      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00363-CV



                                      Mark Buethe, Appellant

                                                   v.

                                       Rita O’Brien, Appellee


               FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
         NO. C-1-CV-06-008044, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                              M E M O R A N D U M O P I N I ON


                Appellee Rita O’Brien sued appellant Mark Buethe in County Court at Law No. 1 of

Travis County for injuries she sustained in a car accident. The jury found Buethe negligent and

grossly negligent and awarded O’Brien $13,205 in compensatory damages and $240,000 in

exemplary damages. After reducing the exemplary damages to $200,000 in compliance with the

civil practice and remedies code, see Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (West 2008), the

trial court rendered judgment for O’Brien on the jury’s verdict. In four issues on appeal, Buethe

asserts that (1) the trial court lacked subject-matter jurisdiction because O’Brien’s pleaded damages

were outside the jurisdictional limits of the county court at law, (2) the trial court erred in reopening

the evidence, taking judicial notice of a document not before it, and allowing improper jury argument

with respect to a document not in evidence, (3) the exemplary damage award is unsupported by the

evidence, and (4) the exemplary damage award violates the Due Process Clause of the United States
Constitution. Concluding that the trial court lacked jurisdiction, we will vacate the trial court’s

judgment and dismiss the cause for lack of jurisdiction.


                      FACTUAL AND PROCEDURAL BACKGROUND

                Because we address only Buethe’s jurisdictional issue, we limit our discussion of the

facts to those relevant to that issue.

                O’Brien was injured when a car driven by Buethe collided with the car in which she

was a passenger. O’Brien filed suit against Buethe in Travis County Court at Law No. 1, alleging

that his negligence and gross negligence caused her injuries. The maximum jurisdictional limit of

a county court at law in Travis County is $250,000. See Tex. Gov’t Code Ann. § 25.2292(a) (West

2004). With respect to the amount in controversy, O’Brien’s first amended petition1 stated:


        This suit is brought in accordance with the laws of the State of Texas, for the
        recovery of damages which exceed the minimum jurisdictional limits of the Court,
        to which Plaintiff is entitled to receive as compensation as described below.
        Accordingly, the Court has jurisdiction over this matter and venue is proper in Travis
        County, Texas.


Buethe specially excepted to O’Brien’s failure to state the maximum damages she sought. In

response, O’Brien filed her Second Amended Petition, stating that “at the time of this pleading,

[O’Brien] does not believe that her damages could possibly exceed $5,000,000.” Buethe then filed

a motion to dismiss, asserting that O’Brien had (1) failed to demonstrate the court’s jurisdiction


        1
           O’Brien filed her original petition in Bexar County, but the case was later transferred to
Travis County Court at Law No. 1. Plaintiff’s First Amended Petition was the first pleading O’Brien
filed in this case in the Travis County court. The original petition filed in Bexar County is not part
of the appellate record.

                                                  2
because she failed to plead an amount in controversy that was within the jurisdictional limits of the

court, and (2) affirmatively negated the court’s jurisdiction by seeking damages in excess of the

court’s upper jurisdictional limit. The court denied Buethe’s motion and proceeded to trial.

                At trial, O’Brien presented evidence of compensatory damages substantially greater

than the court’s $250,000 maximum. The jury found Buethe negligent and grossly negligent,

awarding O’Brien $13,205 in compensatory damages and $240,000 in exemplary damages, which

the trial court reduced to $200,000 in accordance with section 41.008 of the civil practice and

remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008. As so reduced, the trial court

rendered judgment in favor of O’Brien on the jury’s verdict. Buethe appealed.


                                    STANDARD OF REVIEW

                Whether a court has subject-matter jurisdiction is a question of law, which we review

de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The

plaintiff bears the burden of alleging jurisdictional facts that, if true, affirmatively demonstrate the

trial court’s jurisdiction. See id. at 226-27. When reviewing a grant or denial of a motion to dismiss

for lack of jurisdiction, we consider the plaintiff’s pleadings, construed in favor of the plaintiff, and

any evidence relevant to jurisdiction without considering the merits of the claim beyond the extent

necessary to determine jurisdiction. Id.; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.

