                            NUMBER 13-14-00439-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

CITY OF BAY CITY,                                                            Appellant

                                           v.

BOBBIE P. GASPARD,                                                            Appellee.


                    On appeal from the 23rd District Court
                        of Matagorda County, Texas.


                         MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria

      Appellee Bobbie Gaspard tripped and injured herself while exiting the Business

Development Center (the Building) owned by appellant City of Bay City (the City).

Gaspard filed a premises defect suit against the City. The City filed a plea to the

jurisdiction, claiming that Gaspard did not plead sufficient facts to demonstrate that the
City had waived its sovereign immunity. After the trial court denied the City’s plea, the

City filed this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West,

Westlaw through Chapter 46, 2015 R.S.) (allowing an interlocutory appeal after the grant

or denial of a government’s plea to the jurisdiction). The City argues in three issues that

the trial court erred in denying its plea to the jurisdiction. We reverse and render judgment

for the City.

                                         I. BACKGROUND

       According to the City, around 1994, City employees in the Building experienced

problems with the wind blowing the front doors open, scattering all of their papers around,

and lowering the temperature in the offices. Building Official Jimmy Hendrickson was

given the job to fix the problem. Hendrickson stated during his deposition that he decided

that the best solution was to enclose the covered front porch area with glass, and include

exterior doors between the supporting columns of the porch roof. He testified that he

hired a glass company to accomplish the task, sometime between 1994 and 1998.

Hendrickson claimed that he personally met with Vaughn Watts, the owner of the glass

company, to discuss the design of the porch area and to tell Watts exactly how he wanted

the porch built. Hendrickson further asserted that the glass area was constructed exactly

“as [he] intended and in accordance with the design that [he] developed.” Outside the

installed doors, there were only two steps: a step down from the doorway and a second

step down onto the sidewalk. Hendrickson testified that “at the time that it was done, it

appeared that was the only way we could do it.”

       Gaspard testified in her deposition, even though she could not give a specific

number, that she had visited the Building about once a month for the previous five years



                                             2
to attend meetings and that prior to the accident, she used the same stairs on almost

every visit.1 Gaspard admits that on October 30, 2012, she went to the Building as usual.

As she left the Building, she tripped and fell on the stairs, sustaining serious injuries.

Gaspard filed suit against the City and alleged a premises defect cause of action, claiming

that the construction of the exit steps violated the City’s building code. The City filed a

plea to the jurisdiction, claiming that the City had not waived its immunity. Gaspard replied

by filing an amended petition and a response. Attached to the response was an affidavit

from Gaspard’s daughter, Joan. In Joan’s affidavit, she testified that about a week after

her mother tripped, Joan went to the Building to speak with Karen, an employee of the

City. A conversation ensued with Joan, Karen, and an unidentified woman inside the

Building. Joan mentioned the alleged difficulty of the door threshold. Joan claims that

one of the woman said the exact words, “most fall in when entering.” However, Joan

could not identify specifically which person said those words. The City objected to Joan’s

testimony as inadmissible hearsay; the court overruled the objection. The City also

objected to the deposition testimony of Kelly Golda, Gaspard’s retained expert, that was

attached to Gaspard’s response; this objection was overruled.

       At a hearing on June 16, 2014, after hearing arguments, the trial court advised the

parties that he would be denying the plea to the jurisdiction and told Gaspard that she

had until July 2, 2014 to supplement the record, if she so desired. Gaspard responded

to the City’s objections and plea to the jurisdiction and attached an affidavit from Golda.

On July 2, 2014, the trial court denied the City’s plea to the jurisdiction. The City filed its

notice of appeal on July 15, 2014.


       1   Gaspard testified that she had used the handicap ramp a few times but stopped using the ramp
after finding the door at the top of the ramp locked on several occasions.

                                                  3
                          II. STANDARD OF REVIEW AND APPLICABLE LAW

       To determine whether the plaintiff has affirmatively demonstrated the court's

jurisdiction to hear the case, we consider the facts alleged by the plaintiff and, “to the

extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Tex.

Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). If a

plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such

defect is incurable, immediate dismissal of the case is proper. Peek v. Equip. Serv. Co.,

779 S.W.2d 802, 804—05 (Tex. 1989). Otherwise, the plaintiff should be given an

opportunity to amend its pleadings to demonstrate jurisdiction. Id. The process of

deciding whether jurisdictional facts have been affirmatively plead is similar to a summary

judgment:    if the evidence does not raise a genuine issue of fact regarding the

jurisdictional issue, then the plea to the jurisdiction should be granted. Miranda, 133

S.W.3d at 228.

       Sovereign immunity defeats a trial court’s subject matter jurisdiction. Tex. Dept.

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The trial court should

determine the issue of subject matter jurisdiction, including whether sovereign immunity

divests it of jurisdiction, at the earliest stage possible before allowing the case to proceed.

Id. The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial

court's jurisdiction to hear a case. Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d

674, 676 (Tex. App.—Corpus Christi 2001, no pet.). Whether a plaintiff has alleged facts

that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law

that we review de novo. Miranda, 133 S.W.3d at 226.




                                              4
A. Governmental Functions

       Government entities are immune from tort liability under the doctrine of sovereign

immunity unless the legislature has specifically waived immunity. Harris County v. Dillard,

883 S.W.2d 166, 168 (Tex. 1994). “A municipality is liable for torts arising from the

exercise of its proprietary functions, but it is generally immune from suit and liability for

torts arising from the exercise of its governmental functions.” Tex. Bay Cherry Hill, L.P.

v. City of Fort Worth, 257 S.W.3d 379, 389 (Tex. App.—Fort Worth 2008, no pet.). Thus,

determining a municipality's immunity from suit is a two-step inquiry. Id. First, we

determine whether the function that forms the heart of the suit is governmental or

proprietary. Id. Then, if the function is governmental, we determine whether immunity

has been waived. Id. In the first step, we look to legislative definitions of governmental

actions.   For example, the legislature has specifically stated that “[f]or purposes of

Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a governmental

unit and the corporation's actions are governmental functions.” See TEX. LOC. GOV'T

CODE ANN. § 505.106(b) (West, Westlaw through Chapter 46, 2015 R.S.).

       Additionally, section 101.0215 of the Texas Civil Practice and Remedies Code

contains a non-exclusive list of governmental functions, including running civic centers

and community development programs pursuant to Chapters 373 and 374 of the Local

Government Code. TEX. CIV. PRAC. & REM CODE § 101.0215(a)(34) (West, Westlaw

through Chapter 46, 2015 R.S.); TEX. LOC. GOV'T CODE ANN. §§ 373, 374 (West, Westlaw

through Chapter 46, 2015 R.S.).         Section 373 states that “through a community

development program, a municipality may conduct work or activities designed to: (1)

improve the living and economic conditions of persons of low to moderate income; (2)



                                             5
benefit low or moderate income neighborhoods . . . .” TEX. LOC. GOV'T CODE ANN. §

373.004 (West, Westlaw through Chapter 46, 2015 R.S.).

B. Waiver of Immunity

       If the suit does involve a governmental function, then the second step is to

determine whether immunity has been waived. Tex. Bay Cherry Hill, L.P., 257 S.W.3d at

389. One waiver of sovereign immunity is the Tort Claims Act, which allows suits to be

brought against the government for injuries caused by: 1) the use of publicly-owned

automobiles; 2) premises defects; and 3) the conditions or use of personal or real

property. See TEX. CIV. PRAC. & REM CODE § 101.021 (West, Westlaw through Chapter

46, 2015 R.S.). The Act specifically waives sovereign immunity from two types of premise

defect claims: a special defect and a regular premise defect. Id. § 101.022 (West,

Westlaw through Chapter 46, 2015 R.S.). Which defect is involved affects the standard

of care that will be applicable. See City of Grapevine v. Roberts, 946 S.W.2d 841, 843

(Tex. 1997).

