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    FORT BEND COUNTY TOLL ROAD AUTHORITY, Appellant v. Zuleima OLIVARES, Individually and as the Representative of the Estate of Pedro Olivares, Jr., and Pedro Olivares, Individually, Appellees.
    No. 14-09-00161-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 15, 2010.

      Patricia L. Hayden, John J. Hightower, Houston, for appellee.
    Michael Scott Beckelman, Rick Molina, Frank E. Sanders, Houston, Randall W. Morse, Richmond, Richard Alan Mason, Austin, for appellees.
    Panel consists of Chief Justice HEDGES, Justice SEYMORE, and Senior Justice HUDSON.

       Senior Justice J. Harvey Hudson sitting by assignment.

   OPINION

CHARLES W. SEYMORE, Justice.

Fort Bend County Toll Road Authority (“FBCTRA”) presents this accelerated appeal from the trial court’s denial of its plea to the jurisdiction. In its plea, FBCTRA challenged the trial court’s subject-matter jurisdiction over claims brought by Zulei-ma Olivares, individually and as representative of the estate of Pedro Olivares, Jr., and Pedro Olivares (collectively, “appel-lees”).

FBCTRA argues the trial court erred in denying its plea because appellees have not stated claims for which FBCTRA’s governmental immunity is waived. In a separate appeal, Texas Department of Transportation (“TxDOT”), FBCTRA’s co-defendant in the underlying lawsuit, also challenges the trial court’s denial of its plea to the jurisdiction. For reasons outlined below, we reverse and remand in part and reverse and render in part.

I. BACKGROUND

On January 1, 2007, Pedro Olivares, Jr. and his wife were traveling westbound on the Westpark Tollway (“Tollway”) near Dairy Ashford Road in Harris County when they were struck by a vehicle driven by Michael Ladson. According to appel-lees, Ladson was traveling on the Tollway in the wrong direction after entering the westbound lanes near Gaston Road in Fort Bend County, approximately eight and one-half miles from the accident scene. Gaston Road intersects with FM 1093, a state road controlled by TxDOT, which merges into the Tollway. Pedro Olivares, Jr. sustained severe bodily injuries resulting in death.

In their second amended petition, appel-lees assert claims against FBCTRA, Fort Bend County, Harris County, Harris County Toll Road Authority (“HCTRA”), TxDOT, Brown and Gay Engineers, Inc., and Michael Stone Enterprises, Inc. The Estate of Michael Ladson has been designated as a responsible third party. Appel-lees allege FBCTRA is liable for certain premise defects and negligent acts or omissions involving the intersection at FM 1093-Gaston Road and the Tollway. Ap-pellees also contend FBCTRA is liable under a joint enterprise theory.

FBCTRA filed a plea to the jurisdiction. Appellees then filed their first amended petition and a response to FBCTRA’s plea. Subsequently, FBCTRA filed a supplemental plea. Following the hearing on FBCTRA’s plea, appellees filed their second amended petition and a supplemental response to FBCTRA’s plea. FBCTRA then filed a second supplement to its plea. On January 28, 2009, the trial court signed an order denying FBCTRA’s plea. FBCTRA now appeals the trial court’s denial of its plea to the jurisdiction.

II. INTERLOCUTORY APPEAL AND STANDARD OF REVIEW

We have statutorily-conferred authority to review the trial court’s interlocutory order denying FBCTRA’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008) (A party may appeal an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit....”). Appellate courts strictly construe statutes authorizing interlocutory appeals. See State v. Fiesta Mart, Inc., 233 S.W.3d 50, 54 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Subsection 51.014(a)(8) authorizes an appeal only when the trial court grants or denies a plea to the jurisdiction. An appellate court must consider challenges to the trial court’s subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were presented to or determined by the trial court. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-51 (Tex.2000).

We review the trial court’s ruling on a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004). In a plea to the jurisdiction, a party may challenge either the pleadings or existence of jurisdictional facts. Id. at 226-27; see also Rebecca Simmons & Suzette Kinder Patton, Plea to the Jurisdiction: Defining the Undefined, 40 St. Mary’s L.J. 627, 651-52 (2009).

When a defendant challenges the plaintiffs pleadings, the court’s determination turns on whether the pleader has alleged facts sufficient to demonstrate subject-matter jurisdiction. Miranda, 133 S.W.3d at 226. To make this determination, courts should glean the pleader’s intent and construe the pleadings liberally in favor of jurisdiction. Id. If the pleadings do not contain facts sufficient to affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and plaintiffs should be afforded an opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate jurisdiction, a plea may be granted without allowing plaintiffs an opportunity to amend. Id. at 227. The opportunity to amend pleadings that are insufficient to establish, but do not affirmatively negate, jurisdiction arises after a court determines the pleadings are insufficient. White v. Robinson, 260 S.W.3d 463, 475-76 (Tex.App.-Houston [14th Dist.] 2008, pet. granted) (citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex.2007)).

When a defendant challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227. We take as true all evidence favorable to the nonmov-ant and indulge every reasonable inference and resolve any doubts arising from such evidence in the nonmovant’s favor. Id. at 228. If the relevant evidence is undisputed or a fact question is not raised relative to the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea, and the fact issue will be resolved by the fact finder. Id. at 227-28.

When resolution of an issue requires interpretation of a statute, we review under a de novo standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). In construing a statute, our objective is to determine and give effect to the legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the legislature selected and should not refer to extraneous matters for intent not expressed in the statute. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997).

III. ANALYSIS

FBCTRA contends the trial court lacks jurisdiction over appellees’ claims because they cannot demonstrate that FBCTRA’s governmental immunity has been waived. Disposition of whether immunity has been waived is governed by the Texas Tort Claims Act (“TTCA”). See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp. 2009).

A. Texas Tort Claims Act

Under our common law, sovereign or governmental immunity defeat a trial court’s subject-matter jurisdiction. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004). The TTCA provides a limited waiver of immunity for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005). For premise-defect claims, the governmental unit generally “owes to the claimant only the duty that a private person owes to a licensee,” unless the claim involves special defects or “the duty to warn of the absence, condition, or malfunction of [traffic-control devices] as is required by Section 101.060.” Id. § 101.022(a), (b) (Vernon 2005 & Supp. 2009).

However, there are certain exceptions to waiver of immunity under the TTCA. There is no waiver when a claim arises from

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Id. § 101.056 (Vernon 2005). “In other words, the State remains immune from suits arising from its discretionary acts and omissions.” Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex.2002). Similarly, under subsection 101.060(a), the TTCA does not waive immunity as to claims arising from

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;
(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice[.]

Tex. Civ. Prac. & Rem.Code Ann. § 101.060(a)(l)(2) (Vernon 2005). “Under subsection (a)(1), the State retains immunity for discretionary sign-placement decisions.” State ex rel. State Dep’t of Highways and Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326-27 (Tex.2002). “Under subsection (a)(2), the State retains immunity as long as it corrects a sign’s defective [condition, absence, or malfunction] within a reasonable time after notice.” Id.

B. Claims Based on Traffic-Control Devices

FBCTRA first challenges appellees’ claims concerning placement, maintenance, and quality of traffic-control devices at or around the FM 1093-Gaston Road intersection. FBCTRA generally argues that these allegations involve exercise of discretion for which immunity is not waived under the TTCA.

