Jill Miedke as Next Friend of Tyler Miedke v. Metropolitan Transit Authority

Affirmed and Memorandum Opinion filed May 29, 2003

Affirmed and Memorandum Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00755-CV

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JILL MIEDKE, as next friend of TYLER MIEDKE, Appellant

V.

METROPOLITAN TRANSIT AUTHORITY, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 01-27312

M E M O R A N D U M   O P I N I O N

Asserting seven points of error, appellant Jill Miedke, as next friend of Tyler Miedke, appeals the granting of summary judgment and dismissal for lack of jurisdiction in favor of appellee Metropolitan Transit Authority. We affirm.

PROCEDURAL AND FACTUAL HISTORY

On May 3, 2001, eleven-year-old Tyler Miedke left his school in Houston and boarded a bus operated by appellee Metropolitan Transit Authority (“METRO”), a governmental entity.  The Houston Intermediate School District (“HISD”) utilizes METRO buses for the transport of school children to and from their homes.^[1]

When Tyler exited the bus at a corner near his home, he ran in front of the stopped bus into an adjacent lane of traffic.  Upon doing so, Tyler was hit by a truck owned by PRC Roofing (“PRC”) and driven by PRC employee Julian Morales.  Tyler suffered personal injuries.

On May 24, 2001, Tyler=s mother, Jill Miedke, filed suit against METRO, HISD, PRC, and Morales, alleging defendants= negligent acts or omissions proximately caused Tyler=s injuries.  In response to this suit, appellee METRO filed a traditional motion for summary judgment, a motion to dismiss for lack of jurisdiction, and special exceptions. The trial court denied the motion for summary judgment and motion to dismiss on December 26, 2001; appellee=s special exceptions were granted in part and denied in part on January 14, 2002; and appellant filed an amended petition subsequent to the special exceptions on February 1, 2002.

In May, 2002, appellee filed a no-evidence motion for summary judgment on the issue of METRO=s alleged non-use of hazard lights or “flashers.”  METRO also filed a motion to dismiss for lack of jurisdiction on the same day.  The two motions were combined into one instrument with distinct sections.

Prior to hearing the motions, the trial court requested that appellee physically separate the two motions into two instruments.  Appellee did so and on June 24, 2002, the trial court held its hearing.^[2]  As a result of this hearing, the trial court (1) granted the no-evidence motion for summary judgment as to the flasher issue, and (2) granted the motion to dismiss for lack of jurisdiction as to all other matters.

The same day as the trial judge granted summary judgment and the appellee=s motion to dismiss, appellant filed her fifth amended petition naming METRO driver Aardon Wyllie as defendant.  Because suit against a governmental employee is barred after judgment or settlement of a claim against a government entity, the suit against Wyllie has been dismissed. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.106 (Vernon 1997). 

The current appeal arises from the granting of appellee=s no-evidence motion for summary judgment and its motion to dismiss for lack of jurisdiction.

ISSUES ON APPEAL

Appellant asserts seven points of error, claiming the trial court erred in (1) granting appellee=s motion for summary judgment, and (2) granting appellee=s motion to dismiss for lack of jurisdiction. The bases for appellant=s assertions are that (3) appellee failed to satisfy the pleading requirements of a no-evidence motion for summary judgment; (4) the trial court granted the summary judgment on the basis of an unpleaded affirmative defense; (5) the summary judgment and dismissal were granted prior to the filing of special exceptions; (6) the dismissal of appellant=s suit for lack of jurisdiction was improperly based on appellee=s claim of immunity; and (7) appellee=s motion for summary judgment failed to address appellant=s non-flasher-related allegations of negligence.

Because appellant=s points of error generally relate to only two issues, we address them accordingly.

I.   SUMMARY JUDGMENT

In her first, third, fourth, fifth, and seventh points of error, appellant asserts the trial court erred in granting appellee=s no-evidence summary judgment because METRO failed  to follow requirements for filing a no-evidence summary judgment motion; because motions for summary judgment may not be granted on the basis of an unpleaded affirmative defense; because special exceptions were not granted; and because the appellee failed to address appellant=s non-flasher-related allegations.  We disagree.

