CITY OF HOUSTON v. EZZEDDINE (2026)

OPINION

This personal-injury suit arises from a vehicular collision at a Houston intersection with inoperative traffic signals. According to the plaintiffs, the City was aware of the outage and had placed temporary signage at the intersection, but another driver, “misled by inadequate temporary signage and expecting operational traffic signals,” struck the plaintiffs’ vehicle. The City of Houston asserted governmental immunity and moved unsuccessfully to dismiss the plaintiffs’ claims on the ground that they have no basis in law. Tex. R. Civ. P. 91a. In the sole issue in this interlocutory appeal, the City re-urges its argument that the plaintiffs failed to plead sufficient facts to bring their claims within a statutory waiver of immunity.¹ We agree.

The plaintiffs’ factual allegation that the City placed temporary signage at the intersection is sufficient to support their claim that the City had a reasonable amount of time to take corrective action after being notified of the traffic-signal outage, but they pleaded no facts to support their conclusory allegations that the temporary signage was “inadequate” or “misleading.” Moreover, the plaintiffs amended their pleading in response to the City's first motion to dismiss but did not materially change their factual allegations. When the City filed a second motion to dismiss, the plaintiffs did not replead or seek leave to do so; they instead conceded that they did not yet know what kind of temporary signage had been used or where it had been placed because “discovery in this matter has not opened.” But Rule 91a exists to “allow[ ] courts to dismiss meritless cases before the parties engage in costly discovery.” Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020) (emphasis added); see also Gonzales v. Dallas Cnty. Appraisal Dist., No. 05-13-01658-CV, 2015 WL 3866530, at *5 (Tex. App.—Dallas June 23, 2015, no pet.) (mem. op.) (rejecting argument that trial court should not have granted a motion to dismiss before the plaintiff “had the opportunity to conduct discovery”). Because the plaintiffs did not cure the pleading deficiency despite the opportunity to amend, we reverse the trial court's ruling and render judgment dismissing their claims with prejudice.

I. Background

At approximately 10:30 p.m. on an autumn evening, Hasan Ezzeddine was driving a vehicle in which Aubrey Davis and minors M.D. and B.T. were passengers. As the Ezzeddine Parties were traveling northbound on North Shepherd Drive and approaching the intersection at West Tidwell Road, another vehicle collided with them. M.D. was killed and the other occupants of the Ezzeddine vehicle were injured.

The Ezzeddine Parties sued the City,² alleging that the traffic signals “were known to be malfunctioning on the date of the incident” and that “[t]he temporary signage placed by [the City] at the intersection failed to manage the traffic flow safely.” According to the Ezzeddine Parties, the collision happened because the driver of the other vehicle had been “misled by inadequate temporary signage and expect[ed] operational traffic signals.”

Pursuant to Texas Rule of Civil Procedure 91a, the City moved to dismiss the plaintiffs’ claim on the ground that it has no basis in law. The City argued that the Ezzeddine Parties alleged no facts showing that the City failed to correct the absence of the traffic signal within a reasonable time, and that their factual allegations instead showed the opposite: the City had already placed temporary signage at the intersection before the accident. The Ezzeddine Parties amended their petition without materially altering their factual allegations, and the trial court denied the motion.

The City then filed a second Rule 91a motion. The City again argued that the Ezzeddine Parties did not allege facts showing that the City failed to correct the inoperative traffic sign within a reasonable time, and that the Ezzeddine Parties instead admitted that the City responded to the outage by placing temporary signage. The City additionally argued, inter alia, that the Ezzeddine Parties did not identify the kinds of temporary signs used or what was wrong with them. The City also raised arguments about the applicable damage cap and about the level of discovery that would be appropriate for a claim within that damage cap.

The Ezzeddine Parties responded that the temporary signage did not correct the traffic signal outage, but they did not further address it. They stated, “What kind of signage and where same were placed alongside the vast Intersection are unknown at this time as discovery in this matter has not opened.” The statement that “discovery in this matter has not opened” is unexplained; the case had been pending for over three months,³ and the Ezzeddine Parties did not represent that they had propounded any discovery or that discovery had been stayed. The Ezzeddine Parties added that the City had raised “procedural issues” concerning the damage cap and the appropriate level of discovery. The Ezzeddine Parties requested leave to replead to cure such “procedural matters,” but added that, as to the grounds on which the City sought actual dismissal of the Ezzeddine Parties’ cause of action, “the substantive issues presented in Defendant[’s] Motion ha[ve] been addressed and supported in this Response by caselaw.”

The trial court denied the City's second motion to dismiss. In its sole appellate issue, the City argues that the trial court erred in denying the motion because the Ezzeddine Parties failed to plead facts demonstrating a waiver of governmental immunity. The Ezzeddine Parties have not filed a brief in this appeal.