2002). If the plaintiff’s pleadings “affirmatively negate the existence of jurisdiction,” then a motion

to dismiss for lack of jurisdiction may be granted without affording the plaintiff an opportunity to

amend. Miranda, 133 S.W.3d at 226-27. If, however, the pleadings do not “demonstrate incurable




                                                   3
defects in jurisdiction,” but merely fail to allege sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction, then the plaintiff should have an opportunity to amend. Id.


                                             DISCUSSION

                In his first issue, Buethe asserts that the trial court lacked subject-matter jurisdiction

over O’Brien’s suit because she pleaded an amount in controversy outside the jurisdictional limits

of the court. To fall within the jurisdiction of the county courts at law of Travis County, the parties

must have a “matter in controversy [that] exceeds $500 but does not exceed $250,000, excluding

interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the

face of the petition.” Tex. Gov’t Code Ann. § 25.2292(a). O’Brien’s original pleading alleged that

the amount in controversy exceeded the court’s minimum jurisdictional amount, but it was silent as

to the maximum extent of her damages. Buethe filed special exceptions requesting that O’Brien

plead the maximum amount of damages sought. In response, O’Brien filed her second amended

petition pleading that she sought no more than $5,000,000.

                Buethe’s special exceptions objected that O’Brien’s first petition was defective and

therefore did not establish the court’s jurisdiction. Buethe argues that O’Brien’s second amended

petition, the live petition at trial, either failed to cure the defect or actually alleged an amount in

controversy above the jurisdictional limits of the county court at law, thus affirmatively negating that

court’s jurisdiction. O’Brien responds that, at the time she filed her first petition, her damages were

within the jurisdictional limits of the court. She argues that any increase in the amount of her

damages from filing to trial was due solely to the passage of time and unpredicted changes in her

circumstances. She also argues that her second petition’s $5,000,000 damage figure included

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punitive damages. Because the jurisdictional amount-in-controversy requirement is calculated

without reference to punitive damages, she contends that her actual claimed damages were within

the court’s jurisdictional limit.

                As a general proposition, a plaintiff bears the burden of alleging jurisdictional facts

that, if true, affirmatively demonstrate the trial court’s jurisdiction. See Miranda, 133 S.W.3d at

226-27. For the Travis County Court at Law to have jurisdiction here, the parties must have an

amount in controversy, as alleged by the plaintiff, within the statutory limits. See Tex. Gov’t Code

Ann. § 25.2292(a) (setting upper and lower amount-in-controversy limits); see also United Servs.

Auto. Ass’n v. Brite, 215 S.W.3d 400, 402-03 (Tex. 2007) (“The jurisdictional statute for

county courts at law values the matter in controversy on the amount of damages alleged by the

plaintiff . . . .”). Accordingly, to affirmatively demonstrate the trial court’s jurisdiction, O’Brien bore

the burden of pleading damages that were within the trial court’s jurisdictional limits.

                In addition to those common-law jurisdictional pleading requirements, rule of

civil procedure 47(b) requires an original pleading in a claim for unliquidated damages only to

“contain . . . the statement that damages sought are within the jurisdictional limits of the court.”

Tex. R. Civ. P. 47(b); see also Brite, 215 S.W.3d at 402.2 Failure to include such a statement in an

original pleading renders that pleading defective. Brite, 215 S.W.3d at 402. O’Brien correctly notes

that, even though such a pleading is defective,“[t]he failure of a plaintiff to state a jurisdictional

amount in controversy in its petition, without more, . . . will not deprive the trial court of




        2
          Rule 47 also states that “upon special exception the court shall require the pleader to amend
so as to specify the maximum amount claimed.”

                                                    5
jurisdiction.” Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989). The “Peek

presumption,” however, operates only if (1) the defendant fails to object to the plaintiff’s defective

pleadings, and (2) the plaintiff’s pleadings do not affirmatively demonstrate a lack of jurisdiction.

Id. If those conditions are met, the court should presume in favor of jurisdiction and allow the

plaintiff an opportunity to prove jurisdiction at trial. Id. (“Even if the jurisdictional amount is never

established by pleading, in fact, a plaintiff may recover if jurisdiction is proved at trial.”).

                O’Brien’s first amended petition—her original pleading in the Travis County

court—did not contain the jurisdictional statement required by the common-law pleading rules and

rule of civil procedure 47(b). See Brite, 215 S.W.3d at 402; Miranda, 133 S.W.3d at 226-27.

