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Brenham Housing Authority v. Davies1/27/2005
In this interlocutory appeal, appellant, the Housing Authority of the City of Brenham, Texas, a/k/a/ Brenham Housing Authority ("BHA") appeals from the denial of its plea to the jurisdiction. BHA contends that the trial court erred in denying its plea to the jurisdiction on the grounds that (1) the Texas Tort Claims Act does not waive immunity from Davies's premises defect claim, (2) the Texas Tort Claims Act does not waive immunity from Davies's breach of contract and breach of warranty of habitability claims, and (3) the Texas Tort Claims Act does not waive immunity from Davies's strict products liability claim. We will not consider whether the trial court has jurisdiction over Davies's breach of contract, breach of warranty of habitability, and strict products liability claims because they were not addressed in BHA's plea to the jurisdiction. However, we reverse and render judgment granting BHA's plea to the jurisdiction as to Davies's premises defect claim.
I. BACKGROUND
In March 1997, Margaret Davies became a tenant of Northside Terrace Apartments ("Northside Apartments") located in Brenham, Texas, and she resided there until November 1999. She again became a tenant in January 2000 and lived there until February 2003. Northside Apartments is owned by Northside Terrace, Ltd. and managed by BHA.
Davies alleges that during her tenancy at Northside Apartments, she began experiencing various physical and mental ailments. She contends that she did not know the cause of these problems until January 2003, when the City of Brenham Gas Department inspected her hot water heater and discovered that it was emitting carbon monoxide fumes into her apartment. A report signed by the gas inspector indicates that the vent pipe was not properly connected to the top of the hot water heater, and this defect allowed carbon monoxide fumes to escape into the apartment. The hot water heater was removed and a new one installed. Davies alleges that shortly after the replacement of the hot water heater, she was diagnosed with Chronic Carbon Monoxide Poisoning.
Davies subsequently filed suit against BHA as well as Northside Terrace, Ltd., NHB Development Corp., State Industries, Inc., and Unknown Defendants 1-25 on theories of negligence, breach of warranty of habitability, breach of contract, and strict products liability. BHA filed a plea to the jurisdiction, asserting that immunity had not been waived under the Texas Tort Claims Act as to the premises defect claim. The trial court entered an order denying the plea to the jurisdiction, and BHA filed this interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. ยง 51.014(a)(8) (Vernon Supp. 2004-05).
II. STANDARD OF REVIEW
A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the cause of action. Texas Parks & Wildlife Dep't. v. Garrett Place, Inc., 972 S.W.2d 140, 142 (Tex. App.--Dallas 1998, no pet.). Because subject matter jurisdiction presents a question of law, we review the trial court's decision de novo. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.--Austin 2000, no pet.). In deciding a plea to the jurisdiction, we may not weigh the merits of the claim, but must consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)
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