Reversed and Remanded and Opinion filed August 13, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00011-CV

     KERRY A. KILBURN AND CYNTHIA H. KILBURN, Appellants,

                                        V.
         FORT BEND COUNTY DRAINAGE DISTRICT, Appellee.

               On Appeal from the County Court at Law No. 1
                            Fort Bend County
                  Trial Court Cause No. 11-CCV-044047

                                OPINION


      Appellants Kerry and Cynthia Kilburn appeal the trial court’s order granting
appellee Fort Bend County Drainage District’s (“the County”) plea to the
jurisdiction as to the Kilburns’ negligence claim. We reverse and remand.

                                        I

      The Kilburns own a ten-acre tract of land adjacent to a creek in Fort Bend
County. Between December of 2008 and January 2009, the County undertook
excavation operations to remove debris from the creek and grade its banks. Some
of this work took place on the Kilburns’ property, on which the County’s records
erroneously indicated it had an easement. By the time the County discovered the
error in its records, the excavation work was substantially complete. According to
the Kilburns, the County’s work damaged the creek and the surrounding property
both aesthetically and functionally.

      The Kilburns sued the County, alleging causes of action for trespass and for
unconstitutional takings. See Tex. Const. art. I, § 17. In their amended petition, the
Kilburns omitted their trespass claim but included a cause of action for negligence.
The County filed a plea to the jurisdiction as to the negligence claim, arguing the
Kilburns were attempting to frame what was actually a trespass claim as
negligence in an effort to avoid the County’s sovereign immunity. The trial court
granted the plea to the jurisdiction and dismissed the Kilburns’ negligence claim
with prejudice. On appeal, the Kilburns argue (1) their amended petition asserted a
negligence claim, not a trespass claim; and (2) the negligence claim falls within
section 101.021(1) of the Texas Tort Claims Act (“the Act”), which waives
immunity for property damage that is proximately caused by a government
employee’s negligence if the damage arises from the operation or use of motor-
driven equipment. See Tex. Civ. Prac. & Rem. Code § 101.021(1).

                                          II

      A plea to the jurisdiction is a dilatory plea, the purpose of which is generally
to defeat an action without regard to whether the claims asserted have merit. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Sw. Bell Tel., L.P. v.
Harris Cnty., 267 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2008, no
pet.). Typically, the plea challenges whether the nonmovant has alleged facts that

                                          2
affirmatively demonstrate the court’s jurisdiction to hear the case. Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In that situation, we
construe the pleadings liberally in favor of the plaintiffs and look to their intent.
Tex. Dep’t of Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether a
pleader has alleged facts that affirmatively demonstrate a trial court’s subject-
matter jurisdiction is a question of law reviewed de novo. Id.

      A plea to the jurisdiction can also properly challenge the existence of those
very jurisdictional facts. Mission Consol., 372 S.W.3d at 635. When jurisdictional
facts are challenged, the courts consider relevant evidence submitted by the parties
when necessary to resolve the jurisdictional issues raised. Bland, 34 S.W.3d at 554.
As with summary judgment, the court takes as true all evidence favorable to the
nonmovant and indulges every reasonable inference and resolves any doubts in the
nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the evidence creates a fact
question regarding the jurisdictional issue, then the trial court cannot grant the plea
to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227–
28. But if the relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of
law. Id. at 228.

      Under the doctrine of sovereign immunity, a governmental entity cannot be
held liable for the actions of its employees unless there is a constitutional or
statutory provision waiving that immunity. See Univ. of Tex. Med. Branch of
Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994). Sovereign immunity can be
waived only through the use of clear and unambiguous language. Tooke v. City of
Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006). The Texas legislature enacted the
Act to waive sovereign immunity in certain limited circumstances. See Dallas
Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341–42

                                            3
(Tex. 1998). Section 101.021 of the Act provides:

      A governmental unit in the state is liable for:
      (1) property damage, personal injury, and death proximately caused
      by the wrongful act or omission or the negligence of an employee
      acting within the scope of his employment if:
      (A) the property damage, personal injury, or death arises from the
      operation or use of a motor-driven vehicle or motor-driven equipment;
      and
      (B) the employee would be personally liable to the claimant according
      to Texas law; and
      (2) personal injury and death so caused by a condition or use of
      tangible personal or real property if the government unit would, were
      it a private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code § 101.021. It is undisputed that the County, as a
department of the state, falls within the parameters of the Act. See Tex. Civ. Prac.
& Rem. Code § 101.001(3)(A). It is also undisputed that the conduct at issue was
done by one or more governmental employees acting within the scope of their
employment.

