author: DIANE DeVASTO, Justice.

text:
    BCY WATER SUPPLY CORPORATION, Appellant, v. RESIDENTIAL INVESTMENTS, INC., Appellee.
    No. 12-03-00249-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 10, 2005.
    Opinion Denying Rehearing April 29, 2005.

      Daniel F. Dean, Palestine, M. Keith Dol-lahite, Tyler, for appellant.
    Reed Jackson, Fairfield, Brian Dean Walsh, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

BCY Water Supply Corporation appeals the trial court’s judgment entered against it in favor of Residential Investments, Inc. BCY raises four issues on appeal. We reverse and render.

Background

BCY is a nonprofit corporation that provides water service to certain parts of Anderson County, Texas. Residential Investments was considering purchasing an 8.02-acre tract of land in Anderson County, which it intended to subdivide into four parcels and improve with frame houses. The subject property was located in BCY’s water supply coverage area. John Brown, on behalf of Residential Investments, went to BCY’s office to inquire about water service for the subject property. When Brown arrived, only two persons were present at BCY’s office — Barry Thornton, who performed maintenance work for BCY, and Lana Hart, BCY’s office secretary and bookkeeper. Brown inquired of Thornton concerning whether it would be possible to get water service at the subject property. According to Brown, Thornton responded that there would be no problem getting water service for the property. Brown testified that, based on Thornton’s statement, Residential Investments purchased the subject property and began making improvements thereto. Subsequently, a BCY board member notified Brown that he could not get water service until he upgraded to a four-inch water line at his own expense. Residential Investments ultimately sold the subject property.

Residential Investments filed the instant suit in April 2000 alleging that BCY improperly refused to provide water services to it. Subsequently, Residential Investments amended its pleadings, deleting its denial of service allegations and adding common law claims of negligent misrepresentation and promissory estoppel. The matter proceeded to trial. A jury found BCY hable for negligent misrepresentation, awarding Residential Investments compensatory damages in the amount of $18,000.00 and exemplary damages in the amount of $1.00. This appeal followed.

Jurisdiction

In its first issue, BCY argues that the trial court lacked subject matter jurisdiction to consider the lawsuit filed by Residential Investments because the suit arose from BCY’s denial of water service. Our trial courts are courts of general jurisdiction. Subaru, of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). The Texas Constitution provides that a trial court’s jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by the Texas Constitution or other law on some other court, tribunal, or administrative body. See Tex. Const, art. V, § 8; Subaru, 84 S.W.3d at 220. By statute, trial courts have the jurisdiction provided by Article V, Section 8 of the Texas Constitution, may hear and determine any cause that is cognizable by courts of law or equity, and may grant any relief that could be granted by either courts of law or equity. See Tex. Gov’t Code Ann. §§ 24.007-.008 (Vernon 2004). Courts of general jurisdiction presumably have subject matter jurisdiction unless a contrary showing is made. Subaru, 84 S.W.3d at 220.

On the other hand, there is no presumption that administrative agencies are authorized to resolve disputes. Id. Rather, an agency may exercise only those powers the law, in clear and express statutory language, confers upon it. Id. (citing Key W. Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 848 (1961)). Courts will not divine by implication additional authority to agencies, nor may agencies create for themselves any excess powers. See id.

Under the exclusive jurisdiction doctrine, the legislature grants an administrative agency the sole authority to make an initial determination in a dispute. See Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000). Am agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. See Subaru, 84 S.W.3d at 221. Whether an agency has exclusive jurisdiction depends on statutory interpretation. Id. Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. See Bennett, 35 S.W.3d at 15. Until then, the trial court lacks subject matter jurisdiction and must dismiss without prejudice the claims within the agency’s exclusive jurisdiction. Subaru, 84 S.W.3d at 221.

Under the Texas Government Code, the Texas Commission on Environmental Quality (the “TCEQ”) “shall have exclusive original jurisdiction over water and sewer utility rates, operations and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services .... ” Tex. WateR Code Ann. § 13.042(e) (Vernon 2000). Thus, based on the express language of Section 14.042(e), the TCEQ’s jurisdiction under certain circumstances is exclusive. Id. The question before us in the case at hand is whether such circumstances that would give rise to the TCEQ’s exclusive jurisdiction are present.

Determining if an agency has exclusive jurisdiction requires statutory construction and raises jurisdictional issues. Subaru, 84 S.W.3d at 222. Thus, whether an agency has exclusive jurisdiction is a question of law we review de novo. Id.; see El Paso Nat’l Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999). Our objective when construing a statute is to determine and give effect to the legislature’s intent. See Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). To ascertain that intent, we look first to the statute’s plain language and give words their ordinary meaning. Id. We must view the statute’s terms in context and give them full effect. Id. Further, we presume that the legislature acted with knowledge of the common law and court decisions. Id.

BCY acknowledges that Residential Investments’s amended pleadings seek redress based on common law causes of action. It argues, however, that since such claims arise from its allegations that it was improperly denied water service by BCY, the suit falls under the TCEQ’s exclusive jurisdiction pursuant to Section 14.042(e). In support of its argument, BCY relies heavily on Jordan v. Staff Water Supply Corp., 919 S.W.2d 833 (Tex.App.-Eastland 1996, no writ). In Jordan, the court held that the trial court correctly determined that the commission had jurisdiction over Jordan’s claim regarding failure to provide water service. However, the court further held that the trial court properly had jurisdiction over claims related to misconduct by the directors of Staff Water Supply Corporation. Id. at 835-36. In Lake Country Estates, Inc. v. Toman, 624 S.W.2d 677 (Tex.App.-Fort Worth 1981, writ ref'd n.r.e.), which BCY also cites in its brief, the court reached a similar conclusion. Id. at 682 (holding that despite regulatory agency’s jurisdiction over matters relating directly to directors’ responsibilities to make decisions regarding the expansion of the water district’s utility system, the plaintiffs common law causes of action for slander and tortious interference with contract were within the trial court’s jurisdiction).

We iterate that there is no presumption that administrative agencies are authorized to resolve disputes and that such agencies may exercise only those powers the law, in clear and express statutory language, confers upon them. Subaru, 84 S.W.3d at 220. BCY’s interpretation of Section 13.042(e) to include matters arising from water and sewer utility rates, operations, and services is neither supported by the express language of the statute nor the case law upon which BCY relies. The words “arising from” do not appear in Section 13.042(e), and we may not include them by implication. Subaru, 84 S.W.3d at 220. Rather, we must presume that, because the legislature chose not to include the words “arising from” in Section 13.042(e), it intended to limit the TCEQ’s jurisdiction specifically to matters directly related to water and sewer utility rates, operations, and services, such as was initially pleaded by Residential Investments in the instant case, but later abandoned. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981) (every word excluded from a statute must be presumed to have been excluded for a purpose).

A plaintiffs petition defines the issues in the lawsuit. See Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982). An amended document causes the instrument for which it is substituted to no longer be regarded as a part of the pleading in the record. See Tex.R. Crv. P. 65. Here, the second amended petition filed by Residential Investments raises common law claims for negligent misrepresentation and promissory estoppel. By omitting it from its second amended petition, Residential Investments abandoned its denial of service cause of action. Considering the express language of the statute, we conclude that such common law causes of action do not fall within the TCEQ’s exclusive jurisdiction. Therefore, we hold that the trial court did not err in declining to dismiss the action. BCY’s first issue is overruled.

Evidentiary Sufficiency

In its second issue, BCY argues that the evidence is both legally and factually insufficient to support the jury’s find-mg as to negligent misrepresentation. In reviewing a legal insufficiency or no evidence issue, we must consider only the evidence and inferences that tend to support the jury’s verdict, disregarding all contrary evidence and inferences. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). We may only sustain a legal insufficiency issue when the record discloses one of the following: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). It is not within our power to second guess the fact-finder unless only one inference can be drawn from the evidence. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).

To support a finding of negligent misrepresentation, the record must contain evidence supporting that (1) the defendant, in the course of his business, profession, or employment, or in another transaction in which he had a pecuniary interest, supplied to the plaintiff false information for guidance in a business transaction, (2) the defendant failed to exercise reasonable care or competence in obtaining or communicating the information, (3) the plaintiff justifiably relied on the information, and (4) the defendant’s negligent misrepresentation proximately caused the plaintiff to suffer pecuniary loss. See McCamish, Martin, Brown, and Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999); see also Restatement (2d) of ToRts § 552 (1977).

