if
the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction
to hear the cause.” Miranda, 133 S.W.3d at 226. In doing so, we “construe the
pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent.” Id. “If
the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction but do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be
afforded the opportunity to amend.” Id. at 226–27. But if the pleadings
“affirmatively negate the existence of jurisdiction,” then the court may grant the
plea to the jurisdiction without giving the plaintiffs an opportunity to amend. Id. at
227.
A plea to the jurisdiction may also challenge the existence of jurisdictional
facts or implicate the merits of the plaintiff’s cause of action. See Alamo Heights
Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770–71 (Tex. 2018). When a plea to
the jurisdiction challenges the existence of jurisdictional facts, the trial court must
“consider relevant evidence submitted by the parties” as necessary to resolve the
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jurisdictional issues raised. Miranda, 133 S.W.3d at 227. In this situation, the trial
court has discretion to make the jurisdictional determination at a preliminary
hearing or to wait until a fuller development of the case, “mindful that that this
determination must be made as soon as practicable.” Id. In some cases, “[s]ome
tailored or limited discovery may be appropriate when an evidence-based
jurisdiction challenge is asserted.” In re Hoa Hao Buddhist Congregational
Church Tex. Chapter, No. 01-14-00059-CV, 2014 WL 7335188, at *5 (Tex.
App.—Houston [1st Dist.] Dec. 23, 2014, no pet.) (mem. op.); see, e.g., In re
Congregation B’Nai Zion of El Paso, 657 S.W.3d 578, 584–85 (Tex. App.—El
Paso 2022, no pet.) (noting that jurisdictional discovery sought for purpose of
responding to plea to jurisdiction must be limited to allow court to determine plea
as soon as practicable); Diocese of Galveston–Houston v. Stone, 892 S.W.2d 169,
178 (Tex. App.—Houston [14th Dist.] 1994, orig. proceeding) (concluding that
“discovery limited to ascertaining facts related to the jurisdictional plea” was
proper in suit asserting claims arising from termination of teacher’s employment
with diocese).
A trial court’s review of a plea to the jurisdiction that challenges
jurisdictional facts “mirrors that of a traditional summary judgment motion.”
Mission Consol. II, 372 S.W.3d at 635. We take as true all evidence favorable to
the nonmovant, and we indulge every reasonable inference and resolve any doubts
9
in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. Initially, a plaintiff has the
burden to affirmatively demonstrate the trial court’s jurisdiction, which includes
the burden of establishing a waiver of a governmental entity’s immunity from suit.
Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). The
defendant challenging jurisdiction then “carries the burden to meet the summary
judgment proof standard for its assertion that the trial court lacks jurisdiction.”
Mission Consol. II, 372 S.W.3d at 635. If the defendant meets this burden, then, as
in summary-judgment practice, the burden shifts to the plaintiff to show that a
disputed material fact exists regarding the jurisdictional issue. Id. If the defendant
fails to carry his burden or a fact issue exists, the trial court should deny the plea.
See id. But if the relevant evidence is undisputed or the plaintiff fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea as a matter of
law. Id.
II. Governmental immunity
Governmental immunity, like sovereign immunity from which it is derived,
exists to protect political subdivisions, such as cities, from suit and liability for
monetary damages. Mission Consol. Indep. Sch. Dist. v. Garcia (Mission Consol.
I), 253 S.W.3d 653, 655 & n.2 (Tex. 2008). Governmental immunity deprives a
trial court of subject matter jurisdiction over lawsuits in which the State’s political
subdivisions have been sued unless immunity is waived by the Legislature. Dohlen
10
v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022). “We interpret statutory
waivers of immunity narrowly, as the Legislature’s intent to waive immunity must
be clear and unambiguous.” See Mission Consol. I, 253 S.W.3d at 655 (citing TEX.
GOV’T CODE § 311.034).
The Legislature has expressly waived immunity to the extent provided by
the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109
(TTCA); Mission Consol. I, 253 S.W.3d at 655. The TTCA generally waives
governmental immunity 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; and
(2) personal injury and death so caused by a condition or use of
tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant
according to Texas law.
