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Defendant's Attorney: Jesse Calderon
Fort Worth, Texas – Personal Injury lawyer represented Appellant with filing this interlocutory appeal against a premises liability claim.
Sharp sued the City for injuries she sustained on the Gainesville airport tarmac.
On May 17, 2020, Sharp and her instructor pilot landed their plane at the Gainesville
airport to purchase fuel for the plane. Sharp deplaned onto the tarmac with a dog and
began walking toward a grassy area. As she was walking the dog, Sharp tripped on an
unmarked tie-down1 protruding from a depression in the ground, which caused her to
“fall violently face-first on the pavement.” The fall resulted in “serious and disabling
injuries requiring surgical intervention,” and Sharp brought a premises defect claim
against the City under the Texas Tort Claims Act (TTCA). The City then filed a plea
to the jurisdiction asserting it was immune from suit because Sharp was a licensee, not
For reference, a tie-down is an iron anchor, bolt, or hook embedded in a
depression in the concrete that is used to tie down or secure an airplane by its wings,
which prevents the plane from being damaged during high winds or a storm.
an invitee, and as a licensee she was unable to prove that the City had actual
knowledge of an unreasonably dangerous condition. Sharp responded that by landing
at the airport for the sole purpose of purchasing fuel, she paid for the use of the
airport and was therefore an invitee. Sharp also argued that regardless of whether she
was an invitee or a licensee, the overwhelming evidence established fact issues as to
the challenged elements of her TTCA claim, which required the trial court to deny the
City’s plea. The trial court denied the City’s plea, and this appeal followed.
II. Standard of Review and Applicable Law
Unless the state consents to suit, sovereign immunity deprives a trial court of
subject-matter jurisdiction over lawsuits against the state or certain governmental
units. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Cities
are political subdivisions of the state and, absent waiver, are similarly entitled to
governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
2006) (op. on reh’g).
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack
of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A
jurisdictional plea’s purpose is to defeat a cause of action without regard to the
asserted claims’ merits. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea
may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo
Heights ISD v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The plea to the jurisdiction
standard generally mirrors that of a traditional motion for summary judgment under
Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at 228. Under this
standard, the governmental unit must meet the summary judgment standard of proof
by successfully asserting and supporting with evidence that the trial court lacks
subject-matter jurisdiction. Id. The burden then shifts to the plaintiff, who—when the
facts underlying the merits and subject-matter jurisdiction are intertwined—must
show that there is a disputed material fact regarding the jurisdictional issue. Id. (citing
Huckabee v. Time Warner Ent. Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000)).
Whether the trial court has subject-matter jurisdiction is a legal question that
we review de novo. Miranda, 133 S.W.3d at 226. We review a plea to the jurisdiction
by considering the pleadings, the factual assertions, and all relevant evidence in the
record. City of Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex.
2018). When reviewing a plea to the jurisdiction that incorporates evidence
implicating the merits of the case, we must “take as true all evidence favorable to the
nonmovant” and “indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor.” Miranda, 133 S.W.3d at 228 (citing Sci. Spectrum, Inc. v. Martinez,
941 S.W.2d 910, 911 (Tex. 1997)). If the evidence creates a fact question regarding
jurisdiction, the trial court must deny the plea and leave its resolution to the
factfinder. Id. at 227–28. But if the evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea as a matter of law.
Id. at 228.
The TTCA provides a limited waiver of governmental immunity for personal
injury claims arising from premises defects. Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021; Miranda, 133 S.W.3d at 224. Specifically, a governmental unit is liable for
personal injury caused by the condition or use of real property “if the governmental
unit would, were it a private person, be liable to the claimant according to Texas law.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.021. For such claims, “the governmental
unit owes to the claimant only the duty that a private person owes to a licensee on
private property, unless the claimant pays for the use of the premises.” Id.
