Opinion issued August 1, 2017




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-16-00734-CV
                           ———————————
                       CITY OF HOUSTON, Appellant
                                       V.
       SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee


              On Appeal from County Civil Court at Law No. 2
                           Harris County, Texas
                      Trial Court Case No. 1057740


                         MEMORANDUM OPINION

      Southwestern Bell Telephone Company sued the City of Houston for

negligence based on damage caused to their duct run and cable while the City of

Houston repaired a water main. The jury found the City of Houston negligent and

awarded damages. On appeal, the City of Houston argues (1) the trial court lacked
subject-matter jurisdiction over Southwestern Bell’s negligence claim based on

governmental immunity and (2) the trial court abused its discretion by including

instructions that allowed the jury to determine liability on grounds for which

immunity had not been waived.

      We affirm, in part, and reverse and remand for a new trial, in part.

                                     Background

      The City of Houston learned about a water main break in the city on March 1,

2013. Jennifer Ramirez, a city employee, posted notice of its intent to repair the

water main, indicating that repairs would begin the next day. The next day, another

city employee, Prince Mackey, went to the location with two other workers, Sidney

Christian and Quaan Motley, to repair the water main. At the time of trial, Mackey

had been a City employee for 23 years, a foreman for nine years, and had been

working in the City’s water operations division for 13 years. Christian had been

working in the City’s water operations division for four years, and Motley had been

working in the water operations division for six years.

      Approximately 10 to 20 feet from the excavation site, a sign posted on a utility

pole warned of the presence of underground cables and displayed the AT&T logo,1

along with the universal sign for “do not dig.” Christian testified that the utility pole

was between the City’s work truck and the excavation site and that the city


1
      It was undisputed at trial that Southwestern Bell uses the AT&T logo.
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employees walked past the utility pole several times. Mackey, Christian, and Motley

all testified that they did not look at the pole or read the posted warning sign.

      Mackey operated a concrete breaker to break up the street in the area where

the repairs would be made. He then operated a backhoe to excavate the area around

the water main. Each time Mackey excavated one to two feet of dirt, he would stop

so that Christian could test the ground for utility lines with a “probing rod.” As

Mackey dug, Christian and Motley watched to ensure that Mackey was not hitting

anything with the backhoe. It took an hour and a half to complete the excavation.

      During this time, Southwestern Bell suffered damage to a hard-clay duct run

and a cable located within the run. The damage was in the same area as the water

main break.

      After repairing the damage, Southwestern Bell filed suit against the City,

asserting a claim of negligence. Southwestern Bell asserted that the City had failed

to wait 48 hours from providing notice to making the repairs and that such notice

was necessary under the Texas Utilities Code. Southwestern Bell also alleged that

the City’s operation of the backhoe was negligent because the City’s employees

failed to ascertain what underground utilities were in the area before digging.

Specifically, Southwestern Bell argued that: (1) the City failed to provide 48 hours’

notice to Southwestern Bell before excavating; (2) the City’s employees had a duty

to look for signs of and locate underground utilities at the excavation site before and


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during the excavation process; (3) Southwestern Bell’s aerial cable was attached to

the nearby utility pole, and therefore the City’s employees should have been aware

that the same cable ran underground near the excavation site; and (4) the City’s

employees were aware of and walked past, but did not “look at,” the utility pole on

which the warning sign was posted.

      Southwestern Bell presented evidence at trial indicating that, because the duct

run surrounding the damaged cable was “almost as hard as concrete,” only a

“powerful machine,” and not a hand shovel, could have damaged the cable. Jeremy

Cutbirth, a Southwestern Bell employee who has been installing and repairing

similar cables for 16 years, testified at trial that, “As hard as that duct run is and as

tough as that cable is, you’re not going to do that with a shovel . . . . There is no way

you’re going to be digging with a shovel and accidentally go all the way through it

and rip a cable apart . . . . It’s impossible.” He testified further that the duct run,

which was made of baked clay tile, is “very hard” and “almost like cement.” An air-

pressure warning system located within the duct run notified Southwestern Bell of

damage to the cable in the same location where the City excavated the water main.

Thus, Cutbirth testified, the cable must have been damaged by the City’s backhoe.

      At trial, Mackey and Christian acknowledged that other underground utilities,

such as natural gas lines and electric cables, are typically located in the same general

area as water mains. They testified that the workers are supposed to look for all


                                           4
indications of underground utilities before excavating because utilities are

sometimes unmarked. Christian and Motley testified further that they never noticed

the duct run containing Southwestern Bell’s cable.

