                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-17-00080-CV


THE CITY OF THE COLONY,                                            APPELLANT
TEXAS

                                       V.

MARK AND KIM RYGH                                                  APPELLEES

                                    ----------

          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 15-00533-431

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

                               I. INTRODUCTION

      The primary question in this interlocutory appeal from the denial of

Appellant The City of The Colony, Texas’s jurisdictional plea is whether a nexus


      1
      See Tex. R. App. P. 47.4.
exists between the City’s use of a “Vac” truck to clear a blockage in a sewer main

and the property damage that Appellees Mark and Kim Rygh sustained when

their residence flooded with raw sewage. Because we resolve that question in

favor of the City, and because the Ryghs did not otherwise establish a waiver of

the City’s governmental immunity, we will reverse and render a judgment of

dismissal.

                                II. BACKGROUND

      On the morning of April 23, 2014, the Ryghs awoke at their residence at

4033 Heron Cove Lane to discover that their toilets were stopped up and would

not flush. Kim left around 7:15 a.m. to take her grandson to school, but she was

back home by 7:30 a.m.       Between then and 8:00 a.m., her residence “was

completely flooded with raw sewage coming up from the toilets and the showers.”

      Meanwhile, at 7:15 a.m., Kim Rygh’s neighbor Jimmy Harper notified the

City that the “overflow” pipe on the side of his house at 4041 Heron Cove Lane

was expelling sewage into his yard. The City promptly responded by dispatching

members of its Water Distribution/Sewer Collection Division of its Public Works

Department to the area.

      Depicted in the following image by a brown line, a 15” sewer main runs

under Heron Cove Lane and beyond that street’s cul de sac through an

unimproved area, with manholes located at the intersection of Heron Cove Lane




                                        2
and Avocet Way (marked X-1), at the entrance of the cul de sac on Heron Cove

Lane (marked X-2), and at an unimproved area southeast of Holden Circle

(marked X-3):




Maintained by the City, the sewer main is “entirely gravity flow,” flowing

downstream in a northeasterly direction, as denoted by the arrows in the image

along its route. Residential properties tie in to the sewer main via lateral lines.

The Ryghs’ residence is adjacent to the manhole located at the intersection of

Heron Cove Lane and Avocet Way (X-1).




                                        3
      City employee Marco Chavez arrived in the area around 7:30 a.m. and

noticed sewage flowing out of the manhole located at the intersection of Heron

Cove Lane and Avocet Way (X-1).        Suspecting that the sewer main had a

blockage, and knowing that the sewer main flowed downstream in a

northeasterly direction, he determined that the blockage had to be located at

some point northeast of the manhole, causing sewage to back up towards the

residences located upstream along Heron Cove Lane and into their laterals.2

Chavez therefore headed to the next downstream manhole—located at the

entrance of the cul de sac on Heron Cove Lane (X-2)—but it too was full of

sewage.   Chavez then made his way to the unimproved area southeast of

Holden Circle—where the next downstream manhole is located (X-3)—but he

was unable to open the manhole because it was covered with brush. Chavez

radioed Hollis about the condition of the manhole and returned to Heron Cove

Lane to check on the upstream manholes.




      2
       In his affidavit, City employee Bobby Hollis explained how a blockage is
located:

      [T]he crew takes manhole covers off to see if sewage in the main is
      backed up into the manhole. If so, they continue downstream until
      they eventually locate a manhole that is dry. When a dry manhole is
      located[,] they know that the blockage in the main is between the dry
      manhole and the last upstream manhole that contained sewage that
      had backed up into it.




                                       4
      When Hollis arrived at the unimproved area southeast of Holden Circle, he

cleared the brush from around the manhole, opened it, and discovered that it was

dry inside, meaning that the blockage was located somewhere between that

manhole (X-3) and the upstream manhole located at the entrance of the cul de

sac on Heron Cove Lane (X-2). Hollis radioed to his crew to bring the Vac truck

to nearby Holden Circle.