§ 101.022(a). If the claimant paid for the use of the premises, she is an invitee. City of
Fort Worth v. Posey, 593 S.W.3d 924, 927 (Tex. App.—Fort Worth 2020, no pet.) (citing
Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018, at *8 (Tex.
App.—Fort Worth May 19, 2011, pet. denied) (mem. op. on reh’g)).
Here, the elements of Sharp’s cause of action depend on whether she was a
licensee or an invitee at the time of her accident. See id. If Sharp was a licensee, she
must show that the City had actual knowledge of the unreasonable risk of harm
created by the tie-down. Id. If she was an invitee, Sharp need only show that the City
knew or should have known of the unreasonable risk of harm—i.e., constructive
knowledge. See id.
A. Sharp’s Status as Invitee or Licensee
The City first disputes whether Sharp paid for the use of the airport premises,
arguing that Sharp was a licensee at the time of her accident. Sharp contends that she
paid for the use of the premises because she and her instructor pilot landed their
plane at the City’s airport for the sole purpose of purchasing fuel, and accordingly, she
was an invitee. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).
To support her contention, Sharp cites our decision in Posey. In that case, the
claimant, Posey, attended an event hosted at a venue owned by the City of Fort
Worth. Posey, 593 S.W.3d at 927. Posey paid a fee to park at the venue and another fee
to attend the event within. Id. As she exited the venue, Posey tripped over an
obstruction on the sidewalk between the venue and the parking lot and injured
herself. Id. She then brought a premises liability claim against the City of Fort Worth,
which filed a plea to the jurisdiction asserting immunity. Id. On appeal, the City of
Fort Worth argued that Posey was a licensee because the sidewalk where she fell was
open to the public generally, and payment was not required to access it. Id. at 928. We
rejected this argument, holding that “a person is entitled to invitee status if the person
paid to use the premises, regardless of whether other members of the public might
also be present without paying.” Id. at 929. “An invitee is one who enters the property
of another with the owner’s knowledge and for the mutual benefit of both.” Id. (citing
Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015)).
Sharp argues that, like Posey, she landed at the City’s airport for the mutual
benefit of both parties—her need for fuel and the City’s sale of fuel. Because she
landed at the City’s airport for a purpose connected with the business in which the
airport is engaged—selling fuel—Sharp argues she went to the airport under an
implied invitation and therefore was an invitee. See id.
The City responds that Posey is distinguishable because, unlike Sharp’s landing
at the City’s airport, Posey paid to park her vehicle in the parking lot and then paid to
enter the venue. See id. at 930. The City did not charge landing fees or tie-down fees at
their airport. Comparatively, the City suggests that a landing fee would have been like
Posey’s payment to enter the City of Fort Worth’s venue, and a tie-down fee would
have been like Posey’s payment to park at the venue. But Sharp did not pay a landing
fee or tie-down fee or even a fee to enter the City’s airport premises; rather, she and
her instructor pilot landed at the airport and merely purchased fuel with a credit card.
Consequently, the City asserts that Posey would support Sharp’s contention only if
Posey had not paid to park and to enter the City of Fort Worth’s venue, and instead,
she had merely purchased a gift inside the venue.
The City further analogizes Sharp’s claim to invitee status to a person that
enters a courthouse and purchases a soda from a vending machine inside the
courthouse. The person’s purchase of the soda does not constitute payment for use of
the courthouse, and therefore, it does not make the person an invitee. Because Sharp
did not pay for the use of the airport premises, the City contends that Sharp was a
licensee at the time of her accident.
The plain language of Section 101.022(a) supports the City’s argument. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.022(a); Liberty Mut. Ins. Co. v. Garrison Contractors,
Inc., 966 S.W.2d 482, 484 (Tex. 1998) (looking to the plain and common meaning of
the statute’s words). To obtain the status of invitee, the TTCA explicitly states that the
claimant must pay “for the use of the premises.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.022(a); see also Posey, 593 S.W.3d at 929 (“The text of the statute makes a
person’s status dependent on whether she has paid for use of the premises.”).
