COUNTY OF DALLAS TEXAS v. TUJUANNAH WALKER (2011)

MEMORANDUM OPINION

Opinion By Justice Francis

In this premises liability case, Dallas County brought an interlocutory appeal of the trial court's denial of its no-evidence motion for summary judgment on a plea to the jurisdiction.   See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2008).   In one issue, Dallas County asserts the trial court erred in denying its plea because Tujuannah Walker failed to raise a fact issue on actual knowledge.   We affirm.

Walker sued Dallas County after she was injured in a fall on a wet floor in a county building.   Dallas County filed a no-evidence motion for summary judgment, asserting there was no evidence it had actual knowledge of the floor's condition.   Walker's response to the motion included deposition excerpts, and Dallas County then filed a reply that included the full deposition of a county employee for purposes of “optional completeness.”   None of Dallas County's pleadings referenced or directed the trial court to any evidence in the case.   The trial court denied the motion.

The Texas Tort Claims Act provides a limited waiver of governmental immunity when a claim arises from a premises defect.  City of Corsicana v. Stewart, 249 S.W.3d 412, 413 (Tex.2008);  see Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a), .025 (West 2005 & Supp.2010).   For a government's immunity to be waived, it must have actual knowledge of the dangerous condition at the time of the accident.   See Stewart, 249 S.W.3d at 413–14;  see also Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a).

When a plea to the jurisdiction challenges the existence of jurisdictional facts to establish the trial court's subject matter jurisdiction, the standard to be followed generally mirrors that of a traditional summary judgment under Texas Rule of Civil Procedure 166a(c), and the burden is on the government to meet the summary judgment standard of proof.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004);  Dallas Cnty. v. Wadley, 168 S.W.3d 373, 377 (Tex.App.-Dallas 2005, pet. denied).   In other words, the governmental unit has the initial burden to assert and support its plea with conclusive evidence.   See Miranda, 133 S.W.3d at 228;  Wadley, 168 S.W.3d at 378.   After the governmental unit asserts and provides evidentiary support for its plea, the nonmovant is required to show only that a disputed material fact issue exists.  Miranda, 133 S.W.3d at 228.   However, if the defendant fails to present sufficient evidence to support its challenge to jurisdictional facts, the plaintiff has no burden to present evidence raising a fact issue.   See Wadley, 168 S.W.3d 378–79.   The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue.  Venable v. Sherbet, No. 05–10–00303–CV, 2010 WL 4613350, *4 (Tex.App.-Dallas Nov. 15, 2010, pet. filed) (mem.op.).   As the supreme court explained:  “By requiring the [governmental entity] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to ‘put on their case simply to establish jurisdiction.’ ”  Miranda, 133 S.W.3d at 228.

Here, rather than supporting its plea with evidence to establish it lacked actual knowledge, Dallas County filed a no-evidence motion for summary judgment.   After Walker responded with evidence, the County filed a reply, attaching an entire deposition for “optional completeness” without ever directing the trial court to any particular evidence regarding a lack of actual knowledge.   The procedure used by the County violated the standard set out in Miranda by attempting to shift the burden of proof to Walker to prove a jurisdictional fact.   But because the County, in the first instance, failed to meets its evidentiary burden to negate the jurisdictional fact, the burden never shifted to Walker to raise a fact issue.   See Wadley, 168 S.W.3d at 379 (plaintiffs had no burden to present evidence of County's knowledge until County established lack of knowledge);  Unifund CCR Partners v. Watson, No. 07–10–00273–CV, 2011 WL 1346911, *3 (Tex.App.-Amarillo Apr. 8, 2011, no pet. h.) (concluding no-evidence plea to jurisdiction failed to shift burden to plaintiff to raise fact issue on jurisdictional fact).   Under these circumstances, we cannot say the trial court erred in denying the County's no-evidence plea to the jurisdiction.

We affirm the trial court's order denying the County's no-evidence motion for summary judgment.

101421F.P05

MOLLY FRANCIS JUSTICE