      In his affidavit, Hollis explained what the Vac truck is and how it functions:

      The Vac truck consists of a Sterling Anterra vehicle. In the front of
      the vehicle there is a reel that contains approximately five hundred
      (500) feet of hose. The hose is blue in color except for the leader
      hose which is black in color and is approximately twenty (20) feet
      long. When used to clean a blockage in a sewer main, a cleaning
      nozzle is attached to the front of the leader hose. The Vac truck is
      powered by the engine of the truck and switches which activate a
      PTO (“power take off”) [that] sends pressurized water from the tank
      located on the back of the truck through the hose and eventually to
      the nozzle.

            ....

             . . . [T]he nozzle . . . is lowered [down the dry manhole and
      into the sewer main via a horseshoe shaped trough or invert], the
      PTO is activated[,] and pressurized water is propelled downstream
      out of the back of the nozzle[,] which propels [the nozzle] upstream
      toward the blockage. Initially, about 800 psi (“pressure per square
      inch”) is used so that the nozzle can begin moving forward
      approximately 3 to 5 feet past the opening in the invert and out of
      sight. At that point, the psi is increased to approximately 2,000 to
      2,500 psi[,] and the nozzle is propelled forward upstream in the main
      much like a jet ski until it strikes and breaks through the blockage[,]
      which allows the sewage backed up behind it to flow downstream
      toward, through, and past the downstream dry manhole. [Emphasis
      added.]




                                         5
      After City employee Robert Willis arrived with the Vac truck, he affixed the

nozzle to the hose and lowered it into the sewer main through the invert facing

upstream. The crew activated the PTO, which pressurized the water through the

hose and propelled the nozzle forward, simultaneously discharging water

downstream.     The nozzle travelled upstream ten to fifteen feet before it

encountered the blockage, but it failed to break through it. Willis pulled the hose

back and released it, and on this second attempt, the nozzle broke through the

blockage, causing the sewage to immediately begin flowing downstream away

from the residences on Heron Cove Lane. Chavez, who was positioned at the

upstream manhole located at the entrance of the cul de sac on Heron Cove Lane

(X-2), saw the sewage immediately begin to recede in the manhole. At some

point soon thereafter, Hollis met Kim, who showed Hollis that sewage had

backed up into her residence.

      The Ryghs later sued the City, alleging that its employees’ negligent use of

the Vac truck to break through the blockage in the sewer main had caused the

sewage to back up into their residence.        The Ryghs also alleged that the

employees were negligent for failing to notify them—either before or after the

employees used the Vac truck—that their residence could be flooded with raw

sewage. The Ryghs averred that their residence had sustained damages in the

amount of $68,795.94.      The City filed a motion for summary judgment or,




                                        6
alternatively, a plea to the jurisdiction, arguing that the Ryghs had failed to allege

any claim within the Texas Tort Claims Act’s (TTCA) limited waiver of immunity.

See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011). The trial court

denied the motion and plea, and this interlocutory appeal followed.           See id.

§ 51.014(a)(8) (West Supp. 2017).

            III. THE CITY’S GOVERNMENTAL IMMUNITY REMAINS INTACT

      In what we construe as its first and second issues, the City argues that the

Ryghs failed to invoke the trial court’s subject-matter jurisdiction by establishing a

waiver of the City’s governmental immunity under TTCA’s motor-vehicle

exception—the only provision of the TTCA that the Ryghs rely upon to show

waiver. Specifically, the City contends (1) that its employees’ use of the Vac

truck did not, as a matter of law, cause the Ryghs’ residence to flood and (2) that

the employees’ alleged failure to notify the Ryghs that their residence could flood

did not relate to the employees’ operation or use of the Vac truck. The Ryghs

respond that their claims fall within the TTCA’s motor-vehicle exception.

A.    Standard of review.

      A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for

lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004). Immunity from suit defeats a trial court’s subject-matter jurisdiction

and, thus, is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of




                                          7
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225‒26 (2004). We review the trial

judge’s ruling denying a jurisdictional plea based on governmental immunity

de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849,

855 (Tex. 2002).

      A plea to the jurisdiction may challenge either the pleadings or the

existence of jurisdictional facts. Miranda, 133 S.W.3d at 226‒27. When a plea

to the jurisdiction challenges a plaintiff’s pleadings, we consider whether the

pleader has alleged sufficient facts to demonstrate the court’s subject-matter

jurisdiction over the matter, construing the pleadings liberally in favor of the

plaintiff and looking to the pleader’s intent. Id.; see City of Waco v. Kirwan, 298

S.W.3d 618, 621 (Tex. 2009).         If a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues that have been raised.

