Reversed and Rendered and Memorandum Opinion filed November 30, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00818-CV

                     THE CITY OF HOUSTON, Appellant

                                        V.
              KELLEY STREET ASSOCIATES, LLC, Appellee

                   On Appeal from the 295th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-36796

                 MEMORANDUM                     OPINION


      The City of Houston appeals an order denying its plea to the jurisdiction.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2015)
(permitting interlocutory appeal from an order that “grants or denies a plea to the
jurisdiction by a governmental unit”). The City contends that the trial court erred
by denying its plea to the jurisdiction based on governmental immunity. We
reverse and render judgment dismissing appellee Kelley Street Associates, LLC’s
suit against the City for lack of subject matter jurisdiction.

                                    BACKGROUND

      We outline the facts based on the pleadings and evidence presented in the
light most favorable to Kelley as the nonmovant below.

      A utility and maintenance worker employed by the City, John Zenn, was
dispatched to 5825 Kelley Street on October 2, 2012, because there was flooding in
the area. When Zenn and co-worker Jarrad Newsome arrived, “the street was
flooded” and “there was water everywhere.” Zenn and Newsome first “cut off
valves” to “shut off the water” so they could make repairs. They evaluated the
situation and determined that the “wheel valve was bad” and “needed gaskets.”

      To access the wheel valve for repairs, Zenn had to use a backhoe, which is
“a motor like vehicle,” to lift up the concrete slab of the sidewalk around the
meter; the wheel valve was near the meter and supplied water to the meter. Zenn
also used the backhoe to load the concrete pieces onto a dump truck for removal.
The backhoe was not used to do anything else.

      After the concrete was lifted and the area was opened up, Zenn and
Newsome first “took shovels and dug the meter box out, dug down to the meter”
because “the meter box was still covered.” Zenn had to dig further using a shovel
to remove the wheel valve. When Zenn took off the wheel valve in order to start
repairs, a two-inch wide pipe was exposed “sideways.” Zenn used pipe wrenches,
a crescent wrench, a screwdriver, and an open-end backup wrench to replace the
“nut and bolts, the gasket, the wheel valve itself, and a nipple that goes to it.”
After Zenn made the repairs, he reconnected the wheel valve to the two-inch pipe.
Zenn and Newsome then “put everything back” and covered the area back up.

      Zenn and Newsome were dispatched a second time on October 4, 2012,

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because water still was leaking.       They went back, dug everything up again,
“tracked the line and replaced it with [a] full two-inch circle round” using a
“[f]ive-eighth socket, ratchet.”

      Kelley sued the City on June 21, 2013, alleging that its office building was
damaged by flooding after the City repaired a water meter and valves in front of its
office building located on 5825 Kelley Street. Kelley alleged that City employees
used a backhoe in the “course of making the repairs.” It alleged that, in using the
backhoe, the City employees “loosened debris, rocks and dirt that were dislodged
into the domestic water main and thus into the plumbing system of the Kelley
Street Building. These materials caused immediate and substantial damage to such
system, resulting in a failure of the system, flooding of the building, and damage to
the building, its fixtures and contents.”

      Kelley further alleged that City personnel breached the duty of reasonable
care by the “negligent, careless and reckless operation of the [backhoe] . . . .
Specifically, the backhoe was operated in a manner that failed to prevent the
introduction of debris, rocks and dirt into the water main.” According to Kelley,
“[s]uch negligent, careless and reckless operation of a motor vehicle and
equipment proximately caused the damages described above . . . .” Kelley alleged
that the backhoe operated by City employees was “the only source of any
disruption or activity that could dislodge debris, rocks and dirt into the plumbing
system of the Kelley Street Building.” Kelley alleged that the City is liable for
damages pursuant to statute. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021
(Vernon 2011).

