

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



AMERICA TIRADO,


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No. 08-10-00334-CV




Appellant,


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Appeal from the




v. 


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327th District
  Court




 


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THE CITY OF EL PASO,


 


of El Paso
  County, Texas




 


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Appellee.


 


(TC# 2009-393)




 


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                                                                  O
P I N I O N
 
This
is an accelerated interlocutory appeal from a trial court order granting the
City of El Paso=s
plea to the jurisdiction.  The suit
arises out of a June 2008 car accident between Michael Joseph Lynch and Hilda
Muniz Morales.  The accident occurred
when Muniz failed to observe a stop sign allegedly obscured by palm tree
fronds.  For the reasons that follow, we
reverse and remand.
FACTUAL SUMMARY
The
car accident between Lynch and Muniz occurred at the intersection of North
Campbell Street and Cincinnati Avenue. 
Campbell runs north and south while Cincinnati runs east and west.  Lynch was driving on Cincinnati while Muniz
was traveling south in the 2700 block of Campbell.  The City had erected a stop sign at the
northwest corner of the intersection, controlling southbound traffic on
Campbell, but Muniz did not see it and failed to yield the right-of-way.  According to the pleadings, the view of the
stop sign was obscured by the fronds of a palm tree.




Appellant,
America Tirado, lived at the northwest corner residence.  The palm trees were located on the parkway
between the sidewalk and the street curb, running along the side of Tirado=s home. 
Lynch
filed suit against Muniz and Tirado alleging negligence causes of action
against each defendant.  As to Muniz, he
complained:  (1) she failed keep a
lookout Aas a
person of ordinary prudence would have kept under the same or similar circumstances;@ (2) she failed to yield the
right-of-way; (3) she ran into Lynch=s
car; and (4) she failed to stop at the stop sign.  With respect to Tirado, the petition alleged
she was negligent in:  (1) allowing her
palm tree to obscure a stop sign; (2) covering up a stop sign; and (3) failing
to keep her landscape from interfering with traffic signals.  Muniz filed a cross-claim against Tirado
alleging that she was negligent in allowing a palm tree to obscure the stop sign,
which was the proximate cause of the collision between Lynch and Muniz.  
Once
it became apparent that Muniz intended to argue that she failed to yield the
right-of-way because she could not see the stop sign due to the palm trees,
Lynch amended his petition to include the City of El Paso, complaining that the
City:  (1) created an unsafe condition;
(2) failed to warn plaintiff of the dangers; (3) failed to adequately correct
the obstruction of palm fronds at the intersection of Cincinnati and Campbell; and
(4) failed to cut the palm tree before the wreck.
In
response, the City filed a general denial, affirmative defenses, special
exceptions, and a cross-claim against Tirado, alleging that as owner/occupant
of the property located at the corner of Cincinnati and Campbell, she was in
violation of El Paso Municipal Code Sections 12.068.030(A) and (E):
 




It shall be the duty
of every owner or occupant of any corner lot in the City to keep any and all
trees trimmed and pruned of limbs, branches and foliage to a minimum clearance
of ten feet above the street level at the nearest curb line in that area of a triangle
formed by the intersecting property lines and a diagonal line joining the
property lines at points twenty feet from their intersection on such corner
lot.  . . .  Notwithstanding the provisions of any other
section in this chapter it is unlawful for any person to place, plant or
maintain any plant, tree, or other object in such a manner as to obstruct from
view any traffic-control device. 
 
Muniz then amended her
cross-claim against Tirado to include the City of El Paso.  
 
