DISSENTING OPINION FROM DENIAL OF EN BANC RECONSIDERATION
Dissenting Opinions from Denial of En Banc Reconsideration filed October 18, 2022.
I dissent from the denial of en banc reconsideration because the panels decision materially departs from this courts 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 courts 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 Citys failure to present evidence establishing a fact question regarding jurisdiction).
I. Pleas to the Jurisdiction
The Citys plea to the jurisdiction challenges the trial courts subject matter jurisdiction. In a plea to the jurisdiction, a party may challenge either the pleadings or the existence of jurisdictional facts. Tex. Dept of Transp. v. Olivares, 316 S.W.3d 89, 95 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Tex. Dept 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. Marys L.J. 627, 651-52 (2009)). Here, the City of Houston challenged plaintiffs 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 courts 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 nonmovants 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 panels insistence on deciding that Kownslar failed as a matter of law to plead or prove sufficient facts to withstand the Citys plea to the jurisdiction is contrary to this courts 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 courts decisions. See Tex. R. App. P. 41.2(c).
The panels opinion acknowledges that the Citys only evidence was (1) an agreement between the City of Houston and the Metropolitan Transit Authority of Harris County, Texas; (2) the transcript from Kownslars 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 panels decision that he effectively failed to meet a burden he did not possess is contrary to this courts 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 courts 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 vehicles 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. Dept of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam)). While I believe this courts 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 nonmovants favor” (id.) and (2) the panel refused to do so when viewing the sparse evidence in the record even after reading Kownslars allegations.
IV. Previous Application of York
Finally, this court has previously relied upon the supreme courts 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 panels 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 courts decisions and requires correction from this en banc court. See Tex. R. App. P. 41.2(c). Because of this, I respectfully dissent.
Meagan Hassan Justice