A.        Standard of Review

In reviewing a Rule 166a(i) no-evidence summary judgment, we review the evidence in the light most favorable to the respondent against whom the judgment was rendered, disregarding all contrary evidence and inferences.  Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex. App.CHouston [14th Dist.] 1998, no pet.); see also Merrell Dow Pharms. Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact.  Id. 

A no-evidence summary judgment is improperly granted if the respondent counters with more than a scintilla of probative evidence to raise a genuine issue of material fact.  See Tex. R. Civ. P. 166a(i); Isbell, 983 S.W.2d at 338; Havner, 953 S.W.2d at 711.  More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W. 2d 10, 25 (Tex. 1994)).

A nonmovant will thus defeat a Rule 166a(i) motion for summary judgment by presenting the trial court with some evidence on each element of his claim for which the movant asserts there is no evidence.  Tex. R. Civ. P. 166a(i) & cmt.

B.        Discussion

1.         Was summary judgment proper?

In her first point of error, appellant asserts the trial court improperly granted appellee=s no-evidence motion for summary judgment because appellant “met her burden of producing more than a scintilla of evidence” on the elements of METRO=s negligence.  We disagree.

As stated above, a no-evidence point will be sustained when there is a “complete absence of evidence of a vital fact” or when “the evidence offered to prove a vital fact is no more than a mere scintilla.”  Merrell Dow Pharms. Inc., 953 S.W.2d at 711.

Here, METRO filed its no-evidence summary judgment motion on June 20, 2002, asserting that appellant had failed to produce evidence on “an essential element” of one of her claimsCnamely, that Wyllie negligently failed to activate flashers on the bus.^[3]  See Tex. R. Civ. Proc. ' 166a(i).  Indeed, METRO referenced three witnesses who testified the flashers were in operation.  Thus, to defeat METRO=s motion, appellant was obligated to present the trial court with evidence on this element. See Tex. R. Civ. P. 166a(i) & cmt.  This she did not do. 

Although appellant=s response to appellee=s summary judgment motion includes an affidavit by appellant=s attorney swearing to the authenticity of an attached copy of  METRO=s safety manualCpresumably to demonstrate METRO had a duty to activate its lights when dropping off childrenCthere was no evidence presented with the response demonstrating that the bus=s lights were in fact not activated. 

Because appellant has presented no depositions, interrogatories, or affidavits supporting the vital fact that Wyllie failed to activate his vehicle=s flashers, we conclude appellant failed to carry her burden under Rule 166a(i).^[4]  As such, the trial court properly granted appellee=s motion for summary judgment.  See Tex. R. Civ. P. 166a(i). 

Accordingly, we overrule appellant=s first point of error.

2.         Did appellee=s summary judgment motion fail to satisfy pleading requirements?

In her third point of error, appellant asserts the trial court improperly granted summary judgment because METRO=s motion for summary judgment failed to comply with the pleading requirements set forth by the Texas Rules of Civil Procedure. Specifically, she claims appellee=s motion did not specify the essential element or elements of any of the “dozen or so claims set out by Miedke” upon which Miedke presented no evidence.^[5]  We disagree.

According to Rule 166a(i), a no evidence summary judgment motion may be submitted only “[a]fter adequate time for discovery.”  Tex. R. Civ. P. 166a(i).  In such a motion, a movant “must state the elements as to which there is no evidence.”  Id.; Lampasas, 988 S.W.2d at 436 (requiring movant to specify the essential element or elements of a claim or defense to which there is no evidence). The elements of negligence are (1) a duty that is owed; (2) a breach of that duty; and (3) damages proximately caused by the breach.  See Van Horn v. Chambers,  970 S.W.2d 542, 544 (Tex. 1998); Lions Eye Bank of Tex. v. Perry, 56 S.W.3d 872, 875 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).