In the case at hand, the record contains various witnesses’ recollections of the conversation that occurred between Brown and Thornton. According to Brown’s testimony, he told Thornton that he was buying an eight-acre tract of land near his house and wanted to determine if he could get water service before he bought the property because he wanted to subdivide it and would require between one and four water meters. Brown testified that Thornton said there would not be a problem getting a meter because BCY had just upgraded the lines running along Highway 645. Brown further stated that Thornton, after checking with Hart, represented that the water line had been upgraded as far as in front of County Road 2809. Moreover, Brown testified that Thornton stated Brown should simply call him when he was ready and Thornton would install the meter at a cost of one thousand eighty-five dollars. Brown further stated that in reliance on Thornton’s statement, he purchased the subject property.

To the contrary, Thornton testified that Brown merely asked if he could get a single meter installed at the subject property. According to Thornton’s testimony, he responded that he could not foresee there being a problem installing a meter on the property although BCY was operating near full capacity, but that, ultimately, Brown would have to get approval from the board of directors before he could get a meter installed. Thornton further testified that Brown never told him that he intended to subdivide the property. Moreover, Thornton stated that he never guaranteed to Brown that he could have the meter installed. Thornton denied quoting Brown a cost for the installation of a meter.

Hart testified that she was present during the conversation at issue between Brown and Thornton. Hart stated that Brown asked Thornton about having a water meter installed on his property and that Thornton told Brown that the line was at capacity at that time. She stated that Thornton also told Brown that he would need to go to the board of directors to determine what he would need to do to upgrade the water line so that he could get his meter. Hart further testified that Brown did not say anything about his intent to subdivide the subject property.

BCY cites Airborne Freight Corp., Inc. v. C.R. Lee Enterprises, 847 S.W.2d 289 (Tex.App.-El Paso 1992, writ denied) and argues that there was no evidence that Thornton made a negligent misrepresentation regarding a fact that existed at the time of the alleged statement, but rather, that Thornton’s statement concerned future performance. Residential Investments contends that BCY’s reliance on Airborne Freight is misplaced because the court’s analysis concerning existing facts dealt with actual fraud, which requires a showing of intent, not negligent misrepresentation, which merely involves careless actions.

In a cause of action for negligent misrepresentation, the misrepresentation at issue must be one of existing fact. See Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). A promise to do or refrain from doing an act in the future is not actionable because it does not concern an existing fact. See Miksch v. Exxon Corp., 979 S.W.2d 700, 706 (Tex.App.Houston [14th Dist.] 1998, pet. denied). In Airborne Freight, the plaintiff alleged causes of action for breach of contract, fraud, and negligent misrepresentation. Id. at 291. The plaintiffs claims of fraud and negligent misrepresentation were both submitted to the jury. Id. at 293. There, the court specifically stated, “the sort of ‘false information’ contemplated in a negligent misrepresentation case is a misstatement of existing fact.” Id. at 294. The court ultimately concluded with regard to the plaintiffs negligent misrepresentation theory that the plaintiffs statement could not be characterized as a misrepresentation of existing fact and that it was, if anything, a conditional promise. Id. at 298. Thus, contrary to Residential Investments’s contention, the court’s discussion in Airborne Freight was not limited to a claim of fraud. Furthermore, whether the misrepresenting party did so intentionally or negligently has no bearing on the issue of what was misrepresented.

In the instant case, Thornton’s statement, even when considered in a light that tends to support the jury’s verdict, is not one of existing fact. It is undisputed that Residential Investments had not purchased the subject property at the time Thornton made the statement to Brown. Indeed, the record reflects that BCY could not get water service for property that it did not own. Thus, if anything, Thornton’s statement amounted to no more than a conditional promise of future performance contingent on BCY’s ownership of the property. See, e.g., Airborne Freight, 847 S.W.2d at 298; see also Manon v. Solis, 142 S.W.3d 380, 388 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (“the sort of false information contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct.”). We conclude that there was no evidence supporting that the false information allegedly represented by BCY to Residential Investments comprised facts then in existence. Id. Therefore, we hold that the evidence was legally insufficient to support the jury’s verdict. BCY’s second issue is sustained.

Disposition

Having sustained BCY’s second issue, we reverse the trial court’s judgment and render judgment that Residential Investments take nothing on its claims against BCY.

OPINION DENYING MOTION FOR REHEARING

By opinion dated February 10, 2005, we reversed the trial court’s judgment in favor of Residential Investments, Inc. concluding that there was legally insufficient evidence to support the jury’s finding of negligent misrepresentation. Accordingly, we rendered judgment in favor of BCY Water Supply Corporation. See Tex. R.App. P. 43.3. Residential Investments filed a motion for rehearing, to which BCY responded. Residential Investments’s motion for rehearing is overruled. However, we address Residential Investments’s third issue on rehearing.

In its third issue on rehearing, Residential Investments argues that we erroneously rendered judgment in favor of BCY on “no evidence” grounds for which no proper predicate was laid. Specifically, Residential Investments argues that we cannot render on a no-evidence issue when the issue was first presented to the trial court in a motion for new trial. See, e.g., Horrocks v. Texas Dep’t of Transp., 852 S.W.2d 498, 499 (Tex.1993); Ana, Inc. v. Lowry, 31 S.W.3d 765, 772 (Tex.App.Houston [14th Dist.] 2000, no pet.).

In Horrocks, the supreme court held that, ordinarily, an appellate court should render judgment after sustaining a complaint as to the legal sufficiency of the evidence, but where the appealing party fails to properly lay a predicate for rendition, the case must be remanded. Horrocks, 852 S.W.2d at 499. When the appellant in a jury trial raises a “no evidence” challenge for the first time in a motion for new trial, without objecting to jury submissions or without moving for directed verdict, for judgment notwithstanding the verdict, or to disregard jury findings, the only predicate laid by the appellant is for the granting of a new trial. Lowry, 31 S.W.3d at 772.

BCY responds that although it did not challenge the legal sufficiency of the jury’s finding on the issue of negligent misrepresentation until filing the document entitled “Defendant’s Motion for a New Trial,” the document, in substance, properly laid the predicate for rendition. We agree. ,

Misnomer of a pleading does not render it ineffective, and the court will treat the pleading as if it had been properly named. See Tex.R. Civ. P. 71. We look to the substance of the plea to determine its nature, not merely at the form of title given to it. See State Bar v. Heard, 603 S.W.2d 829, 833 (Tex.1980). Moreover, Texas Rule of Civil Procedure 301 does not provide a deadline for filing a motion for judgment notwithstanding the verdict (“JNOV”) or motion to disregard a jury finding. See Tex.R. Civ. P. 301. However, case law has traditionally provided that a motion for JNOV could be filed after judgment is rendered as long as the trial court retained jurisdiction over the case. See, e.g., Needville ISD v. S.P.J.S.T. Rest Home, 566 S.W.2d 40, 42 (Tex.App.-Beaumont 1978, no writ); but see Commonwealth Lloyd’s Ins. Co. v. Thomas, 825 S.W.2d 185, 141 (Tex.App.-Dallas 1992), vacated w.r.m. pursuant to settlement, 848 S.W.2d 486 (Tex.1993) (motion for JNOV must be filed within same time limits as motion for new trial).

Here, in its pleading entitled “motion for new trial,” BCY contended that there was no evidence to support the jury’s finding as to negligent misrepresentation. BCY further stated,

MOVANT requests an evidentiary hearing on the allegations raised herein. Additionally, MOVANT urges the Court to disregard the answers as explained in this motion and to modify the judgment as requested herein. Aternatively, MOVANT requests that the Court order a new trial.

We hold that BCY’s “motion for new trial,” in substance, amounted to a motion for JNOV or to disregard jury findings and, alternatively, a motion for new trial. Therefore, BCY properly laid the predicate for the rendition of judgment. See Lowry, 31 S.W.3d at 772.

      . The record reflects that Thornton’s job duties included maintaining the wells and plants, performing repairs to the water lines and repairing leaks, and installing new meters.

      . The testimony concerning the specifics of Brown’s request and Thornton’s answer is conflicting and will be discussed in greater detail in our analysis.

      .At the time the lawsuit was filed, Residential Investments had not applied to BCY for water service. Residential Investments did later file an application requesting four water meters. BCY granted the application, provided that Residential Investments upgraded the water lines at its own expense.

