author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    TEXAS A & M UNIVERSITY SYSTEM, Texas Engineering Experiment Station and Dr. Mark McLellan, Appellants, v. Dr. Sefa KOSEOGLU, Appellee.
    No. 10-03-00375-CV.
    Court of Appeals of Texas, Waco.
    March 9, 2005.

      Robert F. Johnson, III, Asst. Atty. General, Austin, for state.
    Wayne T. Rife, Law Office of Wayne T. Rife, College Station, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Sefa Koseoglu filed a breach of contract suit against the Texas A & M University System, the Texas Engineering Experiment Station, and his supervisor Mark McLellan contending that they breached a settlement agreement between Koseoglu and Texas A & M negotiated to resolve an employment dispute. Texas A & M and McLellan filed pleas to the jurisdiction premised on sovereign immunity and pleaded the affirmative defense of sovereign immunity in their answers to Koseo-glu’s petition.

Koseoglu filed a motion for summary judgment asserting his entitlement to judgment as a matter of law on the merits of his contract claim and further contending that sovereign immunity was waived because of a denial of due process with respect to an employment contract he had with Texas A & M. After a hearing, the trial court denied Appellants’ pleas to the jurisdiction. This interlocutory appeal ensued.

Appellants contend in their sole issue that sovereign immunity has not been waived. Koseoglu responds that sovereign immunity has been waived because: (1) Texas A & M accepted the benefits of the settlement agreement; and (2) the settlement agreement was reached to resolve Texas A & M’s liability on a due process claim for which immunity from suit has been waived. Koseoglu contends, in the alternative, that he should be permitted an opportunity to amend his pleadings before his suit is dismissed.

Because no statute vests this Court with jurisdiction to consider McLellan’s appeal, we will dismiss his portion of this appeal for want of jurisdiction. Because Koseo-glu has failed to allege facts which demonstrate a waiver of sovereign immunity, we will reverse and remand as to Texas A & M.

This Court Does Not Have Jurisdiction To Review The Denial Of A Government Employee’s Plea To The Jurisdiction Premised On Sovereign Immunity In An Interlocutory Appeal

“A party may not appeal an interlocutory order unless authorized by statute.” Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001). The statute at issue here is section 51.014 of the Civil Practice and Remedies Code, which provides in pertinent part that an interlocutory appeal may be taken from an order which “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 Ann. § 51.014(a)(8) (Vernon Supp.2004-2005). Section 51.014 must “be strictly construed as ‘a narrow exception to the general rule that only final judgments and orders are appeal-able.’ ” Bally Total Fitness, 53 S.W.3d at 355 (quoting Montgomery County v. Fuqua, 22 S.W.3d 662, 665 (Tex.App.-Beaumont 2000, pet. denied)).

The Clerk of this Court notified McLellan by letter that his appeal from the denial of his plea to the jurisdiction appears subject to dismissal for want of jurisdiction because it is not authorized by statute. See Tex. Parks & Wildlife Dept. v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 457-458 (Tex.App.-Waco, no pet. h.). In response, MeLellan notes that this Court has issued apparently conflicting rulings on this issue in the past six months. Compare Lowrey Realty, 155 S.W.3d at 457-458, with Brazos County v. Tullous, No. 10-04-00020-CV, 2004 WL 1574889, at *1, 2004 Tex.App. LEXIS 6094, at *1-2 (Tex.App.-Waco July 7, 2004, no pet.) (mem.op.). We conclude, however, that these decisions are consistent.

In Lowrey Realty, this Court held that it did not have jurisdiction to entertain a similar appeal by employees of the Texas Parks and Wildlife Department because such employees “are individuals, not governmental units” and thus cannot pursue an interlocutory appeal under section 51.014(a)(8). 155 S.W.3d at 458. In Tullous however, this Court reached the opposite conclusion with regard to the Sheriff of Brazos County. 2004 WL 1574889, at *1, 2004 Tex.App. LEXIS 6094, at *1-2. Because the office of sheriff is one “derived from the Constitution,” a sheriff is a “governmental unit” under section 101.001(3)(D) and thus under section 51.014(a)(8). See Tex. Const, art. V, § 23; Tex. Gov’t Code Ann. § 101.001(3)(D); Perry v. Del Rio, 53 S.W.3d 818, 820-23 (Tex.App.-Austin), dism’d as moot, 66 S.W.3d 239, 242 (Tex.2001).

Other courts have reached the same conclusion with regard to other elected officials whose offices are “derived from the Constitution.” See Potter County Atty.’s Off. v. Stars & Stripes Sweepstakes, L.L.C., 121 S.W.3d 460, 464-65 (Tex.App.Amarillo 2003, no pet.) (county attorney); Cornyn v. 52 Members of Schoppa Family, 70 S.W.3d 895, 898 (Tex.App.-Amarillo 2001, no pet.) (attorney general); Perry, 53 S.W.3d at 820-23 (governor, lieutenant governor, and secretary of state); see also McLane Co. v. Strayhorn, 148 S.W.3d 644 (Tex.App.-Austin 2004, pet. filed) (comptroller); Nueces County v. Ferguson, 97 S.W.3d 205, 210 & n. 2 (Tex.App.-Corpus Christi 2002, no pet.) (sheriff).

Some courts have extended this principle to government employees in general. See e.g. De Mino v. Sheridan, No. 01-03-00794-CV, — S.W.3d -, -, 2004 WL 1794558, at *2-3, 2004 Tex.App. LEXIS 7252, at *8-10 (Tex.App.-Houston [1st Dist.] Aug. 12, 2004, no pet.) (university provost); Potter County Atty.'s Off., 121 S.W.3d at 464-65 (police chief); see also Smith v. Lutz, 149 S.W.3d 752 (Tex.App.Austin 2004, no pet.) (university employees). However, because none of these positions is created by the constitution or by statute, we disagree with the conclusion reached by these courts. See Perry, 53 5.W.3d at 820-23.

MeLellan calls our attention to language in De Mino discussing the potential waste of judicial resources which may result from a restrictive reading of section 51.014. “Such a narrow reading would potentially result in a waste of judicial resources if a reviewing court later determined that the trial court’s ruling on the plea was improper.” De Mino, — S.W.3d at - n.14, 2004 WL 1794558, at *2 n.14, 2004 Tex.App. LEXIS 7252, at *9 n. 14. However, a “narrow reading” is precisely what we believe the law requires when our Supreme Court states that the statute must be “strictly construed.” Bally Total Fitness, 53 S.W.3d at 355.

The implication of De Mino that such a narrow reading thwarts the legislative purpose of providing prompt review of interlocutory rulings on the immunity claims of government employees is simply incorrect. Section 51.014(a)(5) provides government officers and employees another avenue for an interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2004-2005). Thus, a government employee need not wait until after the conclusion of the parties’ litigation to seek appellate review when a trial court denies the government employee’s claim of immunity, if the employee raises that claim by motion for summary judgment. See e.g. Doyal v. Johnson County, 79 S.W.3d 139, 139 & n. 1 (Tex.App.-Waco 2002, no pet.) (interlocutory appeal from grant of county’s plea to the jurisdiction and county employees’ summary judgment motions both premised on immunity).

McLellan is not a “governmental unit.” Lowrey Realty, 155 S.W.3d at 458; Castleberry Indep. Seh. Dist. v. Doe, 35 S.W.3d 777, 779-80 (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.); Johnson v. Resendez, 993 S.W.2d 723, 728 (Tex.App.-Dallas 1999), pet. dism’d, 52 S.W.3d 689 (Tex.2001). Therefore, we dismiss that portion of this appeal brought by McLellan for want of jurisdiction.

A Plaintiff Suing A Governmental Unit Must Allege Sufficient Facts To Establish A Waiver Of Immunity

‘When we consider a trial court’s order on a plea to the jurisdiction, we construe the pleadings in the plaintiffs favor and look to the pleader’s intent.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). When a plaintiff presents summary judgment evidence to establish jurisdiction, we must also examine that evidence. Tex. Dept. of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex.2001). The focus of our inquiry is whether the plaintiff has alleged sufficient facts to establish a waiver of immunity. See County of Cameron, 80 S.W.3d at 555; Cozby v. City of Waco, 110 S.W.3d 32, 36 (Tex.App.-Waco 2002, no pet.).

Because The Supreme Court Has Not Yet Recognized A Waiver Of Immunity By Acceptance Of Contract Benefits, We Will Not Do So Either

In Federal Sign v. Texas Southern University, the Supreme Court hinted that “[t]here may be other circumstances where the State may waive its immunity by conduct other than simply executing a contract.” 951 S.W.2d 401, 408 n. 1 (Tex.1997). Nevertheless, on every occasion since, when the Court has been asked to recognize a “waiver-by-conduct” exception, it has declined. See e.g. Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 706 (Tex.2003); Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 251-52 (Tex.2002); Tex. Nat. Resource Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 857 (Tex.2002) (plurality); Gen. Servs. Commn. v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001).

Because of this, several intermediate appellate courts have declined to recognize such an exception absent further guidance from the Supreme Court. See e.g. Noah v. Univ. of Tex. Med. Branch at Galveston, No. 01-03-00985-CV, — S.W.3d - - -, 2004 WL 1794642, 2004 Tex. App. LEXIS 7239, at *20-21 (Tex.App.Houston [1st Dist.] Aug. 12, 2004, pet. denied); Smith, 149 S.W.3d at 758; Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, at *2 n. 2, 2003 Tex.App. LEXIS 6768, at *4 n. 2 (Tex.App.-Houston [14th Dist.] Aug. 7, 2003, pet. denied) (mem.op.). We do likewise.