In its motion, appellee stated: “[a]n adequate time for discovery has elapsed in this case . . . the discovery period for this case ends on June 10, 2002.”  Appellee asserted that appellant lacked “evidence on an essential element of one of [appellant=s] claims”Cnamely, that METRO=s bus driver negligently operated the bus by “failing to operate necessary safety lights or >flashers= to warn the driving public of people exiting the bus.”

Because we interpret appellant=s petition as asserting that METRO=s failure to use flashers was a breach of duty that proximately caused Tyler=s injuries, and because it was this element that appellee addressed in its no-evidence motion for summary judgment, we conclude appellee properly satisfied Rule 166a(i).

Therefore, we overrule appellant=s third point of error.

3.         Was summary judgment granted on the basis of an unpleaded affirmative defense?

In her fourth point of error, appellant asserts the trial court granted appellee=s no-evidence motion for summary judgment on the basis of an unpleaded affirmative defense, and that this was improper.  See Harrill v. A.J.=s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex. App.CDallas 2000, no pet.) (defendant not entitled to bring no-evidence motion for summary judgment on its affirmative defense).  This argument lacks merit.

First, there was no assertion of an affirmative defense made in appellee=s no-evidence motion for summary judgment.^[6]  Next, there was no assertion of an affirmative defense  made in appellee=s reply to appellant=s response to the motion for summary judgment.  Finally, although the trial court granted METRO=s motion to dismiss in the same order as it granted METRO=s summary judgment motion, there is no reference to an affirmative defense made in conjunction with the trial court=s order granting the summary judgment; rather, the court=s docket indicates only that the trial court granted METRO=s no-evidence summary judgment “as to the flasher issue.”^[7] 

Because there is no evidence that the trial court granted appellee=s no-evidence summary judgment on the basis an affirmative defense, we overrule appellant=s fourth point of error.

4.         Were special exceptions filed?

In her fifth point of error, appellant asserts summary judgment and dismissal for lack of jurisdiction were improper because appellant should have been afforded the right to amend her petition after special exceptions had been granted.  See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Tex. Dep’t of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974). Appellee should have filed special exceptions, claims appellant, wherever it felt “Plaintiff=s pleadings [were] insufficient to [ ] support a cause of action.”  This argument fails for two reasons.

First, a court is not required to allow an opportunity to amend pleadings before granting summary judgment if an amendment will not correct a pleading defect.  Hidalgo v. Sur. Sav. & Loan Ass=n, 462 S.W.2d 540, 543 n. 1 (Tex. 1971); Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 641 (Tex. App.CHouston [1st Dist.] 1999, pet. denied).  Here,  the trial court granted summary judgment on June 24, 2002 as to the issue of the flasher use only.  This was a matter of law regarding evidentiary insufficiency, not legal or procedural insufficiency; thus, no pleading amendment would have corrected the fact that appellant lacked evidence to support her claim.  See e.g. Townsend v. Mem’l Med’l Ctr, 529 S.W.2d 264, 267 (Tex. Civ. App.CCorpus Christi 1975, writ ref. n.r.e.) (purpose of special exceptions is to force clarification of and specification in pleadings that are vague, indefinite, or uncertain).

Moreover, the record indicates appellee did file special exceptions. Although appellee=s special exceptions are not in the record, notations in the court=s docket indicate  (1) the trial court initially denied a motion to dismiss for lack of jurisdiction on December 26, 2001, and (2) the trial court partially granted a motion for special exceptions filed by METRO on January 14, 2002.  The record also shows appellant filed five amended petitionsCfour of them before the trial court ruled on appellee=s motions June 24, 2002.

Here, amended pleadings could not have cured appellant=s evidentiary insufficiency.  Nevertheless, special exceptions were granted and appellant had an opportunity to correct  her pleadings. Thus, we overrule appellant=s fourth point of error.

5.         Did appellee fail to address appellant’s “other allegations”?

In her seventh point of error, appellant asserts the trial court improperly granted summary judgment because appellee “failed to address numerous other allegations of negligence” found in appellant=s fourth amended petition.^[8]  We disagree.