Miranda, 133 S.W.3d at 227. 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. at 228.

B.    The TTCA’s motor-vehicle exception.

      Governmental immunity protects political subdivisions of the State,

including cities like the City, from lawsuits for money damages unless immunity

has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374




                                          8
(Tex. 2006).   The TTCA provides a limited waiver of immunity for property

damage that is proximately caused by the negligence of an employee acting

within the scope of his employment if (i) the damage “arises from the operation or

use of a motor-driven vehicle” and (ii) “the employee would be personally liable to

the claimant according to Texas law.”       Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(1). The City’s arguments home in on the former statutory language.

      The supreme court has repeatedly clarified that the phrase “arises from”

requires a nexus between the operation or use of the motor-driven vehicle and

the plaintiff’s personal injuries and property damage. Dallas Area Rapid Transit

v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003); LeLeaux v. Hamshire-Fannett ISD,

835 S.W.2d 49, 51 (Tex. 1992).          This nexus requires more than mere

involvement of property; the vehicle’s operation or use must have actually

caused the injury. Whitley, 104 S.W.3d at 543. Thus, 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 Cty. Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.), cert. denied, 525 U.S. 1017

(1998)).

      As for the terms “operation” and “use,” we define them according to their

ordinary meanings. See Mount Pleasant ISD v. Estate of Lindburg, 766 S.W.2d

208, 211 (Tex. 1989) (for purposes of motor-vehicle exception, defining




                                        9
“operation” to mean “a doing or performing of a practical work” and “use” to mean

“to put or bring into action or service; to employ for or apply to a given purpose”).

C.    There is no causal nexus between the City’s use of the Vac truck to
      clear the blockage and the sewage that flooded the Ryghs’ residence.

      The jurisdictional evidence demonstrates that Willis lowered the nozzle into

the sewer main so that when the water on the Vac truck was pressurized, it

propelled the nozzle upstream toward the blockage and the pressurized water

downstream away from the blockage. Thus, as both Willis and City employee

Gerardo Vasquez explained in their affidavits, no water was sent upstream

toward the residences on Heron Cove Lane, including the Ryghs’ residence,

which was estimated to be a lengthy 423 feet upstream from the blockage. As

for the nozzle itself, when asked at his deposition whether the Vac truck could

have pushed the wastewater upstream when the nozzle broke through the

blockage, Hollis testified,

      A.     Nope.

      Q.     How do you know?

      A.     It’s not how it works.

      Q.     How do you know?

      A.    It’s designed and engineered to do this. It’s not designed and
      engineered to flood houses.




                                         10
Joseph Chase, Supervisor of the City’s Water Distribution/Sewer Collection

Division, echoed Hollis’s testimony at his deposition:

      Q.    Okay. But if there’s a stoppage . . . and something hits that
      blockage to clear it, . . . does it just break the blockage in your
      estimation and your experience?

            Or does it . . . force the water back . . . .

      A.    It just breaks the blockage.

      Once the nozzle broke through the blockage, the crew immediately shut off

the pump that pressurized the water to send the nozzle upstream, and several

City employees observed the sewage flowing downstream, away from the Ryghs’

residence.3 In fact, according to Chavez, who was monitoring the next upstream

manhole (X-2) from the time the crew lowered the Vac truck hose into the dry

manhole (X-3) until when the blockage was cleared, at no point “did any water or

sewage reverse flow and travel upstream back toward [his] manhole.”

Consequently, Hollis, Willis, and Vasquez each opined that the Vac truck did not

cause the sewage to back up into the Ryghs’ residence.

      The only sentence in the Ryghs’ response that gives us any pause is this

one: “Appellees’ home did not flood until the line was cleared at approximately

8:00 a.m. or thereafter.” The record, however, does not support that statement.




      3
       Chase confirmed in his deposition that “[w]ater doesn’t run upstream.”




                                           11
      Kim Rygh swore in her own affidavit that her residence was “completely

flooded with raw sewage” “[b]etween 7:30 a.m. and 8:00 a.m.”—not “at

approximately 8:00 a.m. or thereafter.” Thus, Kim’s own affidavit contradicts the

statement in her brief.