       Special defects are limited to suits involving “excavations or obstructions on

highways, roads, or streets” but implicate a higher standard of care then regular premise

defect claims. See id. § 101.021. Special defects are usually the kind associated with

the road itself. See Roberts, 946 S.W.2d at 843. To determine if a defect is special,

courts should look to factors such as the size, nature, location, and permanence of the

condition. See City of Austin v. Rangel, 184 S.W.3d 377, 383 (Tex. App.—Austin 2006,

no pet.). However, even when courts have found special defects that are not on the road

itself, they additionally find that the defects must still affect ordinary users of the sidewalk.

See Roberts, 946 S.W.2d at 843; City of El Paso v. Chacon, 148 S.W.3d 417, 422–23



                                               6
(Tex. App.—El Paso 2004, pet. denied); see also Payne, 838 S.W.2d at 239 (holding that

a culvert was not a special defect because pedestrians walking up and down the sidewalk

normally would not come across the culvert; only pedestrians who walked perpendicular

to the sidewalk would encounter the alleged defect). If the defect is special, then the

landowner is required to use ordinary care to reduce unreasonable risks of harm created

by conditions that the landowner was, or reasonably should have been, aware of. See

Roberts, 946 S.W.2d at 843

       In contrast, a regular premise defect is any defect not classified as special. See

id. In a regular premise defect case, the plaintiff must plead:

       1) a condition of the premises created an unreasonable risk of harm to the
       licensee; 2) the owner actually knew of the condition; 3) the licensee did not
       actually know of the condition; 4) the owner failed to exercise ordinary care
       to protect the licensee from danger; and 5) the owner's failure was a
       proximate cause of the injury to the licensee.

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). This

requires the landowner to actually be aware of the allegedly dangerous condition; with a

special defect, a landowner may still be liable if he should have been reasonable aware

of the allegedly dangerous condition. The plaintiff must raise a genuine issue of material

fact on each of the five elements of a regular premises defect claim. See Payne, 838

S.W.2d at 237.

       One element is that the premise owner actually knew of the dangerous condition.

Id. Actual knowledge is knowing of an existing dangerous condition at the time of the

accident, not merely knowing that a dangerous condition could possibly develop over

time. See Reyes v. City of Laredo, 335 S.W.3d 605, 608 (Tex. 2010) (per curiam); City

of Dallas v. Prado, 373 S.W.3d 848, 854 (Tex. App.—Dallas 2012, no pet.). Although the



                                             7
absence of reports is just one factor to consider when determining whether a premises

owner had actual knowledge of a dangerous condition, “courts generally consider whether

the premises owner has received reports of prior injuries or reports of the potential danger

presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.

2008) (per curiam); see State ex rel. State Dept. of Highways & Pub. Transp. v. Gonzalez,

82 S.W.3d 322, 330 (Tex. 2002) (holding that the State had no actual knowledge of the

dangerous condition because the plaintiff “did not introduce any evidence showing that

anyone had reported” the dangerous condition to the State). Circumstantial evidence can

establish actual knowledge but “only when it ‘either directly or by reasonable inference’

supports that conclusion. City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008)

(citing State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)).

       If the plaintiff does not raise a genuine issue of fact on each element, the plea to

the jurisdiction should be granted. See Miranda, 133 S.W.3d at 228. Unchallenged

hearsay can be used to raise issues of fact, but inadmissible hearsay that has been

properly objected to cannot be used to raise a genuine issue of material fact. See TEX.

R. EVID. 802; Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex. 1962);

Stovall & Associates, P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 796 (Tex. App.—

Dallas 2013, no pet.); Patterson v. Mobiloil Fed. Credit Union, 890 S.W.2d 551, 555 (Tex.

App.—Beaumont 1994, no writ).

       However, these waivers do not apply to claims based on discretionary acts of the

government. TEX. CIV. PRAC. & REM CODE ANN. § 101.056. This is an exception to the

exception; even if a claimant raises a genuine issue of material fact on every element of

the premise defect claim, the governmental entity has not waived its immunity to suit if



                                             8
the act or failure to act was discretionary. See id. Whether an act is discretionary is a

question of law. State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999) (per curiam). An act that

requires the exercise of judgment is discretionary. City of Dallas v. Hughes, 344 S.W.3d

549, 556 (Tex. App.—Dallas 2011, no pet.). The government may be liable if the law

“mandate[s] performance with such precision that nothing is left to discretion or

judgment.” Id. But design decisions are considered discretionary acts. See Mogayzel v.