A fee or payment that is merely related to the premises does not constitute
payment for the use of the premises. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.022(a); City of Houston v. Ayala, 628 S.W.3d 615, 621 (Tex. App.—Houston [14th
Dist.] 2021, no pet.) (concluding that purchasing an airline ticket is not payment for
the entry and use of the airport premises); City of Dallas v. Patrick, 347 S.W.3d 452, 457
(Tex. App.—Dallas 2011, no pet.) (stating that the claimant was an invitee only
because she obtained entry to the zoo through her mother’s paid zoo membership);
Sullivan, 2011 WL 1902018, at *8 (finding invitee status only where the payment of a
wedding venue’s rental fee was tied to entry onto a particular premises); Clay v. City of
Fort Worth, 90 S.W.3d 414, 417 (Tex. App.—Austin 2002, no pet.) (“Only a fee
charged for entry onto a particular premises is sufficient to confer invitee status[.]”);
Simpson v. Harris Cnty., 951 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1997,
no writ) (holding that filing fees paid by litigants are not payments for the use of the
courthouse premises); Churchman v. City of Houston, No. 01-96-00211-CV, 1996 WL
544250, at *2 (Tex. App.—Houston [1st Dist.] Sept. 26, 1996, writ denied) (“If [the
claimant] paid for airport parking, she paid for the use of the parking premises, but
not the airport terminal premises.”); Garcia v. State, 817 S.W.2d 741, 743 (Tex. App.—
San Antonio 1991, writ denied) (finding that the payment of general licensing fees and
fuel taxes does not constitute payment for the use of the public highways of Texas).
Neither Sharp nor her instructor pilot paid a fee for entry onto the airport
tarmac. The only payment Sharp made—directly, or indirectly through her instructor
pilot—was the payment for fuel. Sharp’s payment for fuel was merely related to the
premises and did not constitute payment for the use of the City’s airport premises.
The City’s maintenance and operation of its municipal airport is a governmental
function. See City of Corsicana v. Wren, 317 S.W.2d 516, 521 (Tex. 1958). Indeed, the
City’s airport is not engaged in the business of selling fuel, and selling fuel is not its
primary purpose. In addition to selling fuel, the City’s airport facilities offer car rental
services, vending machines, catering, 24-hour restrooms, pilots lounge and supplies,
conference rooms, and flight planning. The City did not require Sharp to purchase
fuel upon landing at its airport or otherwise pay for the use of its premises. Sharp and
her instructor pilot could have simply landed their plane, stretched their legs, and
taken the dog to use the restroom without fueling their plane. Accordingly, purchasing
fuel does not constitute payment for the use of the City’s airport premises as
contemplated by Section 101.022(a). Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).
Because she did not pay for the use of the premises, we hold that Sharp is not entitled
to invitee status as a matter of law.
B. Actual Knowledge of an Unreasonably Dangerous Condition
Because Sharp was a licensee, the City owed her a duty to protect her from a
dangerous condition of which the City had actual knowledge. See City of Denton v.
Paper, 376 S.W.3d 762, 766 (Tex. 2012); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d
113, 117 (Tex. 2010). If the City established with competent evidence that it did not
have actual knowledge of an unreasonably dangerous condition, then the burden
would shift to Sharp to show there is a disputed material fact as to those jurisdictional
elements. See Paper, 376 S.W.3d at 766; Hayes, 327 S.W.3d at 117.
In its plea and on appeal, the City argues that the evidence establishes that the
condition of the tie-down was not unreasonably dangerous and that the City
consequently did not have actual knowledge of any alleged dangerous condition. In
support of its argument, the City relies on the security-camera video of Sharp’s
accident, Sharp’s deposition, the deposition of the City’s airport manager, David
Vinton, and photos of the tie-down. The video shows Sharp holding miscellaneous
items in her hands, walking from the plane toward a grassy area of the airport facilities
with a dog on a leash, and suddenly falling. In her deposition, Sharp testified that she
was looking toward the grassy area and had not been looking at her feet when she fell.