Texas A & M’s Immunity From Suit Has Not Been Waived For The Due Process Claim Which Koseoglu Alleges To Be The Basis Of The Parties’ Settlement Agreement

Koseoglu contends in his summary judgment motion that he had an employment contract with Texas A & M and that the termination of his employment constitutes a deprivation of the property rights created by that contract without due process of law. The settlement agreement he entered with Texas A & M was struck to settle his due process claim. Thus, Koseo-glu contends that, because sovereign immunity has been waived for due process claims, Texas A & M’s immunity has been waived in this case under the reasoning of Texas A & M Univ.-Kingsville v. Lawson. 87 S.W.3d 518 (Tex.2002) (plurality). However, Koseoglu is mistaken in his understanding that sovereign immunity has been waived for such claims.

Koseoglu contends that “[s]overeign immunity has been expressly waived to allow a governmental contract employee to file a due-process lawsuit where his employment has been wrongfully terminated without having first afforded him due process. 42 U.S.C. § 1983.” Koseoglu cites the Fifth Circuit’s decision in Coats v. Pierre to support this contention. 890 F.2d 728 (5th Cir.1989). However, the Fifth Circuit did not address the issue of sovereign immunity in that decision.

Nevertheless, the United State Supreme Court has plainly held that a state and its agencies are immune from a section 1983 lawsuit unless the state waives its immunity. Will v. Mich. Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309-10, 105 L.Ed.2d 45 (1989); accord Terrell ex rel. Est. of Terrell v. Sisk, 111 S.W.3d 274, 282 (Tex.App.-Texarkana 2003, no pet.); Ntreh v. Univ. of Tex. at Dallas, 936 S.W.2d 649, 652 (Tex.App.-Dallas 1996), modified on other grounds, 947 S.W.2d 202 (Tex.1997) (per curiam); Bagg v. Univ. of Tex. Med. Branch at Galveston, 726 S.W.2d 582, 585-86 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.).

“[I]t is the Legislature’s sole province to waive or abrogate sovereign immunity.” Tex. Nat. Resource Conservation Commn., 74 S.W.3d at 857. To date, the Legislature has not chosen to do so with respect to section 1983 claims. Accordingly, Texas A & M retains its immunity from Koseoglu’s section 1983 claim. Thus, we sustain Texas A & M’s sole issue insofar as it contends that Koseoglu has failed to plead sufficient facts to establish a waiver of sovereign immunity. We now address whether Koseoglu should be given an opportunity to amend his pleadings.

Because Koseoglu’s Pleadings Do Not Affirmatively Demonstrate An Incurable Jurisdictional Defect, We Will Reverse And Remand To Provide An Opportunity To Amend The Pleadings

Texas A & M contends that, because its plea to the jurisdiction was pending for more than four months before the trial court ruled on it, Koseoglu has had sufficient opportunity to amend his pleadings and no further opportunity should be provided. Koseoglu responds that he does not need to amend the pleadings until a court determines that they are deficient, and thus, he should be provided an opportunity to amend if this Court determines the pleadings to be deficient. We agree with Koseoglu.

The Supreme Court has on several occasions addressed the trial court’s obligation to afford a plaintiff a “reasonable opportunity” to amend his pleadings to cure jurisdictional deficiencies. The Court has used somewhat different language on each occasion to discuss the parameters of the opportunity which should be provided.

In Texas Department of Transporiation v. Ramirez, the Court observed:

A plaintiff has a right to amend her pleadings to attempt to cure pleading defects if she has not alleged enough jurisdictional facts. However, if it is impossible to amend the pleadings to invoke jurisdiction, the trial court should dismiss the plaintiffs suit.

74 S.W.3d 864, 867 (Tex.2002) (citations omitted). The Court declined to allow the plaintiff in Ramirez an additional opportunity to amend her pleadings because it concluded that “[t]he pleaded facts and the evidence ... demonstrate that it is impossible for Ramirez to amend the pleadings to invoke jurisdiction.” Id. at 867-68. Other appellate courts have done likewise. See e.g. Livecchi v. City of Grand Prairie, 109 S.W.3d 920, 923 (Tex.App.-Dallas 2003, pet. dism’d by agr.); City of San Benito v. Ebarb, 88 S.W.3d 711, 724 (Tex.App.-Corpus Christi 2002, pet. denied).

In County of Cameron, the Supreme Court affirmed the lower court’s ruling that the defendants’ plea to the jurisdiction should have been sustained because the plaintiffs failed to plead that they did not have actual knowledge of the dangerous condition at issue. 80 S.W.3d at 558-59. The Court observed that the plaintiffs’ pleadings did not “affirmatively negate the existence of an unreasonably dangerous condition.” Id. at 559. The Court concluded:

Because the trial court did not rule on the defendants’ special exceptions and allow the plaintiffs an opportunity to amend their pleadings, omitting this element cannot support the trial court’s judgment. See Herring, 513 S.W.2d at 9-10 (holding that when the allegations do not “affirmatively negate” a claim, dismissal for failure to state a claim is appropriate only when the plaintiff has been “given an opportunity to amend after special exceptions have been sustained”); see also 7 William V. DoRSAneo III, Texas Litigation Guide § 70.03[4][f] (stating that after a trial court sustains special exceptions, “the pleader must be given, as a matter of right, an opportunity to amend”).

Id. (footnotes added).

Other appellate courts have likewise reversed and remanded in cases in which the plaintiffs’ pleadings did not affirmatively demonstrate incurable jurisdictional defects. See e.g. City of Alton v. Sharyland Water Supply Corp., 145 S.W.3d 673, 680 (Tex.App.-Corpus Christi 2004, no pet.); Potter County Atty.’s Off., 121 S.W.3d at 471.

In Texas Department of Parks and Wildlife v. Miranda, a plurality of the Supreme Court determined that the plaintiffs were not entitled to any further opportunity to amend their pleadings because they “no doubt filed their third amended petition” in response to the defendant’s plea to the jurisdiction. 138 S.W.3d 217, 231 (Tex.2004) (plurality). Lower courts have reached the same conclusion where the plaintiffs amended their petitions in response to a plea to the jurisdiction. See e.g. Salas v. Wilson Meml. Hosp. Dist., 139 S.W.3d 398, 405 (Tex.App.-San Antonio 2004, no pet.); Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 686 (Tex.App.-Austin 2004, no pet.).

The Supreme Court’s most recent holding in this area is Harris County v. Sykes, 136 S.W.3d 635 (Tex.2004). This is the case on which Texas A & M places primary reliance. The Court held:

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. Such a dismissal is with prejudice because a plaintiff should not be permitted to relitigate jurisdiction once that issue has been finally determined. Before dismissing this case, 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. Therefore, Sykes is foreclosed from relitigating whether the Texas Tort Claims Act waives immunity in this case.

Id. at 639-40.

Texas A & M relies on the first two sentences of this excerpt to support its position. However, we believe the third sentence supports Koseoglu’s position. As the Supreme Court observed, “Before dismissing this case [which suggests that the trial court had informed the parties of its intent to dismiss], the trial court allowed Sykes to file an amended petition, after which the court made a final adjudication [which suggests that the trial court had previously informed the parties of its intent to dismiss] that the Legislature had not waived governmental immunity....” Id. at 639 (emphases added).

The Port Worth Court recently considered a similar case in which, during a hearing on a municipality’s plea to the jurisdiction, the plaintiff asked for additional time to amend his pleadings. Levatte v. City of Wichita Falls, 144 S.W.3d 218, 225 (Tex.App.-Fort. Worth 2004, no pet.). The trial court granted the plaintiff nearly a month to amend, “but Levatte did not respond, choosing instead to stand on his pleadings.” Id. In addition, Levatte did not ask the appellate court for an additional opportunity to amend. Id. Thus, the court concluded, ‘We cannot say that Levatte should be permitted to amend his pleadings now, after he already had that opportunity and failed to avail himself of it.” Id.

Our research has disclosed only one case which directly stands for the proposition that, if a plea to the jurisdiction remains pending for a sufficient length of time, an appellate court may deny a plaintiff additional time to amend. See O’Neal v. Tex. Bd. of Chiropractic Examrs., No. 03-03-00270-CV, 2004 WL 2027787, at *3 & n. 5, 2004 Tex.App. LEXIS 8254, at *11 & n. 5 (Tex.App.-Austin Sept. 10, 2004, no pet.) (mem.op.). In O’Neal, the defendant’s plea to the jurisdiction was on file for three months before the trial court heard it. Id., 2004 WL 2027787, at *3, 2004 Tex.App. LEXIS 8254, at *11. The appellate court declined to give the plaintiff further opportunity to amend his pleadings because he “had ample notice of the Board’s arguments, but he did not attempt to replead.” Id. The court specifically noted, “Although, in this case, O’Neal did not choose to amend his pleadings, he was afforded a three-month opportunity to do so.” Id., 2004 WL 2027787, at *3 n. 5, 2004 Tex.App. LEXIS 8254, at *11 n. 5. We note that O’Neal is proeedurally distinguishable from Koseoglu’s case, but we also disagree with the conclusion stated.

O’Neal is distinguishable from Koseo-glu’s case because it involved an appeal from a trial court ruling granting a plea to the jurisdiction. Thus, the plaintiff was put on notice by the trial court that his pleadings were deficient, yet he did not ask the trial court for an opportunity to amend. Cf. Levatte, 144 S.W.3d at 225.

This distinction notwithstanding, we hold that a plaintiff may stand on his pleadings in the face of a plea to the jurisdiction unless and until a court determines that the plea is meritorious. See County of Cameron, 80 S.W.3d at 559; City of Alton, 145 S.W.3d at 680; Potter County Atty.’s Off., 121 S.W.3d at 471. If a court so determines, a plaintiff must then be provided “a reasonable opportunity to amend” his pleadings to attempt to cure the jurisdictional defects found, unless “[t]he pleaded facts and the evidence ... demonstrate that it is impossible for [the plaintiff] to amend the pleadings to invoke jurisdiction.” See Sykes, 136 S.W.3d at 639; Ramirez, 74 S.W.3d at 867-68.