TEX. CIV. PRAC. & REM. CODE § 101.021.
III. The appellants’ claims
In the trial court, the appellants pleaded alternative causes of action. They
alleged that Thomas “was either acting within the course and scope of his
11
employment with Jersey Meadows Golf Course involving his operation and use of
a motorized golf cart and golf clubs or was acting on his own at the time of the
injury.” These allegations implicate the immunity waiver in section 101.021(1),
because the appellants alleged the use of motor-driven equipment. See id. The
appellants also alleged that the City was negligent for failing to maintain its
property in a safe and reasonable manner, failing to exercise caution and provide a
warning, and in maintaining its property recklessly and carelessly. These
allegations implicate the immunity waiver in section 101.021(2) because these
allegations relate to a claim for premises liability. In addition, to the extent that the
appellants alleged that Thomas’s actions can be imputed to the City because he
was an employee, the appellants’ pleadings also implicate the immunity waiver in
section 101.021(2) that arise when an injury is caused by a condition or use of
tangible personal property. See id.
Based on the pleadings, we conclude that the appellants have attempted to
allege a waiver of the City’s immunity in three ways: (1) alleging an injury that
arose from the use of a motor-driven vehicle (the golf cart); (2) premises liability;
and (3) alleging an injury caused by a condition or use of tangible personal
property (golf clubs). The TTCA imposes different standards of care upon a
governmental unit for negligence claims based on “a condition or use of tangible
personal property” and claims based on a “premises defect.” See Sampson v. Univ.
12
of Tex. at Aus., 500 S.W.3d 380, 385 (Tex. 2016) (citing TEX. CIV. PRAC. & REM.
CODE §§ 101.021(2), 101.022(a)). A claim cannot be both a premises defect claim
and a claim relating to a condition or use of tangible property. See id. at 385–86;
Miranda, 133 S.W.3d at 233 (“The [TTCA’s] scheme of a limited waiver of
immunity from suit does not allow plaintiffs to circumvent the heightened
standards of a premises defect claim contained in section 101.022 by re-casting the
same acts as a claim relating to the negligent condition or use of tangible
property.”).
IV. The trial court erred by granting the plea to the jurisdiction.
A. The trial court erred by refusing to allow the appellants to
replead their premises liability claim.
In their first issue, the appellants argue that the court erred by granting the
City’s plea to the jurisdiction as to their premises liability claim. The appellants
maintain that the City’s plea to the jurisdiction attacked only the sufficiency of
their pleading. We agree.
“Texas follows a ‘fair notice’ standard for pleading, which looks to whether
the opposing party can ascertain from the pleading the nature and basic issues of
the controversy and what testimony will be relevant.” Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); accord Kinder Morgan SACROC,
LP v. Scurry Cnty., 622 S.W.3d 835, 849 (Tex. 2021); see TEX. R. CIV. P. 47
(stating that pleading “shall contain . . . a short statement of the cause of action
13
sufficient to give fair notice of the claim involved”). To constitute fair notice, the
pleading must include the essential factual allegations that support the claims for
relief. Kinder Morgan SACROC, 622 S.W.3d at 849; DeRoeck v. DHM Ventures,
LLC, 556 S.W.3d 831, 835 (Tex. 2018); Horizon/CMS Healthcare Corp., 34
S.W.3d at 897. Ordinarily, an opposing party challenging a pleading defect does so
by filing a special exception. See TEX. R. CIV. P. 90; Horizon/CMS Healthcare
Corp., 34 S.W.3d at 897.
Under section 101.022, when a claim arises from a premises defect, “the
governmental unit owes to the claimant only the duty that a private person owes to
a licensee on private property, unless the claimant pays for the use of the
premises.” TEX. CIV. PRAC. & REM. CODE § 101.022(a); see State v. Shumake, 199
S.W.3d 279, 283 (Tex. 2006). “If the plaintiff pays for the use of the premises, the
governmental unit owes the plaintiff the duty owed to an invitee.” Ogueri v. Tex. S.
