The City of Springtown v. Kalie Ashenfelter ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00204-CV
___________________________
THE CITY OF SPRINGTOWN, Appellant
V.
KALIE ASHENFELTER, Appellee
On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CV21-1205
Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellee Kalie Ashenfelter sued Appellant City of Springtown after she was
involved in an automobile collision with a City police officer. The City appeals the
trial court’s denial of its combined motion for no-evidence and traditional summary
judgment, asserting that it was entitled to immunity based on (1) the police officer’s
official immunity and (2) the emergency exception to the Texas Tort Claims Act’s
(TTCA) waiver of immunity. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021,
101.055. Because we conclude that the City was not entitled to a no-evidence
summary judgment and that evidence attached to the City’s own traditional motion
for summary judgment raised a fact issue as to whether governmental immunity was
waived, we affirm the trial court’s order denying the City’s combined motion. See Tex.
R. App. P. 43.2(a).
I. Background1
Ashenfelter T-boned on-duty City police officer Sergeant Charles Cobb as he
was driving through an intersection in his police vehicle. Sergeant Cobb entered the
intersection against a red light with his emergency lights and siren on, and Ashenfelter
entered the intersection with a green light. Ashenfelter initially sued Sergeant Cobb
for negligence and the City under the doctrine of respondeat superior. After filing a
Notice of Nonsuit as to Sergeant Cobb, Ashenfelter filed her amended petition
asserting negligence against only the City. She alleged that through the actions of
1
All facts are derived from the parties’ summary judgment evidence.
2
Sergeant Cobb, the City had breached its duty of care by failing to yield the right-of-
way, failing to keep a safe distance, failing to control the vehicle’s speed, failing to take
proper evasive measures to avoid the collision, and driving in a reckless manner. She
also alleged that Sergeant Cobb’s actions violated specific sections of Chapter 545 of
the Transportation Code (Operation and Movement of Vehicles). See Tex. Transp.
Code Ann. §§ 545.062, 545.151, 545.351, 545.401.
The City answered and filed a “Traditional and No[-]Evidence Motion for
Summary Judgment” asserting governmental immunity and challenging the trial
court’s jurisdiction. The trial court denied the City’s motion. The City then filed this
interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8).
II. Applicable Law
A plaintiff bears the burden of affirmatively demonstrating the trial court’s
jurisdiction. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). This
burden includes establishing a waiver of immunity in suits against the government. Id.The plaintiff must begin by alleging circumstances that fit within a provision of the act
that authorizes a waiver, such as Section 101.021(1)(A) of the TTCA. Rattray v. City of
Brownsville, 662 S.W.3d 860, 866 (Tex. 2023). The plaintiff must also “negate[] any
relevant expressed withdrawal of the waiver” on which she relies. Id.In TTCA cases, governmental immunity is waived for personal injury or
property damage caused by a city employee’s wrongful act or omission or the
negligence arising from that employee’s operation or use of a motor vehicle within the
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scope of employment if the “employee would be personally liable to the claimant
according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(B). Here,
for jurisdictional purposes, the City disputes whether Sergeant Cobb would be
personally liable to Ashenfelter and contends that he would not be because he is
entitled to the affirmative defense of official immunity. See City of San Antonio v. Riojas,
640 S.W.3d 534, 537–38 (Tex. 2022). Because official immunity is an affirmative
defense, it is the defendant’s burden to establish all the required elements: (1) the
performance of discretionary duties; (2) within the scope of the employee’s authority;
(3) provided the employee acts in good faith. Area Metro. Ambulance Auth. v. Reed, No.
02-22-00406-CV, 2023 WL 3017936, at *4 (Tex. App.––Fort Worth Apr. 20, 2023, no
pet.) (mem. op. on reh’g); see also Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex.
2000) (listing elements); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)
(discussing burden).
In addition to arguing that it is entitled to the benefit of Sergeant Cobb’s
official immunity to defeat Section 101.021(1)’s waiver, the City argues that an
exception to the general waiver applies––the emergency exception under Section
101.055. Under that exception, the TTCA’s waiver provisions do not apply to claims
arising . . . from the action of an employee while responding to an
emergency call or reacting to an emergency situation if the action is in
compliance with the laws and ordinances applicable to emergency action,
or in the absence of such a law or ordinance, if the action is not taken
with conscious indifference or reckless disregard for the safety of others.
