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Glenda Ford as Next Friend of Cedrick Lenard Williams v. City of Lubbock
Citation: Not availableDocket: 07-02-00107-CV
Court: Court of Appeals of Texas; May 10, 2002; Texas; State Appellate Court
Original Court Document: View Document
Glenda Ford, as next friend of Cedrick Lenard Williams, appeals a take-nothing judgment against the City of Lubbock regarding the drowning death of her son in a city-owned swimming pool. The trial court dismissed the case based on a plea to the jurisdiction filed by the City. The City has moved to dismiss the appeal, asserting that Ford's notice of appeal was not timely filed, as it was submitted on February 27, 2002, outside the 30-day period following the November 30, 2001, judgment. Ford had requested findings of fact and conclusions of law on December 19, 2001, but the trial court did not issue any. Under Texas Rule of Appellate Procedure 26.1, a timely request for findings can extend the appeal deadline to 90 days if the findings are necessary or could be considered by the appellate court. The City contends that findings were unnecessary in this case since the plea to the jurisdiction was granted without an evidentiary hearing. Ford counters that the trial court did consider evidence, including affidavits and deposition testimony, effectively constituting an evidentiary hearing, hence making findings of fact relevant. The City cites IKB Industries v. Pro-Line Corp., which ruled that a request for findings does not extend the appeal deadline when findings would have no purpose. The court recognizes that evidentiary hearings may be appropriate in some cases, referencing prior cases that allow for the consideration of evidence in such contexts. Sovereign immunity under the Texas Tort Claims Act is waived only in cases involving negligent conduct related to the condition or use of tangible property, where a government unit would be liable as a private individual under the law. In this case, the appellee initially argued that the appellant's pleadings lacked allegations concerning property use. They supported their claim with deposition excerpts indicating no equipment was involved and an affidavit detailing safety equipment at city pools. The appellant later amended the petition, alleging misuse of the pool's telephone by a lifeguard during a drowning incident and improper placement of the phone and cash register. The appellee responded with a supplemental plea but did not present additional evidence. The appellant then submitted affidavits and a recorded statement highlighting that lifeguards were absent from the pool area while the victim was drowning, with one lifeguard ordering pizza. During a hearing, the trial court found that the core issue was not equipment misuse but a failure to respond appropriately by the lifeguard. The court noted that the legislature granted municipalities immunity to avoid financial burdens while providing community services like swimming pools, allowing for immunity unless there is a misuse of property. The court concluded that the appellee's plea was appropriate, and neither party disputed the factual claims supporting the appellant's response. The trial court accepted the appellant's factual assertions as true, indicating no factual dispute existed. The court determined that findings of fact and conclusions of law were unnecessary and that the appeal notice should have been filed within 30 days of the order. Consequently, the court dismissed the appeal for lack of jurisdiction.