Affirm and Opinion Filed August 27, 2020




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-19-01141-CV

                   CITY OF SAGINAW, TEXAS, Appellant
                                 V.
                        BRANDON CRUZ, Appellee

               On Appeal from the 160th Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. DC-18-19227

                        MEMORANDUM OPINION
              Before Justices Schenck, Partida-Kipness, and Nowell
                       Opinion by Justice Partida-Kipness

        In this interlocutory appeal, the City of Saginaw contends the trial court

erred in denying its plea to the jurisdiction. In seven issues, Saginaw broadly

contends (1) appellee Brandon Cruz failed to demonstrate that Saginaw’s

governmental immunity was waived under the Texas Tort Claims Act (TTCA) and

(2) the trial court abused its discretion in denying Saginaw’s motion to amend

admissions that would have denied the trial court’s jurisdiction. We affirm.
                                 BACKGROUND

       In May 2016, Saginaw contracted with Kimley-Horn and Associates, Inc.

(Kimley-Horn), as engineer, and JLB Contracting, LLC (JLB), as contractor, to

reconstruct and widen approximately 8,500 feet of roadway on Bailey Boswell Road

in Saginaw, Texas (Construction Contract). With a portion of the road construction

complete, the road was partially open on June 29, 2017. On that day, Cruz was

driving east on Bailey Boswell Road when a manhole cover flipped open in front of

him.

       According to Cruz, the newly opened section of road had been open for only

a few hours. The vehicle ahead of Cruz drove over a manhole in the road. As the

vehicle passed over the manhole, the manhole cover flipped open so that it extended

vertically from the manhole. Cruz did not have time to react, and his vehicle hit the

cover, causing his vehicle to flip over and skid down the road on its roof. Cruz was

injured in the accident.

       Cruz filed suit against Saginaw, Kimley-Horn, JLB, and two other defendants

for negligence and premises liability on December 27, 2018.             Cruz served

interrogatories and requests for disclosure, production, and admissions with his

petition. Saginaw answered and filed a plea to the jurisdiction, claiming the TTCA

barred Cruz’s claims, and submitted responses to Cruz’s discovery requests.

Saginaw filed its brief in support of the plea to the jurisdiction on August 9, 2019,

attaching as evidence the Construction Contract, a transcript of an accident witness’s
                                         –2–
statement, and declarations of Melanie McManus, Saginaw’s Human Resources

Director and Risk Coordinator, and Rick Trice, Saginaw’s Public Works Department

Director. Saginaw also filed a motion to amend its admissions on August 9, 2019.

In Saginaw’s motion, counsel asserted that Saginaw’s prior admissions were based

on an incomplete copy of the Construction Contract. After receiving the full contract

on July 1, 2019, counsel determined that three admissions were incorrect and sought

permission to amend. Cruz filed responses in opposition to Saginaw’s plea and

motion and objected to McManus’s and Trice’s declarations.

      The trial court heard Saginaw’s plea and motion on August 15, 2019. In open

court, the trial court sustained Cruz’s objections to Saginaw’s evidence. McManus

and Trice were present at the hearing, and Saginaw called Trice to testify. Cruz

objected to the witnesses as untimely disclosed, and the trial court sustained Cruz’s

objections. The trial court issued written orders on August 15, 2019, sustaining

Cruz’s objections to the McManus and Trice declarations and denying Saginaw’s

plea to the jurisdiction and motion to amend its admissions. This appeal followed.

                                     ANALYSIS

      In seven issues, Saginaw contends the trial court erred in denying its plea to

the jurisdiction and abused its discretion in denying Saginaw’s motion to amend its

admissions, which affected the trial court’s ruling on the plea to the jurisdiction.




                                         –3–
A.    Plea to the Jurisdiction
      In issues one, two, three, and four, Saginaw contends the trial court erred in

denying its plea to the jurisdiction. Each issue concerns a different ground on which

governmental immunity could be waived under the TTCA.

      “Governmental immunity generally protects municipalities and other state

subdivisions from suit unless the immunity has been waived by the constitution or

state law.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506,

512 (Tex. 2019) (quoting City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex.