1. Failure to Install Traffic-Control Devices

FBCTRA challenges for the first time on appeal appellees’ allegation that it failed to install “non-discretionary” signs and devices after receiving “notice” that such signs and devices were necessary. FBCTRA argues these claims are barred because they pertain solely to discretionary acts. FBCTRA also challenges appel-lees’ allegations that it designed but failed to install warning flashers and cameras intended to monitor traffic for safety.

In City of Grapevine v. Sipes, the Texas Supreme Court considered whether a city’s failure to install a traffic signal, after deciding to do so, fell under the portion of subsection 101.060(a)(2) allowing claims to be brought under the TTCA when the absence of a traffic-control device is not remedied within a reasonable time after notice. 195 S.W.3d 689, 692-95 (Tex.2006). Construing subsection 101.060(a)(2) in light of subsection 101.060(a)(1), the court concluded that timing of implementation is discretionary:

When the City first installs a traffic signal is no less discretionary than whether to install it. The timing of implementation could be affected by the governmental unit’s balancing of funding priorities, scheduling, traffic patterns, or other matters; to impose liability for the failure to timely implement a discretionary decision could penalize a governmental unit for engaging in prudent planning and paralyze it from making safety-related decisions. This sort of planning and execution is precisely the type of discretionary act for which the TTCA retains immunity. Thus, when subsections (a)(1) and (a)(2) are read together, (a)(2) logically applies only to those traffic signals that have already been installed.

Id. at 694. Therefore, FBCTRA retained discretion regarding when to install the warning flashers. Although section 101.060 applies only to signs, signals, and warning devices, this rationale likewise applies to FBCTRA’s decision regarding when to install the planned traffic-monitoring cameras because a governmental unit’s plans regarding the safety features of a roadway are discretionary. See State v. San Miguel, 2 S.W.3d 249, 251 (Tex.1999) (per curiam) (interpreting section 101.056).

In their pleadings, appellees do not specify the reason or reasons why FBCTRA failed to install these devices. Consequently, appellees’ pleadings do not affirmatively demonstrate the trial court’s jurisdiction over these claims. However, the allegations under consideration do not affirmatively demonstrate incurable defects in the court’s jurisdiction. Specifically, it is unclear whether FBCTRA’s conduct involved negligent implementation of a discretionary policy decision (e.g., construction workers negligently overlooked that construction plans ordered installation of the devices on a certain date), for which immunity is waived under the TTCA, or a discretionary policy decision (e.g., a decision to postpone installation or the failure to set an installation date), for which immunity is not waived. We also cannot discern whether appellees are alleging that the absence of these items caused a premise defect or simply failed to warn of an existing defect or make it reasonably safe. A plaintiff is entitled to an opportunity to amend if additional facts can overcome the governmental entity’s immunity from suit. See Miranda, 133 S.W.3d at 226-27; Ko-seoglu, 233 S.W.3d at 840. Accordingly, we reverse the trial court’s denial of FBCTRA’s plea and remand for the trial court to allow appellees a reasonable opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226-27; see also Koseoglu, 233 S.W.3d at 839^40.

Finally, appellees’ petition does not affirmatively demonstrate the trial court’s jurisdiction over their claim that FBCTRA failed to install “non-discretionary” signs and devices after receiving notice such signs and devices were necessary. Appel-lees have not alleged facts and circumstances rendering installation of the signs and devices “non-discretionary.” Although we construe pleadings liberally in favor of jurisdiction, we refuse to allow appellees to avoid the general rule that traffic-control device placement is a discretionary governmental function by merely describing the act or omission to be “non-discretionary.” Therefore, we reverse the trial court’s order relative to this claim and remand for further proceedings after the trial court allows a reasonable opportunity for appellees to amend their pleadings. See Miranda, 133 S.W.3d at 226-27; see also Koseoglu, 233 S.W.3d at 839-40.

2. Traffic-Control Device Deficiencies

FBCTRA also contends its immunity is not waived relative to appellees’ claims based on certain traffic-control devices that “allow” motorists to travel in the wrong direction. In their petition, appel-lees allege the Tollway/FM 1093 area near Gaston Road has confusing or misleading signs, signals, and warning devices, inadequate barricades, and insufficient traffic control. As a subset of this claim, appel-lees allege FBCTRA negligently placed warning signs on the wrong side of the road at or near the intersection. Appel-lees allege these deficiencies constitute negligent implementation of FBCTRA’s policy to operate FM 1093 and the Tollway safely. Appellees also argue that placement of warning signs on the wrong side of the road resulted in a condition under subsection 101.060(a)(2).

It is well established that a governmental unit is not immune from liability for an injury caused by a premise defect that was created through negligent implementation of policy. See Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 465-66 (Tex.App.Fort Worth 2001, pet. denied). A governmental unit’s negligence in implementing a formulated policy, such as negligently constructing a designed gabion wall, is not a discretionary function. See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), affd, 870 S.W.2d 21 (Tex.1994). “[S]overeign immunity is preserved for the negligent discretionary formulation of policy, but not for the negligent implementation of the policy at the [operational/ministerial] level.” Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002, no pet.). Further, a governmental unit does not relinquish its discretion relative to roadway design by implementing a general policy to operate roads safely. See Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex.App.-Fort Worth 1989, writ denied) (holding State’s alleged policy to “warn of danger” did “not make the State liable for all possible failures to warn. The State may still make specific policy decisions about the design of State projects ....”), overruled on other grounds by City of Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex.1994). In other words, a general policy to build safe roads does not expose a governmental unit to liability for every conceivable safety deficiency under a negligent implementation of policy theory of recovery.

A “condition” under subsection 101.060(a)(2) is defined as “something ‘wrong’ with the traffic sign or signal such that it would require correction by the State after notice.” Garza, 70 S.W.3d at 807; see also Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex.1975) (defining “condition” as “either an intentional or an inadvertent state of being”). The term also “refers to the maintenance of a sign or signal in a condition sufficient to properly perform the function of traffic control for which it is relied upon by the traveling public.” Lawson v. McDonald’s Estate, 524 S.W.2d 351, 356 (Tex.Civ.App.-Waco 1975, writ ref d n.r.e.). “[I]n the cases in which [the supreme court] has interpreted ‘condition’ in the context of road signs and signals, [it has] found a waiver of immunity only in those situations in which the sign or signal was either (1) unable to convey the intended traffic control information, or (2) conveyed traffic control information other than what was intended.” Garza, 70 S.W.3d at 807; see also Gonzalez, 82 S.W.3d at 327 (“[S]ubsection [101.060](a)(2) requires the State to maintain traffic signs in a condition sufficient to perform their intended traffic-control function.”).

Appellees’ contention that confusing and misleading signs, signals, and warning devices, inadequate barricades, and insufficient traffic control “allow” drivers to enter the Tollway in the wrong direction implicates the adequacy of devices chosen by FBCTRA, a discretionary design decision for which immunity is not waived. See San Miguel, 2 S.W.3d at 251 (“A court should not second-guess a governmental unit’s decision about the type of marker or safety device that is most appropriate.”); Tex. Dept of Transp. v. Bederka, 36 S.W.3d 266, 271 (Tex.App.-Beaumont 2001, no pet.) (“Department enjoys immunity from suit regarding its decision to place a particular traffic control signal, even if the signal fails to make the premises safe. The selection of the device employed is not its condition.”), overruled on other grounds by Sipes, 195 S.W.3d 689.