      . Jordan alleged that the actions of the directors of Staff were illegal, oppressive, and fraudulent and that the assets of Staff were being misapplied, wasted, or mismanaged. Id. at 834. Jordan elaborated that the directors and control persons had failed to discharge their obligation to provide water and water meters to every person living within the areas served by the corporation as required by Section 13.250 of the Texas Water Code. Id.

        . According to Brown, there is approximately one mile of County Road 2809 and one mile of County Road 2810 between Highway 645 and the subject property.

      . By this statement, we do not address whether the evidence establishes an agency relationship between BCY and Thornton.

      . See BCY Water Supply Corp. v. Residential Investments, Inc., No. 12-03-00249-CV, 2005 WL 332014 (Tex.App.-Tyler Feb.10, 2005, no pet. h.).

      . Under either rule set forth above concerning the deadline for filing a motion for JNOV, the record reflects BCY's motion was timely filed.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Joe G. SEPULVEDA and Adrian Ramirez, Individually, and as Next Friend of Adrian Ramirez, Jr., and Rehanne Ramirez, Minor Children, Appellants, v. The COUNTY OF EL PASO, Texas, and Sheriff Leo Samaniego, Individually and in his Official Capacity, Appellees.
    No. 08-03-00514-CV.
    Court of Appeals of Texas, El Paso.
    April 12, 2005.
    Rehearing Overruled June 8, 2005.

      James B. Kennedy Jr., Gage & Kennedy, L.L.P., El Paso, for Appellants.
    Maria A. Salas-Mendoza, Asst. County Atty., El Paso, for Appellees.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Joe G. Sepulveda and Adrian Ramirez, Individually and as Next Friend of Adrian Ramirez, Jr. and Rehanne Ramirez, Minor Children, appeal from the trial court’s order granting a plea to the jurisdiction asserted by the County of El Paso and Sheriff Leo Samaniego. We affirm in part and reverse and remand in part.

FACTUAL SUMMARY

In September or October 2000, employees of Jobe Concrete reported to the El Paso County Sheriffs Department that vehicles were using Cherrington Road to drag race. Cherrington Road is a paved roadway leading to the entrance of Jobe’s plant on the far east side of El Paso. The portion of Cherrington which extends beyond Jobe’s plant is an unpaved road used by Jobe’s vehicles. Jobe complained that the drag racing was hindering its business operations because the vehicles would line up “two by two” and would not let anyone pass.

Cherrington Road was dedicated for public use by the developer in 1978 but it has never been placed in the county road system. Consequently, the County has not assumed the responsibility for maintaining the road. Jobe paved a portion of Cherrington Road in order to facilitate entrance into the plant. Jobe also placed “no drag racing” signs along the roadway. Unpaved portions of Cherrington Road are still used by Jobe’s company trucks.

On December 18, 2000, Deputy Jorge Andujo spoke with Jobe’s production assistant manager, Victor Garcia, about the drag-racing problem. Andujo knew from prior experience that the drag racers escaped the deputies’ attempts to stop them by driving on the dirt roads at high rates of speed, posing a danger to themselves and the deputies. In order to contain the drag racers and prevent them from escaping from the deputies on the unpaved portion of the road, Andujo asked Garcia if Jobe would construct a berm fifty feet from the end of the paved portion of the roadway. Garcia told Andujo that he would first have to check with Jobe’s vice president, Irene Eperson. Upon receiving approval from Eperson, Garcia told Andu-jo that they would build the berm that afternoon and then remove it the following morning. Andujo maintains that he did not specify the details of how the berm would be built by Jobe, but Garcia recalled that Andujo told him to build the berm across the entire road so that no one could go through onto the unpaved road. No one from the Sheriffs Department was present when Jobe constructed the berm. Garcia instructed a Jobe employee to build a small sand berm using one of Jobe’s front end loaders. He told the employee to build it no higher than two feet but there is evidence that the berm was three to five feet in height, or perhaps even taller.

At approximately 8 p.m. on December 13, 2000, Deputy Andujo and three other deputies arrived on Cherrington Road and saw numerous vehicles. Although the deputies had activated their emergency lights and sirens, several vehicles fled at a high rate of speed on Cherrington. Andujo and the other deputies did not give chase because the road was blocked by the berm. Andujo watched several vehicles apply their brakes at the end of the road and turn around. But three vehicles did not turn around. Two of them turned into Jobe’s employee parking lot in an effort to hide from the deputies. The third vehicle, a small, dark-colored four-wheel-drive truck, escaped. Andujo and the other deputies did not see any vehicles collide with the berm.

The following afternoon, Adrian Ramirez filed an accident report with the Sheriffs Department. While driving his black Toyota four-wheel-drive truck on Cherrington the previous evening sometime between 8 and 9:30 p.m., he collided with the dirt and rock berm which he estimated to be four to six feet tall. The collision caused extensive damage to the front end of the vehicle. Ramirez claimed to have been driving 30 miles per horn’ at the time of the collision. Present in the truck with Ramirez were his two minor children and a neighbor, Joe Sepulveda.

Ramirez and the other plaintiffs filed suit against Jobe, the County, and Sheriff Samaniego, seeking to recover damages for injuries received in the accident. Their pleadings allege that the County defendants directed Jobe to construct the barricade across the roadway and were negligent in failing to warn persons traveling on the road about the obstruction and in failing to inspect and correct a dangerous condition. Additionally, they allege that the County engaged in negligent supervision. The County filed a plea to the jurisdiction, alleging that sovereign immunity had not been waived. The trial court granted the plea to the jurisdiction.

PLEA TO THE JURISDICTION

In Issue One, Appellants assert that the trial court erred in granting the plea to the jurisdiction because their petition states a claim for which sovereign immunity is waived under the Texas Tort Claims Act.

Standard of Review

When a lawsuit is barred by sovereign immunity, the trial court lacks subject matter jurisdiction, and dismissal with prejudice is proper. City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex.App.-Austin 1998, no pet.). A plea to the jurisdiction is a dilatory plea by which a party contests the trial court’s authority to determine the subject matter of the cause of action. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.-Fort Worth 1999, pet.dism’d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993); City of Saginaw, 996 S.W.2d at 2. Subject matter jurisdiction is a legal question which we review de novo. City of Saginaw, 996 S.W.2d at 2; Texas Dept. of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App.-Austin 1999, pet. dism’d by agr.). We consider the allegations in the petition and accept them as true. See City of Saginaw, 996 S.W.2d at 2-3. The plaintiffs jurisdictional pleadings are to be construed liberally in the plaintiffs favor and we look to the pleader’s intent. See Texas Association of Business, 852 S.W.2d at 446. A court deciding a plea to the jurisdiction, however, is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.2000); see County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). The court should confíne itself to the evidence relevant to the jurisdictional issue. Blue, 34 S.W.3d at 555.

Causes of Action Against Sheriff Samaniego

Before addressing the merits of the issues raised on appeal, we note that Appellants have not specifically addressed the dismissal of their causes of action against Sheriff Samaniego. Sheriff Samaniego is entitled to derivative immunity pursuant to Section 101.106 of the Texas Civil Practice and Remedies Code. See Harris County v. Sykes, 136 S.W.3d 635, 640 (Tex.2004). The purpose of Section 101.106 is to protect employees of a governmental unit from liability when a judgment against or a settlement from the government employer has been obtained pursuant to a claim under Chapter 101 of the Texas Tort Claims Act. Id. In Sykes, the Supreme Court held that a dismissal on a plea to the jurisdiction is a judgment for purposes of Section 101.106. Id. With respect to those claims against the County which were properly dismissed by the trial court, Sheriff Samaniego is entitled to derivative immunity under Section 101.106 of the Texas Tort Claims Act.

Operation or Use of Motor-Driven Equipment

In its plea to the jurisdiction, the County contended that Appellants’ injuries were not caused by a governmental employee’s operation or use of a motor-driven vehicle or equipment, but rather were caused by Adrian Ramirez’s operation of his own motor vehicle. Asserting that the County and Sheriffs Department, through Deputy Andujo, directed Jobe to build a dirt barricade across Cherrington Road, Appellants first argue that their claim falls within Section 101.021(1). Appellants acknowledge that Deputy Andujo did not personally operate or use motor-driven equipment, but they argue that he negligently exercised control over the Jobe employee who used the front-end loader to build the berm.

A county is a governmental unit protected by the doctrine of sovereign immunity. Catalina Development, Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003). Generally, a governmental unit possesses both immunity from liability and immunity from suit. Id. The governmental unit waives immunity from suit only through its express consent. Id. Section 101.021(1) of the Texas Tort Claims Act provides that a governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally hable to the claimant according to Texas law.

