             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________
          No. 02-18-00289-CV
     ___________________________

    CITY OF FOREST HILL, Appellant

                     V.

        JON CHEESBRO, Appellee



   On Appeal from the 17th District Court
          Tarrant County, Texas
      Trial Court No. 017-300244-18


  Before Gabriel, Pittman, and Birdwell, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      The City of Forest Hill (the City) appeals the trial court’s order denying its plea

to the jurisdiction, contending that the trial court lacks subject-matter jurisdiction over

Jon Cheesbro’s lawsuit because he has not alleged facts that establish a waiver of the

City’s governmental immunity. We hold that Cheesbro’s pleading is insufficient to

establish the trial court’s jurisdiction but that the petition does not show an incurable

jurisdictional defect. Therefore, we reverse the trial court’s order and remand this case

to the trial court to give Cheesbro an opportunity to amend his pleading.

                                      Background

       According to Cheesbro’s pleading, one day in August 2016, he was driving his

motorcycle on one of the City’s streets when “his tire caught in a defect on the road[,]

which caused him to lose control . . . and crash.” Cheesbro suffered injuries and sued

the City for damages, asserting a negligence claim. Without specifying what the

“defect” was, he pleaded on “information and belief” that before the crash, the City

was aware of the defect and the danger it caused and did not warn motorists of the

danger. Cheesbro alleged that after the crash, the City repaired the roadway to correct

the indeterminate dangerous condition.

      The City responded to Cheesbro’s petition by filing a plea to the jurisdiction,

by pleading a general denial, and by pleading affirmative defenses, including

governmental immunity. In its plea to the jurisdiction, the City emphasized that

Cheesbro had not identified “what type of defect . . . caused his crash and damages”

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and argued that his petition was insufficient to overcome a presumption of immunity.

More specifically, although the City acknowledged that the Texas Tort Claims Act

creates a limited waiver of governmental immunity, the City argued that Cheesbro’s

petition had not triggered the waiver because he (1) had not described facts to

establish the existence or nature of a defect but had only asserted the existence of a

defect in a conclusory fashion and (2) had not described facts supporting his claim

that the City knew or should have known of the defect.

      Cheesbro did not file a response to the City’s plea. The trial court held a

hearing on it. At the hearing, the City again argued that Cheesbro’s petition was

insufficient to assert a waiver of immunity because he had “failed to even identify

what defect [he was] talking about.” Cheesbro, through counsel, urged the trial court

to deny the plea by arguing,

      [T]his is a plea to the jurisdiction. I think [the City] is presenting it as if
      it’s a summary judgment of some kind. I think at this stage the Court
      looks at whether or not what is pled is actionable under the Tort Claims
      Act. What is pled is well within [the Act]. . . .

             ....

             . . . [W]hat the defense is trying to do here, apparently, is, again,
      have the Court rule on what’s essentially a summary judgment before
      they’ve even answered discovery, and I think that would be the more
      appropriate time and place.

The City replied to Cheesbro’s argument by contending that he had the burden to

plead facts demonstrating a waiver of immunity and that he had not done so.




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      The trial court denied the City’s plea. The City brought this interlocutory

appeal.1

               Cheesbro’s Failure to Invoke a Waiver of Immunity

      In one issue, the City contends that the trial court erred by denying the City’s

plea to the jurisdiction because Cheesbro’s “mere assertion of an undescribed,

unidentified ‘defect’ as a cause of his injury, without more,” does not establish a

waiver of the City’s governmental immunity.

      Local governmental entities, like the City, generally enjoy immunity from suits

for damages. City of Fort Worth v. Deal, 552 S.W.3d 366, 371 (Tex. App.—Fort Worth

2018, pet. denied). The Legislature may waive this immunity and has done so, on a

limited basis, through the Texas Tort Claims Act (the Act), chapter 101 of the civil

practice and remedies code. See id.; see also Tex. Civ. Prac. & Rem. Code Ann.

