IN THE SUPREME COURT OF
════════════
No. 01-0619
════════════
Texas Department of Parks
v.
Maria Miranda
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of
════════════════════════════════════════════════════
Argued
Justice Wainwright delivered
the opinion of the Court with respect to
Justice Jefferson filed a dissenting opinion.
Justice Brister filed a dissenting opinion, in which Justice O=Neill and Justice Schneider joined.
Maria Miranda sustained injuries after a tree limb
fell on her at
In accord with our decision in Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex. 2000), we hold that the trial court in this case was required to examine the evidence on which the parties relied to determine if a fact issue existed regarding the alleged gross negligence of the Department. Due to the unusual confluence of standards erected by the Legislature for waiver of sovereign immunity in the Texas Tort Claims Act and the recreational use statute, plaintiffs must plead gross negligence to establish subject matter jurisdiction. Further, if the plaintiffs= factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue of material fact to overcome the challenge to the trial court=s subject matter jurisdiction. Because the Mirandas failed to raise a genuine issue of material fact regarding the alleged gross negligence of the Department, we conclude that the trial court lacked subject matter jurisdiction over this lawsuit. Therefore, we reverse the judgment of the court of appeals and render judgment dismissing the case.
I.
Factual and Procedural Background
The Mirandas=
third amended petition contains the following allegations: In April 1998, the Mirandas and their family
were camping and picnicking as paying guests at
On
Over a year after the Mirandas filed suit and
after the parties conducted discovery, the Department filed a plea to the
jurisdiction and motion to dismiss, arguing that the Mirandas= allegations were insufficient to
invoke a waiver of the Department=s
sovereign immunity under the standard established in the Tort Claims Act and
the recreational use statute.[2]
The Department contends that the court of appeals erred in relying solely upon the conclusory allegations found in the Mirandas= petition to affirm the trial court=s denial of the Department=s plea to the jurisdiction and in disregarding the Department=s evidence submitted with its plea. Specifically, the Department contends that gross negligence is a jurisdictional prerequisite to the Mirandas= claims and that its evidence affirmatively negates gross negligence. The Department further argues that because the Mirandas failed to plead specific facts alleging gross negligence in their petition or introduce evidence to controvert the evidence in the Department=s plea, they failed to establish subject matter jurisdiction to proceed with the litigation.
After originally dismissing the petition for want of jurisdiction, we granted the Department=s petition on motion for rehearing. Before we consider the substantive issues presented, we first determine whether we have jurisdiction over this interlocutory appeal.
II. Conflicts Jurisdiction
When there is no dissent in the court of appeals,
this Court has jurisdiction over interlocutory appeals only if the court of
appeals= decision
Aholds differently@ or conflicts with Aa prior decision of another court of
appeals or of the supreme court on a question of law
material to a decision of the case.@
The Department contends that this Court has
jurisdiction over its interlocutory appeal because the court of appeals= decision here conflicts with our
opinion in Bland. In Bland,
we held that a trial court Amay
consider evidence and must do so when necessary to resolve the
jurisdictional issues raised.@
34 S.W.3d at 555 (emphasis added).
While recognizing that Aa
dilatory plea does not authorize an inquiry so far into the substance of the
claims presented that plaintiffs are required to put on their case simply to
establish jurisdiction,@
we explained that Abecause a
court must not act without determining that it has subject-matter jurisdiction
to do so, it should hear evidence as necessary to determine the issue before
proceeding with the case.@
In Bland, we included examples of when
relevant evidence may be considered in determining whether jurisdiction has
been established. See id. at 554. We also
observed that when the defendant contends that the amount in controversy falls
below the trial court=s
jurisdictional limit, the trial court should limit its inquiry to the
pleadings.
In this case, the court of appeals inaccurately
stated and then misapplied Bland=s
holding. 55 S.W.3d at
650-52. The court of appeals held
that an inquiry behind the factual allegations pled in support of subject
matter jurisdiction was improper unless the Department specifically alleged
that the Mirandas=
allegations were pled merely as a sham to wrongfully obtain jurisdiction.