2014)). The purpose of a plea to the jurisdiction is to “defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

      Governmental immunity defeats a trial court’s subject matter jurisdiction and

is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Arnold v. Univ. of Tex. Sw. Med. Ctr.

at Dallas, 279 S.W.3d 464, 467 (Tex. App.—Dallas 2009, no pet.). The existence

of subject matter jurisdiction is a question of law we review de novo. Arnold, 279

S.W.3d at 467; see also State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

      The TTCA waives governmental immunity for certain negligent acts by

governmental employees. See TEX. CIV. PRAC. & REM. CODE § 101.021. A party

suing a governmental unit bears the burden to affirmatively show waiver of

immunity. McKenzie, 578 S.W.3d at 512; Tex. Dep’t of Criminal Justice v. Miller,

                                         –4–
51 S.W.3d 583, 587 (Tex. 2001). When determining whether the party has met this

burden, we may consider the facts alleged by the plaintiff and the evidence submitted

by the parties. See McKenzie, 578 S.W.3d at 512; Tex. Nat. Res. & Conservation

Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001). We liberally construe the

plaintiff’s pleadings, taking all factual assertions as true, and look to the plaintiff’s

intent. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012); Tex. Dep’t

of Criminal Justice v. Hawkins, 169 S.W.3d 529, 532 (Tex. App.—Dallas 2005, no

pet.).

         We must also consider the evidence submitted when necessary to resolve the

jurisdictional issue. Heckman, 369 S.W.3d at 150. The review of such evidence is

similar to a summary-judgment review. See Bland Indep. Sch. Dist., 34 S.W.3d at

554 (indulging every reasonable inference and resolving all doubts in favor of non-

movant). “If the evidence raises a fact question on jurisdiction,” we cannot grant the

plea, “and the issue must be resolved by the trier of fact.” Univ. of Tex. at Austin v.

Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam). However, “if the evidence

is undisputed or fails to raise a fact question, the plea must be granted.” Id.

               1.     Negligence
         In its first issue, Saginaw contends that Cruz failed to offer evidence that his

injuries were caused by Saginaw’s use or operation of a motor-driven vehicle or

equipment, as required to waive immunity under section 101.021(1) of the TTCA.

In its second issue, Saginaw likewise contends that Cruz’s injuries were not caused

                                           –5–
by use or condition of tangible personal property, as required to waive immunity

under section 101.021(2) of the TTCA.

      Cruz’s first amended original petition alleges two causes of action: negligence

and premises liability. In its brief in support of its plea, Saginaw asserted Cruz’s

negligence claim failed to trigger the waiver of immunity under section 101.021 of

the TTCA because the only motor-driven vehicle or equipment involved in the

accident was Cruz’s vehicle. See TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A)

(waiving immunity for negligent “use of a motor-driven vehicle or motor-driven

equipment”). Saginaw further argued that Cruz’s only potential claim was premises

liability because the manhole cover was not personal property. According to

Saginaw, the manhole cover was a fixture because, although it was removable, it

was intended to remain permanently affixed to the road. Thus, Cruz could not bring

a claim for negligent use of personal property. See id. § 101.021(2) (waiving

immunity for personal injury caused by a “use of tangible personal or real property”).

      In both his response to Saginaw’s plea and brief on appeal, Cruz does not

challenge Saginaw’s contention that he could not bring a negligence claim under

section 101.021(1)(A). Indeed, Cruz’s petition does not cite any action taken by

Saginaw in support of his negligence claim. Cruz likewise does not challenge

Saginaw’s contention that the manhole cover is not personal property. Cruz’s

petition refers to “tangible personal property” only once, as part of his broad

allegations against the collective defendants on his premises liability claim. The
                                         –6–
record further reflects that Cruz made no argument and presented no evidence that

his injuries arose from Saginaw’s “operation or use of a motor-driven vehicle or

motor-driven equipment” or “use of tangible personal or real property.”           See

id. § 101.021. Consequently, we sustain Saginaw’s first and second issues.

             2.    Premises Liability
      In its third issue, Saginaw contends that Cruz failed to offer proof Saginaw

had actual knowledge of the alleged premises defect that “came into existence

seconds before he was injured.” In its fourth issue, Saginaw likewise contends that

Cruz failed to offer proof Saginaw had constructive knowledge of any alleged

special defect.

      Saginaw acknowledges that there are two types of premises defect claims that

waive immunity: premises defect and special defect. See id. §§ 101.021, .022.

