Rodolfo Guzman v. the City of Bellville, Austin County, Texas Department of Transportation, Ben Munsch and James Bass

Affirmed and Opinion filed January 27, 2022.
In The
Fourteenth Court of Appeals
NO. 14-19-00808-CV
RODOLFO GUZMAN, Appellant
V.
THE CITY OF BELLVILLE, AUSTIN COUNTY, TEXAS DEPARTMENT
OF TRANSPORTATION, BEN MUNSCH, AND JAMES BASS, Appellees
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2018V-0126
OPINION
In this personal-injury case, the plaintiff appeals the trial court’s judgment
granting jurisdictional pleas, motions to dismiss, and summary-judgment motions
filed by the defendants. The trial court did not abuse its discretion in denying the
plaintiff’s motions to continue the hearing on these pleas and motions. We reject
the argument that claims asserted against an employee of a governmental unit in
the employee’s individual capacity are not subject to dismissal under section
101.106 of the Civil Practice and Remedies Code. We find briefing waiver on
various points, and the plaintiff has not shown that the trial court erred in granting
the dispositive pleas and motions, or in determining that the plaintiff’s motion to
compel discovery is moot. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arose out of a bicycle accident that occurred on or about
November 20, 2016, on East Main Street, also known as State Highway 36, in
Bellville, Austin County, Texas. Appellant/plaintiff Rodolfo Guzman was riding
his bicycle with members of his cycling club when a storm sewer grate dislodged
Guzman from his bicycle, causing him to hit the ground and sustain personal
injuries. Guzman alleges that the storm sewer grate had missing prongs due to
extreme wear and tear and was a premises defect and a special defect.
In October 2018, Guzman filed suit against only appellee/defendant Texas
Department of Transportation (“TxDOT”). On November 14, 2018, Guzman
amended his petition to add appellees/defendants Austin County (the “County”)
and the City of Bellville (the “City”) as defendants. In June 2019, the City filed a
plea to the jurisdiction, supported by affidavits, asserting various arguments in
support of the proposition that Guzman cannot show a waiver of the City’s
governmental immunity.
This jurisdictional plea was set for oral hearing on June 25, 2019. About two
weeks before that date Guzman filed “Plaintiff’s Opposed Rule 166 Motion to
Defer” (the “First Motion for Continuance”) asking the trial court to defer ruling
on the City’s plea to the jurisdiction and to grant a continuance until sufficient
discovery had been conducted. Guzman asserted that the City had failed to
adequately respond to discovery propounded by Guzman. Guzman’s motion was
set for hearing at the same time as the City’s jurisdictional plea.
On June 14, 2019, Guzman amended his petition to add as defendants
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appellee/defendant James Bass, the Executive Director of TxDOT, and
appellee/defendant Ben Munsch, the City’s Public Works Director. Bass answered
and TxDOT filed a motion to dismiss based on subsections (a) and (e) of section
101.106 of the Civil Practice and Remedies Code (the “Subsections”), seeking
dismissal of Guzman’s claims against Bass. The City and Munsch filed a motion to
dismiss and for summary judgment in which they (1) moved for dismissal of all
claims against Munsch based on Munsch’s immunity from suit under the
Subsections; and (2) moved for a summary judgment dismissing all claims against
Munsch based on the two-year statute of limitations in section 16.003 of the Civil
Practice and Remedies Code.
The record reflects that the trial court cancelled the oral hearing that was set
on June 25, 2019 and that the parties agreed to have the jurisdictional pleas and
other motions heard on July 30, 2019.
The County also filed a plea to the jurisdiction in which it asserted various
arguments in support of the proposition that the trial court lacked jurisdiction over
Guzman’s claims against the County because there is no waiver of the County’s
governmental immunity from suit. The County submitted an affidavit from a
TxDOT employee in support of its plea.
On July 17, 2019, Guzman filed a Third Amended Petition that did not
include TxDOT as a defendant. Before July 30, 2019, responses in opposition were
filed to the pending motions. Guzman amended his First Motion for Continuance
as to the City’s jurisdictional plea, and Guzman filed “Plaintiff’s Opposed Rule
166 Motion to Defer the County’s Amended Plea to Jurisdiction” (the “Second
Motion for Continuance”) asking the trial court to defer ruling on the County’s
amended plea to the jurisdiction and to grant a continuance until sufficient
discovery had been conducted.