A. Sovereign Immunity
In
The Tort Claims Act expressly waives sovereign
immunity in three areas: A>use of publicly owned automobiles,
premises defects, and injuries arising out of conditions or use of property.=@ Brown, 80 S.W.3d at 554 (quoting
The recreational use statute provides:
If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted.
The recreational use statute limits the Department=s duty for premises defects to that
which is owed a trespasser.[5]
B. Standard of Review
Sovereign immunity from suit defeats a trial court=s subject matter jurisdiction and thus
is properly asserted in a plea to the jurisdiction. Jones, 8 S.W.3d at 637; see also
Hosner, 1
Whether a court has subject matter jurisdiction is
a question of law.
When a plea to the jurisdiction challenges the
pleadings, we determine if the pleader has alleged facts that affirmatively
demonstrate the court=s
jurisdiction to hear the cause.
However, if a plea to the jurisdiction challenges
the existence of jurisdictional facts, we consider relevant evidence submitted
by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See Bland, 34 S.W.3d at 555 (confining
the evidentiary review to evidence that is relevant to the jurisdictional
issue). When the consideration of a
trial court=s subject
matter jurisdiction requires the examination of evidence, the trial court
exercises its discretion in deciding whether the jurisdictional determination
should be made at a preliminary hearing or await a fuller development of the
case, mindful that this determination must be made as soon as practicable.
We acknowledge that this standard generally mirrors
that of a summary judgment under Texas Rule of Civil Procedure 166a(c). We adhere to the fundamental precept that a
court must not proceed on the merits of a case until legitimate challenges to
its jurisdiction have been decided. This
standard accomplishes this goal and more.
It also protects the interests of the state and the injured claimants in
cases like this one, in which the determination of the subject matter
jurisdiction of the court implicates the merits of the parties= cause of action. The standard allows the state in a timely
manner to extricate itself from litigation if it is truly immune. However, by reserving for the fact finder the
resolution of disputed jurisdictional facts that implicate the merits of the
claim or defense, we preserve the parties=
right to present the merits of their case at trial. Similar to the purpose of a plea to the
jurisdiction, which is to defeat a cause of action for which the state has not
waived sovereign immunity (usually before the state has incurred the full costs
of litigation), the purpose of summary judgments in
Appellate courts reviewing a challenge to a trial
court=s subject
matter jurisdiction review the trial court=s
ruling de novo. IT-Davy, 74 S.W.3d at 855.
When reviewing a plea to the jurisdiction in which the pleading
requirement has been met and evidence has been submitted to support the plea
that implicates the merits of the case, we take as true all evidence favorable
to the nonmovant. See
Sci. Spectrum, Inc. v.
In his dissent Justice
Jefferson criticizes this standard of review as depriving plaintiffs
responding to a plea of the procedural protections of a motion for summary
judgment, including a twenty-one day notice period or an adequate time to
conduct discovery.
Many other procedures in Texas practice B ranging from a trial court=s rulings on motions to strike intervention
to the timing of a class certification decision to even the alteration of the
summary judgment notice periods - also Adepend[]
. . . upon the wise exercise of discretion by the trial court.@
Union Carbide Corp. v. B.D. Moye, 798 S.W.2d 792, 794 (
C.
