author: ALMA L. LÓPEZ, Chief Justice.

text:
    In the ESTATE OF Curtis C. ARMSTRONG, Sr. a/k/a Curtis Calvin Armstrong, Sr., Deceased.
    No. 04-04-00073-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 3, 2004.
    Rehearing Overruled Dec. 16, 2004.

      Norman C. Dean, Norman C. Dean, P.C., New Braunfels, for appellant.
    Dennis Sagebiel, Grace G. Kunde, Se-guin, for appellee.
    David J. Eveld, Knobles, Raetzch, Moore & Eveld, L.L.P., Seguin, for Ad Litem.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Appellant Debra Schumann Armstrong (“Schumann”), the alleged common law wife of the deceased, appeals two probate court orders, contending the trial court erred in: (1) denying her right to trial by jury; (2) ruling on a matter of fact at an in limine hearing; (3) ruling that she did not have standing; and (4) dismissing her plea in intervention. We hold that the probate court properly made a determination regarding Schumann’s standing at the in limine hearing for purposes of the estate administration proceeding. Accordingly, we affirm the trial court’s order on the motion in limine to determine standing. We further hold, however, that the probate court’s finding with regal’d to whether a common law marriage existed between Schumann and the decedent was a collateral matter to the issue before the court in the estate administration proceeding; therefore, the probate court erred in denying Schumann’s plea in intervention based on its earlier finding. Accordingly, the probate court’s order denying Schumann’s plea in intervention is reversed, and the cause is remanded to the probate court for further proceedings consistent with this opinion.

BackgrouND

Curtis C. Armstrong, Sr. passed away on April 9, 2003. At the time of his death, Curtis had a daughter and a son. On April 15, 2003, Curtis’s daughter, Deborah Gayle Armstrong (“Armstrong”), filed an application for temporary administration, attaching a copy of a will dated November 1, 1995. On April 16, 2003, the trial court entered an order appointing Armstrong as temporary administratrix.

On April 22, 2003, Schumann filed an objection to the issuance of letters of tern-porary administration, attaching evidence that the November 1995 will had been revoked before Curtis’s death. On May 15, 2003, Armstrong filed an application for independent administration and letters of administration. In this application, Armstrong asserted that Curtis died intestate, noting that she had “since learned that the [November 1995 will] was revoked by Decedent.” Armstrong mentioned Schumann’s possible common law marriage claim but denied that Schumann was married to Curtis. Also on May 15, 2003, Armstrong filed an application to determine heirship.

On June 4, 2003, the probate court entered an order appointing Norman C. Dean, who had been Curtis’s accountant, as successor temporary administrator. The order stated that the temporary administration needed to continue “due to a contest in this probate proceeding related to the granting of letters of administration. The primary contested issue is whether the Decedent was married at the time of his death.”

On June 17, 2003, Schumann filed an original answer to the application to determine heirship, asserting that she was Curtis’s common law wife and requesting the probate court to find that a marriage existed. On August 8, 2003, Armstrong filed a motion to set the application to determine heirship for a non-jury trial. On August 19, 2003, Schumann filed a jury demand.

On August 19, -2003, Dean filed an application for authority to expend funds to pay certain debts. On August 29, 2003, Schumann filed an objection to the payment of expenses, asserting that some expenses were improper and that the temporary administrator’s fee request was excessive.

On September 5, 2003, Schumann filed the following: (1) motion to set the application to determine heirship for a jury trial on November 3, 2003; (2) motion to set her objection to the payment of expenses for a non-jury hearing on September 25, 2003; and (3) notice of intention to take Armstrong’s deposition. On September 10, 2003, Armstrong filed a motion to limit Schumann’s discovery to the common law marriage issue. On September 15, 2003, Schumann filed a motion for sanctions against Armstrong because she failed to appear at the deposition. The motion for sanctions was set for a non-jury hearing on September 25, 2003.

On September 25, 2003, the trial court commenced the hearing on Schumann’s motion for sanctions and objection to payment of expenses. At the hearing, Armstrong’s attorney raised the issue of Schumann’s standing. Schumann’s attorney responded that a jury trial was set on the issue in November; however, the probate court stated that the issue would be decided by the court at an in limine hearing. Schumann’s attorney asserted that the trial court could make a preliminary ruling; however, Schumann was still entitled to a jury trial on the factual issue of whether a common law marriage existed.

On October 9, 2003, the trial court commenced the in limine hearing. On the morning of the hearing, Schumann filed an objection to the court’s making a factual determination regarding whether a common law marriage existed because Schumann had timely filed a jury demand in the heirship proceeding and no motion for summary judgment had been filed. At the hearing, Schumann’s attorney stated that he filed the objection to ensure that Schumann’s right to a jury trial was not waived. In response to the waiver issue, the following exchange occurred:

THE COURT: I don’t believe that you are, all I have here, if counsel wants to — to review it; a couple of cases that I think make the case that, although there may be a jury issue as to the question of heirship and those matters, that the Court can make a preliminary — and [is] supposed to make a preliminary — determination as to whether there’s interested party here, since your client is objecting to things that are pending before this Court now—
MR. DEAN [Schumann’s attorney]: That’s right.
THE COURT: —like the payment of the administrator and certain bills.
MR. DEAN: Exactly.
THE COURT: So, if she wants to do that, I think I should hear some evidence that she has an interest in this sufficient to let her object. And, again, if counsel wants to read Sheffield versus Scott—
MR. DEAN: I probably have a copy of this case, Judge.
THE COURT: The other one here is — well I thought it was — Boone versus Le Galley — and I think they both say much the same thing; that there needs to be a motion — a hearing in limine concerning that issue. So that’s what I will intend to do today, because, once we determine the issue of whether your client has the interest that’s necessary, then I want to resolve some of these payment issues of bills and the payment of the administrator.
[More discussion between Mr. Dean and the trial court regarding absence of waiver.]
MR. SAGEBIEL [Armstrong’s attorney]: May I comment on — •
THE COURT: Yes, sir.
MR. SAGEBIEL: —that? I believe, since the case has been structured where [Schumann] Schuman has come in and put herself in a position of trying to file in the administration of the estate without standing, she herself has put herself in the position of the Court having to make the initial determination. And I believe, if the Court makes an initial determination that she does not have standing, that there is case law there that may preclude a jury trial and that I would want that issue to be kept open for the Court to—
MR. DEAN: I’ve got—
MR. SAGEBIEL: • — determine that.
MR. DEAN: —a couple of cases that say that—
THE COURT: Wait. One at a time. What I’m telling you, Mr. Dean, is I don’t believe, by having this hearing, he is waiving that issue. As I said, if I were to find that she is not an interested party, well, we’ll deal with that when we get to it—
MR. SAGEBIEL: Very good.
THE COURT: —but I don’t believe that the issue is waived at all simply by having this hearing. And if I make some finding contrary to your client’s interests, well, we’ll see what happens then. But I don’t believe this is going to be waiving anything. All right.

At the conclusion of the hearing, the trial court made the following findings:

THE COURT: All right. Thank you. All right. Having heard the evidence, the exhibits admitted into evidence, and the argument of counsel, the Court finds that the person designated at this proceeding as Petitioner Debra Schumann Armstrong has failed to prove by a preponderance of the evidence that she is the common-law wife of Curtis C. Armstrong, Sr. The Court finds no evidence in the record of any formal or informal marriage of any sort. The Court further finds no other evidence of any interest of [Debra] Schumann Armstrong, as designated in this proceeding, may have in the estate. Therefore, the Court finds that [Debra] Schumann Armstrong is not an interested person in this estate for purposes of objecting to the payment of any expenses or claims or for objecting to the fees paid to [the] temporary administrator; and, further, she has no standing to pursue discovery in this case.

On October 10, 2003, Schumann filed a Plea in Intervention in the heirship proceeding, reasserting her common law marriage and renewing her request for a jury trial. On October 30, 2003, Schumann filed an objection to the probate court conducting a non-jury hearing on her plea. The probate court noted that at the time of the in limine hearing, Schumann did not have an affirmative pleading on file with regard to the heirship since Schumann had only filed an answer. Schumann’s attorney responded that the answer could be construed as a plea in intervention since it requested a determination of the common law marriage issue. The probate court noted that Schumann had not filed an application to determine heirship or an application to appoint a personal representative of the estate. The probate court concluded that its prior finding that no common law marriage existed as a matter of law precluded a jury trial and denied the plea in intervention.