      Moreover, the statement fails to coincide with the City’s response times.

Although Chavez arrived at Heron Cove Lane sometime around 7:30 a.m., Hollis

did not clock in at work until 7:54 a.m., and Willis did not clock in until 7:59 a.m.

Just before he left work to go to Heron Cove Lane, Hollis saw Willis and advised

him that the sewer main was backed up and that he needed to respond in the

Vac truck. After getting the Vac truck “set up and ready to go,” Willis and another

crew member headed over to Heron Cove Lane in the Vac truck. When Hollis

discovered that the manhole located at the unimproved area southeast of Holden

Circle (X-3) was dry, he contacted Willis, who was still en route, and told him to

go to Holden Circle. After the Vac truck arrived there, the crew initiated the

procedure to clear the blockage. Chavez recalled that it took him nine or ten

minutes to drive from work to Heron Cove Lane without any stops.

      Cross-referencing the employees’ affidavits, if it took Chavez nine or ten

minutes to travel from work to Heron Cove Lane, then it is safe to assume that it

would have taken Willis a similar amount of time to drive the Vac truck from work

to Holden Circle. If Willis did not leave work in the Vac truck until some point




                                         12
after he clocked in at 7:59 a.m., then he and the crew could not have conducted

the procedure to clear the blockage in the sewer main until sometime after 8:00

a.m.—after the Ryghs’ residence had already “completely flooded with raw

sewage.”

       The Ryghs alternatively argue that there are at least material fact issues

apropos to “the exact cause of the flooding,” but we are not tasked in this appeal

with determining “the exact cause of the flooding.” Our narrow inquiry here is

instead limited to examining whether a causal connection exists between the

City’s use of the Vac truck and the damage that the Ryghs sustained to their

residence.

       The jurisdictional evidence conclusively establishes that the property

damage sustained by the Ryghs did not arise from the City’s use of the Vac truck

to clear the blockage in the sewer main. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021(1)(A); Whitley, 104 S.W.3d at 543. The trial court therefore erred by

denying the City’s jurisdictional plea challenging the Ryghs’ claim that the City’s

negligent use of the Vac truck caused their residence to flood. We sustain the

City’s first issue.

D.     The City’s alleged negligent failure to contact the Ryghs did not
       involve the operation or use of the Vac truck.

       The Ryghs additionally alleged that the City’s employees were negligent

for failing to notify them—either before or after the employees used the Vac




                                        13
truck—that their residence could flood with sewage. Failing to notify the Ryghs

had nothing to do with operating or using the Vac truck; it merely implicated

human communications (or lack thereof). Insofar as there was any connection

between the complained-of omission and the City’s use of the Vac truck, it was

far too remote to satisfy Whitley’s well-established nexus requirement. The trial

court erred by denying the City’s jurisdictional plea challenging the Ryghs’ claim

that the City’s employees were negligent for failing to notify the Ryghs that their

residence could flood.    See Tex. Dep’t of Transp. v. City of Floresville Elec.

Power & Light Sys., 53 S.W.3d 447, 455‒56 (Tex. App.—San Antonio 2001, no

pet.) (“[Appellees’] claim seeks indemnification under section 752.008 of the

Texas Health and Safety Code based on [Appellant’s] failure to notify [Appellees]

before Neil began work on [Appellant’s] pole. Therefore, the basis of [Appellees’]

claim is [Appellant’s] failure to notify [Appellees], which does not involve . . . the

operation or use of a motor-driven vehicle.”).      We sustain the City’s second

issue.4




      4
         Having sustained the City’s first and second issues, we need not address
its third issue arguing that an improperly installed clean-out pipe on the Ryghs’
property was the sole proximate cause of the flooding to their residence. See
Tex. R. App. P. 47.1.




                                         14
                                 IV. CONCLUSION

      Having sustained the City’s dispositive first and second issues, we reverse

the trial court’s order denying the City’s plea to the jurisdiction and render

judgment dismissing the Ryghs’ claims against the City for want of jurisdiction.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

WALKER, J., concurs without opinion.

DELIVERED: December 14, 2017




                                        15
