Davis v. City of Palestine
| Decision Date | 27 August 1997 |
| Docket Number | No. 12-95-00180-CV,12-95-00180-CV |
| Citation | 973 S.W.2d 319 |
| Parties | Harold DAVIS, et ux Patricia Ann Davis, Appellants, v. CITY OF PALESTINE, Appellee. |
| Court | Texas Court of Appeals |
James C. Boone, Jr., Palestine, for appellants.
Charles T. Jeremiah, Houston, for appellee.
Harold Davis and Patricia Ann Davis ("Davis") sued the City of Palestine ("the City") pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 101.001 et seq., commonly known as the Texas Tort Claims Act ("the Act"), for damages to their business property. They also alleged an unconstitutional taking of that property. The trial court rendered summary judgment in favor of the City. On appeal, Davis contends that summary judgment was improper because he stated a cause of action under the Act, sovereign immunity did not protect the City, and the City failed to meet its summary judgment burden by establishing that no genuine issue of material fact existed as to all of the elements of its affirmative defenses or at least one element of each of Davis' causes of action. We reverse and remand for further trial court proceedings.
By way of his Second Amended Petition, Davis alleged that the City installed tin culverts in the Wells Creek arm of its storm drainage system in 1970. That same year, a 50 X 84 building was built on top of that drainage system. Davis rented and then purchased the building, utilizing it as an automotive and hardware business. He asserted that in 1991, the defective condition of the culverts caused the foundation of Davis' building to crack, crumble and twist, rendering the building unfit for the operation of his business. He argued that the City was negligent in failing to inspect the storm drainage system, in failing to repair the dangerous condition in the storm drainage system, and in failing to maintain the support to his premises. Davis asked for compensation for property damage and loss of profits, as well as mental anguish and pain. He also alleged that the damage to his property constituted an uncompensated taking, in violation of Art. I, § 17 of the TEXAS CONSTITUTION.
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562; Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301-02 (Tex.1990). We must, therefore, view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47.
When a defendant moves for summary judgment based upon an affirmative defense, it bears the burden to expressly present and conclusively prove all elements of the affirmative defense as a matter of law so that no genuine issue of material fact exists. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). The movant-defendant must come forward with summary judgment evidence with respect to each element of the affirmative defense. Id. Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to a summary judgment motion filed on the basis of an affirmative defense. Palmer v. Enserch Corp., 728 S.W.2d 431, 437 (Tex.App.--Austin 1987, writ ref'd n.r.e.).
When the trial court does not state the specific grounds on which the summary judgment was granted, the reviewing court must consider whether any theories set forth in the motion will support a summary judgment. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). Summary judgment must be affirmed if any of the theories advanced are meritorious. Id.
In the instant case, the trial court did not specify upon what basis it granted judgment for the City. Consequently, we must address and evaluate every theory set forth in the governmental entity's motion to determine if summary judgment was proper. The City's theories were as follows: 1) the City neither owed nor breached a duty; 2) the City has sovereign immunity for its construction or installation of the tin culverts prior to 1970; 3) governmental immunity bars Davis' claims; 5) Davis complains of an Act of God; 6) qualified immunity of City officials preserve the City's sovereign immunity; 7) the statute of limitations and statutory notice provisions bar Davis' claims; and 8) any inverse condemnation or takings claim fails as a matter of law.
Davis, in his second point of error, argues that summary judgment was not proper upon the basis that his claim under the Act was precluded by § 101.061, which states that a governmental entity has sovereign immunity for claims based on acts or omissions that occurred before January 1, 1970. TEX.CIV.PRAC. & REM.CODE ANN. § 101.061 (Vernon 1986); see also Barron v. Texas Dep't of Transp., 880 S.W.2d 300, 302 (Tex.App.--Waco 1994, writ denied). And in his sixth point of error, he argues that it was error for the court to grant judgment upon failure to satisfy statutory notice provisions or failure to file suit within the limitations period. This summary judgment argument was also based upon the City's position that the negligence, if any, occurred before January 1, 1970. In its Motion for Summary Judgment, the City offered the affidavit of Tom Thorsen, building official for the City. Thorsen testified that to his knowledge, the culverts were installed before 1970. He also stated that he was employed by the City for eighteen years, which would place his employment date many years after 1970. In his response to the City's motion, Davis testified that the culverts were not installed until 1970, and that he knew this to be true because he personally saw the unfinished drainage system in May of 1970. We hold that the City failed to establish that there was no fact issue as to the date the City installed the culverts. We sustain points of error two and six.
Davis argues, in his third point of error, that the trial court erred in granting summary judgment because his claim did not fall within the limited waiver of immunity defined by the Texas Legislature. We must therefore analyze the concept of sovereign immunity and apply it to the instant case.
Sovereign immunity means that governmental entities may not be sued in tort, and governmental entities are protected from vicarious liability for the tortious acts of their agents or employees acting in the scope of their employment. The doctrine of sovereign immunity, however, does not apply to a municipality's performance of a "proprietary" rather than a "governmental" function. As a result, under the common-law, a municipality can be held liable in tort for injuries or damages resulting from the performance of a "proprietary function." See Hodge v. Lower Colo. River Auth., 163 S.W.2d 855, 856 (). Although storm sewers were formerly classified as a proprietary function under Texas common law, and therefore not protected by sovereign immunity, they are now statutorily classified as a governmental function. TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215 (Vernon Supp.1988); Dalon v. City of DeSoto, 852 S.W.2d 530, 537 (Tex.App.--Dallas 1992, writ denied). As a governmental function, drainage systems are protected by sovereign immunity unless, upon further analysis of the Act, that immunity has been waived. McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex.App.--Fort Worth 1991, no writ). A claim must arise from one of the following exceptions for the City to waive its immunity in regards to storm drainage systems:
A governmental unit in the state is liable for:
(1) property damage, personal injury and death proximately caused by the wrongful act or omission or the negligence of any employee acting within the scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or 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 (Vernon 1986). To state a cause of action under the Act, Davis' pleadings must allege facts showing that the governmental entity's negligence was the proximate cause of his injuries and that the negligent conduct involved the use or condition of tangible personal or real property. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex.1983); Washington v. City of Houston, 874 S.W.2d 791, 795 (Tex.App.--Texarkana 1994, no writ). To allege a claim involving the "condition" of property, it is sufficient to allege that defective or inadequate property contributed to the injury. Salcedo, 659 S.W.2d at 31-2. And "use" has been defined as "to put or bring into action or service; to employ for or apply to a given purpose." Id. at 33.
In his petition, Davis alleged that the damage to his property was caused by the City's failure to inspect the drainage system and culverts, its failure to repair them, and its failure to maintain the support to his premises. Davis'...
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City of Palestine v. Davis, 97-1170
...the Davises' property. The trial court granted summary judgment for the City, but the court of appeals reversed and remanded for trial. 973 S.W.2d 319. This Court vacates the judgment of the court of appeals and remands the cause to that court for further proceedings in light of City of Tyl......