      The City filed its answer on July 18, 2013, asserting a general denial and
pleading governmental immunity from (1) “suit in bar to all of the claims by”
Kelley; (2) “liability as an affirmative defense to [Kelley]’s claims;” and (3) “suit

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for any claims resulting from the alleged actions of its agents, servants or
employees where such agent, servant or employee is entitled to official immunity.”
The City also pleaded that Kelley’s “claims are barred by and/or do not fall within
the waiver of Chapter 101 of the Texas Civil Practice and Remedies Code.”

      The City filed a plea to the jurisdiction on March 21, 2014, alleging that it is
entitled to a dismissal of Kelley’s claims because governmental immunity is not
waived pursuant to Texas Civil Practice and Remedies Code section 101.021 in
this case. The City argued that, based on the facts in this case, Kelley cannot show
that there is a nexus between the operation or use of a motor-driven vehicle or
motor-driven equipment and the alleged damages as is required to establish a
waiver of immunity. The City contended that (1) it did not use motor-driven
equipment for “excavation and repair of the main/meter line” and made repairs
only with hand tools; (2) it was “impossible for debris to enter the main/meter from
[the City]’s use of the backhoe — the main was not accessed until well after the
backhoe had removed the sidewalk and been shut down;” and (3) the use of the
backhoe merely created a condition that later led to damages. The City attached
Zenn’s deposition testimony and a photograph of the repair site to its plea to the
jurisdiction.

      Kelley filed a response to the City’s plea on May 13, 2014, contending that
the express legislative waiver of immunity applies in this case because the
damages to Kelley’s building arose from the use of the backhoe, and, “[a]t the very
least, there is a fact issue regarding the existence of the causal nexus.” Kelley
contended that the City “used a backhoe and other tools to make the repair and
dislodged rocks, dirt and other debris into the domestic water main that entered the
plumbing system of Kelley[’s] . . . building. The rocks, dirt and other debris
damaged the flush valves” and caused flooding and damage throughout the

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building. Kelley attached excerpts from Zenn’s, Newsome’s, and City employee
Michel Thelus’s deposition testimony; Kelley also attached an affidavit from
plumber John Moore, who was called by Kelley to “assess the cause of the
flooding water in the building, and to propose any necessary plumbing repairs.”

      The City filed a reply in support of its plea on May 15, 2014, again arguing
that the evidence in this case “conclusively proves there is no causal nexus – no
proximate cause – between [the City]’s workers’ use of a backhoe and the flooding
in [Kelley]’s building.”

      The trial court signed an order denying the City’s plea to the jurisdiction on
October 3, 2014. The City filed a timely notice of appeal.

                               STANDARD OF REVIEW

      A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case 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 Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Tex. Dep’t of Transp.
v. Jones, 8 S.W.3d 636, 637 (Tex. 1999). A plea questioning the trial court’s
jurisdiction raises a question of law that is reviewed de novo. State v. Holland, 221
S.W.3d 639, 642 (Tex. 2007).

      A plea to the jurisdiction can challenge either the pleadings or the existence
of jurisdictional facts. See Miranda, 133 S.W.3d at 226-27.

      When a plea to the jurisdiction challenges a plaintiff’s pleadings, the
determination pivots on whether the pleader has alleged sufficient facts to
demonstrate the court’s subject matter jurisdiction over the matter.        Id.   We
construe the pleadings liberally in favor of the plaintiff and look to the pleader’s

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intent. City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009). If the pleadings
do not contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and the plaintiff should be afforded the
opportunity to amend.       Miranda, 133 S.W.3d at 226-27.            If the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction
may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.

      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 raised, even where those facts may implicate the merits of
the cause of action. Kirwan, 298 S.W.3d at 622. If the evidence creates a fact
issue as to the jurisdictional issue, then it is for the factfinder to decide. Id. 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. In
considering this evidence, we take as true all evidence favorable to the nonmovant
and indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Id.

                                      ANALYSIS

      The City argues that the trial court erred by denying its plea to the
jurisdiction because there is no waiver of governmental immunity under the Texas
Tort Claims Act in this case, and, therefore, the trial court lacks subject matter
jurisdiction. According to the City, undisputed evidence establishes that there was
no causal nexus between the use of motor-driven equipment and Kelley’s damages.