Next, appellees’ allegation that warning signs were negligently placed on the wrong side of the road implicates FBCTRA’s decision relative to the location of the signs, another discretionary decision. See Gonzalez, 82 S.W.3d at 326-27 (explaining that State retains immunity for its decision relative to “where” signs should be located); Johnson v. Tex. Dep’t of Transp., 905 S.W.2d 394, 398 (Tex.App.-Austin 1995, no writ) (holding that location of where to place sign is a discretionary design decision). Appellees allege “[t]his negligent placement caused a failure to [warn] motorist[s] that they may be going in the wrong direction.” They argue that FBCTRA failed to maintain the signs “in a condition sufficient to properly perform the function of traffic control for which [they are] relied upon by the traveling public” because the signs were on the wrong side of the road. City of Midland v. Sullivan, 33 S.W.3d 1, 12 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.). Apparently, appellees contend that location of the warning signs was a “condition” of signs under subsection 101.060(a)(2) which prevented or hindered the signs from being seen by motorists.

A “condition” under subsection 101.060(a)(2) has been held to arise when a sign is “unable to convey the intended traffic control information.” Garza, 70 5.W.3d at 807 (citing Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex.1982) (holding that a “stop sign’s obstruction from view by trees or branches is a ‘condition’ of that sign.... ”)). Appellees, however, allege that the signs failed to warn motorists because of the location of the signs. Ap-pellees do not cite any authority supporting their contention that location of a sign as chosen by a governmental entity amounts to a wrongful “condition” of the sign pursuant to subsection 101.060(a)(2), and we decline to so broaden the meaning of “condition.” See Johnson, 905 S.W.2d at 398 (“If a motorist’s claim that a sign is difficult to see were sufficient to call into question ... design discretion, virtually any challenge to the placement of a traffic sign would suffice to preclude summary judgment on sovereign immunity grounds and subject the ... engineering design in this limited area to a jury’s review... .”). “[W]hen traffic engineers decide where to place warning signs around a detour, the State retains its immunity.” Gonzalez, 82 S.W.3d at 326-27.

We also reject appellees’ argument that FBCTRA failed to maintain the signs in a condition sufficient to perform their intended function. “[Mjaintenance involves preservation of a highway as it was designed and constructed.” Siders v. State, 970 S.W.2d 189, 193 (Tex.App.-Dallas 1998, pet. denied) (emphasis added). If the signs were located as designed, FBCTRA did not fail to maintain the signs by failing to relocate them.

Appellees argue FBCTRA did not exercise discretion in installing the subject traffic-control devices because defendant Brown & Gay Engineers, Inc. drafted construction plans for the intersection which FBCTRA simply implemented. Appellees do not cite any authority for the proposition that a governmental entity loses its discretion relative to design of a roadway when it constructs the roadway pursuant to an outside engineer’s design. In such a situation, the governmental entity necessarily exercises its discretion to approve and adopt the design when it constructs the roadway pursuant to the design. Therefore, appellees’ argument is unpersuasive.

Finally, appellees cannot avoid the discretionary-function exception to waiver of immunity by claiming that FBCTRA failed to implement its policy to operate a safe road because of the confusing and misleading traffic-control devices; a general safety policy does not vitiate a governmental unit’s discretion in roadway design. See Crossland, 781 S.W.2d at 433.

Accordingly, appellees’ pleadings do not affirmatively demonstrate jurisdiction over these claims. However, the same pleadings do not affirmatively negate the trial court’s jurisdiction over these claims; ap-pellees do not specify whether the traffic-control devices were inadequate, or the warning signs were negligently located, because of FBCTRA’s negligent implementation of the construction plans. Consequently, we reverse the trial court’s order denying FBCTRA’s plea relative to this claim, but remand for further proceedings after the trial court allows appellees a reasonable opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226-27; see also Koseoglu, 233 S.W.3d at 839-40.

3. Duty to Maintain Pavement Markers

FBCTRA next challenges appel-lees’ claim that pavement markers on FM 1093 were in a condition of disrepair at the time of the accident such that they failed to warn motorists they were traveling in the wrong direction. FBCTRA contends it was not responsible for maintenance of the pavement markers.

“[A] premises-liability defendant may be held liable for a dangerous condition on the property if it ‘assum[ed] control over and responsibility for the premises,’ even if it did not own or physically occupy the property.” County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002) (quoting City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex.1986)). “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.” Id.

FBCTRA refers to the “Project Maintenance” section of the agreement between it and TxDOT (“TxDOT-FBCTRA agreement”), in which it is expressed that TxDOT is to maintain pavement markers on FM 1093 upon completion of the Fort Bend County Tollway project. However, FBCTRA did not present any evidence that the project was in the post-completion stage at the time of the accident. Thus, indulging every reasonable inference and resolving all doubts in appellees’ favor, FBCTRA has not conclusively established that it had no maintenance responsibilities relative to the pavement markers.

However, this conclusion does not end our review of appellees’ pavement markers claim because we are obliged to ascertain the existence of subject-matter jurisdiction. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenkiser, 140 S.W.3d 351, 358 (Tex.2004), superseded by statute on other grounds, Tex. Gov’t Code Ann. § 311.034 (Vernon 2005). We identify sua sponte a pleading deficiency relative to appellees’ claim concerning the condition of the pavement markers.

Appellees allege the “pavement markers were in a condition to insufficiently perform their traffic control function....” As such, the claim concerns the condition of a traffic-safety device and, thus, falls under the provisions of subsection 101.060(a)(2). Tex. Civ. Prac. & Rem.Code Ann. § 101.060(a)(2); see also Sullivan, 33 S.W.3d at 11 (explaining that complaint regarding condition of pavement markers falls under subsection 101.060(a)(2)). To affirmatively demonstrate the trial court’s jurisdiction, appellees must allege “the condition of [the pavement markers] [was] not corrected by the responsible governmental unit within a reasonable time after noticef.]” Tex. Civ. Prac. & Rem.Code Ann. § 101.060(a)(2). This notice can be either actual or constructive. See City of Austin v. Lamas, 160 S.W.3d 97, 101-03 (Tex.App.-Austin 2004, no pet.); Robnett v. City of Big Spring, 26 S.W.3d 535, 538 (Tex.App.-Eastland 2000, no pet.). Such an allegation is absent from appellees’ pleadings. Accordingly, we remand for further proceedings after the trial court allows appellees a reasonable opportunity to amend their pleadings pertaining to the condition of pavement markers. See Miranda, 133 S.W.3d at 226-27; see also Koseoglu, 233 S.W.3d at 839-40.

C. Negligent Implementation of Policy to Operate Tollway Safely

We next consider FBCTRA’s challenge to appellees’ negligent-implementation claims relative to the Tollway. As stated supra, a governmental unit is not immune from suit for negligent implementation of policy, such as negligent construction or maintenance. See Mitchell, 855 S.W.2d at 745.

