In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00289-CV
___________________________
CITY OF FOREST HILL, Appellant
V.
JON CHEESBRO, Appellee
On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-300244-18
Before Gabriel, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
The City of Forest Hill (the City) appeals the trial court’s order denying its plea
to the jurisdiction, contending that the trial court lacks subject-matter jurisdiction over
Jon Cheesbro’s lawsuit because he has not alleged facts that establish a waiver of the
City’s governmental immunity. We hold that Cheesbro’s pleading is insufficient to
establish the trial court’s jurisdiction but that the petition does not show an incurable
jurisdictional defect. Therefore, we reverse the trial court’s order and remand this case
to the trial court to give Cheesbro an opportunity to amend his pleading.
Background
According to Cheesbro’s pleading, one day in August 2016, he was driving his
motorcycle on one of the City’s streets when “his tire caught in a defect on the road[,]
which caused him to lose control . . . and crash.” Cheesbro suffered injuries and sued
the City for damages, asserting a negligence claim. Without specifying what the
“defect” was, he pleaded on “information and belief” that before the crash, the City
was aware of the defect and the danger it caused and did not warn motorists of the
danger. Cheesbro alleged that after the crash, the City repaired the roadway to correct
the indeterminate dangerous condition.
The City responded to Cheesbro’s petition by filing a plea to the jurisdiction,
by pleading a general denial, and by pleading affirmative defenses, including
governmental immunity. In its plea to the jurisdiction, the City emphasized that
Cheesbro had not identified “what type of defect . . . caused his crash and damages”
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and argued that his petition was insufficient to overcome a presumption of immunity.
More specifically, although the City acknowledged that the Texas Tort Claims Act
creates a limited waiver of governmental immunity, the City argued that Cheesbro’s
petition had not triggered the waiver because he (1) had not described facts to
establish the existence or nature of a defect but had only asserted the existence of a
defect in a conclusory fashion and (2) had not described facts supporting his claim
that the City knew or should have known of the defect.
Cheesbro did not file a response to the City’s plea. The trial court held a
hearing on it. At the hearing, the City again argued that Cheesbro’s petition was
insufficient to assert a waiver of immunity because he had “failed to even identify
what defect [he was] talking about.” Cheesbro, through counsel, urged the trial court
to deny the plea by arguing,
[T]his is a plea to the jurisdiction. I think [the City] is presenting it as if
it’s a summary judgment of some kind. I think at this stage the Court
looks at whether or not what is pled is actionable under the Tort Claims
Act. What is pled is well within [the Act]. . . .
....
. . . [W]hat the defense is trying to do here, apparently, is, again,
have the Court rule on what’s essentially a summary judgment before
they’ve even answered discovery, and I think that would be the more
appropriate time and place.
The City replied to Cheesbro’s argument by contending that he had the burden to
plead facts demonstrating a waiver of immunity and that he had not done so.
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The trial court denied the City’s plea. The City brought this interlocutory
appeal.1
Cheesbro’s Failure to Invoke a Waiver of Immunity
In one issue, the City contends that the trial court erred by denying the City’s
plea to the jurisdiction because Cheesbro’s “mere assertion of an undescribed,
unidentified ‘defect’ as a cause of his injury, without more,” does not establish a
waiver of the City’s governmental immunity.
Local governmental entities, like the City, generally enjoy immunity from suits
for damages. City of Fort Worth v. Deal, 552 S.W.3d 366, 371 (Tex. App.—Fort Worth
2018, pet. denied). The Legislature may waive this immunity and has done so, on a
limited basis, through the Texas Tort Claims Act (the Act), chapter 101 of the civil
practice and remedies code. See id.; see also Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.001–.109; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Under the Act, a governmental entity is liable for, as is applicable to this case,
“personal injury and death . . . caused by a condition or use of . . . 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 Ann. § 101.021(2); see also id.
§ 101.0215(a)(4) (stating that a municipality may be liable for acts related to street
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). We note that Cheesbro
has declined to file an appellate brief.
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maintenance). 2 A plaintiff carries the burden to plead facts showing a waiver of
immunity under the Act. Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d
145, 148 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
Because governmental immunity negates a trial court’s jurisdiction, a
governmental defendant may assert such immunity in a plea to the jurisdiction. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A plea
to the jurisdiction may challenge either the pleadings or the existence of jurisdictional
facts. See id. at 226–27. When, as here, the governmental defendant challenges the
plaintiff’s pleadings, we consider whether the plaintiff has alleged sufficient facts to
demonstrate the court’s jurisdiction over the matter, construing the pleadings liberally
in favor of the plaintiff and looking to the pleader’s intent. Id. Vague and conclusory3
statements within a pleading are insufficient to support jurisdiction; otherwise, the
jurisdictional inquiry would become meaningless. See Stephen F. Austin State Univ. v.
Flynn, 228 S.W.3d 653, 660 (Tex. 2007); Brazoria Drainage Dist. No. 4 v. Matties, No. 01-
17-00422-CV, 2018 WL 3468531, at *3 n.2 (Tex. App.—Houston [1st Dist.] July 19,
2018, no pet.) (mem. op.) (“Conclusory allegations are insufficient under Texas law.”);
Wharton Cty. v. Genzer, No. 13-06-00078-CV, 2007 WL 4442445, at *3 (Tex. App.—
2
In his petition, Cheesbro asserted a waiver of the City’s immunity under
section 101.0215(a)(4).
3
A conclusory statement is one that does not provide underlying facts to
support the conclusion. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004,
pet. denied).