Appellee=s no-evidence motion for summary judgment was not granted as to all of  appellant=s claims; rather, it was granted on the issue of flasher-use only.  It was an interlocutory judgment.  A notation in the court=s docket supports this conclusion:  on June 24, 2002, it was noted that “[d]efendant METRO=s motion for summary judgment [was] granted as to ‘flasher issue.’”

Because the trial court granted appellee=s motion for summary judgment only with regard to the flasher issue, it is immaterial whether appellee addressed appellant=s other causes of action in its motion. Indeed, a trial court’s granting of partial summary judgment  is proper. See Tex. R. Civ. P. 166a(e); see also McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (there can be no presumption that a motion for summary judgment addresses all of the movant=s claims).

Thus, we overrule appellant=s seventh point of error.

II.   MOTION TO DISMISS

In her second and sixth points of error, appellant asserts that the trial court improperly granted appellee=s motion to dismiss for lack of jurisdiction.  We disagree.

A.        Standard of Review

Subject matter jurisdiction is essential for a court to decide a case; it “is never presumed and cannot be waived.”  Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443B44 (Tex. 1993).  A trial court=s lack of subject matter jurisdiction is fundamental error and must be noted and reviewed by the appellate court at any time it appears.  Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex. 1985).  If a trial court lacks subject matter jurisdiction, it has no choice but to dismiss the case.  Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001).

Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review.  State ex. rel. State Dep’t of Highways and Public Transp. v. Gonzales, 82 S.W.3d 322, 327 (Tex. 2001).  In reviewing an order of dismissal for want of jurisdiction based on the pleadings, the reviewing court construes the pleadings in favor of the pleader and looks to the pleader=s intent.  Tex. Ass’n of Bus., 852 S.W.2d at 446; Paradissis v. Royal Indem. Co., 496 S.W.2d 146, 148 (Tex. App.CHouston [14th Dist.] 1973), aff’d, 507 S.W.2d 526 (Tex. 1974).  Only matters presented to the trial court will be reviewed upon appeal from the order dismissing the case for want of jurisdiction.  Id. at 148.

B.        Discussion

1.         Did appellee waive governmental immunity?

In her sixth point of error, appellant asserts the trial court erred in granting appellee=s motion to dismiss for lack of jurisdiction because appellee waived its governmental immunity.  We disagree.

Under the doctrine of sovereign immunity, the State is not liable for the torts of its agents or officers unless there is a constitutional or statutory waiver of immunity.  Mount Pleasant ISD v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989).  Units of government are immune from prosecution for negligence in performance of their governmental functions, except as provided by the Texas Tort Claims Act.  Tex. Civ. Prac. & Rem. Code Ann. '' 101.002 and 101.021 (Vernon 1997).  Woomer v. City of Galveston, 765 S.W.2d 836, 838 (Tex. App.CHouston [1st Dist.] 1988, writ denied). 

To sue a governmental unit under the Texas Tort Claims Act, a cause of action must either (1) be caused by an act or omission arising from the operation or use of a motor-driven vehicle or piece of equipment, and be of such a nature that the negligent employee would be personally liable to the claimant according to Texas law, or (2) be caused by the 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 Ann. ' 101.021 (Vernon 1997).  It is the plaintiff=s burden to plead and prove waiver of sovereign immunity.  City of El Paso v. Hernandez, 16 S.W.3d 409, 414 (Tex. App.CEl Paso 2000, pet. denied); see also Hampton v. Univ. of TexasCM.D. Anderson Cancer Ctr, 6 S.W.3d 627, 629 (Tex. App.CHouston [1st Dist.] 1999, no pet.) (it is plaintiff=s burden to allege and prove facts affirmatively showing trial court has subject matter jurisdiction).

Here, appellant does not allege that METRO=s bus was defective in any way or that its condition caused Tyler=s injuries.  Neither does she assert that METRO waived immunity under subsection 101.021(2) by negligently using the bus as “tangible personal property.”  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2) (Vernon 1997).  Rather, appellant asserts appellee waived immunity under the Texas Tort Claims Act because Tyler=s injuries arose from the “operation or use” of a motor-driven vehicleCnamely, a bus.  See id. at ' 101.021(1).