As noted, some cases suggest that a plaintiff who chooses to amend his pleadings in response to a plea to the jurisdiction may be denied further opportunity to amend. See e.g. Miranda, 133 S.W.3d at 231; Salas, 139 S.W.3d at 405; Save Our Springs Alliance, 149 S.W.3d at 686. We have already observed that this aspect of Miranda garnered only a plurality. We believe this approach is inconsistent with the bright-line rule spelled out in County of Cameron, 80 S.W.3d at 559 (“dismissal for failure to state a claim is appropriate only when the plaintiff has been ‘given an opportunity to amend after [a plea to the jurisdiction] ha[s] been sustained’ ” (emphasis added)); but cf. Levatte, 144 S.W.3d at 225 (if trial court grants plaintiffs request for additional time to amend but plaintiff fails to take advantage of opportunity, then plaintiff may be denied additional opportunity to amend).

Here, the issue of whether the Legislature has waived Texas A & M’s immunity from suit depends on whether the Legislature has waived Texas A & M’s immunity from suit with respect to Koseoglu’s underlying claim which was resolved by the settlement agreement. See Lawson, 87 S.W.3d at 521. Although, we have concluded that the Legislature has not waived Texas A & M’s immunity from the due process claim asserted by Koseoglu, we cannot say at this juncture “that, even by amendment, no cause of action can be stated [for which sovereign immunity has been waived]” with respect to the termination of the employer-employee relationship between Texas A & M and Koseoglu. See City of Alton, 145 S.W.3d at 680. Thus, Koseoglu must be provided an opportunity to amend his pleadings. See County of Cameron, 80 S.W.3d at 559; City of Alton, 145 S.W.3d at 680; Potter County Atty.’s Off., 121 S.W.3d at 471.

Conclusion

We dismiss that portion of this interlocutory appeal brought by Appellant Mark McLellan for want of jurisdiction. We reverse the judgment as to Appellants Texas A & M University System and Texas Engineering Experiment Station and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY concurring and dissenting.

TOM GRAY, Chief Justice,

concurring and dissenting.

There comes a point in litigation when choices have to be made. There are consequences of making choices. When faced with a plea to the jurisdiction, a party can choose to amend or stand. In Texas, we have extraordinarily liberal pleading rules. And under the applicable standard of review, it’s like horseshoes, you get points for being close; you do not have to land a ringer every time.

The ruling we should make should encourage the plaintiff to give it the best shot. The plaintiff should make all the allegations that can be supported to bring the case within a waiver of sovereign immunity. This is especially true once a plea to the jurisdiction has been filed. Thereafter, by the passage of time, it is reasonable to conclude what is in the pleadings is all the plaintiff has to offer the trial court. The trial court should be able to rule on the plea to the jurisdiction based upon what is on file in the way of pleadings and the evidence properly admitted at the hearing that supports a waiver. Based upon that same record, we should be able to review the propriety of the trial court’s ruling.

The alternative is what the majority is doing, encouraging the plaintiff to not plead all the information and never amend its pleadings until after it has suffered an adverse ruling.

This is not an appeal of a dismissal after an adverse ruling, or no ruling, on special exceptions as was County of Cameron v. Brown, 80 S.W.3d 549 (Tex.2002). Try as they might to change what Cameron says by rephrasing a quote, by inserting language it did not contain, into a parenthetical used in Cameron to explain a description of the case, see majority op. at pg. 384, Cameron does not hold that a plaintiff must be given an opportunity to replead after an adverse ruling on a plea to the jurisdiction.

What the majority is actually holding is 1) that a plea to the jurisdiction is nothing more than a special exception, and 2) that the trial court must, that is must, give an advisory opinion of how it intends to rule on the plea, let some amount of time pass, though we do not know how much, and if no amended pleading is filed, then rule.

What a waste of judicial resources, both trial and appellate. I would hold that if the plaintiff has had a reasonable opportunity to evaluate the plea to the jurisdiction and amend the petition to meet the complaints raised in that plea, but fails or refuses to amend, the plaintiff must suffer the consequence of its decision. Dr. Ko-seoglu had known for several months prior to the hearing that the jurisdiction of the trial court was being attacked. He did nothing in response.

Further, the bright-line rule which requires an opportunity to amend after an adverse ruling is contrary to the Texas Supreme Court’s instructions in Miranda. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004). We are to review what has been filed and determine, if we can, whether the plaintiff has affirmatively pleaded themselves out of court. What we do not know is if there is an amended pleading, does this mean the movant has to start with a new plea to the jurisdiction?

Accordingly, I concur in the result except to the extent the case as to Texas A & M University System and Texas Engineering Experiment Station is remanded to allow Koseoglu to amend his petition. While Koseoglu asserts that he can re-plead to bring himself within the waiver of the Tort Claims Act, the facts alleged in his petition, if proven, affirmatively place him outside waiver of sovereign immunity in the Tort Claims Act.

Based upon the allegations made by Ko-seoglu, there is no amendment which will give the trial court jurisdiction. Accordingly, because the allegations affirmatively demonstrate that the trial court has no jurisdiction, we should render a judgment of dismissal with prejudice as to these defendants. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004) and Harris County v. Sykes, 136 S.W.3d 635 (Tex.2004).

      . As used hereinafter, the term "Texas A & M” refers collectively to the Texas A & M University System and the Texas Engineering Experiment Station unless otherwise indicated.

      . Section 101.001(3) of the Civil Practice and Remedies Code defines a "governmental unit” as:
      (A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;
      (B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;
      (C) an emergency service organization; and
      (D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.
      Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3) (Vernon Supp.2004 — 2005).

      . See Tex.R.App. P. 42.3(a)

      . See Tex. Const, art. V, § 21.

      . Id. art. IV, § 1.

      . Id.

      . Id.

      . Section 51.014(a)(5) provides for the interlocutory appeal of an order that “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2004-2005).

      . Koseoglu is correct that the Fifth Circuit reviewed the merits of a section 1983 suit filed against a state university (the Board of Regents of the Texas A & M University System) and several faculty members and administrators. See Coats v. Pierre, 890 F.2d 728, 731 (5th Cir.1989). However, the issue of sovereign immunity was not addressed. The court instead affirmed the trial court’s granting of a directed verdict in the defendants’ favor on the merits of the plaintiff's claims. Id. at 734.

      . Tex. Dept. of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974).

      . The quoted passage from the Texas Litigation Guide is currently found in volume 5 of that work. See 5 William V. Dorsaneo III, Texas Litigation Guide § 70.03[4][f] (Aug. 2004).

      . The section of the Miranda opinion discussing the plaintiffs’ pleadings and their entitlement to an opportunity to amend is the only portion of the opinion which mustered the support of only a plurality. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 220, 229-31 (Tex.2004).

      . After all, this is not like a special exception where the court’s ruling is specific enough to know what pleadings may bring some claim within the waiver and what claim may still not be adequately pled to show that it is not within an exception to governmental immunity. See e.g., City of Waco v. Wright, No. 10-04-00045-CV, 2004 WL 2580156, 2004 Tex.App. LEXIS 10117 (Tex.App.-Waco Nov.10, 2005, no pet.)(mem.op.)(From the majority opinion in City of Waco v. Wright, it is impossible to tell what claim has been adequately pled. Id., 2004 WL 2580156, at *1-2, 2004 Tex.App. LEXIS 10117, at *2-4 (Gray, C.J., concurring)). I recognize that some Supreme Court Justices consider a plea to the jurisdiction as an arcane method by which to attack the trial court's jurisdiction. See Miranda, 133 S.W.3d at 239-245 (Brister, J., dissenting). But the Legislature specifically identified this procedural vehicle as a proper vehicle through which to address the problem of suits against governmental entities. The vehicle having been chosen by the Legislature, we have little choice but to ride it.


source: Caselaw Access Project

author: RICHARD H. EDELMAN, Justice. WANDA McKEE FOWLER, Justice CHARLES W. SEYMORE, Justice

license: Public Domain

text:
    Jimmie REINICKE, Individually and as Legal Representative of the Estates of Karen Reinicke, Deceased, Max L. Reinicke, Deceased, and Derrick A. Reinicke, Deceased, Appellants, v. AEROGROUND, INC., Appellee.
    No. 14-02-00680-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 22, 2005.
    Rehearing Overruled Aug. 4, 2005.

      David A. Carp, Brad Beers, Houston, and John Y. Eliek, Bellville, for appellants.
    Charles W. Hurd, Jerry L. Rios, Reagan W. Simpson, Houston, Gregory Alan Scott, Dallas, for appellees.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   PLURALITY OPINION

RICHARD H. EDELMAN, Justice.

In this wrongful death and survival action, Jimmie Reinicke, individually and as legal representative of the Estates of Karen, Max, and Derrick Reinicke (collectively, “Reinicke”) appeals a judgment notwithstanding the verdict (“JNOV”) in favor of Aeroground, Inc. (“Aeroground”) on the grounds that the trial court erred in: (1) entering the JNOV because there was legally sufficient evidence to support the jury’s verdict; and (2) excluding from evidence (i) a post-accident drug test for marijuana and valium of Aeroground’s truck driver and (ii) the opinions of Texas Department of Public Safety (“DPS”) accident reconstructionists. We affirm.

Background

In this particularly tragic case, Rein-icke’s wife, Karen, and their two sons, Max and Derrick, were killed by a fire resulting from a highway traffic collision (the “accident”). Reinicke brought this wrongful death and survival action against Aero-ground (and others who are not parties to this appeal). At trial, the jury apportioned 50% of the negligence to Aeroground and awarded Reinicke damages totaling $23.25 million. However, the trial court ultimately concluded that there was no evidence that any negligence by Aeroground was a proximate cause of the accident, granted Aeroground’s motion for JNOV, and entered a take-nothing judgment.

JNOV

Reinicke’s first issue contends that the trial court erred in granting the JNOV because there was legally sufficient evidence that Aeroground’s negligence proximately caused the accident.

Standard of Review

A trial court may grant a JNOV if there is no evidence to support one or more of the jury findings on issues necessary to liability. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). To determine whether there is no evidence to support a jury verdict (and thus uphold the JNOV), we view the evidence in a light that supports the challenged finding and disregard all evidence and inferences to the contrary. Id. If more than a scintilla of evidence supports the finding, the jury’s verdict must be upheld. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003).