II. Governing Law

Unless waived by the legislature, a municipality such as the City has governmental immunity from suit and liability. The Texas Tort Claims Act (the TTCA)⁴ waives immunity from suit and liability for claims of “property damage, personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code § 101.021(2) (waiving immunity from liability); id. § 101.025 (waiving immunity from suit to the extent of liability created by the TTCA). However, the TTCA excludes from this waiver of immunity claims arising from “the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice.” Id. § 101.060(a)(2). The Supreme Court of Texas has found a waiver of immunity under section 101.060(a)(2) “only in those situations in which the sign or signal was either (1) unable to convey the intended traffic control information, or (2) conveyed traffic control information other than what was intended.” Dep't of Transp. v. Garza, 70 S.W.3d 802, 807 (Tex. 2002).

III. Standard of Review

The City moved to dismiss the suit on ground that the plaintiffs’ cause of action has no basis in law. Texas Rule of Civil Procedure 91a authorizes dismissal on that basis “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Tex. R. Civ. P. 91a.1. With exceptions inapplicable here, the trial court makes this determination based solely on the pleading of the cause of action. Tex. R. Civ. P. 91a.6. Whether a remedy is available under the facts alleged is a question of law, which we review de novo. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).

The Ezzeddine Parties have asserted a tort claim against a governmental entity; thus, we consider whether their pleading, liberally construed, alleged facts sufficient to bring their cause of action within the TTCA's waiver of governmental immunity. Id. at 725. In making this determination, we must distinguish factual allegations from conclusory assertions or legal conclusions.

There are three reasons why this distinction is necessary.

First, we presume the truth only of factual allegations. See City of Houston v. State Farm Mut. Auto. Ins. Co., 712 S.W.3d 707, 717 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (“[W]e do not accept conclusory assertions as true.”).

Second, we can draw reasonable factual inferences only from the pleader's factual allegations. Tex. R. Civ. P. 91a.1; City of Houston v. Boodoosingh, 693 S.W.3d 894, 896 (Tex. App.—Houston [14th Dist.] 2024, no pet.). But a statement is conclusory if no facts are stated that support the conclusion. See State Farm Mut. Auto. Ins. Co., 712 S.W.3d at 717. Thus, we cannot draw factual inferences from conclusory statements. Vasquez v. Legend Nat. Gas III, LP, 492 S.W.3d 448, 450–51 (Tex. App.—San Antonio 2016, pet. denied).

Third, a claimant's pleadings must give notice not only of the claim and of the relief sought, but also of the “essential factual allegations.” In re First Reserve Mgmt., L.P., 671 S.W.3d 653, 662 (Tex. 2023) (orig. proceeding). “The pleading of a legal theory, without more, does not provide notice of the facts that could be pleaded to support that theory.” Kinder Morgan SACROC, LP v. Scurry Cnty., 622 S.W.3d 835, 850 (Tex. 2021).

IV. Analysis

In the City's arguments, it contends that the Ezzeddine Parties failed to allege facts demonstrating that the City failed to correct the inoperative traffic signal “within a reasonable time after notice.” The City also points out that the plaintiffs do not describe the temporary signage or what was wrong with it. We agree that in the absence of such facts, the Ezzeddine Parties’ cause of action has no basis in law.

To clarify, Rule 91a authorizes the dismissal of a “cause of action.” The expression “cause of action” refers to “the fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” Id. at 848 (quoting Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012)). To identify a “cause of action,” a court “focuses on the facts underlying the claim, not the form of, or artfully-phrased language in, the plaintiff's pleadings describing the facts or legal theories asserted.” Loaisiga, 379 S.W.3d at 255. The facts alleged “must be sufficient to support a judgment if ultimately proven.” In re First Reserve Mgmt., 671 S.W.3d at 662. If the cause of action is barred by an established legal rule, the plaintiff must plead facts demonstrating that the rule does not apply. Id. at 661.

As applicable here, the established legal rule is that the Texas Tort Claims Act does not waive governmental immunity from a claim arising from “the absence, condition, or malfunction of a traffic or road sign, signal, or warning device.” Tex. Civ. Prac. & Rem. Code § 101.060(a)(2). The rule applies “unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice.” Id.

If the traffic signal of which the Ezzeddine Parties complain is a traffic light at the intersection of North Shepherd and West Tidwell, then their factual allegation that the City had already placed temporary signage at the intersection before the accident occurred allows us to infer that the City had a reasonable time before the accident in which to take some corrective action. But the pleaded facts also demonstrate that the City did take corrective action by placing temporary road signs. To bring their cause of action within the exception to the rule that the City retains immunity, the Ezzeddine Parties had to plead facts showing that the temporary signage did not correct the problem.

