KOWNSLAR v. CITY OF HOUSTON (2022)

Reconsideration en banc denied.

DISSENTING OPINION ON EN BANC RECONSIDERATION

I again point out that a 4–4 vote is not a majority of anything other than a unanimous vote to do nothing. See Harris Cty. v. Coats, 607 S.W.3d 359, 396–98 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (Spain, J., dissenting from denial of en banc reconsideration); Calhoun v. State, 631 S.W.3d 930, 931–32 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (Spain, J., dissenting from denial of en banc reconsideration).

The supreme court and court of criminal appeals could amend Texas Rule of Appellate Procedure 49.5 to deem a motion for en banc reconsideration denied if there is no majority vote to order en banc reconsideration. In my opinion those courts should do that. But they have not, and calling a duck a horse does not persuade me that a duck is a horse.¹

In all other respects I join Justice Hassan's separate writing.

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

I dissent from the denial of en banc reconsideration because the panel's decision materially departs from this court's decisions concerning pleas to the jurisdiction. See Tex. R. App. P. 41.2(c). Specifically, the majority opinion held the condition at issue was not a special defect as a matter of law; the dissent countered that the condition was a special defect as a matter of law. Under this court's clear precedent, I conclude the circumstances of this case neither allow nor require us to decide whether the condition was a special defect as a matter of law at this stage (particularly given the City's failure to present evidence establishing a fact question regarding jurisdiction).

I. Pleas to the Jurisdiction

The City's plea to the jurisdiction challenges the trial court's subject matter jurisdiction. In a plea to the jurisdiction, a party may challenge either the pleadings or the existence of jurisdictional facts. Tex. Dep't of Transp. v. Olivares, 316 S.W.3d 89, 95 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); Rebecca Simmons & Suzette Kinder Patton, Plea to the Jurisdiction: Defining the Undefined, 40 St. Mary's L.J. 627, 651-52 (2009)). Here, the City of Houston challenged plaintiff's jurisdictional facts and the panel majority concluded:

The evidence before the trial court conclusively proved that the Alleged Defect does not fall within the narrow class of defects that are special defects under section 101.022(b) of the Civil Practice and Remedies Code. There is no genuine fact issue as to whether the Alleged Defect constitutes a special defect. Presuming, without deciding, that the trial court erroneously considered arguments by the City that exceeded the scope of a proper jurisdictional challenge and that the trial court erred in considering issues raised for the first time at the oral hearing on the jurisdictional plea, any such error was harmless.

I believe this conclusion materially departs from this court's jurisprudence concerning pleas to the jurisdiction.

When examining jurisdictional facts in a plea to the jurisdiction, we (1) consider relevant evidence submitted by the parties, (2) take as true all evidence favorable to the nonmovant, (3) indulge every reasonable inference, and (4) resolve any doubts arising from such evidence in the nonmovant's favor. See Olivares, 316 S.W.3d at 96 (citing Miranda, 133 S.W.3d at 228). “If the relevant evidence is undisputed or a fact question is not raised relative to the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id. (citing Miranda, 133 S.W.3d at 228). “If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea, and the fact issue will be resolved by the fact finder.” Id. (citing Miranda, 133 S.W.3d at 227-28).

II. Improper Burden Shift

The panel's insistence on deciding that Kownslar failed as a matter of law to plead or prove sufficient facts to withstand the City's plea to the jurisdiction is contrary to this court's precedent that plaintiffs have no burden to produce any evidence in support of their pleas until after a defendant has produced evidence that the trial court lacks jurisdiction. See Olivares, 316 S.W.3d at 103 (“a defendant must produce evidence that the trial court lacks jurisdiction before the plaintiff has the burden to present evidence establishing a fact question regarding jurisdiction”) (emphasis in original) (citing Miranda, 133 S.W.3d at 228). Here, the panel ignored this precedent. This deviation alone requires en banc correction to maintain the uniformity of this court's decisions. See Tex. R. App. P. 41.2(c).