More than a scintilla of evidence exists when the evidence enables reasonable minds to differ in their conclusions. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004). Conversely, evidence that creates only a mere surmise or suspicion is no more than a scintilla and, thus, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). Similarly, an inference that is stacked only upon other inferences, rather than direct evidence, is not legally sufficient evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.2003).

Overview of Negligence Grounds

In this case, an Aeroground 18-wheel tractor-trailer rig driven by Randy Peavy ran out of fuel while heading eastbound on Highway 290 and was parked on the shoulder, out of the lane of traffic. Peavy notified Aeroground, and it sent another driver, David Rodriguez, with another tractor with which to pull Peavy’s tractor away from the trailer and then pull the trailer to Aeroground’s yard. After the first tractor had been moved away from the trailer, but before the second tractor was connected to it, Karen’s van drifted off the roadway, collided with the rear corner of the parked trailer, went back onto the roadway, collided with both a Murco 18-wheel rig and the concrete wall dividing the highway, then caught on fire. Reinicke contends that the accident was caused by Aeroground’s negligence in the following respects: (1) Peavy allowed his rig to run out of fuel during rush hour on a busy highway, causing it to be placed in a dangerous position on the shoulder; (2) Peavy failed to put out emergency warning triangles to alert oncoming traffic that his rig was disabled and not moving; and (3) Rodriguez, an untrained driver who had a history of backing incidents, had backed the second tractor into the roadway in the path of Karen’s van immediately before the collision.

Negligence in Placing the Rig on the Shoulder

A person who creates a dangerous condition on premises, including a public highway, can be liable for injuries it causes even though he is not in formal control of the premises at the time of the injury. However, in this case, the charge submitted to the jury (the “charge”) contained only the elements pertaining to a negligent activity theory of recovery and not the additional elements required for a finding of liability under the independent theory of a defective condition of premises. See generally Comm, on PatteRN JüRY ChaRges, State BaR of Tex., Texas PatteRN Jury CHARGES — MALPRACTICE, PREMISES & PRODUCTS PJC 65.1 (2003). Therefore, the charge will support a recovery for an injury that was a contemporaneous result of an activity actually going on at the time of the injury, but not an injury resulting from a condition that was previously created by an activity.

Reinicke’s first alleged ground of negligence, causing the trailer to be placed in a dangerous position along the highway, occurred while driving and parking the rig. That activity had ended when the tractor ran out of gas, well before the accident occurred. Therefore, to whatever extent Aeroground’s negligence in running out of gas and positioning the rig on the shoulder created a dangerous condition, the negligent activity charge submitted in this case will not support a finding of liability for common law negligence or premise liability for failing to: (1) exercise reasonable care in putting the trailer there; (2) warn of that condition; or (3) make it reasonably safe.

Statutory Duty to Warn

Despite that a premise defect theory was not submitted to the jury, the charge would support liability for Reinicke’s second alleged ground of negligence, the failure to put out emergency warning triangles, because an independent duty to warn was imposed by statute, and the charge contained a negligence per se instruction that “the law requires the placement of emergency warning devices behind a disabled commercial motor vehicle within 10 minutes of becoming disabled.”

A negligence per se theory requires a showing of proximate cause just as does an ordinary negligence theory. See Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex.1977). In this case, the charge defined “proximate cause” as a cause that “produces an event, and without which ... [it] would not have occurred.” In this regard, the vital distinction is whether the negligent act: (1) set in motion a natural and unbroken chain of events that led directly to the injury; or (2) merely furnished a condition that made it possible for the injury to instead result from a separate act of negligence. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 799 (Tex.2003). Similarly, if the evidence shows only a mere possibility that the plaintiffs injuries arose from the defendant’s negligence, or if it shows more than one equally probable cause, for any of which the defendant was not responsible, then the evidence is legally insufficient to support a finding of causation. See Hart v. Van Zandt, 399 S.W.2d 791, 792-93 (Tex.1965). Although a finding of cause-in-fact may be based on either direct or circumstantial evidence, it cannot be supported by mere conjecture, guess, or speculation. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003). Therefore, the causation evidence must show that the injury would not have occurred if the negligence had not occurred.

In this case, it is undisputed that the rig was parked on the shoulder of the highway, out of the traveled lane of traffic, and that the accident occurred during daylight hours under dry weather conditions and clear visibility. Had Karen’s van remained in the roadway, as would ordinarily be expected of a driver in the exercise of reasonable care in such driving conditions, there is no evidence that any mishap would have occurred. Conversely, there is no evidence that the mere presence of the rig on the shoulder or the absence of warning triangles could have itself reasonably compelled a driver who was maintaining a safe distance, speed, lookout, and the like to leave the roadway. Nor is there any evidence that any movement of Karen’s van before, or while, drifting out of the lane of traffic toward the trailer on the shoulder was sudden or accompanied by any application of her brakes or abrupt steering change. Under these circumstances, the cause of the accident was whatever other event or condition caused the van to leave the roadway in the first place. Regardless whether that event or condition was an external factor or physical incapacity that was beyond Karen’s control, or some other occurrence that was within her control, there is no evidence that the presence of warning triangles would have changed its effect in any way, let alone prevented the accident. Therefore, although putting out emergency warning triangles would unquestionably have been better than not doing so, any conclusion that the accident would not have occurred if they had been used would be wholly speculative. There is thus no evidence that the failure to put out warning triangles was a cause of the accident.

Backing the Second Tractor into the Roadway

Regarding Reinicke’s third alleged ground of negligence, backing the second tractor into the roadway in Karen’s path, it is undisputed that Rodriguez would have had to back his tractor up to the trailer to connect to it and that doing so would have required his tractor to move partway into the outside lane of traffic. However, there is no direct evidence that Rodriguez ever actually progressed to the point of backing his tractor into the roadway. Although the Murco truck driver, who was traveling ahead of Karen’s van, applied his brakes and moved to an inner lane as he approached the Aeroground rig, these actions would have been prudent just by reason of the rig being on the shoulder, and thus do not support an inference that there was a tractor in the roadway that precipitated them. Similarly, although there was evidence that Rodriguez was in a hurry to return the trailer to the Aero-ground yard, this fact is also not probative of whether he had actually backed his tractor onto the roadway when the accident occurred. As noted above, there is no evidence that any movement of Karen’s van before, or while, drifting out of the lane of traffic toward the trader on the shoulder was sudden or accompanied by any application of her brakes or abrupt steering change.

Because the evidence shows no more than a mere possibility that the accident could have been caused by Rodriguez backing his tractor into the roadway, and at least an equal probability that the van left the roadway for other possible reasons, any conclusion regarding causation can be reached only by speculation or stacking inferences. See Marathon, 106 S.W.3d at 729-30. Under these circumstances, there is no evidence that the accident was caused by Aeroground’s negligence, and Reinicke’s first issue is overruled.

Exclusion of Expert Opinion Testimony

Reinicke’s third issue challenges the trial court’s exclusion of the opinion testimony of two DPS accident reconstructionists, Manning and Davis, that Aeroground caused the wreck. Expert opinion testimony that is conclusory or speculative is legally insufficient to prove the stated conclusion. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232-33 (Tex.2004). Therefore, to constitute some evidence, an expert opinion must be supported by facts in evidence such that there is not too great an analytical gap between the data and the opinion offered. Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex.2004).

In this case, the facts that Manning and Davis relied upon included: (1) the respective locations of the various vehicles after the accident; (2) the location and length of skid marks from the Murco rig relative to the locations of the trailer and tractors, the calculated location at which Karen’s van collided with the Murco rig after hitting the trailer, and the points at which the van struck the concrete wall dividing the highway; and (3) various other matters occurring after the collision of Karen’s van with the trailer. However, we can find no portion of the record at which either expert explained how (iethe sequence of logical steps by which) a conclusion can be drawn from these facts regarding what caused Karen’s van to veer off the road in the first place. Nor is it apparent, without such an explanation, how any such conclusion logically follows from the body of data they relied upon. Under these circumstances, the expert opinions were coneluso-ry and/or speculative and would not have constituted evidence to support a finding that Aeroground’s negligence caused the accident. Therefore, Reinicke’s third issue is overruled.

Because Reinicke’s issues do not show any evidence to support the finding of causation against Aeroground, they fail to demonstrate error in granting the JNOV, and we need not address Aeroground’s cross-points. Accordingly, the judgment of the trial court is affirmed.

FOWLER, J., concurring.

SEYMORE, J., dissenting.

WANDA McKEE FOWLER, Justice

concurring.

I disagree in part and agree in part with the plurality opinion we issue today. I disagree that negligent activity and premises liability theories apply to this case. Instead, I agree with the dissent that the controlling case law permitted the trial court to submit this case to the jury under a general negligence theory of liability. However, I agree with the decision to affirm the trial court’s judgment notwithstanding the verdict because Mr. Reinicke failed to raise a fact issue on proximate cause. For this reason, I concur in the result reached by the plurality opinion.

The trial court properly submitted this case under general negligence principles

This case arose out of the tragic car accident that occurred when Mrs. Rein-icke’s van collided with an Aeroground tractor-trailer rig that was parked on the shoulder of Highway 290. For the reasons that follow, I believe the trial court properly submitted the case to the jury using a general negligence charge.

The plurality characterizes this case as one of premises liability rather than ordinary negligence because Aeroground’s allegedly negligent acts, including running out of gas and parking the rig on the shoulder, had ended before the accident occurred. In order for Mr. Reinicke to recover for these actions, the majority would require him to proceed under a premises liability theory based upon a dangerous condition Aeroground created on the shoulder of Highway 290. But, I believe this case is controlled generally by ordinary negligence principles, and specifically by proximate causation. Case law from the Texas Supreme Court itself compels this conclusion.

