                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00301-CV

LAUREN DAVID HILL
AND JOHNIE OLEN MCMULLEN, JR.,
                                                          Appellants
v.

LEON COUNTY,
                                                          Appellee



                           From the 12th District Court
                               Leon County, Texas
                            Trial Court No. AP-01-233


                          MEMORANDUM OPINION


      Appellants Lauren David Hill and Johnie Olen McMullen, Jr. were injured in

1999 when the vehicle they were in crashed into a road grader being operated by James

F. Miles, a Leon County County Commissioner, on a county road. In Appellants’ suit

against Leon County under the Texas Tort Claims Act, Leon County moved to dismiss

their claims for lack of subject-matter jurisdiction and alternatively moved for summary

judgment based on the affirmative defense of official immunity as to Miles’s conduct.
        The trial court ruled that the grader’s operation on the county road was not a

premises defect or a special defect and the county was thus immune from liability,

granted the county’s summary-judgment motion, ruled that Appellants would take

nothing, and taxed the county’s costs against Appellants.             Raising two issues,

Appellants appeal. We will affirm.

                                       Special Defect

        Appellants’ first issue challenges the trial court’s determination that the road

grader’s operation was not a special defect. A governmental unit, e.g., Leon County, is

immune from both suit and liability unless its immunity is waived by the terms of the

Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021, 101.025 (Vernon

2005). The threshold inquiry in this TTCA suit is whether immunity has been waived

under section 101.021(2), which states that “[a] governmental unit in the state is liable

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.” Id. § 101.021(2); see id. § 101.025; see also Tex. Dep’t

Transp. v. York, 234 S.W.3d 212, 215 & n.1 (Tex. App.—Waco 2007), rev’d on other

grounds, --- S.W.3d --- (Tex. 2008).

        A governmental unit may be subject to premises liability for either
        ordinary premise defects or special defects. . . . Special defects are
        “excavations,” “obstructions,” or other conditions which “present an
        unexpected and unusual danger to ordinary users of roadways.” State
        Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993)
        (per curiam) (quoting Payne, 838 S.W.2d at 238); see also TEX. CIV. PRAC. &
        REM. CODE ANN. § 101.022(b) (Vernon Supp. 2006); Fontenot, 151 S.W.3d at
        761; Corbin, 1 S.W.3d at 746. . . . [I]f the condition at issue constitutes a
        special defect, then the governmental unit owes the claimant the same

Hill v. Leon County                                                                     Page 2
        duty that a private person owes an invitee. Payne, 838 S.W.2d at 237;
        Fontenot, 151 S.W.3d at 760-61; Corbin, 1 S.W.3d at 747. . . . For a special
        defect, the governmental unit can be liable if it knew or should have
        known of the condition. Payne, 838 S.W.2d at 237; Fontenot, 151 S.W.3d at
        761. The plaintiff’s awareness of the existence of a special defect is
        immaterial. See Payne, 838 S.W.2d at 237; Fontenot, 151 S.W.3d at 761;
        Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547, 553 (Tex.
        App.—Waco 2001, no pet.).

               “Whether a condition is a premise defect or a special defect is a
        question of duty involving statutory interpretation and thus an issue of
        law for the court to decide.” Payne, 838 S.W.2d at 238; Fontenot, 151
        S.W.3d at 761; accord R.R. Street & Co. v. Pilgrim Enters., Inc., 166 S.W.3d
        232, 240 (Tex. 2005); Corbin, 1 S.W.3d at 747.

York, 234 S.W.3d at 215-16 (quoting Stewart v. City of Corsicana, 211 S.W.3d 844, 848-49

(Tex. App.—Waco 2006), rev’d on other grounds, 249 S.W.3d 412 (Tex. 2008)).

        Our standard of review on whether the condition is an ordinary premises defect

or a special defect—a question of law—is de novo.           See id. at 216 (citing State v.

Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); State Dep’t of Transp. v. O’Malley, 28 S.W.3d 652,

655 (Tex. App.—Corpus Christi 2000, pet. denied)).

              “A special defect must be a condition of the same kind or class as
        an excavation or roadway obstruction and present ‘an unexpected and
        unusual danger to ordinary users of roadways.’” Rodriguez, 985 S.W.2d at
        85 (quoting Payne, 838 S.W.2d at 238 and citing County of Harris v. Eaton,
        573 S.W.2d 177, 179 (Tex. 1978)). However, the examples in the statute
        (“such as excavations or obstructions”) are not exclusive, and we are to
        construe “special defects” to include defects of the same kind or class as
        the ones expressly mentioned in the statute. City of Grapevine v. Roberts,
        946 S.W.2d 841, 843 (Tex. 1997).