      For the charge, Southwestern Bell requested instructions be included that

quoted two statutes regarding the notice requirements under the Utilities Code.2 The

City objected to these instructions. The trial court overruled the objections and

included the statutes in the charge.

                             Governmental Immunity

      In its first two issues, the City challenges the trial court’s subject-matter

jurisdiction over Southwestern Bell’s claim for negligence. The City argues the trial

court lacked subject-matter jurisdiction based on governmental immunity.

A.    Standard of Review

      Governmental immunity from suit defeats a trial court’s subject-matter

jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–

26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

Whether a trial court has subject-matter jurisdiction is a question of law, which we

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

      The Miranda standard “allows the state in a timely manner to extricate itself

from litigation if it is truly immune.” Id. at 228. When the matter of immunity


2
      See TEX. UTIL. CODE ANN. §§ 251.151(a), 251.152(2)(A)–(B) (West 2016).
                                         5
depends upon the resolution of disputed facts that implicate the merits of the claim

or defense, however, the issue must be resolved by the fact finder, “preserv[ing] the

parties’ right to present the merits of their case at trial.” Id.

       When, as here, a jurisdictional challenge under the Texas Tort Claims Act is

raised after a trial on the merits, the standard of review stated in Miranda does not

apply. Prairie View A&M Univ. v. Brooks, 180 S.W.3d 694, 704 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). Instead, when the jury’s findings bear on a

determination of the trial court’s subject-matter jurisdiction, the appropriate standard

of review is for the legal sufficiency of the evidence to support the fact finder’s

determinations. Id.

       The Supreme Court of Texas has held the same for cases reviewing subject-

matter jurisdiction under the Texas Commission on Human Rights Act, which, like

the TTCA, waives sovereign immunity for certain claims against government

entities. See San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015).

When jurisdictional challenges under the TCHRA are raised after a trial on the

merits, “we simply inquire whether the evidence is legally sufficient to support the

jury’s ultimate finding.” Id. (citing Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d

735, 739 (Tex. 2003)) (quotation marks omitted). We accordingly review the trial

court’s determination of immunity under a legal-sufficiency standard of review. See

id.


                                             6
      As part of this issue, the City also challenges the legal and factual sufficiency

of the jury’s determination that it was negligent. Because the jury’s determination

of negligence implicated the issue of immunity, Miranda, 133 S.W.3d at 228, we

will consider the legal sufficiency of the City’s immunity together with the legal and

factual sufficiency of the jury’s determination of negligence.

      Evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005). We will conclude that the evidence is legally insufficient to support

the finding only if (a) there is a complete absence of evidence of a vital fact, (b) the

court is barred by rules of law or evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the

vital fact. Id. at 810. When reviewing the legal sufficiency of the evidence, we

consider the evidence in the light most favorable to the verdict and indulge every

reasonable inference to support it. Id. at 822. We credit favorable evidence if a

reasonable juror could and disregard contrary evidence if a reasonable juror could

not. Id. at 827.

      In a factual-sufficiency review, we consider and weigh all of the evidence.

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Arias v. Brookstone, L.P., 265

S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). When the


                                           7
appellant challenges an adverse finding on an issue on which it did not have the

burden of proof at trial, we set aside the verdict only if the evidence supporting the

finding is so weak as to make the verdict clearly wrong and manifestly unjust. See

Cain, 709 S.W.2d at 176; Reliant Energy Servs., Inc. v. Cotton Valley Compression,

L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When

it challenges an adverse finding on an issue on which it had the burden of proof at

trial, the appellant must demonstrate on appeal that the adverse finding is against the

great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46

S.W.3d 237, 242 (Tex. 2001); Grider v. Mike O’Brien, P.C., 260 S.W.3d 49, 57

(Tex. App.—Houston [1st Dist.] 2008, pet. denied).

B.    Analysis

      The City argues that Southwestern Bell failed to offer sufficient evidence of

negligence by a city employee in operating or using motor-driven equipment that

caused Southwestern Bell damages. To prove negligence, Southwestern Bell was

required to establish the existence of a legal duty, a breach of that duty, and damages

proximately caused by the breach. Nabors Drilling, U.S.A. Inc. v. Escoto, 288

S.W.3d 401, 404 (Tex. 2009). To assert a claim under section 101.021(1)(A) of the

TTCA, Southwestern Bell was required to establish that its damages arose from the

City’s negligent operation of motor-driven equipment—here, the backhoe. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (West 2011). If Southwestern Bell


                                          8
raised legally-sufficient evidence to support both the common law elements of

negligence and that its damages arose from the City’s operation or use of the

backhoe, then the City’s sovereign immunity was waived under the TTCA, and the

jury’s verdict was proper on that theory of recovery. See Prairie View, 180 S.W.3d

at 704. If the evidence was legally insufficient, the trial court lacked subject-matter

jurisdiction to hear the case. Id; see also Miranda, 133 S.W.3d at 225–26.