Although the TTCA imposes different standards of care depending on whether the

condition is a premises defect or a special defect, see id. § 101.022, Saginaw did not

contest in its plea whether the manhole cover constituted a premises defect or a

special defect. In his response to Saginaw’s plea, however, Cruz expressly argued

“[t]he condition of the subject manhole cover at issue is a ‘special defect’ because,

when improperly fitted, as it was in this case, the special defect constituted an

obstruction and a hole in the ground (i.e., an excavation).” See id. § 101.022(b)

(describing special defects as “excavations or obstructions on highways, roads, or

streets”). Cruz reiterates this argument on appeal. Because neither party contends

                                         –7–
the manhole cover constituted a premises defect, which requires proof the

governmental unit had actual knowledge of the dangerous condition, see Sampson

v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385 (Tex. 2016), we sustain Saginaw’s

third issue.

       Although Saginaw’s fourth issue contends that Cruz failed to offer proof

Saginaw had constructive knowledge of any special defect, Saginaw argues that

Cruz had the burden to prove that Saginaw had actual knowledge. Generally, the

TTCA “limits the government’s duty to prevent injury from premise defects to those

of which it has actual knowledge.” Reyes v. City of Laredo, 335 S.W.3d 605, 606

(Tex. 2010) (per curiam).      If the condition is a special defect, however, a

governmental unit owes the duty applicable to an invitee, that is, the governmental

unit must use ordinary care to reduce or eliminate an unreasonable risk of harm

created by a condition of which it is or reasonably should be aware. See id. at 606–

07. Consequently, Cruz had only to prove that Saginaw had constructive knowledge

of any alleged special defect. See City of Weston v. Gaudette, 287 S.W.3d 832, 838

(Tex. App.—Dallas 2009, no pet.) (“A city’s duty to warn of a special defect exists

even if the city has only constructive knowledge.”).

       Saginaw argues it could not have actual knowledge because “the manhole

cover flipped open mere seconds before [Cruz’s] car struck it.” Thus, Saginaw did

not have time to learn of any defect. Moreover, it did not have control of the

premises. According to Saginaw, it relinquished control over the premises to JLB
                                        –8–
through its Construction Contract. Without control over the premises, Saginaw

argued, it could not have actual knowledge of any defect on the premises. Setting

aside Saginaw’s misstatement of the knowledge requirement, we disagree with

Saginaw’s posited conclusion.

      Saginaw attempts to constrain the occurrence of the special defect at issue

here to the moment the manhole cover flipped open by directing us to our holding

in Zaidi v. North Texas Tollway Authority, No. 05-17-01056-CV, 2018 WL

6426798, at *3 (Tex. App.—Dallas Dec. 6, 2018, no pet.) (mem. op.). Zaidi

concerned two single-vehicle accidents. Id. at *1. The first accident occurred when

a vehicle driven by Taion Rahaad Tolbert left the roadway and struck a light pole.

Id. The light pole fell onto the roadway. Id. Zaidi was traveling the same direction

about two minutes behind Tolbert. Id. Zaidi’s vehicle struck the light pole, killing

Zaidi. Id. Zaidi’s heir and estate representative sued Tolbert and the North Texas

Tollway Authority (NTTA). Id. On appeal from the trial court’s grant of NTTA’s

plea to the jurisdiction, we concluded, “Considering the almost simultaneous

creation of the special defect and [Zaidi’s] collision, there is no evidence from which

to create a fact issue as to whether NTTA should have been aware of the downed

pole earlier or whether NTTA failed to use ordinary care to protect [Zaidi] from

colliding with the downed pole.” Id. at *3. Saginaw argues our holding in Zaidi

demands finding Saginaw could not have had constructive knowledge of the

upturned manhole cover as a matter of law.
                                         –9–
      The downed light pole in Zaidi, however, is factually distinct from the

upturned manhole cover at issue here for four reasons. First, the light pole fell as

the result of Tolbert’s vehicle leaving the roadway and striking it. Here, the evidence

indicates that the manhole was located in the roadway, and the cover flipped open

as a vehicle passed over it. Second, the record in Zaidi reflected that the light pole

was installed in the late 1960s, and its collapse in the accident was consistent with

the design and materials used in such poles. Zaidi, 2018 WL 6426798, at *3. Here,

the record reflects that the manhole cover was intended to remain in place when a

vehicle passed over it. The record further reflects that the manhole cover did not

remain in place and had to be forced back into position after the accident.