Id.

        The evidence shows that Miles was grading the rural gravel road at issue by

operating the blade to push up gravel from the bar ditch. The part of the road where


Hill v. Leon County                                                                    Page 3
the collision occurred is a hill, and to keep the gravel on the road’s surface, Miles

operated the grader on the left side of the road in an uphill direction because otherwise

the gravel would slide downhill. The road was lightly traveled and had a posted speed

limit of 30 mph. While operating the grader, Miles had its headlights and flashers on

and was moving at a slow speed. As Miles was operating the grader in the uphill

direction on the left side of the road, Appellants’ vehicle approached from the opposite

side of the hill and collided with the grader just as it had almost reached the crest of the

hill and was stopping as Miles saw a cloud of dust rising from Appellants’ oncoming

vehicle.

        Leon County points to several cases holding that operation or momentary

stopping of the grader was not a special defect in the county road. See State v. Burris,

877 S.W.2d 298, 299 (Tex. 1994) (“A fully operational motor vehicle, making an illegal

movement or momentarily stopped on a highway, is neither a defect in the highway

premises nor an excavation or obstruction or similar condition.”); Tex. Dep’t Transp. v.

Velasco, 40 S.W.3d 702, 704-05 (Tex. App.—San Antonio 2001, no pet.) (tractor-trailer

stopped on highway and struck by plaintiff’s vehicle was not a special defect); City of

Houston v. Rushing, 7 S.W.3d 909, 915-17 (Tex. App.—Houston [1st Dist.] 1999, pet.

denied) (stalled truck blocking two of three traffic lanes was not a special defect); see also

Vongphachanh v. City of Dallas, 2002 WL 31247974, at *3-4 (Tex. App.—Dallas Oct. 8,

2002, no pet.) (not designated for publication) (dangers posed by street racing on city

street not a premises defect or special defect); Pollinzi v. State, 1996 WL 29292, at *11

(Tex. App.—Dallas Jan. 24, 1996, pet. denied) (not designated for publication) (slow or

Hill v. Leon County                                                                     Page 4
stopped vehicle trailing TXDOT “striping” truck was not special defect). Similarly, we

hold that Miles’s operation of the grader on the occasion in question was not a special

defect. We overrule Appellants’ first issue.

                                           Costs

        Appellants’ second issue complains about the trial court’s taxing of costs against

them.     The trial court’s original judgment taxed costs against Appellants.          After

obtaining the bill of costs and determining that it omitted a number of taxable costs,

Leon County moved the trial court to re-tax costs. Appellants opposed that motion and

moved the court to modify the judgment to tax costs against the party who had

incurred them or alternatively to tax costs against Leon County, the successful party,

because it had unnecessarily prolonged the case and caused unnecessary costs in

discovery while always planning to move to dismiss the case but waiting until the eve

of trial. The trial court re-taxed costs in Leon County’s favor, thus denying Appellants’

motion.

        The successful party is entitled to recover from the opposing party all taxable

court costs it incurred. See TEX. R. CIV. P. 131. However, for good cause stated on the

record, the trial court may tax costs otherwise, i.e., against the successful party. Id. 141;

Roberts v. Williamson, 111 S.W.3d 113, 124 (Tex. 2003); see, e.g., Rogers v. Walmart Stores,

Inc., 686 S.W.2d 599, 601 (Tex. 1985) (trial court demonstrated good cause in assessing

part of ad litem costs against prevailing party because conduct of that party had

unnecessarily prolonged and obstructed trial). Taxing costs against a successful party




Hill v. Leon County                                                                    Page 5
generally contravenes Rule 131. Furr’s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376

(Tex. 2001).

        The trial court has discretion in ruling on costs under Rule 141. Id. at 378. We

review that ruling for an abuse of discretion. Sparks v. Booth, 232 S.W.3d 853, 872 (Tex.

App.—Dallas 2007, no pet.). We cannot say that the trial court abused its discretion in

this case in refusing to tax costs against Leon County or to tax costs against the party

who had incurred them. Issue two is overruled.

        Having overruled both issues, we affirm the trial court’s judgment.




                                                BILL VANCE
                                                Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray concurs in the judgment of the Court to the extent it affirms
       the trial court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed December 10, 2008
[CV06]




Hill v. Leon County                                                                Page 6