Tex.Civ.PRAC. & Rem.Code Ann. § 101.021 (Vernon 1997).

The waiver of immunity provided by Section 101.021 is a limited one. Under Section 101.021(1), a governmental unit is not liable for a personal injury caused by a negligent employee unless the injury “arises from the operation or use of a motor-driven vehicle or motor-driven equipment.” Id. The phrase “arises from” requires a nexus between the injury negligently caused by a governmental employee and operation or use of a motor-driven vehicle or equipment. LeLeaux v. Hamshire-Fannett Independent School Dis trict, 885 S.W.2d 49, 51 (Tex.1992). In LeLeaux, a high school band student jumped out of the rear emergency door of a parked school bus to retrieve a pillow that had fallen. The student bumped her head when she re-entered through the same door. The bus driver was not present when these events took place. After the bus driver entered the bus and discovered that the back door was open, he asked the student to close it and she fell to the ground. The student sued the school district, alleging that the school district was negligent in its operation and use of school buses because of its practice of regularly loading and unloading band students and their instruments through the emergency doors. She made the same allegation against the bus driver. The trial court granted summary judgment for the school district on the ground of sovereign immunity. The Supreme Court held that while the statute does not specify whose operation or use is necessary — the employee’s, the person who suffers injury, or some third party — the more plausible reading is that the required operation or use is that of the employee. Id. This requirement is consistent with the limited waiver of sovereign immunity provided by the Tort Claims Act. Id. Because the injury did not result from an employee’s operation or use of the bus, the court held that sovereign immunity was not waived. Id.

The Beaumont Court of Appeals followed LeLeaux in Tarkington Independent School District v. Aiken, 67 S.W.3d 319 (Tex.App.-Beaumont 2002, no pet.). There, a participant in a summer job training program sued the school district for injuries he received on school property while riding on the tailgate of a privately-owned truck driven by another program participant. The program participants had been instructed by a school district employee to move desks from one building to another, but they had not been told to use the truck for the task. The plaintiffs suit alleged negligent acts and/or omissions relating to improper supervision, direction, and control of non-employees and the improper training of school district employees. He also alleged that his injuries arose from the operation or use of a motor-driven vehicle. However, he did not allege that a school district employee operated or used the vehicle. The court held sovereign immunity was not waived because the allegations of negligence were not related to an employee’s negligent use or operation of a vehicle. Id. at 326.

Appellants cite four cases in support of their argument that sovereign immunity is waived under Section 101.021(1). In Sem v. State, 821 S.W.2d 411 (Tex.App.-Fort Worth 1991, no pet.), a decision which predates LeLeaux, the Texas State Department of Highways and Public Transportation entered in a contract with Tex-Sun Construction Company to pick up trash along state highways. The plaintiffs alleged that the State had inspectors on the job daily and exercised the right to control the details of the work performed by the contractor. A Tex-Sun employee was killed when struck by a car while attempting to post a warning sign along a freeway. His children sued the driver of the car, the contractor, and the State. Plaintiffs alleged that the defendants negligently used tangible personal property and operated or used a motor-driven vehicle or equipment which did not have adequate warning devices. With respect to the State, they specifically alleged that the State was negligent in its right of control over use and placement of the signs and other warning devices, including the warning device on the independent contractor’s vehicles. The trial court granted the State’s motion for summary judgment based on sovereign immunity. Relying on Section 414 of the Restatement (Second) of Torts, the Fort Worth Court of Appeals found that summary judgment was improperly granted because there was a fact issue whether the State retained and exercised sufficient control over the manner in which the independent contractor performed its work even though it did not retain the degree of control which would subject it to liability as a master. Id. at 415. Certain provisions in the contract indicated that the State retained the power to forbid work from being done in a dangerous manner. Id. Holding that the Tort Claims Act must be liberally construed, the court of appeals also rejected the State’s argument that sovereign immunity is not waived under Section 101.021 because it did not own or use the tangible personal property or vehicle in question. Id. at 415-16. The court held that the Tort Claims Act does not require that the State own or directly use the vehicle or property that causes death, and therefore, immunity is waived in circumstances where the State has assumed responsibility for proper use of tangible personal property and negligent exercise of this responsibility by its employee results in death. Id. at 416.

We turn next to County of Galveston v. Morgan, 882 S.W.2d 485 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Morgan, the employee of an independent contractor, was injured when he fell from the bed of a truck while delivering road resurfacing material to repair a county road. Galveston County supplied spotters signaled the truck drivers when to move forward and when to stop. One of the spotters moved the truck too close to a power line and Morgan climbed into the bed of the truck to determine how close it was to the power line. He received an electric shock which knocked him to the ground. The jury found Morgan and the county equally negligent. On appeal, the county challenged the legal and factual sufficiency of the evidence to support a finding that the accident arose from a county employee’s use or operation of a motor driven vehicle. The county argued that the vehicle was not a county truck and the driver was not a county employee. The court of appeals rejected these arguments and found a waiver of immunity because the county spotters “used” or “operated” the trucks by controlling their movements. Id. at 490. The court distinguished Le-Leaux on the ground that while the bus was not in use and merely provided the setting for the student’s injury, the track in the instant case was in use at the time of the accident. Id. at 490-91.

In City of El Campo v. Rubio, 980 S.W.2d 943 (Tex.App.-Corpus Christi 1998, pet. dism’d w.o.j.), the Corpus Christi Court of Appeals followed Morgan. In that case, a police officer allegedly ordered an unlicensed passenger to operate a motor vehicle following the driver’s arrest. The passenger, in accordance with the officer’s order, followed the patrol car onto the highway and was struck by another vehicle. The court of appeals found that immunity was waived because the officer “used” or “operated” the vehicle by exercising control over it. Id. at 945-46.

And finally, in City of El Paso v. W.E.B. Investments, 950 S.W.2d 166 (Tex.App.-El Paso 1997, pet. denied), the City of El Paso’s street operations supervisor mistakenly ordered a third party’s motor-driven equipment to demolish a condemned building before the time had expired for repairs to be made. This court found sovereign immunity was waived even though a governmental employee did not personally operate the motor-driven equipment. Id. at 170.

The County insists that the foregoing cases conflict with LeLeaux and should not be followed. We believe that the holding can be reconciled. The Supreme Court did not hold in LeLeaux that the vehicle had to be driven by a governmental employee; it held only that a governmental employee “use” or “operate” the vehicle. Rubio, 980 S.W.2d at 946. “Operation” refers to a “doing or performing of a practical work” and “use” means “to put or bring into action or service; to employ for or apply to a given purpose.” LeLeaux, 835 S.W.2d at 51. In LeLeaux, the bus was not in use or operation at the time of the accident and was nothing more than the place where the student happened to injure herself. Id. In Morgan, Rubio, and W.E.B. Investments, however, there were allegations and evidence that a governmental employee “used” or “operated” a vehicle by directly controlling the actions of the actual operator. In Sem, the plaintiffs alleged that the State retained and exercised control over the warning devices used by the independent contractor, including those on its vehicles, and that Sem’s death occurred because the vehicle he was using did not have the proper omnidirectional warning device. Thus, the plaintiffs sufficiently alleged that the State “used” or “operated” a motor-driven vehicle or used tangible personal property.

The instant case is distinguishable from Sem, Morgan, Rubio, and W.E.B. Investments. It is undisputed that a county employee did not personally operate or use a motor-driven vehicle or equipment used to construct the berm. Appellants did not plead and there is no evidence showing that the County retained any degree of control over Jobe’s construction of the berm. To the contrary, the evidence heard by the trial court established that the County did not retain or exercise any control over Jobe with respect to the construction of the berm. Thus, it cannot be said that an employee “used” or “operated” the motor-driven equipment used to build the berm, and therefore, sovereign immunity is not waived under Section 101.021(1).

Condition or Use of Tangible Personal Property

Appellants generally allege that sovereign immunity is waived under Section 101.021(2). Pursuant to this section, a governmental unit is liable for personal injury and death caused by a condition of real property or a condition or use of tangible personal property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See Tex.Civ.Prac. & Rem. Code Ann. § 101.021(2). To state an actionable claim under Section 101.021(2) based upon the “condition” of tangible personal property, it is sufficient to allege that defective property contributed to the injury. Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 32 (Tex.1983); Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex.App.-El Paso 1998, no pet.). Appellants’ pleadings do not contain any allegations regarding defective personal property and there is no evidence to support such a claim.