The
City filed a plea to the jurisdiction, contending that all allegations were
barred by governmental immunity.  It
attached the deposition testimony of Tirado; a series of photographs taken the
day of the incident; a service request form generated by the City showing a ANo Parking Anytime@ sign was damaged by the accident
between Lynch and Muniz; an incident report; a letter from Lynch to the Mayor
and City Council notifying them that he had been injured in a car accident at
the intersection of Campbell and Cincinnati; and excerpts of several City
ordinances from the El Paso Municipal Code.
Tirado
filed a response to the City=s
plea and a cross-claim against the City for contribution alleging that the palm
trees and the stop sign are located on property owned and controlled by the
City.  She alleged that the City knew or
should have known of the obstruction and that under Section 101.060(a)(2) of
the Texas Tort Claims Act, the City waived its immunity.  The trial court granted the plea and this
appeal follows.
                                                 PLEA
TO THE JURISDICTION




A
plea to the jurisdiction is a dilatory plea by which a party challenges the
court=s
authority to determine the subject matter of a cause of action.  Bland Independent School Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000); see Texas Department of Transp. v. Jones,
8 S.W.3d 636, 637-38 (Tex. 1999).  A
governmental unit=s
sovereign immunity deprives a trial court of subject matter jurisdiction.  Texas Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) 
Therefore, a governmental unit, such as The City of El Paso, properly
raises the issue by a plea to the jurisdiction. 
Id.
In
asserting the plea, the plaintiff bears the burden to allege facts
affirmatively proving that the trial court has subject matter
jurisdiction.  Texas Dept. of Criminal
Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Texas Ass=n of Business v. Texas Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993).  To sue
a governmental unit, the pleadings must allege consent to suit either by
reference to statute or express legislative permission.  Jones, 8 S.W.3d at 638-39; City of
El Paso v. Chacon, 148 S.W.3d 417, 421 (Tex.App.--El Paso 2004, pet.
denied).  To prevail on a plea to the
jurisdiction, the defendant must show an incurable jurisdictional defect on the
face of the pleadings.  City of Austin
v. Rangel, 184 S.W.3d 377, 381 (Tex.App.--Austin 2006, no pet.), citing
MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624
(Tex.App.--Austin 2005, pet. denied). 
                                                               Standard
of Review
The
existence of subject matter jurisdiction is a legal question which we review de
novo.  Miranda, 133 S.W.3d at
226-27; State Dept. of Highways and Public Transp. v. Gonzalez, 82
S.W.3d 322, 327 (Tex. 2002).  In
conducting our review, we do not look at the merits of the case but construe
the pleadings liberally in favor of the plaintiff, look to the pleader=s intent, and accept the pleadings= factual allegations as true.  Texas Dept. of Transp. v. Ramirez, 74
S.W.3d 864, 867 (Tex. 2002); Texas Ass=n
of Business, 852 S.W.2d at 446; Arnold v. University of Texas
Southwestern Medical Center at Dallas, 279 S.W.3d 464, 467
(Tex.App.--Dallas 2009, no pet.); City of Austin v. Lamas, 160 S.W.3d
97, 100 (Tex.App.--Austin 2004, no pet.).  





When
a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence submitted by the parties to the extent necessary to
resolve the jurisdictional issues raised, just as the district court is
required to do.  Miranda, 133
S.W.3d at 227, citing Bland Ind. Sch. Dist., 34 S.W.3d at 555.  Where a plea to the jurisdiction includes
evidence, and the jurisdictional challenge implicates the merits of the
plaintiff=s cause
of action, the trial court reviews the relevant evidence to determine if a fact
issue exists.  Miranda, 133 S.W.3d
at 227.  If the evidence shows a fact
question regarding the jurisdictional issue, a plea to the jurisdiction may not
be granted and the fact finder should resolve the fact issue.  Id. at 228.  However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the
plea to the jurisdiction may be ruled on as a matter of law.  Id.
                                                                Issues
for Review
On
appeal, Tirado complains that the trial court erred because (1) sufficient
facts were pled demonstrating jurisdiction; (2) the City owns and controls the
stop sign, has exerted control over the maintenance of the palm tree, and
therefore has a duty to maintain the stop sign clear from obstruction; (3) a
fact question exists with respect to whether the City knew or should have known
that the stop sign was obstructed; and (4) a fact question exists with respect
to whether the City corrected the defect. 