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On July 25, 2019, Guzman amended his petition for the last time, adding
TxDOT back as a defendant. In his live pleading, Guzman alleges the following
against the City, the County, TxDOT, Bass, and Munsch: (1) negligence claims
based on “injury by use or condition of property”; (2) negligence claims based on
“premises liability”; (3) negligence claims based on “dangerous conditions”; (4)
negligence claims based on “premises liability,” dangerous conditions, and
Guzman’s status as an invitee; and (5) negligence claims based on the defendants’
alleged failure to maintain the sewer, street, or roadway in a reasonably safe
condition, alleged conduct in allowing the sewer, street, or roadway to remain in a
dangerous condition after the defendants knew or reasonably should have known
of the dangerous condition, and alleged failure to take reasonable steps to ensure
the safety and security of the sewer, street, or roadway. According to Guzman,
each of the five claims is a separate negligence claim. As to Bass and Munsch,
Guzman asserts a sixth claim based on the alleged negligence of each of them in
supervising his respective employees.
The day after Guzman amended his petition for the last time he filed a
motion to compel discovery against TxDOT, the County, and the City. The City
and Munsch supplemented their motion to dismiss and for summary judgment, and
the City supplemented its jurisdictional plea. Guzman supplemented his motion to
compel. The hearing scheduled for July 30, 2019 did not take place because the
presiding judge of the trial court recused himself on his own motion.
On August 5, 2019, TxDOT and Bass filed a new plea to the jurisdiction and
motion for summary judgment in which they argued that (1) the trial court should
dismiss Guzman’s claims against Bass based on the Subsections; and (2) the two-
year statute of limitations bars Guzman’s claims against TxDOT and Bass.
Guzman supplemented his two motions for continuance, in an apparent effort to
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have these motions apply to all of the defendants’ jurisdictional pleas, motions to
dismiss, and summary-judgment motions.
On September 27, 2019, the Honorable Dwight Peschel presided over oral
argument on the pending pleas and motions. After oral argument, Judge Peschel
signed a final judgment in which he:
• granted the amended motion to dismiss filed by the City and Munsch, and
dismissed Guzman’s claims against Munsch with prejudice for lack of
jurisdiction;
• granted the pleas to the jurisdiction filed by the City and the County in all
things and dismissed Guzman’s claims against the City and the County with
prejudice for lack of jurisdiction;
• granted the plea to the jurisdiction and motion for summary judgment of
TxDOT and Bass, dismissed Guzman’s claims against Bass with prejudice
for lack of jurisdiction, and ordered that Guzman take nothing against
TxDOT;
• denied the First Motion for Continuance and the Second Motion for
Continuance; and
• stated that Guzman’s motion to compel discovery was moot.
Guzman timely appealed the trial court’s judgment. At Guzman’s request the
Honorable Dwight Peschel issued findings of fact and conclusions of law.
II. ISSUES AND ANALYSIS
On appeal, Guzman asserts the following issues:
1. “Whether or not [Guzman’s live pleading] relates back to [his
Original Petition] with respect to all Appellees and all claims.”
2. “Whether or not the [trial court] erred in denying [Guzman’s] [First
Motion For Continuance, Second Motion for Continuance,] and [the]
supplements [thereto].”
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3. “Whether or not the [trial court] stepped outside its authority by
making findings regarding whether or not the sewer grate posed an
unreasonable risk to [Guzman], and/or whether or not any of the
Appellees adequately warned [Guzman] of said danger.”
4. “Whether or not the [trial court] erred in failing to grant [Guzman’s]
Motion to Compel and stating that the Motion to Compel was moot.”
A. Has Guzman shown that the trial court abused its discretion by denying
Guzman’s motions for continuance?
In his second issue Guzman asserts that the trial court erred in denying the
First Motion for Continuance, the Second Motion for Continuance, and the
supplements thereto. We presume, without deciding, that Guzman adequately
briefed this issue and that by his supplements to each motion, Guzman sought a
continuance as to all of the pleas to the jurisdiction, motions to dismiss under
section 101.106, and summary-judgment motions filed by the defendants.
