                            NUMBER 13-16-00695-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


CITY OF HIDALGO, TEXAS AND
THE CITY OF HIDALGO, TEXAS
MUNICIPAL FACILITIES CORPORATION,                                        Appellants,

                                          v.

MARY LEAH HODGE,                                                          Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Contreras and Hinojosa
            Memorandum Opinion by Chief Justice Valdez

      Appellants, the City of Hidalgo (the “City”) and City of Hidalgo Texas Municipal

Facilities Corporation (“CHMFC”) appeal the trial court’s denial of their plea to the

jurisdiction. By two issues, appellants contend that the trial court should have granted
their plea to the jurisdiction because appellee, Mary Leah Hodge, failed to raise a material

issue of fact necessary to confer jurisdiction on the trial court. We affirm.

                                         I.      BACKGROUND

       At a concert event outside of the State Farm Arena during an annual event called

Borderfest, Hodge stepped into a hole and was injured. Hodge sued the City and CHMFC

under a premises liability theory. Claiming immunity, appellants sought dismissal of the

claim via a plea to the jurisdiction. The trial court denied the plea. This interlocutory

appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West, Westlaw

through 2017 1st C.S.).

                                   II.        STANDARD OF REVIEW

       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). A challenge to the trial court’s subject matter jurisdiction

is a question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226 (Tex. 2004). The plaintiff first bears the burden to plead facts

establishing jurisdiction.   Id.     We will, when necessary, consider relevant evidence

submitted by the parties to resolve the jurisdictional dispute. Id. at 227 (citing Bland Indep.

Sch. Dist., 34 S.W.3d at 555). However, we will consider only the evidence relevant to

the jurisdictional question. Bland Indep. Sch. Dist., 34 S.W.3d at 555. “[I]f the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issues, the trial

court rules on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228.

       We take as true all evidence favorable to the non-movant and indulge every

reasonable inference and resolve any doubts in favor of the non-movant. City of Waco



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v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). In the plea to the jurisdiction context, a

defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff

to raise a fact issue. Mission Consol. Indep. Sch. Dist. v. Garcia, 314 S.W.3d 548, 553–

554 (Tex. App.—Corpus Christi 2010) rev’d in part on other grounds, 372 S.W.3d 629,

645 (Tex. 2012).

                                 III.   APPLICABLE LAW

      Unless the Legislature expressly waives it, local governmental entities have

absolute immunity from suit. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d

384, 388 (Tex. 2011). When the legislature provides for a waiver of immunity from suit,

it must do so with clear and unambiguous language, and any ambiguity must be resolved

in favor of retaining immunity. Tooke v. City of Mexia, 197 S.W.3d 325, 328–29, 333

(Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).

      “[A] governmental unit is immune from suit unless the [Texas] Tort Claims Act

[(“TTCA”)] expressly waives immunity, which it does in,” among other situations, suits

involving premises defects. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380,

384 (Tex. 2016). Section 101.021(2) of the TTCA “waives governmental immunity for

personal injuries caused by a condition on property ‘if the governmental unit would, were

it a private person, be liable to the claimant according to Texas law.’” City of El Paso v.

Viel, 523 S.W.3d 876, 891 (Tex. App.—El Paso 2017, no pet.) (quoting TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2) (West, Westlaw through 2017 1st C.S.)). Generally, for

such conditions, a governmental unit owes only the duty that a private person owes to a

licensee on private property. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a)

(West, Westlaw through 2017 1st C.S.)). However, “[i]f the claimant pays for use of the



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premises, the City’s duty is elevated to that owed to an invitee.” Id. (citing City of Dallas

v. Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas 2013, no pet.)).

               At common law, a licensee is defined as a person who, for his or her
       own convenience, pleasure, or benefit, enters the premises with the express
       or implied permission of the owner. To a licensee, a premises owner owes
       a duty not to injure “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.”

               ....

              At common law, an invitee is a person who enters the premises of
       another in answer to an express or implied invitation from the owner or
       occupier for their mutual benefit. To an invitee, a landowner owes “a duty
       to make safe or warn against any concealed, unreasonably dangerous
       conditions of which the landowner is, or reasonably should be, aware but
       the invitee is not.” An invitee need only prove that the owner knew or
       reasonably should have known of a dangerous condition, whereas a
       licensee must prove that the premises owner actually knew of the
       dangerous condition.