The probate court ultimately entered written orders reflecting its rulings on December 9, 2003. In the order regarding the in limine hearing, the court found that Schumann requested relief from the court involving the administration of the estate, thereby raising the issue of her standing. The court further found that Schumann failed to establish her claim of a common law marriage. As a result, the court dismissed Schumann’s claims related to the administration of the estate.

In its order denying the plea in intervention, the probate court found that the only ground to support Schumann’s plea in intervention was the re-urging of her common law marriage claim. The court further found that it had determined that Schumann was not married to Curtis as a matter of law. As a result, the court denied the plea in intervention.

Schumann timely filed this appeal complaining of both of the trial court’s orders.

Discussion

Although Schumann presents four separate points of error in her brief, all of Schumann’s issues hinge on whether the probate court’s finding that Schumann was not Curtis’s common law wife at the in limine hearing in the estate administration proceeding precludes Schumann from presenting the issue to a jury in the heirship proceeding.

Armstrong relies heavily on the contention that the proper procedure to determine standing in an estate administration proceeding is by conducting an in limine hearing. The cases on which Armstrong relies, however, exclusively involve estate administration proceedings. See Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294 (1960); Sheffield v. Scott, 620 S.W.2d 691 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.). These cases do not mention any pending heirship proceeding.

In Womble, the petitioner was seeking to set aside the probate of a 1945 will and to admit a 1952 will to probate. 331 S.W.2d at 295. The issue in the case was whether a release the petitioner had earlier executed, releasing the estate from any claims or demands that the petitioner could assert, barred her attempt to probate the 1952 will. Id. In those circumstances, the court held, “it has long been the established practice, where proper demand is made, to require one asserting a right to probate a will to first establish an interest in the estate which would be affected by the probate of such will.” Id. at 297. “The proper procedure is to try the issue of interest separately and in advance of a trial on the issues affecting the validity of the will.” Id. at 298.

In Sheffield, the appeal involved the dismissal of a will contest. 620 S.W.2d at 692. The court noted, “before one may prosecute a proceeding to probate a will or contest such a proceeding, he must prove that he is a person interested in the estate.” Id. at 693. “The Texas courts have established that the proper procedure to follow on the issue of interest of a contestant is to try the issue separately in an in limine proceeding and in advance of a trial on the issues affecting the validity of the will.” Id. “Such an in limine proceeding is conducted before the court without a jury.” Id.; see also In re Estate of Hill, 761 S.W.2d 527, 528-29 (Tex.App.-Amarillo 1988, no writ).

Although each of these cases discuss the procedure to be followed in will contest or probate contexts, “[t]he same fundamental principle that bars an uninterested party from interfering in the probate of a will is equally important in the area of estate administration.” A & W Indus. v. Day, 977 S.W.2d 738, 742 (Tex.App.-Fort Worth 1998, no pet.). “A mere interloper has no more right to intervene in the administration of a decedent’s estate than he does in the admission of a decedent’s will to probate.” Id. “[A]llowing uninterested strangers to interfere in the administration of a decedent’s estate by merely alleging a factual scenario that, if true, would qualify them as ‘interested persons’ ... is repugnant to the public policy of this state.” Id.

The distinction between the foregoing cases and the instant case is that the foregoing cases do not mention a simultaneously pending heirship proceeding. Section 21 of the Texas Probate Code states in pertinent part, “In all contested ... proceedings in the ... statutory probate court ..., the parties shall be entitled to trial by jury as in other civil actions.” Tex. Prob. Code Ann. § 21 (Vernon 2003). In this case, the heirship proceeding was contested; therefore, Schumann had a statutory right to trial by jury on the issue of the existence of a common law marriage. The question then becomes whether Schumann’s actions taken in the estate administration proceeding, which required the probate court to determine her standing by making a finding with regard to the common law marriage issue, preclude Schumann from presenting the issue to a jury in the heirship proceeding.

In In re Evans’ Estate, the Beaumont court of appeals faced a similar issue. 198 S.W.2d 743 (Tex.Civ.App.-Beaumont 1946, no writ). In that case, the appellees filed an application to declare heirship in a pending estate administration proceeding. Id. at 743. The appellant filed a petition in intervention in the action to declare heirship, claiming that she was the surviving wife of the deceased. Id. The appel-lees answered the petition in intervention, asserting that res judicata barred the intervention because the trial court had earlier denied the appellant’s application for letters of administration. Id. at 743-44. In denying the application for letters of administration, the trial court ruled that the appellant was not related to the deceased and had no interest in the estate. Id. at 744. The appellees’ plea of res judicata was ultimately sustained. Id.

The Beaumont court stated that the question presented on appeal was whether the trial court’s ruling in relation to the letters of administration which was “unsupported by any testimony in regard to the issues litigated” was “such a conclusive determination as a matter of law that the appellant was not the surviving wife of [the] deceased, as to preclude her from presenting her claim for distribution of the assets of the estate upon a later trial on an action instituted to determine who are the heirs of the deceased.” Id. at 745. The court noted, “The identical question presented here has been the subject of extensive litigation and the courts of the various states and of the United States are not in harmony thereon.” Id. Addressing the out-of-state authorities, the court noted:

The question has frequently arisen where a person has been appointed or refused appointment as administrator under the theory that he is or is not an heir or next of kin to the deceased, and this fact is afterwards controverted on the distribution of the estate. A great many courts, as is seen in the cases of Hopkins v. Treasurer, 276 Mass. 502, 177 N.E. 654, In re Firle’s Estate, 191 Minn. 233, 253 N.W. 889, Welch v. Flory, 294 Mass. 138, 200 N.E. 900, 106 A.L.R. 813, In re McClellan’s Estate, 31 S.D. 641, 141 N.W. 965, have held that an adjudication on an issue of heirship in connection with the appointment of an administrator is not conclusive on that question in subsequent proceedings for distribution of the estate, even though such issue was directly presented and decided in the former proceeding. In Hopkins v. Treasurer, supra [276 Mass. 502, 177 N.E. at 656], in referring to the petition for appointment as administrator, the court said: “One may show himself on a hearing on that nature to be an heir at law of a decedent and fail to show himself to be an heir at law for purposes of final distribution of the balance of the estate. The main purpose and ultimate end of that petition and the decree upon it are quite different from the main purpose and ultimate end of the proceedings here involved. It would be stretching the decree appointing an administrator, even though entered after a contest, quite beyond the justifiable limits, to hold that the persons entitled to share in the final distribution of the estate would be settled by the heirs at law there disclosed.” In California the courts favor the view that an order of appointment should not be given conclusive effect on questions of heirship although those courts have held that such an adjudication is conclusive in a subsequent proceeding involving the same parties where the issue of heirship was litigated and directly decided the application for appointment. While the courts in the various states differ in their holdings when the issue of relationship was necessary to be decided and was decided after proper litigation, the authorities are practically unanimous in holding that when the issue was not litigated or it was not necessary to decide the issue in order to render judgment, then such a finding as to relationship is merely collateral and is not conclusive at a later suit to determine heirship.

Id. at 745-46. The Beaumont court held that the finding by the probate court that the appellant was not related to the decedent was merely collateral and incidental to the judgment denying appellant’s application for letters of administration; however, the court cautioned:

We do not go so far as to hold in this case that a judgment of a probate court granting or refusing letters of administration can not be conclusive on a question of relationship of an applicant to the deceased regardless of whether the issue was presented, was necessary for a decision on the appointment, and was litigated by the parties.

Id. at 747. The Beaumont court noted one other Texas authority had discussed the issue. Id. at 746.