Specifically, Saginaw attached a transcript of an interview with accident witness

Robyn Victor to its brief in support of its plea. Victor testified that a firefighter who

responded to the accident had to “stomp” on the manhole cover several times before

it stayed down. Third, the light pole in Zaidi had been installed nearly forty years

before the accident. The record here reflects that the manhole cover at issue had

been installed immediately before the accident as part of Saginaw’s “reconstructing

and widening” of Bailey Boswell Road. Indeed, the record reflects that the section

of road at issue was still under construction when the accident occurred. Finally, we

did not conclude in Zaidi that the downed light pole was a special defect. Rather,

we merely assumed without deciding that it was a special defect to analyze whether

NTTA had constructive knowledge. Id.
                                         –10–
      Unlike the alleged defect in Zaidi, which did not exist until Tolbert’s vehicle

struck the light pole, the evidence here indicates the defect in the manhole cover

existed before the vehicle passed over the manhole. The Construction Contract

specified that the “work required for this project” included the installation of “Storm

Drain Manholes” and work to “replace cone, frame, ring, cover, and adjust existing

sanitary sewer manhole.” Cruz offered evidence in response to Saginaw’s plea

showing that the manhole cover at issue was covering a “storm sewer” manhole.

Thus, the record reflects evidence that the manhole cover was installed as part of the

ongoing construction project. As previously discussed, Saginaw’s own evidence

shows that the manhole cover did not stay affixed to the hole as intended.

      Saginaw argues that it could not have discovered any defect in the manhole

cover before the accident because it did not have control of the construction site.

According to Saginaw, the Construction Contract gave JLB control over the site, and

Saginaw’s reserved right to enter the site and inspect JLB’s work is insufficient to

show the degree of control necessary to have actual knowledge of the alleged special

defect. We disagree with Saginaw’s analysis and contention that actual knowledge

is required to prevail on a special defect claim. See Gaudette, 287 S.W.3d at 838.

      Saginaw cites Black + Vernooy Architects v. Smith, 346 S.W.3d 877, 886

(Tex. App.—Austin 2011, pet. denied), for the proposition that its retained right of

inspection is insufficient to show the degree of control required to support a finding

of actual knowledge. The claims in Smith arose from personal injuries suffered when
                                        –11–
a balcony separated from a house designed by the defendant architecture firm. Id.

at 879–80. One issue concerned the degree of control the firm had over the

construction. Id. at 885–86. In addressing this “right to control” issue, the Austin

court of appeals concluded that the firm’s contractual “ability to reject” the

construction work did not vest it with the “power to control the actual construction

work performed at the site.” Id. at 886. In so holding, the court cited several contract

provisions expressly restricting the firm’s control, including one stating that the firm

“shall neither have control over or charge of, nor be responsible for, the construction

means, methods, techniques, sequences or procedures, or for safety precautions and

programs in connection with the Work.” Id. at 886–87. The record here reflects that

the Construction Contract contains no such restrictions. Thus, Smith is inapplicable

to our analysis.

      In construing a written contract, we must ascertain and give effect to the

parties’ intentions as expressed in the agreement. URI, Inc. v. Kleberg Cty., 543

S.W.3d 755, 763 (Tex. 2018). To do so, we consider the agreement as a whole.

Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205

S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet. denied). We presume the words of a

contract reflect the parties’ intent, but we must construe words in the context in

which they are used. URI, Inc., 543 S.W.3d at 764. If, after the pertinent rules of

construction are applied, the contract can be given a definite or certain legal

meaning, it is unambiguous and courts should construe it as a matter of law. Frost
                                         –12–
Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam).

If a contract is susceptible to more than one reasonable interpretation, it is

ambiguous. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987).

Whether a contract is ambiguous is a question of law for the court to decide by

looking at the contract as a whole in light of the circumstances existing at the time

the contract was entered into. Id. at 529.

      The Construction Contract specifically states, “The Engineer [Kimley-Horn]

will be [Saginaw’s] representative during construction,” and requires Kimley-Horn

to make periodic site visits to determine whether the work meets “essential

performance and design features and the technical and functional engineering

requirements . . . .” The Construction Contract also reserved Saginaw’s right to

enter and inspect the work. Specifically, the contract states:

      [Saginaw] reserves the right to enter the property or location on which
      the works herein contracted for are to be constructed or installed, by
      such agent or agents as he may elect, for the purpose of inspecting the
      work, or for the purpose of constructing or installing such collateral
      work as [Saginaw] may desire.

