Brown & Root, Inc. v. City of Cities Mun. Utility Dist.
| Decision Date | 28 August 1986 |
| Docket Number | No. 01-85-01050-CV,01-85-01050-CV |
| Citation | 721 S.W.2d 881 |
| Parties | BROWN & ROOT, INC., Appellant, v. CITY OF CITIES MUNICIPAL UTILITY DISTRICT, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Reagan W. Simpson, W. Mark Lanier, Fulbright & Jaworski, Houston, for appellant.
J. Ron Young, Mark W. Brooks, Rowe & Young, Houston, for appellee.
Before EVANS, C.J., and WARREN and JACK SMITH, JJ.
This is an appeal from the trial court's refusal to grant Brown & Root's motion to set aside a summary judgment. The appellant asserts one ground of error alleging that material fact issues exist and that the motion to set aside the summary judgment should have been granted.
Two families, plaintiffs in the trial court, purchased homes in a subdivision located in the appellee's utility district. Thereafter, their homes allegedly became uninhabitable because of foundation problems. Since they were unable to obtain any satisfaction from their numerous complaints, they sued the developer of the subdivision, the appellee utility district, the engineer who designed a drainage culvert, and Brown & Root, who was the general contractor on the installation of the drainage culvert. The plaintiffs alleged that the drainage culvert was improperly designed and installed in a manner which caused subsidence and resulted in foundation problems.
The plaintiffs alleged that they suffered property damage, "mental anxiety" and "mental pain and suffering" due to the condition of their homes. They asserted two grounds of recovery, negligence and implied warranty.
The appellee moved for summary an interlocutory judgment on the basis that it was a governmental agency and was, therefore, immune from liability under the doctrine of sovereign immunity. The record before this court reflects that there was no opposition to the appellee's motion for judgment. The trial court granted the appellee's motion on May 24, 1982. This left Brown & Root, the engineer, and the developer defending the Plaintiffs suit.
Approximately three years later, in April, 1985, Brown & Root moved to set aside the interlocutory summary judgment. It claimed that the appellee was exercising a governmental proprietary function, that the appellee could be liable to the plaintiffs under the Texas Tort Claims Act, and that a fact issue existed regarding the appellee's liability to the plaintiff.
The court denied Brown & Root's motion and in its order noted that Brown & Root was attempting to set aside the summary judgment by asserting a cross-action against the appellee. Thereafter, the court granted the appellee's motion to sever itself from the original lawsuit filed by the plaintiffs, which action made the interlocutory judgment a final judgment.
The Texas Tort Claims Act was enacted by the legislature in 1970. The statute provided for the waiver of governmental immunity in three general areas: the use of publicly owned automobiles, premises defects, and injuries arising out of conditions or uses of property. Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976). Since there was no publicly owned automobile involved and no original premises defects when the plaintiffs purchased the property, the only basis for Brown & Root's cross-claim would have been for injuries to the plaintiffs arising out of conditions or uses of property.
Brown & Root relies upon the allegations of negligence made in the plaintiffs' petition as a basis of its cause of action. The plaintiffs alleged that the appellee was negligent as follows:
A. In failing to design the culvert such that damages would not result to the abutting property.
B. In failing to cause the culvert to be installed in such manner that damages would not result to the abutting property.
C. In failing to maintain the culvert so that damages would not result to the abutting property.
D. In installing the culvert immediately abutting lots upon which Defendant knew that houses would probably be built in close proximity to the back line of the property, and above the portions of the lots which were excavated and filled in the installation of the culvert.
E. In failing to assure that the culvert, the excavation for the culvert and the existing drainage ditch were properly backfilled and the soils properly compacted to support the houses to be constructed on the lots.
As heretofore stated, Brown & Root's sole basis for asking this court to reverse the trial court is that the original plaintiffs asserted a cause of action against the appellee that qualifies as an exception to the doctrine of governmental immunity and that the appellee may be held liable for any personal injuries suffered by the plaintiffs. Brown & Root contends that the plaintiffs sought mental anguish damages as part of their recovery; that such relief constitutes a personal injury under the Texas Tort Claims Act; and that the appellee is, therefore, subjected to liability.
The appellee responds by stating that the plaintiffs' allegations do not fall within any exception to its governmental immunity. It asserts that the plaintiffs have alleged no personal injury but only mental anguish which requires proof of a physical injury before a recovery is available.
We first consider the appellee's contention that the original plaintiffs' allegations do not fall within any exception to its governmental immunity. The parties in the instant case agree that the appellee was organized pursuant to statutory authority and is a state governmental agency. There is also no dispute that if the appellee is to be held liable under the Act, the 1973 amendment providing that the government may be held liable for property damages is not applicable. See DeAnda v. County of El Paso, 581 S.W.2d 795, 796 (Tex.Civ.App.--El Paso 1979, no writ). At the time made the basis of the instant suit, the Act provided, in relevant part, that:
Sec. 3. Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by...
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