                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00116-CV

                                     CITY OF SAN ANTONIO,
                                            Appellant

                                                   v.

                                     Maria Elena RODRIGUEZ,
                                              Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-03294
                       Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 30, 2013

AFFIRMED

           In the underlying cause, Maria Elena Rodriguez sued the City of San Antonio for injuries

she sustained when a vehicle in which she was a passenger collided with a city-owned vehicle

driven by Sergeant Gabriel Treviño. The trial court denied the City’s plea to the jurisdiction

alleging that it was entitled to immunity from suit under the Texas Tort Claims Act. On appeal,

the City argues that: (1) the City is entitled to sovereign immunity because Rodriguez has not

raised an issue of material fact regarding whether there is a nexus between her injuries and

Treviño’s use of the City’s vehicle; (2) Rodriguez should be judicially estopped from asserting
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that the collision with Treviño was the cause of her injuries because she previously filed a suit

alleging that defects in the vehicle in which she was a passenger were the cause of her injuries;

and (3) the trial court erred in overruling the City’s objections to Rodriguez’s rebuttal evidence.

We overrule the City’s points of error and affirm the trial court’s order denying the City’s plea to

the jurisdiction.

                                          BACKGROUND

        This case arises out of a car accident between a vehicle driven by Rosita Paez Davila, in

which Rodriguez was a passenger, and a city-owned vehicle driven by Treviño. While driving on

Loop 1604, Treviño’s vehicle and Davila’s vehicle collided. At some point after the vehicles

collided, Davila turned her steering wheel sharply to the left, causing her to lose control of her

vehicle and crash into a retaining wall. The collision with the retaining wall, which caused

Davila’s vehicle to roll over, killed Davila and seriously injured Rodriguez.

        The crash was investigated by multiple individuals, including crash-site investigators

employed by the San Antonio Police Department (SAPD), members of the Department of Public

Safety’s (DPS) crash-site reconstruction team, and an independent crash-site investigator hired by

the City, all of whom were deposed regarding their conclusions. The only physical evidence found

on or near the roadway was a “yaw mark,” which the investigators agree was the result of a sharp

steering input by Davila. There was no other physical evidence, such as a debris field, indicating

the location where the vehicles first made contact. There were also no eyewitnesses to the

collision.

        Rodriguez filed suit against the City alleging, among other things, that her injuries were a

result of Treviño’s negligence. Rodriguez also filed a suit against Chrysler Group, LLC alleging

the unreasonably dangerous and defective design, manufacture, assembly, marketing, and/or



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testing of Davila’s vehicle were a proximate cause of Rodriguez’s injuries. Rodriguez’s claims

against Chrysler were later nonsuited.

        The City filed a plea to the jurisdiction and a no-evidence motion for summary judgment

alleging that Rodriguez had not raised an issue of material fact regarding whether there was a

nexus between Davila and Treviño’s collision and Davila’s collision with the retaining wall, and

that Rodriguez had judicially admitted her injuries were a result of Chrysler’s product defects. The

trial court held a hearing on the City’s no-evidence motion for summary judgment and plea to the

jurisdiction, and it denied both. The City appeals only the trial court’s denial of its plea to the

jurisdiction.

                                      STANDARD OF REVIEW

        Subject-matter jurisdiction is a question of law that we review de novo. Texas Dept. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); City of San Antonio v. Estrada,

219 S.W.3d 28, 31 (Tex. App.—San Antonio 2006, no pet.). In order to defeat a plea to the

jurisdiction, the pleadings must affirmatively demonstrate a trial court’s subject-matter jurisdiction

by alleging a valid waiver of immunity. Miranda, 133 S.W.3d at 226; Texas Ass’n of Bus. v. Texas

Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Similarly, we review undisputed evidence of

jurisdictional facts de novo to determine whether a trial court has jurisdiction. Miranda, 133

S.W.3d at 226. “However, in some cases, disputed evidence of jurisdictional facts that also

implicate the merits of the case may require resolution by the finder of fact.” Id. When a plea to

the jurisdiction challenges the existence of jurisdictional facts, a reviewing court must consider

evidence relevant to the jurisdictional question when necessary to resolve the issue. Univ. of Tex.

at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam); Miranda, 133 S.W.3d at 227.