In Bell v. Campbell, the Court was faced with a similar factual situation. 434 S.W.2d 117, 118 (Tex.1968). While driving along a highway, Bell came upon a traffic accident. Id. A trailer — originally attached to a truck involved in the collision— had disengaged and lay overturned in one lane of the highway. Id. Bell and others stopped and attempted to remove the trailer from the highway. Id. at 119. As Bell worked to move the overturned trailer, another car struck the trailer, injuring Bell. Id. Faced with the dilemma of deciding whether the initial accident caused Bell’s injuries, the Texas Supreme Court did not turn to premises liability theory. Mentioning premises liability not once, the Court relied instead on ordinary negligence principles and specifically focused on causation saying, “the controlling question is one of causation.” Id. at 118. And, while the initial accident made the subsequent collision possible, that fact was not the primary indicator of causation. Rather, the primary indicator was whether “all forces involved in or generated by the first collision had come to rest and no one was in any real or apparent danger therefrom.” Id. at 120. Thus, almost forty years ago, the Texas Supreme Court confirmed that general negligence principles apply to a setting like the one here. See id. at 118-123.

Only ten years ago, the Court reaffirmed this approach in Union Pump Co. v. Allbritton. 898 S.W.2d 773, 774 (Tex.1995). Allbritton sued the manufacturer of a pump that started a fire at a chemical company’s facility, saying that she would not have been injured if the pump had not started the fire. Id. Allbritton, one of the chemical company’s employees, had responded to the fire. Id. After the fire was extinguished, she fell from a pipe rack that was wet from substances used to douse the fire. Id. Again, the case proceeded under a general negligence theory and again, the Texas Supreme Court mentioned premises liability theory not once. Id. at 774-77. Again, when faced with an accident that occurred after the initial negligent activity had ended, the Court looked to whether the forces generated by the fire had come to rest by the time Allbritton was injured and thus, whether as a matter of law, the forces were “too remote to constitute legal causation.” Id. at 774.

In short, then, in neither Bell, nor Union Pump (nor Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex.1991) for that matter), did the Court turn to premises liability theory. Instead, it looked to general negligence principles and specifically to proximate causation. That is what we also must do.

The trial court properly granted judgment notwithstanding the verdict in Ae-roground’s favor

Thus, as the Texas Supreme Court did in Bell and in Union Pump, to resolve the issue before us we must turn to proximate causation and consider if the actions and omissions of Aeroground that the Rein-ickes complain of — running out of gas and parking the rig on the shoulder — “had ran their course and were complete.” Bell, 434 S.W.2d at 122. The evidence in the trial below was undisputed that “no one was in any real or apparent danger therefrom.” Id. at 120. As one eye witness testified, Aeroground’s “truck was way off the side of the road.... The third lane was clear.” Many cars passed the trailer without hitting it. To hit the trailer, Mrs. Reinicke’s van had to go off the road onto the shoulder. In fact, when the van hit the trailer, it was moving back toward the third lane of traffic, after having left the lane and traveled onto the shoulder. Certainly, the presence of Aeroground’s trailer on the shoulder of the highway furnished the condition that made this unthinkable accident possible; had the trailer not been there, the van might have returned to the third lane without incident. But, had the van not left the lane of traffic, it would have passed the trailer, as did many cars before it, without injury to it or its precious passengers. So, although the trader created a condition that sealed the fate of the van and its passengers, it was only a remote cause. The van directly caused the accident by departing from its route in the third lane and moving onto the shoulder where the trailer lay, off the road. Union Pump, 898 S.W.2d at 776 (“Legal cause is not established if the defendant’s conduct ... does no more than furnish the condition that makes the plaintiffs injury possible.”).

The dissent understandably rejects this conclusion. All of us would like to place blame on someone for the unspeakable events that transpired. But the law will not allow us to do that in this case on these facts. No one knows why the van left the lane of traffic and drifted onto the shoulder several times before hitting the trailer. I think the key to this mystery is the manner in which the van left the road: it drifted off the road. It did not move in a jerky or sudden manner as if its occupants were startled by what they saw on the shoulder of the road. Rather, it moved out of its lane and onto the shoulder without any apparent concern over the trailer. In fact, there is no evidence in the record tending to prove that Aeroground’s negligence, rather than any other factor, somehow caused the van to leave the lane and collide with the trailer. Without this evidence, we can only speculate and our speculation — where any number of possible causes exist and none is more probable than another — cannot support the jury’s affirmative finding on proximate cause. See Marathon Corp. v. Pitzner, 106 S.W.Sd 724, 728-29 (Tex.2003) (per curiam).

Conclusion

Because of this uncertainty over this tragic accident, I would hold that the trial court properly granted Aeroground’s motion for judgment notwithstanding the verdict. Contrast Longoria, 44 S.W.3d at 674 (distinguishing Bell and Union Pump, and holding disabled ear on shoulder did proximately cause injuries when it “created a boxed canyon effect” and the plaintiff was “ensnared by the danger created by the defendant”).

CHARLES W. SEYMORE, Justice

dissenting.

I respectfully dissent.

My colleague has raised an issue that was not raised or argued by either party on appeal. The plurality has concluded that the Reinickes were required to request issues or instructions calculated to establish Aeroground’s liability for creating a dangerous condition on the premises in question. My colleague cites Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998), an apartment rape case, Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex.1997), an oil well drilling employee fall case, and Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992), a grocery store slip and fall case to support this conclusion. None of the above cases support the conclusion that a plaintiff must plead, adduce evidence, and obtain affirmative findings relative to a defective condition of premises in order to establish liability for negligence against a defendant who was not, at the time of plaintiffs injury, an owner, occupier or possessor of the premises.

The plurality fails to acknowledge that Aeroground was not an owner, occupier or possessor and did not exercise the right to control the subject premises during all times material to this suit. In a footnote, the plurality cites City of Denton v. Page, 701 S.W.2d 831, 835 (Tex.1986) and properly acknowledges that the law places upon a person who creates a dangerous condition on a public highway a duty to warn of the condition. This duty to warn does not arise out of ownership, possession or control of premises. It arises, in the instant case, from leaving a trailer on premises (shoulder of the highway) owned or controlled by the State of Texas. In Page, the court acknowledged that possession and control must generally be shown in premises liability cases. Id. at 835. Here, the plurality seems to rely on the Page court’s reference, in dicta, to Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962), which was cited for the proposition that a private person who creates a dangerous condition on premises may be hable even though he was not in control of the premises at the time of the accident.

In Strakos, the plaintiff was a motorist who sued a fence contractor after stepping into a posthole located along an original fence. Id. at 788-89. The fence contractor was no longer working in the area at the time of the injury. The court rejected the “accepted work” doctrine and concluded that a contractor is not immune from liability for creating a dangerous condition on property solely because his work has been completed. Id. at 790. Notably, the Strakos court did not discuss or conclude that the trial court was required to submit definitions, instructions or special issues predicated on the duties of an owner, possessor or occupier of premises prerequisite to establishing liability against the contractor who allegedly created the dangerous condition.

The plurality does not attempt to describe or explain the Reinickes’ legal status relative to Aeroground and the purportedly defective premises. We are left to speculate whether the Reinickes are invitees, licensees or trespassers relative to Aeroground. Reliance on the plurality’s analysis would require the trial court to propound a question such as the following: Did Aeroground know, or in the exercise of reasonable care, should it have known about the unreasonable risk of harm posed by the trailer? I respectfully submit that Aeroground’s negligence, if any, is not measured by its knowledge of a dangerous condition. Aeroground’s knowledge of the trailer’s location on the shoulder and potential danger to others was an undisputed fact. Two of Aeroground’s employees were on the scene, attempting to remove the trailer from the shoulder of the highway seconds before the fateful impact.

The mere fact that Aeroground left its trailer sitting on the State’s right of way does not transmogrify Aeroground into a possessor, owner or occupier of the premises. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997) (acknowledging the difference between liability for one who controls premises versus one who creates a dangerous condition on premises). My colleague refers to a comment to Pattern Jury Charge 65.1 for the reader’s edification regarding the differences between a jury charge for negligent activity versus defective condition of premises. Comm, on PatteRN JURY ChaRges, State Bar of Tex. Pattern Jury Charges PJC 65.1 (2003). Notably, on the next page of this edition is PJC 65.2. See id. PJC 65.2. At the top of the page is the section topic: “PREMISES LIABILITY — DEFINITIONS & INSTRUCTIONS.” See id. The caption beside PJC 65.2 states as follows: “Negligence and Ordinary Care of Plaintiffs or of Defendants Other than Owners of Premises.” See id. The definitions of “Negligence” and “Ordinary Care” with the exception of the precatory “Paul Payne” language are verbatim to the definitions submitted in the instant case. See id. Moreover, in “Accompanying definitions and instructions” under PJC 66.4, the editors recommend use of the definitions under PJC 65.2 “when the conduct of a contributorily negligent plaintiff or defendant who is not an owner or occupier of a premises is also to be considered by the jury.” See id. PJC 66.4. In the same edition and under the same topic, the PJC 65.4 definition of “Proximate Cause” is verbatim to the definition in the instant case. See id. PJC 65.4. The Committee on Pattern Jury Charges recognizes what the plurality refuses to acknowledge: some defendants are exposed to liability for creating dangerous conditions on premises they do not own or control, and their standard of care is not the same as the defendant who owns or controls the premises.

It is axiomatic that negligence (negligent activity) occurs by action or omission. I submit that leaving the trailer parked on the shoulder and failing to timely place emergency warning devices falls under the negligent activity rubric as omissions. The action that falls under the negligent activity rubric would be preparing to back or backing the tractor down the highway shoulder. Notwithstanding the plurality’s ruminations about the exact moment Aero-ground’s negligent activity ended, a tort-feasor’s presence at the scene of an injury is not a prerequisite to establishing liability for negligence, including failure to warn. I respectfully submit that the plurality has gleaned and applied a rule which is not supported by the cited cases. Accordingly, I disagree with the plurality’s analysis and discussion of the negligent activity versus premise defect dichotomy because none of the defendants in this case owned or controlled the premises in question.