In Berger v. Kirby, 135 S.W. 1122, 1126 (Tex.Civ.App.1911), aff'd, 105 Tex. 611, 158 S.W. 1130 (1913), the appellant contended that the probate court’s order appointing M.W. Kirby as the administrator of the deceased’s estate adjudicated the fact that the appellant was the wife of the deceased because the application stated that the deceased left appellant as his surviving wife. The appellate court rejected this argument asserting, “The issue of whether the appellant was the lawful wife of [the deceased] was neither tendered by the application of M.W. Kirby ..., nor was the issue necessarily involved in the decision of the court in passing upon such application.” Id. “[T]he rule is that the estoppel of a judgment extends only to the points directly involved in the action decided, and not to any matter which was only incidentally cognizable, or which came collaterally in question.” Id. “This is true, even though the matter coming collaterally into question may have been judicially passed on.” Id. “At most, the question as to whether or not the appellant was the wife of [the deceased] was only incidentally cognizable before the county court, and whatever adjudication there may have been in reference thereto was merely collateral and incidental, and not conclusive.” Id. In discussing Berger, the Beaumont court in In re Evans’ Estate commented:

It seems to have been the court’s opinion that even if the issue had been involved in the appointment of the administrator, the order still would not be res judicata on [the common law marriage] question, since whatever adjudication there may have been in reference thereto was merely collateral and incidental to the main question of the right to administration.

In re Evans’ Estate, 198 S.W.2d at 746.

The true issue before the probate court in the estate administration proceeding was whether the requested expenses should be paid. The issue of whether Schumann had standing to contest the payment was a collateral issue. To hold otherwise would deprive Schumann of her right to a jury trial on the contested issue of the existence of her common law marriage. If we accepted Armstrong’s contention that Schumann waived her right to a jury trial by taking action in the administration proceeding, then expenses could never be challenged by a potentially interested party until after an heirship determination was made. The potentially interested party might forego any objections to preserve the right to a jury trial, and expenses might be paid that were not warranted," thereby depleting the estate. Given the unique posture of this case, we hold that the probate court’s determination of Schumann’s standing at the in limine hearing was a collateral matter and was not conclusive for purposes of the heirship proceeding. Accordingly, the probate court’s ruling at the in limine hearing does not bar Schumann’s right to seek a jury trial in the heirship proceeding.

Conclusion-

The trial court’s order on motion in li-mine to determine standing is affirmed. The trial court’s order denying Schumann’s plea in intervention is reversed, and the cause is remanded to the probate court for further proceedings consistent with this opinion.


source: Caselaw Access Project

author: BILL VANCE, Justice.

license: Public Domain

text:
    The TEXAS PARKS AND WILDLIFE DEPARTMENT, Doug Hammitt, and Marvin C. Wills, Jr., Appellants, v. E.E. LOWREY REALTY, LTD. d/b/a Gatesville Storage and the Estate of E.E. Lowrey, Appellees.
    No. 10-02-00317-CV.
    Court of Appeals of Texas, Waco.
    Nov. 3, 2004.
    Rehearing Overruled Jan. 25, 2005.

      Cherie K. Batsel, Asst. Atty. General-Tort Litigation Div., Austin, for appellants.
    Robert F. Salter, Gatesville, for appel-lees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

      This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. See Tex.R.App. P. 41.1(c). Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.

   OPINION

BILL VANCE, Justice.

This is an interlocutory appeal of the denial of a plea to the jurisdiction. E.E. Lowrey Realty, Ltd. and the estate of E.E. Lowrey (collectively “Lowrey”) brought suit against the Texas Parks and Wildlife Department and Doug Hammitt and Marvin C. Wills, Jr., employees of the Department, for fire damage to premises owned by Lowrey and leased by the Department to store a boat. Lowre/s petition alleged that the negligence of the employees in installing lights on the boat caused a fire and that the Department breached its lease agreement by not compensating Lowrey for damages to the premises. The Department, Hammitt, and Wills filed pleas to the jurisdiction, contending that sovereign immunity bars Lowrey’s claims. The trial court overruled the plea.

The Department, Hammitt, and Wills complain on appeal that the trial court erred in: (1) making findings of fact, (2) overruling the plea to the jurisdiction as to the breach-of-contract claim, and (3) overruling the plea as to the tort claim. We will dismiss the employees’ appeals. We will also reverse the trial court’s order and remand the cause for further proceedings.

CLAIMS AGAINST THE EMPLOYEES

Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code permits an interlocutory appeal of the grant or denial of a governmental unit’s plea to the jurisdiction. Tex. Civ. PRAC. & Rem.Code ANN. § 51.014(a)(8) (Vernon Supp.2004). The right to such an appeal does not, however, extend to an employee of the governmental unit, even when the employee is a codefendant with the governmental unit. See Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777, 780 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.); Univ. of Houston v. Elthon, 9 S.W.3d 351, 354 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.); Dallas County Community College Dist. v. Bolton, 990 S.W.2d 465, 467 (Tex.App.-Dallas 1999, no pet.); but see Nueces County v. Ferguson, 97 S.W.3d 205, 210 n. 2 (Tex.App.-Corpus Christi 2002, no pet.).

We requested that the employees show grounds for continuing the appeal. In a letter-brief, the Attorney General argues that, although an employee named in an individual capacity may not appeal, an employee named in an official capacity should enjoy the benefit of the statute allowing an interlocutory appeal. He points to decisions saying that a suit filed against an employee in an official capacity is an attempt to impose liability on the State and therefore the suit is in actuality against the governmental unit. See, e.g., Vela v. Rocha, 52 S.W.3d 398, 403 (Tex.App.-Corpus Christi 2001, no pet.). The employee may raise any defense available to the governmental unit, including sovereign immunity, when sued in an official capacity. See, e.g., Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex.App.-El Paso 1993, writ dism’d w.o.j.). Because both the governmental unit and the employee are “the state” in that circumstance, the Attorney General reasons, an employee sued in an official capacity should be allowed to appeal an adverse ruling on a plea to the jurisdiction based on sovereign immunity.

We are faced, however, with the plain meaning of the words used in the statute— “governmental unit.” Tex. Civ. PRac. & Rem.Code Ann. § 51.014(a)(8) (referring to the definition in section 100.101); St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997) (“The Legislature’s intent is determined from the plain and common meaning of the words used.”). Hammitt and Wills are individuals, not governmental units.

Alternatively, the Attorney General asks us to treat the employees’ pleas to the jurisdiction as a motion for summary judgment, the denial of which would be reviewable under section 51.014(a)(5) of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2004). We decline the invitation.

We dismiss the appeals of Doug Ham-mitt and Marvin C. Wills, Jr. for want of jurisdiction to entertain them.

THE DEPARTMENT’S ISSUES

The Department asserts three issues.

Findings of Fact

The Department’s first issue contends that the trial court erred in making findings of fact. “[N]o statute permits the interlocutory appeal of a trial court’s entry of findings of fact.” In re H2O Plumbing, Inc., 115 S.W.3d 79, 81 (Tex.App.-San Antonio 2003, orig. proceeding). We dismiss the issue.

Plea to the Jurisdiction—Tort Claims Act

The Department’s third issue contends that the trial court erred in overruling the Department’s plea to the jurisdiction—based on sovereign immunity-related to claims under the Texas Tort Claims Act.

Unless the state consents, sovereign immunity deprives a trial court of subject matter jurisdiction of suits against the state and certain governmental units. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). The Tort Claims Act provides a limited waiver of sovereign immunity. Id.;

Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-109 (Vernon 1997 & Supp. 2004). It waives sovereign immunity for tort liability for property damage “aris[ing] from the operation or use of a motor-driven vehicle or motor-driven equipment.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 1997). For liability to “arise out of’ the use of a vehicle, there must be a nexus between the operation or use of the motor-driven vehicle or equipment and the plaintiffs injury. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003); Tex. Nat. Resource Conservation Com’n v. White, 46 S.W.3d 864, 869 (Tex.2001). The burden rests with the plaintiff to plead facts that affirmatively show that the court has jurisdiction. Godley ISD v. Woods, 21 S.W.3d 656, 658 (Tex.App.-Waco 2000, pet. denied). Our review of the trial court’s ruling on a plea to the jurisdiction is de novo. Id.; Miranda, 133 S.W.3d at 226.

Lowrey’s petition does not allege operation or any use of the boat, or any other item, as a vehicle or as motor-driven equipment. Thus, the claim does not fall within the exception to sovereign immunity. Accordingly, the trial court erred in denying the plea to the jurisdiction, and we sustain the Department’s third issue.

Plea to the Jurisdiction — Breach of Contract Claim

Although Lowrey’s counsel appears to have conceded the second issue at the trial court’s hearing on the plea to the jurisdiction, the Department asserts sovereign immunity related to Lowrey’s breach-of-contract claim. Lowrey’s brief does not respond to this issue.