Waiver of Immunity Based on Premises Defects
1. The
Mirandas=
Pleadings
The Mirandas contend that their pleadings fall
within the Tort Claims Act=s
waiver of immunity for both premises defects and injuries arising out of
conditions or use of property. The Act
provides that a state agency is liable for injury and death caused by Aa 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.@
To state a claim under the recreational use
statute, the Mirandas must allege sufficient facts to establish that the
Department was grossly negligent. See
Justice
Jefferson=s dissent
contends that the Mirandas=
third amended petition does not state a claim for gross negligence because the
allegations are conclusory and do not assert enough specific facts alleging
that the Department had actual subjective awareness of the risk involved and
proceeded, nevertheless, with conscious indifference. He suggests that to state a claim the
Mirandas should have pled that the Department had Aactual
knowledge that the branch would fall yet nevertheless instructed Maria to camp
beneath it.@ __ S.W.3d at __. The pleading hurdle he seeks to erect would
be groundbreaking, indeed, extending beyond current requirements under our
rules of civil procedure and case law.
Rules 45 and 47 require that the original pleadings give a short
statement of the cause of action sufficient to give the opposing party fair
notice of the claim involved.
Although facts alleged in a petition should not be improperly stretched to state a claim for gross negligence, Justice Jefferson=s pleading standard for gross negligence would be virtually impossible to meet, even when grossly negligent conduct occurred, absent an admission of liability. His standard requires specific factual allegations in an original petition of what the defendant knew and thought B i.e., its state of mind. His pleading hurdle would require discovery into the very extrinsic facts which he bemoans consideration of in the plea to the jurisdiction. The Mirandas= third amended petition provided sufficient notice to ascertain the nature and basic issues of the controversy and the evidence that probably would be relevant.
Justice
Jefferson also contends that the Mirandas are entitled to replead. As a practical matter, the Mirandas have
already repled to try to cure the Adefects@ that Justice
Jefferson raises. The Mirandas no
doubt filed their third amended petition, in which allegations of gross negligence
were raised for the first time in this lawsuit, in response to the Department=s plea to the jurisdiction. However, because the Mirandas= third amended petition satisfies the
notice pleading requirements of our procedural rules, the Mirandas do not need,
nor are they entitled to, an opportunity to replead. See
2. The Department=s Evidence
The Department challenged the Mirandas= pleadings and also submitted evidence
to controvert the factual allegations supporting jurisdiction. We consider the relevant evidence submitted
to decide this jurisdictional challenge.
See Bland, 34 S.W.3d at 555. The Department attached the deposition
testimony of Craig VanBaarle, the assistant park manager for
In addition, the Department attached the affidavit
of Roy B. Inks, operations and maintenance specialist at
We first examine this evidence to determine whether it establishes that the Department was grossly negligent. We have observed that with regard to the subjective component of gross negligence, it is the defendant=s state of mind B whether the defendant knew about a peril but nevertheless acted in a way that demonstrated that he did not care about the consequences B that separates ordinary negligence from gross negligence. Louisiana-Pacific, 19 S.W.3d at 246-47. We search the record for evidence that the Department=s acts or omissions demonstrate that it did not care about the consequences to the Mirandas of a known extreme risk of danger. The Mirandas fail to point to any evidence, and the record contains no evidence, that shows that sudden branch drop syndrome constitutes an extreme risk of danger or that the Department had actual, subjective knowledge of that risk but nevertheless proceeded in conscious disregard for the safety of others. Nor is there any evidence that the Department could have taken any reasonable steps to minimize the dangers of an Aunforseeable@ and Aunpredictable@ phenomenon. We conclude that the evidence in the record establishes that the Department was not grossly negligent and that the Mirandas have failed to raise a fact question regarding the Department=s alleged gross negligence. The Mirandas fall short of satisfying the requirements for the Legislature=s limited grant of a waiver of sovereign immunity from suit under the applicable statutes. Therefore, the trial court lacked subject matter jurisdiction.
3.
Dissent
In his dissent, Justice Brister takes the view that all pleas to jurisdiction based on immunity must take the form of two Astandard@ or Aestablished@ motions B either special exceptions or motions for summary judgment. __ S.W.3d at __. This approach might be appropriate, if we were starting from scratch. Given that we are not writing on a blank slate, that pleas have been a useful procedural vehicle in Texas for over 150 years, and that use of its counterpart (Federal Rule of Civil Procedure 12(b)(1)) to challenge subject matter jurisdiction in the federal judicial system when evidence is involved has been authorized by every federal circuit court, the Court declines to abolish by written opinion such pleas to the jurisdiction.