Id. (internal citations omitted).

                                    IV.   INVITEE STATUS

       By their first issue, appellants contend that Hodge is not an invitee because she

could not show that appellants had possession or control of the premises, Hodge did not

pay appellants to enter the premises, and the hole was not a special defect.

A.     Control of Premises

       First, appellants argue that the trial court should have granted the plea to the

jurisdiction because Hodge did not establish that appellants were in possession or control

of the premises at the time of her fall. Specifically, the City argues that it leased its

premises to the Borderfest Association and that Borderfest Association was actually in

custody and control of the premises when Hodge fell.



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      In its plea to the jurisdiction, the City claimed that there was an “understanding”

that the City had leased the premises to the Borderfest Association, and therefore, as a

landlord it owed no duty to Hodge. Hodge responds on appeal that there is no evidence

that the City leased the premises to the Borderfest Association.

      Generally, landlord (lessor) owes no duty to a tenant (lessee) or a tenant’s invitees

for dangerous conditions on leased property. Shell Oil v. Kahn, 138 S.W.3d 288, 296

(Tex. 2004).   “This general rule stems from the notion that a lessor relinquishes

possession or occupancy of the premises to the lessee.” Johnson Cty. Sheriff's Posse,

Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). There are several exceptions to this

general rule, including an exception for injuries caused by defects on the premises that

remain under the lessor’s control. Id. “The relevant inquiry is whether the defendant

assumed sufficient control over the part of the premises that presented the alleged danger

so that the defendant had the responsibility to remedy it.” Cty. of Cameron v. Brown, 80

S.W.3d 549, 556 (Tex. 2002). “Control can be proven by either a contractual agreement

expressly assigning the right of control or an actual exercise of control.”      Cohen v.

Landry’s Inc., 442 S.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2014, pet. denied);

see also Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002).

      On appeal, appellants do not clearly explain how the alleged lease with the

Borderfest Association came into existence. And, appellants have conceded that there

is no written agreement leasing the premises to the Borderfest Association. Hodge

attached evidence to her response to appellants’ plea to the jurisdiction showing that the

City owns the premises where she fell. In addition, Hodge pointed to evidence that: (1)

the Borderfest Association operational guidelines for 2014 indicate that “maintenance and



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cleanup will be handled by City crews”; (2) the City Manager routinely held meetings with

the employees assigned to work at and in connection with Borderfest and directed city

personnel on the placement of “food booths, trash, bleachers, and all other work needed

for Borderfest”; and (3) the City’s employees worked at Borderfest, determined where the

bleachers would be set, set up the bleachers, removed trash from the premises each

night during the four-day festival, inspected the grounds around the bleachers, covered

the hole where Hodge tripped with river sand shortly after the incident, and were

responsible for overall maintenance of the State Farm Arena and grounds. We conclude

that under the appropriate standard of review, this evidence sufficiently established as a

matter of law that the City had control of the premises at the time Hodge fell. See Gunn

v. Harris Methodist Hosp., 887 S.W.2d 248, 252 (Tex. App.—Fort Worth 1994, writ

denied) (defining control as contemplated by a premises liability claim to include the

power or authority to manage, direct, superintend, restrict, regulate, govern, administer,

or oversee); see also Cohen, 442 S.W.3d at 824 (“[E]vidence of subsequent remedial

measures, although inadmissible as to negligence, is admissible to prove control when

that issue is controverted.”).

       Nonetheless, the City claims that it provided evidence that the Borderfest

Association made decisions regarding what the city employees would do in preparation

for the event and that the Borderfest Association directed the actions of the City’s

employees. However, we cannot conclude that this evidence shows that there was an

implied lease of the premises to the Borderfest Association especially in light of the

evidence stated above, which supports a conclusion that the City maintained control of

the premises. For that reason, we conclude that there is no evidence that the City



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relinquished possession or occupancy to the Borderfest Association. See Johnson Cty.