To determine whether a cause of action involves the “use or operation” of a motor-driven vehicleCand so invokes waiver of immunity under subsection 101.021(1)Ca court must construe the phrase “operation and use” according to the ordinary meaning of the terms “operation” and “use.”  Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969);  Mount Pleasant ISD, 766 S.W.2d at 211.  “Operation” refers to “a doing or performing of a practical work,” and “use” means “to put or bring into action or service; to employ for or apply to a given purpose.”  Id.  See also Dallas Area Rapid Transit v. Whitley, CS.W.3d C, 2002 WL 32077508, at *2 (Tex. April 17, 2003).

In order for an injury to “arise from” the operation or use of a motor-driven vehicle, there must be a “nexus” between the plaintiff=s injury and the actual operation and use of the vehicle.  Id. (bus driver=s failure to return to pick up plaintiffCand subsequent decision  to drop off plaintiff=s assailant two blocks from plaintiff=s drop-off spotCdid not constitute “use” of bus); LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 51 (Tex.1992); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995) (proximate cause is not established if defendant=s conduct does no more than furnish the condition that makes plaintiff=s injury possible).  Mere “non-use” of property generally cannot support a claim under the Texas Tort Claims Act. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994). But see Hitchcock v. Garvin, 738 S.W.2d 34 (Tex. App.CDallas 1987, no writ) (bus driver=s failure to activate flashers is an act or omission arising from the operation or use of a motor-driven vehicle).

When applying the term “use” or “operation” to school bus cases, appellate courts have generally examined whether the government employee’s act involved actual use or operation of the vehicle, rather than supervision of children.  Austin ISD v. Gutierrez, 54 S.W.3d 860, 863 (Tex. App.CAustin 2001, pet. denied) (collecting cases); Goston v. Hutchison and Houston ISD, 853 S.W.2d 729, 733 (Tex. App.CHouston [1st Dist.] 1993, no writ) (noting that when allegations of school bus negligence relate to the direction, control and supervision of students, suit is barred, but when allegations relate to the negligent use of the motor vehicle itself, suit is not barred).  Even if an employee’s act takes place on or near a motor vehicle, if the act involves only supervision or control, immunity is not waived.  Austin ISD, 54 S.W.3d at 863.^[9] 

In the instant case, appellant does not allege Tyler=s injuries were proximately caused by being struck by the METRO bus, by falling down the bus=s steps, or by being struck by the bus=s doors.  Rather, she alleges Morales hit Tyler because METRO did not activate the bus=s warning lights to alert passing motorists, and because METRO=s driver failed to drop Tyler off at a safe place, failed to follow proper procedure, failed to employ proper safety mechanisms, and failed to supervise and direct exiting children properly. 

None of these claimsCwith the possible exception of the flasher issue^[10]Cinclude the assertion that Tyler’s injuries arose from the manner in which the bus was operated or used; rather, appellant asserts that policies were not followed and that improper decisions were made that placed Tyler in danger. Compare e.g. Martinez v. VIA Metro. Transit Auth., 38 S.W.3d 173, 177 (Tex. App.CSan Antonio 2000, no pet.) (bus driver=s decision not to drive passenger to nearby hospital and failure to properly operate bus doors and mechanical lift constituted “non-use” of a motor vehicle and so did not waive immunity).^[11]

Because appellant=s non-flasher causes of action cannot be said to Aarise from@ the use or operation of a motor-driven vehicle or piece of equipment, the Texas Tort Claims Act does not apply.  See LeLeaux, 835 S.W.2d at 51 (no operation or use of motor vehicleCand hence, no waiver of immunityCwhere child’s head was hit while boarding stationary school bus); Hopkins v. Spring ISD, 736 S.W.2d 617, 619 (Tex. 1987) (no operation or use of motor vehicleCand hence, no waiver of immunityCwhere school district failed to provide adequate medical care to student who suffered convulsions while riding bus).  Thus, appellant has failed to carry her burden with regard to subsection 101.021(1).  See Tex. Civ. Prac. & Rem. Code ' 101.021(1). 