      For the existence of a duty, the Supreme Court of Texas has held that a party

that makes “an extraordinary use of the surface,” such as breaking up a portion of a

road and excavating underneath it, bears a duty “to avoid striking utilities rightfully

within a road or to make a reasonable inquiry as to the location of lines which may

be encountered.” Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214,

223 (Tex. 1963); accord Gen. Tel. Co. of Sw. v. Blacksher, 742 S.W.2d 465, 467

(Tex. App.—Houston [1st Dist.] 1987, writ denied) (noting contractor excavating

water main had duty to avoid striking or make reasonable inquiry about location of

telecommunications cable); see also Kilburn v. Fort Bend Cty. Drainage Dist., 411

S.W.3d 33, 40–42 & n.3 (Tex. App.—Houston [14th Dist.] 2013) (holding plaintiff

who alleged that county excavated in wrong location sufficiently pleaded injury

“arising from use of motor-driven equipment” within meaning of the TTCA).

      For breach of this duty, the evidence established that a cable ran above ground

to the pole that contained Southwestern Bell’s warning sign. The cable did not


                                          9
continue above ground from the pole, visibly indicating that the cable must have

continued underground.

      Mackey, the city employee who operated the backhoe on the day in question,

testified at trial that he was aware that utilities such as natural gas and electric lines

are generally located in the same area as underground water mains. Mackey also

testified that, when excavating, the workers are supposed to look for other

indications of utilities such as manholes, pedestals, and risers, because underground

utilities are sometimes unmarked.

      Mackey and Christian testified that they were excavating nearby and walked

past, but did not look at, the utility pole on which Southwestern Bell’s warning sign

was posted. Christian testified that he saw the “silver thing” (the warning sign) on

the utility pole. When asked whether he looked at the sign, he responded, “Why

would I?” Motley testified that the workers did not walk around the area to look for

indications of unmarked utilities.

      The City argues there was evidence in the record showing that their employees

used probing rods in their efforts to find other utilities underground. The evidence

on this point is mixed. Mackey, the operator of the backhoe, testified that the other

men used probing rods to look for the water main as well as other utilities in the area

he was digging. In contrast, Christian testified that he used the probing rod only to

look for the water main. The City’s attorney asked, “At any point did you see or


                                           10
probe for any other utility other than the City’s?” Christian responded, “No.”

Motley testified that he did not use the probing rods during that excavation. He

testified that Christian was the only one to use a probing rod for that job.

Accordingly, the jury could have reasonably determined that the City did not attempt

to locate any other utilities during the excavation process.

      Viewing the evidence in the light most favorable to the verdict, the jury

reasonably could have found that the City breached its duty to make a reasonable

inquiry as to the location of, and to avoid striking, underground utilities. See

Pioneer, 374 S.W.2d at 223. We therefore hold that the evidence is legally and

factually sufficient to support the jury’s determination that the City breached a duty

it owed to Southwestern Bell. Keller, 168 S.W.3d at 821–22; Nabors, 288 S.W.3d

at 404.

      Finally, we turn to the proximate cause of the damages. Proximate cause

requires proof of both cause in fact and foreseeability. W. Invs., Inc. v. Urena, 162

S.W.3d 547, 551 (Tex. 2005). A tortious act is a cause in fact if it is “a substantial

factor in causing the injury” and one “without which the injury would not have

occurred.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010)

(citation omitted).

      Southwestern Bell’s employee, Cutbirth, testified that the clay duct

surrounding its cable was almost as hard as concrete. He testified that the duct could


                                          11
not have been broken by shovels but must have been broken by the backhoe. “There

is no way you’re going to be digging with a shovel and accidentally go all the way

through it and rip a cable apart . . . . It’s impossible.”

       An air-pressure warning system located within the duct run notified

Southwestern Bell of damage to its cable in the same location where the City

excavated the water main. The jury, therefore, reasonably could have concluded that

the City’s operation of the backhoe was the cause in fact of the damage to

Southwestern Bell’s cable.

       Mackey testified that utilities are not always marked and that the workers

expect multiple underground utilities to be located in the same area underneath a

road or right-of-way.      The jury could have found that the injury caused to

Southwestern Bell was foreseeable. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

549–50 (Tex. 1985) (“Foreseeability means that the actor, as a person of ordinary

intelligence, should have anticipated the dangers that his negligent act created for

others.”).