The State does not waive immunity from suit simply by contracting with a private person. General Services Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). Legislative consent to sue is still necessary. Id; see also Federal Sign v. Texas Southern University, 951 S.W.2d 401, 408 (Tex.1997); Tex. Gov’t Code Ann. § 2260.007 (Vernon Supp.2004).

Finding no consent to sue the Department, we sustain its second issue.

CONCLUSION

We reverse the trial court’s denial of the Department’s plea to the jurisdiction. Because the trial court ruled in Lowrey’s favor when it denied the Department’s plea, Lowrey should be provided an opportunity to amend before the case is dismissed with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004) (“the trial court allowed Sykes to file an amended petition, after which the court made a final adjudication that the Legislature has not waived governmental immunity under the Texas Tort Claims Act with respect to any claim that Sykes brought against Harris County”). We remand the cause for further proceedings consistent with this opinion.

Chief Justice GRAY not participating.

      . When sued in his individual capacity, the employee is entitled to raise the defense of official immunity, rather than sovereign immunity. See Gonzalez v. Avalos, 866 S.W.2d 346, 349 (Tex.App.-El Paso 1993, writ dism’d w.o.j.).

      . It is now clear that the trial court should consider evidence when necessary to resolve any jurisdictional issues raised. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 223-24 (Tex.2004).


author: KAREN ANGELINI, Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. Mark HARTMAN, Independent Executor of the Estate of Donna O’Bar, Deceased, and on behalf of her Statutory Beneficiaries; Mark Hartman, Personal Representative of the Estate of Richard Hartman, Deceased, and on behalf of his Statutory Beneficiaries; Brenda Pivonka, Individually and as Administratrix of the Estate of Jennifer Allensworth, Deceased; and Justin Hartman, Individually and as Sole Heir of the Estate of Mallori Hartman, Deceased, Appellees.
    No. 04-04-00162-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 10, 2004.
    Rehearing Overruled Jan. 14, 2005.

      Elsa Giron Nava, Asst. City Atty., San Antonio, for appellant.

      Les Mendelsohn, Ricky J. Poole, Les Mendelsohn & Associates, P.C., San Antonio, Glenn M. Douglas, L.L.P., Houston, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

The City of San Antonio (“City”) appeals an interlocutory order rendered in favor Mark Hartman, Independent Executor of the Estate of Donna O’Bar, Deceased, and on behalf of her Statutory Beneficiaries; Mark Hartman, Personal Representative of the Estate of Richard Hartman, Deceased, and on behalf of his Statutory Beneficiaries; Brenda Pivonka, Individually and as Administratrix of the Estate of Jennifer Allensworth, Deceased; and Justin Hartman, Individually and as Sole Heir of the Estate of Mallori Hartman, Deceased (“Hartman”), denying the City’s plea to the jurisdiction based on governmental immunity. The City presents four issues for review: (1) the City did not owe a duty to the decedents; (2) an emergency condition existed that preserved immunity; (3) the barricades provided adequate warning and/or the City did not know that the barricades needed to be replaced; and (4) the claims against the City were based on design or discretionary decisions. We overrule all four issues and affirm the judgment of the trial court.

Factual and PROCEDURAL Background

Four persons drowned when the vehicle in which they were traveling was swept away by floodwaters that had accumulated at the intersection of two roadways. The two roadways, Rigsby Avenue and Shrader Street, are located within the City of San Antonio. At the time of the accident, the decedents were traveling eastbound on Rigsby Avenue, also known as State Highway 87.

During the hours leading up to this incident, the City had been experiencing significant . amounts of rainfall, and flooding had begun throughout the City. Specifically, at some point on the evening of October 17, 1998, significant flooding had occurred at the intersection of Rigsby Avenue and Shrader Street. The flood waters had inundated the area just to the east of Shrader Street (which runs north to south) and created a virtual “running river of water” that flowed over and bisected Rigsby Avenue (which runs east to west), making the road impassable to vehicles.

The City and the State were aware that such flooding had occurred on roadways throughout the City. Appropriate employees of both governmental entities had begun barricading and placing flares on roads and highways that had become hazardous or impassable. Concerning the intersection of Shrader and Rigsby, the facts are disputed and there is conflicting testimony concerning both the location and number of barricades; however, it is generally accepted that at some point, both during and after the events that concern this suit, barricades belonging to both State and City employees were present and used to block off sections of the roadway and intersection.

Hartman, representing the families of the deceased, brought an action pursuant to the Texas Tort Claims Act against the City of San Antonio, alleging that the water on the roadway constituted a defective condition of real property for which the City was responsible and negligent under a premises defects theory of liability. In response, the City asserted several claims under the theory of governmental immunity and filed a plea to the jurisdiction pursuant to Texas Rule of Civil Procedure 85; in the alternative, a “no evidence” motion for summary judgment pursuant to Texas Rule of Civil Procedure 166a(i); and, further in the alternative, a motion for summary judgment pursuant to Texas Rule of Civil Procedure 166a. The trial court denied these motions. The City now appeals the interlocutory order denying its amended plea to the jurisdiction pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code.

Plea to the Jurisdiction

The City’s plea to the jurisdiction presents us with a-preliminary issue for immediate review based on subject matter jurisdiction. Subject matter jurisdiction is essential for a court to have the authority to resolve a case; it is never presumed and cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993).

A. Governmental Immunity

In Texas, governmental immunity from suit deprives a trial court of subject matter jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Governmental immunity includes two distinct principles: (1) immunity from suit, and (2) immunity from liability. Id. Immunity from liability is an affirmative defense, while immunity from suit fundamentally affects the trial court’s subject matter jurisdiction. Id.

Utilizing a narrow exception to this common law doctrine, Hartman brought suit under the Texas Tort Claims Act (the “Act”). The Act creates a unique statutory scheme in which the two immunities are co-extensive: “[Governmental] immunity to suit is waived and abolished to the extent of liability created by this chapter.” Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 1997) (emphasis added). Thus, the City is immune from suit unless the Act expressly waives immunity. We have previously laid out the scope of the Act’s waiver of immunity:

In order for immunity to be waived under the [Act], the claim must arise under one of the three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exceptions from waiver. The three specific areas of liability for which immunity has been waived are: (1) injury caused by an employee’s use of a motor-driven vehicle; (2) injury caused by a condition or use of tangible personal or real property; and (3) claims arising from premise defects.

Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.). Here, Hartman proceeded on a premise defects theory of liability.

B. Premises Liability

Under the Act, immunity is waived and a governmental unit is liable for “personal injury and death so caused by a 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.” Tex. Crv. PraC. & Rem. Code ANN. § 101.021(2) (Vernon 1997). In cases, such as ours, where the claim involves real property, the Act limits the governmental unit’s liability as follows:

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices.

Id. Tex. Crv. PRAC. & ReM. Code Ann. § 101.022 (Vernon 1997). Therefore, where a special defect is at issue, an exclusion to the ordinary premises limitation applies, and the Act raises the duty a governmental entity owes to the claimant to that of an invitee. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992).

Addressing both types of defects, Hartman first alleged in his petition that the unexpected presence of floodwaters obstructing Rigsby Avenue constituted a “special defect” for which the City breached its duty of care to the decedents. Under the invitee standard, the government occupant has a duty to warn of dangerous conditions of which the government has knowledge or which the government would have discovered in the exercise of ordinary care. Id. at 237. That duty also requires the owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by the condition. Id.

In the alternative, Hartman alleged a “premise defect.” Under the licensee standard, the government occupant owes the duty not to injure the licensee by willful, wanton, or gross negligence. State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974). An exception to this general rule, however, is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or make the condition reasonably safe. Id. The duty to warn licensees of dangerous conditions arises only in those instances where the licensor knows of the condition likely to cause injury. Id. Actual knowledge, rather than constructive knowledge, of the dangerous condition is required. Id.

Both standards, thus, require the City to either warn the decedents of dangerous conditions or make safe those same conditions if it had actual knowledge at the time of the flooding. Therefore, regardless of the level of duty imposed, Hartman contends that the City is liable for the deaths of the decedents because: (1) the condition of Rigsby Avenue at all times material created an unreasonable risk of harm to persons traveling on the roadway; (2) the City, owner of and party in control of the roadway in question, actually knew about the dangerous condition present; (3) the decedents did not have actual knowledge of the dangerous condition; (4) the City did not exercise ordinary care to protect persons traveling west on Rigsby Avenue from the dangerous condition, either by warning of the danger or by making it safe; and (5) the City’s failure to exercise ordinary care proximately caused the deaths of the decedents.