Texas Dept. of Transp., 66 S.W.3d 459, 465 (Tex. App.—Fort Worth 2001, pet. denied)

(holding that the design of the highways is discretionary); City of Watauga v. Taylor, 752

S.W.2d 199, 202 (Tex. App.—Fort Worth 1988, no writ) (finding that the design of sewers

and drains is discretionary); see also City Of McAllen v. Hernandez, No. 13-04-00182-

CV, 2005 WL 2000818, at *5 (Tex. App.—Corpus Christi Aug. 22, 2005, pet. denied)

(mem. op.) (observing that the design of the lid covering a drainage box near the sidewalk

was discretionary).

       This Court has held that the “decision of a governing body to choose one design

over another is the essence of the exercise of discretion.” Sanchez v. Matagorda County,

124 S.W.3d 350, 353 (Tex. App.—Corpus Christi 2003, no pet.). “This distinction is often

stated in terms of actions taken at the planning or policy-making level, which are immune,

and actions taken at the subordinate or operational level, which are not immune.” Mitchell

v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.—Dallas 1993), aff'd, 870 S.W.2d 21,

22 (Tex. 1994); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. App.—Fort

Worth 1991, no writ).

       For example, in Hernandez, the plaintiff walked over a drainage box, and the shop-

made lid tilted, causing the plaintiff to seriously injure her legs. 2005 WL 2000818, at *1.



                                             9
The plaintiff claimed that the city had violated its own engineering code in designing this

lid and thus the city had waived its immunity in this premise defect suit. Id. However, this

Court held that the design of the lid was a discretionary act, despite the fact that it violated

a specific engineering code. See id. at *6.

       Similarly, in Sanchez, the plaintiff sued the county for the design of a bridge. 124

S.W.3d at 353. The City Commissioner testified that the layout of the bridge “was part of

the bridge design and was based partially on the increased cost that would have been

incurred” to build the bridge differently. Id. We held that this was not “a situation where

a governmental employee negligently performed the task he was ordered to do.” Id. To

the contrary, we concluded that the decision to design and remodel the bridge by adding

wooden planks longitudinally was a “discretionary act of a county government.” Id.

       On the other hand, maintenance activities undertaken at the operational level are

not discretionary functions and are not immune from liability. Mitchell, 855 S.W.2d at 745;

see City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985); Taylor, 752 S.W.2d

at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex. App.—Beaumont 1986,

writ ref'd n.r.e.). Thus, a government entity is immune from liability if an injury results from

the formulation of policy but is not immune from liability if the injury is caused by the

“negligent implementation of that policy.” Mitchell, 855 S.W.2d at 745; see State v. Terrell,

588 S.W.2d 784, 787 (Tex.1979).

                                           III. DISCUSSION

       In three issues, the City argues that the trial court erred by: 1) denying the City’s

plea to the jurisdiction; 2) considering Gaspard’s deposition notwithstanding the changes,

which affected the court’s ruling on the plea to the jurisdiction; and 3) failing to strike the



                                              10
objectionable portion of Joan’s affidavit, which also affected the court’s ruling on the plea

to the jurisdiction. We will consider these three issues as one because issues two and

three are sub-issues of issue one. We conclude that the trial court erred in denying the

City’s plea to the jurisdiction because Gaspard fails to raise a genuine issue of fact on

every element of her premise defect claim. Furthermore, Gaspard’s suit arose out of a

discretionary government function.       As such, the City had not waived its sovereign

immunity to this type of suit, and the trial court had no jurisdiction to hear this case. There

is nothing that Gaspard could plead to change these jurisdictional facts; therefore, the

case should be dismissed without an opportunity to amend.