The Construction Contract also states that “[d]uring the progress of the work, all

materials, equipment, and workmanship shall be subjected to such inspections and

tests as will assure conformance with the contract requirements.” And “[a]ll testing

shall be done by a testing laboratory chosen by [Saginaw].” Regarding the use of a

section of work, the Construction Contract states:



                                        –13–
      Whenever, in the opinion of the Engineer, any section or portion of the
      work, or any structure is in suitable condition, it may be put into use
      upon written order of the Engineer or [Saginaw], and such use shall in
      no way be interpreted as acceptance of said work or waive any of the
      provisions of the contract.
Saginaw does not argue that any of these provisions are ambiguous or vague.

      We conclude that the parties to the Construction Contract intended not only

to reserve Saginaw’s right to enter and inspect JLB’s work, but also to subject JLB’s

work to mandatory inspection, to designate Kimley-Horn as Saginaw’s agent to

ensure that JLB’s work conformed with the contract requirements, and to reserve to

Saginaw and its agent the right to put any section of work into use. See URI, Inc.,

543 S.W.3d at 763. This evidence, coupled with evidence that the manhole cover

failed to function correctly, is sufficient to raise a fact question as to whether

Saginaw had constructive knowledge that the manhole cover did not conform to the

contract requirements before it was put into use. See Hayes, 327 S.W.3d at 116;

Gaudette, 287 S.W.3d at 838. Accordingly, we overrule Saginaw’s fourth issue.

B.    Saginaw’s Amended Admissions
      In its fifth, sixth, and seventh issues, Saginaw contends that the trial court

abused its discretion in denying Saginaw’s motion to amend its admissions because

Saginaw provided good cause, the amended admissions would not be unfairly

prejudicial to Cruz, and the presentation of the merits would be subserved by the

amended admissions.



                                       –14–
      Under rule of civil procedure 198.3(a), a trial court may permit a party to

withdraw or amend an admission if the party shows good cause for the withdrawal

or amendment. TEX. R. CIV. P. 198.3(a). “Good cause is established by showing the

failure involved was an accident or mistake, not intentional or the result of conscious

indifference.” Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam).

Even a slight excuse will suffice, especially when delay or prejudice to the opposing

party will not result. Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex. App.—Dallas

1997, no pet.); In re Cagle, 585 S.W.3d 618, 623 (Tex. App.—Houston [14th Dist.]

2019, orig. proceeding). The trial court must also find that the party relying on the

admissions will not be unduly prejudiced, and that presentation of the merits of the

action will be subserved by permitting the withdrawal of the admission. TEX. R.

CIV. P. 198.3(b).

      We review a trial court’s decision to permit or deny the withdrawal of deemed

admissions for an abuse of discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.

1996) (per curiam); Tommy Gio, Inc. v. Dunlop, 348 S.W.3d 503, 509 (Tex. App.—

Dallas 2011, pet. denied). We should set aside a trial court’s ruling only if, after

reviewing the entire record, it is clear that the trial court abused its discretion.

Papania, 927 S.W.2d at 622 (appellate court concluded there was evidence in record

to support trial court’s order allowing withdrawal of admissions; record contained

affidavit regarding party’s action taken upon discovery of “faulty” admissions and,

to show good cause, affidavit and report established party did not own property at
                                        –15–
issue). A trial court abuses its discretion if it acts without reference to guiding rules

or principles or acts arbitrarily or unreasonably.       See Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).

      The admissions at issue concern Saginaw’s right to control the details of JLB’s

work and persons installing the manhole cover, and Saginaw’s custody and control

of the manhole cover. Specifically, Saginaw admitted it:

           had the right to control the details of the work being conducted on the
            road construction project at the time of the incident;
           had custody and control of the manhole cover involved in the incident
            at the time of the incident; and
           had the right to control the details of the work performed by the persons
            [Saginaw] employed to supervise and install the manhole cover on the
            road construction project at the time of the incident.
      Saginaw contends that Cruz served these and seventeen other requests for

admission on Saginaw when he filed suit on December 27, 2018.                  Saginaw

responded to Cruz’s requests for admission on March 22, 2019. According to

Saginaw, counsel responded to the admissions from a partial copy of the

Construction Contract. Counsel claims she received from Saginaw “additional

contract documents” on July 1, 2019, and these additional documents show that

Saginaw “did not have the right to control either the construction site or the

construction work.” Saginaw filed its motion to amend its admissions on August 9,

2019, based on this revelation. Cruz responded that Saginaw had failed to show

good cause, citing Saginaw’s verified interrogatory responses that were served


                                         –16–
simultaneously with its admissions as evidence of counsel’s communication with

Saginaw. We agree.