Finding no injury arising from the use or operation of a motor-driven vehicle, we conclude appellee did not waive its immunity with regard to appellant=s non-flasher-related causes of action.  See City of El Paso, 16 S.W.3d at 416 (no waiver of immunity where plaintiff alleged ambulance personnel made incorrect decision regarding life-threatening emergency and took patient to wrong hospital); City of Orange v. Jackson, 927 S.W.2d 784, 786 (Tex. App.CBeaumont 1996, no pet.) (no waiver of immunity where plaintiff alleged negligent implementation of policy and asserted failure to use police vehicle to transport plaintiff to medical facility).

Accordingly, we overrule appellant=s sixth point of error.

2.         Was the trial court’s dismissal for lack of jurisdiction proper?

In her second point of error, appellant asserts dismissal of appellant’s claims against appellee was improper on the basis of lack of jurisdiction. We disagree.

Subject matter jurisdiction is essential for a court to decide a case.  Tex. Ass’n of Bus., 852 S.W.2d at 443B44.  If a trial court lacks subject matter jurisdiction, it has no choice but to dismiss the case.  Am. Motorists Ins. Co., 63 S.W.3d at 805.

As stated above in Section I. B. (1), the trial court properly granted appellee=s no-evidence summary judgment motion on the issue of flasher use. After the flasher issue was removed, appellant’s remaining claims all pertained to failure to act, failure to follow policy, failure to employ safety devices and procedures, and failure to supervise and direct disembarking childrenCnothing arising from the operation or use of a motor-driven vehicle or piece of equipment or involving the condition or use of tangible personal or real property.   See ' 101.021.

Because none of appellant=s causes of action fell within the purview of ' 101.021, appellee did not waive immunity on appellant=s remaining claims.  As such, the trial court had no choice but to dismiss appellant’s “other claims” for lack of jurisdiction.  See id.; LeLeaux, 835 S.W.2d at 51 (school district not liable for injuries sustained by student entering school bus through emergency rear door because bus was only the “setting” for the injury and not in operation when child was hurt).

Finding the trial court properly dismissed appellant=s “other allegations” for lack of jurisdiction, we overrule appellant=s second point of error.

Having overruled all of appellant=s points of error, we affirm the judgment of the trial court.

/s/        John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

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^[1]  Students pay a fee to ride the buses and METRO provides no special bus services to the children.

^[2]  While there is no copy of appellee’s severed motion to dismiss in the record, the record does contain (1) a copy of a letter from defense counsel to the district clerk referencing severance of appellee’s motion for summary judgment and motion to dismiss; (2) a copy of appellee’s severed motion for summary judgment; (3) a copy of a communication from appellee to the district clerk requesting inclusion of appellee=s severed motion to dismiss in the record; and (4) a copy of the trial court=s order granting both appellee’s severed motion for summary judgment and its severed motion to dismiss.

^[3]  In its brief, appellee asserts that the pleading before the court on June 24, 2002, the day of appellee’s summary judgment hearing, was appellant’s fourth amended original petition.  The record does not contain a copy of this instrument; rather, it contains appellant’s first amended and fifth amended original petitions (filed May 24 and June 24, 2002 respectively) and METRO’s motion for summary judgment (filed February 2, 2002), which includes an attached copy of appellee’s fourth amended petition.

^[4]  Appellant claims in her brief that “Miedke=s pleadings tell the story”; however, pleadings do not constitute summary judgment proof.  See Lampasas v. Spring Ctr, Inc., 988 S.W.2d 428, 436 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (finding plaintiff could not defeat a no-evidence motion for summary judgment by pleadings instead of proof because the purpose of a summary judgment is to “pierce the pleadings” and “assess the proof” in order to see whether there is a genuine need for trial). 

Despite appellant=s citation of extensive testimony from Tyler’s deposition and the deposition of METRO’s driver in both appellant=s brief and response to appellee’s motion for summary judgment, appellant did not direct the court to any evidence in the record that supports the assertion that the flashers were not activated.