In Vinton’s deposition, he testified that the airport’s tarmac and original tie-downs
had remained unchanged since the airport opened at the end of World War II and
that Sharp had been the only person known to have tripped and fallen over a tiedown hook or claimed to have been injured as a result of the condition of the tarmac.
Not one of the thousands of citizens who had previously attended large public events
on the airport tarmac was known by the City to have experienced, reported, or
observed anything problematic with the tie-downs. Vinton also testified that the City’s
airport staff had been trained by the Federal Aviation Administration to inspect for
and discover potential hazards on the airport tarmac and that they had inspected the
airport daily. Further, Vinton testified that there are no mandatory federal, state,
county, or city requirements for marking the tie-downs at the City’s airport, and the
airport’s tie-downs in fact complied with the FAA’s recommended guidelines.
In her response to the City’s plea, Sharp argued that the overwhelming
evidence established fact issues as to the City’s actual knowledge of the unreasonably
dangerous condition of the tie-down. In support of her argument, Sharp’s evidence
consisted of the parties’ written discovery, the depositions of Sharp and Vinton,
photos of the tie-down, Google Maps photos of the City’s airport, and the City’s
incident report following Sharp’s accident. Vinton testified that the City was aware of
the existence of the unmarked tie-down prior to Sharp’s accident. The photos of the
tie-down show that it was unmarked at the time of Sharp’s accident, that it blended in
with the tarmac, and that it was not readily distinguishable from the surrounding
tarmac surface or visibly apparent. The Google Maps photos show that there are
other tie-downs at the airport marked with a yellow “T” shape. Vinton testified that
these other tie-downs were painted in the “T” shape “[p]er Federal regulations” and
to direct aircraft how to approach the tie-down area. But when questioned why some
tie-downs had not been similarly marked, Vinton testified that the City had not
“found a need” to mark all the airport’s tie-downs. Sharp also pointed to Vinton’s
testimony that the City had marked other areas of the airport that the City had
determined to be trip hazards, including a curb at the airport’s terminal and a curb at
the airport’s fuel island. Additionally, the City’s incident report explains that Sharp
“caught her foot in one of the ‘tie-down’ hooks that [was] cemented in, in a
depression.” Vinton explained, in his “professional opinion,” that Sharp did not see
the in-ground tie-down depression and, as a result, fell. Notably, the report reflects
that the accident was not investigated.
While the question of whether a specific condition is unreasonably dangerous is
ordinarily a fact question, some “particularly innocuous or commonplace hazards are
not unreasonably dangerous as a matter of law.” United Supermarkets, LLC v. McIntire,
646 S.W.3d 800, 802 (Tex. 2022); see also Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d
411, 415 (Tex. 2010) (holding that a patch of ice on the road causing a patron to slip
and fall was not unreasonably dangerous as a matter of law); Brinson Ford, Inc. v. Alger,
228 S.W.3d 161, 163 (Tex. 2007) (holding that a pedestrian ramp did not pose an
unreasonable risk of harm as a matter of law); Brookshire Grocery Co. v. Taylor, 222
S.W.3d 406, 408–09 (Tex. 2006) (holding that the wet floor in front of a self-serve
soft-drink dispenser was not unreasonably dangerous as a matter of law); M.O. Dental
Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004) (holding that naturally accumulating
mud was not unreasonably dangerous as a matter of law).