Sufficiency of The Evidence

Relative to the Reinicke’s first issue, this court must not only recite the proper standard of review for determining whether the trial court erred in granting a JNOV, it must view the evidence in a light that supports the challenged finding and disregard all evidence and inferences to the contrary. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003). We must sustain the first issue if reasonable minds could reach different conclusions regarding the evidence. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004).

It is relatively undisputed that Aero-ground’s employee parked its trailer on the highway shoulder and did not timely warn of the potentially dangerous condition by placement of warning cones required under federal law. The unexcused violation of a penal statute constitutes negligence as a matter of law if such statute was designed to prevent injuries to a class of persons to which the injured party belongs. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982). In jury question number one, the trial court acknowledged the legal sufficiency of this undisputed evidence by instructing the jury on the statutory requirement for placement of warning devices along the roadway. After discussing the above undisputed evidence, the plurality concludes that the jury charge will not support recovery for an injury resulting from a condition that was “previously created by an activity.” For the reasons stated above, I respectfully disagree. Accordingly, I would hold that there is more than a scintilla of evidence supporting assessment of negligence against Aeroground for failure to warn.

Proximate Cause

The more difficult issue for appellate resolution is whether there is more than a scintilla of evidence to support the jury’s affirmative finding that Aeroground’s negligence proximately caused injury and death to the Reiniekes. Proximate cause requires both cause-in-fact and foreseeability. Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). Cause-in-fact means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. Texas and Pac. Ry. Co. v. McCleery, 418 S.W.2d 494, 497 (Tex.1967). Foreseeability is satisfied by showing that the defendant should have anticipated the danger created for others by its negligent act or omission. Missouri Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 105 (Tex.1977). Similar to any other ultimate fact, proximate cause may be established with circumstantial evidence. Farley, 529 S.W.2d at 755.

Pursuant to Section 392.22(b)(2)(v) of the Federal Motor Carrier Safety Regulations, Aeroground was required to place at least three warning devices behind the trailer with the following spacing: 10 feet, 100 feet and 200 feet. 49 CFR § 392.22(b)(2)(v) (2000). Without referring to specific testimony or physical evidence in the record, the plurality concludes, there is no evidence that “failure to put out warning triangles was a cause of the accident.” Apparently, the plurality discounts or does not fully appreciate the multiple benefits of warning devices by concluding that “the cause of this accident was whatever other event or condition caused the van to leave the roadway.” I respectfully disagree with the rationale of the plurality. -One primary purpose for warning devices is to provide the earliest possible warning to drivers that a vehicle is disabled. Placement of the warning devices at the required distances is pivotal to early warning that there is a hazard ahead; drivers should reduce speed and exercise caution. Such devices are calculated to reduce or eliminate any confusion regarding whether the disabled vehicle ahead is moving or stopped.

Immediately before the Reinicke vehicle struck the rear of Aeroground’s trailer, Pena was traveling ahead of Mrs. Reinicke in the right or outer lane of traffic. Pena testified that he easily saw the Aeroground trailer from his high vantage point in the seat of a tractor and observed the Reinicke vehicle pass in the right (outer) lane immediately before it came into contact with the Aeroground trailer. Kurishi, who was traveling behind the Reinicke vehicle, testified that he did not see the Aeroground trailer ahead before it was struck by the Reinicke vehicle. Truck driver Pena testified that he changed from the right (outer) lane to the center lane of traffic as he approached the Aeroground trailer. If Kurishi could not see the Aeroground trailer until it was impacted by the Reinicke vehicle, the jury was permitted to infer that Mrs. Reinicke, traveling behind the Pena 18-wheeler, did not have an early opportunity to acknowledge or appreciate the potentially dangerous condition on the right shoulder until Pena’s tractor and trailer moved left, into the center lane of traffic.

Aeroground’s employee, Rodriguez, testified that Mrs. Reinicke’s vehicle weaved off the shoulder, then back onto the third (outer) lane and back onto the shoulder, striking the trailer in the rear. Rodriguez’s testimony is contradicted by Kuri-shi; however, after reviewing the entire record, this court is required to consider only the evidence and inferences that support the jury’s findings and disregard all contrary evidence. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). This erratic movement is some evidence supporting a permissible inference that Mrs. Reinicke was startled by sudden perceived danger, a reaction that might reasonably have been avoided if the warning devices had been placed at the prescribed distance and location.

This circumstantial evidence coupled with other physical evidence, including presence or absence of skidmarks and physical location of all the vehicles on and off the highway, after the fiery collision, constitutes legally sufficient evidence to support a jury finding that Aeroground’s failure to warn proximately caused injury and death to the Reinickes. In other words, a jury could reasonably conclude that “but for” the failure to place warning devices prescribed by law, the impact would not have occurred. See Kerby v. Abilene Christian Coll., 503 S.W.2d 526, 528 (Tex.1973).

The foreseeability element of proximate cause is established when the plaintiff shows that the defendant should have anticipated the dangers its negligent act or omission created for others. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). However, foreseeability does not require a person to anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence. Id. at 98. Here, one or more of Aeroground’s employees verbally acknowledged the potential danger. Moreover, the danger associated with a disabled trailer on the shoulder of a major highway in Houston traffic, without placement of required warning devices, is undis-putable.

Regarding the movement of the Rein-icke vehicle immediately before impact, the plurality ignores our “no evidence” standard of review by disregarding Rodriguez’s testimony in favor of Kurishi’s testimony. Moreover, the plurality fails to acknowledge the presumption in law that Mrs. Reinicke was exercising ordinary care during all times material to this action. See Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 483 (1943). Admittedly, the presumption vanishes with Kurishi’s testimony; however, a “no evidence” challenge should be denied if, after reviewing the entire record, the proffered evidence rises to a level that would enable reasonable minds to differ. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).

In conclusion, I would hold there is legally sufficient evidence to support the jury’s determination that Aeroground’s violation of Section 392.22(b)(2)(v) and failure to warn proximately caused injury and death to the Reinickes. See 49 CFR § 392.22(b)(2)(v) (2000). Accordingly, I respectfully dissent.

      . City of Denton v. Page, 701 S.W.2d 831, 835 (Tex.1986); Strakos v. Gehring, 360 S.W.2d 787, 795-96 (Tex.1962) (recognizing that the law places upon a person who creates a dangerous condition on a public highway a duty to warn of the condition); see Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex.1997); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997).

      . In addition to the ordinary negligence elements of failure to use ordinary/reasonable care, proximate cause, and damage, premise defect elements include: (1) the existence of a condition that posed an unreasonable risk of harm; and (2) actual or constructive knowledge of the condition by the defendant. See Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex.1992). Because negligence and premise defect are independent theories of recovery, these additional elements cannot be deemed found where they have not been submitted in the jury charge. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997).

      . See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.1998); Clayton W. Williams, 952 S.W.2d at 529; Keetch, 845 S.W.2d at 264.

      . See Clayton W. Williams, 952 S.W.2d at 527, 529-30 (holding that a jury finding on negligent activity would not support a recovery for injury resulting from thread protectors left on the ground); Keetch, 845 S.W.2d at 264 (holding that a negligent activity theory would not support liability for a slippery condition previously created by spraying).
      Based on the comment to Pattern Jury Charge instruction 65.2, the dissent contends that a negligent activity charge was sufficient to support liability against Aero-ground in this regard because the additional Corbin elements apply only as against a possessor, owner, or occupier of land. The dissent thereby infers from this PJC comment that a different and lesser standard of care applies to defendants who create dangerous conditions on property they do not own than applies to defendants who own or control the premises on which dangerous conditions exist.
      This contention ignores the fundamental principle that negligence and premise defect are independent theories of recovery, rather than mere standards of care within a single theory that could differ among classes of defendants. In addition, it is refuted in that even a trespasser can be subject to liability for a condition he creates on land only if the Corbin elements are present, i.e., the condition poses an unreasonable risk of harm to others and the trespasser should recognize it as such. See Restatement (Second) of Torts § 381 (1965). Therefore, reading the comments to PJC 65.1 and 65.2 together, it is apparent that the PJC 65.2 instruction applies to the negligent activities of parties other than owners and occupiers who do not create the dangerous condition on the premises but whose concurrent negligent activity is also a cause of the injury for purposes of determining proportionate responsibility. However, as a practical matter, the lack of a premise defect submission in the charge had no actual effect on the outcome of the case because of the independent statutory duty to warn, discussed in the following section.

      . Unlike a premise defect theory, a negligence per se theory considers whether there is an unexcused violation of a statute without regard to other considerations bearing on the reasonableness of the defendant's conduct, such as whether there is an unreasonably dangerous condition or the defendant’s awareness of it. See, e.g., Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979).

      . See Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965).

      . See Excel Corp. v. Apodaca, 81 S.W.3d 817, 821-22 (Tex.2002) (holding evidence legally insufficient to prove that injury was caused by unsafe work practices where it failed to show that the injury would not have occurred if different practices had been followed); Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274-75 (Tex.2002) (holding evidence legally insufficient to prove that injury was caused by the lack of protective gear where it failed to show that injury would not have occurred if protective gear had been worn).

      . Thus, contrary to the dissent, there is no evidence to support an inference that Karen was startled by a sudden perceived danger.

      . Reinicke’s second issue challenges the exclusion of drug test evidence pertaining to Peavy's alleged negligence in creating the dangerous condition and/or failing to warn of it. Because of our conclusions that the charge does not support liability with regard to the condition, and there is no evidence of causation, we need not otherwise address the second issue.

      . Marathon, 106 S.W.3d at 729.

      . In holding that the trial court properly granted the defendant’s motion for summary judgment, the Court held Allbritton had not shown the proximate cause required to recover on her negligence claims, nor the producing cause required to recover on her strict liability claim. Union Pump, 898 S.W.2d at 774-76.