A liberal construction of these allegations, as required, demonstrates that Hartman successfully pleaded a claim against the City for a premises defect under the Act. See Miranda, 133 S.W.3d at 230. Therefore, in its plea to the jurisdiction, the City challenges the existence of jurisdictional facts and contends that it retains its governmental immunity due to exclusions and exemptions from the waiver of immunity found in sections 101.051 through 101.066 of the Texas Civil Practice and Remedies Code. The City presents the following issues for review:

(1) Did the City owe a duty to Plaintiffs’ decedents?
(2) Did an emergency condition exist?
(3) Did the barricades provide adequate warning and/or did the City not know that the barricades needed to be replaced?
(4) Were such decisions of the City barred from claim as being design and/or discretionary?

C. Standard of Review

When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court considers relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. When a jurisdictional challenge implicates the merits of a plaintiffs cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Id. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. If the evidence creates a fact question regarding the jurisdictional issue, however, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28.

We review the trial court’s ruling on a plea to the jurisdiction de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). 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, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228.

Issues on Appeal

A. Duty

In its first issue, the City argues that the trial court erred in failing to grant its plea to the jurisdiction because the City did not owe a duty to the decedents •with regard to the roadway in question. We disagree. Duty is a threshold inquiry; if evidence in the record creates an issue of material fact, then the trial court did not err in denying the City’s plea. See Corbin v. City of Keller, 1 S.W.3d 743, 746 (Tex.App.-Fort Worth 1999, pet. denied).

1. Conjunctive pleadings

Initially, the City formulates its duty argument under a defense of conjunctive pleading. The City argues that because Hartman’s original petition refers to the City as “owner of and party in control of roadway in question,” it must quite literally show that the City of San Antonio both owned and controlled Rigsby Avenue in order to succeed in its cause of action. The City, however, cites no legal authority for its assertion, and we are unaware of such a defense.

To the contrary, Hartman brings forth an action based on premises liability, and it is well settled that a plaintiff must only show that the governmental entity owned, occupied, or controlled the premises, or created the dangerous condition before it can be held liable for the premise defect. See City of San Benito v. Cantu, 831 S.W.2d 416, 425 (Tex.App.-Corpus Christi 1992, no writ). This does not require a combination of two or more of these conditions; ownership of property is, in fact, unnecessary to prove liability based on a defect in the premises. See Gunn v. Harris Methodist Affiliated Hosps., 887 S.W.2d 248, 251-52 (Tex.App.-Fort Worth 1994, writ denied) (holding that “control” over the premises is the threshold issue in a premises liability case).

2. The Municipal Maintenance Agreement

In the alternative, the City argues that TxDOT and the City have determined, by way of a 1974 Municipal Maintenance Agreement (“Agreement”) between the City and the State, that TxDOT controls Rigsby Avenue and is responsible for barricading the subject roadway during flooding. In support, the City cites to the following language of the Agreement:

[It shall be the State’s responsibility to] install and maintain normal markings necessary for directing highway traffic in a safe and efficient manner, which shall include normal route markers, directional and destination signs, speed limit signs, stop or yield signs that control the flow of traffic on State Highway routes, city limit signs, warning signs, centerline, lane line and no-passing barrierline stripes, painted or button medians or islands, edge lines, and such other pavement markings considered necessary for direction of traffic.

The City places particular emphasis on the State’s declared responsibility in the Agreement for “warning signs,” arguing that this includes barricades. Moreover, the City declares that the “warning sign” language in the Agreement is “clear and specific” that the responsibility for barricading due to flooding on the roadway belongs to the State. We do not agree. While this portion of the Agreement appears to pass to the State the obligation to maintain most ordinary and usual highway markings, the Agreement says nothing about who is responsible for barricading or closing streets when there is flooding on the roadway. To the contrary, the Agreement provides that the City retains “all functions and responsibilities for maintenance, control, supervision and regulation which are not specifically described as the responsibility of the State.” While neither party’s argument conclusively establishes duty or control of the roadway, the evidence does create a fact question regarding the jurisdictional issue. Therefore, the trial court did not err in denying the City’s plea to the jurisdiction.

3. The Barricades

In its final point on the issue of duty, the City argues that, even if City personnel placed barricades on the east side of the flooded crossing on Rigsby Avenue, this still should not shift legal responsibility to the City for the entire roadway when the accident occurred on the opposite (west) side of the crossing. Again, we disagree.

A constant point of contention throughout both Hartman’s and the City’s briefs is the presence, location and/or number of City barricades that were at the location of the flooding that is the subject of this suit. Both parties use favorable testimony concerning the barricades to demonstrate either the existence or absence of City control during the flood. Hartman points to evidence that tends to show that City barricades were present and that the City exercised control and, thus, held a duty to the decedents at the time of the accident. Conversely, the City points to evidence that tends to show that only State barricades were present at the crossing, or, in the alternative, that City barricades were only used on the opposite side of the flooded section of Rigsby Avenue from that which the decedents’ automobile approached. Eyewitness testimony on the barricades, however, is both numerous and disparate. Accordingly, we must take all evidence favorable to Hartman as true, and all doubts must be resolved in his favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Because the evidence of duty creates a fact question regarding the jurisdictional issue, the fact issue must be resolved by the fact finder. Therefore, we hold that the trial court did not err in denying the City’s plea to the jurisdiction. Accordingly, we overrule this issue on appeal.

B. Emergency Condition

In its second issue, the City argues that the trial court erred in denying the City’s plea to the jurisdiction because, even if the City owed a duty to the decedents, an emergency condition existed pursuant to section 101.055(2) of the Texas Civil Practice and Remedies Code. The existence of an emergency condition creates a limited exception to the waiver of governmental immunity provided in the Act. Id. The existence of an emergency, however, is a matter of fact that ordinarily should be determined by the jury. Mejia v. City of San Antonio, 759 S.W.2d 198, 200 (Tex.App.-San Antonio 1988, no writ). Therefore, in order to succeed on its plea to the jurisdiction, there can be no issue of material fact regarding the existence of an emergency and whether the City complied with relevant laws. Id.

In support of its argument, the City presents evidence with which it seeks to show that the City of San Antonio had endured an emergency situation during the flooding subject to this suit. It notes that a disaster situation had been declared and that the Mayor of San Antonio had requested federal assistance and relief due to the extremity of the circumstances. Essentially, the City contends, therefore, that the “emergency exception” by its language completely removes any of its actions during the period of flooding from the reach of the Act. We disagree.

For the purposes of this provision, we must interpret an “emergency condition” much more specifically than what might be colloquially referred to as an “emergency.” The emergency exception provision has most often been considered in connection with traffic accidents involving law enforcement and emergency vehicles. See State v. Saenz, 967 S.W.2d 910 (Tex.App.Corpus Christi 1998, pet. denied); Borrego v. City of El Paso, 964 S.W.2d 954 (Tex.App.-El Paso 1998, pet. denied). While we recognize that at least one sister court has determined that the statutory language of the emergency exception does not so limit its application to these instances, that court’s decision on appeal followed a complete disposition of trial proceedings rather than an interlocutory order. See City of Arlington v. Whitaker, 977 S.W.2d 742, 744 (Tex.App.-Fort Worth 1998, pet. denied) (held that jury’s finding that fire chief was responding to an “emergency” was sufficient to preserve City’s immunity as a matter of law). Accordingly, we overrule this issue on appeal.

C. Judgment as a Matter of Law

In its third issue, the City argues that the trial court erred in denying the City’s plea to the jurisdiction because the evidence conclusively proves that the City is entitled to judgment as a matter of law. Specifically, the City contends that the trial court erred in denying its plea to the jurisdiction because, even if it owed a duty to the decedents for a special defect or a premises defect, TxDOT barricades (that the City argues were present on the roadway at the time of the accident) were adequate to warn the decedents of the water on the roadway, or, in the alternative, the City did not know that the barricades needed to be replaced.