To state a claim under the Act based upon the use or misuse of non-defeetive tangible personal property, a plaintiff must allege (1) that the property was used or misused by a governmental employee acting within the scope of his or her employment and (2) that the use or misuse of the property was a contributing factor to the injury. Salcedo, 659 S.W.2d at 32; Gonzales, 978 S.W.2d at 623. The negligence of the government employee must be the proximate cause of the injury and must involve a use or misuse of tangible personal property under circumstances where there would be private liability. Salcedo, 659 S.W.2d at 32; Gonzales, 978 S.W.2d at 623. The property itself need not be the instrumentality of the alleged harm, but it must have been a contributing factor to the harm. Gonzales, 978 S.W.2d at 623; see Salcedo, 659 S.W.2d at 32. The Act does not provide for liability based upon a non-use of property. Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994).

While Appellants generally assert on appeal that their pleadings state a cause of action for use of tangible personal property, they do not identify the personal property in either their pleadings or briefing. Having reviewed the pleadings and evidence adduced at the hearing, we cannot conclude that Appellants have either alleged or demonstrated that their injuries resulted from the use or misuse of tangible personal property. Issue One is overruled.

Premises Defect

In Issue Two, Appellants allege that sovereign immunity is waived because the berm constitutes both a premises defect and a special defect. The County contends on appeal, as it did in the trial court, that sovereign immunity is not waived under the Tort Claims Act because the County does not own Cherrington Road and it has no duty to maintain the road.

Liability for premises defects is implied under Section 101.021(2) because premises defects arise from a condition existing on real property. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.); Lamar University v. Doe, 971 S.W.2d 191, 195 (Tex.App.-Beaumont 1998, no pet.). With respect to ordinary premises defects, however, the Act specifically limits the governmental duty owed a claimant to “the duty that a private person owes to a licensee on private property.” County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002), quoting TEX.Crv.PRAC. & Rem.Code Ann. § 101.022(a). Thus, a governmental unit may be liable for an ordinary premises defect only if a private person would be liable to a licensee under the same circumstances. Brown, 80 S.W.3d at 554.

A property possessor must not injure a licensee by willful, wanton, or grossly negligent conduct, and must use ordinary care either to warn a licensee of a condition that presents an unreasonable risk of harm of which the possessor is actually aware and the licensee is not, or to make the condition reasonably safe. Brown, 80 S.W.3d at 554; State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 237 (Tex.1992). A licensee asserting a premises-defect claim generally must show that the defendant possessed — that is, owned, occupied, or controlled — the premises where the injury occurred. Brown, 80 S.W.3d at 554. A premises-liability defendant may be held liable for a dangerous condition on the property if it “assum[ed] control over and responsibility for the premises,” even if it did not own or physically occupy the property. Brown, 80 S.W.3d at 556, quoting City of Denton v. Page, 701 S.W.2d 831, 835 (Tex.1986). The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it. Brown, 80 S.W.3d at 556. Additionally, a private person who has created the dangerous condition may be liable even though not in control of the premises at the time of injury. Page, 701 S.W.2d at 835.

The evidence revealed that Cher-rington Road is a dedicated public road but it has not been placed in the county road system and the County has not assumed a duty to maintain it. But the evidence also shows that the County, through its employee Deputy Andujo, requested that Jobe construct a dirt barricade across the roadway in order to assist the Sheriff’s Department in apprehending the drag racers who were interfering with Jobe’s business operations. Giving a liberal construction to the pleadings and taking the relevant evidence in favor of the Appellants, there is at least some evidence that the County created the dangerous condition, and therefore, it would have the responsibility to either warn of the danger or remedy it. The trial court erred in finding that sovereign immunity is not waived under Section 101.022(a).

Special Defect

Where there is a special defect, the governmental entity has the same duty to warn that one owes an invitee. Payne, 838 S.W.2d at 237; Tex.Civ.PRAC. & Rem.Code Ann. § 101.022(b)(Vernon 1997). That duty requires an owner or occupier to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner or occupier is or reasonably should be aware. Id. Where a special defect exists, it is the duty of the governmental unit that owns or controls a roadway to warn of the defect even though that governmental unit did not create the defect. Harris County v. Eaton, 573 S.W.2d 177, 179-80 (Tex.1978).

The County does not allege that the temporary dirt berm or barricade, which plainly obstructed the roadway on the evening of December 13, 2000, was not a special defect. Rather, it argues that it did not own or control the roadway, and therefore, it did not have a duty to warn of the defect. As noted above, the evidence reflects that the County did not own or have a duty to maintain Cherrington Road. But there is evidence indicating that the County exercised control over Cherrington Road on the date in question by ordering Jobe to construct the barricade blocking the roadway. We have found no cases addressing similar facts, but we conclude that ordering the placement of a barricade on a public roadway constitutes the type of control which would subject a governmental unit to a duty to warn. For the foregoing reasons, Issue Two is sustained.

ALLOWING PLAINTIFFS TO REPLEAD

Finally, in Issue Three, Appellants argue that the trial court should have given them an opportunity to re-plead. We will address this contention as it applies to Issue One. As a general rule, a dismissal with prejudice is improper when the plaintiff is capable of remedying the jurisdictional defect. Sykes, 136 S.W.3d at 639; see Brown, 80 S.W.3d at 555 (when a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend). On the other hand, dismissal with prejudice is appropriate when the pleadings affirmatively negate the existence of jurisdiction because of the sovereign immunity bar. Sykes, 136 S.W.3d at 639; Brown, 80 S.W.3d at 555. Further, if a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiffs amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiffs action with prejudice, because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined. Sykes, 136 S.W.3d at 639.

Appellants filed their third amended petition on May 28, 2002 and the County defendants filed their plea to the jurisdiction on August 30, 2002. Almost eleven months later, Appellants filed their response to the plea to the jurisdiction on July 14, 2003, but they did not amend their pleadings. The trial court granted the plea to the jurisdiction on October 27, 2003. Appellants had ample opportunity to amend their pleadings after the County filed its plea to the jurisdiction, but did not do so. The evidence considered by the trial court in connection with those claims based on operation or use of a motor-driven vehicle or equipment and use of tangible personal property indicates that the claims are barred by sovereign immunity. For these reasons, the trial court did not err in granting the plea to the jurisdiction without giving Appellants an opportunity to re-plead. Issue Three is overruled.

Having overruled Issues One and Three, we affirm that portion of the order granting the plea to the jurisdiction with respect to those claims based on operation or use of a motor-driven vehicle or equipment under Section 101.021(1), and condition or use of tangible personal property under Section 101.021(2). Having sustained Issue Two, we reverse that portion of the order granting the plea to the jurisdiction with respect to the premises defect and special defect claims. This cause is remanded to the trial court for further proceedings consistent with this opinion.

      . Jobe had "no trespassing” signs on the gate at its entrance, and after this incident, placed "no trespassing” signs on the unpaved portion of the road. Jobe later placed locked gates to prevent members of the public from driving on the unpaved portion of the road.

      . In his deposition, Ramirez maintained that he told the deputy who took his accident report that the accident occurred sometime between 8 and 9:30 that evening.

      . The trial court severed the claims against the County and Sheriff Samaniego from the claims against Jobe.

      . In the remainder of the opinion, we will refer to El Paso County and Sheriff Samanie-go as the County defendants or simply as the County.

      .Appellants’ brief discusses the applicable standard of review in paragraph "A” and presents their arguments under paragraphs "B,” "C,” and "D.” For convenience, we will treat paragraph "B” as Issue One, paragraph "C” as Issue Two, and paragraph "D” as Issue Three.

      . This section provides:
      (c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

        idí) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
      Tex.Civ.Prac. & Rem.Code Ann. § 101.106(c)(d)(Vernon Pamphlet 2004-05).

      . This section provides: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement(Second) of Torts, § 414 (1977).

      . We acknowledge that there is a fact issue regarding whether Deputy Andujo instructed Jobe to place a dirt barricade across the roadway. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.2004).

      . Section 101.022(b) provides: (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 as is required by Section 101.060. Tex.Civ.Prac. & Rem.Code Ann. § 101.022(b).


text:
    The STATE of Texas, Appellant, v. Jason MEADOWS, Appellee.
    No. 08-04-00096-CR.
    Court of Appeals of Texas, El Paso.
    April 28, 2005.

