City of El Paso, for Itself and on Behalf of Its Department, El Paso Water Utilities v. Loria Morales, Individually and on Behalf of the Estate of Luis Carlos Morales and as Next Friend of Luis Emanuel Morales, Jose Carlos Morales and Luis Carlos Morales, Jr., Minor Children

• Court: Court of Appeals of Texas
• Decided: August 20, 2004
• Docket: 08-02-00484-CV
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CITY OF EL PASO, For Itself and on Behalf        )

of its Department, EL PASO WATER                   )

UTILITIES,                                                           )

                                                                              )

Appellant,                          )               No.  08-02-00484-CV

v.                                                                           )                    Appeal from the

GLORIA MORALES, Individually and on             )                 384th District Court

Behalf of The Estate of LUIS CARLOS                 )

MORALES, Deceased, and as Next Friend of       )            of El Paso County, Texas

LUIS EMANUEL MORALES , LUIS                  )

CARLOS MORALES, JR., and JOSE                  )                   (TC# 2000-1259)

CARLOS MORALES, Minor Children,                 )

Appellees.                          )

MEMORANDUM  OPINION

The City of El Paso (Athe City@), for itself and on behalf of its department, El Paso Water Utilities (AEPWU@), brings this interlocutory appeal of the trial court=s denial of its motion for summary judgment pursuant to its plea to the jurisdiction.  See Tex.Civ.Prac.&Rem.Code Ann. ' 51.014(a)(5)(Vernon Supp. 2004).  In six issues, the City contends the trial court erred in denying its summary judgment motion because the cause of action brought by Appellees Gloria Morales, individually and on behalf of the Estate of Luis Carlos Morales, deceased, and as next friend of Luis Emanuel Morales, Luis Carlos Morales, Jr., and Jose Carlos Morales, minor children (collectively, AAppellees@) is barred under the Texas Tort Claims Act.  We affirm.

The El Paso County Lower Valley Water District (ALVWD@) is a municipal utility district which provides water service, including waste water and solid waste, to customers in Socorro and San Elizario in El Paso County.  In September 1995, the City acting through its Mayor and EPWU^[1] entered into a contract with LVWD to provide project management services as a professional Project manager for a complex multi-phase project, Phase III $45,483,712 Water & Wastewater Project, implemented to provide water and wastewater collection services to a portion of the City of Socorro, Texas and a community of San Elizario, Texas, service area (Athe Project@).^[2]  Financial assistance for the Project was provided by the Texas Water Development Board (ATWDB@) through the Economically Distressed Areas Program Account and the Colonia Wastewater Treatment Assistance Program, which consists of federal funds provided by the United States Environmental Protection Agency and state matching funds.

Commitment Condition No. 14 of TWDB Resolution 94-09, in which TWDB approved the Project, required that prior to release of any portion of the financing amounts, LVWD and EPWU execute a management agreement (the parties= 1995 contract) which specified the obligations to perform the Project management, engineering, and construction of the Project to the satisfaction of the TWDB Executive Administrator.  Under the terms of the 1995 contract, EPWU as primary Project Manager and Coordinator, was to issue Requests for Proposals and subcontract with professional engineering firms for the planning, design, bidding, construction engineering, resident project engineering, and land acquisition services, and provide construction phase engineering management services for the Project.  EPWU=s project management services, with the assistance of its selected professional engineering firms, were to include engineering, surveying, geotechnical services, environmental or other consulting services as required.  The 1995 contract specified that the contract commenced on September 12, 1995 and would continue until the construction of the Project was finally accepted by LVWD and the Executive Administrator of the TWDB unless terminated sooner under the contract terms.  Under the contract, LVWD agreed to compensate EPWU for its actual costs and reimburse allowable and annually adjusted indirect costs for the Project.