^[5]  Appellant also asserts appellee’s no-evidence summary judgment motion violated Rule 166a(i) by failing to include (1) a factual summary of the case; (2) the claims brought by the plaintiff, with each element set out and defined with supporting authority; (3) a list of claims and the elements which the movant alleges the non-movant cannot support with evidence; (4) a description of how there has been adequate time for discovery; (5) legal authorities; and (6) a prayer describing relief sought.  Because Rule 166a(i) does not require components (1), (2), (5), and (6), and because appellant fails to cite authority supporting the proposition that such components are required, we do not address this claim.

^[6]  Appellee=s severed motion (filed June 20, 2002) does contain a brief mention of lack of waiver of immunity; however, this appears to be a remnant of the May 29, 2001 instrument in which appellee’s motion for summary judgment and appellee=s motion to dismiss for lack of jurisdiction were combined.

^[7]  Appellee did assert governmental immunity in its original answer and its motion to dismiss for lack of jurisdiction; however, nothing in the record suggests the trial court granted appellee=s no-evidence summary judgment motion on the basis of these assertions.

^[8]  In her brief, appellant claims appellee failed to address METRO’s (1) alleged blockage of the street; (2) failure to follow policy with regard to the drop-off of children; (3) failure to open the doors and allow children to exit the bus in an area not designated as a crosswalk; (4) failure to follow policy with regard to children riding as passengers; (5) failure to drop off children in an area where children could safely exit the bus; (6) operating the bus in such a manner as to allow children to exit without supervision or direction; (7) failure to employ safety devices necessary to warn the public of children departing the bus; (8) failure to follow policy with regard to the delivery of children; (9) failure to employ safety equipment and procedures; and (10) failure to comply with Texas Public Education Code requirements.

^[9]  See also LeLeaux, 835 S.W.2d at 51 (no use or operation of motor vehicle where student injured head while jumping through rear emergency door of school bus at time bus engine was turned off); Luna v. Harlingen Consol. ISD, 821 S.W.2d 442, 445B46 (Tex. App.CCorpus Christi 1991, writ denied) (no use or operation of motor vehicle where students were hit at bus stop by third party); Heyer v. North East ISD, 730 S.W.2d 130, 132 (Tex. App.CSan Antonio 1987, writ ref’d n.r.e.) (no use or operation of motor vehicle where third party’s automobile struck child waiting for school bus on school property); Estate of Garza v. McAllen ISD, 613 S.W.2d 526, 528 (Tex. App.CBeaumont 1981, writ ref’d n.r.e.) (no use or operation of vehicle where student was stabbed by third party while riding school bus).  But cf. Contreras v. Lufkin ISD, 810 S.W.2d 23 (Tex. App.CBeaumont 1991, writ denied) (use or operation of vehicle found where school bus left child at wrong place and child, while crossing street, was subsequently killed by third party); Austin ISD, 54 S.W.3d  at 868 (use or operation of vehicle found where bus driver failed to honk horn to signal child it was safe to cross street).

^[10]  As previously noted, at least one appellate court has concluded that non-use of a motor vehicle’s flashers represents  “operation or use” of a vehicle under ' 101.021(1).  Hitchcock v. Garvin, 738 S.W.2d 34 (Tex. App.CDallas 1987, no writ) (finding use or operation of a motor vehicle where school bus driver failed to activate flashing lights and student was subsequently injured by passing motorist).

^[11]  For similar treatment regarding the non-use of tangible personal or real property under subsection 101.021(2), see City of Houston v. Rushing, 7 S.W.3d 909, 915 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (finding non-use of tangible propertyCand hence, no waiver of immunityCwhere officer decided not to call dispatch, not to use a marked car to alert traffic, and not to park car in street); Renteria v. Housing Auth. of City of El Paso, No. 08-01-00331-CV, 2002 WL 31151436, at *3 (Tex. App.CEl Paso Sept. 26, 2002) (finding non-use of real propertyCand hence, no waiver of immunityCwhere Housing Authority made the decision to allow convicted sex offender to live in housing project and failed to warn other tenants).