Buethe specially excepted to O’Brien’s defective petition, requesting that O’Brien “state the

maximum amount of [her] damages.” In response to Buethe’s special exception, O’Brien amended

section IX of her petition by adding the following paragraph:


        On or about December 12, 2008, Defendant’s defense attorney filed a document with
        the Court entitled, “Defendant’s Special Exception to Plaintiff’s First Amended
        Petition.” The document sought to force Plaintiff to specify the maximum amount
        that the Plaintiff could be entitled to. In order to satisfy the Defendant’s attorney’s
        request, Plaintiff will state that, at the time of this pleading, she does not believe that
        her damages could possibly exceed $5,000,000.00. Plaintiff, however, reserves the
        right granted to her under the Texas Rules of Civil Procedure to increase or decrease
        this amount to conform to [sic] information to the evidence presented at trial, or the
        verdict of the jury.


Buethe argues that O’Brien’s amended petition—pleading maximum damages far in excess of the

court’s $250,000 jurisdictional limit—affirmatively negated the court’s jurisdiction. Under the

circumstances presented here, we agree. O’Brien’s second amended petition—the first pleading in



                                                    6
which she alleges her maximum damages—states that those damages could not exceed $5,000,000.

This allegation does not demonstrate that O’Brien’s claims are within the jurisdictional limits of the

court in which she filed. Read literally, it states a claim outside those limits. Accordingly, O’Brien’s

amended petition affirmatively negated the trial court’s subject-matter jurisdiction because it alleged

damages in excess of the trial court’s jurisdictional limits.

                O’Brien notes that “where jurisdiction is once lawfully and properly acquired, no

later fact or event can defeat the court’s jurisdiction.” Continental Coffee Prods. Co. v. Cazarez,

937 S.W.2d 444, 449 (Tex. 1996). While that statement is true as a general matter, here the trial

court never “lawfully and properly acquired” jurisdiction because O’Brien’s first pleading was

defective as filed, and her amended pleading, filed in response to Buethe’s special exceptions, sought

damages above the court’s jurisdiction. O’Brien argues that, even so, the Peek presumption applies

here. We disagree. The Peek presumption applies only in the absence of an objection to the

plaintiff’s defective pleadings. 779 S.W.2d at 804. Because Buethe specially excepted to the

jurisdictional pleading defect, Peek does not control here.

                O’Brien also argues that her pleaded maximum damages of $5,000,000 included

punitive damages. Because punitive damages are not considered in calculating the jurisdictional

amount in controversy, see Tex. Gov’t Code Ann. § 25.2292(a), O’Brien asserts that the $5,000,000

figure should not be construed as having jurisdictional significance. In essence, O’Brien asks us to

(1) ignore Buethe’s timely objection to her defective pleading, (2) assume that when she amended

her pleading in response to Buethe’s objection she (inadvertently or mistakenly) failed to address the

jurisdictional issue presented by that objection (meaning that her pleading would still be defective),



                                                   7
(3) allow the Peek presumption to control, and (4) hold that she established jurisdiction by presenting

evidence at trial. We decline to do so for several reasons.

               First, we are unpersuaded that O’Brien’s amended pleading, fairly read, included both

compensatory and exemplary damages in alleging $5,000,000 as her maximum damages. The

statement appeared in section IX of her amended petition, labeled “Damages.” In that section,

O’Brien claimed that she suffered injuries as a result of the car accident and requested compensation

for past and future pain, impairment, mental anguish, and medical expenses—all compensatory

damages. In contrast, section VII of the petition contains O’Brien’s allegation of Buethe’s gross

negligence and her request for exemplary damages in an unspecified amount. Section VII was not

amended in response to Buethe’s special exceptions. Based on this, the $5,000,000 figure alleged

in O’Brien’s amended petition cannot reasonably be construed to include exemplary damages.