Appellees allege all defendants agreed “to manage, regulate, oversee, construct, maintain, and operate ... the [T]ollway safely,” and “formulated a policy to monitor the [T]ollway entrances and exits to prevent wrong-way traffic and unauthorized vehicles on the [T]ollway.” According to appellees, this policy was negligently implemented because the Tollway was constructed with minimal road shoulders and without traditional tollbooths and toll plazas from which wrong-way drivers could be detected by law-enforcement personnel and other persons.

We once again note that FBCTRA’s discretion for roadway design was not limited by any general policy to operate the Tollway safely. See Crossland, 781 S.W.2d at 433. Appellees also specifically allege that FBCTRA made a policy decision to monitor all Tollway entrances for wrong-way drivers. Nevertheless, FBCTRA had discretion in choosing how to monitor the Tollway, and it is unclear whether appel-lees are alleging that the absence of traditional toll booths and toll plazas caused a premise defect or simply failed to warn of an existing defect or make it reasonably safe. It is also unclear whether the failure to construct wider road shoulders resulted from discretionary formulation of policy or negligent implementation of policy. See Siders, 970 S.W.2d at 193 (emphasizing that negligent implementation claim fails because road was constructed as designed). Accordingly, we remand for the trial court to allow appellees a reasonable opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226-27; see also Koseoglu, 233 S.W.3d at 839-40.

D. Joint Enterprise

Finally, we consider FBCTRA’s arguments relative to appellees’ joint-enterprise theory of liability.

An essential element of joint enterprise is an agreement, express or implied, among the group members. Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 222 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Joint enterprise is not an independent basis for waiver of immunity, but may result in waiver of immunity under the TTCA where a governmental entity would be liable for another’s negligence if the governmental entity were a private person. Id. at 218-19 (quoting Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 613 (Tex.2000)).

Appellees allege that FBCTRA, HCTRA, Fort Bend County, Harris County, TxDOT, and Michael Stone Enterprises “had an express or implied agreement to [construct,] develop, operate, and maintain the Westpark Tollway.” In the statement of facts section of its brief, FBCTRA expresses, “The evidence demonstrated that there were two agreements pertaining to the Tollway: an agreement between Harris County and Fort Bend County [“Counties’ agreement”] ...; and [the TxDOT-FBCTRA agreement.]” We assume this statement is true because appellees do not contradict its validity or accuracy. See Tex.R.App. P. 38.1(g); see also Parker v. Walton, 233 S.W.3d 535, 537 n. 1 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

As an initial matter, FBCTRA asserts that it is not a party to the Counties’ agreement. We agree and thus hold that the Counties’ agreement does not support a claim of joint-enterprise liability against FBCTRA. Thus, we turn our attention to the TxDOT-FBCTRA agreement.

FBCTRA argues that the TxDOT-FBCTRA agreement cannot support a joint-enterprise theory of liability because such a theory is proscribed under section 271.160 of the Local Government Code. Section 271.160 provides, “A contract entered into by a local government entity is not a joint enterprise for liability purposes.” Tex. Loe. Gov.Code Ann. § 271.160 (Vernon 2005).

Appellees argue section 271.160 does not apply to FBCTRA because “toll road authority” is not mentioned in the definition of “local governmental entity.”

“Local government entity” is defined in relevant part as a

political subdivision of this state, other than a county or unit of state government, as that term is defined by Section 2260.001, Government Code, including a:
(C) special-purpose district or authority, including any 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, emergency service organization, and river authority.

Id. § 271.151(3)(C) (Vernon 2005). Apparently, appellees contend this definition is exclusive. However, “ ‘[i]ncludes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.” Tex. Gov’t Code Ann. § 311.005(13) (Vernon 2005); see also House of Yahweh v. Johnson, 289 S.W.3d 345, 351 (Tex.App.-Eastland 2009, no pet.). Therefore, the absence of “toll road authority” from the enumerated entities in subsection 271.151(3) does not preclude FBCTRA from being a local government entity.

FBCTRA presented with its plea an order by the County Commissioners Court of Fort Bend County approving the creation of FBCTRA, a “local government corporation.” A local government corporation is a “governmental unit” as that term is used in the TTCA, and its operations “are governmental, not proprietary, functions.” Tex. Transp. Code Ann. § 431.108 (Vernon 2007). “A local government corporation may be created to aid and act on behalf of one or more local governments to accomplish any governmental purpose of those local governments.” Id. § 431.101(a) (Vernon Supp. 2009). A local government corporation has the powers to promote and develop transportation facilities. See Tex. Transp. Code Ann. §§ 431.062(b) (Vernon 2007), .101(b) (Vernon Supp. 2009).

As a local government corporation, FBCTRA acts on behalf of Fort Bend County. See Tex. Transp. Code Ann. § 431.003(4) (Vernon 2007). However, by providing that local-government corporations are “governmental units” performing governmental functions, and by imbuing them with “nature, purposes, and powers,” it is clear the legislature intended such corporations to be separate and discrete political subdivisions from those they act on behalf of and aid. See Ben Bolt-Palito Blanco Consol Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 325-26 (Tex.2006). In Ben Bolt, the supreme court recognized that “[t]he only entities expressly excluded from [the definition of local-government entity under subsection 271.151(2) ] are counties and units of state government_” Id. at 328. FBCTRA is a political subdivision of the state, but is neither a unit of state government nor a county. Hence, FBCTRA is a local-government entity as defined in subsection 271.151(3) and is entitled to the protections of section 271.160.

Appellees also argue that section 271.160 is not applicable because the TxDOT-FBCTRA agreement does not comport with the definition of a contract as used in subchapter I of the Local Government Code. In subchapter I, the phrase “Contract subject to this subchapter” is defined as “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity....” Id. at § 271.151(2) (Vernon 2005). The phrase “contract subject to this subchapter” is used in several sections of subchapter I. See id. §§ 271.152, .154 (Vernon 2005), .153 (Vernon Supp. 2009). However, the legislature selected the word “contract,” as opposed to the phrase “contract subject to this subchapter,” when it drafted section 271.160. Construing the term “contract” according to its common usage, it is clear the legislature intended section 271.160 to refer to any contract entered into by a local governmental entity. See Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). We hold section 271.160 refers to any contract entered into by a local-government entity. Therefore, the TxDOT-FBCTRA agreement does not subject FBCTRA to joint-enterprise liability. Accordingly, the trial court’s denial of FBCTRA’s plea is reversed and we dismiss appellees’ claim of joint-enterprise liability against FBCTRA for want of jurisdiction. See Miranda, 133 S.W.3d at 228.

IY. CONCLUSION

We reverse the trial court’s order denying FBCTRA’s plea and remand for further proceedings after the trial court allows appellees a reasonable opportunity to amend their pleadings relative to the following claims:

• Premise defect resulting from failing to install warning flashers, cameras, and non-discretionary signs;
• Premise defect resulting from inadequate barricades, insufficient traffic control, and signs placed on the wrong side of the road;
• Premise defect resulting from deficient condition of pavement markers; and
• Premise defect for constructing Tollway with minimal shoulders and without traditional tollbooths and toll plazas.

We reverse that portion of the trial court’s order denying FBCTRA’s plea challenging appellees’ claim of joint-enterprise liability against FBCTRA and render judgment dismissing this claim for want of jurisdiction.