As part of project implementation, LVWD entered into a construction contract with Garney Companies, Inc. to serve as the contractor on part of the Project.  EPWU contracted with Parkhill, Smith & Cooper, a design and construction engineering firm, to design the water and wastewater system.  EPWU administered both contracts as project manager.  Garney was issued a Certificate of Final Completion effective February 23, 1999, when the construction work on its part of the Project was completed.  Issuance of the certificate indicates that the contractor has completed all its obligations under the contract and is entitled to receive final payment.  The prime contract between EPWU, as project manager, and LVWD, however remained in effect.

On or about September 2, 1999, Luis Carlos Morales, an equipment operator employee of LVWD, with a crew, which included Parkhill employee John Quintero, were sent out into the field to inspect the valves on the 36-inch water line because a service area was experiencing low water pressure and unexplained water loss.^[3]  Their assignment required that they check each water manhole in the affected area and make sure the valves were open.  One particular manhole was located on a farmer=s property, to which LVWD held a right-of-way easement.  The manhole by design was underneath about two and a half to three feet of dirt so that the farmer could continue cultivating his field above the water line.  The manhole was a circular concrete encasement, with a steel cover and dirt floor.  It was four-feet deep and inside it contained a

36-inch butterfly valve that controls water flow.  The manhole was designed to enable an employee to enter and perform valve operations inside the hole with only one way in or out.  The manhole had remained covered since the time it was built until the date of the incident -- almost a year.  This was the first buried manhole that had ever been opened on the water transmission line.

That morning, LVWD Water Superintendent Fernando Sanchez received an emergency assistance call from the site.  Within minutes, Mr. Sanchez arrived at the site.  When he arrived, Mr. Morales and Mr. Quintero were inside the manhole.  Two other crew members were venting the manhole with pieces of cardboard to circulate some air into the manhole.  Mr. Morales was non-responsive, but Mr. Quintero was responding to questions from the other crew members.  A volunteer fireman went into the manhole, wearing a breathing apparatus.  He administered CPR to Mr. Morales inside the manhole, tied a nylon rope around him, and Mr. Morales was pulled out of the hole with a backhoe.  Mr. Morales was then taken to the hospital by ambulance.  Mr. Quintero was also similarly removed from the manhole, given oxygen, and transported to the hospital.  Mr. Quintero survived the accident, but Mr. Morales, unfortunately, died at the hospital.  Tests performed afterwards revealed the presence of hydrogen sulfide in the manhole.

Although Mr. Sanchez did have a concern about a hazardous environment inside the manhole because of pesticides, no one inspected the manhole prior to the crew going out there nor were any tests conducted prior to entry.  No protective equipment, ventilators, respirators, or oxygen was provided to Mr. Morales.  The manhole did not provide any type of ventilation in its design.  From his experience and training, Mr. Sanchez believed that removing the manhole cover for at least thirty minutes would provide adequate ventilation.

On April 12, 2000, Appellees brought suit against LVWD, alleging inter alia that LVWD was grossly negligent or malicious and liable under Texas Civil Practice and Remedies Code ' 101.001 et seq.  In May 2000, Appellees amended their petition to add Parkhill, Smith & Cooper, Inc. (AParkhill@) as a defendant.  On December 26, 2000, Appellees filed a second amended petition, adding the following defendants: Garney Companies, Inc. (AGarney@), Public Service Board d/b/a El Paso Water Utilities, and Maria L. Morales, Individually and as Administrator of the Estate of Concepcion Trujillo, deceased.^[4]  In their third amended petition on February 7, 2001, Appellees specifically added the City as a defendant.  On March 2, 2001, the City filed its answer, which incorporated a plea to the jurisdiction.  In the pleading, the City specifically plead the affirmative defense of sovereign immunity.  The City also alleged that at all times associated with the incident, it was exercising a governmental function, i.e., the operation of a water and wastewater utility.