      For a governmental entity such as the County to be held liable for the acts of
its employee under the Act, the claim must arise under one of the three specific
areas of liability listed in section 101.021 (property damage, personal injury, and
death), and it must not fall within an exception to the waiver of sovereign
immunity. Harris Cnty. v. Cabazos, 177 S.W.3d 105, 109 (Tex. App.—Houston
[1st Dist.] 2005, no pet.). Although a governmental unit is immune from claims
arising out of intentional torts, an injured party may still pursue a separate
negligence claim arising out of the same facts. Holder v. Mellon Mortg. Co., 954
S.W.2d 786, 805 (Tex. App.—Houston [14th Dist.] 1997), rev’d on other grounds,
5 S.W.3d 654 (Tex. 1999)1; see Tex. Civ. Prac. & Rem. Code § 101.057(2)

      1
          The issue of governmental immunity was not appealed to the supreme court.
                                               4
(excluding claims “arising out of assault, battery, false imprisonment, or any other
intentional tort” from waiver of immunity). Nevertheless, plaintiffs cannot
circumvent the intentional-tort exception by framing their claims in terms of
negligence. See Cabazos, 177 S.W.3d at 109 (citing Huong v. City of Port Arthur,
961 F. Supp. 1003, 1008–09 (E.D. Tex. 1997)); see also Tex. Dep’t of Pub. Safety
v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (“To support her negligence claim, Petta
alleges that Rivera negligently ignored police procedure by continuing the pursuit,
and that Rivera negligently ignored an order not to shoot at her car. But these [] are
intentional rather than negligent acts, and thus do not fall within the waiver of
sovereign immunity.”).

                                         III

      In their first issue, the Kilburns argue that the trial court erred because their
negligence claim is, in fact, a claim for negligence rather than for trespass. The
County maintains its position that the Kilburns are merely trying to disguise their
trespass claim as negligence in an effort to circumvent the County’s sovereign
immunity. We agree with the Kilburns.

                                          A

      In their amended petition, the Kilburns asserted, “Upon information and
belief, prior to performing the excavation work described here, the County did not
conduct any formal studies, or otherwise attempt to make a formal assessment, of
the extent to which [the creek] was undergoing erosion (if it was undergoing
erosion at all).” They further alleged, “Upon information and belief, the County did
not prepare or have access to written plans or drawings for the excavation work it
performed on the Kilburns[’] property. Instead, it attempted to perform the
excavation work without first preparing the necessary plans or conducting the
requisite engineering assessments.” In the negligence section of their petition, the
                                          5
Kilburns asserted that the excavation work was done by County employees acting
within the course of their employment, that “[t]he County and its employees who
planned and performed this excavation work on the [c]reek’s banks and bottoms
were bound by a duty to exercise reasonable care in doing so,” and that the
employees “breached this duty by failing to plan or perform the excavation work
with reasonable care.” The petition then provides:

      As a proximate result of this breach of duty by the County and its
      employees, the Kilburns suffered damages to their property arising out
      of the use by the County and its employees of motor-driven
      equipment and/or motor-driven vehicles. Such damages includes but
      is not limited to: (a) the diminution or, at times, the altogether
      elimination of the flow and volume of water running through the
      [c]reek; (b) the loss of use of the [c]reek’s banks for grazing and
      recreational purposes; (c) a diminution in the value of that portion of
      the [p]roperty upon which the County and its employees directly
      worked; (d) a diminution in the value of the remainder of the
      Kilburns’ [p]roperty; and (e) a change in the location of the [c]reek
      and thus the elimination of the [p]roperty’s definitive western
      borderline.
Finally, the Kilburns asserted that the “County employees who performed the
excavation work on the [c]reek would be personally liable to the Kilburns for these
damages under Texas law.”

                                            B

      The fundamental difference between negligence and an intentional tort is the
specific intent to inflict injury. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406
(Tex. 1985); Cabazos, 117 S.W.3d at 113. The gist of a claim for trespass to realty
is the injury to the right of possession. Coastal Oil & Gas Corp. v. Garza Energy
Trust, 268 S.W.3d 1, 9 (Tex. 2008) (citing Pentagon Enters. v. Sw. Bell Tel. Co.,
540 S.W.2d 477, 478 (Tex. Civ. App.—Houston [14th Dist.] 1976, writ ref’d
n.r.e.)). It is an intentional tort in the sense that “it involves the intent to commit an

                                            6
act that violates a property right, or would be practically certain to have that effect,
although the actor may not know the act he intends to commit is such a violation.”
Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v.
Park Warwick, L.P., 298 S.W.3d 436, 447 (Tex. App.—Houston [14th Dist.] 2009,
no pet.).