                                                        Sufficiency
of the Pleadings




Generally,
the State, its agencies, and subdivisions enjoy sovereign immunity from tort
liability.  See The University of
Texas at Austin v. Hayes, 327 S.W.3d 113, 115-16 (Tex. 2010); Chacon,
148 S.W.3d at 421.  Here, it is
undisputed that a municipality such as the City of El Paso is a Agovernmental unit@ under the Texas Tort Claims Act (Athe Act@)
and therefore immune from liability for governmental functions unless that
immunity is specifically waived.  Miranda,
133 S.W.3d at 225; Chacon, 148 S.W.3d at 421.  When a claim is barred by sovereign immunity,
the trial court lacks subject-matter jurisdiction and dismissal with prejudice
is proper.  Miranda, 133 S.W.3d at
224, 225.  The Texas Tort Claims Act
provides a limited waiver of sovereign or governmental immunity in certain
situations, to the extent of liability for: 
[P]ersonal 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.
 
Tex.Civ.Prac.&Rem.Code Ann. § 101.021(2)(West
2011).  Section 101.060(a)(2) limits the
extent of governmental liability in Section 101.021 above by providing that the
chapter allowing for governmental liability does not apply to a claim arising
from: 
[T]he absence,
condition, or malfunction of a traffic or road sign, signal, or warning device
unless the absence, condition, or malfunction is not corrected by the
responsible governmental unit within a reasonable time after notice.  
 
Tex.Civ.Prac.&Rem.Code Ann. §
101.060(a)(2).
We
first consider whether the pleadings and relevant jurisdictional evidence state
a claim under which the City may have waived its immunity under Section
101.060(a)(2).  See Bland Indep. Sch.
Dist., 34 S.W.3d at 555 (AIn
sum, a court deciding a plea to the jurisdiction is not required to look solely
to the pleadings but may consider evidence and must do so when necessary to
resolve the jurisdictional issues raised. 
The court should, of course, confine itself to the evidence relevant to
the jurisdictional issue.@).




The
pleadings here were initially sufficient to state the basis of the trial court=s jurisdiction predicated on the
alleged waiver of sovereign immunity under Section 101.060(a)(2).  The record demonstrates that Lynch and Muniz
pled that their injuries arose out of an automobile accident which was
proximately caused by the City=s
negligence in failing to maintain a stop sign free from obstruction.  Both parties pled palm tree fronds obstructed
the stop sign.  The Texas Supreme Court
has held that the obstruction of a stop sign by branches and/or trees is a Acondition@
of the sign within Section 101.060(a)(2). 
See Lorig v. City of Mission, 629 S.W.2d 699 (Tex. 1982).  Additionally, Tirado specifically alleged the
City waived its immunity under Section 101.060(a)(2).  Therefore, it is clear from the pleadings
that the parties are alleging the City is liable for injuries caused by a
condition of Atangible
personal or real property,@
i.e. the obstructed stop sign, and that any limitation placed on the
City=s
liability under Section 101.060(a)(2) does not apply because the City had
actual or constructive knowledge of the defect prior to the accident and failed
to correct it.  Therefore, to the extent
Tirado=s first
issue argues the pleadings were sufficient to allege a claim, we sustain Issue
One.
                                                             Is
There a Fact Issue?
Where,
as here, a defendant tenders evidence to establish that the trial court lacks
subject-matter jurisdiction as a matter of law, the burden shifts to the
plaintiff to demonstrate the existence of a material fact regarding the
jurisdictional issue.  Miranda,
133 S.W.3d at 228; Tex.R.Civ.P.
166(a)(c).  Under this procedure, the
City cannot simply deny the existence of jurisdictional facts and force the
plaintiff=s to
raise a fact issue.  See Tex.R.Civ.P. 166(a)(i); Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). To prevail on
its plea to the jurisdiction, the City must demonstrate an incurable defect in
the pleadings.  In other words, the City
has the burden to show through its plea to the jurisdiction and attached
evidence that it did not owe a duty as a matter of law and therefore the claims
are barred by sovereign immunity.  See
Robnett v. City of Big Spring, 26 S.W.3d 535, 538 (Tex.App.--Eastland 2000,
no pet.).




