Theron Belton v. Texas Department of Criminal Justice

IN THE TENTH COURT OF APPEALS No. 10-06-00142-CV Theron Belton, Appellant v. Texas Department of Criminal Justice, Appellee From the 278th District Court Madison County, Texas Trial Court No. 01-9649-278-10A MEMORANDUM Opinion Belton appeals the trial court’s summary judgment in favor of the Texas Department of Criminal Justice (“the Department” or “TDCJ”). We affirm. Belton’s first issue is “whether adequate time for discovery had passed and whether there was no outstanding discovery left to be completed.” (Br. at 1, 3); see Tex. R. Civ. P. 166a(i). “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion that . . . complied with the requirements of the . . . Texas Rules of Civil or Appellate Procedure . . . .” Tex. R. App. P. 33.1(a). The Rules of Civil Procedure require that “[w]hen a party contends that it has not had adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.” Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing Tex. R. Civ. P. 166a(g), 251-52); see Tex. R. Civ. P. 166a(i); Dornberg v. Toyota Motor Sales USA, Inc., No. 13-03-00620-CV, 2006 Tex. App. LEXIS 1291, at *11 (Tex. App.—Corpus Christi Feb. 16, 2006, no pet.) (mem. op.); Ortega v. Gonzalez, 166 S.W.3d 917, 920 (Tex. App.—El Paso 2005, no pet.). Belton does not point to such an affidavit or verified motion for continuance in the record. Belton failed to preserve his complaint for appellate review. We overrule Belton’s first issue. Belton’s second issue is “whether the trial court erred and abused its discretion in granting Defendant’s motion for summary judgment on the basis of the heightened liability standard of Tex. Gov’t. Code § 497.096 of its affirmative defense of sovereign immunity.” ([sic] Br. at 1-2, 12); see Tex. Gov’t Code Ann. § 497.096 (Vernon 2004). In a traditional motion for summary judgment, “[t]he judgment sought shall be rendered forthwith if” the summary-judgment evidence, including “discovery responses referenced or set forth in the motion . . . , show[s] that . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law . . . .” Tex. R. Civ. P. 166a(c); see Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). “In reviewing a trial court’s summary judgment, we resolve all doubts against the movant, and we view the evidence in the light most favorable to the nonmovants.” Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005). Texas Government Code Section 497.096 provides: An employee of the Texas Department of Criminal Justice . . . is not liable for damages arising from an act or failure to act . . . in connection with an inmate or offender programmatic or nonprogrammatic activity, including work, community services, educational, and treatment activities, if the act or failure to act was not intentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. Tex. Gov’t Code Ann. § 497.096. We assume without deciding that Section 497.096 governs Belton’s claims. The Department points to Belton’s responses to requests for admissions, in which Belton admitted that he did “not claim that TDCJ employees acted intentionally, willfully, wantonly or with conscious indifference . . . in relation to the incident made the basis of th[e] suit.” (1 Supp. C.R. at 16-17.) Viewing the evidence in the light most favorable to Belton, we hold that the trial court did not err in finding that there was no genuine issue of material fact under Section 497.096 and that the Department was entitled to judgment as a matter of law on Belton’s negligence claim. We overrule Belton’s second issue. Belton’s third issue is “whether the trial court erred and abused its discretion in granting summary judgment for (TDCJ) on the basis that Plaintiff’s DTPA claims are improper.” ([sic] Br. at 2, 16); see Tex. Bus. & Comm. Code Ann. §§ 17.41-17.63 (Vernon 2002 & Supp. 2006) (Deceptive Trade Practices–Consumer Protection Act) (DTPA). On appeal, the Department argues that the trial court lacked subject-matter jurisdiction over Belton’s DTPA claims. “Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). “[S]overeign immunity from suit deprives a trial court of subject-matter jurisdiction.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). A state agency may raise sovereign immunity for the first time on appeal. Tex. Workers’ Comp. Comm’n v. Horton, 187 S.W.3d 282, 285 (Tex. App.—Beaumont 2006, no pet.); Brown v. City of Houston, 8 S.W.3d 331, 335, 337 (Tex. App.—Waco 1999, pet. denied) (Gray, J., concurring). “[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2006); see Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006). “[T]he DTPA [does not] clearly and unambiguously provide[] for a waiver of immunity from suit for governmental units.” Univ. of Houston v. Simons, No. 01-02-00368-CV, 2002 Tex. App. LEXIS 7598, at *7 (Tex. App.—Houston [1st Dist.] Oct. 24, 2002, no pet.) (not designated for publication); see Kerrville HRH, Inc. v. City of Kerrville, 803 S.W.2d 377, 382 (Tex. App.—San Antonio 1990, writ denied). The trial court lacked subject-matter jurisdiction over Belton’s DTPA claims against the Department. We dismiss Belton’s DTPA claims with prejudice. Belton’s fourth issue is “whether the trial court erred on TDCJ’s failure to supervise and detect alleges a condition or use of property.” ([sic] Br. at 24; see id. at 2.) An appellant’s “brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(h). In “appeals in civil cases, . . . failure to advance legal analysis, legal citations, and appropriate references to the record will serve as the foundation for waiver of such complaints on appeal.” In re Rose, 144 S.W.3d 661, 676 (Tex. Rev. Trib. 2004), aff’d, 48 Tex. Sup. Ct. J. 104 (Tex. Nov. 5, 2004); see Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); In re R.E., No. 10-05-00126-CV, 2006 Tex. App. LEXIS 2594, at *9 (Tex. App.—Waco Mar. 29, 2006, no pet.) (mem. op.) (termination of parent-child relationship); Batto v. Gafford, 119 S.W.3d 346, 350 (Tex. App.—Waco 2003, no pet.). Belton’s argument on the issue in its entirety is as follows: Appellant asserts that V.T.C.A., Civ. Prac. & Rem. Code § 101.021(2) is explicitly clear on the needed requirements for (TDCJ) to be liable for its employee’s negligent conduct (condition or use of tangible or real property), and a employees negligent failure to supervise and detect is just a derivative of what it takes to make (TDCJ) liable. V.T.C.A., Civ. Prac. & Rem. Code § 101.021(2). Therefore, this claim or defense is not applicable because it has no merit. ([sic] Br. at 24-25); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005). Belton’s fourth issue is inadequately briefed. We overrule Belton’s fourth issue.[1] Having overruled Belton’s issues, we dismiss Belton’s DTPA claims with prejudice, and otherwise affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed February 14, 2007 [CV06] [1] We note, moreover, that negligent supervision, without more, does not constitute a “use” of personal property that would waive . . . liability under section 101.021(2), else the failure to prevent any accident that involves tangible personal property would come within the statute’s purview. “Such a result would be tantamount to abolishing governmental immunity, contrary to the limited waiver the Legislature clearly intended.” Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005) (quoting Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996)); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).