                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                             ________________________

                                 No. 07-16-00037-CV
                             ________________________


                          JORGE RODRIGUEZ, APPELLANT

                                           V.

                         CITY OF FORT WORTH, APPELLEE



                          On Appeal from the 153rd District Court
                                   Tarrant County, Texas
             Trial Court No. 153-272274-14; Honorable Susan McCoy, Presiding


                                   December 8, 2017

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Jorge Rodriguez, appeals from the trial court’s order granting the City

of Fort Worth’s plea to the jurisdiction in his suit for damages arising from the City’s

condemnation and subsequent demolition of an unoccupied residence owned by

Rodriguez. By two issues, Rodriguez contends the trial court abused its discretion in
granting Fort Worth’s plea to the jurisdiction and in dismissing his claim with prejudice

before allowing him to amend his pleadings.1 We affirm.


        BACKGROUND

        The record before us establishes that prior to Rodriguez’s ownership of a

residential structure in the City of Fort Worth, it was found to be substandard and

hazardous to public health by the City’s Building Standards Commission. On September

24, 2012, the Commission held a hearing to determine whether to condemn and demolish

the structure. By written order, the Commission directed that the structure be repaired to

conform with City codes by October 24, 2012, or be demolished if repairs were not made.

The order provided that failure to repair the premises would authorize the City to enter

the property and demolish the structure at the expense of the property owner. A copy of

the order was mailed to the then owner and filed in the deed records of Tarrant County

on October 19, 2012.


        Rodriguez, a self-employed construction worker, alleged in his live pleading that

he purchased the property on December 12, 2012, without personal knowledge of the

Commission’s order to demolish the property.2                    He purchased the property for

approximately $14,000 from Eduardo Ybarra with whom he had previous dealings in




        1 Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by

the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Second Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX.
R. APP. P. 41.3
        2The filing of the City’s Condemnation Order in the deed records of Tarrant County did provide
Rodriguez with constructive notice of the order.

                                                    2
investment properties.    Following his purchase, Rodriguez placed building materials

inside the structure with the intent to renovate the structure for resale.


       In late May 2013, Rodriguez received a letter from the City that the Historic and

Cultural Landmarks Commission had approved a Certificate of Appropriateness to

demolish his property.      On June 17, 2013, he went to the City’s Planning and

Development Department to seek clarification on the letter. He was advised by an

unidentified City employee that the letter had been issued in error and that his property

was not scheduled for demolition.


       Despite the City employee’s assurance, Rodriguez discovered on June 29, 2013,

that his property had been demolished the previous day. The City had engaged an

independent contractor for demolition of the structure. Rodriguez again visited City Hall

where he was offered paperwork to make a claim and asked whether he intended to file

suit. He submitted a claim for damages which was denied.


       The denial of his claim prompted Rodriguez to file suit against the City under the

Texas Tort Claims Act (TTCA). By his first amended petition filed in October 2014,

Rodriguez alleged that the City intentionally and negligently demolished his property and

its contents through the operation or use of a motor-driven vehicle or motor-driven

equipment. In response, the City filed its plea to the jurisdiction seeking dismissal of

Rodriguez’s suit on the ground that there was no waiver of governmental immunity under

the TTCA.




                                              3
        Rodriguez responded to the City’s plea to the jurisdiction by asserting that he plead

a “takings claim” in his live pleading in addition to his tort claim under the TTCA.3 By a

supplemental plea to the jurisdiction and a second supplemental plea to the jurisdiction,

the City asserted that the TTCA did not apply when an independent contractor performed

the work. The City also disputed whether Rodriguez alleged a takings claim in his live

pleading. Rodriguez responded to both supplemental pleas by re-urging his takings claim

which he maintained was properly alleged in his live pleading. He also alleged he was

denied notice and an opportunity to be heard because several notices regarding the

demolition had been mailed to the previous owner (Ybarra) by the City even though he

had been the record owner for months.4 Rodriguez requested that he be allowed to

amend his pleading but did not, and months later, the trial court granted the City’s plea to

the jurisdiction.


        SOVEREIGN/GOVERNMENTAL IMMUNITY

        “Sovereign immunity and its counterpart, governmental immunity, exist to protect

the State and its political subdivisions from lawsuits and liability for money damages.”