This is where the Ezzeddine Parties’ cause of action runs into trouble: a temporary sign is itself “a traffic or road sign.” The Supreme Court of Texas has found that a road sign or signal had a “condition” requiring correction only if the sign or signal was “(1) unable to convey the intended traffic control information, or (2) conveyed traffic control information other than what was intended.” Garza, 70 S.W.3d at 807–08. The Ezzeddine Parties allege neither. Their pleadings contain no factual allegations describing the information that any particular sign was intended to convey, the information the sign actually conveyed, or the reason it was unable to convey the intended information. They pleaded no facts to support their conclusory assertion that another driver was “misled by inadequate temporary signage” and they pleaded no facts from which one could conclude that the signs themselves were misleading or inadequate.

The pleadings in this case can be analogized to those in In re First Reserve Management. The plaintiffs in that multi-district litigation were damaged by explosions at a petrochemical processing plant owned by TPC Group, which is indirectly owned by Sawgrass Holdings LP, which is owned by two private-investor groups. 671 S.W.3d at 656–57. Pertinent to this appeal are the plaintiffs’ claims against the private-investor group First Reserve. The plaintiffs alleged that First Reserve was directly liable because it negligently undertook to control TPC's day-to-day operations and to ensure the plant's safety. Id. at 657. First Reserve moved to dismiss the claims pursuant to Rule 91a, arguing that the plaintiffs’ “non-specific allegations of the movants’ control over plant operations were conclusory and insufficient to assert a claim of negligent undertaking.” Id. at 658.

The Supreme Court of Texas agreed that such non-specific, conclusory allegations are insufficient. To prevail on a negligent-undertaking theory, a claimant must prove, among other things, that the undertaking is an affirmative course of action rather than an omission, and that the promise to render the performance was “accompanied by either performance or reliance on the promise by the injured party.” Id. at 660 (emphasis omitted). According to the plaintiffs, they specifically alleged that First Reserve “acted with direct operational control over safety with respect to the safeguards, protocols, procedures, personnel, equipment, inspections, and resources and control ․ with respect to the specific safety decisions that led to the explosion ․” Id. at 663. The Supreme Court of Texas held that this was not enough, because the plaintiffs “do not state factually how First Reserve itself took and exercised such control.” Id.

As in First Reserve, the “how” is missing in this case; the Ezzeddine Parties state no facts to support their conclusory assertions that the temporary signs were inadequate or misleading. But also missing are the “where” and the “why.” The plaintiffs pleaded that they were “approaching the intersection” when another vehicle collided with theirs, but they do not state whether the accident occurred while they were still approaching the intersection or had entered it. They do not identify the street on which the allegedly inadequate signage was placed, the direction in which the other vehicle was traveling, or whether the driver of either vehicle complied with the signage. Although plaintiffs are required to plead facts “sufficient to support a judgment if ultimately proven,” the only facts the Ezzeddine Parties have pleaded are that (1) the traffic signals at the intersection were inoperative, (2) the City knew about the problem and had placed temporary signage “at the Intersection,” and (3) another vehicle collided with the Ezzeddine vehicle in the vicinity of the intersection, killing one occupant and injuring the others. The remainder of the pleading, as in First Reserve, contains “legal accusations but no factual allegations.” Id. (emphasis in original).

Because the few facts alleged and the inferences reasonably drawn from them would not, if proved, entitle the Ezzeddine Parties to the relief they seek, the cause of action they allege has no basis in law. Tex. R. Civ. P. 91a.1. We accordingly sustain the sole issue presented without addressing the City's remaining arguments.

V. Conclusion

The Ezzeddine Parties failed to allege a cause of action for which the legislature has waived the City's governmental immunity. Although they amended their pleadings in response to the City's first motion to dismiss, their factual allegations were materially unchanged. In response to the City's second motion to dismiss, they denied the need or ability to plead additional facts to remedy the deficiency, and they have filed no brief in this appeal. We therefore reverse the trial court's ruling and render judgment dismissing the case with prejudice.⁵

FOOTNOTES

1.   We have jurisdiction to review the trial court's order because it is, in substance, a denial of a plea to the jurisdiction by a governmental unit. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing an interlocutory appeal of such a plea).

2.   Ezzeddine and Davis sue in their individual capacities, and Ezzeddine additionally sues as the representative of minor M.D.’s estate and as B.T.’s next friend.

3.   The Ezzeddine Parties did not contend, in the trial court or on appeal, that the City's second motion to dismiss was untimely.

4.   Tex. Civ. Prac. & Rem. Code §§ 101.001–.109.

5.   See Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (case should be dismissed with prejudice “[i]f a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would constitute a waiver of immunity”); State Farm Mut. Auto. Ins. Co., 712 S.W.3d at 716–17 (dismissing case with prejudice where the respondent to a Rule 91a motion based on governmental immunity had already amended its pleadings once in the trial court and “d[id] not request another opportunity to replead or argue that it is entitled to one”); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 831 (Tex. App.—Austin 2014, no pet.) (same, where plaintiffs chose not to amend pleadings a second time after the municipal defendant amended its Rule 91a motion asserting governmental immunity and “have made no suggestion as to how that jurisdictional defect could be cured”).

Tracy Christopher, Chief Justice