When reviewing a trial court’s order denying a motion for continuance, we
consider whether the trial court committed a clear abuse of discretion on a case-by-
case basis. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.
2004). A trial court abuses its discretion when it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law. Id. When
deciding whether a trial court abused its discretion in denying a motion for
continuance seeking additional time to conduct discovery, courts have considered
the following nonexclusive factors: the length of time the case has been on file, the
materiality and purpose of the discovery sought, and whether the party seeking the
continuance has exercised due diligence to obtain the discovery sought. Id. When a
party seeks a continuance so that the party may have more time to conduct
additional discovery, the party must file either an affidavit explaining the need for
further discovery or a verified motion for continuance. See Tenneco, Inc. v.
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Enterprise Products, Co., 925 S.W.2d 640, 647 (Tex. 1996); Brown v. HEB
Grocery Co., L.P., 2017 WL 370132, at *1 (Tex. App.—Houston [14th Dist.] Jan.
24, 2017, no pet.) (mem. op.). We conclude that this legal standard applies to a
motion for a continuance seeking more time to conduct additional discovery,
whether the hearing sought to be continued is a hearing on plea to the jurisdiction,
a summary-judgment motion, or a motion to dismiss under section 101.106 of the
Civil Practice and Remedies Code (“section 101.106”). See Driskell v. Concrete
Raising Corp., No. 14-19-00117-CV, 2021 WL 1184400, at *3 (Tex. App.—
Houston [14th Dist.] Mar. 30, 2021, no pet.) (summary-judgment hearing) (mem.
op.); Brown v. Robinson, No. 14-17-00754-CV, 2019 WL 1339651, at *8–9 (Tex.
App.—Houston [14th Dist.] Mar. 26, 2019, no pet.) (plea-to-the-jurisdiction
hearing) (mem. op.); Melton v. Farrow, No. 03-13-00542-CV, 2015 WL 681491,
at *3–4 (Tex. App.—Austin Feb. 10, 2015, pet. denied) (hearing on motion to
dismiss under section 101.106) (mem. op.).
Though Guzman did not verify the First Motion for Continuance, the Second
Motion for Continuance, or the supplements thereto, Guzman did submit an
affidavit of his attorney in support of each motion.1 The two affidavits are
substantially similar. In each affidavit, Guzman’s counsel testified as follows:
• “We cannot move forward without conducting discovery as the
[Defendants have] made this a matter of fact and not a matter of
law.”
• “[Guzman] needs additional time to conduct discovery in order to
respond to the [Defendants’ dispositive pleas and motions].”
1
Though the title of each affidavit included the word “verification,” the substance of each
document was an affidavit, not a verification. In neither affidavit did the affiant testify that any
statement in either motion for continuance was true or correct. In the body of each motion for
continuance, Guzman refers to the attached document as “an affidavit,” and Guzman did not
state that either motion was verified.
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• “No discovery has been adequately responded to . . . in this case;
yet these are the same Defendants seeking dispositive relief in the
form of a plea to the jurisdiction which mimics a summary
judgment.”
• “Without discovery, [Guzman] cannot adequately respond and
wishes this court to defer the motion for plea/motion [sic] and/or
sua sponte deny it as moot.”
Each of these two-paragraph affidavits contains general statements that
Guzman needs more time to conduct additional discovery but lacks any specifics
as to what types of additional discovery Guzman allegedly needs (for example,
interrogatories, depositions, or requests for production), what documents, if any,
Guzman needs that he has not yet obtained in discovery, or what witnesses, if any,
Guzman needs to depose. Neither affidavit addresses any of the following: (1) the
length of time the case has been on file, (2) the discovery Guzman has already
obtained, (3) the discovery Guzman allegedly still needs to conduct, (4) how long
it will take to conduct this additional discovery, (5) the materiality and purpose of
the discovery Guzman seeks, or (6) whether Guzman has exercised due diligence
to obtain the discovery sought. Absent these specifics, the trial court did not abuse
its discretion in denying the First Motion for Continuance, the Second Motion for
Continuance, and the supplements thereto. See Driskell, 2021 WL 1184400, at *3–
4; Carter v. Macfadyen, 93 S.W.3d 307, 310–11 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). Even if Guzman had verified his motions for continuance and
supplements thereto and even considering the statements of Guzman’s attorney at
the hearing on the motion, Guzman still failed to provide specifics regarding the
discovery allegedly needed, what it would take to obtain that discovery, and
Guzman’s due diligence, if any, in seeking to obtain that discovery. Even
considering the statements in Guzman’s motions and the statements of his attorney
at the hearing, the trial court did not abuse its discretion in denying the First
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Motion for Continuance, the Second Motion for Continuance, and the supplements
thereto. See Driskell, 2021 WL 1184400, at *3–4; Carter, 93 S.W.3d at 310–11.