      The record does not reflect that Saginaw provided evidence to show good

cause for the requested amendments. During the hearing on Saginaw’s motion,

counsel merely argued that she failed to determine whether Saginaw had provided

the complete contract and answered Cruz’s requests for admission from a partial

copy of the contract. Counsel contended that she was in “full communication” with

Saginaw, but she offered no evidence to explain why Saginaw did not produce the

complete Construction Contract until July 1, 2019, or to demonstrate that the failure

to accurately respond was not the result of conscious indifference. See Wheeler, 157

S.W.3d at 442 (party seeking to withdraw admission must show good cause).

      Saginaw also argued in its motion that Cruz could not have been unduly

prejudiced because trial was still six months away when Saginaw filed its motion to

amend its admissions. Saginaw conflates the last two requirements under rule

198.3(b). See TEX. R. CIV. P. 198.3(b) (the court must find “the parties relying upon

the responses and deemed admissions will not be unduly prejudiced and that the

presentation of the merits of the action will be subserved” (emphasis added)).

      Cruz argued in response to Saginaw’s motion that he would be unduly

prejudiced by the amended admissions because he had relied on Saginaw’s

admissions in preparing his response to Saginaw’s plea to the jurisdiction. Saginaw

argued at the hearing on its motion that the amended admissions went directly to the
                                       –17–
trial court’s jurisdiction. Specifically, the admissions Saginaw sought to amend

concerned Saginaw’s control over the manhole cover and JLB’s work.                   As

previously discussed, these issues implicate the question of whether Saginaw had

constructive knowledge of any alleged defect in the manhole cover, which is an

element of Cruz’s premises liability claim.

      Saginaw noticed the hearing on its plea to the jurisdiction on June 25, 2019,

approximately one week before Saginaw allegedly received the complete

Construction Contract. Over one month later, and six days before the hearing on its

plea to the jurisdiction, Saginaw filed its motion to amend its admissions on August

9, 2019, contemporaneously with its brief in support of its plea. Saginaw offered no

explanation for this delay and failed to demonstrate that Cruz would not be unduly

prejudiced by its amended admissions. See id.

      Cruz further argued in response to Saginaw’s motion that “the ‘complete’

version of the contract changes nothing regarding Saginaw’s control and its duty

owed to [Cruz].” We agree. As previously discussed, the complete Construction

Contract, attached to Saginaw’s brief in support of its plea, demonstrates that

Saginaw retained a sufficient right of control to raise a fact issue as to its knowledge

of the alleged defect. Additionally, other admissions that Saginaw did not seek to

amend would equally serve to demonstrate Saginaw’s control.               Specifically,

Saginaw admitted:


                                         –18–
            an employee, agent, representative and/or subcontractor of [Saginaw]
             at times material to this suit and at the time of the incident made the
             basis of this suit had the duty to install and inspect the manhole cover;
             and
           acting through [its] employees, agents or representatives, [Saginaw]
            had installed the manhole cover on the roadway construction project
            prior to the time of the incident made the basis of this suit.
Thus, Saginaw failed to demonstrate the presentation of the merits of the action

would be subserved by the amended admissions. See TEX. R. CIV. P. 198.3(b).

      On this record, we cannot say that the trial court abused its discretion in

denying Saginaw’s motion to amend its admissions. See Papania, 927 S.W.2d at

622. Accordingly, we overrule Saginaw’s fifth, sixth, and seventh issues.

                                  CONCLUSION

      Having overruled Saginaw’s fourth, fifth, sixth, and seventh issues, we

conclude the trial court did not err in denying Saginaw’s plea to the jurisdiction and

motion to amend its admissions. Accordingly, we affirm the trial court’s orders.



                                       /s/ Robbie Partida-Kipness
                                       ROBBIE PARTIDA-KIPNESS
                                       JUSTICE


Schenck, J., dissenting

191141F.P05




                                        –19–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

CITY OF SAGINAW, TEXAS,                        On Appeal from the 160th Judicial
Appellant                                      District Court, Dallas County, Texas
                                               Trial Court Cause No. DC-18-19227.
No. 05-19-01141-CV           V.                Opinion delivered by Justice Partida-
                                               Kipness. Justices Schenck and
BRANDON CRUZ, Appellee                         Nowell participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.



Judgment entered this 27th day of August, 2020.




                                        –20–
