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City of Austin, Texas v. David Saverse

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D I S S E N T I N G OPINION

I respectfully dissent from the majority decision in this case because I disagree with the majority’s application of the standard of review required to reverse the denial of the City’s plea to the jurisdiction. Although the question is a close one, unlike the majority, I conclude that Saverse has raised a fact question on the issue of whether the City’s alleged conduct constitutes gross negligence. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).

When the jurisdictional evidence implicates the merits, as it does here, the trial court does not act as a factfinder. University of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.-Austin 2009, no pet.) (explaining that function of plea to jurisdiction does not require plaintiffs to put on merits of case to establish jurisdiction). The relevant evidence in this case is not undisputed, so the City’s burden is very similar to that of a movant for summary judgment, meaning that after it “asserts and supports with evidence that the trial court lacks subject matter jurisdiction,” we require Saverse “to show [only] that there is a disputed material fact regarding the jurisdictional issue.” Miranda, 133 S.W.3d at 228. As with summary judgment, we review the trial court’s legal determination in such cases de novo, taking as true all evidence favorable to the non-movant and indulging every reasonable inference and resolving any doubts in the non-movant plaintiff’s favor. Id.; Poindexter, 306 S.W.3d at 807. Applying this standard, a review of the evidence shows that Saverse has raised a fact question about the City’s actual knowledge and conscious disregard of an extreme risk from this specific tree.

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