The plea to the jurisdiction was included in
procedural rules promulgated by this Court in 1877 and has been used as a
procedural vehicle to challenge subject matter jurisdiction in trial courts for
over a century and a half. See
We decide that refining the rules for considering a plea supported by evidence is a better approach than eliminating the motion. This approach is consistent with precedent, is not disruptive to civil practice going back more than a century, and furthers the legislative purpose of timely adjudicating subject matter jurisdiction when the immunity and liability facts are the same.
There is a suggestion in the dissents that
confirming in this opinion the authority of trial courts to consider evidence
in a plea to the jurisdiction is unfair to the parties in this case. The facts undercut this assertion. At the trial court, both parties relied on
extrinsic evidence in briefing the plea, and both parties had extrinsic
evidence on file with the court.
Furthermore, plaintiffs expressly stated in their response to the plea
that they were relying on ADefendants= responses to discovery requests, and
upon the deposition of Craig VanBaarle [the Department=s
assistant park manager].@ In fact, the Mirandas deposed VanBaarle
months before the Department filed its plea.
There is good reason why Plaintiffs have not argued unfair
surprise. Given
D.
Waiver of Immunity Based on Condition or Use of Tangible Property
The Mirandas assert that their pleadings also state a cause of action for injuries resulting from a condition or use of tangible property. The allegations in the Mirandas= third amended petition concern only the Department=s failure to act to reduce risks of falling tree limbs and failure to warn the Mirandas of the risk of falling tree limbs. These allegations comprise the elements of their premises defect claim. The Tort Claims Act=s scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in section 101.022 by re-casting the same acts as a claim relating to the negligent condition or use of tangible property. See State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974) (rejecting the argument that the Tort Claims Act Acreates two entirely separate grounds of liability@ for negligent use or condition of real property and premise defect, but instead interpreting the premises defect provision to further limit the waiver of immunity for negligent use or condition of real property). Other Texas courts have recognized that to allow plaintiffs to characterize premises defect claims as claims caused by the negligent condition or use of personal or real property would render the Legislature=s heightened requirements for premises defect claims meaningless. See, e.g., State v. Estate of Horton, 4 S.W.3d 53, 54 (Tex. App.BTyler 1999, no pet.) (stating that once a claim is determined to be a premises defect, the claimant is limited to the provisions delineated by the section on premises defects and may not assert a general negligence theory); accord Laman v. Big Spring State Hosp., 970 S.W.2d 670, 671-72 (Tex. App.BEastland 1998, pet. denied); Univ. of Texas-Pan Am. v. Valdez, 869 S.W.2d 446, 450 (Tex. App.BCorpus Christi 1993, writ denied); Hawley v. State Dep=t of Highways and Pub. Transp., 830 S.W.2d 278, 281 (Tex. App.BAmarillo 1992, no writ). Accordingly, we conclude that the Mirandas have not established a cause of action under the Tort Claims Act for condition or use of tangible property separate from their premises defect claim.
IV. Conclusion
Trial courts should decide dilatory pleas early B at the pleading stage of litigation if possible. Here, the Legislature=s mandate is not so simple. By statute, waiver of sovereign immunity for recreational use of the Department=s premises can only be effected by a showing that it acted with gross negligence. Due to the standard erected (gross negligence), the determination of whether immunity was waived may require consideration of extrinsic facts after reasonable opportunity for targeted discovery. To preclude consideration of extrinsic facts when necessary to decide a plea to the jurisdiction would require a trial on the merits for many cases that do not need it, waste the resources of the courts and the parties in the case, and involve state courts in rulings on the merits in cases over which they have no jurisdiction.