HUDSON, J., dissenting.

J. HARVEY HUDSON, Senior Justice,

dissenting.

We have this same day issued a majority and dissenting opinion in the companion case of Texas Department of Transportation v. Zuleima Olivares, et al., 316 S.W.3d 89, (Tex.App.Houston [14th Dist.] 2010). For the same reasons articulated in my dissenting opinion in that case, I cannot join my colleagues in this case. Accordingly, I must respectfully dissent.

      . In previous panel decisions from this court, we expressed that an appellate court does not have jurisdiction on interlocutory appeal to address grounds not asserted in the underlying plea to the jurisdiction. See Galveston Indep. Sch. Dist. v. Jaco, 278 S.W.3d 477, 479 n. 2 (Tex.App.-Houston [14th Dist.] 2009), rev'd on other grounds, 303 S.W.3d 699 (per curiam); State v. Clear Channel Outdoor, Inc., No. 14-07-00369-CV, 2008 WL 2986392, at *3 (Tex.App.-Houston [14th Dist.] July 31, 2008, no pet.); Clear Lake City Water Auth. v. Friendswood Dev. Co., 256 S.W.3d 735, 747 n. 14 (Tex.App.-Houston [14th Dist.] 2008, pet. dism’d); Prairie View A & M Univ. v. Dickens, 243 S.W.3d 732, 736 (Tex.App.-Houston [14lh Dist.] 2007, no pet.); Brenham Pious. Auth. v. Davies, 158 S.W.3d 53, 61 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
      We are not bound by these opinions because the Gibson decision is directly on point. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex.App.Houston [14th Dist.] 2010, no pet. h.) ("[A]b-sent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision ..., this court is bound by the prior holding of another panel of this court.").

      . "Negligent implementation" within the context of a claim under the TTCA is discussed in greater depth infra.

      . To the extent appellees allege that the lack of traffic-monitoring cameras caused a dangerous condition because there were no people monitoring the roadway, they fail to allege a premise-defect claim under the TTCA. Such a "condition” concerns the activity of people, not the condition of the roadway itself. See Tex. Parks & Wildlife Dep't v. Garrett Place, Inc., 972 S.W.2d 140, 144 (Tex.App.Dallas 1998, no pet.).

      .To the extent appellees allege the signs were "non-discretionary” because they were required by the Texas Manual on Uniform Traffic Control Devices (“MUTCD”), appellees' allegation that TxDOT "retained the right to supervise and inspect all signs, barricades, and traffic control plans to insure compliance with the [MUTCD] ” is not an allegation that FBCTRA was required to select and place signs exactly as specified in the MUTCD. Compliance with the MUTCD's provisions is generally not mandatory. See Brazoria County v. Van Gelder, 304 S.W.3d 447, 454 (Tex.App.-Houston [14th Dist.] 2009, pet. denied).

      . To the extent appellees allege the signs were placed on the wrong side of the road because their location did not comply with the MUTCD, appellees' allegation that "[TxDOT] retained the right to supervise and inspect all signs, barricades, and traffic control plans to insure compliance with the [MUTCD] ” is not an allegation that FBCTRA was required to select and place signs exactly as specified in the MUTCD. Compliance with the MUTCD’s provisions is generally not mandatory. See Van Gelder, 304 S.W.3d at 454.

      . We note that in Sparkman, the supreme court held that a red left-turn arrow which was installed and operated as designed and was intended to direct left-turning motorists to stop presented a condition because it actually directed some motorists to proceed. 519 S.W.2d at 856-58. Therefore, the governmental entity's design decision was held to present a condition because it conveyed traffic-control information other than intended. In the present case, while appellees allege the signs were "misleading” and "confusing,” there are no allegations that the signs conveyed unintended traffic-control information creating a dangerous premises condition. Thus, we decline to apply Sparkman to appel-lees' claim.

      . See City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994) ("[A]clions which require obedience to orders ... are ministerial.”); see also Siders, 970 S.W.2d at 193 (holding negligent-construction claim regarding a stop sign was merely a disguised design-defect claim because plaintiffs' witnesses admitted road was constructed as designed and plaintiffs agreed the design plans did not specify the removal of the stop sign).
      FBCTRA contends certain photographs of signage at the FM 1093-Gaston Road intersection incorporated within design documents of the intersection conclusively establish the "Do Not Enter” and "Wrong Way” signs were placed in accord with design plans at the time of the accident. While these documents appear to indicate the signs were placed as designed by August 13, 2008, they do not reflect whether the signs were placed as designed at the time of the accident. Thus, we reject FBCTRA’s contention.

      . In the TxDOT-FBCTRA agreement, “Project" is defined in relevant part as the “construction of the interchanges connecting the [Tollway] at FM 1464/FM 1093 and at SH 99...." FBCTRA does not cite any portion of the record supporting that the project was complete. In the statement of facts section of its brief, FBCTRA expresses, “By the time of the accident on January 1, 2007, construction of the Tollway in Fort Bend County had been completed.” Appellees do not dispute this statement in their brief. However, even accepting this statement as true, see Tex.R.App. P. 38.1(g), it does not necessarily establish that the project was also complete at that time.
      We also recognize that both FBCTRA and appellees rely on the “Project Maintenance” section in making their respective arguments. However, we refuse to construe appellees' reliance on this section as a deliberate admission that the project is complete. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996) (“A judicial admission must be a clear, deliberate, and unequivocal statement.”).

      . FBCTRA also mentions, without argument, subsection 224.032(a)(1) of the Transportation Code which expresses that the State Highway Commission shall provide for the efficient maintenance of the state highway system. Tex. Transp. Code Ann. § 224.032(a)(1) (Vernon 1999). This language, however, says nothing about whether other governmental entities can become contractually obligated to máintain a segment of a state highway.

      . To the extent appellees allege that the lack of toll booths and toll plazas caused a dangerous condition because there were no people monitoring the roadway, they fail to allege a premise defect claim under the TTCA. Such a "condition” concerns the activity of people, not the condition of the roadway itself. See Garrett Place, 972 S.W.2d at 144.

      . The TTCA defines "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 2005).

      . See also FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008) ("We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired, but otherwise, we construe the statute's words according to their plain and common meaning unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.”).


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    KENNEDY CON., INC., Kennedy Ship & Repair, L.P., and Christopher Kennedy, Appellants v. Glenn W. FORMAN, Jr., Appellee.
    No. 14-08-00650-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 15, 2010.

      David M. Qualline, Richard H. Edelman, Houston, for appellants.
    Wade B. Williams, Galveston, Terriann Trostle, Houston, for appellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

KEM THOMPSON FROST, Justice.