Univ., No. 01-10-00228-CV, 2011 WL 1233568, at *3 (Tex. App.—Houston [1st
Dist.] Mar. 31, 2011, no pet.) (mem. op.) (quoting City of Irving v. Seppy, 301
S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.).
“To prevail in a premises-liability case, the invitee plaintiff must show that
(1) the owner had actual or constructive knowledge of the condition at issue;
(2) the condition was unreasonably dangerous; (3) the owner did not exercise
reasonable care to reduce or eliminate the unreasonable risk of harm; and (4) the
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owner’s failure to reduce or eliminate the unreasonable risk of harm proximately
caused the plaintiff’s injuries.” United Supermarkets, LLC v. McIntire, 646 S.W.3d
800, 802 n.4 (Tex. 2022) (per curiam) (citing Keetch v. Kroger Co., 845 S.W.2d
262, 264 (Tex. 1992)). A landowner generally has no duty to warn invitees of
“hazards that are open, obvious, or known to the invitee.” Austin v. Kroger Tex.,
L.P., 465 S.W.3d 193, 204 (Tex. 2015).
The duty owed to a licensee “requires that ‘a landowner not injure a licensee
by willful, wanton or grossly negligent conduct, and that the owner use ordinary
care either to warn a licensee of, or to make reasonably safe, a dangerous condition
of which the owner is aware and the licensee is not.’” Sampson, 500 S.W.3d at 391
(quoting State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237
(Tex. 1992)). Absent willful, wanton, or grossly negligent conduct, to prevail in a
premises-liability case, the licensee plaintiff must show that: (1) a condition of the
premises created an unreasonable risk of harm to the licensee; (2) the owner
actually knew of the condition; (3) the licensee did not actually know of the
condition; (4) the owner failed to exercise ordinary care to protect the licensee
from danger; (5) the owner’s failure was a proximate cause of injury to the
licensee. Payne, 838 S.W.2d at 237.
In this case, in its plea to the jurisdiction, the City challenged the lack of
factual allegations to support a premises liability claim. The City provided no
15
jurisdictional evidence conclusively negating the waiver of immunity under a
premises liability theory. We agree that the appellants’ original petition does not
contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction
whether the contention is that Hall was either an invitee or licensee. However, the
lack of factual allegations does not support a conclusion that the pleading defect
here is incurable. We therefore conclude that, as to any premises liability claim, the
issue is pleading sufficiency, and the appellants should be afforded an opportunity
to amend. See Miranda, 133 S.W.3d at 226. Because the trial court did not give the
appellants an opportunity to amend, we sustain the first issue.
B. The court erred by granting the City’s plea without allowing any
jurisdictional discovery.
In their second issue, the appellants argue that the City did not conclusively
prove that Thomas was not acting as a City employee at the time of the incident. In
their third issue, they argue that the trial court abused its discretion by refusing
their request to conduct limited discovery regarding the jurisdictional facts alleged
by the City.
Whether Thomas was acting as an employee or within the course and scope
of his employment with the City at the time of the incident is relevant to two
possibly alleged theories of liability and waiver of immunity: (1) that the injury
arose from the use of a motor-driven vehicle, the golf cart, while Thomas was
acting within the scope of his employment, see TEX. CIV. PRAC. & REM. CODE
16
§ 101.021(1)(A); and (2) that the injury was caused by the use of tangible personal
property, a golf club, by Thomas, and the City is liable under a theory of
respondeat superior. See id. § 101.021(2); DeWitt v. Harris Cnty., 904 S.W.2d 650,
653 (Tex. 1995) (“There is no question that subsection 2 provides for
governmental liability based on respondeat superior for the misuse by its
employees of tangible personal property . . . . [I]t encompasses respondeat superior
liability for the misuse of any tangible personal property, not just motor-driven
vehicles or equipment.”).