4
Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2); see also City of Houston v. Green, 672
S.W.3d 27, 30 (Tex. 2023) (citing Section 101.055(2)). Ashenfelter had the burden to
negate the emergency exception by raising a fact issue on any one of its three
elements: (1) whether Sergeant Cobb was responding to an emergency when the
accident occurred; (2) whether Sergeant Cobb’s actions were not in compliance with
the laws and ordinances applicable to emergency action; and (3) whether Sergeant
Cobb’s actions reflected conscious indifference or reckless disregard for the safety of
others. See City of San Antonio v. Maspero, 640 S.W.3d 523, 529 (Tex. 2022). If a fact
issue exists as to the emergency exception, then the City had the burden to defeat
Section 101.021(1)’s waiver by establishing that Sergeant Cobb was (1) performing a
discretionary duty (2) within the scope of his authority (3) in good faith. See Area
Metro. Ambulance Auth., 2023 WL 3017936, at *4.
III. Standard of Review
Governmental immunity may be raised by a plea to the jurisdiction or by a
traditional or no-evidence motion for summary judgment, Town of Shady Shores, 590
S.W.3d at 550–52, and we review the trial court’s ruling de novo, Dillard’s, Inc. v.
Newman, 299 S.W.3d 144, 147 (Tex. App.—Amarillo 2008, pet. denied) (mem. op.)
(citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). When, as
here, the motion for summary judgment challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties as necessary to resolve
the jurisdictional issues raised, as the trial court is required to do. Tex. Dep’t of Parks &
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Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). When 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 await a fuller development of the case. Id. In a case
in which the jurisdictional challenge implicates the merits of the plaintiff’s cause of
action and the jurisdictional challenge includes evidence, the trial court reviews the
relevant evidence to determine if a fact issue exists. Id. “If the evidence creates a fact
question regarding the jurisdictional issue, then the trial court cannot grant the plea to
the jurisdiction, and the fact issue will be resolved by the fact finder.” Id. at 227–28; see
Maspero, 640 S.W.3d at 529. However, if the relevant evidence is undisputed or fails to
raise a fact question on the jurisdictional issue, the trial court rules on the
jurisdictional challenge as a matter of law. Miranda, 133 S.W.3d at 228; Maspero, 640
S.W.3d at 529.
Requiring the governmental entity to meet the summary judgment standard of
proof protects the plaintiff from having to “put on [her] case simply to establish
jurisdiction.” Miranda, 133 S.W.3d at 228 (quoting Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000)). Instead, after the governmental entity asserts and
supports with evidence that the trial court lacks subject-matter jurisdiction, the
plaintiff, when the facts underlying the merits and subject-matter jurisdiction are
intertwined, must show there is a disputed material fact regarding the jurisdictional
issue. Id.6
IV. Discussion
In the part of its motion labeled “No[-]Evidence Motion for Summary
Judgment,” the City argued that there was “a failure of” certain elements under
Sections 101.021 and 101.055 of the TTCA, resulting in Ashenfelter’s failure to show
a waiver of the City’s immunity from suit. As to Section 101.055, the City argued,
[T]here is no evidence of the two required elements [Ashenfelter] must
establish under TTCA § 101.055 in order to invoke a waiver of the City’s
sovereign immunity. . . . : (1) That [Sergeant] Cobb’s actions did not
comply with laws and ordinances applicable to this emergency action[;
and] (2) In the absence of such a law or ordinance, there is no evidence
[Sergeant] Cobb acted with conscious indifference or reckless disregard
for the safety of others.
[Emphasis added.]
And as to Section 101.021, the City argued,
(1) There is no evidence of property damage or personal injury from a
City employee’s wrongful act or omission or negligence in the operation
or use of a motor-driven vehicle or motor-driven equipment.
(2) There is no evidence that the City employee directly involved in the
pursuit – [Sergeant] Cobb – would be personally liable to [Ashenfelter]
according to Texas law.
In its traditional motion, the City argued that (1) Ashenfelter “cannot establish
the elements for a waiver of immunity under TTCA § 101.021 . . . because [Sergeant]
Cobb would not be personally liable to [her] due to his official immunity” and (2)
Ashenfelter “cannot overcome TTCA § 101.055[,] which establishes an emergency
exception to any waiver of the City’s immunity.”
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The City’s arguments rest on its conclusory assertion that Sergeant Cobb was
responding to an emergency when he entered the intersection. As evidence in support
of its combined motion, the City filed the Springtown Police Department (SPD)
dispatch call-sheet reports, Sergeant Cobb’s dash camera video and still photographs
taken from the video, and Sergeant Cobb’s affidavit.