      Immunity from suit deprives a trial court of subject matter jurisdiction. See
City of Houston v. Williams, 353 S.W.3d 128, 133 (Tex. 2011). Governmental
immunity protects political subdivisions of the state, including cities, from lawsuits
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for money damages unless such immunity has been waived. See Reata Constr.
Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). When governmental
immunity is waived by statute, the legislature must use clear and unambiguous
language indicating its intent do so. See Kirby Lake Dev., Ltd. v. Clear Lake City
Water Auth., 320 S.W.3d 829, 838 (Tex. 2010); Harris Cty. Hosp. Dist. v. Tomball
Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).

      The Texas Tort Claims Act provides a limited waiver of governmental
immunity. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109. (Vernon 2011
& Supp. 2014); Miranda, 133 S.W.3d at 224; Tex. Dep’t of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001); City of Houston v. Ranjel, 407 S.W.3d
880, 888 (Tex. App.—Houston [14th Dist.] 2013, no pet.).         Section 101.021
provides:

      A governmental unit in the state is liable for:
            (1) property damage, personal injury, and death proximately
            caused by the wrongful act or omission or the negligence of an
            employee acting within his scope of employment if:
                   (A) the property damage, personal injury, or death arises
                   from the operation or use of a motor-driven vehicle or
                   motor-driven equipment; and
                   (B) the employee would be personally liable to the
                   claimant according to Texas law; and
            (2) personal injury and death so caused by a condition or use of
            tangible personal or real property if the governmental unit
            would, were it a private person, be liable to the claimant
            according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021. The City does not dispute that the
backhoe is a motor-driven vehicle or motor-driven equipment. See id. § 101.021
(1)(A).

      The City contends on appeal that, in order to plead a valid waiver of

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governmental immunity, Kelley not only must show that a motor-driven vehicle or
equipment was used or operated, but Kelley also must demonstrate that a nexus
exists between the operation or use of the motor-driven vehicle or equipment and
Kelley’s alleged injuries. The City contends there was no nexus between the
City’s use of the backhoe and Kelley’s alleged flooding damages because (1) the
backhoe was used only to remove the concrete sidewalk; (2) the City used only
hand tools for excavation and repair of the water line; (3) it was “impossible for
debris to enter the main/meter from [the City]’s use of the backhoe because the
water line was not accessed until well after the backhoe had removed the sidewalk
and been shut down;” and (4) the backhoe did no more than furnish the condition
that made the alleged damages possible in this case.

      Kelley responds that the trial court correctly denied the City’s plea to the
jurisdiction because “[t]here is a sufficient nexus between the City’s use of a
backhoe and the resulting property damage.” Kelley contends that removing the
concrete sidewalk with the backhoe was a necessary part of the repair because “the
water main could not have been reached without excavating the location.” Kelley
also contends that the backhoe “dislodged the dirt, rocks and other debris that
could then enter the water main.” According to Kelley, Zenn and Newsome
“acknowledged that the use of the backhoe dislodged or contributed to the
dislodging of the debris that entered the pipe;” and this in turn damaged the
plumbing system in Kelley’s office building. Kelley contends that, contrary to the
City’s assertion, “in this case, the backhoe is not merely a ‘setting’” but the use of
the backhoe was an integral part of the repair.

      The supreme court has “consistently required a nexus between the operation
or use of the motor-driven vehicle or equipment and a plaintiff’s injuries” under
the Texas Tort Claims Act. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

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540, 543 (Tex. 2003); Tex. Nat. Res. Conservation Comm’n v. White, 46 S.W.3d
864, 869 (Tex. 2001); LeLeaux v. Hamshire–Fannett Indep. Sch. Dist., 835 S.W.2d
49, 51 (Tex. 1992). This nexus requires more than mere involvement. Whitley, 104
S.W.3d at 543; Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968
S.W.2d 339, 343 (Tex. 1998).