§§ 101.001–.109; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

      Under the Act, a governmental entity is liable for, as is applicable to this case,

“personal injury and death . . . caused by a condition or use of . . . real property if the

governmental unit would, were it a private person, be liable to the claimant according

to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); see also id.

§ 101.0215(a)(4) (stating that a municipality may be liable for acts related to street




      1
       See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). We note that Cheesbro
has declined to file an appellate brief.

                                            4
maintenance). 2 A plaintiff carries the burden to plead facts showing a waiver of

immunity under the Act. Univ. of Tex. M.D. Anderson Cancer Ctr. v. Jones, 485 S.W.3d

145, 148 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

      Because governmental immunity negates a trial court’s jurisdiction, a

governmental defendant may assert such immunity in a plea to the jurisdiction. See

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A plea

to the jurisdiction may challenge either the pleadings or the existence of jurisdictional

facts. See id. at 226–27. When, as here, the governmental defendant challenges the

plaintiff’s pleadings, we consider whether the plaintiff has alleged sufficient facts to

demonstrate the court’s jurisdiction over the matter, construing the pleadings liberally

in favor of the plaintiff and looking to the pleader’s intent. Id. Vague and conclusory3

statements within a pleading are insufficient to support jurisdiction; otherwise, the

jurisdictional inquiry would become meaningless. See Stephen F. Austin State Univ. v.

Flynn, 228 S.W.3d 653, 660 (Tex. 2007); Brazoria Drainage Dist. No. 4 v. Matties, No. 01-

17-00422-CV, 2018 WL 3468531, at *3 n.2 (Tex. App.—Houston [1st Dist.] July 19,

2018, no pet.) (mem. op.) (“Conclusory allegations are insufficient under Texas law.”);

Wharton Cty. v. Genzer, No. 13-06-00078-CV, 2007 WL 4442445, at *3 (Tex. App.—


      2
       In his petition, Cheesbro asserted a waiver of the City’s immunity under
section 101.0215(a)(4).
      3
       A conclusory statement is one that does not provide underlying facts to
support the conclusion. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004,
pet. denied).

                                           5
Corpus Christi–Edinburg Dec. 20, 2007, no pet.) (mem. op.) (“[T]hough this Court is

to construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’

intent, this should not require that we create and add facts to the plaintiffs’ pleadings

so that the trial court’s jurisdiction is invoked.”); see also Tex. Dep’t of Criminal Justice v.

Miller, 51 S.W.3d 583, 587 (Tex. 2001) (“Mere reference to the Tort Claims Act does

not establish the [government’s] consent to be sued and thus is not enough to confer

jurisdiction on the trial court.”). Whether a plaintiff has alleged sufficient facts to

invoke a waiver of jurisdiction under the Act is an issue that we review de novo. City

of El Paso v. Collins, 483 S.W.3d 742, 749 (Tex. App.—El Paso 2016, no pet.).

       The City contends that Cheesbro’s pleading is conclusory and insufficient

because from the pleading, it is impossible to discern whether the City “would, were it

a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. &

Rem. Code Ann. § 101.021(2). More specifically, the City asserts that because

Cheesbro has provided no explanation about the alleged “defect” that caused his

injuries and has provided no facts about the City’s alleged knowledge of the defect, it

is impossible to discern the nature and extent of any duty that the City owed to him or

whether the City breached the duty.

       Whether a defendant owed a legal duty to a plaintiff is an essential element of

the plaintiff’s claim in a premises liability case that must be established by the

pleadings. Collins, 483 S.W.3d at 752. When a plaintiff asserts a claim under the Act

for a premises defect on property that the plaintiff has not paid to use, the

                                               6
governmental entity “owes to the [plaintiff] only the duty that a private person owes

to a licensee on private property.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).