      Jaime E. Esparza, Richard Dulany, Jr., El Paso, for appellant.
    M. Clara Hernandez, El Paso, Penny Lee Andersen, San Antonio, for appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

The State of Texas appeals from an order dismissing the indictment for lack of jurisdiction. See Tex.RApp.P. 44.01(a)(1). We reverse and remand the cause for Meadows to answer the indictment.

FACTUAL SUMMARY

A grand jury indicted Meadows for assaulting Jacqueline Milton by hitting and kicking her and by throwing her into a wall. For enhancement purposes, the indictment included an allegation that Meadows had previously been convicted of an assault offense against a member of his family or household in Cause Number 20020D05960. Meadows filed a motion to dismiss the indictment for lack of jurisdiction. Meadows alleged in the motion that his assault conviction in Cause Number 20020D05960 was not a case involving family violence, and therefore, it could not be used to enhance the current assault offense to a felony. He further argued that the district court lacked jurisdiction to hear the primary assault because it was only a misdemeanor.

At the hearing on the motion to dismiss, Meadows offered into evidence the judgment from Cause Number 20020D05960. The judgment reflected that Meadows entered a negotiated plea of guilty to the lesser-included offense of misdemeanor assault. It did not contain an affirmative “family violence” finding. According to the reporter’s record of the guilty plea hearing, Meadows testified that the victim had been his next door neighbor and he had known her for three or four months prior to the assault. At the conclusion of the hearing below, the trial court made a specific factual finding that “[t]he judgment that has been relied upon for the enhancement for the case at bar ... is not a family violence case.” The prosecutor argued that whether the prior conviction involved family violence was a factual matter to be determined at trial, not in a pretrial hearing, and that the court lacked authority to make the factual finding or dismiss the indictment due to claimed insufficiency of the evidence at this stage of the proceedings. The trial court disagreed and granted the motion to dismiss for lack of jurisdiction because the State had not offered any evidence to prove that the prior assault offense involved family violence. The State timely filed its notice of appeal.

STANDARD OF REVIEW

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004). When the resolution of a question of law does not turn on an evaluation of the credibility and demeanor of a witness, then the trial court is not in an appreciably better position to make the determination, and appellate courts are to conduct a de novo review. Id.; see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

IMPROPER DISMISSAL OF THE INDICTMENT

In its sole issue on appeal, the State contends that the trial court erred by dismissing the indictment for lack of jurisdiction for two reasons: (1) proof of the enhancement allegation is an evidentia-ry matter to be determined at trial and is not a jurisdictional issue to be determined pre-trial; and (2) even if the State is unable to prove at trial that the prior assault conviction involved family violence, the trial court is not deprived of jurisdiction of the misdemeanor offense. We agree with both arguments.

An assault offense may be enhanced from a class A misdemeanor to a third-degree felony if the offense is committed against:

[A] member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has previously been convicted of an offense against a member of the defendant’s family or household under this section. [Emphasis added].

Tex.Penal Code Ann. § 22.01 (b)(2)(Vernon Supp.2004-05). In a subsequent proceeding, the State may rely on extrinsic evidence to prove that a previous assault was committed against a family or household member. See Manning v. State, 112 S.W.3d 740, 744 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Mitchell v. State, 102 S.W.3d 772, 775 (Tex.App.-Austin 2003, pet. ref'd); Goodwin v. State, 91 S.W.3d 912, 919 (Tex.App.-Fort Worth 2002, no pet.); see also State v. Cagle, 77 S.W.3d 344, 348 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd)(holding notation on prior judgment that family violence was “not applicable or not available” did not amount to a determination that prior assault was not committed against household or family member; therefore State was not collaterally estopped from litigating that issue at trial).

The indictment in this case alleged that Meadows:

[W]as previously convicted of an offense against a member of defendant’s family or household under Section 22.01 of the Texas Penal Code, to wit: on the 10th day of March, 2003, in cause number 20020D05960 in the 168th District Court, of El Paso County, Texas....

The presentment of an indictment vests a district court with jurisdiction. Tex. Const, art. V, § 12(b). District courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of the Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). When the face of the indictment charges a felony, the district court does not lose jurisdiction if the State is only able to prove a misdemeanor at trial. See Tex.Code Crim.Proc.Ann. art. 4.06; Jones v. State, 502 S.W.2d 771, 773-74 (Tex.Crim.App.1973).

A charging instrument that is valid on its face and returned by a legally constituted grand jury is sufficient to mandate trial of the charge on its merits. While no witnesses testified at the hearing on Appellant’s motion to dismiss, the sufficiency of an indictment cannot be supported or defeated by evidence at a pretrial hearing. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1994)(dissenting op. adopted on reh’g); State v. Boado, 8 S.W.3d 15, 17 (Tex.App.-Houston [1st Dist.] 1999), pet. dism’d improvidently granted, 55 S.W.3d 621 (Tex.Crim.App.2001). An indictment must be facially tested under the law as a pleading. Rosenbaum, 910 S.W.2d at 948. In the pretrial setting, there is neither constitutional nor statutory authority for a defendant to test — or for a trial court to determine — the sufficiency of evidence to support or defeat an element alleged in the indictment. Id.; Boado, 8 S.W.3d at 17; State v. Habern, 945 S.W.2d 225, 226 (Tex.App.-Houston [1st Dist.] 1997, no pet.). If the trial court conducts such a hearing, it errs. Rosenbaum, 910 S.W.2d at 948.

The indictment against Meadows alleged all of the elements of assault and contained a facially valid enhancement allegation. The trial court lacked authority to conduct a hearing to determine whether the offense used for enhancement purposes was, in fact, an offense involving family violence. The court could not require the State to marshal its proof in order to avoid dismissal of the indictment. The trial court erred in making a factual determination regarding the sufficiency of the evidence to prove the enhancement allegation and by dismissing the indictment. Despite the lack of an affirmative finding in the prior judgment, the State will be permitted to offer extrinsic evidence at trial that the assault was committed against a member of Meadows’ family or household. In the event that the evidence adduced at trial is insufficient to prove the enhancement paragraph, the district court will not be deprived of jurisdiction. The State’s sole issue on appeal is sustained. We reverse and remand the cause to the trial court for Meadows to answer the indictment.


text:
    Michael R. MURPHY and Deborah A. Johnson, Appellants, v. John LONG and Wife, Ruth Long, Appellees.
    No. 08-03-00494-CV.
    Court of Appeals of Texas, El Paso.
    May 12, 2005.
    Rehearing Overruled June 15, 2005.

      Monty Kimball, Alpine, TX, for Appellants.
    G. Ben Bancroft, Bancroft & Mouton, Big Spring, TX, for Appellees.
    Before Panel No. 5 McCLURE, CHEW, D., and CHEW, L., JJ. (sitting by assignment).

      . Estoppel in pais means: The doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Black’s Law Dictionary 495(5th Ed.1979).

   OPINION

ANN CRAWFORD McCLURE, Justice.

Michael R. Murphy and Deborah A. Johnson appeal from a judgment awarding John and Ruth Long an easement, reliance damages, and attorney’s fees. Finding no error, we affirm.

FACTUAL SUMMARY

Michael Murphy and John Long worked together and they and their wives became close friends. They contemplated buying property together and included a third couple, Rocky Beavers and Whit Watkins, in their plans. In 1997, the three couples purchased adjoining properties located along Highway 118 outside of Fort Davis from The Nature Conservancy of Texas, an organization dedicated to preserving the natural and scenic condition of the land. TNC required them to agree to a “Conservation Easement” to ensure that the property would be retained predominantly in its natural and scenic condition. The easement required that roads were to be constructed in such a manner as to cause the least disturbance to the scenic beauty. The three couples also entered into a Reciprocal Easement Agreement for the right to use the road which ran from Highway 118 across all three tracts of land to a common pen area. Initially, they operated the properties jointly and had access to some pens in a common area. They engaged in business activities such as leasing some of the pastures, and they shared in the revenues and expenses. They discussed forming a partnership to operate the three properties but did not formalize their agreement. After Beavers and Watkins indicated they did not want to be further involved, the Longs and the Murphys submitted an updated grazing and management plan to TNC. The two couples also shared the cost of drilling a water well on the Murphy property.