In a recent opinion, the Supreme Court of Texas analyzed when a specific
condition may be unreasonably dangerous. See McIntire, 646 S.W.3d at 803.
condition is unreasonably dangerous if ‘there is a sufficient probability of a harmful
event occurring that a reasonably prudent person would have foreseen it[,] or some
similar event[,] as likely to happen.’” Id. (quoting Seideneck v. Cal Bayreuther Assocs., 451
S.W.2d 752, 754 (Tex. 1970)). To determine what constitutes an unreasonably
dangerous condition, a court must consider the following factors: “whether the
relevant condition was clearly marked, its size, whether it had previously caused
injuries or generated complaints, whether it substantially differed from conditions in
the same class of objects, and whether it was naturally occurring.” Id. at 803 (citing
Brinson Ford, 228 S.W.3d at 163; Brookshire Grocery Co., 222 S.W.3d at 408; M.O. Dental
Lab, 139 S.W.3d at 675–76; and Seideneck, 451 S.W.2d at 754). Here, based on the
The McIntire opinion was released after this court heard oral arguments in the
present case. See id. In that case, a customer sued a grocery store after she sustained
serious injuries from tripping over an approximately 3/4-inch divot in the grocery
store’s parking lot. Id. at 801. The court held that the divot was not unreasonably
dangerous as a matter of law, emphasizing that “in so holding, [the court] make[s] no
broad pronouncements on whether pavement defects constitute unreasonably
dangerous conditions, and [the court does] not opine on whether another larger or
differentially situated defect could pose an unreasonable risk of harm.” Id. at 805.
Because McIntire is distinguishable, we do not reach the same conclusion.
factors from McIntire, we cannot say that the condition of the tie-down was not
unreasonably dangerous as a matter of law.
Regarding whether the condition was clearly marked, it is undisputed that the
tie-down was not marked at the time of Sharp’s accident.
As for the size of the tie-down and the depression in which it was cemented,
Vinton testified that the tie-down opening was at least one-and-a-half inches, and it
was elevated less than an inch above the ground. Sharp asserts, based on the photos
she submitted with her response, that the depression is ten to twelve inches long and
about four inches wide, which is large enough for a person wearing shoes to step their
foot into, as Sharp did. And the City confirmed that Sharp caught her foot in the tiedown. In contrast, the “profoundly ordinary” divot in McIntire measured only 3/4 of
an inch deep, and unlike here, that divot did not encompass a partially buried, metal
tie-down hook that protruded from the ground. See 646 S.W.3d at 803.
That the tie-down had not previously caused injuries or generated complaints
does not establish as a matter of law that the tie-down was not unreasonably
dangerous. “Although such evidence would be probative, it is not required.” Pitts v.
Winkler Cnty., 351 S.W.3d 564, 573–74 (Tex. App.—El Paso 2011, no pet.) (citing Hall
v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.]
2005, pet. denied)). Vinton testified that the City was not aware of anyone else ever
falling on the airport tarmac. But Vinton also conceded to the possibility that
someone could have tripped and simply not notified the City.
Regarding whether the tie-down substantially differed from conditions in the
same class of objects, there were several tie-downs throughout the airport tarmac like
the one Sharp tripped over. However, unlike other tie-downs at the airport, this
specific tie-down was not marked with a yellow “T.”
Lastly, regarding whether it was naturally occurring, there is no dispute that the
condition of the tie-down did not naturally occur. Vinton testified that the United
States government seized the land and built the airport during World War II to
quickly train pilots. The airport tarmac, including the tie-downs, was originally built by
the U.S. government as part of its airfield operation.
3 In contrast, the parking lot divot
in McIntire was a “[t]iny surface defect in pavement” that was “ubiquitous and
naturally occurring.” 646 S.W.3d at 803. The supreme court compared the 3/4-inch
These facts are nearly identical to the facts of a federal New York case. See
Venturella v. United States, No. 83-CIV-2585, 1987 WL 15259 (E.D.N.Y. July 27, 1987).