On July 24, 2001, the City filed a motion for traditional and no-evidence summary judgment pursuant to its plea to the jurisdiction.  In its motion, the City asserted that on traditional summary judgment grounds, it was entitled to summary judgment because its summary judgment evidence established that as of September 2, 1999, the date of Mr. Morales= injury, the Project was complete.  Specifically, the City claimed it had no employees at the Project site, it did not retain any right to supervise or control the Project site, and it did not have any actual supervisory duties under the contract.  Thus, the City did not owe a duty to Mr. Morales and the plaintiffs had no cause of action against it.  The City asserted that there was no evidence that plaintiffs= cause of action involved the use of a motor-driven vehicle or

motor-driven equipment in order to constitute waiver under the Texas Tort Claims Act.  The City claimed plaintiffs= petition failed to state any facts which fall within the Act=s waiver of immunity and they had no evidence which supports liability under the Act.  The City also argued that A[m]erely providing solicited advice to another political subdivision, about that other political subdivision=s own property, does not subject a municipality to liability under the Texas Tort Claims Act,@ therefore it remained entitled to sovereign immunity.

In their response, Appellees asserted that its summary judgment evidence presented genuine issues of material fact concerning the City=s involvement in the project at the time the incident occurred.  Specifically, Appellees argued that the City was liable as a joint venturer in the on-going project and that their claims against the City were not precluded by governmental immunity because the City was performing a proprietary function.

The trial court denied the City=s motion for summary judgment and the City now brings this interlocutory appeal.

Summary Judgment

In a traditional motion for summary judgment, the movant has the burden of showing, with competent proof, that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law.  See Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548‑49 (Tex. 1985); Duran v. Furr=s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.‑-El Paso 1996, writ denied).  When a defendant is the movant for summary judgment, it must either disprove at least one element of the plaintiff=s theory of recovery or conclusively establish all essential elements of an affirmative defense, such as sovereign immunity.  See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678‑79 (Tex. 1979); Camacho v. Samaniego, 954 S.W.2d 811, 817 (Tex.App.‑‑El Paso 1997, pet. denied). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment.  City of Houston, 589 S.W.2d at 678-79; Camaho, 954 S.W.2d at 817.  In determining whether there is a disputed material fact issue precluding summary judgment, all evidence favorable to the non-movant will be taken as true; every reasonable inference must be indulged in favor of the non‑movant and any doubts resolved in its favor.  Nixon, 690 S.W.2d at 548‑49.

A no-evidence summary judgment is essentially a pretrial directed verdict and as such, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.  Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.--El Paso  2000, no pet.).  The party seeking a no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the non‑movant would have the burden of proof at trial.  See Tex.R.Civ.P. 166a(i).  The movant must specifically state the elements as to which there is no evidence.  See Tex.R.Civ.P. 166a(i).  The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements.  See id.  To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of the non-movant=s claim or defense.  See id.; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998).  More than a scintilla of evidence exists when the evidence A>rises to a level that would enable reasonable and fair minded people to differ in their conclusions.=@  Havner, 953 S.W.2d at 711.  Less than a scintilla of evidence exists when the evidence is Aso weak as to do no more than create a mere surmise or suspicion@ of the existence of a fact, and the legal effect is that there is no evidence.  Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).  In reviewing a no-evidence summary judgment ruling, we view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences.  Havner, 953 S.W.2d at 711.

Notice under Texas Tort Claims Act

In the City=s first three issues, it contends that Appellees failed to provide it with timely notice of their negligence claim.  The City asserts that Appellees failed to follow the notice requirements of Tex.Civ.Prac.&Rem.Code Ann. ' 101.101 and argues that Appellees failed to prove the City had actual knowledge of the incident for notice purposes.  The City did not move for summary judgment on the basis of its alleged lack of notice.  An appellate court cannot consider issues not expressly presented to the trial court by written motion or response in the summary judgment proceeding.  See Tex.R.Civ.P. 166a(c); see also Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).  Issues One, Two, and Three are therefore waived for purposes of appeal.

Governmental or Proprietary Function

In Issues Four and Five, the City contends Appellees failed to offer any evidence that City property was involved, that the City=s actions were discretionary, or done for the benefit of the inhabitants of the City of El Paso.  Rather, the City asserts, Appellees made only bare allegations that the City=s involvement was proprietary.