Guzman served requests for disclosure and requests for production on
TxDOT, the City, and the County. On appeal, Guzman asserts that these
defendants did not adequately or completely respond to discovery. However, these
defendants contend that they sufficiently responded to Guzman’s discovery
requests, and Guzman does not specify the requests as to which the defendants’
responses were allegedly inadequate or the way in which the responses were
allegedly inadequate.
On appeal, Guzman asserts that he had no way to controvert the defendants’
evidence because “the discovery phase had just truly begun” and “[d]iscovery was
far from being closed” when the trial court ruled on the dispositive pleas and
motions. Under the version of the rules of civil procedure that existed at all times
relevant to this case, the record reflects that this case was governed by Texas Rule
of Civil Procedure 190.3 and that under this rule the discovery period ended on
September 20, 2019, nine months after the due date of the first response to written
discovery. See Tex. R. Civ. P. 190.4; former Tex. R. Civ. P. 190.2, 190.3 (amended
effective Jan. 1, 2021). Thus, the discovery period ended one week before the trial
court denied Guzman’s motions for continuance and ruled on the dispositive pleas
and motions. At this juncture, the discovery phase had not just begun, nor was
discovery “far from being closed.”
In his appellate brief Guzman states that the trial court denied his
continuance motions “before adequate discovery could be conducted.” But,
Guzman has not explained why he could not have conducted adequate discovery
during the nine months after the due date of the first response to written discovery.
Guzman asserts that the trial court should not have ruled on the pleas and motions
9
until adequate or sufficient discovery had been conducted regarding issues related
to the merits of Guzman’s claims, but Guzman has not shown that he exercised due
diligence in seeking whatever discovery he seeks. The City filed its plea to the
jurisdiction on June 10, 2019, supported by four affidavits. Two days later Guzman
filed his original First Motion for Continuance claiming that he needed more time
to conduct additional discovery. The trial court did not deny Guzman’s motions for
continuance and grant the defendants’ dispositive pleas and motions until
September 27, 2019, three and a half months after Guzman first moved for a
continuance. The record reflects that in this three-and-a-half-month period Guzman
did not try to take any depositions, did not serve any interrogatories, and did not
serve any new discovery requests. Guzman did file a motion to compel discovery
on July 26, 2019. Guzman has not shown that he exercised due diligence in
seeking discovery. It would be improper to reward a lack of diligence in pursuing
discovery, and “the failure of a litigant to diligently utilize the rules of civil
procedure for discovery purposes will not authorize the granting of a continuance.”
State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Driskell, 2021
WL 1184400, at *4.
Guzman has not shown that the trial court abused its discretion by denying
his motions for continuance and the supplements thereto. We overrule the second
issue.
B. Has Guzman shown that the trial court erred in dismissing the claims
against Bass and Munsch under section 101.106?
Guzman sued Bass and Munsch in their individual capacities and asserted
six alleged negligence claims against them. Guzman also sued Munsch in his
official capacity as Executive Director of TxDOT and Bass in his official capacity
as the City’s Public Works Director.
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In their plea to the jurisdiction and motion for summary judgment, Bass and
TxDOT asserted that the trial court should dismiss Guzman’s claims against Bass
based on the Subsections. In their motion to dismiss and motion for summary
judgment, the City and Munsch moved for dismissal of all claims by Guzman
against Munsch based on Munsch’s immunity from suit under the Subsections. The
trial court granted this requested relief and dismissed Guzman’s claims against
Bass and Munsch with prejudice for lack of jurisdiction. We presume for the sake
of argument that Guzman assigned error as to these trial court rulings.