      . This court has followed this approach before. See Longoria v. Graham, 44 S.W.3d 671, 672 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (analyzing accident that occurred when plaintiffs car sideswiped a disabled car parked on the shoulder under general negligence principles and stating the dispositive issue was causation); see also State v. San Miguel, 981 S.W.2d 342, 344-45 (Tex.App.Houston [14th Dist.] 1998) (op. on reh'g), rev’d on other grounds, 2 S.W.3d 249 (Tex.1999) (finding trial court did not err in submitting general negligence, rather than premise defect, theory when case involved the placement of a barricade device along the side of a highway and rejecting the assertion that “the choice between a negligence and premises defect charge turns solely on whether the injury results from a contemporaneous human act or a condition of property”).


author: SANDEE BRYAN MARION, Justice.

text:
    George FLORES, Appellant, v. TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION for PAULA INSURANCE COMPANY, Impaired Insurer, Appellee.
    No. 04-04-00481-CV.
    Court of Appeals of Texas, San Antonio.
    March 30, 2005.
    Rehearing Overruled May 10, 2005.

      Kenneth W. Howell, San Antonio, for appellant.
    David L. Swanson, Stone Loughlin & Swanson, L.L.P., Austin, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s granting of appellee’s motion to dismiss appellant’s lawsuit for lack of jurisdiction. The underlying case is a worker’s compensation suit brought by appellant, George Flores, after the Texas Worker’s Compensation Commission (“the TWCC”) determined his claim was not a compensable claim. Appellee, Texas Property and Casualty Insurance Guaranty Association for Paula Insurance Company, Impaired Insurer, moved to dismiss the suit on the grounds that Flores did not file the suit within the time period required by Texas Labor Code section 410.252, and such failure resulted in the trial court’s lacking jurisdiction over the suit. On appeal, Flores argues that the requirements of section 410.252 are not jurisdictional in nature. Instead, he asserts section 410.252 is a statute of limitations and there is a fact issue on whether he filed suit after limitations had run. Section 410.252 provides that “[a] party may seek judicial review not later than the 40th day after the date on which the decision of the appeals panel was filed with the division.” Tex. Lab.Code Ann. § 410.252(a) (Vernon 1996). Because we conclude Flores timely-filed his petition, we reverse and remand.

MAILBOX RULE

The TWCC denied Flores’s claim on September 7, 2000. Accordingly, Flores was required to seek judicial review of the TWCC’s decision by October 17. See Tex. Lab.Code Ann. § 410.252(a). Flores filed suit in district court on October 19. Flores contends he timely-filed his petition because he met the requirements of Texas Rule of Civil Procedure 5, the so-called “mailbox rule.” See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 959 (Tex.1999) (applying mailbox rule to question of timely filing copy of petition with the TWCC under Labor Code section 410.253); see also National Liability & Fire Ins. Co. v. Allen, 972 S.W.2d 215, 220 (Tex.App.Beaumont 1998) (holding that “once a case is appealed to the district court, Rule 5 is applicable to both filing requirements under §§ 410.252 and 410.253.”), aff'd, 15 S.W.3d 525 (Tex.2000).

On appeal, the parties dispute the applicable standard of review. Arguing that section 410.252(a) is jurisdictional, ap-pellee asserts the standard of review applicable to a plea to the jurisdiction. Arguing that section 410.252(a) is a general statute of limitations, Flores asserts the standard of review applicable to a summary judgment. In the context of a plea to the jurisdiction, whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is a question of law. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). As subject matter jurisdiction presents a question of law, we review a trial court’s order on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). In the context of a summary judgment on the issue of limitations, we apply the same de novo standard of review on appeal. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Accordingly, whether the forty-day filing requirement of section 410.252(a) is jurisdictional or a statute of limitations, we review de novo the trial court’s determination that Flores did not timely file his lawsuit.

To establish he met the requirements of the mailbox rule, Flores submitted the affidavit of his attorney, Alan Tys-inger. In his affidavit, Tysinger stated as follows:

On October 17, 2000, I mailed the original petition ... to the addressee set forth below, by depositing a copy enclosed in a postpaid wrapper, certified mail, return receipt requested, in an official depository under the exclusive care and custody of the United States Postal Service, in San Antonio, Bexar County, Texas, addressed as follows: [the affidavit then states the name and address of the Uvalde County district clerk].

Appellee does not dispute any of the facts alleged in Tysinger’s affidavit. Instead, appellee first contends that because there is no cover letter that accompanied the petition or an envelope bearing a postmark in evidence, these deficiencies alone sustain the trial court’s determination. However, the Texas Supreme Court has held that, “[i]n the absence of a proper postmark or certificate of mailing, an attorney’s uncontroverted affidavit may be evidence of the date of mailing.” Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693-94 (Tex.1995).

Appellee next asserts Tysinger’s affidavit is insufficient because it does not state the location from which Tysinger mailed the petition, whether he mailed it before the last pick-up time for the mailbox, or the amount of postage on the envelope. Appellee also points to Flores’s response to interrogatories, in which he admitted counsel could not supply certain details regarding the mailing of the petition. Ap-pellee argues that because the affidavit is insufficient to meet the requirements of the mailbox rule, Flores did not timely file his petition. Appellee relies on Arnold v. Shuck, 24 S.W.3d 470 (Tex.App.-Texarkana 2000. pet. denied), for its assertion that this lack of evidence defeats application of the mailbox rule. In Arnold, the legal assistant’s affidavit merely stated that “she prepared the petition and personally mailed it to the clerk’s office ... [and] the transmittal letter accompanying the petition was dated April 7, 1999, and that the petition was mailed ‘postage prepaid, either April 7, 1999, or April 8, 1999.’ ” Id. at 472. Because the affidavit did not comply with each element of the mailbox rule, the Arnold court held that the appellant failed to raise a fact issue on summary judgment. Id. at 473. Therefore, the issue in Arnold was not whether certain missing information defeated application of the mailbox rule, rather, the issue was whether the information actually contained in the affidavit satisfied the rule.

The mailbox rule provides that a document is deemed timely filed if (1) it is sent to the proper clerk, (2) by first-class United States mail, (3) in a properly addressed and stamped envelope, (4) on or before the last day for filing, and (5) it is received not more than ten days tardily. Tex.R. Civ. P. 5. Tysinger’s affidavit states: (1) the petition was mailed to the clerk, (2) the petition was mailed by certified United States mail, postage prepaid, (3) the name and address of the clerk, and (4) the petition was mailed on October 17, the fortieth day. The petition bears a file-stamped date of October 19, indicating it was received not more than ten days late. These uncontroverted factual allegations satisfy each of the requirements of Rule 5, and Flores’s petition is deemed timely-filed. Therefore, the trial court erred in concluding Flores did not timely file his petition and, in doing so, erred in dismissing his suit.

CONCLUSION

We reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

      . In response to interrogatories, Flores stated as follows:
      In the over three years since the time the petition [was] mailed, Plaintiff's counsel's offices changed location, firm membership, and firm organization, as well as handled a large volume of literally hundreds of files. Because of these circumstances as well as the passage of time, Plaintiff's counsel does not have an independent recollection of the specific details inquired of. At the time of mailing, Plaintiff's counsel’s office address was 9514 Console Drive, Suite 100, San Antonio, Texas 78229. Counsel prepared and addressed the petition, and affixed the postage with a postage meter at this location. Counsel does not recollect whether he placed &e petition in the U.S. mailbox at the office location, but believes it more likely that it was placed in a mailbox at either the U.S. Postal Service main office ... or the Airport Mail Facility.... Counsel does not know or recollect the last time for mail pick-up at these latter locations three years ago, but believes it was at 9:00 p.m.
      [In response to a request that he identify the specific time the petition was placed in the official depository, counsel responded:] Plaintiff's counsel does not recollect the exact time, but believes it was before the last pick-up time.

      . Because we conclude the issue of whether Flores timely-filed his petition to be disposi-tive, we do not address Flores's remaining issue on whether the forty-day filing requirement in Labor Code section 410.252(a) is jurisdictional or a statute of limitations. See Tex.R.App. P. 47.1.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    Kevin S. SLOAN and Linnell L. Sloan, Appellants, v. OWNERS ASSOCIATION OF WESTFIELD, INC., Appellee.
    No. 04-04-00812-CV.
    Court of Appeals of Texas, San Antonio.
    May 4, 2005.

      Christopher J. Weber, William D. Crist, Kristine Arlitt, Law Office of Christopher J. Weber, L.L.C., San Antonio, for Appellants.
    Tom L. Newton, Jr., Audrey E. Manri-quez, Allen, Stein & Durbin, P.C., San Antonio, for Appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Kevin and Linnell Sloan appeal from the trial court’s order granting summary judgment in favor of the Owners Association of Westfield. We affirm the trial court’s judgment.

BACKGROUND

Kevin and Linnell Sloan are the record owners of real property located at 6935 Scenic Sunset in San Antonio, Bexar County, Texas. The property is located in Westfield Subdivision, Unit 1, which is subject to a “Declaration of Protective Covenants” that was initially executed on March 25, 1998, and properly recorded in the real property records of Bexar County, Texas. The Declaration includes the following provisions:

Article 19. Maintenance Association and Maintenance Charge
Each residential lot in the aforenamed subdivision is hereby made subject to an annual maintenance charge for the purpose of creating a subdivision maintenance and improvement fund, and a reserve fund....
A lien is hereby established on the lots subject to these restrictions to secure the payment of the maintenance charge established hereby, and all present and subsequent owners of said lots should convey such lots with an appropriate reference to the recordation of these restrictions in the Official Public Records of Real Property of Bexar County, Texas, together with a recitation that said lien has been retained against each lot for the benefit of the Association.
The aforesaid lien shall secure payment of the maintenance charge and all past-due interest which may accrue thereon, together with all reasonable expenses, costs, and attorney’s fees which may be incurred in connection with the collection thereof. Said lien shall run with the land and be a continuing charge on the land assessed, and shall also be a personal obligation of the owner(s) of each lot.
Article 22. Enforcement of Restrictions
The Board of Directors of the aforesaid Association, ... and/or the Association itself shall all have the right, power, and authority, ... to file suit for damages or for injunction, mandatory or prohibitory, to compel compliance with the provisions of these restrictions.... Also, ... the right to bring an action at law to foreclose the lien hereby established to secure the payment of the aforesaid maintenance charge if any lot owner fails to cure any such default within thirty (30) days after notice.