In support of its contentions, the City proffers the sworn testimony of one of its employees, Armando “Rocky” Aranda, that on the evening in question there were TxDOT barricades facing the decedents as they approached the subject bridge and that this was enough to adequately warn motorists against proceeding into the water on the roadway. Bolstering the testimony of Aranda, the City notes that at least two other vehicles had approached the flooded crossing and barricades and had successfully been turned away prior to the decedents’ accident. Aranda further testified that the City did not know that the barricades on the west side of the subject bridge were not in place at the time of the accident to prevent motorists from entering that area.

In addressing the City’s argument that the State’s barricades provided the decedents with adequate warning, Hartman cites to the testimony of a city employee stating that only one barricade was raised on the west side of the flooded crossing, and that this one barricade failed to block either lane of traffic. Hartman also derives from the testimony of two firefighters that had witnessed the accident that the cars that had turned around at the crossing before the accident had done so only after passing the alleged barricades and reaching the waterline. While this evidence does not serve to conclusively establish the inadequacy of warning, it does create an issue of material fact sufficient to survive the City’s plea.

Hartman also takes issue with the City’s arguments that there was no evidence that the City knew the barricades on the west side of the bridge were missing, while claiming that the evidence clearly demonstrates that the TxDOT barricades were in place at the time of the accident. The evidence and arguments become fairly convoluted at this point; however, the basis of Hartman’s contention is that the City has misstated evidence with regard to the time, location, and presence of State barricades at the location in question. Regardless, the City has failed to show that it is entitled to judgment as a matter of law, and we, thus, hold that these issues must be decided by a finder of fact in conjunction with the intertwined jurisdiction arguments. Accordingly, we overrule this issue on appeal.

D. Design and Discretionary Decisions

.In its fourth and final issue, the City argues that Hartman’s premises liability cause of action presents allegations of design and construction decisions that are barred under section 101.056 of the Texas Civil Practice and Remedies Code. The waivers of immunity from suit and liability in the Act do not apply to a governmental entity’s failure to perform a discretionary act. Wenzel v. City of New Braunfels, 852 S.W.2d 97, 99 (Tex.App.-Austin 1993, no pet.). The City, thus, contends that its decision of whether to place barricades or take other precautionary measures is a discretionary act from which it is immune.

This section of the Act, however, applies to policy decisions regarding the design of roadways and the regulation of traffic. See Maxwell v. Texas Dep’t of Transp., 880 S.W.2d 461, 464 (Tex.App.-Austin 1994, writ denied). Here, the suit did not involve the discretionary placement of a stop sign or traffic signal or guardrail; rather, it involved the barricading of a temporarily, dangerously flooded roadway. To apply the exception to this set of facts would not further the legislature’s reason for immunizing discretionary actions of governmental entities, which is “to avoid judicial review that would question the wisdom of a government’s exercise of its discretion in making policy decisions.” State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979). Accordingly, we overrule this issue on appeal.

Conclusion

Because the evidence creates a fact question regarding the jurisdictional issue, we overrule all four of the City’s issues and affirm the decision of the trial court.

      . Section 51.014 provides that:
      (a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

      (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.
      TEX. CIV. PRAC. & REM. CODE § 51.014(A)(8). Section 101.001 defines "governmental unit” to include "a political subdivision of this state, including any city.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.001 (Vernon 1997).
      The City appeals neither the denial of its "no evidence” motion for summary judgment nor, in the alternative, its motion for summary judgment. An order denying a motion for summary judgment is an interlocutory order, is not a final judgment, and, under most circumstances, is not appealable. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994).

      . If 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 case. Miranda, 133 S.W.3d at 226. We must construe the pleadings in the plaintiff’s favor and look to the pleader's intent. Id.

      . The supreme court has acknowledged that this standard mirrors that of a summary judgment brought under Texas Rule of Civil Procedure 166a(c). See Miranda, 133 S.W.3d at 228. The majority opinion in the Miranda case explained:
      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 [City] 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 [City] 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.

        Id. ("City” substituted for "State”).

      . The City's brief states: "Therefore, ownership of the roadway must be proven or Plaintiffs' have not alleged any cause of action against Defendant.”

      . Section 221.002 of the Texas Transportation Code provides:
      The commission and the governing body of a municipality, including a home-rule municipality, may agree to:
      (1) provide for the location, relocation, improvement, control, supervision, and regulation of a designated state highway in the municipality; and
      (2) establish the respective liabilities and responsibilities of the commission and the municipality under the agreement.
      Tex. Transp. Code Ann. § 221.002 (Vernon 1999). This section provides that the State may contract with municipalities concerning the improvement, control, or supervision of a designated state highway. Id.; Torres v. Texas Dep’t of Transp., 88 S.W.3d 768, 771 (Tex.App.-Corpus Christi 2002, no pet.).

      . The following testimony with regard to the presence and number of barricades is found in the court record:
      (1) Robert Mancillas testified he saw one State barricade in the middle of the road on the west side of the bridge at 6:00 p.m.; (2) Stanley Irwin testified he saw no State barricades on the east side of the bridge at or around midnight; (3) Jeffery Collins testified that he thought he remembered there being a State barricade on the east side of the bridge, east of Shrader, at or around midnight; (4). Michael Miller testified he saw no barricades on the east side of the bridge, one State barricade on the west side of the bridge, at or around midnight; (5) Trenton Thames testified he saw one State barricade on the west side of the bridge at or around midnight; (6) Walter Yates testified he saw two barricades and a "road closed” sign in the middle of the road on the west side of the bridge at or around midnight; and (7) Richard Baring does not recall seeing any barricades on either side of the bridge at or around midnight.


author: SARAH B. DUNCAN, Justice. SANDEE BRYAN MARION, Justice,

text:
    Stephanie M. GARZA, Appellant, v. Xavier H. GARZA, Appellee.
    No. 04-03-00888-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 10, 2004.

      Per A. Hardy, Law Office of Per A. Hardy, James E. Hoffman, San Antonio, for appellant.
    Jo Chris G. Lopez, Shaddox, Compere, Walraven & Goode, P.C., Michael W. Jackson, Wade B. Shelton, Shelton & Valadez, P.C., San Antonio, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Interlocutory Opinion on Appeal of Order Sustaining Contest to Affidavit of Inability to Pay Costs and Denying Free Record

Opinion by

SARAH B. DUNCAN, Justice.

Stephanie M. Garza appeals the trial court’s order sustaining contests to her affidavit of inability to pay costs and denying her motion for a free record in her appeal of the trial court’s judgment granting a divorce between Stephanie and her former husband Xavier. Xavier asks that we dismiss Stephanie’s appeal as moot because she has accepted benefits from the same judgment she seeks to appeal. We hold the acceptance-of-benefits doctrine does not apply because Stephanie was compelled to accept the benefits of the judgment by her economic circumstances and therefore deny Xavier’s motion to dismiss. We further hold the trial court abused its discretion in finding that Stephanie is able to pay the costs of appeal, because the undisputed evidence establishes otherwise, and therefore reverse the trial court’s order sustaining the contests. Because the trial court did not determine whether Stephanie’s grounds for appeal are frivolous or whether the record she requests is necessary to decide her appeal, we abate the appeal and remand the case to the trial court for further findings on these issues.

Factual and Prooedural Background

As noted above, the trial court’s judgment grants a divorce between Stephanie and Xavier Garza. The judgment also names Stephanie and Xavier joint managing conservators of their two young sons, gives Xavier the exclusive right to establish the children’s primary residence, and orders Stephanie to pay child support and provide the children with health insurance. Finally, the judgment awards the family homestead to Xavier and orders him to pay to Stephanie $73,871, payable in sixty monthly installments of $1,428.13, for her equity in the homestead. The judgment was timely appealed by Stephanie, who also filed an affidavit of inability to pay costs. Stephanie’s affidavit was contested by two court reporters and Xavier. See Tex.R.App. P. 20.1(c). Xavier also moved for temporary orders, asking in part that enforcement of the judgment be suspended pending appeal or, alternatively, that he be permitted to deposit the monthly payments to Stephanie for her equity interest in the marital homestead into the registry of the court. See Tex. Fam.Code ANN. § 6.709 (Vernon 1998); id. § 109.001 (Vernon 2002). After the contests were filed, Stephanie moved for a free record on appeal, incorporating her affidavit of inability to pay costs, stating her grounds for appeal, and explaining her need for a record. See Tex. Crv. Peac. & Rem.Code ANN. § 13.003 (Vernon 2002). A hearing ensued. The trial court took judicial notice of Stephanie’s affidavit; and she testified, in detail and without dispute, regarding her income, assets, and debts, as well as her efforts to obtain a higher paying job and a loan to pay the costs of appeal.