On appeal, the City argues that the appellants have waived any argument
about the trial court’s dismissal of any claim based on the use of a motor-driven
vehicle by not specifically addressing it on appeal. We decline to find waiver
because the appellants’ second issue is broad enough to apply to a claim based on
the use of a motor-driven vehicle, which requires the plaintiff to prove that the
employee was acting within the course and scope of his employment. See Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs are to be construed
reasonably, yet liberally, so that the right to appellate review is not lost by
waiver.”).
The TTCA defines “employee” in relevant part as “a person . . . who is in
the paid service of a governmental unit . . . .” TEX. CIV. PRAC. & REM. CODE
§ 101.001(2). “Scope of employment” is “the performance for a governmental unit
17
of the duties of an employee’s office or employment and includes being in or about
the performance of a task lawfully assigned to an employee by competent
authority.” Id. § 101.001(5). “In general, whether a person is acting within the
scope of his employment depends on whether the general act from which an injury
arose was in furtherance of the employer’s business and for the accomplishment of
the objective for which the employee was employed.” Lara v. City of Hempstead,
No. 01-15-00987-CV, 2016 WL 3964794, at *3 (Tex. App.—Houston [1st Dist.]
July 21, 2016, pet. denied) (mem. op.) (quoting City of Balch Springs v. Austin,
315 S.W.3d 219, 225 (Tex. App.—Dallas 2010, no pet.) (citing Leadon v.
Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972))). The TTCA
scope-of-employment analysis is “fundamentally objective: Is there a connection
between the employee’s job duties and the alleged tortious conduct?” Laverie v.
Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). “In short, an employee is not acting
within the scope of his duties unless the activity has some connection with, and is
being undertaken in furtherance of, the employer’s business.” City of Balch
Springs, 315 S.W.3d at 225.
Questions about whether an employee is acting within the scope of his duties
often arise in the context of motor vehicle accidents involving a company vehicle
being driven by an employee on a lunch break or before or after normal working
hours. E.g., City of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL
183556216, at *5 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem.
op.) (collecting cases); Lara, 2016 WL 3964794, at *3–5 (holding that off-duty
officer was not acting in scope of employment because he was merely commuting
to work at time of collision with plaintiff’s vehicle); City of Beaumont v. Stewart,
No. 09-12-00316-CV, 2012 WL 5364678, at *4 (Tex. App.—Beaumont Nov. 1,
2012, no pet.) (mem. op.) (collecting cases).
In Lara, the plaintiff sued for injuries to herself and her then-unborn child
after a collision with a City-owned vehicle driven by the assistant police chief.
2016 WL 3964794, at *1. The City of Hempstead presented jurisdictional evidence
as support for its plea to the jurisdiction:
As support for its plea, Hempstead presented affidavits by Assistant
Chief Christian and Hempstead Chief of Police D. Hartley, both of
whom testified that Christian is primarily assigned to “office” duties,
has no regular duties involving operation of a police vehicle, was off-
duty at the time of the collision, was not being paid for his service at
that time, had no official duties or assignments at that time, was
driving to work, and would be considered on-duty only upon his
arrival at work. Each also specifically testified that Hartley had
expressly authorized Christian to use a police vehicle to commute to
and from his work and that Hartley knew when he gave that
authorization that Christian lived in Harris County. Hartley further
testified that Hempstead's police department policies do not permit
use of police vehicles outside the city of Hempstead unless the officer
operating the vehicle is on official business or authorized by the chief
to operate the vehicle outside city limits. According to Chief Hartley,
had an officer operated a vehicle outside Hempstead's city limits while
not on official business and without his authorization, such an action
would mean that the officer was in violation of police department
policy; it would not mean that the officer was on-duty or in service of
the city at the time of the violation. Hartley testified that as it was,
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Christian did have authorization to drive his official vehicle outside of
Hempstead, but he was not on official business of the City when the
accident occurred.
Id. We affirmed the trial court’s grant of the plea to the jurisdiction because the
plaintiff did not raise a question of fact regarding any waiver of immunity. Id. at
*5.
