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Click here for the full text of this decision FACTS:Heavy rainfall overwhelmed part of the city of Paris sewer system under construction � and its lift station containing motor-driven pumps � near Bobby Floyd’s rental house occupied by tenants, Shawn and Amy Philpot. As a result, raw sewage flowed into the house, along with rainwater and silt. Floyd sued L. C. Brown Construction and the city of Paris, alleging that an inadequately supervised Brown negligently failed to close its excavation and to install certain components in the system; that the city failed to properly operate, use, and maintain the system, including the motor-driven pumps in the lift station; that the city failed to use sufficient equipment in the system; and that the city negligently misused the lift station and its motor-driven pumps to attempt to transport storm waters, rather than just the sewage for which they were designed. The Philpots intervened as parties plaintiff, with similar allegations. The trial court denied the city’s request that the claims against it be dismissed for want of jurisdiction based on sovereign immunity. The city asks this court to dismiss the claims against it based on its plea to the jurisdiction HOLDING:Affirmed. The trial court was within its discretion in determining that, at this early stage of the proceedings, the case has not been sufficiently developed and that plaintiffs may, with adequate discovery, be able to produce evidence that would show that, in practice, the city exercised the right to control Brown’s actions. Even if plaintiffs fail in that regard, other causes of action charge direct negligence of the city independent of Brown, which, too, might be developed with adequate discovery. The city next asserts that plaintiffs essentially allege only a “non-use” of motor-driven equipment, not an “operation or use” of that equipment as required by Texas Civil Practice and Remedies Code 101.021(1)(A). The court disagrees. The city next asserts that no city employee could be liable, because none could have stopped the flooding from occurring in the Floyd house. While evidence may ultimately be produced that demonstrates that result, at this stage of the case, that has not been conclusively proven. The trial court was within its discretion in refusing to dismiss on this basis as well. The city asserts that no city employee was identified in the pleadings and therefore the case must be dismissed because of that pleading defect. The court disagrees. This is a prediscovery or early discovery situation, and the trial court was faced with allegations that the city has not been particularly forthcoming with such information, the court states. The pleadings are thus sufficient to allege liability, in the face of a motion to dismiss for lack of jurisdiction, and the trial court was within its discretion in refusing to dismiss the case this early. The city also complains because the pleadings speak only of “agents” of the city in connection with allegations of negligence. The court presumes that the city is equating agents to employees. While that complaint might be made the subject of a special exception, agents may well also be employees. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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