The Owners Association of Westfield assessed maintenance charges against the Sloans as owners of property in the West-field subdivision beginning January 1, 2001. The assessments were not paid, and after providing the Sloans with a written demand for the unpaid amounts, the Association brought suit on the debt on April 22, 2008 to recover the unpaid assessments plus costs, interest, and reasonable attorney’s fees. The Association then filed a motion for summary judgment which was granted by the trial judge. The court’s order granting summary judgment included the following findings: (1) the Sloans owe mature, unpaid assessments, late fees, and attorney’s fees to the Association pursuant to the Declaration; (2) the Association has a lien on the Sloans’ real property to secure the obligations of the Sloans; (3) the Association has met all conditions precedent to the granting of the relief requested; (4) the Association’s lien was created and imposed on the real property before that property acquired, or could have acquired, status as the homestead of the Sloans; and (5) the Association is entitled to foreclosure on its lien and an order of sale in execution.

The trial court entered judgment against the Sloans for actual damages in the amount of $1,172.82, attorney’s fees in the amount of $2,000, plus additional attorney’s fees on appeal, and pre-and post-judgment interest. The court further ordered that the Association’s lien be foreclosed and granted an order of sale. This appeal timely followed.

Standard of Review

We review a trial court’s grant of summary judgment de novo. Estate of Arlitt v. Paterson, 995 S.W.2d 713, 717 (Tex.App.-San Antonio 1999, pet. denied). We will uphold a traditional summary judgment only if the movant has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set out in the motion. Tex.R. Civ. P. 166a (c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 548-49. To prevail on its motion for summary judgment, the Association was required to establish the existence of a lien against the Sloans’ property to secure payment of the assessments, interest, expenses, and attorney’s fees; the Sloans’ failure to satisfy the obligation secured by the lien; and that the Association is entitled to a judgment on the debt and foreclosure of the lien against the Sloans’ property in satisfaction of the debt.

The Sloans do not dispute that they owed and failed to pay the past-due maintenance assessments; nor do they challenge the amount, reasonableness, or necessity of the attorney’s fees awarded. The only issue raised by the Sloans on appeal is whether a homeowner’s association can include contingent attorney’s fees in its hen against a homeowner’s homestead property for past-due assessments. The Sloans argue that foreclosure of the hen as security for attorney’s fees was improper because (1) the Association had not actually “incurred” any legal fees due to the contingent nature of their fee agreement with counsel; and (2) the homestead protection provided to property owners in the Texas Constitution prohibits foreclosure for such a debt. See Tex. Const, art. XVI, § 50. The Association contends it is entitled to recover reasonable and necessary attorney’s fees for legal services incurred due to the property owner’s failure to pay contractual assessments, regardless of the terms of the fee agreement between the Association and its counsel.

Contingent Fee Agreement

Restrictive covenants are subject to the same rules of construction and interpretation as contracts. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998); Dynamic Publ’g & Distrib. L.L.C. v. Unitec Indus. Ctr. Prop. Owners Ass’n, Inc., No. 04-04-00132-CV, 2005 WL 367327, at *3 (Tex.App.-San Antonio Feb.16, 2005, no pet. h.). Our primary concern in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. See Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Dynamic Publ’g, 2005 WL 367327, at *3. We liberally construe restrictive covenants to give effect to their purposes and intent. Tex. Peop.Code Ann. § 202.003(a) (Vernon 1995).

The Declaration provides that a hen is established to secure payment of assessed maintenance charges “together with all reasonable expenses, costs, and attorney’s fees which may be incurred in connection with the collection thereof.” The Sloans contend that because the Association had a contingent fee agreement with its counsel, the Association had not “incurred” any legal expenses for which the Sloans could be held accountable. However, this court has held that, in Texas, an attorney who provides legal services to a client under a contingent fee agreement has a contractual or quantum meruit claim against that client in the event of breach. Rocha v. Ahmad, 676 S.W.2d 149, 156 (Tex.App.San Antonio 1984, writ dism’d). Because the Association is liable to its counsel for services provided, even if provided on a contingent fee basis, and because the Association would be required to pay its counsel out of any proceeds received as a result of this litigation, we conclude the Association has “incurred” the legal fees that are secured by the lien in this case. Because the Sloans do not challenge the award of attorney’s fees on any other basis, we affirm the award.

In addition, the language of the Declaration is not ambiguous in this respect. It is clear from the Declaration itself that the parties intended the property owners to be accountable for attorney’s fees associated with the collection of unpaid assessments. The terms of the fee agreement between the Association and its counsel are irrelevant to the Association’s right to recover reasonable and necessary attorney’s fees from the homeowner. See Tex. Civ. PRAC. & Rem.Code Ann. § 38.001 (Vernon 1997) (“A person may recover reasonable attorney’s fees ... if the claim is for: ... (8) an oral or written contract.”); Tex. Prop.Code Ann. § 5.006(a) (Vernon 2004) (“In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim.”). There is no assertion that the attorney’s fees requested or awarded in this case were unreasonable or unnecessary, only that they were not “incurred.” Without more, the fact that attorney’s fees are based on a contingent fee agreement does not in itself make the fees requested or awarded unreasonable. See City of Dallas v. Arnett, 762 S.W.2d 942, 957 (Tex.App.-Dallas 1988, writ denied). Because the Sloans do not challenge the award of attorney’s fees on any other basis, both the award and the amount of attorney’s fees are affirmed.

Homestead Protection

The Sloans farther contend that the homestead protection provided in the Texas Constitution prohibits foreclosure for debts such as the attorney’s fees involved here. This issue has been addressed by the Texas Supreme Court in the cases of Inwood North Homeowners’ Association, Inc. v. Harris and Brooks v. Northglen Association. See Brooks v. Northglen Assoc., 141 S.W.3d 158 (Tex.2004); Inwood N. Homeowners’ Assoc. v. Harris, 736 S.W.2d 632 (Tex.1987). In Harris, the Court acknowledged the general rule that a homestead is protected against the debts of those who live in the homestead. Harris, 736 S.W.2d at 634. Foreclosure of a person’s homestead may only be sought for certain types of debt specifically delineated in the constitution. Tex. Const, art. XVI, § 50. However, the Court in Harris went on to hold that, “when the property has not become a homestead at the execution of the ... hen, the homestead protections have no application even if the property later becomes a homestead.” Harris, 736 S.W.2d at 635. Consequently, “if the hen attached prior to the claimed homestead right and the hen is an obhgation that runs with the land, there would be a right to foreclose.” Id.

In a more recent case, the court reaffirmed the reasoning in Harris by holding that an association may not foreclose on property for the non-payment of late charges when the late charges were not part of the original deed restrictions. Brooks, 141 S.W.3d at 171. In Brooks, after the initial deed restrictions had been recorded and the property had become residential homestead property, the association amended the deed restrictions to add the authority to assess late fees on unpaid assessments in addition to interest charges. Id. at 160-61. The Supreme Court agreed that the association could expand its authority to include assessing late fees for unpaid assessments, however, the court concluded that foreclosure was not an appropriate remedy for failure to pay late charges because the original deed restrictions did not provide notice that late charges would also be secured by the lien on the property. Id. at 170-71.

Here, as in Hams, the lien against the property was established years before the Sloans took possession and established their homestead rights in the property. The Declaration contains a valid contractual lien which runs with the land and of which the Sloans had notice when they purchased the property. Therefore, the Sloans are subject to the hen and an order of foreclosure is proper. Harris, 736 S.W.2d at 635-36. While Harris did not specifically address the property owners’ obligation for attorney’s fees, as is the issue in this case, the Court focused on the existence of the lien prior to the homestead right being established, and on the property owners’ notice of the lien and the obligations it was intended to secure. Because all of the obligations intended to be secured by the lien in this case were included in the original Declaration, and because the Sloans had notice of both the obligations and the existence of the lien at the time they purchased the property, we conclude that foreclosure is available to the Association as a remedy. Id. at 635.

Conclusion

Because the Association established through summary judgment evidence the existence of a lien; the Sloans’ failure to satisfy the obligations secured by the lien; and the Association’s entitlement to a judgment on the debt and foreclosure of the lien in satisfaction of the debt, the trial court’s summary judgment in favor of the Association was proper. Accordingly, the Sloans’ sole issue on appeal is overruled and the trial court’s judgment affirmed.

      . The Sloans' property actually became subject to the Declaration pursuant to an Annexation Declaration executed and properly recorded on Januaiy 29, 1999, which included terms identical to those in the original declaration but covered additional property.

      . Incur is defined as, “to suffer or bring on one self (a liability or expense).” Black's Law Dictionary 782 (8th ed.2004).

      . The Texas Constitution enumerates eight exceptions to homestead protection from forced sale, including: (1) purchase money security; (2) taxes due on the homestead; (3) certain owelty on partition; (4) refinancing of certain liens; (5) security for improvements; (6) certain extensions of credit in the nature of an equity loan; (7) reverse mortgages; and (8) special financing concerning manufactured homes. See Tex Const, art XVI, § 50(a)(l)-(8).

      . The record establishes that the amended Declaration covering the property in question was executed and recorded in January 1999 during planning for development of the subdivision. The Sloans apparently did not take possession and become subject to assessments by the Association until January 2001.

      . “In Texas, a covenant runs with the land when it touches and concerns the land; relates to a thing in existence or specifically binds the parties and their assigns; is intended by the original parties to run with the land; and when the successor to the burden has notice.” Harris, 736 S.W.2d at 635. The Declaration and covenants involved here satisfy the requirements of a covenant running with the land. See id.