City of Plano v. Homoky, 05-08-01461-CV.

CourtCourt of Appeals of Texas
Citation294 S.W.3d 809
Docket NumberNo. 05-08-01461-CV.,05-08-01461-CV.
PartiesCITY OF PLANO, Appellant v. Sandra HOMOKY, Appellee.
Decision Date25 August 2009
294 S.W.3d 809
CITY OF PLANO, Appellant
Sandra HOMOKY, Appellee.
No. 05-08-01461-CV.
Court of Appeals of Texas, Dallas.
August 25, 2009.

[294 S.W.3d 811]

Paul K. Pearce, Jr., Robert J. Davis, Timothy A. Dunn, Matthews, Carlton, Stein, Shiels, Pearce, Eden, Dunn & Knott, Dallas, TX, for Appellant.

Hardin R. Ramey, Dallas, TX, for Appellee.

Before Justices MOSELEY, O'NEILL, and MURPHY.


Opinion By Justice MURPHY.

Appellee Sandra Homoky sued the City of Plano under a theory of premises liability for injuries she sustained when she tripped and fell in a City-owned golf course clubhouse. The City appeals the denial of its plea to the jurisdiction, contending its governmental immunity was not waived under the Texas Recreational Use Statute or the Texas Tort Claims Act (TTCA). We reverse the trial court's order and dismiss Homoky's action for lack of subject matter jurisdiction.


The City owns and operates the Pecan Hollow Golf Course, which is open to the

294 S.W.3d 812

public for golfing and other activities. The City also owns and operates the clubhouse located on the golf course premises and a bar and grill restaurant located inside the clubhouse. After playing a round of golf, Homoky tripped and fell on a board while walking through the clubhouse. The board was part of an arrangement constructed by a City employee and consisted of five other boards placed end to end and topped with planters.

Homoky sued the City under the TTCA, asserting liability based on the City's performance of a proprietary function or, alternatively, based on a premises defect. Both parties presented evidence as part of the joint summary judgment and jurisdictional proceeding. The trial court denied the City's motion and plea in a single order, without specifying the basis for the denial. The City perfected its interlocutory appeal. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon 2008).

On appeal, the City argues immunity because (1) operation of a golf course is a governmental function; (2) Homoky failed to allege waiver through gross negligence under the recreational use statute; and (3) alternatively, Homoky failed to plead waiver under the TTCA. In its reply brief, the City also argues no waiver under the TTCA because its questioned actions were discretionary. See id. § 101.056. Because our jurisdiction does not extend to issues not raised in the City's plea, we do not address the City's new argument under section 101.056. See City of Dallas v. First Trade Union Savs. Bank, 133 S.W.3d 680, 687 (Tex.App.-Dallas 2003, pet. denied).

Standard of Review

We review de novo a challenge to the trial court's subject matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Perez v. City of Dallas, 180 S.W.3d 906, 909 (Tex. App.-Dallas 2005, no pet.). When a plea to the jurisdiction challenges the pleadings, we look to whether Homoky, as the plaintiff, has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)); City of Dallas v. Heard, 252 S.W.3d 98, 102 (Tex.App.-Dallas 2008, pet. denied). We liberally construe the plaintiff's pleadings in favor of jurisdiction, and we look to the plaintiff's intent, accepting as true the facts alleged. Miranda, 133 S.W.3d at 226, 228.

Where, as here, the City's plea also challenges the existence of jurisdictional facts, we must consider relevant evidence to resolve the jurisdictional issues. Id. at 227. This standard mirrors our summary judgment standard under Texas Rule of Civil Procedure 166a(c) and places the burden on the plaintiff to assert facts that affirmatively demonstrate the trial court's jurisdiction. Id. at 227-28. Once the plaintiff meets its burden, the governmental unit must contend the trial court lacks subject matter jurisdiction, supporting its contention with evidence. Id. at 228. The plaintiff is then required to show only that a disputed fact issue exists. Id.; Heard, 252 S.W.3d at 102. If the relevant evidence fails to raise a fact question or is undisputed on the jurisdictional issue, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228.