        The standard of review for a plea to the jurisdiction closely resembles that of a summary

judgment. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); Miranda, 133 S.W.3d
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at 228. Thus, in order to meet its burden, the governmental unit is required to present evidence

that the trial court lacks subject-matter jurisdiction. Miranda, 133 S.W.3d at 228.                 If the

jurisdictional facts are intertwined with facts relating to the merits of the suit, the plaintiff is simply

required to show that there is a disputed issue of material fact that must be decided by the fact

finder. Id.; see also Hayes, 327 S.W.3d at 116. “When reviewing a plea to the jurisdiction in

which the pleading requirement has been met and evidence has been submitted to support the plea

that implicates the merits of the case, we take as true all evidence favorable to the nonmovant.”

Miranda, 133 S.W.3d at 228; see also Heinrich, 284 S.W.3d at 378. We also “indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.” Miranda, 133 S.W.3d at

228. “However, if the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Id.

        IS THERE A QUESTION OF FACT PREVENTING THE APPLICATION OF IMMUNITY?

        In its first issue, the City asserts that Rodriguez has not shown that a disputed issue of

material fact exists with regard to any nexus between her injuries and the collision with Treviño’s

vehicle and, thus, the trial court erred in denying its plea to the jurisdiction. Additionally, in its

third issue, the City asks us to determine the admissibility of the City’s investigators’ accident

report, the Department of Public Safety’s investigators’ accident report, and an agreed order of

suspension entered into between the Chief of Police, William McManus, and Treviño. Because

most of this evidence is cumulative of other evidence in the record and because the remainder of

the record contains enough evidence to raise a question of fact, we do not need to rely on this

evidence to make a determination about whether the trial court has jurisdiction. Therefore, we

decline to rule on the admissibility of these pieces of evidence at this stage in the proceedings.

        The City claims “[t]here is no evidence as to which vehicle hit the other to cause the initial

contact” and that “the evidence is undisputed that the impact between the vehicles was minor and
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of a nature that should not hurt anyone or have caused anyone to lose control of their vehicle.”

The City further contends that: (1) Davila was approximately 420 feet from the entrance ramp

Treviño used when she lost control of her vehicle; (2) the collision between Davila and Treviño’s

vehicles happened near the entrance ramp; (3) because Davila was approximately 420 feet from

the entrance ramp when she lost control, her excessive steering input could not have been caused

by the collision with Treviño; and (4) Davila’s excessive steering input to the left was the cause of

her loss of control and subsequent crash into the retaining wall. Essentially, the City’s argument

hinges on the theory that the collision between Treviño and Davila was unrelated to Davila’s

subsequent crash.

       First, we note that contrary to the City’s assertions, the evidence in this case is vigorously

disputed. In support of her position that there is a fact question regarding whether her injuries

were caused by Treviño’s use of his vehicle, Rodriguez points to numerous pieces of evidence that

contradict the City’s assertions. After reviewing the plethora of evidence already adduced in this

case, we conclude there are multiple jurisdictional fact issues intertwined with the merits of the

case that must be decided by a finder of fact.

       A. Sovereign Immunity

       A trial court lacks subject-matter jurisdiction over lawsuits in which a governmental unit

has sovereign immunity, unless the State has waived immunity to suit under the Texas Tort Claims

Act (TTCA). Miranda, 133 S.W.3d at 224; Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

540, 542 (Tex. 2003). The TTCA waives sovereign immunity when an individual’s injuries are

caused by the operation or use of a government-owned motor vehicle. Miranda, 133 S.W.3d at

225; see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(a) (West 2011). Sovereign

immunity can be properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 225–26.



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         In order to show waiver of immunity, a plaintiff must present evidence that its injuries

arose from the operation or use of a government-owned motor-driven vehicle. Whitley, 104

S.W.3d at 542–43. To show that the injuries arose from the operation or use of a motor-driven

vehicle, the plaintiff must show a nexus between the injuries and the use of the vehicle. Id. This

requires a showing that the vehicle’s use actually caused the injury. Id. “The operation or use of

a motor vehicle ‘does not cause injury if it does no more than furnish the condition that makes the

injury possible.’” Id. (quoting Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968

S.W.2d 339, 343 (Tex. 1998)). This comports with the TTCA’s intention that the waiver of

sovereign immunity be limited. LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49,

51 (Tex. 1992); see also Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.

2001).

         B. Equal Inference Rule

         Although the City’s opening brief claims there is no evidence regarding who caused the

collision between Treviño and Davila, the City’s reply brief concedes that there is a question of

fact regarding who caused that collision. The City focuses its argument on the link between the

Davila–Treviño collision and Davila’s steering input by claiming there is no evidence indicating

that it is more likely that Davila’s swerving was an overcorrection resulting from the collision than

that Davila swerved for some other reason. Specifically, the City asserts that “it is just as likely

that the initial contact did not cause Davila’s subsequent overcorrection as it is that it did” so the

equal inference rule prevents inferences regarding the cause of Davila’s overcorrection from

raising a question of fact that would bestow the trial court with jurisdiction.