A. The Underlying Action Was Governmental

       The City argues that its plea to the jurisdiction should have been granted. The first

step in determining the City’s immunity from liability is determining whether the underlying

action is governmental or proprietary. Tex. Bay Cherry Hill, 257 S.W.3d at 389. The City

asserts that Gaspard’s claims arise out of a governmental function because: 1) the

Building is used by the Bay City Community Development Corporation (BCCDC), the

City’s 4B sales tax corporation; and 2) the BCCDC is engaged in activities on the

enumerated list of government functions in the Torts Claim Act. The City asserts, and

Gaspard does not refute the claim, that the BCCDC is the City’s 4B sales tax corporation.

Therefore, the decision to design and build the steps and the glass porch was an action

of the City’s 4B sales tax corporation, which is legislatively defined to be a governmental

function. TEX. LOC. GOV'T CODE ANN. § 505.106(b) (West, Westlaw through Chapter 46,

2015 R.S.).




                                              11
      Furthermore, the Tort Claims Act lists programs of community development as

governmental functions. TEX. CIV. PRAC. & REM CODE § 101.0215(a)(34). Community

development programs conduct work to “improve the living and economic conditions of

persons of low and moderate income” and to “benefit low or moderate income

neighborhoods.” TEX. LOC. GOV'T CODE ANN. § 373.004 (West, Westlaw through Chapter

46, 2015 R.S.). The BCCDC offers low-cost business opportunities for a low-income

community to encourage economic growth; this fits the definition of a community

development program as outlined in the Local Government Code. See id. Thus, we

conclude that Gaspard’s claim arose out of a governmental function.

B. The City Has Not Waived Immunity

      Finding that the underlying action is governmental, we next determine if the City’s

immunity has been waived. Tex. Bay Cherry Hill, 257 S.W.3d at 389. We analyze

whether there are genuine issues of material fact on every element of the premise defect

claim such that jurisdiction is affirmatively demonstrated. See Miranda, 133 S.W.3d at

226; Payne, 838 S.W.2d at 237. Both parties agree that Gaspard’s claim would fall under

the second waiver found under the Torts Claim Act: a premise defect claim. See TEX.

CIV. PRAC. & REM CODE § 101.021 (West, Westlaw through Chapter 46, 2015 R.S.).

Gaspard claims that the stairs at issue are a special defect as opposed to a regular

premise defect. This case involves the design of steps that lead into a building, which

seemingly has little to do with roadways. Gaspard argues that a defect does not have to

physically be in the road to be in the road to be considered a special defect. See Rangel,

184 S.W.3d at 383. This is true, but, as the Rangel case also points out, the defect must




                                           12
still present an “unexpected and unusual danger to ordinary users of roadways” to be

considered a special defect. Id. (citing Payne, 838 S.W.2d at 238).

        The steps do not meet the general classification of special defects because they

are not an obstruction or excavation of the road itself. Furthermore, the threshold of the

Building does not pose an unusual danger to ordinary users of the sidewalk because the

alleged defect would only affect people who are specifically entering or exiting the

Building. In other words, only a pedestrian “whose destination required him to leave the

proximity of the road” would encounter the alleged defect. See Payne, 838 S.W.2d at

239. Therefore, the steps are properly classified as a regular premise defect claim. To

survive a plea to the jurisdiction on a regular premise defect claim, the claimant must be

able to raise a genuine issue of material fact on the five elements listed in Payne. 838

S.W.2d at 237

   i.   Genuine Issues of Material Fact

        The City asserts that there are no genuine issues of material fact on at least two

of the elements of a regular defect claim: 1) that the City had actual knowledge of the

alleged defect and 2) that Gaspard had no knowledge of the defect. Id. All the City

employees testified that they never received any complaints about the steps over the last

two decades since the steps were built.2                  This shows that the City had no actual

knowledge of the allegedly dangerous condition.                    See Aguilar, 251 S.W.3d at 513;



        2  Karen Hitzfield testified that she had worked for BCCDC at the Building since 1998. Since that
time, she testified that she had never seen or heard anybody fall or injure themselves at the front entrance
steps. Rhonda Clegg, the City Secretary and custodian of the official records of the City, filed an affidavit
stating that after searching the official records, she found no records of any complaints, e-mails, or reports
of injury involving the Building or its steps. Hendrickson testified that for the last 20 years, he thought the
front entrance was safe, even though the design was “unusual,” especially since nobody had been injured
on it or ever complained about it.