Governmental Immunity and the Texas Tort Claims Act

Governmental immunity protects political subdivisions of the State, including

294 S.W.3d 813

cities, counties, and school districts, from suit and liability. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 & n. 3 (Tex.2003); see also TEX. CIV. PRAC. & REM.CODE ANN. § 101.001(3)(B) (defining "governmental unit" to include cities). A city's immunity from suit depends on whether its actions are characterized as governmental or proprietary functions. Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex.2006). Generally, governmental functions are those acts involving governmental matters done for the public's benefit. Id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a) (providing a nonexclusive list of acts classified as governmental for tort claims purposes).

A city receives no protection from suit for torts committed in the performance of its proprietary functions. Tooke, 197 S.W.3d at 343. A city's proprietary functions are those conducted "`in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government.'" Id. (quoting Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992, 993 (1949)); see also TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(b) (providing a nonexclusive list of acts classified as proprietary for tort claims purposes). If a city is negligent while engaged in the performance of a proprietary function, it is liable to the same extent as a private entity or individual. Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex.1986); Martinez v. City of San Antonio, 220 S.W.3d 10, 14 (Tex.App.-San Antonio 2006, no pet.).

Waiver of Immunity

The Legislature created a limited waiver of immunity under the TTCA, permitting suits against governmental units for injuries caused in three circumstances: (1) by the operation or use of publicly-owned vehicles or equipment; (2) by a condition or use of tangible personal or real property; and (3) by premises defects. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.025(a), 101.021(1)(A) & (2), 101.022. A plaintiff must plead sufficient facts to invoke a waiver of immunity under the TTCA. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

The type of duty owed a plaintiff is part of the waiver analysis under the TTCA. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.021 & 101.022. In premises defect cases, the governmental unit owes "only the duty that a private person owes to a licensee on private property." Id. § 101.022(a). If the plaintiff pays to use the premises, the governmental unit's duty is that owed to an invitee. Id.; Perez, 180 S.W.3d at 910.

The Texas Recreational Use Statute provides a further limitation on the city's liability as a premises owner if the plaintiff engages in recreation on the premises. TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.001.004; Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659-60 (Tex.2007). If a plaintiff engages in recreation on city-owned premises, chapter 75 controls over the TTCA and limits the city's duty to that owed a trespasser. TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.003(g) (chapter 75 controls over chapter 101 to the extent chapter 75 limits liability of a governmental unit under circumstances in which the governmental unit would be liable under chapter 101), 101.058 (same), 75.002(c)(2), (f) (duty owed to trespasser). Thus, when applicable, the recreational use statute operates to raise the plaintiff's burden of proof to show gross negligence, malicious intent, or bad faith. Id. § 75.002(d); Flynn, 228 S.W.3d at 659-60; City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002).

294 S.W.3d 814
Governmental versus Proprietary Functions

The City first argues the clubhouse is part of the City's ownership, operation, and maintenance of the golf course, which is a governmental function under the TTCA. The Pecan Hollow Golf Course is located in a city-owned park and includes the course, driving range, practice putting green, clubhouse, and parking lot. The City equates its operation of the golf course to that of a "park" or "recreational facility" under the TTCA and argues its immunity is not waived for the torts asserted by Homoky. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a)(13), (23).

Homoky disputes the City's characterization. She depicts the City's actions as "interior design" and claims her injuries arose from the City's negligence in failing to use reasonable care in "decorating" the clubhouse, not in the operation of a municipal golf course.

We turn first to the question of whether the operation of a golf course constitutes a governmental or proprietary function under the TTCA. If the City's actions are listed as a governmental function in the TTCA, we have no discretion, regardless of the City's motives, to declare the actions as proprietary. Id. § 101.0215(c); Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 357 (Tex. App.-San Antonio 2000, pet. denied). Although "golf course" is not among those governmental functions listed in section 101.0215(a), the list does include such functions as "parks and zoos" and "recreational facilities, including but not limited to swimming pools, beaches, and marinas." TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a)(13), (23). As interpreted by Texas courts and the...

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