We presume, without deciding, that Guzman has adequately briefed an
argument that the trial court erred in dismissing the claims against Bass and
Munsch in their individual capacities under the Subsections because claims
asserted against an employee of a governmental unit in the employee’s individual
capacity are not subject to dismissal under section 101.106. Even construing
Guzman’s brief liberally, we cannot conclude that Guzman has adequately briefed
any other argument challenging the trial court’s dismissal of Guzman’s claims
against either Bass or Munsch, and we find briefing waiver on these points.
See Harrington v. Hawthorne-Midway Palms, LLC, No. 14-18-00460-CV, 2020
WL 1061086, at *3 (Tex. App.—Houston [14th Dist.] Mar. 5, 2020, no pet.)
(mem. op.); Fox v. Alberto, 455 S.W.3d 659, 664 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied).
Under the Subsections:
(a) The filing of a suit under this chapter against a governmental unit
constitutes an irrevocable election by the plaintiff and immediately
and forever bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding the same
subject matter.
...
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(e) If a suit is filed under this chapter against both a governmental unit
and any of its employees, the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West, Westlaw through 2021 C.S.).
Guzman states in his live pleading that TxDOT and the City are governmental
units. Guzman also asserts that Bass is the Executive Director of TxDOT and that
Munsch is the City’s Public Works Director. Guzman conceded in one of his
replies in the trial court that Bass and Munsch are governmental employees.
Section 101.106 requires a plaintiff to decide on a theory of tort liability
before suit is even filed. See id.; Univ. of Tex. Health Science Cntr. at Houston v.
Rios, 542 S.W.3d 530, 536 (Tex. 2017). A plaintiff must “decide at the outset
whether an employee acted independently and is thus solely liable, or acted within
the general scope of his or her employment such that the governmental unit is
vicariously liable.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
657 (Tex. 2008) (emphasis added). That decision is “an irrevocable election at the
time suit is filed” whether to “su[e] the governmental unit under the Tort Claims
Act or proceed[] against the employee alone.” Id. (emphasis added). This early-
election requirement “reduce[s] the delay and expense associated with allowing
plaintiffs to plead alternatively that the governmental unit is liable because its
employee acted within the scope of his or her authority but, if not, that the
employee acted independently and is individually liable.” Id. The Supreme Court
of Texas has warned that “[b]ecause the decision regarding whom to sue has
irrevocable consequences, a plaintiff must proceed cautiously before filing suit and
carefully consider whether to seek relief from the governmental unit or from the
employee individually.” Id. The high court has counseled that when interpreting
section 101.106, courts “must favor a construction that most clearly leads to the
early dismissal of a suit against an employee when the suit arises from an
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employee’s conduct that was within the scope of employment.” Tex. Adjutant
Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013).
Before adding Bass and Munsch as defendants, Guzman filed this suit
against TxDOT and the City, relying on the waiver of immunity provided by the
Texas Tort Claims Act, and without suing any employees of either governmental
unit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101, et seq. (West, Westlaw
through 2021 C.S.). Guzman’s filing of suit against TxDOT and the City
constituted an irrevocable election by Guzman and immediately and forever barred
any suit or recovery by Guzman against Bass or Munsch regarding the same
subject matter. See Molina v. Alvarado, 463 S.W.3d 867, 871 (Tex. 2015).
Guzman’s claims against Bass and Munch in this case regard the same subject
matter as Guzman’s claims against TxDOT and the City, and the bar of section
101.106(a) applies to Guzman’s claims against Bass or Munsch in their individual
capacities. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a); Molina, 463
S.W.3d at 871. Guzman later filed suit against Bass and Munsch, as well as
TxDOT and the City. Bass was entitled to be dismissed when TxDOT filed a
motion to dismiss under subsection (e), and Munsch was entitled to be dismissed
when the City filed a motion to dismiss under subsection (e). See Tex. Civ. Prac.
& Rem. Code Ann. § 101.106(e); Rios, 542 S.W.3d at 537.