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Corpus Christi–Edinburg Dec. 20, 2007, no pet.) (mem. op.) (“[T]hough this Court is
to construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’
intent, this should not require that we create and add facts to the plaintiffs’ pleadings
so that the trial court’s jurisdiction is invoked.”); see also Tex. Dep’t of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001) (“Mere reference to the Tort Claims Act does
not establish the [government’s] consent to be sued and thus is not enough to confer
jurisdiction on the trial court.”). Whether a plaintiff has alleged sufficient facts to
invoke a waiver of jurisdiction under the Act is an issue that we review de novo. City
of El Paso v. Collins, 483 S.W.3d 742, 749 (Tex. App.—El Paso 2016, no pet.).
The City contends that Cheesbro’s pleading is conclusory and insufficient
because from the pleading, it is impossible to discern whether the City “would, were it
a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(2). More specifically, the City asserts that because
Cheesbro has provided no explanation about the alleged “defect” that caused his
injuries and has provided no facts about the City’s alleged knowledge of the defect, it
is impossible to discern the nature and extent of any duty that the City owed to him or
whether the City breached the duty.
Whether a defendant owed a legal duty to a plaintiff is an essential element of
the plaintiff’s claim in a premises liability case that must be established by the
pleadings. Collins, 483 S.W.3d at 752. When a plaintiff asserts a claim under the Act
for a premises defect on property that the plaintiff has not paid to use, the
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governmental entity “owes to the [plaintiff] only the duty that a private person owes
to a licensee on private property.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).
That is, the entity must not injure the plaintiff by willful, wanton, or grossly negligent
conduct, and the entity must use ordinary care either to warn the plaintiff of, or to
make reasonably safe, a dangerous condition of which the entity is aware and the
plaintiff is not. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237
(Tex. 1992) (op. on reh’g). But when a plaintiff asserts a claim for a special defect
“such as excavations or obstructions on . . . streets,” the governmental entity owes the
duty that a private landowner owes an invitee, which means that the entity must use
ordinary care to reduce or eliminate an unreasonable risk of harm created by a
condition of which the entity is aware or reasonably should be aware. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.022(b); City of Austin v. Rangel, 184 S.W.3d 377, 383
(Tex. App.—Austin 2006, no pet.). Whether a condition is a premises defect or a
special defect is a question of law for the court to decide. City of Austin, 184 S.W.3d at
383. “When determining whether a special defect exists, courts often look to factors
such as the size, nature, location and permanence of the condition.” Id.
We agree with the City’s argument that because Cheesbro’s pleading provides
no details about the alleged defect or about how the City knew of the alleged defect,
the pleading does not satisfy his burden to show the nature or extent of any duty
borne by the City or how the City breached that duty, and the pleading therefore does
not satisfy his burden to affirmatively demonstrate a waiver of the City’s
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governmental immunity under the Act. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(2); Miranda, 133 S.W.3d at 226, 230; Univ. of Tex. M.D. Anderson Cancer Ctr.,
485 S.W.3d at 148; see also Flynn, 228 S.W.3d at 659–60 (holding that a plaintiff’s
jurisdictional allegations were conclusory and were insufficient to invoke jurisdiction);
Brazoria Drainage Dist. No. 4, 2018 WL 3468531, at *3 (holding that plaintiffs failed to
invoke a waiver of governmental immunity because they failed to plead facts
demonstrating the entity’s knowledge of an alleged dangerous condition); Henry v. City
of Angleton, No. 01-13-00976-CV, 2014 WL 5465704, at *7 (Tex. App.—Houston [1st
Dist.] Oct. 28, 2014, no pet.) (mem. op.) (holding that a plaintiff’s pleading was
insufficient when the plaintiff alleged that the city knew of a risk but did not provide
facts supporting the allegation); Wharton Cty., 2007 WL 4442445, at *3 (holding that a
plaintiff’s pleading with respect to an automobile accident was insufficient to invoke
jurisdiction under the Act and stating that the pleading standard demands factual
specificity); Taylor v. Univ. of Tex. Health Ctr. at Tyler, No. 12-01-00381-CV, 2002 WL
31323413, at *5–7 (Tex. App.—Tyler Oct. 9, 2002, pet. denied) (not designated for
publication) (holding that allegations that injuries were caused by an operating room,
surgical area, and forty-eight items were insufficient to invoke jurisdiction when the
allegations were unaccompanied by any description of a defective condition or an
explanation of how the items were negligently used or misused). We hold that
Cheesbro’s pleading is insufficient to invoke the trial court’s jurisdiction.
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The City asks us to render a judgment dismissing Cheesbro’s suit. If a plaintiff’s
pleading does not contain facts sufficient to demonstrate a waiver of immunity under
the Act but does not affirmatively demonstrate an incurable defect in jurisdiction, the
issue is one of pleading sufficiency, and the plaintiff should be afforded an
opportunity to amend. Miranda, 133 S.W.3d at 226–27; Brazoria Drainage Dist. No. 4,
2018 WL 3468531, at *4; City of Austin, 184 S.W.3d at 382. The opportunity to amend
pleadings that are insufficient to establish—but do not affirmatively negate—
jurisdiction arises after a court determines the pleadings are insufficient. Smith v. City of
League City, 338 S.W.3d 114, 121 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
The City does not appear to argue that Cheesbro’s pleading demonstrates an
incurable jurisdictional defect, and we hold that it does not. Accordingly, although we
sustain the City’s only issue, we must remand this case to the trial court to afford
Cheesbro an opportunity to amend his pleading. See Miranda, 133 S.W.3d at 226–27.
Conclusion
Having sustained the City’s issue, we reverse the trial court’s order denying the
City’s plea to the jurisdiction and remand this case to the trial court for further
proceedings.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: February 28, 2019
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