       In this case, the conduct of which the Kilburns primarily complain is not the
County employees’ act of entering the property, and the harm is not violation of
their property rights. In fact, the alleged damages are not even limited to the
portion of the property on which the County trespassed. As the Kilburns explained
in their response to the County’s plea to the jurisdiction, their amended petition
“alleges the County acted intentionally in performing the excavation work. But that
is not the same as saying the County specifically intended to cause the damage that
resulted from its excavation work.” Construing the petition liberally in favor of the
Kilburns’ and looking to their intent, we conclude that the gist of their complaint is
that the County employees negligently performed excavation work in such a way
as to cause physical damage to the Kilburns’ property. See Miranda, 133 S.W.3d at
228.

                                           C

       In its plea to the jurisdiction, the County emphasized that the Kilburns’
negligence claim “is based on the same operative facts” as the trespass claim
asserted in their original petition. This argument is not persuasive, however,
because a plaintiff’s negligence claim against a governmental unit may arise out of
the same facts that would also give rise to an intentional-tort claim absent the
governmental unit’s sovereign immunity. See Holder, 954 S.W.2d at 805.

       The County similarly argued that the Kilburns specifically pleaded that the
County performed the work on their property intentionally, pointing to the
                                           7
following two statements from the amended petition: (1) “The County’s entry upon
the Kilburns’ property, its excavation work on the [c]reek’s bottom and banks, and
its removal of soil from the Kilburns’ property were intentional acts,” and (2) “The
County’s establishment of a drainage easement on the Kilburns’ [p]roperty is an
intentional act.” The quoted statements are in the section dedicated to the Kilburns’
takings claim. With respect to the first statement, we have already explained that
the fact that the employees intentionally entered the property and undertook the
excavation work does not, standing alone, transform the Kilburns’ negligence
claim into a trespass claim; the dispositive inquiry is whether the employees
intended the specific damages they caused. See Reed Tool Co., 689 S.W.2d at 406.2
In the second statement, the Kilburns were referring to the drainage easement that
the County is attempting to establish through a cross-claim in the underlying
litigation, which the Kilburns argue constitutes an unconstitutional taking; that
statement is irrelevant to their negligence claim.

       Accordingly, construing the Kilburns’ amended petition liberally in their
favor and looking to their intent, we conclude that the Kilburns alleged a
negligence claim, not a trespass claim, and we sustain their first issue. See
Miranda, 133 S.W.3d at 226.

                                               IV

       2
          For the first time on appeal, the County urges this court to view the Kilburns’ original
petition as an “admission against interests” under rule 801(e)(2)(A) of the Texas Rules of
Evidence because in the original petition, the Kilburns alleged that the County intentionally
trespassed and entered the property, causing intentional destruction and damage. But because the
County did not make this argument in the trial court, it is beyond the scope of our review on
appeal. City of Mont Belvieu v. Enter. Prods. Operating, LP, 222 S.W.3d 515, 519 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). Moreover, even if the County had presented this issue to the
trial court, it would fail. As the case cited by the County explains, “[s]tatements in a superseded
pleading cannot be considered judicial admissions and must be introduced into evidence as any
other admission before it can be considered as evidence.” Huff v. Harrell, 941 S.W.2d 230, 239
(Tex. App.—Corpus Christi 1996, writ denied).

                                                8
         In their second issue, the Kilburns argue the trial court erred because their
negligence claim falls within section 101.021(1) of the Act, which waives
sovereign immunity for property damage caused by a government employee’s
negligence if the damage arises from the use or operation of a motor-driven vehicle
or motor-driven equipment. See Tex. Civ. Prac. & Rem. Code 101.021(1). We
agree.

         In their amended petition, the Kilburns alleged the negligent conduct of the
County’s employees caused damages to the Kilburns’ property, that the negligent
conduct was done in the course of employment, that the property damage arose
from employees’ use or operation of motor-driven equipment, and that the
employees would be personally liable to the Kilburns for the damages. See Tex.
Civ. Prac. & Rem. Code § 101.021(1). The alleged facts, if true, are sufficient to
waive the County’s immunity.

         In its plea to the jurisdiction, the County argued the Kilburns failed to allege
sufficient facts to affirmatively demonstrate the trial court’s jurisdiction because
“there are no facts pled describing what or how a duty was breached, nor are there
facts alleging or describing what negligent act caused property damages, and why
the employee operating or using the motor-driven equipment would be personally
liable” to the Kilburns. But the County’s argument demands more of a pleading
than the Texas Rules of Civil Procedure, which require that the original pleading
give a short statement of the cause of action sufficient to give the opposing party
fair notice of the claim involved. See Tex. R. Civ. P. 45, 47; Miranda, 133 S.W.3d
at 230. Plaintiffs are not required to set out in their pleadings the evidence upon
which they rely to establish their asserted cause of action. Miranda, 133 S.W.3d at
230. Additionally, contrary to the County’s argument, the Kilburns pleaded
additional facts to support their allegations that the County’s employees had a duty

                                             9
to exercise reasonable care and breached that duty by failing to do so. They
specifically incorporated the earlier portions of their amended petition into their
negligence section, and they had previously asserted that the County employees
“attempted to perform the excavation work without first preparing the necessary
plans or conducting the requisite engineering assessments.” We therefore conclude
that the factual allegations in the Kilburns’ amended petition were sufficient to
demonstrate the trial court’s jurisdiction and to give the County fair notice of the
claim involved. See id.