Sovereign immunity protects the State of Texas, its agencies, and its officials from being sued absent legislative consent.  Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997).  A municipality, such as the City of El Paso, is immune from liability for its governmental functions unless that immunity is specifically waived. City of El Paso v. Hernandez, 16 S.W.3d 409, 414 (Tex.App.‑-El Paso 2000, pet. denied).  A Texas municipal government is only immune for its governmental functions; it has no immunity for any proprietary functions.  Williams v. City of Midland, 932 S.W.2d 679, 682 (Tex.App.--El Paso 1996, no writ).  When a municipality commits a tort while engaged in proprietary functions, it is liable to the same extent as a private entity or individual.  Texas River Barges v. City of San Antonio, 21 S.W.3d 347, 356 (Tex.App.--San Antonio 2000, pet. denied).  Under Section 101.0215 of the Texas Tort Claims Act, certain municipal functions are defined as governmental and others as proprietary.  See Tex.Civ.Prac.&Rem.Code Ann. ' 101.0215 (Vernon Supp. 2004).  The Texas legislature has defined governmental functions as Athose functions that are enjoined on a municipality by law and are given it by the state as part of the state=s sovereignty, to be exercised by the municipality in the interest of the general public . . . .@  Tex.Civ.Prac.& Rem.Code Ann. ' 101.0215(a).  Proprietary functions are Athose functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality . . . .@  Tex.Civ.Prac.& Rem.Code Ann. ' 101.0215(b); see also City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987)(proprietary function is one performed by a city, in its discretion, primarily for the benefit of those within the corporate limits of the city, rather than for use by the general public).  A municipality retains its immunity for activities which the legislature has defined as governmental, except to the extent immunity is waived by acts, omissions, and conditions as specified in the Act.^[5]  See Williams, 932 S.W.2d at 682.

On appeal, the City argues that among the governmental functions enumerated in Section 101.0215, its Water Utilities department typically engages in: sanitary and storm sewers; waterworks; engineering functions; and water and sewer service.  See Tex.Civ.Prac.&Rem. Code Ann. ' 101.0215(a)(9), (11)(30), and (32)(Vernon Supp. 2004).  The City concedes that acting as a program manager for LVWD does not fit neatly within the enumerated governmental functions in Section 101.0215.  However, it contends that under the facts of this case, the circumstances dictate that it was performing a governmental function.

In support of its summary judgment motion, the City attached the following evidence:  (1) the affidavit of Jason Seubert, Garney=s Contract Administrator/Project Manager; (2) the Engineer=s Certificate of Final Completion; and (3) an excerpt of deposition testimony from EPWU contract manager Catherine Fiore.  In Mr. Seubert=s affidavit, he stated that he was the Contract Administrator/Project Manager for Garney on the Project and was present at the job site during Garney=s involvement in project construction.  Garney began its work at the end of 1997, and in February 1999, Garney completed its construction of the Project.  According to Mr. Seubert, after February 23, 1999, the effective date of the Engineer=s Certificate of Final Completion, no Garney employees remained at the Project site and Garney did not have any right to control or supervise the Project site after that date.  In the excerpt from Ms. Fiore=s deposition testimony, she stated that no EPWU personnel were present at the accident site and no EPWU vehicle or other motor-driven equipment was involved in the incident.

In their response to the City=s summary judgment motion, Appellees included in its summary judgment evidence deposition testimony and affidavits from numerous individuals related to this case.  Donna Maxwell, an El Paso Water Utilities employee, was the project manager for the Phase III Water and Wastewater Facilities Project.  Ms. Maxwell was involved in working with LVWD on the Project to build new water lines.  Under the contract with LVWD, EPWU was to manage the Project, which was funded by TWDB.  Ms. Maxwell, as project manager, was one of two EPWU employees working on the Project.  Ms. Maxwell explained that her function as project manager was to interact with LVWD, the contractor, and the engineer to ensure that they performed under the terms of the contract.  Under the terms of the contract with TWDB, funds were sent to LVWD, but EPWU ran the Project, including determining which engineering firm would be hired to perform the Project.  More specifically, Ms. Maxwell stated that EPWU as project manager performed management functions as it related to the contract documents, including processing payment applications for the contractor from TWDB funds.