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Reata

Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Sovereign immunity

protects the State, as well as its agencies and officials; Ben Bolt-Palito Blanco Consol.


        3Rodriguez claimed he had alleged a “takings” claim in his live pleading when he asserted in
paragraph 16 that the City demolished his property “without proper notice or due process from a
government agency.”

        4 During Rodriguez’s deposition, a recorded warranty deed showing him as the grantee was offered

as an exhibit but it does not appear in the clerk’s record. According to his testimony, he is listed as the
grantee, but the grantee’s address belonged to Ybarra—the seller. He could not explain why Ybarra’s
address was listed under the grantee’s name. Additionally, Rodriguez testified he did not use a title
company nor did he obtain title insurance.


                                                    4
Indep. Sch. Dist. v. Texas Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d

320, 323-24 (Tex. 2006); Reata Constr. Corp., 197 S.W.3d at 374, whereas,

governmental immunity protects political subdivisions of the State, including counties,

cities, and school districts. Ben Bolt, 212 S.W.3d at 324.


       Under the doctrines of sovereign and governmental immunity, it has long been

recognized that there are two separate and distinct components to immunity:              (1)

immunity from liability, which bars enforcement of a judgment against a governmental

entity and (2) immunity from suit, which bars suit against the governmental entity

altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); Texas Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). These two components

of immunity have come to be applied in a variety of circumstances to promote the

pragmatic purpose of immunity, which is to “shield the public from the costs and

consequences of improvident actions of their governments.” Tooke, 197 S.W.3d at 332.

Accordingly, the State and its political subdivisions are protected from both lawsuits and

liability unless (1) immunity does not apply to the claim or (2) immunity has been waived.

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).


       Immunity is an affirmative defense subject to waiver, Miranda, 133 S.W.3d at 224;

however, the Legislature has the exclusive authority to do so by statute. IT-Davy, 74

S.W.3d at 853-54. To ensure that this legislative control is not lightly disturbed, statutes

waiving immunity are strictly construed as not waiving immunity unless that waiver is

effected by “clear and unambiguous” language. See TEX. GOV’T CODE ANN. § 311.034

(West 2013). See also Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369

S.W.3d 845, 849 (Tex. 2012); Tooke, 197 S.W.3d at 332-33. Resultantly, in determining

                                             5
the existence of waiver of immunity, any ambiguity should be resolved in favor of retaining

immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).


       TEXAS TORT CLAIMS ACT/W AIVER OF IMMUNITY

       The TTCA provides a limited waiver of sovereign and governmental immunity.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.001-.109 (West 2011 & Supp. 2017).5 A

governmental unit is liable for property damage caused by the wrongful act or omission

or the negligence of a government employee acting within the scope of employment if the

property damage arises from the operation or use of a motor-driven vehicle or motor-

driven equipment and the employee would be personally liable to the claimant under

Texas Law. § 101.021(1)(A). A city is a governmental unit. § 101.001(3)(B).


       The TTCA defines “employee” but excludes from that definition “an independent

contractor, an agent or employee of an independent contractor, or a person who performs

tasks the details of which the governmental unit does not have the legal right to control.”

§ 101.001(2). “Arises from” requires a nexus between the damage negligently caused by

a governmental employee and the operation or use of a motor-driven vehicle or motor-

driven equipment.       LeLeaux v. Hamshire-Fannett Independent School District, 835

S.W.2d 49, 51 (Tex. 1992). “Operation” means “a doing or performing of a practical work.”

Id. “Use” means “to put or bring into action or service; to employ for or apply to a given

purpose.” Id.