         We first note that it is unclear whether the equal inference rule applies to an interlocutory

appeal of a ruling on a plea to the jurisdiction. This is because the equal inference rule is generally

applied when reviewing no-evidence motions for summary judgment and appeals challenging the
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sufficiency of the evidence after a trial. See City of Keller v. Wilson, 168 S.W.3d 802, 813–14

(Tex. 2005). A ruling on a plea to the jurisdiction, however, is generally reviewed in the same

manner as a ruling on a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228.

It is unclear whether the differences in these standards would preclude application of the equal

inference rule in this case. We do not need to reach that decision because assuming, without

deciding, that the equal inference rule applies, the City’s claim still fails.

         “The equal inference rule provides that a jury may not reasonably infer an ultimate fact

from meager circumstantial evidence ‘which could give rise to any number of inferences, none

more probable than another.’” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (quoting

Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). “When the circumstances

are equally consistent with either of two facts, neither fact may be inferred.” City of Keller, 168

S.W.3d at 813 (quoting Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805

(Tex. 1991)) (internal quotation marks omitted). “In such cases, we must ‘view each piece of

circumstantial evidence, not in isolation, but in light of all the known circumstances.’” Id. at 813–

14 (quoting Lozano, 52 S.W.3d at 167).

         The City argues that Rodriguez’s claim cannot succeed because her pleadings claim

Treviño hit Davila as he entered onto Loop 1604, but the yaw marks did not appear until about

400 feet away from the entrance ramp. The importance of this alleged discrepancy, the City

argues, is that if the initial collision happened close to the entrance ramp, Rodriguez cannot explain

the long distance between the collision and the place where Davila swerved. According to the

City, Rodriguez must also allege Davila was hit close to the entrance ramp because, if not, Treviño

could have already established his lane and the accident could be Davila’s fault. 1


1
 As previously mentioned, the City has already admitted that the fault associated with the initial collision is a question
of fact, so this assertion seems to implicitly recognize that the initial collision and the swerving and subsequent rollover

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        William Colthrap, the independent crash-site reconstruction expert hired by the City,

agreed that there was no evidence in this case to suggest that some other stimulus caused Davila’s

overcorrection, and that Davila’s loss of control was likely a result of her panicking and

overcorrecting after the collision with Treviño. Additionally, in Treviño’s initial statement to a

police officer at the scene of the accident, Treviño stated that he “felt a bump” and thought his car

“was going to flip over.”

        Moreover, the deposition testimony of Colthrap and Corporal Keith Olive, a member of

the DPS crash-site reconstruction team, indicates that both believed the collision between Davila

and Treviño was related to Davila’s overcorrection. Because there was no physical evidence

indicating where the collision occurred, both men hypothesized about the most likely location of

the collision. While they both testified that there was no way to know with certainty, both experts

surmised that the collision probably happened closer to the yaw mark than to the entrance ramp.

They arrived at this inference because it does not make sense that the collision would have occurred

closer to the entrance ramp and then Davila would have driven hundreds of feet, without any

evidence of problems, before losing control for no apparent reason. Thus, the experts recognized

that the collision and Davila’s overcorrection were likely related events, especially in the absence

of evidence of any other reason why Davila may have swerved.

        Nonetheless, the City argues: “It may be that the two events are connected, but there is no

direct evidence.” This assertion ignores the fact that material facts can be, and regularly are,

proven by circumstantial evidence. Lozano, 52 S.W.3d at 149; see also Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Inferences supported by circumstantial evidence are

not the same as mere equally speculative inferences. See Lozano, 52 S.W.3d at 148. The equal


were linked because it would not matter who was at fault for the initial collision if the events were independent of
each other.

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inference rule applies when meager circumstantial evidence gives rise to multiple inferences that

are equally probable to have occurred because they are based on pure speculation, not on opposing

inferences that can reasonably be drawn based on the evidence. Id. “[C]ircumstantial evidence is

not legally insufficient merely because more than one reasonable inference may be drawn from

it.” Id. “If circumstantial evidence will support more than one reasonable inference, it is for the

jury to decide which is more reasonable . . . .” Id. In such cases, the fact finder “is entitled to

consider the circumstantial evidence, weigh witnesses’ credibility, and make reasonable inferences

from the evidence it chooses to believe.” Id. at 149; see also Bay Rock Operating Co. v. St. Paul

Surplus Lines Ins. Co., 298 S.W.3d 216, 229 (Tex. App.—San Antonio 2009, pet. denied).