       Evidence of proximate cause also bears on the City’s liability under the

TTCA. An injury “arises from” the use of motor-driven equipment when there is a

“nexus between the operation or use of the motor-driven vehicle or equipment and

a plaintiff’s injuries.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543

(Tex. 2003). The threshold for a sufficient nexus is “something more than actual


                                            12
cause but less than proximate cause.” Ryder Integrated Logistics, Inc. v. Fayette

Cty., 453 S.W.3d 922, 929 (Tex. 2015). “Accordingly, a plaintiff can satisfy the

arising from standard by demonstrating proximate cause.” Id. (quotation marks

omitted). Because there is evidence to support the proximate cause of the damages,

there is evidence to support waiver of the City’s immunity. See id.

      We hold the evidence is legally and factually sufficient to support the jury’s

verdict that the City was negligent. Accordingly, we hold the evidence is legally

sufficient to support the determination that Southwestern Bell’s injury “arose from”

the operation of motor-driven equipment. See Miranda, 133 S.W.3d at 228; CIV.

PRAC. & REM. § 101.021(1)(A).

      We overrule the City’s first two issues.

                                    Jury Charge

      In its third issue, the City argues that the trial court abused its discretion by

including instructions that allowed the jury to determine liability on grounds for

which immunity had not been waived.

A.    Standard of Review

      We review the trial court’s submission of jury instructions for an abuse of

discretion. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995).

A trial court abuses its discretion when it acts arbitrarily and unreasonably, without

reference to guiding rules or principles, or when it misapplies the law to the


                                          13
established facts of the case. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226

(Tex. 1991). When an incorrect jury instruction was given, we reverse only if the

instruction “‘was reasonably calculated to and probably did cause the rendition of

an improper judgment.’” Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757

(Tex. 2006) (quoting Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995)); see also

TEX. R. APP. P. 44.1(a)(1). We examine the entire record to evaluate whether the

instruction probably caused the rendition of an improper verdict. Urista, 211 S.W.3d

at 757.

B.    Analysis

      The City argues that the trial court abused its discretion by including

instructions that allowed the jury to determine liability on grounds for which

immunity had not been waived. The trial court included portions of the Texas

Utilities Code in the jury charge at Southwestern Bell’s request, and over the City’s

objections. See TEX. UTIL. CODE ANN. §§ 251.151(a), 251.152(2)(A)–(B) (West

2016). Southwestern Bell asserted in its closing argument that the City failed to wait

48 hours after providing notice before excavating, and that such notice was required

by the Utilities Code. See id. § 251.151(a). The statutory excerpts immediately

preceded the first question in the jury charge: “Did the negligence, if any, of the City

of Houston proximately cause the occurrence in question?”




                                          14
      The inclusion of the statutory excerpts in the jury charge, and the excerpts’

placement, indicate that the jury was permitted to find the City liable for negligence

based on its failure to comply with the Utilities Code. The Supreme Court of Texas

has rejected basing governmental liability on such conduct, holding, “[T]he tortious

act alleged must be related to the defendant’s operation of the [equipment] rather

than to some other aspect of the defendant’s conduct.” Ryder Integrated, 453

S.W.3d at 928. For any alleged tortious act other than operation of the equipment in

question, “there is no immunity waiver.” Id. An example provided by the court

highlights this ruling. “For example, a driver’s failure to supervise children at a bus

stop may rise to the level of negligence, but that shortcoming cannot accurately be

characterized as negligent operation of the bus.” Id.

       As the City points out, there is no waiver of liability for any failure to provide

proper notice under the sections of the Utilities Code excerpted in the charge. See

UTIL. § 251.151(a); City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006)

(holding courts strictly construe statutes waiving sovereign and governmental

immunity). A finding that the City was negligent for failing to provide adequate

notice, then, would not waive the City’s governmental immunity. We hold,

therefore, that the inclusion of the statutory excerpts in the jury charge was error.

      Because of the erroneous instruction, it is unclear whether the jury found the

City negligent based on its use of the backhoe or on its failure to comply with the


                                           15
Utilities Code. Because the jury may have found the City liable on grounds for

which the City’s sovereign immunity was not waived, the instruction was harmful.

Urista, 211 S.W.3d at 757; see also TEX. R. APP. P. 44.1(a)(1).

      We sustain the City’s third issue.

                                    Conclusion

      We affirm the trial court’s determination of waiver of governmental

immunity. We reverse the trial court’s judgment on negligence and remand for a

new trial.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Higley, Bland, and Brown.




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