       5 All references to “section” or “§” are to the Texas Civil Practice and Remedies Code unless
otherwise designated.

                                                 6
       STANDARD OF REVIEW—PLEA TO THE JURISDICTION

       A plea to the jurisdiction is a dilatory plea that challenges a trial court’s authority to

decide the subject matter jurisdiction of a specific cause of action. Miranda, 133 S.W.3d

at 225-26. The party suing a governmental entity bears the burden of affirmatively

demonstrating the trial court has jurisdiction to hear the dispute. Tex. Dep’t of Criminal

Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). In the context of a claim of sovereign

or governmental immunity from suit, the proponent of a plea to the jurisdiction contends

the trial court lacks subject matter jurisdiction over the claim because it is protected by

immunity from suit which has not been legislatively waived. W. Tex. Mun. Power Agency

v. Republic Power Partners, L.P., 428 S.W.3d 299, 304 (Tex. App.—Amarillo 2014, no

pet.). If the pleadings are insufficient to establish jurisdiction but do not affirmatively

demonstrate an incurable defect, the plaintiff should be afforded an opportunity to amend

his pleadings. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). In some cases, a plea

to the jurisdiction may require the court to consider evidence pertaining to jurisdictional

facts. Miranda, 133 S.W.3d at 227. A plea should not be granted if a fact issue is

presented as to the court’s jurisdiction, but if the relevant undisputed evidence negates

jurisdiction, then the plea to the jurisdiction must be granted. Id. at 227-28.


       We review a trial court’s ruling on a plea to the jurisdiction under a de novo

standard. Tex. D.O.T. & Edinburg v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166

(Tex. 2012); Miranda, 133 S.W.3d at 226. In doing so, we exercise our own discretion

and redetermine each legal issue, without giving deference to the lower court’s decision.

See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999) (op. on reh’g).




                                               7
      ISSUE ONE—PLEA TO THE JURISDICTION

             RODRIGUEZ’S TORT CLAIM

      Rodriguez contends the trial court erroneously granted the City’s plea to the

jurisdiction because its immunity was waived when motor-driven equipment was the

proximate cause of the damage to his property. Specifically, he alleged that motor-driven

vehicles and the City’s employees, while acting within the scope of their employment,

were responsible for the destruction of his property. He did not, however, allege that his

damages “arose from” the “operation” or “use” of that equipment by a City employee.


      In support of its plea to the jurisdiction, the City provided a copy of the contract

entered into with the independent contractor for demolition of Rodriguez’s property.

Paragraph five of the contract provides as follows:


      [t]he City agrees to hire Contractor as an independent contractor, and not
      as an officer, servant, or employee of the City. Contractor shall have the
      exclusive right to control the details of the work performed hereunder and
      all persons performing same, and shall be solely responsible for the action
      and omissions of its officers, agents, employees, and subcontractors.
      Nothing herewith [sic] shall be construed as creating a partnership or joint
      venture between the City and Contractor, its officers, agents, employees,
      and subcontractors, and the doctrine of respondent [sic] superior has no
      application as between the City and Contractor.

      The City also provided an affidavit from its superintendent of the Building

Standards Division of the Code Compliance Department. She averred that demolition

was accomplished by a private contractor and its employees and that no City employee

was involved in using any motor-driven vehicle or equipment.


      Rodriguez asserts that the independent contractor’s employees were working

under instructions from City employees which implicated a waiver of the City’s


                                            8
governmental immunity.      In a somewhat similar case involving the demolition of

condemned property, County of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 170 (Tex.

App.—El Paso 1997, writ denied), the court found a waiver of immunity where the

condemned property was demolished through the use of motor-driven equipment owned

by the City of El Paso and operated by its employees. Cf. County of Galveston v. Morgan,

882 S.W.2d 485, 490 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (finding a waiver

of immunity where county employees acting as spotters “used” or “operated” an

independent contractor’s truck by controlling its movements during a road resurfacing

project); City of El Campo v. Rubio, 980 S.W.2d 943, 945-46 (Tex. App.—Corpus Christi

1998, pet. dism’d w.o.j.) (finding “use” or “operation” of a motor-driven vehicle where a

police officer instructed an unlicensed passenger how to operate the vehicle following the

driver’s arrest).


       Here, however, there is nothing in the record to show that City employees were

involved with the demolition by “operating” or “using” motor-driven vehicles or equipment

or by exercising any control over the independent contractor or its employees. No City-

owned motor-driven vehicles or equipment were used in the demolition of Rodriguez’s

property and there is nothing in the record to support Rodriguez’s bare assertion that City

employees were instructing the independent contractor or its employees or exercising

any degree of control over the demolition. His pleadings do not establish that any City

employee “used” or “operated” any motor-driven vehicle or equipment in carrying out the

demolition. Consequently, Rodriguez did not show that the City waived its governmental

immunity.