The defendants in a trespass-to-try-title action appeal the trial court’s summary judgment in favor of the plaintiff. The summary-judgment evidence does not show that that the plaintiff is entitled to judgment as a matter of law on the grounds expressly stated in the summary-judgment motion. Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Plaintiff/appellee Glenn W. Forman, Jr. filed this trespass-to-try-title action against defendants/appellants Kennedy Con., Inc., Kennedy Ship & Repair, L.P., and Christopher Kennedy (hereinafter col-leetively referred to as “Kennedy”). In his live pleading, Forman alleged that he is the owner in fee simple of the following property in the City of Galveston in Texas: (1) all of that part of Lot 502 of Section One of the Trimble and Lindsey Survey of Galveston Island (hereinafter “Lot 502”) that lies north of Port Industrial Boulevard, now known as Harborside Drive, and south of Galveston Bay, and south of Parcel No. 1 described in the deed recorded under Galveston County Clerk’s file number 9038382, (2) all that part of Lot 502 that lies northerly of the property described in the foregoing item (1), and (3) the strips and gores, if any, between all property conveyed herein and abutting properties and land lying in or under any public thoroughfare, opened or proposed, abutting or next to the property, and including, but not limited to, the easterly one-half of abandoned 65th Street lying northerly of Channelview Drive (hereinafter collectively referred to as the “Property”).

For purposes of this appeal, we use the following shorthand terminology in referring to three different parts of the Property:

Tract One. The part of Lot 502 that lies north of Harborside Drive and south of Galveston Bay is “Tract One.”
Tract Two. The part of Lot 502 that lies north of Tract One and is submerged under Galveston Bay is “Tract Two.”
Tract Three. In 1968, the City of Galveston abandoned the part of the “street right-of-way” known as 65th Street that was north of Channelview Drive and south of Galveston Bay. The eastern half of the real property that was formerly burdened by this abandoned right-of-way is “Tract Three.”

To aid in understanding the general location of these tracts, we provide the following diagram:

In his live petition, Forman sought judgment for title to and possession of the Property. Kennedy filed an answer in which Kennedy pleaded “not guilty”; however, Kennedy did not file a counterclaim.

Forman filed a traditional motion for summary judgment, in which he asserted that there was no genuine issue of material fact and that he was entitled to judgment, as a matter of law, that he owns the Property. Forman asserted the following in this motion:

• Forman is the owner in fee simple of the Property.
• Forman was in possession of the Property on or about July 2006, when Kennedy unlawfully entered upon and dispossessed Forman of a portion of the Property.
• Kennedy has constructed improvements on a portion of the Property and has withheld possession of the Property from Forman.
• As shown by the affidavit of Roland Bassett, Forman is the owner of Tract Three.
• In December 1968, the City of Galveston abandoned the part of 65th Street north of Channelview Drive and south of Galveston Bay. As a result of this abandonment, the owner of the land to the east of Tract Three acquired fee simple title to Tract Three. Because Forman is now the owner of Tract Two, he is the fee simple owner of Tract Three.
• Neither Kennedy nor Kennedy’s predecessors in title have ever owned Tract Three.
• Kennedy’s claim for adverse possession fails as a matter of law.

Kennedy filed a response in opposition to Forman’s motion for summary judgment, and Kennedy also moved for summary judgment, asserting that Kennedy Con., Inc., as a matter of law, is entitled to judgment for title to and possession of Tract Three. Kennedy also filed a supplemental motion for summary judgment.

Forman filed a supplemental motion for summary judgment in which he argued that, even though Tract Two is submerged under Galveston Bay, the State of Texas does not have title to Tract Two because Tract Two falls within the scope of the land conveyed in a 1915 patent from the State of Texas to J.J. Kane (hereinafter “Patent”). Forman notes Kennedy’s argument that the Patent conveyed certain submerged lands north of the northline of Tract Three and did not convey the part of Tract Two next to Tract Three (hereinafter “Neighboring Tract”). Forman asserts that, even if the Patent does not cover the Neighboring Tract, then this part of Tract Two was not submerged in 1915 and was subject to private ownership. In his supplemental motion, Forman asks that the trial court award him judgment for title as to Tract Three.

After an oral hearing, the trial court rendered a final summary judgment in Forman’s favor. In this judgment, the trial court granted Forman’s motions for summary judgment and denied Kennedy’s motions for summary judgment. The trial court stated that Tract One and Tract Two are Forman’s property. The trial court determined as a matter of law that For-man is the owner of Tract Three and that Forman is entitled to full and complete possession of Tract Three, to the full and complete exclusion of Kennedy. The trial court ruled that Kennedy has no legal or equitable interest in Tract Three. The court ordered Kennedy to remove any improvements constructed by Kennedy on Tract Three and to remove any of Kennedy’s personal property from Tract Three.

Issues and Analysis

On appeal, Kennedy asserts that the trial court held a “de facto bench trial” by hearing live testimony at the summary-judgment hearing. In the first issue, Kennedy asserts that the trial court erred in granting summary judgment for Forman because the summary-judgment record does not prove as a matter of law that Forman owns Tract Three. In the second issue, Kennedy asserts that the trial court erred in rendering judgment for Forman after the “de facto bench trial.”

In a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially establish his right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Will-rich, 28 S.W.3d 22, 23 (Tex.2000). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Good year Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

Did the trial court grant a summary judgment or render judgment following a bench trial?

We first address whether the trial court rendered judgment after a “de facto bench trial” as Kennedy asserts. The record reflects that the trial court held an oral hearing on the motions for summary judgment filed by Forman and Kennedy. At the beginning of this hearing, the trial court stated that the parties were present for a summary-judgment hearing, and the trial court said, “We’ve had a witness called, Roland Bassett, and I’m now going to administer the oath.” Forman had called Bassett as a witness to testify at the summary-judgment hearing. After he was sworn, Bassett testified on direct examination, under cross-examination by Kennedy’s trial counsel, and then on redirect examination. The trial court then heard arguments from counsel and took the summary-judgment motions under advisement. In its final judgment, the trial court granted Forman’s summary-judgment motions and denied Kennedy’s summary-judgment motions.

Trial courts are not to receive oral testimony during summary-judgment hearings. See Tex.R. Civ. P. 166a(c) (“No oral testimony shall be received at the hearing”); Lann v. Callahan, No. 04-05-00718-CV, 2006 WL 1684785, at *1 (Tex.App.-San Antonio June 21, 2006, no pet.) (mem. op.) (holding trial court did not err in sustaining objections to oral testimony proffered at summary-judgment hearing). However, at no time during the summary-judgment hearing did Kennedy object to the trial court’s hearing of live testimony, and Kennedy does not complain of the trial court’s consideration of live testimony on appeal. Instead, Kennedy asserts that the trial court’s receipt of live testimony during the summary-judgment hearing transformed the hearing into a bench trial. We disagree. The trial court’s hearing of live testimony without objection from any party did not transform the summary-judgment hearing into a bench trial. Though it is unusual and improper for a trial court to consider live testimony during a summary-judgment hearing, no party voiced any objection. The character of the proceeding as a summary-judgment hearing did not change. No bench trial has occurred in this case.

What are the possible bases upon which Forman could succeed in this trespass-to-try-title action?

In its summary judgment, the trial court made a determination of title to the Third Tract. “A trespass to try title action is the method for determining title to lands, tenements, or other real property.” Tex. Prop.Code Ann. § 22.001(a) (Vernon 2000). It is the exclusive remedy by which to resolve competing claims to property. See Jordan v. Bustamante, 158 S.W.3d 29, 34-35 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Any suit involving a dispute over the title to land is an action in trespass to try title, whatever its form and regardless of whether legal or equitable relief is sought. See id. Under well-established Texas law, it was incumbent upon Forman to prevail based upon the strength of his own title to Tract Three and not on the weaknesses of Kennedy’s title. See Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961). To recover, For-man must establish a prima facie right of title by proving one of the following: (1) a regular chain of conveyances from the sovereign, (2) a superior title out of a common source, (3) title by limitations, or (4) prior possession, which has not been abandoned. See Bacon v. Jordan, 763 S.W.2d 395, 396-97 (Tex.1988).