In
Robnett, the trial court granted summary judgment based on sovereign
immunity in a dispute over the city=s
failure to maintain a stop sign allegedly obstructed by an elm tree.  Robnett, 26 S.W.3d at 536-38.  The Eastland Court of Appeals reversed the
decision.  Id.  The court relied on the fact that evidence
introduced through affidavits indicated that there had been prior accidents due
to the obstructed sign, that the police officer on the scene personally knew
that the tree in question was a problem, and, according to the trial judge,
that Aeveryone
in town@ knew
about the intersection.  Id. at
537.  The court held that for
governmental immunity to be waived under Section 101.060(a)(2), the
governmental unit must have either known or should have known of the condition
within a reasonable time after notice.  Id.
at 538.  The court then reasoned that the
Section 101.022(a) limitation on premises defects that actual notice be shown
does not govern special defects under Section 101.060 and that, had the
Legislature wanted to require actual notice in Subsection (a)(2) as it requires
in Subsection (a)(3), then it Acertainly
knew how to so provide, but it did not.@  Id. 

In
Kenneally v. Thurn, 653 S.W.2d 69 (Tex.App.--San Antonio 1983, writ ref=d n.r.e.), the plaintiffs brought suit
for injuries received by Timothy Kenneally after a car accident.  Kenneally, 653 S.W.2d at 71.  Plaintiffs sued the other driver for
negligence, his father (under the theory of negligent entrustment), the City of
San Antonio (for negligently permitting obstruction of a stop sign by crepe myrtle
bushes); and (4) the occupant of the home at the corner where the accident
occurred (for negligent failure to trim the bushes which were located on her
property but within the City=s
easement).  Id.  The case proceeded to a jury trial, but after
the jury had been empaneled and sworn, the plaintiffs announced they had
settled their claim against the home owner and took a nonsuit as to her.  Id. 
At the close of testimony, the trial court granted the City=s motion for instructed verdict.  Id. 
The court of appeals reversed, noting that Athe
obstruction of a traffic sign by trees or bushes is a >condition= of such sign, exposing the
municipality to liability under [the Act] for negligent failure to keep the
view of the sign unobstructed.@  Id. at 72.  The court added:




There is sufficient
evidence to raise a question of fact as to whether the condition had existed
for such a length of time that City, in the exercise of reasonable diligence,
should have discovered it. The photographs introduced in evidence showed that
the bushes were scraggly, indicating that they had not been trimmed in some
time. One of the residents in the area testified that the bushes had been there
as long as she could remember. The evidence also showed that various police
officers of the City, while on routine patrol, drove through the intersection,
driving in an easterly direction, several times a month. 
 
Id. 




To
prevail on appeal, Tirado must demonstrate the existence of a fact issue with
respect to whether the City had either type of notice.  See id.  The evidence includes deposition testimony
and traffic reports from three prior accidents at the intersection of
Cincinnati and Campbell.  See
University of Texas Pan-American v. Aguilar, 251 S.W.3d 511, 513 (Tex.
2008)(noting that in determining whether a party had notice, courts generally
consider whether the party has previously received reports of prior
injuries).  The first accident occurred
on September 18, 2006.  The second and
third accidents both occurred on September 11, 2007, within an hour of each
other.  According to the September 11
accident reports, the officer who responded to the first accident was still at
the scene and witnessed the second accident. 
The driver who was traveling on Campbell and failed to stop informed the
officer that she could not see the stop sign because it was obstructed by a
tree branch.  The evidence also includes
deposition testimony from Daryl Cole, the director of the City=s street department, who  said that based on the two accidents
occurring on the same day, there must be an issue with respect to visibility of
the stop sign at the intersection. 
Finally, the evidence includes affidavits from three City of El Paso
employees who all stated that they are trained to recognize visual obstructions
that would interfere with traffic and remove them immediately.  Based on the relevant jurisdictional
evidence, a fact issue exists with respect to whether or not the City waived
immunity under Section 101.062 of the Act. 
We sustain Issues Three and Four.
                                                             The
Municipal Codes
In
Issue Two, Tirado argues that the trial court erred because the City owns and
controls the stop sign, has exerted control over the maintenance of the palm
tree, and therefore has a duty to maintain the stop sign clear from
obstruction.  The governmental duties
owed by the City are governed by Section 101.022.  See Tex.Civ.Prac.&Rem.Code
Ann. § 101.022; Chacon, 148 S.W.3d at 421-22.  Section 101.022(a) provides: 
(a) [I]f a claim
arises from a premise defect, the governmental unit owes to the claimant
only the duty that a private person owes a licensee on private property, unless
the claimant pays for the use of the premises. 
[Emphasis added].
 