                                            9
                 RODRIGUEZ’S TAKINGS CLAIM

         Rodriguez further maintains the trial court erred in granting the City’s plea to the

jurisdiction because he alleged a takings claim in violation of Article I, section 17 of the

Texas Constitution. That section provides that “[n]o person’s property shall be taken,

damaged or destroyed for or applied to public use without adequate compensation being

made, unless by the consent of such person.” TEX. CONST. art. I, § 17. Neither sovereign

nor governmental immunity shield a governmental entity from a claim based on an

unconstitutional taking of property. Tex. Parks & Wildlife Dep’t. v. Sawyer Trust, 354

S.W.3d 384, 390 (Tex. 2011); General Servs. Comm’n v. Little-Tex Insulation Co., 39

S.W.3d 591, 598 (Tex. 2001).


         In order “[t]o establish a takings claim, the claimant must seek compensation

because the defendant intentionally performed actions that resulted in taking, damaging,

or destroying property for public use without the owner’s consent.” Sawyer Trust, 354

S.W.3d      at   390-91   (citing   Little-Tex    Insulation   Co.,   39   S.W.3d   at   598).

The premise for a constitutional takings claim is that one person should not have to bear

the cost of his property being put to public use unless he consents. Id. at 391. Whether

a claimant’s allegations are sufficient to constitute a takings claim is a question of law for

the trial court to decide. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex.

1998).


         Here, Rodriguez did not allege any facts demonstrating that demolition of his

property was for public use.        The improvements on the property were found to be

substandard and hazardous to public health; however, the owner was given the

opportunity to bring those improvements up to code in order to prevent their demolition.

                                                 10
When the improvements were not brought up to code, the public health hazard was

removed. As such, Rodriguez’s claims do not allege a constitutional takings claim.


         Because Rodriguez did not establish a waiver of governmental immunity as to his

tort claim nor did he allege a cause of action exempt from a claim of immunity, such as a

takings claim, the trial court did not err in granting the City’s plea to the jurisdiction. Issue

one is overruled.


         ISSUE TWO—PLEADING DEFICIENCY

         When a plaintiff fails to plead facts that establish jurisdiction but the petition does

not demonstrate incurable defects, the issue is one of pleading sufficiency and the plaintiff

should be afforded the opportunity to amend. See Miranda, 133 S.W.3d at 226-27. See

also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If, however, the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction

may be granted without allowing the plaintiff an opportunity to amend. Brown, 80 S.W.3d

at 555. Furthermore, a plaintiff should not be permitted to relitigate jurisdiction once that

issue has been finally determined. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.

2004).


         In his responses to the City’s supplemental pleas to the jurisdiction, Rodriguez

requested leave to amend his live pleading to assert facts to establish the trial court’s

jurisdiction. Those responses were filed on January 29, 2015, and on July 6, 2015. The

trial court subsequently signed the order granting the City’s plea to the jurisdiction on

November 24, 2015. Because Rodriguez had a reasonable opportunity to amend his




                                               11
pleadings, he cannot now be heard to complain about being deprived of a reasonable

opportunity to amend.


       Furthermore, even if Rodriguez were afforded an opportunity to amend his

pleading, his live pleading indicates an incurable defect as to both his tort claim and his

takings claim.   The City used an independent contractor for the demolition; thus,

governmental immunity was a bar to Rodriguez’s suit and amending his pleading could

not have cured that jurisdictional defect because the record unequivocally established

that City employees did not “use” or “operate” any motor-driven vehicle or equipment to

demolish his property. See Brown, 280 S.W.3d at 555. Additionally, Rodriguez could not

have cured jurisdictional defects concerning a takings claim because he cannot establish

the City demolished his property for public use. Consequently, the trial court did not err

in denying Rodriguez an opportunity to replead his claims. Issue two is overruled.


       CONCLUSION

       The trial court’s order granting the City of Fort Worth’s Plea to the Jurisdiction is

affirmed.




                                                        Patrick A. Pirtle
                                                            Justice




                                            12