Forman did not assert title by limitations as a summary-judgment ground. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (stating that appellate courts can affirm summary judgment based only on a ground expressly stated in the motion for summary judgment granted by the trial court). We discuss each of the other three possible bases for recovery below.

A Regular Chain of Conveyances from the Sovereign

Forman did not assert as a summary-judgment ground that he could recover based on proof of a regular chain of conveyances of title to Tract Three from the sovereign. See Stiles, 867 S.W.2d at 26. In addition, the summary-judgment evidence does not contain a chain of conveyances of title to Tract Three from the sovereign to Forman. On appeal, Forman asserts that the trial court’s judgment can be affirmed based on a chain of conveyances from the sovereign as to Tract Two.

Generally, “[t]he soil covered by the bays, inlets, and arms of the Gulf of Mexico within tidewater limits belongs to the State, and constitutes public property that is held in trust for the use and benefit of all the people.” Lorino v. Crawford Packing, 142 Tex. 51, 175 S.W.2d 410, 413 (1943). Section 11.012(c) of the Texas Natural Resources Code echoes the Lori-no holding: “The State of Texas owns the water and the beds and shores of the Gulf of Mexico and the arms of the Gulf of Mexico within the boundaries provided in this section, including all land which is covered by the Gulf of Mexico and the arms of the Gulf of Mexico either at low tide or high tide.” Tex. Nat. Res.Code Ann. § 11.012(c) (Vernon 2001). Two presumptions arise regarding submerged lands: (1) they are owned by the State and (2) the State has not acted to divest itself of title to them. See Lorino, 175 S.W.2d at 414; TH Invs. v. Kirby Inland Marine, L.P., 218 S.W.3d 173, 182-83 (Tex.App.Houston [14th Dist.] 2007, pet. denied). Kennedy has invoked this presumption and asserted that, because Tract Two is submerged under Galveston Bay, it is presumed that the State of Texas holds title to Tract Two.

Attempting to rebut this presumption, Forman proffered additional summary-judgment evidence including the Patent, arguing that by means of the Patent, the State of Texas intended to convey submerged land, including Tract Two. See City of Galveston v. Menard, 23 Tex. 349, 398-408 (1859) (holding that legislature could and did convey land shallowly submerged under Galveston Bay to private individual); TH Invs., 218 S.W.3d at 185-86. Under the Patent, the State of Texas conveyed the following property to J.J. Kane in 1915:

the submerged flats, or land under water, on the shores of Galveston Bay, in Galveston County, Texas, the same having been purchased and fully paid for in accordance with an act approved June 3, 1915; which said submerged flats or land under water are described by metes and bounds as follows:
Beginning at the S.E. Corner of Lot 50 Section No. 1 Trimble and Lindsey Survey of Galveston Island:
Thence N 25° 02' 36" W with the West boundary of said lot No. 50 594.32 varas to a 2 inch iron pipe on the shore of Galveston Bay, the S.E. Corner of this 85.70 acre survey;
Thence continuing N 25° 02' 36" W 990.0 varas to a point on the U.S. Harbor Line as established by the U.S. Engineer Department under the direction of the Honorable Secretary of War;
Thence with said Harbor Line S 73° 15' 24" W 498.42 varas to a point for the N.W. Corner of this survey, said point being the intersection of said Harbor Line with the West boundary of lot 502, section No. 1 of the Trimble and Lindsey Survey prolonged N 25° 02' 36" W;
Thence S 25° 02' 36" E972.0 [sic] varas to a two inch pipe on the shore of Galveston Bay, the S.W. Corner of this 85.70 acre survey;
Thence approximately with shore line of Galveston Bay N 75° 17' 30" E, 501.4 varas to point of beginning, containing within the foregoing described limits 85.70 acres of land.

Kennedy argues that the Patent conveyed only the 85.7 acres of submerged land described in the Patent and that the conveyed land did not include the Neighboring Tract. The summary-judgment evidence contains a 1984 survey showing that the southerly line of the 85.7 acre tract described in the Patent was the 1915 shoreline of Galveston Bay and that this shoreline is hundreds of feet to the north of the northline of Tract Three. According to this survey, the 85.7 acre tract described in the Patent does not include the Neighboring Tract. Kennedy argues that, because in the Patent the State of Texas did not convey the Neighboring Tract, the presumption of State ownership has not been rebutted, and Forman has not shown title to Tract Three under his argument based on the abandonment of 65th Street and Forman’s ownership of the Neighboring Tract. In response, Forman argues that the southerly line of the land conveyed by the Patent was originally the 1915 shoreline of Galveston Bay but that the southerly line of the conveyed land has been moving south over time along with the shoreline of Galveston Bay, so that the southerly line of the land conveyed is now the boundary between Tract One and Tract Two. Forman has cited no cases or other authority supporting this argument.

We presume for the sake of argument the following:

• The Neighboring Tract is part of the submerged land conveyed by the Patent and is not owned by the State of Texas.
• The City of Galveston’s abandonment of the right-of-way through the 1968 ordinance, in addition to removing the right-of-way, also conveyed title in Tract Three to the owner of the Neighboring Tract.
• Forman could establish a prima facie right of title in Tract Three by proving (1) a regular chain of conveyances of title in the Neighboring Tract from the sovereign down to Forman, and (2) abandonment of the right-of-way over Tract Three.

Even under these presumptions, we cannot affirm the trial court’s summary judgment because Forman did not assert as a summary-judgment ground that he could recover based on proof of a regular chain of conveyances of title in the Neighboring Tract from the sovereign to Forman. See Stiles, 867 S.W.2d at 26.

Superior Title Out of a Common Source

On appeal, Forman asserts that this court can affirm the trial court’s summary judgment because Forman proved superior title to Tract Three out of a common source. Forman alleges that the common source of title to Tract Three was the City’s abandonment of the right-of-way over Tract Three. Notably, however, in his summary-judgment motions, Forman did not expressly state that he was proving title as a matter of law by showing superi- or title out of the alleged common source of the abandonment of the City’s right-of-way. Therefore, we cannot affirm the trial court’s judgment on this ground. See Stiles, 867 S.W.2d at 26.

Prior Possession Which Has Not Been Abandoned

Forman asserted prior possession as a summary-judgment ground. However, to establish entitlement to relief on this ground, Forman had to prove that he actually and exclusively possessed Tract Three, as opposed to merely constructively possessing Tract Three. See Land v. Turner, 877 S.W.2d 181, 186 (Tex.1964). Upon a showing of actual possession of Tract Three, Forman may continue this possession by either actual or constructive possession up until the time at which Kennedy allegedly dispossessed Forman, as long as Forman does not abandon possession. See id. at 185-88. Nonetheless, Forman must show an initial actual possession of Tract Three. See id. The record contains no summary-judgment evidence showing that Forman actually possessed Tract Three at any time, and there is certainly no evidence proving this proposition as a matter of law. Therefore, the trial court erred to the extent it granted summary judgment based on Forman’s prior possession. See id. (holding that plaintiff in trespass-to-try-title action must prove initial actual possession to recover based on “prior possession,” even against a trespasser, and that evidence of constructive possession by deed and payment of taxes on the land did not prove actual possession as a matter of law).