In response to the City’s combined motion, Ashenfelter asserted that Sergeant
Cobb had failed to yield the right-of-way to oncoming cross-traffic and had failed to
stop at a red light. Relying on a Fourteenth Court of Appeals case that has since been
overturned by the Texas Supreme Court,2 Ashenfelter argued that a fact issue existed
as to whether Sergeant Cobb acted with conscious indifference and reckless disregard
for the safety of others. In support of her response, Ashenfelter filed the Department
of Public Safety (DPS) crash report.3 Although Ashenfelter did not expressly
challenge the City’s contention that Sergeant Cobb was responding to an emergency
City of Houston v. Green, No. 14-20-00190-CV, 2022 WL 97334 (Tex. App.—
2
Houston [14th Dist.] Jan. 11, 2022) (mem. op.), rev’d, 672 S.W.3d 27 (Tex. 2023).
3
In the report, the DPS investigator provided the following narrative:
Unit 1 (police vehicle) was traveling east on Pojo [Road] and unit 2
[Ashenfelter] was traveling north on FM 51 (N. Main Street). Unit 1
entered the intersection from the west and unit 2 entered the same
intersection at the same time from the south. The front left corner of
unit 2 hit the right passenger compartment of unit 1 while both vehicles
were in the intersection. This intersection is controlled by a traffic light
and it was reported to this officer the traffic light was “GREEN” for
North and South bound traffic on FM 51 [Main Street]. Unit 1 was
responding to a[n] emergency call for service with emergency lights and
siren “ON.”
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at the time of the accident,4 she argued that Sergeant Cobb would be personally
responsible for the accident because he ran the red light and failed to yield the right-
of-way, and that “a fact issue exists as to each element of [her] claims.” [Emphasis
added.]
A. The Emergency Exception
1. No-evidence motion
Regarding the emergency exception, the City first claimed that there is no
evidence of the following: “(1) That [Sergeant] Cobb’s actions did not comply with
laws and ordinances applicable to this emergency action[, and] (2) [i]n the absence of
such a law or ordinance, there is no evidence [Sergeant] Cobb acted with conscious
indifference or reckless disregard for the safety of others.” The City’s motion is based
on its conclusory assertion––upon which all of its arguments are premised––that
Sergeant Cobb was responding to an emergency. But the City never expressly moved
for summary judgment on the ground that Ashenfelter could produce no evidence
that Sergeant Cobb was not responding to an emergency, one of the three elements
on which a fact issue could defeat the applicability of Section 101.055.
4
In its reply brief, the City argues that (1) because Ashenfelter’s response to the
City’s motion did not expressly challenge whether Sergeant Cobb was responding to
an emergency at the time of the accident, she cannot challenge the “emergency” issue
for the first time on appeal, and (2) Ashenfelter’s summary judgment evidence
“admitted” that Sergeant Cobb was responding to an emergency. For the reasons
explained below, we reject the City’s arguments.
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A no-evidence motion must specifically state the elements for which no
evidence exists. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Because
Ashenfelter had to raise a fact issue only on any one of the three elements of the
emergency exception––and the City did not expressly identify that Sergeant Cobb was
not responding to an emergency as an element on which Ashenfelter could produce
no evidence––the trial court did not err by denying the no-evidence motion on this
basis. See Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017)
(noting that the Texas Supreme Court has “called for strict enforcement” of Rule
166a(i)’s requirement that a no-evidence motion specifically state the element or
elements for which there is no evidence); see also Town of Shady Shores, 590 S.W.3d at
552 (“The safeguards built into Rule 166a(i)—a no-evidence motion may be filed only
after an adequate time for discovery, the movant must specify the elements for which no evidence
exists, the nonmovant need only present more than a scintilla of evidence supporting
the challenged element, and the evidence must be viewed in the light most favorable
to the nonmovant—provide a sufficient degree of protection to plaintiffs . . . .”
(emphasis added)).
2. Traditional motion
In its traditional motion, the City argued that the evidence shows Section
101.055 does not waive sovereign immunity because it shows that Sergeant Cobb did
not act with conscious indifference or reckless disregard for the safety of others. The
City also argued that Sergeant Cobb established that SPD does not have written
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policies applying to emergency driving “but that the practice of SPD is to require
officers in emergency driving situations to respond to requirements of state law.”
Again, the City did not argue that the evidence conclusively proves that Sergeant
Cobb was responding to an emergency; it merely based all of its arguments on the
presumption that Sergeant Cobb was responding to an emergency. And, as we explain
below, the evidence that the City attached to its motion raises a fact issue as to
whether Sergeant Cobb was responding to an emergency at the time of the accident.