Tex.Civ.Prac.&Rem.Code Ann. §
101.022(a).  The duty articulated in this
subsection requires: 
[T]hat a landowner
not injure a licensee by willful, wanton, or grossly negligent conduct, and
that the owner use ordinary care either to warn a licensee of, or to make
reasonably safe, a dangerous condition of which the owner is aware and the
licensee is not. 
 
See Robnet,
26 S.W.3d at 537, citing State Department of Highways & Public Transportation
v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). 
Section 101.022(a) limits the duty owed by a governmental unit by
requiring actual knowledge of the dangerous condition. This limitation
is recognized in Subsection (b) of Section 101.022, which provides: 
(b) The limitation
of duty in this section does not apply to the duty to warn of special
defects such as excavations or obstructions on highways, roads, or streets
or to the duty to warn of the absence, condition, or malfunction of traffic
signs, signals, or warning devices as required by Section 101.060.  [Emphasis added].
 




Tex.Civ.Prac.&Rem.Code Ann. §
101.022(b).  In cases involving a special
defect, the governmental unit owes a claimant the duty that a private landowner
owes an invitee.  Robnett, 26
S.W.3d at 537, citing County of Harris v. Eaton, 573 S.W.2d 177, 180
(Tex. 1978).  “That duty requires the
landowner to use ordinary care to reduce or eliminate an unreasonable risk of
harm created by a condition of which the owner reasonably should be aware.”  Robnett, 26 S.W.3d at 537, citing
Payne, 838 S.W.2d at 237.
The
record includes several excerpts of the El Paso Municipal Code which were
submitted as part of the City=s
plea to the jurisdiction.  The ordinances
which the City cites place the burden on the owner or occupier of a corner lot
to keep trees trimmed to a certain clearance. 
The City appears to rely on these codes to resolve any jurisdictional
issue by claiming the municipal code sections relieve the City of any duty, and
therefore any liability, regarding the condition of stop signs located on
corner residential lots. 




Citing
City of El Paso v. Chacon, 148 S.W.3d 417 (Tex.App.--El Paso 2004, pet.
denied), Tirado contends the City cannot use the ordinances to shift the
responsibility for maintaining the corner street sign to Tirado in such a way
that the trial court would lack subject matter jurisdiction over any claim
against the City.  In Chacon, the
plaintiff was injured while walking down a sidewalk when he stepped into a hole
where a traffic control device or utility pole had once been placed.  Chacon, 148 S.W.3d at 417, 419.  When the pole was removed, the hole was not
covered and no warning signs were posted. 
Id. at 419.  The plaintiff
claimed that at the time of the injury, the hole was visually obstructed by
foliage.  Id.  In its plea to the jurisdiction, the City
argued that the defect was an ordinary defect such that it owed only the duty
of care that a private party owes a licensee. 
Id.  It also argued that
under the applicable municipal code provisions, the duty to maintain the
sidewalk and remedy the defect (the visual obstruction) was shifted to the abutting
property owner.  Id. at 419,
426.  The trial court denied the plea and
the City appealed.  After determining
that the defect was a special defect, the court noted that actual knowledge was
not necessary to establish a claim based on a special defect.  Id. at 425.  A claimant must prove:  (1) a condition of the premises, (2) the
owner knew or should have known of the condition; (3) the owner failed to
exercise ordinary care to protect the invitee from danger; and (4) the owner=s failure was a proximate cause of the
injury to the invitee.  Id., citing
Payne, 838 S.W.2d at 237.  We then
looked to Chacon=s
pleadings to determine whether he alleged facts which, if taken as true,
sufficiently supported jurisdiction.  Chacon,
148 S.W.3d at 425-26.  In finding Chacon
properly pled a cause of action we reasoned: 
We find that Chacon
sufficiently pled an unreasonable risk of harm, the first element, by stating
that the hole was large, gaping, uncovered, and located on a pedestrian
sidewalk. He pled that the hole was a condition about which the City knew or
should have known since the City had installed the device and then removed it.
Moreover, the hole had been there for a substantial period of time. This
sufficiently pleads the second element. Third, Chacon pled failure to exercise
ordinary care by stating that the City failed to repair the hole and failed to
warn of the danger. Finally, Chacon pled that the accident was the direct and
proximate cause of injuries he sustained to his back, leg, knee, and hips. The
trial court properly denied the City=s
motion to dismiss based on a plea to the jurisdiction. 
 