Stephanie does not receive income from any person or entity other than her employer; she does not benefit from any other person’s income or assets; and she is not the beneficiary of a trust. For twelve years, she worked as a certified music teacher. But, when her first child was bom in 1997, she left her teaching position to stay home to take care of her child. After she and Xavier separated in the fall of 2002, Stephanie returned to full-time employment as a special education teaching assistant, a position she retained at the time of the hearing. Stephanie acknowledged that she is underemployed; however, there is no evidence that her underemployment is voluntary. To the contrary, the evidence establishes that, when Stephanie returned to the job market in the fall of 2002, she applied to several school districts and took the only job she was offered. Sometime thereafter, she applied to fill an open position as a theater arts teacher; but she was not qualified for that position and was not offered the job. She has also had ongoing discussions with school administrators about moving into a certified position when one for which she is qualified becomes available. Although Stephanie expects a certified position to eventually become available, there is no evidence that one was available at any time after the separation and before the hearing.

As a special education teaching assistant, Stephanie receives a gross monthly income of $1,463.24. But, from this amount, the school district withholds approximately $696 — $232 for court-ordered child support, $297 for health insurance for Stephanie and her children, and approximately $167 for income, Social Security, and Medicare taxes. Stephanie therefore takes home only about $767 each month. But Stephanie’s fixed expenses exceed $2,100. She pays$710 for rent, $278 for utilities, $207 on her car note, $75 for car insurance, $28 for gasoline, and $460 for groceries and her children’s clothes, entertainment, and incidental school expenses. Because her fixed expenses exceed her take-home pay, Stephanie has incurred over $8,600 in credit card debt since the separation and must pay $210 each month to cover the minimum payments due. Stephanie has other debt on which she is making no payments. Stephanie must also pay between $150 and $200 each month for recurring out-of-pocket medical expenses related to her diabetes — $25 for each doctor visit, $85 for her insulin pump and pump supplies, and $50 for insulin and other prescription drugs. In short, the undisputed testimony establishes that Stephanie’s basic living expenses and the minimum required payments on her outstanding debt are in excess of $2,100 a month, while her net monthly income is $767. To bridge the gap between her income and expenses, Stephanie has defrayed her living expenses with the three payments she has received from Xavier for her equity interest in the marital homestead. Other than her equity interest in the marital homestead, Stephanie owns no real property; and her only personal property is the furniture in her apartment, which is of minimal value, and her car. She has a checking account but it has a zero balance; and she has no other cash, bank accounts, stocks, bonds, or other investments. She thus has no assets she can convert to pay the costs of appeal.

Between May 2002 and February 2003, after Stephanie and Xavier separated, Stephanie’s father and his wife loaned Stephanie $33,800, for which she signed a promissory note. When asked whether this loan was not really just a gift to help her get by, Stephanie testified “not in my family.” She has not asked her family for more money because, when they asked in January 2003 that she start making monthly payments on the note, she was unable to do so. She has applied for loans at two banks and been turned down. Stephanie also testified she used over $30,000 of the loan from her family to pay her attorneys; the remainder of the loan was used for her living expenses before she got a job. Nonetheless, she still owes her attorneys over $54,000 for their services through trial. Stephanie’s attorneys have not agreed te) advance her the estimated $11,500 to $13,000 cost of the record.

At the conclusion of the hearing, the trial court ordered Xavier to deposit the payments due Stephanie for her equity interest in the homestead into the registry of the court “until the appeal is resolved and disposition of the' funds on deposit is determined by final judgment.” In doing so, the trial judge expressly stated he did not want Stephanie to have access to these funds to pay for her appeal. The trial court also sustained the contests to Stephanie’s affidavit of inability to pay costs and denied her motion for a free record, stating as follows:

I am going to deny the affidavit of indi-gency. I have ruled on many affidavits of indigency on appellate records. If I granted this one I would be granting it on every case I have ever had before me. I just can’t do it under the circumstances.

Frankly, we are at a loss to understand the trial judge’s comments in light of the record at the hearing on the contests. But before considering the trial court’s ruling on the contests, we must first resolve Xavier’s motion to dismiss. See Bloom v. Bloom, 935 S.W.2d 942, 945 (Tex.App.-San Antonio 1996, no writ) (recognizing that if aceeptance-of-benefit doctrine applies, appeal is rendered moot and must be dismissed).

Motion to Dismiss

In his motion to dismiss, Xavier argues Stephanie’s appeal Is moot and must be dismissed under the acceptance-of-benefits doctrine. We disagree.

Under the acceptance-of-benefits doctrine, “[a] litigant cannot treat a judgment as both right and wrong....” Carle v. Carle, 234 S.W.2d 1002, 1004, 149 Tex. 469 (1950). Accordingly, if a party “voluntarily accept[s] the benefits of a judgment,” she is barred by the acceptance-of-benefits doctrine from appealing it. Id. (emphasis added). Because the doctrine applies only to a voluntary acceptance of benefits, it does not apply to a party who is compelled to accept the benefits of a judgment by “economic circumstances.” Smith v. Texas Commerce Bank-Corpus Christi, N.A., 822 S.W.2d 812, 814 (Tex.App.-Corpus Christi 1992, writ denied). Therefore, the acceptance-of-benefits doctrine does not apply to a party who accepts benefits awarded in a divorce decree to provide for necessities. See Smith v. Smith, 143 S.W.3d 206, 212 (Tex.App.-Waco 2004, no pet. h.); McAlister v. McAlister, 75 S.W.3d 481, 484 (Tex.App.-San Antonio 2002, pet. denied); Cooper v. Bushong, 10 S.W.3d 20, 23-24 (Tex.App.-Austin 1999, pet. denied); Haggard v. Haggard, 550 S.W.2d 374, 376-77 (Tex.Civ.App.-Dallas 1977, no writ).

Stephanie’s uncontroverted testimony establishes that her expenses far* exceed her income; she has no other assets she can use to pay for necessities; and she therefore used the three payments for her equity in the marital homestead to pay for her basic living expenses. Under these circumstances, we hold Stephanie’s acceptance of benefits from the judgment was not voluntary. See id. We therefore hold the acceptance-of-benefits doctrine does not apply and deny Xavier’s motion to dismiss.

Inability to Pay Costs

Stephanie argues the trial court abused its discretion in sustaining the contests to her affidavit of inability to pay costs. We agree.

The party filing an affidavit of inability to pay costs bears the burden of proving the allegations in the affidavit. Tex.R.App. P. 20.1(g). She must prove by a preponderance of the evidence that she would be unable to pay costs “‘if [s]he really wanted to and made a good faith effort to do so.’ ” Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996) (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980)). On appeal, we review the trial court’s ruling under the abuse of discretion standard. White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, pet. denied). ‘With respect to resolution of factual issues,” the trial court abuses its discretion if the record establishes it “could reasonably have reached only one decision,” and it fails to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).

As set forth more fully above, Stephanie’s uncontroverted testimony establishes that she receives monthly take-home pay of $767, while her monthly expenses exceed $2,100; and she has no assets she can convert to pay the costs of appeal. Nonetheless, Xavier argues the trial court properly sustained the contests because Stephanie is underemployed and failed to prove she has made a good faith effort to supplement her income; and she failed to prove she has tried to secure advances on her credit cards or borrow lower amounts from commercial lenders. Neither argument has merit.

As discussed more fully above, Stephanie acknowledged that she is currently underemployed and detailed her as yet unsuccessful efforts to obtain a higher-paying job. Xavier also criticizes Stephanie’s failure to obtain employment during the summer of 2003 or get additional part-time employment. However, Stephanie testified that, although she is generally available to work another job in the three summer months and intends to do so, she was not able to do so during the summer of 2003, because she went on an insulin pump, requiring two or three doctor visits a week for a month to receive training, check her insulin levels, and get counseling. She also testified that her applications for several part-time jobs have been rejected. The difficulty, she testified, is finding a part-time job that will accommodate her regular work schedule, her regular doctor appointments, and her scheduled visitation with her children.