               Second, we cannot ignore that O’Brien amended her petition to state her maximum

damages in response to the defendant’s objection based on that jurisdictional defect. O’Brien is, in

effect, asking us to construe her pleadings liberally in favor of jurisdiction. See Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000) (“When a party fails to specially except,

courts should construe the pleadings liberally in favor of the pleader. An opposing party should use

special exceptions to identify defects in a pleading so that they may be cured, if possible, by

amendment.” (Emphasis added.)). Here, however, such liberal construction is not appropriate

because Buethe did specially except to the pleading defect, and O’Brien had an opportunity to amend

her pleading to correct the defect. While it might seem unlikely that O’Brien intended to plead




                                                  8
herself out of court, we cannot ignore Buethe’s objection and O’Brien’s response. We must take

O’Brien’s amendment at face value.

                Third, to hold as O’Brien suggests would require us to extend the Peek presumption

beyond its limited boundaries. As noted above, the presumption applies only in the absence of an

objection. Accordingly, it does not apply here. We decline to extend it to situations in which a

defendant has properly objected to a plaintiff’s defective pleading by special exceptions.

                O’Brien next argues that, at the time she filed her first petition, her damages were

within the jurisdictional limits of the court and that any increase in her damages was due to a change

in her circumstances over time. See Mr. W. Fireworks, Inc. v. Mitchell, 622 S.W.2d 576, 577 (Tex.

1981) (increase in amount in controversy above court’s jurisdictional limits does not affect court’s

jurisdiction if additional damages accrued due to passage of time). We need not decide if that is the

case here, however, because neither of O’Brien’s petitions alleged an amount in controversy within

the court’s jurisdictional limits. The present case, therefore, is not like the typical case where the

plaintiff first pleads an amount in controversy within the jurisdictional limits of the court but later,

due to the passage of time, claims damages that exceed the jurisdictional limit.3 See id; see also

Flynt v. Garcia, 587 S.W.2d 109, 110 (Tex. 1979) (per curiam) (when original petition alleged




       3
         Even if this argument were not foreclosed by Buethe’s objections to O’Brien’s defective
pleadings, the record reveals that O’Brien presented evidence at trial that she had sustained more
than $250,000 in compensatory damages. While O’Brien claims that her damages were less than
$250,000 when she filed her first petition—the key date for the jurisdictional inquiry—and that her
damages increased only because of the passage of time, we cannot say that the record affirmatively
supports her contention.

                                                   9
amount in controversy within court’s jurisdictional limits, court had jurisdiction to enter judgment

in excess of limits if additional damages accrued due to passage of time).

                Finally, O’Brien asserted at oral argument that, just before trial, in open court, she

made an oral amendment to her live petition, in order to take a “belt and suspenders approach” to

ensure that her pleadings invoked the trial court’s jurisdiction. Although the trial transcript reflects

that O’Brien’s attorney orally moved for leave to amend her pleading and that the court granted that

motion over Buethe’s objection, O’Brien never filed the proposed amendment. Rule 45 of the Texas

Rules of Civil Procedure requires that pleadings be “in writing . . . [and] signed by the party or

his attorney.” Tex. R. Civ. P. 45. Though some Texas courts have held that it was not an

abuse of discretion for a trial court to permit an oral amendment to pleadings where “an

attorney for the plaintiff personally dictated an amendment into the record,” see Humbler v. Oshman,

700 S.W.2d 694, 699 (Tex. App.—Corpus Christi 1985, no pet.), here O’Brien’s attorney did not

dictate the amendment into the record. Rather, he moved for leave to amend O’Brien’s pleading and

described the proposed amendment generally in support of his motion for leave. We do not consider

this to be a valid trial amendment.

                In light of the foregoing, we conclude that O’Brien’s pleadings affirmatively negated

the trial court’s jurisdiction because the pleaded amount in controversy exceeded that over which

a Travis County court at law has jurisdiction. See Miranda, 133 S.W.3d at 226-27. Even if

O’Brien’s amended pleading were not considered to have affirmatively negated the court’s

jurisdiction, that pleading failed to cure the jurisdictional pleading defect to which Buethe had raised




                                                  10
objection. We sustain Buethe’s first issue. Having concluded that the trial court lacked jurisdiction,

we need not address his other issues. See Tex. R. App. P. 47.1.


                                          CONCLUSION

               Having held that O’Brien’s amended pleading failed, after objection, to allege facts

demonstrating the trial court’s jurisdiction and, indeed, affirmatively negated the trial court’s

jurisdiction, we vacate the trial court’s judgment and dismiss the cause.



                                               __________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Vacated and Dismissed

Filed: June 30, 2010




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