We have held that whether a police officer is on duty was not dispositive
because the question of whether he acted within the scope of his employment
depended on whether there was a connection between his job duties and his
allegedly tortious conduct. City of Houston v. Lal, 605 S.W.3d 645, 650 (Tex.
App.—Houston [1st Dist.] 2020, no pet.). In Lal, an off-duty but on-call police
officer veered into oncoming traffic after he was momentarily distracted by an
incoming phone call. Id. at 647. Indulging every reasonable inference in favor of
the plaintiff, we concluded that because the officer’s phone was issued by the City
and the officer was on call, “a factfinder could reasonably infer that [the officer]
was obligated in his capacity as a peace officer employed by the City to answer
incoming calls on this phone . . . .” Id. at 649. We held that the City “did not carry
its burden to conclusively prove that the trial court lacked subject-matter
jurisdiction.” Id. at 650.
In this case, the City of Jersey Village presented three documents in support
of its plea to the jurisdiction: (1) the Jones affidavit; (2) the work schedule for the
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week including May 1, 2020; and (3) Thomas’s time entry history for May 2020.
Jones’s one-page affidavit stated:
On May 1, 2020, the date of the accident made the basis of this
lawsuit, Terry Thomas was not playing golf in his capacity as a city
employee when his errant golf shot hit Valerie Hall. He was not
scheduled for work that day (May 1, 2020) and was not compensated
for any time that day.
The work schedule and time entry history support Jones’s statement that Thomas
was not scheduled for work on the day of the incident and was not compensated for
any time that day. Whether an employee is on duty is not solely dispositive of
whether Thomas was acting within the scope of his employment because our
precedent requires us to consider whether the general act from which the alleged
injury arose was in furtherance of the City’s business and for the accomplishment
of the objective for which Thomas was employed. See Lara, 2016 WL 3964794, at
*3.
The City’s evidence does not fully address this question. Jones declares that
Thomas “was not playing golf in his capacity as a city employee when his errant
golf shot hit Valerie Hall,” but this statement is conclusory because it does not
provide the underlying facts to support the conclusion. See, e.g., Juarez v. Harris
Cnty., No. 01-18-00690-CV, 2019 WL 5699741, at *7 (Tex. App.—Houston [1st
Dist.] Nov. 5, 2019, no pet.) (mem. op.) (holding that plaintiff’s conclusory
statements did not raise question of fact on jurisdictional issue of applicability of
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emergency exception to TTCA waiver of governmental immunity); see also Lenoir
v. Marino, 469 S.W.3d 669, 686 (Tex. App.—Houston [1st Dist.] 2015), aff’d, 526
S.W.3d 403 (Tex. 2017) (“Conclusory statements in affidavits are insufficient to
establish the existence of a fact. . . . A conclusory statement is one that does not
provide the underlying facts to support the conclusion.”). Thus, we conclude that
the City did not carry its burden to prove that the trial court lacks jurisdiction.4
We sustain the appellants second issue, and in light of this disposition, we do
not need to rule on the appellants’ third issue. See TEX. R. APP. P. 47.1.
4
Moreover, in the trial court, the appellants asked the court for an opportunity to
conduct discovery on jurisdictional matter, including the details of Thomas’s
employment by and duties as an employee of the City. The trial court implicitly
denied this request when it denied the plea to the jurisdiction. We apply an abuse
of discretion standard to a trial court’s ruling on jurisdictional discovery. See
Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). Generally, “courts should allow [a] reasonable opportunity
for targeted discovery if necessary to illuminate jurisdictional facts in a plea to the
jurisdiction.” Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex.
2012). Here, the trial court granted the plea to the jurisdiction one month after the
plaintiffs filed their original petition and before they had conducted any discovery.
The trial court should have afforded the plaintiffs a reasonable opportunity to
discover any facts relevant to the plea to the jurisdiction.
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Conclusion
We reverse the order granting the plea to the jurisdiction, and we remand
this case to the trial court for further proceedings consistent with this opinion.
Peter Kelly
Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
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