In that case, Venturella was injured at a United States owned and operated park in
New York that had once been an Air Force base. Id. at *1. Part of the park had metal
tie-down loops implanted into the cement that had been used to hold down airplanes
when the area was an airfield. Id. While walking back to his parked car, Venturella
stepped into a four-inch depression and tripped over one of the metal tie-down loops,
causing him to fall. Id. Venturella’s resulting injuries required surgical intervention,
and he sued the U.S. government pursuant to the Federal Tort Claims Act. Id. (citing
28 U.S.C. § 1346(b)(1)).
Witness testimony established that the area of the park with the tie-downs was
not restricted to parking, the tie-downs were not marked, and there were no signs
warning guests to watch their step. Id. at *3. The district court concluded that the
government knew of the existence of the tie-downs and took no steps to protect
potential guests from the tie-downs’ obvious danger. Id. at *4. Thus, the court found
that under New York law, the omission of adequate warning of the existence of the
tie-downs and the improper maintenance of the premises amounted to negligence for
which the government was liable to Venturella. Id. at *4.
parking lot divot to the accumulation of mud on a man-made surface, “which may
occur ‘without the assistance or involvement of unnatural contact.’” Id. at 803 n.5
(quoting M.O. Dental Lab, 139 S.W.3d at 676). The court stated that claimants “will
encounter small divots like the one at issue . . . regularly[,] and accidents are ‘bound to
happen, regardless of the precautions taken by landowners.’” Id. Here, the condition
of the government-built tie-down was not a tiny surface defect in pavement, it was
not “ubiquitous and naturally occurring,” and it in fact occurred only as a result of the
assistance or involvement of unnatural contact. And ultimately, there exists a fact
question regarding whether, had the City taken precaution, Sharp’s accident would not
have been “bound to happen.” See id.
Nothing in the McIntire opinion suggests that all factors must be established in
favor of the claimant to show that a specific condition is unreasonably dangerous. See
generally 646 S.W.3d 800. Accepting as true all evidence favorable to Sharp, indulging
all inferences in her favor, and resolving all doubts in her favor, we conclude that
Sharp has raised a fact issue regarding whether the condition of the tie-down was
Finally, to prove actual knowledge, Sharp must show that the City had actual
knowledge “of the dangerous condition at the time of the accident.” City of Corsicana v.
Stewart, 249 S.W.3d 412, 413 (Tex. 2008). “[T]here is no one test for determining
actual knowledge[.]” Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.
2008). While courts may consider whether the landowner has received reports of prior
accidents as evidence of actual knowledge, lack of notice of similar accidents does not
conclusively negate actual knowledge. Id.; City of Houston v. Crawford, No. 01-18-00179-
CV, 2018 WL 4868306, at *4 (Tex. App.—Houston [1st Dist.] Oct. 9, 2018, no pet.)
(mem. op.) (citing City of Irving v. Seppy, 301 S.W.3d 435, 444 (Tex. App.—Dallas 2009,
no pet.)). Actual knowledge can sometimes be proven through circumstantial
evidence when the evidence “either directly or by reasonable inference” supports that
conclusion. State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002); Seppy, 301 S.W.3d at 444.
The City, as the entity responsible for the operation and maintenance of the
airport, knew of the existence of the unmarked tie-down prior to Sharp’s accident and
had known of its existence since the City first acquired the airport at the end of World
War II. The City knew that, although this tie-down was not marked, there were other
tie-downs at the airport that had been marked with a yellow “T.” The City also knew
of the existence of other trip hazards at its airport, acknowledging that they should be
painted or marked “to advise folks” of their potential hazard and in fact marking them
as such. And the fact that the City had not received reports of prior accidents does
not conclusively negate the City’s actual knowledge.
Accepting as true all evidence favorable to Sharp, indulging all inferences in her
favor, and resolving all doubts in her favor, we conclude that Sharp has raised a fact
issue regarding the City’s actual knowledge of an unreasonably dangerous condition.
Outcome: Because Sharp presented sufficient evidence to show there is a disputed
material fact regarding whether the condition was unreasonably dangerous, the trial
court properly denied the City’s plea to the jurisdiction on Sharp’s premises defect
claim. Accordingly, we affirm the trial court’s ruling.