Conclusion

Forman was required to establish a prima facie right of title by one of the accepted methods: (1) a regular chain of conveyances from the sovereign, (2) a superior title out of a common source, (3) title by limitations, or (4) prior possession, which has not been abandoned. See Bacon, 763 S.W.2d at 396-97; Land, 377 S.W.2d at 188. Forman did not assert any of the first three methods as a summary-judgment ground in his summary-judgment motions. Though Forman asserted prior possession as a ground, he failed to prove an initial actual possession that is required to show prior possession. Therefore the trial court erred in granting summary judgment. See Land, 377 S.W.2d at 188 (holding that because jury found trespass-to-try-title plaintiff did not prove title by limitations and because, as to other three ways of proving title, plaintiff did not seek jury findings or prove these grounds as a matter of law, plaintiff could not recover); Kilpatrick v. McKenzie, 230 S.W.3d 207, 214-15 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (holding that evidence at bench trial was not legally sufficient to support recovery by trespass-to-try-title plaintiff on any of the four potential methods of recovery in such actions and rendering a take-nothing judgment against plaintiff). Accordingly, we sustain Kennedy’s first issue, reverse the trial court’s judgment, and remand for further proceedings consistent with this opinion.

      . The record contains no summary-judgment evidence as to the location of the shoreline of Galveston Bay in 1968. A 1984 survey indicates that, in 1984, there was land on abandoned 65th Street that was north of the northline of the Kennedy Property and not submerged under Galveston Bay.

      . This diagram is a rough approximation and is not drawn to scale. The summary-judgment record does not show the current location or contour of the Galveston Bay shoreline. The dotted line in the diagram is a rough representation of this shoreline for illustration purposes; it is not an accurate depiction of the shoreline’s contour or location. A 1984 survey reflects that, in 1984, part of the eastern portion of Tract Three was submerged under Galveston Bay. A 1984 survey indicates that, in 1984, there was land on abandoned 65th Street that was north of the northline of the Kennedy Property and not submerged under Galveston Bay. This summary-judgment evidence suggests that part of Tract Three extends north of the northline of the Kennedy Property. To the extent that Tract Three currently extends north of the northline of the Kennedy Property, this is not reflected in the diagram.

      . Ten days after the hearing, Kennedy filed a written objection to the trial court's having heard live testimony. Kennedy did not secure a ruling on this objection. After the trial court rendered its summaiy judgment, Kennedy moved the trial court to rule on the objections that Kennedy had asserted during the hearing; however, Kennedy did not object to the court's receipt of live testimony during the hearing. Even if Kennedy's written objection after the hearing were considered timely, Kennedy never obtained a ruling on this objection, nor did Kennedy object to the trial court's failure to rule. Thus, the objection was waived.

      . Considering the live testimony as summary-judgment evidence would not change the analysis or disposition of this appeal. Therefore, we need not and do not address whether this live testimony should be considered as part of the summary-judgment evidence.

      . Forman cites various cases in support of this argument. However, none of the trespass-to-try-title cases that Forman cites stand for this proposition. See Haines v. McLean,
        154 Tex. 272, 276 S.W.2d 777, 778-79, 782 (1955); Cantley v. Gulf Prod. Co., 135 Tex. 339, 143 S.W.2d 912, 913-16 (1940); Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361, 361-66 (1940). In the cases cited by Forman, the courts do not hold that an abandonment of a right-of-way creates or conveys title; rather, the courts in these cases hold that, if a grantor holds title to real property burdened by a right-of-way and the grantor executes a deed conveying property bordering on the burdened property, then the grantor conveys that part of his property burdened by the right-of-way, unless the burdened property is expressly reserved by the grantor and even though the burdened property is not mentioned in the deed as part of the property conveyed. These cases do not stand for the proposition that a party in a trespass-to-try-title action, who has not shown that he holds title to land burdened by a right-of-way, may prove that he holds title to the burdened land by proving that the right-of-way was abandoned and that he owns land next to the burdened property.

      . Even if Forman had asserted this ground, the summary-judgment evidence does not contain a regular chain of conveyances from J.J. Kane down to Forman. The summary-judgment evidence contains a letter from the Texas General Land Office arguably indicating, without explanation, that this office concluded that Tract Two was part of the land conveyed by the Patent. Forman asserts that the State of Texas is not claiming ownership of Tract Two and that Kennedy has no standing to seek ownership on the State’s behalf. Forman cites cases stating that only the State can challenge the validity of a land patent. However, Kennedy is not seeking to assert a claim by the State to Tract Two, and Kennedy is not challenging the validity of the Patent. Rather, Kennedy is demanding that Forman prove one of the four methods for recovering in a trespass-to-try-title case, one of which might require proof as to what land was conveyed by the Patent, without challenging the validity of the Patent.

      . Even if Forman had asserted this ground, Forman has cited no case holding that, in a trespass-to-try-title action, an abandonment of a right-of-way over land can constitute a common source of title to the land previously burdened by the right-of-way.

      .To the extent that Ballingall v. Brown holds that an initial actual possession is not required, the Supreme Court of Texas in Land overruled that holding. See Land, 377 S.W.2d at 185-88; Ballingall v. Brown, 226 S.W.2d 165, 171 (Tex.Civ.App.-Fort Worth 1949, writ ref'd n.r.e.). The other cases cited by Forman are not contrary to Land because these cases involve actual possession. See Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 246-47 (Tex.1964); Corder v. Foster, 505 S.W.2d 645, 649 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref’d n.r.e.); Dinwitty v. McLemore, 291 S.W.2d 448, 451 (Tex.Civ.App.-Dallas 1956, no writ).

      . Kennedy asserted in the trial court that Kennedy owned Tract Three. Subsequently in the trial court, and also on appeal, Kennedy has stated that Kennedy does not claim title to Tract Three or Tract Two. In any event, Forman must succeed on the strength of his title rather than on the weakness of Kennedy’s title. See McKenzie, 230 S.W.3d at 213-14. If a trespass-to-try-title plaintiff does not prove any of the four permissible methods for recovery, then the plaintiff takes nothing, even though the defendant may be a trespasser. See Land, 377 S.W.2d at 188.

      . In a footnote in the appellant's brief, Kennedy asserts that this court can render judgment in Kennedy’s favor based on Kennedy’s motions for summary judgment. However, in the appellant’s brief, Kennedy does not assign error as to the trial court’s denial of Kennedy’s summary-judgment motions. See Tex.R. App. P. 38.1(f); Texas Nat’l Bank v. Karnes, 111 S.W.2d 901, 903 (Tex. 1986). Furthermore, Kennedy has provided no analysis or citations to the record or legal authorities in support of an argument that the trial court erred by denying Kennedy's summary-judgment motions. Therefore, Kennedy has waived this issue. See Tex.R.App. P. 38.1(i); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding that, even though courts interpret briefing requirements reasonably and liberally, a party asserting error on appeal still must put forth some specific argument and analysis citing the record and authorities in support of the party’s argument).