Id. at
426.  We then turned to the City=s argument regarding the City
ordinances that shifted responsibility to abutting property owners and examined
El Paso Municipal Code Section 13.04.050:
[H]ere, Section
13.04.050 operates as a >valid
ordinance to the contrary.=  While Section (A) requires an abutting owner
to maintain the sidewalk, it does not impose a duty to comply with the
ordinance, and does not in and of itself render the owner liable for
injuries.  He only becomes liable when
the ordinance expressly imposes liability for injuries occasioned by the
defective condition.  Thus, we
concentrate on Section (E): ‘The owner of property abutting . . . a sidewalk .
. . that has become defective and has resulted in . . . injury . . . shall be primarily liable . . . for any
loss or damage sustained . . . .=  [Emphasis in original].
 




The Supreme Court
has examined a similar ordinance which provided that the abutting property
owner should be ‘primarily liable’
for any damages sustained as a result of a defective condition.  The terms >primarily
liable= and >primary liability= were plainly relative and connoted
secondary liability on the part of the city. Giving the phrases their ordinary
and obvious meaning, the terms did not enlarge or diminish the liability of
either the abutting owner or the city.  >As between the two, the liability of
the former is primary to that of the latter=
but that otherwise, the liability of the two was identical because it arose
from a breach of the same duty.  [Citations
omitted].
 
Id. at
427.  We then concluded that, Athe abutting property owner=s duties and responsibilities under the
El Paso Municipal Code do not relieve the City of its liability.@ 
Id.
The
City argues that it is not seeking to shift responsibility but that it Ahas established, as a matter of law
that it neither knew nor should have known that the stop sign was obstructed
prior to June 30, 2008; therefore it remains immune.@  We disagree. 
The record contains crew reports evidencing that the City was sent to
trim the branches on at least two occasions after three separate accidents.  Each of the affidavits from the City=s employees acknowledges the need to
remedy the obstruction.   While the
City spins this evidence as proof it timely corrects problems of which it has
knowledge, it also demonstrates it had constructive notice that the palm fronds
grew back and needed regular pruning.
Based
on all the evidence, a jurisdictional fact issue exists concerning whether the
City knew or should have known of the alleged obstruction and failed to correct
the situation prior to June 2008 when the accident occurred.  Any issues regarding the relative
responsibility of the parties is not properly before this Court in reviewing
the trial court=s order
granting the plea to the jurisdiction. 
                                                                CONCLUSION
A
plea to the jurisdiction is a procedural hurdle and therefore this opinion does
not serve to indicate whether or not the plaintiff=s
case will satisfy the requisite notice under Section 101.060(a)(2).  See City of Austin v. Lamas, 160
S.W.3d 97, 103 (Tex.App.--Austin 2004, no pet.) 
However, because we conclude that a jurisdictional fact issue exists, we
reverse and remand.




 
 
January 11, 2012                                                                                                  
                                                                        ANN
CRAWFORD McCLURE, Chief Justice
 
 
Before McClure, J., Rivera, J.,
and DeHart, Judge
DeHart, Judge, sitting by
assignment
 