      For liability to attach, the use of a motor-driven vehicle or equipment “‘must
have actually caused the injury.’” See Whitley, 104 S.W.3d at 543 (quoting White,
46 S.W.3d at 869). 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 Bossley, 968 S.W.2d at 343). Thus, if the backhoe merely furnished the
condition that made Kelley’s alleged damages possible, then the legislature has not
waived immunity under the Tort Claims Act.

      Here, the undisputed jurisdictional evidence establishes that the City’s
governmental immunity has not been waived under the Texas Tort Claims Act.
This is so because the use or operation of the backhoe did no more than furnish a
condition that made the alleged damages in this case possible.

      Zenn testified in his deposition that the backhoe was used only to remove the
concrete sidewalk slab around the meter, and then to load up the concrete pieces
onto a dump truck. Zenn testified that the backhoe was not used to do anything
else. Zenn stated that the backhoe could not have been used to excavate the wheel
valve because of the “amount of space to work in. A backhoe would be -- would
defeat the purpose.” Zenn stated that the backhoe was not used for “digging on the
meter;” he and Newsome “took shovels and dug the meter box out, dug down to
the meter” because “the meter box was still covered.” Zenn then had to dig further
using a shovel to remove the wheel valve and start repairs on it.        Zenn and
Newsome used only hand tools to dig out and remove equipment and make the

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necessary repairs.

         Further, Zenn testified that only after he used hand tools to remove the
wheel valve was a two-inch pipe exposed. Zenn acknowledged that, “if there’s
concrete or dirt or rocks, that the — that have been dislodged by the backhoe and
haven’t been picked up,” it is possible that “rocks or debris could then fall into the
pipe.”

         Kelley contends “[t]here is a sufficient nexus between the City’s use of a
backhoe and the resulting damage” because the backhoe “dislodged the dirt, rocks
and other debris that could then enter the water main.”          We reject Kelley’s
contention. Even if the backhoe dislodged rocks, dirt, and debris, the operation
and use of the backhoe did not cause the rocks, dirt, and debris to enter the open
pipe. When the City’s workers ceased using the backhoe, the wheel valve had not
yet been removed and the pipe had not yet been exposed for any rocks or debris to
enter. Zenn had to remove the wheel valve using hand tools, which in turn
exposed the pipe and created an opportunity for entry of rocks or debris. Thus, any
dislodged rocks and debris could enter the pipe because the pipe was exposed by
Zenn when he removed the wheel valve; any dislodged rocks or debris did not
enter the pipe because the backhoe was being used or operated.

         Here, the use or operation of the backhoe did no more than furnish a
condition that made Kelley’s alleged damages possible. See Whitley, 104 S.W.3d
at 543; see also Dallas, Garland & Ne. R.R. v. Hunt Cty., 195 S.W.3d 818, 822-23
(Tex. App.—Dallas 2006, no pet.) (“The County’s use of a motor-driven vehicle or
equipment to place road-base material onto the tracks created the condition that led
to the train’s derailment and the Railroad’s damages. However, it was the train’s
encounter with the road-base material that caused the damages, not the County’s
direct use of any motor-driven vehicles or equipment.”).         There is no nexus

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between the use or operation of the backhoe and the alleged damages in this case.
Our conclusion is consistent with the Texas Supreme Court’s instruction that the
Tort Claims Act’s waiver of immunity is a limited one. See Miranda, 133 S.W.3d
at 224; Miller, 51 S.W.3d at 587; LeLeaux, 835 S.W.2d at 51.

      Accordingly, we hold that the undisputed evidence establishes that the City’s
governmental immunity has not been waived and that the trial court erred by
denying the City’s plea to the jurisdiction.

                                    CONCLUSION

      We reverse the trial court’s judgment and render judgment dismissing
Kelley’s suit against the City for want of subject matter jurisdiction.




                                               /s/   William J. Boyce
                                                     Justice



Panel consists of Justices Boyce, McCally and Donovan.




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