A. Sergeant Cobb’s Affidavit
Sergeant Cobb averred that at the time of the accident, he had been dispatched
to a “criminal mischief incident” involving actors who had possibly cut phone wires
for the 9-1-1 phone system. The SPD dispatcher advised Sergeant Cobb that the
actors were on the scene of the incident but were attempting to leave. Sergeant Cobb
attested that this had caused him concern because
generally[,] criminal mischief is an intentional act. If the actors . . . had
intentionally cut . . . the 9-1-1 phone system lines, . . . [they] might be
potentially engaged in additional serious criminal activity . . . because
disruption of the 9-1-1 emergency communication system would make it
more difficult for persons or victims to report criminal activity so that
police officers could promptly respond[.]
He also attested that “[d]amage to the phone system is a public safety emergency” due
to the need to be able to report medical emergencies, crimes, missing children, or
releases and spills of hazardous substances.
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At the time he purportedly received the call from dispatch—approximately 3:30
p.m. on a weekday—Sergeant Cobb was driving a marked SPD vehicle traveling east
on Pojo Road toward the intersection of Pojo Road and Main Street. The intersection
sat in two school zones, which were in effect at the time of the call; drivers traveling
on Pojo Road were limited to a speed of twenty miles per hour, and drivers traveling
on Main Street were limited to a speed of thirty miles per hour. Another marked SPD
vehicle was parked near the intersection with its overhead emergency lights operating
to enforce the speed limit and to discourage drivers from speeding in the school zone.
The traffic light facing Sergeant Cobb’s direction on Pojo Road was red.
As Sergeant Cobb approached the intersection, he moved into the right-hand
lane and drove past a line of cars on Pojo Road waiting to turn left. He slowed his
speed to eight miles per hour and activated his overhead emergency lights and siren.
Sergeant Cobb saw a white truck traveling south on Main Street enter the intersection;
the truck appeared to be slowing down. He saw another vehicle traveling south on
Main Street behind that truck stop before entering the intersection. When he did not
see any other vehicles entering or approaching, Sergeant Cobb continued into the
intersection. He attested that despite entering the intersection against a red light, he
believed that he could do so safely after considering (1) the law enforcement need to
respond to the emergency, (2) the school zone requiring drivers on Main Street to
slow down, (3) the other SPD vehicle’s presence at the intersection to discourage
speeding, (4) the visibility of the intersection, (5) the moderate amount of traffic that
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he had observed, (6) his reduction in speed to eight miles per hour before entering the
intersection, (7) his activation of lights and siren as he approached the intersection,
and (8) his having seen one vehicle slow and another stop on southbound Main
Street.
Ashenfelter was traveling north on Main Street and had a green light, and she
proceeded into the intersection. After Sergeant Cobb had entered the intersection, he
saw Ashenfelter’s vehicle “out of the corner of [his] eye” approaching him from his
right. He turned his vehicle to the left to try to avoid the collision, but Ashenfelter’s
vehicle struck Sergeant Cobb’s vehicle on the passenger side in a “T-bone” impact.
b. The SPD Call-Sheet Reports
In addition to Sergeant Cobb’s affidavit, the City filed three SPD call-sheet
reports. One of the call-sheet reports shows that before the accident with Ashenfelter,
Sergeant Cobb had been assigned to an unrelated, “very high” priority traffic incident
nearby, in the 400 block of Pojo Road, at 15:24:07 (military time). According to the
call-sheet report, Sergeant Cobb was then cleared from that call at 15:29:21—
apparently before fire, EMS, and the wrecker arrived on the scene. The City did not
include the second page of that call-sheet report.
The call-sheet report of the phone-line-cutting call reflects that the call came in
at 15:31:35 and that the call was sent to dispatch at 15:32:57. SPD dispatch then
assigned the call to an officer—F. Marshall, not Sergeant Cobb—at 15:34:27, and
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Officer Marshall arrived on the scene at 15:37:34. According to the call-sheet report,
Sergeant Cobb was not dispatched or assigned to the phone-line-cutting call.
The last call-sheet report involved the accident with Ashenfelter, and both its
pages are included in the record. This call came into dispatch at 15:34:40, and Officer
A. Motley was assigned to the call at 15:35:35. Officer Motley arrived on the scene at
15:37:15.
c. Fact Issue
The evidence that the City attached to its motion raises a fact issue as to
whether Sergeant Cobb was responding to an emergency at the time of the accident.
According to Sergeant Cobb’s affidavit and the still photographs taken from the dash
camera video, the accident occurred at 15:31:03. According to the call-sheet reports,
however, the “emergency” phone-line-cutting call came in at 15:31:35—approximately
thirty seconds after the accident. And Sergeant Cobb was not actually assigned to that
call. Thus, despite Sergeant Cobb’s assertion that at the time of the accident he was
responding to the phone-line-cutting call, which he perceived as an emergency, the
City’s other evidence indicates that the “emergency” call did not come in until after
the accident and that Sergeant Cobb could not have known about the “emergency”
call until after the accident. The City’s own summary judgment evidence therefore
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raises a fact issue as to whether Sergeant Cobb was responding to an emergency at the
time of the accident. 5
We overrule the City’s first issue.