We reject Guzman’s argument that claims asserted against an employee of a
governmental unit in the employee’s individual capacity are not subject to
dismissal under section 101.106. Guzman has not shown that the trial court erred in
dismissing Guzman’s claims against Bass and Munsch under the Subsections.
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C. Has Guzman adequately briefed an argument that the trial court erred
in granting TxDOT’s Plea to the Jurisdiction and Motion for Summary
Judgment?
Guzman asserted five alleged negligence claims against TxDOT. In its plea
to the jurisdiction and motion for summary judgment (“TxDOT’s Plea and
Motion”), TxDOT asserted that the two-year statute of limitations in section
16.003 of the Civil Practice and Remedies Code bars Guzman’s claims against
TxDOT. The trial court granted TxDOT’s Plea and Motion and ordered that
Guzman take nothing against TxDOT. We presume for the sake of argument that
Guzman assigned error as to this trial court ruling. In his first issue, Guzman
asserts that his live pleading related back to his Original Petition as to all
defendants and all claims.
In his appellate brief, Guzman does not provide any analysis or citations to
legal authority in support of an argument that the trial court erred in granting
TxDOT’s Plea and Motion as to Guzman’s claims against TxDOT. Nor does
Guzman provide any analysis or citations to legal authority in support of an
argument that his live pleading related back to his Original Petition as to all
defendants and all claims. Though he states in a conclusory manner that his live
pleading related back to his Original Petition and that the statute of limitations does
not apply, Guzman does not discuss the “relation back” doctrine or cite any legal
authority regarding this doctrine. Guzman does not cite section 16.003 of the Civil
Practice and Remedies Code or any cases involving a statute-of-limitations issue.
Guzman does not present a statute-of-limitations analysis as to his claims against
TxDOT. Guzman’s appellate briefing is not sufficient to articulate a clear and
concise argument in support of a contention that the trial court erred in determining
that the two-year statute of limitations in section 16.003 of the Civil Practice and
Remedies Code bars Guzman’s claims against TxDOT. Nor is Guzman’s appellate
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briefing sufficient to articulate a clear and concise argument in support of a
contention that Guzman’s live pleading related back to his Original Petition as to
all defendants and all claims. Even construing Guzman’s brief liberally, we cannot
conclude that Guzman adequately briefed an argument that (1) Guzman’s live
pleading related back to his Original Petition as to all defendants and all claims, or
(2) the trial court erred in granting TxDOT’s Plea and Motion as to Guzman’s
claims against TxDOT. See Harrington, 2020 WL 1061086, at *3; Fox, 455
S.W.3d at 664. Thus, we find briefing waiver on these points, and we overrule the
first issue. See Harrington, 2020 WL 1061086, at *3; Fox, 455 S.W.3d at 664.
D. Has Guzman adequately briefed an argument that the trial court erred
in granting the County’s Amended Plea to the Jurisdiction?
Guzman asserted five alleged negligence claims against the County. In its
amended plea to the jurisdiction, the County asserted that (1) the County does not
own, occupy, control, or maintain the highway area at issue in this lawsuit and
therefore owed no duty to Guzman; and (2) even if the County owed a duty to
Guzman, section 75.002 of the Civil Practice and Remedies Code, the Recreational
Use Statute, applies and requires that, to be liable to Guzman, the County must
have been grossly negligent or must have acted with malicious intent or in bad
faith, and the evidence established that the County was not grossly negligent; (3)
because Guzman was injured by an alleged premises defect on governmental
property, Guzman is limited to asserting a premises liability claim if immunity is
waived under the Texas Tort Claims Act, and Guzman may not assert general
negligence claims; and (4) Guzman’s claims against the County are barred by the
County’s immunity from suit. The trial court granted the County’s amended plea to
the jurisdiction in all things and dismissed Guzman’s claims against the County
with prejudice for lack of jurisdiction. We presume for the sake of argument that
Guzman assigned error as to this trial court ruling.