                                                     13
Gonzalez, 82 S.W.3d at 330. The only other evidence in the record that might indicate

that the City actually knew about the alleged dangerous condition was the affidavit from

Joan Gaspard. 3 The City objected to Joan’s affidavit as hearsay, to which Gaspard

retorted that it was an admission by a party-opponent. See TEX. R. EVID. 801(e)(2)(D).

However, the BCCDC not only houses City employees but also houses the offices of

numerous other non-governmental companies. Joan’s affidavit does not properly show

that the declarant was an agent of the City, as opposed to an employee of the other

companies, to be admitted as a party opponent. See Farlow v. Harris Methodist Fort

Worth Hosp., 284 S.W.3d 903, 928 (Tex. App.—Fort Worth 2009, pet. denied) (finding

that the testimony of a witness who assumed that a woman was a city employee was

inadmissible hearsay because there was no evidence that the alleged declarant was

actually a city employee); see also Trencor, Inc. v. Cornech Mach. Co., 115 S.W.3d 145,

151 (Tex. App.—Fort Worth 2003, pet. denied) (holding that agency must be shown; it

cannot be presumed).

        Without any applicable exceptions, Joan’s affidavit is inadmissible hearsay. See

TEX. R. EVID. 802. Allegations that someone in the Building knew about the allegedly

dangerous condition does not allow us to presume that person to be a City employee.

See Trencor, 115 S.W.3d at 151. Agency cannot be presumed on this mystery declarant.

Id. We conclude that there is nothing left to raise a genuine issue of fact regarding the


        3 Appellee additionally argues that by adopting a building code and by building the steps the City
had knowledge of the allegedly dangerous condition. Hendrickson testified that, at the time the steps were
designed and built, he thought the steps were safe and in compliance with the building code, which
authorized the building director to approve alternative methods if they were safe. This shows that the City,
rather than having actual knowledge of a dangerous condition, actually thought there was no dangerous
condition. Simply building the steps does not reasonably support an inference that the City had actual
knowledge. See City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (holding that circumstantial
evidence establishes actual knowledge only if it supports that conclusion “either directly or through
reasonable inference”).

                                                    14
City’s actual knowledge of the allegedly dangerous condition because inadmissible

hearsay that was properly objected to cannot be used to raise genuine issues of fact.

See Penn, 363 S.W.2d at 233; Stovall, 409 S.W.3d at; Patterson, 890 S.W.2d at 555.

       Another element Gaspard must allege is that she had no knowledge of the

dangerous condition. See Payne, 838 S.W.2d at 237. The City raised concerns regarding

the evidence on whether Gaspard was aware of the defect. During Gaspard’s deposition,

the City asked a question about whether Gaspard felt that she had ever noticed anything

dangerous about the steps. To this, Gaspard originally replied, “Yes, I’ve always felt like

it was dangerous and usually held onto the door to get out.” For “clarification” purposes,

Gaspard later amended her answer after the deposition to simply say, “No.”

       The City followed up by asking, “Why did you feel like it was dangerous?” To this,

Gaspard originally stated, “Because the way it’s constructed.” Again for “clarification”

purposes, Gaspard changed her answer after the deposition to read, “I didn’t understand

the question.” Later in the deposition, Gaspard’s own attorney asked her on direct

examination, “[P]rior to the accident did you have any reason to believe those steps were

particularly or uniquely dangerous as against other steps.” Gaspard answered, “Well,

they were narrow; and I was always careful when I came up.” Gaspard’s amended

answer was changed, once again for “clarification,” to say, “Prior to the Oct. 30, 2012 fall

I was careful about using any steps. I preferred ramps.”

       The City argues that this is evidence of a sham affidavit. It cites Farroux v. Denny’s

Restaurants, Inc. in support of this position. 962 S.W.2d 108, 111 (Tex. App.—Houston

[1st Dist.] 1997, no pet.). Farroux states if a change in a deposition goes to a material

point, without explanation, and clearly contradicts earlier testimony, then it is a “sham”



                                             15
affidavit that should be disregarded. Id. However, our Court doesn’t generally recognize

the sham affidavit doctrine. Del Mar Coll. Dist. v. Vela, 218 S.W.3d 856, 862 (Tex. App.—

Corpus Christi 2007, no pet.). If the deposition testimony is contradictory, then it presents

a genuine issue of fact. Id. The contradictory nature would merely affect the weight this

testimony would be given. Id.