For the reasons explained, we conclude that the Department established that it was not grossly negligent and that the Mirandas failed to raise a fact issue on that point. Thus, the trial court lacked subject matter jurisdiction over the action. The judgment of the court of appeals is reversed and the Mirandas= action dismissed for lack of subject matter jurisdiction.
________________________________________
J. Dale Wainwright
Justice
OPINION
DELIVERED:
[1] The Mirandas
originally named the ATexas Department of Parks and Wildlife@ as defendant but corrected the name to the A
[2] The Department
also moved for summary judgment under Texas Rule of Civil Procedure 166a(b)-(c)and 166a(I).
The trial court denied both motions, but the Department does not appeal
the trial court=s denial of either motion.
[3] The
Legislature amended section 22.001 of the Government Code, effective
[4] The plaintiff=s allegations in the petition of the amount in
controversy control for jurisdictional purposes unless the party challenging
jurisdiction pleads and proves that the plaintiff=s
allegations of the amount in controversy were made fraudulently for the purpose
of obtaining jurisdiction. See Bland,
34 S.W.3d at 554; Cont'l Coffee Prods.
[5] The
recreational use statute does not limit the liability of an owner, lessee, or
occupant Awho has been grossly negligent or has acted with
malicious intent or in bad faith.@
[6] See, e.g.,
Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637 n.4 (8th Cir. 2003)
(acknowledging district court=s authority to consider matters outside the pleadings
when subject matter jurisdiction is challenged under Rule 12(b)(1)); Johnson
v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003) (observing that when
considering a motion for dismissal for lack of subject matter jurisdiction, A>[t]he district court may properly . . . view whatever
evidence has been submitted on the issue=@ (quoting
Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1997))); Sizova
v. Nat=l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) (noting
district court=s A>wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1)=@ (quoting Holt v. United States, 46 F.3d 1000,
1003 (10th Cir. 1995))); Valentin,
254 F.3d at 363 (district court has Abroad
authority to order discovery, consider extrinsic evidence, and hold evidentiary
hearings in order to determine its own jurisdiction@); Ass=n
of Am. Med. Colls. v. United States,
217 F.3d 770, 778 (9th Cir. 2000) (A>district
court obviously does not abuse its discretion by looking to . . .
extra-pleading material=@ in deciding a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction (quoting St. Clair v. City of Chico,
880 F.2d 199, 201 (9th Cir. 1989))); Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000) (allowing district court to Arefer to evidence outside the pleadings@ to resolve a Rule 12(b)(1) motion); Williams v.
United States, 50 F.3d 299, 304 (4th Cir. 1995) (AIn ruling on a Rule 12(b)(1) motion, the court may
consider exhibits outside the pleadings.@); Moran
v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (acknowledging
a trial court=s Aauthority to consider evidence presented beyond the
pleadings . . . which may include considering affidavits, allowing further
discovery, hearing oral testimony, conducting an evidentiary hearing@); Herbert v. Nat=l Acad. of Sci.,
974 F.2d 192, 197 (D.C. Cir. 1992) (A[W]here
necessary, the court may consider the complaint supplemented by undisputed
facts evidenced in the record, or the complaint supplemented by undisputed
facts plus the court=s resolution of disputed facts.@); Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990) (noting that Asubstantial authority@
acknowledges the trial court=s freedom to consider disputed evidence when deciding
a Rule 12(b)(1) motion) (citations omitted); Gould, Inc. v. Pechiney Ugine
Kuhlmann, 853 F.2d 445, 451 (6th Cir. 1988) (A[T]he
district court may consider affidavits, allow discovery, hear oral testimony,
order an evidentiary hearing, or even postpone its determination if the
question of jurisdiction is intertwined with the merits.@); Mortensen v. First Fed. Sav.
& Loan Ass=n, 549 F.2d
884, 891 (3d Cir. 1977) (acknowledging that Asubstantial
authority@ allows trial courts to weigh the evidence of disputed
facts when considering a Rule 12(b)(1) motion); see also 5A Charles