R e versed and R e ndered and Memorandum Opinion filed June 24 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14
- 19
- 00768
- CV

CITY OF HOUSTON , Appellant

V. ERIC ALBERT GONZALES , Appellee
On Appeal from the 333rd District Court

Harris County, T exas Tria l Court Cause No. 2019
- 50246

MEMORANDUM OPINION In one issue, appellant City of Houston challenges the trial court ’ s denial of its r ule 91a motion to dismiss ba sed on lack of jurisdiction

. 1 W e conclude that the trial court lacked jurisdicti on over appell ant Eric Albert Gonzales ’ s claims, reverse the trial court ’ s order , and render judgment dismissing the claims

. Go n zales was working in his yard when a City crane operator arrived to pick

1 Rule 91a allows a party to move to dismiss a c ause of ac tion on the grou nd that it has no basis in law or in fact. Tex. R. Civ. P. 91 a.1

.2

up yard waste . Gonzales asked the crane operator to wa i t while Gonzal es fin ished gather ing up branches

. T he crane operator purportedly responded rud ely, which led to an argum ent between the two men. According to G onzales, the crane operator

“ sw ung the crane arm dangerou sly close ” to him

. Gonzales sue d th e Cit y , asserting a negligence claim. In his original petition, Gonzales alleged only that the crane operator intentionally sw ung the crane arm to strike Gonzales or to scare him away. T h e City filed a rule 91a m otion to di smiss , asserting immunity from su it be c ause Gonzales described an intenti onal tort for which the City ’ s immunity had not been waived . Gonzales amended his petition to allege that the crane operator either intentionally sw ung the crane arm to scare Gon zales or negligently swun g it to get a way q u ickly. I n his response to th e rule 91a motion, Gonzales argued that under his amended petition , his claim sound ed in negligence

. T h e trial court denied the motion.
On interlocutory appeal, t h e City challenges th e trial court ’ s denial of its rule 91 a motion on the basis that the trial court lacked jurisdiction over Gonzales ’ s claim because the City ’ s immunity from suit has not been waived

. The City as a local governmental entity enjoy s governmental immunity from s uit unless immunity is expressly waived

. Tex. Civ. Prac. & Rem. Code § 101.001 (3)(B)

. Immunity from suit implicates a court ’ s s ubject matter jurisdictio n over pending claims, so if a governm ental enti ty validly asserts that it is immune from a pending claim , the court lacks jurisdiction over that cla im. Rusk State Hosp. v. Black , 392 S.W.3d 88, 95 (Tex. 2012)

. I n other words, i m m unity from suit de feats a trial
court ’ s subject matter jurisdict ion. Tex. Dep ’ t of P arks & Wildlife v. Miranda , 133 S.W.3d 217, 225

– 26 (Tex. 2004)

. In that connection , we “ con sider all of a defendant ’ s immunity arguments, whether the governmental entity ra ised other jurisdi ctional arguments in the trial court or none a t all

. ” Da llas Metro care Servs.3

v. Juarez , 420 S.W.3d 39, 41 (Tex. 201 3)

. Immunity from suit may be asserted t hrough a plea to the jurisdiction or another procedural vehicle such as a rule 91a motion

. City o f Houston v. Reyes , No. 14

- 19

- 00291

- CV, 2021 W L 1685230, at *2 (Te x. App.

— Houston [14th Dist.] Apr. 29, 2021, no pet. h.) ; see also Barnes v. Harris C ty

. , N o. 14

- 18

- 00329

- CV , 2019 WL 5444276, at *1 (Tex. App.

— Houston [14th Dist.] Oct. 24 , 2019, no pet.) (mem. op.)

. We revi ew r ule 91a mo tions like pleas to the jurisdiction

. See Wooley v. Schaffer , 447 S.W .3d 71, 75 (Tex. App.

— Houston [14th Dist.] 2014, pet. denied)

. W e constru e the pleadings liberally in favor of the plaintiff, look to the pleader ’ s inten t, an d acc ept as tru e the factual allegations in the pleadings to determine whether the pleader has all eged fac ts that affirmatively demonstrate the trial court ’ s jurisdiction over a claim. Id

. W hether a pleader has alleged facts that demonstrate jurisdict ion is a q uestion of law that we review de novo. Id

. Gonzales alleges t he City ’s immunity from l iabilit y was wa ived under th e Texas Tort Claims Act for “personal injury . . . p roximately caused by the

wron gful act or omission or t he negligence of an employ ee acting within his scop e of emplo yment [arising] from the operation or use of a motor

- driven vehicle or motor

- driven equipment

. ” See Tex. Civ. Prac. & Rem. Code § 101.021 (1)

. Gonzales does not disput e th at the Tor t s Claims Act d oes not waive immunity for intentional torts. See id

. § 101.057 ( 2). But i n his amended petition, Gonzales alleged the crane opera t or was negligent because he purportedly sw ung the crane arm dangerously close to Gonzales to get away from Gonzales

. Gonzales co n cedes th at he was not in

jured thou gh : he alle ged, “ Fortunately, P l aintiff jumped out of the way in tim e and av oided the heavy crane arm swin ging towards him

. . . . If Plaintiff had not quickly jumped out of the way, he would have been s truck. ” T hus , Gonza les alleged no physical i njury.4

Th ere is no general duty in Texas not to negligently inflict emotional distres s. Verinakis v. Med

. Profiles, Inc. , 987 S.W.2d 90, 94

- 95 (Tex. App.

— Houston [14th Dist.] 1 998, pet. denied) (citing Boyles v. Kerr , 8 55 S.W.2 d 593, 594 (Tex. 1993)). F or neglige nce claims, the only exception is for bystanders who witness a c lose family member ’ s death or serious injury. Godfrey v. BP Prods. N. Am., Inc. , No. 14

- 08

- 0085 7

- CV, 20 09 WL 2589476, at *2 n .1 (Tex. App.

— Housto n [14th Dist.] Aug. 25, 20 09, no pet .) (mem. o p.) (citing Verinakis , 987 S.W.2d at 95 )

. Here, Gonzales admits he was not physical ly injured , and he does no t a ssert

a bystander claim

. Thus, he ha s not alleged a per son al injury caused by the c ra ne operator ’ s ne gligenc e that would waive the Cit y ’ s immuni ty from lia bility and suit

. Accordingly, the trial court lacks subject matt er juris diction over Gonzales ’ s negligence claim. Gonzale s complains that the City did not a mend its rule 91a motion b e low to assert that the Ci t y had immunity from Gonz ales ’ s negligence claim. B u t we are required to address this ground for immunity rai se d b y the Ci ty on appeal because it implicates the trial court ’ s sub ject matter jurisdiction. See Dallas Metrocare Servs. , 420 S.W.3d at 41

. W e c onclude Gon zales ’ s negligence claim has no basis i n law or f act under rule 91a b ecause the C ity ’ s immunity from suit was not waived under the Tort Claims Act and the trial court lacke d jurisdiction over th e claim. We sustain the City ’ s sole appellate issue . We reve rse the trial court ’ s order denying the rule 91a

mo tion and r ender ju dgment dismissing Gonzales ’ s clai ms against the City for

w ant of jurisdiction

.5 /s/ Fr ances Bourliot Justice

Panel consists of Justices Wise, Bourliot, and Spain

.