      The County also alleged that section 101.021(1) does not apply because
“[t]here was nothing negligent about the operation or use of the motor-driven
equipment in this case. [The County’s] employee intended to enter onto and
operate the equipment on [the Kilburns’] property in and adjacent to the creek.”
But as explained above, the Kilburns did allege in their amended petition that the
employees were negligent in their use and operation of motor-driven equipment,
the specific injury of which the Kilburns complain is the physical damage to the
property rather than the violation of their property rights, and the fundamental
distinction between negligence and an intentional tort is whether the defendant
intended the specific injury, not whether the defendant intended the act. See Reed
Tool Co., 689 S.W.2d at 406. Moreover, section 101.021(1) “does not require that,
for the County’s immunity to be waived, the motor-driven equipment must be used
for something other than its intended purpose.” Freeman v. Harris Cnty., 183
S.W.3d 885, 889 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); see City of El
Paso v. W.E.B. Invs., 950 S.W.2d 166, 170 (Tex. App.—El Paso 1997, pet. denied)
(concluding that the negligence need not “be perpetrated in the actual physical
control of the motor-driven equipment for waiver to occur. The [Act] merely
requires that the damages ‘arise’ from use of a vehicle, and that there be proximate


                                        10
causation between the negligence and the injury”). Accordingly, we do not find the
County’s argument persuasive.

       Finally, the County argues that it is immune because “[p]roblems with
information and planning are not . . . subject to the waiver provisions under
§ 101.021,” and, in this case, the proximate cause of the injury was the incorrect
records that led the County to believe it had an easement on the Kilburns’
property.3 The County also contends that its employees would not be personally
liable because “[a]ctions taken at the planning or policy-making level, are immune;
actions taken at the subordinate or operational level, are not.”4 But the County did
not raise either of these issues below, and our review of the trial court’s order
sustaining a plea to the jurisdiction is limited to the matters presented to the trial

       3
          Even if we were to consider the merits of this argument, it would fail. The cases
discussing the government’s negligent use of information in the context of section 101.021
provide that information does not constitute “tangible personal property” for the purposes of
subsection (2). See, e.g., Petta, 44 S.W.3d at 580–81. But subsection (2) does not apply in this
case because it does not extend to property damage, and because the Kilburns rely only on
section (1), which does not mention tangible personal property.
       4
          Although we do not address the merits of this argument, we note that the relevant
distinction discussed in the cases on which the County relies is between discretionary and
ministerial acts rather than planning-level and operational-level acts. See, e.g., Stephen F. Austin
State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007) (“[T]he Act preserves immunity for
discretionary decisions under the ‘discretionary powers’ exception to the waiver. Tex. Civ. Prac.
& Rem. Code § 101.056. The exception’s purpose is to avoid judicial review or interference with
those policy decisions committed to the other branches of government.”); Tex. Dep’t of Transp.
v. Olivares, 316 S.W.3d 89, 97 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[T]he State
remains immune from suits arising from its discretionary acts and omissions.”) (quoting Tex.
Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002) (internal quotation marks omitted));
Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 465 (Tex. App.—Fort Worth 2001, pet.
denied) (“Appellants have failed to address how the design of the highway is not a discretionary
act for which Appellees have sovereign immunity. Under the Act, if the state’s action giving rise
to personal injury or death is discretionary, the Act does not waive the state’s immunity.”);
McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. App.—Fort Worth 1991, no writ)
(“[C]ases have stated that decisions made at a policy level instead of an operational level are
exempt as policy decisions. . . . The purpose behind this distinction and section 101.056 is ‘to
avoid a judicial review that would question the wisdom of a government’s exercise of its
discretion in making policy decisions.”).

                                                11
court. See City of Mont Belvieu, 222 S.W.3d at 519. Therefore, we need not
determine the merits of these arguments.

                                         ***

      In sum, construing the amended petition liberally in favor of the Kilburns
and looking to their intent, we conclude that the Kilburns alleged sufficient facts to
demonstrate the trial court’s jurisdiction, and we sustain the Kilburns’ first and
second issues on appeal. See Miranda, 133 S.W.3d at 228. Accordingly, we
reverse the trial court’s order granting the County’s plea to the jurisdiction and
dismissing the Kilburns’ negligence claim with prejudice, and we remand this
cause to the trial court for further proceedings consistent with this opinion.




                                        /s/     Jeffrey V. Brown
                                                Justice



Panel consists of Justices Brown, Christopher, and McCally.




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