No waiver of immunity for city contract to install sewer lines on property says 4th Court of Appeals
Twanda Brown v. City of Ingram, 04-19–00508-CV (Tex. App. — San Antonio, Nov. 20, 2019).
In this suit, the San Antonio Court of Appeals affirmed the granting of the City’s plea to the jurisdiction related to counterclaims regarding utility services.
The City of Ingram (“the City”) sued Brown and eight other defendants, seeking a declaratory judgment that its ordinances regarding penalties and permits for utilities and wastewater are “valid and reasonable exercises of the City’s police powers.” Brown answered the City’s suit and asserted a counterclaim for breach of contract, alleging the City “breached its Contract for Wastewater Services by knowingly permitting an unqualified, unlicensed subcontractor” to connect her property to the City’s sewer system. Brown alleged the subcontractor’s negligence “sever[ed] a gas line and caus[ed] damages to Brown and her property.” The City filed a plea to the jurisdiction which was granted. Brown appealed.
The Texas Tort Claims Act makes sanitation, water, and sewer services governmental functions, thereby entitling the City to immunity absent a waiver. The City’s actions of connecting residents to the city’s sewer system is a governmental function. Immunity is waived for breach of contract claims for goods or services provided to the entity. Brown’s pleadings allege the purported contract was an agreement to provide goods or services to Brown (i.e. construction and installation of service lines), not the other way around. Because any purported contract does not involve the provision of goods or services to the City, it is not a “contract subject to” the waiver in Texas Local Government Code chapter 271 subchapter I.
Several days after the trial court granted the plea to the jurisdiction, the City filed a motion to strike an affidavit submitted by the City on the basis that counsel for the City learned the affiant made a mistake as to the location of a photograph. Brown filed an objection but also sought in the alternative, the trial court re-open the hearing. The court noted the record does not reflect whether the trial court ruled on either. However, the court held the issue is irrelevant to the ability to rule on the appeal as it does not change the analysis of the type of contract involved. Finally, the court denied the City’s request for sanctions as they do not believe the claims “lacked any reasonable basis in law.”
If you would like to read this opinion click here. The panel consists of Chief Justice Marion, and Justices Alvarez and Chapa. Opinion by Chief Justice Marion. The attorney for Brown is listed as Roger Gordon. The attorneys listed for the City are Charles E. Zech, Scott Micheal Tschirhart and Llse D. Bailey.