       The record is devoid of any other reason why Davila might have swerved so soon after

colliding with Treviño’s vehicle. It is reasonable to infer that the collision with Treviño caused

Davila to overcorrect, thus causing her loss of control and subsequent collision with the retaining

wall. Indulging every reasonable inference and resolving doubts in Rodriguez’s favor, we

conclude Rodriguez has raised a question of fact precluding a waiver of immunity. See Miranda,

133 S.W.3d at 228. Accordingly, the trial court properly denied the City’s plea to the jurisdiction.

 IS RODRIGUEZ JUDICIALLY ESTOPPED FROM CLAIMING HER INJURIES WERE A RESULT OF
                                THE COLLISION?

       After the accident, Rodriguez filed suit against Chrysler Group, LLC alleging various

product defects in Davila’s vehicle. Rodriguez has since nonsuited her claims against Chrysler.

Nevertheless, the City claims that Rodriguez should be judicially estopped from suing it because,

according to the City, Rodriguez sued Chrysler for the same injuries for which she is now suing

the City and because Rodriguez’s pleadings in the Chrysler case alleged that her injuries were a

result of the product defects, not Treviño’s negligent use of the City’s vehicle.




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       Factual assertions in a party’s live pleadings that are not pled in the alternative are

considered formal judicial admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d

562, 568 (Tex. 2001); Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).

Judicial admissions conclusively establish the fact admitted and alleviate the opposing party from

introducing pleadings or evidence on the matter. Wolf, 44 S.W.3d at 568; Musick, 650 S.W.2d at

767. “The doctrine of judicial estoppel ‘precludes a party from adopting a position inconsistent

with one that it maintained successfully in an earlier proceeding.’” Pleasant Glade Assembly of

God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008) (quoting 2 ROY W. MCDONALD & ELAINE G.

CARLSON, TEXAS CIVIL PRACTICE § 9.51 at 576 (2d ed. 2003)). “Accordingly, a party cannot be

judicially estopped if it did not prevail in the prior action.” Ferguson v. Bldg. Materials Corp. of

Am., 295 S.W.3d 642, 643 (Tex. 2009) (per curiam) (citing Long v. Knox, 291 S.W.2d 292, 295

(Tex. 1956)).    The policy behind judicial estoppel “is to prevent the use of intentional

self-contradiction as a means of obtaining unfair advantage” and “to prevent parties from playing

fast and loose with the judicial system for their own benefit.” Id.; Pleasant Glade, 264 S.W.3d at

6 (quoting Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 650 (Tex. App.—El Paso

1997, writ denied)) (internal quotation marks omitted).

       First, the City cannot prevail on its judicial estoppel claim because Rodriguez was not

successful in her other proceeding—she nonsuited all of her claims against Chrysler. More

importantly, though, the City cannot prevail because her claims against Chrysler were not

inconsistent with her claims against the City. The factual pleadings in Rodriguez’s petition against

Chrysler allege that Davila “was struck by another vehicle being driven by Gabriel Treviño causing

control of the vehicle to be lost and ultimately” causing the vehicle to roll over. She then asserts

that Davila was killed and she was injured when “the vehicle which she was riding in failed to

protect her.” Rodriguez’s pleadings also say the defects were “a producing and/or proximate cause
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of the Plaintiff’s injuries,” but that does not necessarily mean they were the only cause. Further,

Rodriguez’s responses to her request for admissions many times state that she “denies in part that

Chrysler was the only cause of said damages.” Our review of the pleadings and request for

admissions filed in the Chrysler case leads to the conclusion that Rodriguez’s intent was not to

play fast and loose with the courts; rather, it appears Rodriguez was pleading that Treviño’s

negligence and the product defects were concurrent causes of her injuries. See Travis v. City of

Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (“There can be concurrent proximate causes of an

accident.”). Therefore, the doctrine of judicial estoppel does not bar Rodriguez’s claim against the

City.

                                           CONCLUSION

        Based on our review of the record, we conclude Rodriguez has presented evidence that

raises a question of fact regarding whether a nexus exists between the initial collision and the

subsequent collision into the retaining wall, thereby preventing the City from prevailing on its plea

to the jurisdiction. We also conclude Rodriguez is not estopped from suing the City because the

claims raised against Chrysler were not the type contemplated by the doctrine of judicial estoppel.

Accordingly, we affirm the trial court’s order.



                                                     Catherine Stone, Chief Justice




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