The Longs discussed with the Murphys their need for a road easement from the common pens across the Murphy land to the Longs’ future homesite. The Murphys agreed to grant a written easement similar to the Reciprocal Easement Agreement. The couples discussed several potential routes and eventually agreed upon one. They also agreed to share in the cost of building the road and continued maintenance based upon the pro rata use of the road. Based upon the site chosen by the Murphys for their home, their pro rata use of the road would have been 12 percent. The Longs had the 1.03 mile road constructed using native caliche, the same material used to build the Reciprocal Easement road. The Murphys paid 12 percent of the $10,000 it cost to construct the road based on the planned site of their home. When the Murphys later changed the location of their home site, they utilized a greater percentage of the road but did not pay the Longs any additional money. The Longs specifically relied upon the Mur-phys’ promises to grant them a written easement and to pay their pro rata share of the road costs.

After the road was built, the Longs received written notification from TNC on July 27, 1999 that the road violated the Conservation Easement. TNC’s primary objection was the color of the road. Mr. Long notified Mr. Murphy of the objection. A few weeks later, the Longs submitted a written proposal to TNC to resolve the problem by reseeding the roadsides with native grasses and vegetation, and perhaps by coloring the road. The Longs subsequently built up the edges of the road and reseeded the berm edge of the roadway but did not change the color due to the substantial expense. On December 14, 2000, TNC sent a letter to the Longs reflecting that it no longer had any objections to the road given the changes made. Nevertheless, on December 29, 1999, the Murphys sent a letter to the Longs contending that they had agreed to the road easement based on the Longs’ promise to obtain TNC approval of the road and that prior approval apparently had not been obtained. Their letter also referenced a dispute between the parties about how costs to maintain the road would be shared.

The disputes could not be resolved and the Longs ultimately filed suit alleging various tort and contract causes of action based on alleged agreements regarding the use of their properties. They also sought a declaratory judgment. The Mur-phys raised the statute of frauds as an affirmative defense and filed counterclaims alleging fraud, misrepresentation, and breach of fiduciary duty. A jury found that the Murphys breached their agreement with the Longs to drill a water well on the Murphy property for their joint use, and awarded damages in the amount of $3,877. The jury also found that the Longs did not have an enforceable contract with the Murphys to provide them with a written easement and did not misrepresent or conceal a material fact regarding their intention to grant a road easement, but it determined that the Longs substantially relied on a promise by the Murphys to provide a written road easement granting the Longs access to their home site and that this reliance was foreseeable by the Murphys. It awarded damages to the Longs in the amount of $1,450.-The jury found against the remaining claims, including the counterclaims asserted by the Murphys.

The trial court awarded judgment to the Longs in accordance with the jury’s answers. It further declared that the Longs and their heirs, successors, and assigns were entitled to a road easement across the Murphy’s land from the reciprocal easement to the Longs’ home site. The court awarded attorney’s fees to the Longs, as the prevailing parties, in the amount of $10,000. On appeal, the Mur-phys restrict their arguments to the award of the road easement and attorney’s fees.

EASEMENT BY ESTOPPEL

In Issue One, the Murphys challenge the legal and factual sufficiency of the evidence to support the award of the road easement. The easement by estoppel is based on the jury’s finding that the Longs substantially relied on the Murphy’s promise to provide a written road easement and that their reliance was reasonably foreseeable. We will not review the legal or factual sufficiency of the evidence to support these specific findings because the Murphys do not complain that the evidence does not support them. Instead, they focus on the absence of two findings which they claim are necessary to support the award, namely, that a written but unsigned easement existed at the time they promised to give the Longs an easement and that a vendor-vendee relationship existed between the parties.

Existence of Written but Unsigned Easement

Section 26.01 of the Texas Business and Commerce Code provides that a promise or agreement for the sale of real estate is not enforceable unless the promise or agreement, or a memorandum of it, is in writing and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. Tex.Bus. & Comm.Code Ann. § 26.01 (Vernon 2002). Likewise, the Statute of Conveyances found in Section 5.021 of the Texas Property Code provides:

A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor’s agent authorized in writing.

Tex.PROp.Code Ann. § 5.021 (Vernon 1984).

The easement which the Murphys promised to grant is one which attaches to the land itself and passes with it, and thus, is an easement appurtenant to the land. See Drye v. Eagle Rock Ranch, Inc., 864 S.W.2d 196, 208 (Tex.1963). As such, it is an interest in land which requires a writing to create or transfer. Tex.PROP.Code Ann. § 5.021; Drye, 364 S.W.2d at 203; West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex.App.-Austin 2002, no pet.). The Longs, however, rely on the doctrine of easement by estoppel, or estop-pel in pais as it is sometimes called, to avoid the statutes of frauds and conveyances. See Drye, 364 S.W.2d at 209 (noting that this doctrine is one exception to the requirement of a writing to create an easement).

More than 125 years ago, the Supreme Court first articulated the rationale for the doctrine of easement by estop-pel:

The owner of land may create an easement by a parol agreement or representation which has been so acted on by others as to create an estoppel en pais. As ‘where he has by parol agreement granted a right to such easement in his land, upon the faith of which the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked, equity has enjoined the owner of the first estate from preventing the use of it.’

Harrison & Co. v. Boring, 44 Tex. 255, 267-68, 1875 WL 7685 (1875). The doctrine essentially holds that the owner of the alleged servient estate may be es-topped to deny the existence of an easement by making representations that have been acted upon by the owner of the alleged dominant estate. Stallman v. Newman, 9 S.W.3d 243, 246 (Tex.App.-Houston [14th Dist.] 1999, pet. denied), citing Drye, 364 S.W.2d at 209. It is grounded on the notion that justice forbids one to gainsay his own acts or assertions. Wallace v. McKinzie, 869 S.W.2d 592, 595 (Tex.App.Amarillo 1993, writ denied). Estoppel arises when one is not permitted to disavow his conduct which induced another to act detrimentally in reliance upon it. Id.

The extent of the doctrine of es-toppel in pais has not been clearly defined and its application depends on the unique facts of each ease. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex.1979); Drye, 364 S.W.2d at 203; Stallman, 9 S.W.3d at 246. Three elements are necessary to the creation of an easement by estoppel: (1) a representation, communicated, either by word or action, to the promisee; (2) the communication was believed; and (3) the promisee relied on the communication to his detriment. Stallman, 9 S.W.3d at 246; see Storms, 579 S.W.2d at 451 n. 3; Drye, 364 S.W.2d at 209-10.

Citing “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972), the Murphys maintain that the jury’s findings do not support the award of an easement by estoppel because the jury was not asked to — and did not — find that a written easement agreement existed at the time of the promise. Consequently, they argue that the Longs have failed to establish this exception to the statute of frauds.

In “Moore” Burger, the plaintiff leased property from the City of Austin and built a restaurant on it. Id. at 937. The Ing estate owned a small tract of land which adjoined the City tract. Dowd and Craus were in the business of buying property and selling it to oil companies for service station sites. They obtained an option from the Ing estate to buy the property. At the same time, the City became interested in selling the tract it had leased to “Moore” Burger and it informed the company president, W.D. Scallon, of its wishes. Scallon notified the City that “Moore” Burger wished to bid on the property and he took steps to secure financing. Dowd and Craus approached Scallon and told him of their plans to buy the two tracts of land. Id. at 937-38. They represented to him that they would construct a new building on the property and lease it to “Moore” Burger for twenty years. Scallon agreed to their plan and as a result did not bid on the property. A lease was drawn up by Craus’s attorney and after changes were made by Scallon’s attorney, Scallon signed it. Despite their promises, Craus and Dowd did not sign the lease. It later came to light that the entire time these negotiations were ongoing, Dowd and Craus had a contract to sell the property to an oil company which planned to build a service station for Phillips Petroleum. Phillips subsequently bought the contract of sale and refused to honor the lease with “Moore” Burger. Id. at 938. “Moore” Burger filed suit for breach of contract and the defendants raised the statute of frauds as a defense. Id. at 935. The trial court granted summary judgment in favor of the defendants on their affirmative defense and the court of appeals affirmed. Id. The Supreme Court reversed, finding fact issues with respect to “Moore” Burger’s claims of promissory estoppel. Id. at 938. Citing Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921), the court concluded that enforcement of the statute of frauds under these circumstances would amount to fraud. Id. at 938. The court further found that Phillips had constructive notice or would have known of “Moore” Burger’s lease had it made a reasonable inquiry. Id. at 939. In its opinion on rehearing, the Supreme Court clarified that it had not applied the doctrine of promissory estoppel to an oral promise but had instead applied it to the defendants’ promise to sign a written agreement already in existence. Id. at 940 (op. on reh’g).