B. Official Immunity Affirmative Defense
In its second issue, the City contends that the trial court erred by denying its
combined motion for summary judgment on the ground that Ashenfelter could not
raise a fact issue that the City’s immunity is waived under Section 101.021 of the
TTCA because the City is entitled to the benefit of Sergeant Cobb’s official immunity.
Since official immunity is an affirmative defense, the City had to conclusively
prove all of its elements. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09
(Tex. 2010); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Area Metro. Ambulance
Auth., 2023 WL 3017936, at *4; City of Houston v. Manning, No. 14-20-00051-CV, 2021
5
Based on its summary judgment evidence, the City substantially relies upon
Sergeant Cobb’s affidavit to show that he was responding to an emergency at the time
of the accident. In the affidavit, Sergeant Cobb classifies the phone-line-cutting call as
an “emergency” and establishes the City’s purported timeline. To support summary
judgment, the affidavit of Sergeant Cobb, an interested witness, must have been
“clear, positive, and direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily controverted.” Scott v. U.S. Bank, Nat’l
Ass’n, No. 02-12-00230-CV, 2014 WL 3535724, at *4 (Tex. App.—Fort Worth July
17, 2014, no pet.) (mem. op.) (quoting Rule 166a(c)); see Trico Tech. Corp. v. Montiel, 949
S.W.2d 308, 310 (Tex. 1997). But self-serving statements of an interested witness, like
Sergeant Cobb, of what he knew and intended are not competent summary judgment
evidence. Rush v. Barrios, 56 S.W.3d 88, 103 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied); Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394, 400 (Tex.
App.—San Antonio 2000, no pet.); O’Donnell v. Roger Bullivant of Tex., Inc., 940 S.W.2d
411, 416 (Tex. App.—Fort Worth 1997, writ denied) (op. on reh’g), overruled on other
grounds by Perry Homes v. Alwattari, 33 S.W.3d 376 (Tex. App.—Fort Worth 2000, pet.
denied).
15
WL 1257295, at *5 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021, pet. denied)
(mem. op.). Thus, the City was not entitled to a no-evidence summary judgment on
this ground. See Tex. R. Civ. P. 166a(i) (providing a party may file a no-evidence
motion only for “a claim or defense on which an adverse party would have the burden
of proof at trial”); see also Grant v. Wind Turbine & Energy Cables Corp., No. 02-21-
00036-CV, 2022 WL 2840142, at *2 n.9 (Tex. App.—Fort Worth July 21, 2022, no
pet.) (mem. op.) (“[A] party may file a no-evidence motion to challenge only a claim
or defense on which it does not bear the burden of proof.”).
And, as we have held, the City’s own evidence raised a fact issue as to whether
Sergeant Cobb was responding to an emergency at the time of the accident. One of
the elements the City was required to prove is that Sergeant Cobb was performing a
discretionary duty at the time of the accident. See Telthorster v. Tennell, 92 S.W.3d 457,
461 (Tex. 2002). Although an officer’s operation of a motor vehicle can sometimes be
a discretionary act––for instance, during a high-speed chase, an investigation, or a
traffic stop––“generally, non-emergency driving is a ministerial act that does not
entitle a government employee who is involved in an accident to official immunity.”
Area Metro. Ambulance Auth., 2023 WL 3017936, at *4; see City of Houston v. Hatton, No.
01-11-01068-CV, 2012 WL 3528003, at *3 (Tex. App.—Houston [1st Dist.] Aug. 16,
2012, pet. denied) (mem. op.); City of Wichita Falls v. Norman, 963 S.W.2d 211, 216
(Tex. App.—Fort Worth 1998, pet. dism’d w.o.j.) (“The mere fact that Melvin was on
patrol at the time he ran his motorcycle into the back of Norman’s car does not
16
automatically afford him the protection of official immunity.”). Thus, the City did not
conclusively prove its entitlement to summary judgment on the affirmative defense of
official immunity. See Reed v. Villesca, No. 03-02-00769-CV, 2003 WL 21401991, at *3
(Tex. App.—Austin June 19, 2003, no pet.) (mem. op.).
We overrule the City’s second issue.
V. Conclusion
Because the City did not show its entitlement to either a no-evidence or
traditional summary judgment, we overrule the City’s two issues and affirm the trial
court’s interlocutory order denying the City’s combined motion.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: April 25, 2024
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