Sheriff's Posse, Inc., 926 S.W.2d at 285.           Accordingly, because Hodge’s evidence

sufficiently shows that the City owned the premises and that the City was in control of the

premises, and given that the City has produced no written lease nor provided any

evidence of an implied lease agreement, we conclude that the trial court did not err in

denying the City’s plea to the jurisdiction on these grounds. See Miranda, 133 S.W.3d at

228 (explaining that the governmental unit must meet the summary judgment standard of

proof for its assertion that the trial court lacks jurisdiction).

B.     Payment for Use or Entry of Premises

       Next, appellants argue that because Hodge paid an entrance fee to the Borderfest

Association, as opposed to paying a fee to appellants, she is not an invitee pursuant to

section 101.022(a) but was instead a licensee.             Hodge responds that there is no

requirement in the statute that she pay the party that owned, occupied and/or controlled

the premises where the incident took place.

       As previously stated, the governmental unit owes a person injured on its property

the duty owed to a licensee unless the claimant pays for use of the premises. TEX. CIV.

PRAC. & REM. CODE ANN. § 101.022(a).              The TTCA contemplates that the fee be

specifically paid for entry onto and use of the premises. City of Dallas v. Davenport, 418

S.W.3d 844, 847 (Tex. App.—Dallas 2013, no pet.). Here, it is undisputed that Hodge

paid an entry fee for use of the premises on the day that she was injured. The City cites

no authority, and we find none, requiring the City itself to collect and receive the entry fee

charged. As Hodge points out, the statute itself makes no such distinction. It states, “the

governmental unit owes to the claimant only the duty that a private person owes to a



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licensee on private property, unless the claimant pays for the use of the premises.” TEX.

CIV. PRAC. & REM. CODE ANN. § 101.022(a).

       In Sullivan v. City of Fort Worth, the court of appeals held that the Sullivans had

paid for use of the premises even though they were merely guests at a wedding reception.

Sullivan v. City of Fort Worth, No. 02–10–00223–CV, 2011 WL 1902018, at *1 (Tex.

App.—Fort Worth May 19, 2011, pet. denied) (mem. op. on reh’g). The court of appeals

explained that the host of the reception, Jeremy Tekell, paid a fee for the admission of up

to 250 guests, and “[h]ad Mr. Tekell not paid the rental fee to lease the Garden, the

Garden would have been closed to everyone including the Sullivans.” Id. at *8. “It was

Mr. Tekell’s rental fee which allowed the Sullivans’ use of the premises” on the night of

the injury. Id. Like the Sullivans, if Hodge had not paid the fee to enter the City’s premises

on the day she was injured, she would not have been allowed to enter. It was Hodge’s

entry fee which allowed her the use of the premises.

       In addition, in Dallas-Fort Worth International Airport Public Facility Improvement

Corp. v. Banks, the court of appeals concluded that a question of fact concerning the

claimant’s status as an invitee existed because the claimant was allowed to enter the

area of the airport where she was injured only because she purchased an airline ticket.

Dallas–Fort Worth Int’l Airport Pub. Facility Improvement Corp. v. Banks, No. 02–09–176–

CV, 2010 WL 87865, at *4 (Tex. App.—Fort Worth Jan. 7, 2010, pet. denied) (mem. op.).

There was nothing indicating that the claimant purchased her airline ticket from the

governmental unit. See id. However, the focus of the court’s analysis is on whether the

claimant paid for entry onto the premises. See id. Accordingly, we are persuaded by this

authority that our analysis should focus on whether Hodge paid for entry onto the



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premises and not on whether the City received the money. See id. Therefore, we

conclude that the trial court did not err by denying the City’s plea to the jurisdiction on that

ground.1 We overrule the City’s first issue.2

                                      V.       PREMISES LIABILITY

        By their second issue, appellants contend that even if invitee status applies, neither

appellant had actual or constructive knowledge of any defect on the premises.