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In his appellate brief, Guzman does not provide any analysis or citations to
legal authority in support of an argument that the trial court erred in granting the
County’s amended plea to the jurisdiction. Guzman does not assert that the County
owned, occupied, controlled, or maintained the highway area at issue in this
lawsuit. Guzman has not explained why the trial court erred in determining that the
County did not own, occupy, control, or maintain the highway area at issue in this
lawsuit and therefore owed no duty to Guzman. Guzman does not cite section
75.002 or section 101.058 of the Civil Practice and Remedies Code. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 75.002, 101.058 (West, Westlaw through 2021 C.S.).
Guzman has not provided an analysis of the evidence in support of an argument
that the trial court erred in determining that the evidence establishes that the
County was not grossly negligent. Guzman’s appellate briefing is not sufficient to
articulate a clear and concise argument in support of a contention that none of the
grounds in the County’s amended plea support the trial court’s determination that it
lacked jurisdiction over Guzman’s claims against the County. Even construing
Guzman’s brief liberally, we cannot conclude that Guzman adequately briefed an
argument that the trial court erred in granting the County’s amended plea to the
jurisdiction. See Harrington, 2020 WL 1061086, at *3; Fox, 455 S.W.3d at 664.
Thus, we find briefing waiver on this point. See Harrington, 2020 WL 1061086, at
*3; Fox, 455 S.W.3d at 664.
E. Has Guzman adequately briefed an argument that the trial court erred
in granting the City’s Plea to the Jurisdiction?
Guzman asserted five alleged negligence claims against the City. In its plea
to the jurisdiction, the City asserted that absent a waiver of the City’s
governmental immunity the trial court lacks subject-matter jurisdiction over
Guzman’s claims against the City. The City also asserted that the uncontroverted
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evidence establishes that Guzman cannot maintain a claim against the City for
which its governmental immunity from suit is waived because (1) Guzman was
engaged in recreation at the time of the incident made the basis of this suit, and
thus, under the Recreational Use Statute, to the extent that the City had any control
of the alleged premises defect, the standard of care owed would be that owed to a
trespasser, which requires a showing of gross negligence, malicious intent, or bad
faith on the part of the City; (2) the uncontroverted evidence establishes that at the
time of the incident made the basis of this suit, the City did not have actual,
subjective awareness that the storm sewer grate about which Guzman complains
posed an extreme degree of risk to a user of the highway’s right-of-way, and such
actual subjective awareness is an essential element of a claim by Guzman against
the City under the trespasser standard of gross negligence, malicious intent, or bad
faith; and (3) Guzman’s first and fifth claims against the City do not state a claim
for which the City’s immunity from suit is waived by the Tort Claims Act. In
support of its jurisdictional plea, the City submitted an affidavit of the City
Administrator, an affidavit of the City’s Public Works Director, an affidavit of the
Crew Leader of the Street Department of the Public Works Department of the City,
and an affidavit of the City Secretary of the City.
The trial court granted the City’s plea to the jurisdiction in all things and
dismissed Guzman’s claims against the City with prejudice for lack of jurisdiction.
We presume for the sake of argument that Guzman assigned error as to this trial
court ruling.
In his appellate brief, Guzman does not provide any analysis or citations to
legal authority in support of an argument that the trial court erred in granting the
City’s plea to the jurisdiction. Guzman does not cite the Recreational Use Statute,
nor does he address whether that statute applies to this case or the effect of its
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application to this case. Guzman does not analyze the grounds asserted by the City
in its plea to the jurisdiction. Guzman does not analyze the evidence submitted by
the City in support of its plea2 in an attempt to argue that this evidence does not
establish that at the time of the incident made the basis of this suit, the City did not
have actual, subjective awareness that the storm sewer grate about which Guzman
complains posed an extreme degree of risk to a user of the highway’s right-of-
way.3 Guzman’s appellate briefing is not sufficient to articulate a clear and concise
argument in support of a contention that none of the grounds in the City’s plea
support the trial court’s determination that it lacked jurisdiction over Guzman’s
claims against the City. Even construing Guzman’s brief liberally, we cannot
conclude that Guzman adequately briefed an argument that the trial court erred in
granting the City’s plea to the jurisdiction. See Harrington, 2020 WL 1061086, at
*3; Fox, 455 S.W.3d at 664. Thus, we find briefing waiver on this point.
See Harrington, 2020 WL 1061086, at *3; Fox, 455 S.W.3d at 664.