The Supreme Court followed “Moore” Burger in Nagle v. Nagle, 633 S.W.2d 796 (Tex.1982). The divorce decree required Mr. Nagle, an attorney, to pay the monthly mortgage payment on the Nagle residence and Mr. Nagle retained his one-half interest in the residence. Id. at 798. Ms. Nagle filed a contempt motion after Mr. Nagle missed four child support payments. On the morning of the scheduled hearing on the motion, Ms. Nagle agreed to forego the hearing and waive one month of child support in consideration for Mr. Nagle’s one-half interest in the residence. Mr. Nagle also agreed to pay the child support payments he had missed and to increase his future child support payments in an amount sufficient to pay the mortgage payment. He returned to his law office to draft a deed conveying his interest but shortly thereafter announced a change of heart and he refused to convey his interest in the property. Ms. Nagle did not reschedule her contempt motion and Mr. Nagle subsequently paid the past-due child support payments and continued to make the monthly mortgage payment. Ms. Na-gle filed suit, alleging common law fraud and promissory estoppel. She sought specific performance of the agreement or damages resulting from Mr. Nagle’s failure to perform. A jury found in favor of Ms. Nagle and awarded her damages equal to the amount of Mr. Nagle’s interest in the residence. The court of appeals affirmed, finding that Ms. Nagle had established her cause of action for common law fraud. However, it also concluded that her promissory estoppel theory of recovery would not support the judgment. Nagle v. Nagle, 617 S.W.2d 811 (Tex.Civ.App.-Houston [14th Dist.] 1981). The Supreme Court reversed and rendered a take nothing judgment. Citing “Moore” Burger, the court held that Ms. Nagle’s failure to obtain a jury finding that Mr. Nagle promised to sign an instrument which complied with the statute of frauds precluded her recovery under the promissory estop-pel doctrine. Nagle, 633 S.W.2d at 800. The court further held that Ms. Nagle did not establish her cause of action for common law fraud, presumably because the facts of the case did not fall within the exception discussed in Hooks v. Bridgewater. See Nagle, 633 S.W.2d at 800.

The rule developed in “Moore” Burger and Nagle has been applied in various contexts, but it has not been applied to a case involving easement by estoppel. See e.g., Exxon Corporation v. Breezevale Limited, 82 S.W.3d 429, 438-39 (Tex.App.Dallas 2002, pet. denied)(agreement between oil company and local liaison to share in risks, losses, production, and profits from oil development); Sonnichsen v. Baylor University, 47 S.W.3d 122, 125-26 (Tex.App.-Waco 2001, no pet.)(university’s alleged promise to give all head athletic coaches two-year written contracts). Courts have continued to review easements by estoppel under Harrison & Co. v. Boring and its progeny, Drye and Storms. See e.g., Schilhab v. Dierlam, 2004 WL 1797585, No. 13-03-00185-CV (Tex.App.-Corpus Christi Aug. 12, 2004, no pet.); Stallman, 9 S.W.3d at 246; Scott v. Cannon, 959 S.W.2d 712, 720 (Tex.App.Austin 1998, pet. denied); Wallace v. McKinzie, 869 S.W.2d 592, 595 (Tex.App.Amarillo 1993, writ denied). None of these cases imposed a requirement that the party claiming the easement prove the existence of a written but unsigned document creating an easement and we decline to graft that requirement on the doctrine.

In “Moore” Burger, Breezevale, Sonnichsen and other cases cited by the Murphys, the agreements at issue had numerous essential elements. In the absence of a written agreement, one or more of those elements would have to be established by parol evidence. Thus, “Moore” Burger imposed the requirement that the written agreement containing all of these elements be in existence at the time of the promise to sign. An agreement to provide a road easement is distinguishable from the agreements in the cases relied on by the Murphys. If a party agrees to provide another with an easement for a particular purpose, there are no other required elements which would have to be supplied by parol evidence. The Murphys complain that the agreement is incomplete because the parties did not reach an agreement with respect to the width of the easement, but that is not an element which would have to be supplied by parol evidence. It is a well settled rule that where the grant does not state the width of the right-of-way created, the grantee is entitled to a suitable and convenient way sufficient to afford ingress and egress to the owner of the dominant estate. Crawford v. Tennessee Gas Transmission Company, 250 S.W.2d 237, 240 (Tex.Civ.App.-Beaumont 1952, writ ref'd), citing 28 C.J.S., Easements, § 77, page 757. What is suitable depends on the purpose of the easement. If the grant states merely the object for which the easement is granted, dimensions which are reasonably sufficient for that purpose must be inferred. Id.

The Murphys orally agreed to grant the Longs a road easement and the parties agreed on the route after discussing various alternatives. The parties did not specify the width of the road but, as we have noted, that is not a necessary element of the agreement. Because there are no missing terms of the agreement which must be supplied by parol evidence, “Moore” Burger is inapplicable and we decline to apply it.

Vendor-Vendee Relationship

The Murphys also allege that the Longs were required to prove the existence of a vendor-vendee relationship in order to establish an easement by estoppel. The Austin Court of Appeals has held that a vendor-vendee relationship is required to establish an easement by estoppel. Scott, 959 S.W.2d at 721. It reached this conclusion after focusing on the following language found in Storms:

As generally stated, the doctrine holds that the owner of land may be estopped to deny the Existence [sic] of an easement by making representations that have been acted upon by a purchaser to his detriment.

Storms, 579 S.W.2d at 451, citing Drye, 364 S.W.2d at 209. Although Storms acknowledges that applying the doctrine of easement by estoppel' outside of the vendor-vendee relationship is “rare and nebulous,” the Third Court of Appeals is the only court to hold that the doctrine never applies outside of the vendor-vendee relationship. The Fourteenth Court of Appeals questioned this conclusion in Stallman v. Newman, but it ultimately did not reach the question. Stallman, 9 S.W.3d at 248 n. 2. Because both Storms and Drye involved a claim by a purchaser of property, it would have been natural for the court to state the doctrine in terms of a purchaser. We do not read Storms or Drye as holding that an easement by estoppel can never exist unless there is a vendor-vendee relationship between the parties. We decline to follow Scott.

The Longs alleged and proved that they substantially relied to their detriment on a promise by the Murphys to provide them with a written and signed road easement. The Longs expended $10,000 to build the road and the Murphys, who use a portion of the road to get to their own home site, have refused to provide the written easement. The jury’s findings are sufficient to establish an easement by estoppel. Issue One is overruled.

DOUBLE RECOVERY

In Issue Two, the Murphys contend that the Longs are not entitled to both reliance damages and the award of an easement because it amounts to a double recovery. They argue that the easement is improper inasmuch as the jury found no enforceable contract. While that is certainly true, the jury did find the elements necessary for the imposition of an easement by estoppel. The Longs paid $10,000 for the construction of the road with the understanding they would be awarded a written easement and the parties would share in the cost of the road on a pro rata basis. The Murphys, whose home is located approximately halfway between the common easement and the Longs’ home site, paid them $1,667. The jury awarded the Longs an additional $1,450 in damages. If the Longs are not awarded the easement, their expenditure of nearly $7,000 to build the section of the road leading to their home site is without any value whatsoever. The doctrine of easement by es-toppel prevents this inequity. Finding no double recovery, we overrule Issue Two.

ATTORNEY’S FEES

In Issue Three, the Murphys argue that the court abused its discretion in awarding attorney’s fees under the Declaratory Judgment Act. They claim the Longs are not the prevailing party because they are not entitled to a declaratory judgment. The Uniform Declaratory Judgments Act provides that a court may award reasonable and necessary attorney’s fees as are equitable and just. Tex.Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1997). Fee awards under the Uniform Declaratory Judgments Act are left to the trial court’s sound discretion, subject to the requirement that any fees awarded be reasonable and necessary — which is a question of fact — and that the fees be equitable and just — which is a question of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). In reviewing an attorney fee award under the Act, we must determine whether the trial court abused its discretion by awarding fees when there was insufficient evidence that the fees were reasonable and necessary or were equitable and just. Id. Because we have already determined that the trial court did not err in granting a declaratory judgment, this argument fails. We overrule Issue Three and affirm the judgment of the trial court.

      . We will refer to Murphy and Johnson as "the Murphys” because that is how the parties have referred to them in the trial court and on appeal.

      . The parties had agreed that if the jury’s verdict justified an award of attorney’s fees, the prevailing party would be awarded attorney’s fees in the range of $20,000 to $25,000. The court initially awarded $22,500 but reduced the attorney’s fees to $10,000 following a hearing on a motion for new trial.