Xavier’s second argument in support of the trial court’s ruling is equally without merit. Stephanie’s uncontradicted testimony regarding her fixed expenses establishes that whatever credit might be advanced on her credit cards will be needed to pay her living expenses so long as her appeal remains pending and the funds representing her equity interest in the marital homestead remain on deposit in the court’s registry. Stephanie’s uncontradicted testimony also establishes that she has tried unsuccessfully to borrow money from commercial lenders; however, she has “no collateral and no income stream to secure a loan from any reasonable commercial lender. Requiring her to obtain formal loan rejections would exalt form over substance, as such rejections would ‘merely buttress th[e] conclusion that she is financially unable to meet any of the court costs or give security therefor.’ ” Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996) (quoting Goffney v. Lowry, 554 S.W.2d 157, 160 (Tex.1977)).

Finally, Xavier argues that, because “Stephanie’s family is quite wealthy,” she could borrow the costs of appeal from her father or make arrangements for a payment schedule with the court reporters. However, as established by Stephanie’s uncontradicted testimony, she has signed a note to repay her family the $33,800 that • her family has already loaned her; her family expects her to repay the loan; and she is unable to make the payments already due and owing, much less any additional payments on even more debt. “The rules allowing one to proceed without being required to pay costs or give security therefor ... do not require the litigant to borrow money which cannot be repaid except by depriving the litigant of the necessities of life.” Goffney, 554 S.W.2d at 159. Nor do they require a litigant to prove she has exhausted all potential sources of charity. Id. at 160.

Stephanie’s uncontradicted affidavit and testimony establish that her monthly living expenses far exceed her income; and she does not have the ability to borrow the funds to pay the estimated $11,500 to $13,000 required for an appellate record. Even if she could borrow the money, she would then not have the ability to make the payments that would become due. On this record, we hold the trial court could reasonably have reached only one decision — Stephanie is unable to pay the costs of appeal. We therefore hold the trial court abused its discretion in sustaining the contests.

Motion for Free Record

Finally, Stephanie argues the trial court abused its discretion in denying her motion for a free record. In response, Xavier argues that Stephanie has failed to “preserve her complaint that she is entitled to a free record” by failing to obtain findings on whether her appeal is frivolous and whether a record is needed to decide it. We disagree. The record establishes Stephanie timely filed a motion for a free record, which the trial court denied. No more is required. See Tex.R.App. P. 33.1(a) (preservation requires only that record establish that complaint was timely made to the trial court and ruling). It is true, however, that because the trial court sustained the contests to Stephanie’s affidavit of inability to pay costs, it did not reach these issues. See Baughman v. Baughman, 65 S.W.3d 309, 315 (Tex.App.Waco 2001, pet. denied). Our decision today requires that these issues be decided. Stephanie asks this court to decide these issues and reverse the trial court’s order denying her a free record. But whether a ground for appeal is frivolous necessarily involves questions of both fact and law; consequently, this issue must be decided by the trial court in the first instance. See De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.). Accordingly, we abate the appeal and remand the case to the trial court to make the findings required by section 13.003(a)(2). See Tex. Civ. Prac. & Rem.Code ANN. § 13.003 (Vernon 2002).

Conclusion

Although Stephanie accepted benefits from the same judgment she seeks to appeal, she did so not voluntarily but out of economic necessity. We therefore hold the acceptance-of-benefits doctrine does not bar her appeal and deny Xavier’s motion to dismiss. And, because the record on Stephanie’s financial situation reasonably yields only one conclusion — she does not have the income or assets to pay or borrow the costs of appeal — we hold the trial court abused its discretion in sustaining the contests. We therefore abate the appeal and remand the case to the trial court to make the findings required by section 13.003(a)(2) regarding whether Stephanie’s appellate issues are frivolous and whether a record is needed to decide them.

SANDEE BRYAN MARION, J., dissents.

SANDEE BRYAN MARION, Justice,

dissenting.

The majority holds that the trial court abused its discretion because the “undisputed evidence” establishes that Stephanie cannot pay the costs of appeal. Because I disagree with that conclusion, I respectfully dissent.

The burden of proof at a hearing on a contest to the affidavit of indigency rests on the appellant to sustain the allegations in the affidavit. Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex.1996) (orig.proceeding); Tex. R.App. P. 20.1(g). The test for indigence is whether a preponderance of the evidence shows that the party would be unable to pay costs “if [s]he really wanted to and made a good faith effort to do so.” Griffin Indus., Inc., 934 S.W.2d at 351 (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980)). When the trial court sustains a contest, the court of appeals must decide whether the trial court abused its discretion. White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, pet. denied). To show a clear abuse of discretion, the appellant must show that, under the circumstances of the case, the facts and law permit the trial court to make but one decision. Cronen v. Smith, 812 S.W.2d 69, 71 (Tex.App.-Houston [1st Dist.] 1991, orig. proceeding).

Stephanie is a bright, capable woman, who graduated from college cum laude. After she graduated from college, Stephanie worked as a certified music teacher and then advanced to choir director of her school. In addition to her teaching and choir director position, she taught voice lessons after school.

Stephanie is qualified to hold the position of a full-time certified teacher in Texas secondary schools; however, she testified she was unable to find such a position in the Boerne Independent School District. Instead, since October 2002, she has been employed as a teacher’s assistant in the Boerne school district. Stephanie said she sought a full-time position with two other school districts in the Fall of 2002. She admitted she had made no further attempts to find a full-time position in another school district since the Fall of 2002.

As an employee of the Boerne school district, Stephanie works from 8:00 a.m. to 3:30 p.m. during the school year, and she is paid over a twelve month period although she has time off during the Christmas holiday break and from early June through mid-August for the Summer break. Stephanie testified that because the children’s primary residence is with their father, she has more free time now than when she was married. She said that although she is ready, willing, and able to work at an additional job, she has been unable to find such work. However, she has applied for additional work only twice, in the Summer of 2003 for the Summer program at a Montessori School and in early Fall 2003 at a Chili’s restaurant.

The record also establishes that Stephanie has assets, albeit few, and she has available credit. Stephanie was awarded $73,871 as her equity in the family homestead, although Xavier currently is depositing the monthly payments into the court’s registry. Although she listed a debt of $33,000 to her father, of which $30,000 was paid to her attorneys, Stephanie agreed that she did not expect her father to pursue any legal action against her to collect the debt.

These facts do not permit only one decision. The trial court did not file findings of fact; therefore, we may infer omitted findings in support of the judgment. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251-53 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Viewing the evidence in the light most favorable to the court’s ruling and drawing all reasonable inferences in favor of the court’s order on the contests, I believe the trial court impliedly found that Stephanie had not made a good faith effort to pay her costs. Because such an implied finding is supported by the record, I would hold the trial court did not abuse its discretion in sustaining the contests to Stephanie’s affidavit of inability to pay costs.

      . Under section 13.003(a), an appellant must be provided with a free record if an affidavit of inability to pay costs has been filed, the trial judge finds the appeal is not frivolous, and the record is needed to decide the appeal. Tex. Civ. Prac. & Rem.Code Ann. § 13.003(a) (Vernon 2002).

      . Although Stephanie testified that taxes are withheld from her paycheck, her affidavit failed to include the taxes as expenses. Nevertheless, we are able to estimate that Stephanie’s 2003 monthly taxes would be at least $167. See Tex Fam.Code Ann. § 154.061(b) (Vernon Supp.2003).

      . In a separate opinion, we hold the trial court did not abuse its discretion in ordering Xavier to deposit the payments into the registry of the court. In re Garza, 153 S.W.3d 97 (Tex.App.-San Antonio, orig. proceeding).

      . Our analysis does not include the payments Xavier has been ordered to deposit into the registry of the court because, so long as these funds remain in the registry of the court, they are not available to Stephanie for any purpose, including paying the costs of appeal.

      . Although Xavier testified that Stephanie's father is the chief operating officer of an international feed company and owns a great deal of land in Iowa, Xavier admitted that, during his marriage to Stephanie, her father had provided them with no financial assistance. Xavier also admitted that he had no personal knowledge of Stephanie's father’s financial situation in the two years since he and Stephanie had separated.