The panel's opinion acknowledges that the City's only evidence was (1) an agreement between the City of Houston and the Metropolitan Transit Authority of Harris County, Texas; (2) the transcript from Kownslar's deposition; and (3) four photographs of Rusk Street. Whether viewed in isolation or collectively, none of this evidence even tends to establish that the trial court lacked jurisdiction; therefore, Kownslar had no burden to do anything. See Olivares, 316 S.W.3d at 103. The panel's decision that he effectively failed to meet a burden he did not possess is contrary to this court's decisions and requires correction via this en banc court. See Tex. R. App. P. 41.2(c).

III. Improperly Resolved Doubts

Ignoring that departure from this court's decisions and assuming arguendo that Kownslar was burdened to “present evidence establishing a fact question regarding jurisdiction” (Olivares, 316 S.W.3d at 103), the only relevant considerations are (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. The Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam) (citing Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam)). While I believe this court's precedents require this question to be decided by a fact finder because there is a fact question as to whether the condition at issue was a special defect (Olivares, 316 S.W.3d at 96 (citing Miranda, 133 S.W.3d at 227-28)), I also believe that (1) we are required to “indulge every reasonable inference” and “resolve any doubts arising from such evidence in the nonmovant's favor” (id.) and (2) the panel refused to do so when viewing the sparse evidence in the record even after reading Kownslar's allegations.

IV. Previous Application of York

Finally, this court has previously relied upon the supreme court's four-part test in York. See, e.g., City of Houston v. Kiju Joh, 359 S.W.3d 895, 898 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore, the panel's reliance upon a single factor (i.e., unmeasured size via photographs) while ignoring the other three creates a lack of uniformity with respect to this court's decisions and requires correction from this en banc court. See Tex. R. App. P. 41.2(c). Because of this, I respectfully dissent.

DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION

I respectfully dissent from the denial of en banc reconsideration.

En banc reconsideration is warranted when necessary to secure or maintain uniformity of the court's decisions, and/or extraordinary circumstances require en banc reconsideration. Tex. R. App. P. 41.2. I agree with Justice Hassan's dissent in that the panel's decision in this case conflicts with this court's precedent. See, e.g., City of Houston v. Kiju Joh, 359 S.W.3d 895, 898 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore, en banc reconsideration is warranted in this case. See Tex. R. App. P. 41.2; Ross v. Union Carbide Corp., 296 S.W.3d 206, 216 (Tex. App.—Houston [14th Dist.] 2009, pet. denied (en banc) (overruling prior opinion of the court to obtain uniformity among the court's decision); see also In re Cook, 629 S.W.3d 591, 599 (Tex. App.—Dallas 2021, orig. proceeding) (en banc) (concluding that panel's opinion departed from the court's precedent and concluding en banc reconsideration was warranted).

Furthermore, I write to note that we again encounter the restrictions of Texas Rule of Appellate Procedure Rule 49.5. Here, the vote on the motion for en banc reconsideration by the sitting justices is 4-4; however, en banc reconsideration fails under our current rules, which does not serve the parties or the public interest. See Tex. R. App. P. 49.5 (“While the court has plenary power, a majority of the en banc court may, on its own initiative, order en banc reconsideration of a decision.”); see also Tex. R. App. P. 41.2(a). It is the purpose of the courts to address issues of importance, and if four of the eight sitting justices of the court determine the opinion merits en banc review, then in the interest of justice, the 4-4 vote should be considered granted rather than denied. Michael J. Ritter, En Banc Review in Texas Court of Appeals, 39 Rev. Litig. 377, 379 (2020) (asserting that “the en banc court's disagreement with a panel's decision is the most well-supported reason for granting en banc review”).

Accordingly, I respectfully dissent from the denial of en banc reconsideration.

FOOTNOTES

1.   I understand there can be the occasional legitimate reason to be creative, but this is not Nix v. Hedden, 149 U.S. 304, 13 S.Ct. 881, 37 L.Ed. 745 (1893) (determining status of tomato as fruit or vegetable).