        First, appellants argue that because Hodge was a licensee, appellants owed her

a duty not to injure her by willful, wanton or grossly negligent conduct and to use ordinary

care either to warn Hodge of, or to make reasonably safe, a dangerous condition of which

appellants were aware and Hodge was not.                     According to appellants, Hodge has

presented no evidence to even raise a question of fact regarding whether it caused her

injury by willful, wanton, or grossly negligent conduct or that appellants were aware of the

allegedly dangerous condition. We have concluded that the City did not establish as a

matter of law that Hodge is a licensee; therefore, we need not address this argument.

        Next, appellants argue that even assuming that Hodge is an invitee, neither the

City nor the CHMFC had actual or constructive knowledge of any defect. Hodge responds

that as an invitee she need only show that appellants knew or should have known of the




        1We note that the City premises its argument in part on its claim that it leased the premises to the
Borderfest Association. However, we have already concluded that argument lacks merit.
        2 We need not address appellants’ argument that the hole was not a special defect because we
have already determined that a fact issue exists regarding whether Hodge was an invitee under section
101.022(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (a), (b) (West, Westlaw through 2017 1st
C.S.) (establishing that a claimant is an invitee if either (1) “the claim arises from a premises defect” and
the claimant pays for the use of the premises or (2) the governmental unit failed to warn of special defects
such as excavations or obstructions on highways, roads, or streets or failed to ward of the absence,
condition, or malfunction of traffic signs, signals, or warning devices).


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danger and that proof of constructive knowledge requires only that the condition existed

long enough to have been discovered through reasonable inspection.

       To prevail, an invitee must show that the occupier or owner had actual or

constructive knowledge of a condition on the premises, the condition posed an

unreasonable risk of harm, the owner/occupier did not exercise reasonable care to reduce

or eliminate the risk, and the owner/occupier’s failure to use such care proximately caused

the plaintiff’s injury. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

“[A]n occupier’s liability to an invitee depends on whether he acted reasonably in light of

what he knew or should have known about the risks accompanying a premises condition,

not on whether a specific set of facts or a specific breach of duty is established.” Id. at

295. The owner/operator has constructive knowledge of any premises defects or other

dangerous conditions that a reasonably careful inspection would reveal. Id.

       Hodge presented evidence that the hole was circular and about the size of a large

dinner plate and that the hole was large enough to contain a men’s size 13 or 14 shoe.

Evidence was presented that the hole was so deep the emergency service worker who

treated Hodge was able to place his knee inside the hole. In addition, the hole was one

step away from the bleachers and in front of the bleachers requiring a person to step

directly onto the hole before climbing the bleachers. Hodge’s husband testified that the

hole had clearly been there for some substantial time based on its appearance. In

addition, evidence was presented that City employees inspected the ground around each

bleacher. Moreover, there is some evidence that the hole is man-made and that the City

was solely responsible for setting up the bleachers and maintaining the grounds.




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       Viewing this evidence in the light most favorable to Hodge, as we must, we

conclude that a question of fact exists regarding whether appellants had constructive or

actual knowledge of the hole. We overrule appellants’ second issue.

                                           VI.    CHMFC

       By a sub-issue to their second issue, appellants contend that Hodge presented no

evidence that CHMFC owned the premises; therefore, it proved as a matter of law that it

owed her no duty, either as an owner or the party in possession or control of the

premises.3 In her brief, Hodge cites conflicting evidence of ownership of the premises.

Appellants respond that CHMFC transferred its interest to the City prior to this incident.

       In interrogatories attached to Hodge’s response to appellants’ plea to the

jurisdiction, CHMFC stated that it had provided the building and grounds for Borderfest

the year that Hodge was injured and that it had been reimbursed for its labor costs and

other expenses by the Borderfest Association. In addition, as appellants acknowledge,

the former City Manager testified that CHMFC was still the owner of the premises where

Hodge was injured. Viewing the evidence in the light most favorable to Hodge, we

conclude that a question of fact exists regarding whether CHMFC still owned the

premises. We overrule appellants’ sub-issue to their second issue.

                                        VII.     CONCLUSION

       We affirm the trial court’s judgment.

                                                               /s/ Rogelio Valdez
                                                               ROGELIO VALDEZ
                                                               Chief Justice

Delivered and filed the
18th day of January, 2018.

       3   Appellants make no other argument regarding whether we have jurisdiction over CHMFC.


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