        However, even considering Gaspard’s deposition testimony, we conclude that the

facts alleged by Gaspard do not affirmatively show that the trial court had jurisdiction to

hear this case. As pled, the facts affirmatively demonstrate a lack of jurisdiction because

the underlying action was a discretionary governmental action performed by a 4B sales

tax corporation carrying out a community development program; furthermore, Gaspard

has not raised genuine issues of fact as to the City’s actual knowledge of the allegedly

dangerous condition. Therefore, Gaspard failed to demonstrate that the City has waived

its immunity under the Torts Claims Act.

  ii.   Discretionary Acts

        However, assuming without deciding that Gaspard did raise a genuine issue of

material fact on every element of the premise defect claim, a government entity is still

immune from tort liability for its discretionary actions, even if the underlying actions

constituted a waiver of immunity under the Torts Claims Act. See TEX. CIV. PRAC. & REM

CODE ANN. § 101.021. Gaspard argues that the City’s actions in remodeling the Building

and constructing the glass porch were not discretionary since the city’s building code

dictates how to design steps leading out of a building. Specifically, the act was not

discretionary because the Code provides that there should be a landing level with the

floor outside the door of a building before any steps lead to the ground. However, we



                                             16
agree with the City that its actions in designing the glass porch and door threshold were

discretionary. In Hernandez and Sanchez, discussed above, this Court has previously

held that the governmental act of deciding to design a structure in a particular way is

immune from tort liability. See Hernandez, 2005 WL 2000818, at *5; Sanchez, 124

S.W.3d at 353. The same is true here: Hendrickson stated that he designed the glass

porch this way because of a “cost consideration” to the City, just like the city official in

Sanchez. See 124 S.W.3d at 353.

        Additionally, according to Hendrickson, if the steps were built as specified in the

1988 code, the door threshold would be too close to the roadway. Section 102.6 of the

1988 code specifically authorizes alternative designs and methods of construction “not

specifically prescribed by the Code, provided any such alternative has been approved by

the Building Official.” (emphasis added). Hendrickson approved the alternative in this

case and testified that he believed this alternate design was safe; he further testified that

at the time the glass porch was made, “it appeared that was the only way we could do it.”

        This case is distinguished from other scenarios in which the government might be

liable. The City did not choose an unsafe design, knowing it was unsafe or knowing it

was violating a code. Rather, Hendrickson believed that the expansion was safe and built

in compliance with the 1988 edition of the Southern Building Code in effect at the time.4

The city did not have a safe design plan that was negligently built. Id. Rather, the City

considered the safety and cost of all alternatives and then built the steps as intended, in



        4 Gaspard argues that the City is mandated by the State to adopt and adhere to a building code;

therefore, the construction of steps could not be discretionary. However, the building code in place at the
time was the 1988 locally-adopted building code. The first statewide, mandatory municipal building code
was not enacted until 2006. See TEX. LOC. GOV'T CODE ANN. § 214.216 (West, Westlaw through Chapter
46, 2015 R.S.). Thus, there was no state-mandated method to build the stairs at the time the glass porch
was built.

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good condition. The City’s decision to choose one design over another is the “essence

of discretion.” Id. We conclude that the City’s design of the steps was a discretionary act

protected against liability. Furthermore, there is nothing Gaspard could amend in her

pleadings to bestow jurisdiction; thus, the case should be outright dismissed instead of

allowing for further amendment of the petition. See Peek, 779 S.W.2d at 804.

       We sustain the City’s sole issue.

                                           IV. CONCLUSION

       We reverse the decision of the trial court, render judgment granting the City’s plea

to the jurisdiction, and dismiss the case with prejudice.




                                                  NORA LONGORIA,
                                                  Justice


Delivered and filed the
13th day of August, 2015.




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