F. Has Guzman adequately briefed his fourth issue regarding his
motion to compel discovery?
Guzman filed a motion to compel discovery asking the trial court to compel
TxDOT, the County, and the City to fully respond to requests for disclosure and
2
Guzman does assert in his briefing that the affidavit of the City Administrator is “improper
summary judgment evidence” because it is an affidavit of an interested witness whose testimony
could not have been readily controverted because the City has not adequately answered
discovery regarding the issues addressed in the affidavit. Guzman made substantially similar
statements in his motions for continuance, and these statements address Guzman’s complaint that
the trial court should have granted these motions and not ruled on the City’s plea. This complaint
has been addressed in section II. A. above.
3
In his brief, Guzman makes the following statements, unsupported by any citation to the record
or to a legal authority: (1) “Fact issues exist as to whether the City was willful, wanton, or
grossly negligent.”; and (2) “Whether the City was willful, wanton, or grossly negligent is a fact
question for the jury.” But, these conclusory statements do not constitute adequate briefing as to
whether the evidence raises a fact issue. See Fox, 455 S.W.3d at 664.
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requests for production to which Guzman alleged these parties had not completely
responded. Rather than ruling on this motion, the trial court determined in its final
judgment that the motion is moot. In his fourth issue, Guzman asserts that the trial
court erred in failing to grant his motion to compel discovery and in stating that the
motion is moot.
In his appellate brief, Guzman does not provide any analysis or citations to
legal authority in support of an argument that the trial court erred in determining
that the motion to compel discovery is moot. Guzman does not discuss the
mootness doctrine or cite a case regarding the mootness doctrine. Guzman does not
analyze the discovery requests listed in the motion to compel discovery to which
Guzman claims complete responses had not been made. Guzman’s appellate
briefing is not sufficient to articulate a clear and concise argument in support of a
contention that the trial court erred in determining that the motion to compel
discovery is moot and in failing to grant the motion. Even construing Guzman’s
brief liberally, we cannot conclude that Guzman adequately briefed his fourth
issue. See Harrington, 2020 WL 1061086, at *3; Fox, 455 S.W.3d at 664. Thus,
we find briefing waiver on this point and overrule Guzman’s fourth issue.
See Harrington, 2020 WL 1061086, at *3; Fox, 455 S.W.3d at 664.
G. Has Guzman adequately briefed his third issue?
In his third issue, Guzman asserts that the trial court exceeded its authority
by making findings as to whether the sewer grate posed an unreasonable risk to
Guzman, and whether any of the defendants adequately warned Guzman of said
danger. In his appellate brief, Guzman does not provide any analysis or citations to
legal authority in support of an argument that the trial court exceeded its authority
by making these findings. Guzman does not discuss the trial court’s authority to
make findings in this context or cite a case regarding this authority. Guzman’s
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appellate briefing is not sufficient to articulate a clear and concise argument in
support of a contention that the trial court exceeded its authority by making these
findings. Even construing Guzman’s brief liberally, we cannot conclude that
Guzman adequately briefed his third issue. See Harrington, 2020 WL 1061086, at
*3; Fox, 455 S.W.3d at 664. Thus, we find briefing waiver on this point and
overrule Guzman’s third issue. See Harrington, 2020 WL 1061086, at *3; Fox, 455
S.W.3d at 664.
III. CONCLUSION
Guzman has not shown that the trial court abused its discretion by denying
his motions for continuance and the supplements thereto. We reject Guzman’s
argument that claims asserted against an employee of a governmental unit in the
employee’s individual capacity are not subject to dismissal under section 101.106.
Guzman has not shown that the trial court erred in dismissing Guzman’s claims
against Bass and Munsch under the Subsections. Even construing Guzman’s brief
liberally, we cannot conclude that Guzman adequately briefed an argument that (1)
the trial court erred in granting TxDOT’s Plea and Motion as to Guzman’s claims
against TxDOT; (2) the trial court erred in granting the County’s amended plea to
the jurisdiction; or (3) the trial court erred in granting the City’s plea to the
jurisdiction. Having overruled all of Guzman’s issues, we affirm the trial court’s
judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Poissant, and Wilson.
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