That is, the entity must not injure the plaintiff by willful, wanton, or grossly negligent

conduct, and the entity must use ordinary care either to warn the plaintiff of, or to

make reasonably safe, a dangerous condition of which the entity is aware and the

plaintiff is not. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237

(Tex. 1992) (op. on reh’g). But when a plaintiff asserts a claim for a special defect

“such as excavations or obstructions on . . . streets,” the governmental entity owes the

duty that a private landowner owes an invitee, which means that the entity must use

ordinary care to reduce or eliminate an unreasonable risk of harm created by a

condition of which the entity is aware or reasonably should be aware. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.022(b); City of Austin v. Rangel, 184 S.W.3d 377, 383

(Tex. App.—Austin 2006, no pet.). Whether a condition is a premises defect or a

special defect is a question of law for the court to decide. City of Austin, 184 S.W.3d at

383. “When determining whether a special defect exists, courts often look to factors

such as the size, nature, location and permanence of the condition.” Id.

      We agree with the City’s argument that because Cheesbro’s pleading provides

no details about the alleged defect or about how the City knew of the alleged defect,

the pleading does not satisfy his burden to show the nature or extent of any duty

borne by the City or how the City breached that duty, and the pleading therefore does

not satisfy his burden to affirmatively demonstrate a waiver of the City’s

                                            7
governmental immunity under the Act. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(2); Miranda, 133 S.W.3d at 226, 230; Univ. of Tex. M.D. Anderson Cancer Ctr.,

485 S.W.3d at 148; see also Flynn, 228 S.W.3d at 659–60 (holding that a plaintiff’s

jurisdictional allegations were conclusory and were insufficient to invoke jurisdiction);

Brazoria Drainage Dist. No. 4, 2018 WL 3468531, at *3 (holding that plaintiffs failed to

invoke a waiver of governmental immunity because they failed to plead facts

demonstrating the entity’s knowledge of an alleged dangerous condition); Henry v. City

of Angleton, No. 01-13-00976-CV, 2014 WL 5465704, at *7 (Tex. App.—Houston [1st

Dist.] Oct. 28, 2014, no pet.) (mem. op.) (holding that a plaintiff’s pleading was

insufficient when the plaintiff alleged that the city knew of a risk but did not provide

facts supporting the allegation); Wharton Cty., 2007 WL 4442445, at *3 (holding that a

plaintiff’s pleading with respect to an automobile accident was insufficient to invoke

jurisdiction under the Act and stating that the pleading standard demands factual

specificity); Taylor v. Univ. of Tex. Health Ctr. at Tyler, No. 12-01-00381-CV, 2002 WL

31323413, at *5–7 (Tex. App.—Tyler Oct. 9, 2002, pet. denied) (not designated for

publication) (holding that allegations that injuries were caused by an operating room,

surgical area, and forty-eight items were insufficient to invoke jurisdiction when the

allegations were unaccompanied by any description of a defective condition or an

explanation of how the items were negligently used or misused). We hold that

Cheesbro’s pleading is insufficient to invoke the trial court’s jurisdiction.



                                             8
       The City asks us to render a judgment dismissing Cheesbro’s suit. If a plaintiff’s

pleading does not contain facts sufficient to demonstrate a waiver of immunity under

the Act but does not affirmatively demonstrate an incurable defect in jurisdiction, the

issue is one of pleading sufficiency, and the plaintiff should be afforded an

opportunity to amend. Miranda, 133 S.W.3d at 226–27; Brazoria Drainage Dist. No. 4,

2018 WL 3468531, at *4; City of Austin, 184 S.W.3d at 382. The opportunity to amend

pleadings that are insufficient to establish—but do not affirmatively negate—

jurisdiction arises after a court determines the pleadings are insufficient. Smith v. City of

League City, 338 S.W.3d 114, 121 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

       The City does not appear to argue that Cheesbro’s pleading demonstrates an

incurable jurisdictional defect, and we hold that it does not. Accordingly, although we

sustain the City’s only issue, we must remand this case to the trial court to afford

Cheesbro an opportunity to amend his pleading. See Miranda, 133 S.W.3d at 226–27.

                                       Conclusion

       Having sustained the City’s issue, we reverse the trial court’s order denying the

City’s plea to the jurisdiction and remand this case to the trial court for further

proceedings.

                                                         /s/ Wade Birdwell

                                                         Wade Birdwell
                                                         Justice

Delivered: February 28, 2019


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