Ms. Maxwell stated that under the contract, EPWU received funds through a reimbursement for hours that designated employees devoted to the projects.  In the budget contained in the commitment between LVWD and TWDB there was a line item for payment of money to the City of El Paso for its work as project manager.  This funding was separate from the project funding reflected in the October 28, 1999 letter.  By its October 28, 1999 letter, the TWDB approved that the Project was complete in order to release the final project monies, but according to Ms. Maxwell that date was not the official completion of the job.  The final payment was not made until TWDB approved the Project with that letter.  Ms. Maxwell, however, indicated that she had worked on the Project since 1995 and that it was Aongoing@ as of the date of her deposition testimony, October 10, 2001.

Ms. Maxwell could not remember attending a meeting to discuss the water problem before Mr. Quintero and Mr. Morales went out into the field, but she remembered the problem with the water line.  LVWD was experiencing low pressures and unexplained loss of water and thought there was a closed valve on the 36-inch water line and there was an investigation conducted to detect that valve.  Ms. Maxwell learned of the problem from Parkhill by telephone and they discussed the possible problem.  LVWD did some pressure readings and fire hydrant readings, which confirmed there was a problem somewhere in the water line.  Ms. Maxwell stated that the idea of taking pressure readings was a joint idea between LVWD personnel, Parkhill, and herself.  The pressure readings in the area in question were found to be normal, however, the unexplained loss of water pointed to the possibility of a partially open valve on the 36-inch water line.  According to Ms. Maxwell, it was a joint decision to send people from Parkhill and LVWD into the field and check each manhole.  EPWU, LVWD, and Parkhill all knew that a crew would be sent out to go into the manholes to investigate.

Fernando Sanchez, LVWD=s water superintendent, explained the relationship between the parties in his deposition testimony.  According to Mr. Sanchez, EPWU manages all projects for LVWD and managed the program involving the job.  It was his understanding that EPWU, acting like a management company, hired Parkhill and Garney and that EPWU=s role was to design and supervise the job.  EPWU was overseeing the project, which included selecting the materials, selecting the type of system to use, reviewing the plans and specifications, and working with the consultants and contractors.  To Mr. Sanchez=s knowledge, EPWU was the one that inspected the job during construction for compliance to specifications.  Once LVWD accepted the project, EPWU=s responsibility ended.

Mr. Sanchez stated that in terms of the project being finished as a whole by September 2, 1999, Awe had some complications with this project as to end the project altogether so we had been checking manholes maybe already months in advance on that system to make sure that all of our valves were open.@  For months before September 2, 1999, crews had been checking manholes on the new line.  Mr. Sanchez believed that as of September 2, 1999, EPWU was still involved in this project

EPWU contracts manager Catherine Fiore stated that her duties and responsibilities as an EPWU contract administrator included writing, assisting in negotiation, and administering design engineering and construction contracts.  Ms. Fiore explained that the contract between EPWU and LVWD was written at the request of TWDB for the Public Service Board, i.e., the City of El Paso, to assist the LVWD in administering and managing all the projects that were issued in the economically distressed areas program.  The contract was a management agreement to cover EPWU=s role to assist LVWD in managing all the design and construction contracts that would be issued using Phase III funding bloc issued by TWDB.  According to Ms. Fiore, LVWD was relying on EPWU for the design and construction decisions on the Project.  Ms. Fiore stated that the job involving Garney was substantially completed on January 18, 1999.  The certificate of final completion on the Garney bid was issued effective February 23, 1999 because the construction work was completed.  The certificate to Garney was issued on March 15, 1999 by Parkhill, approved by EPWU on March 25 and executed by LVWD on March 30.^[6]  Ms. Fiore explained that the certificate of final completion means that the contractor has completed all its obligations under the contract and is entitled to receive final payment.  According to Ms. Fiore, the prime contract between EPWU as project manager and LVWD had still not been completed.

The summary judgment evidence in this case shows that the City entered into a long-term contract with LVWD to provide project management services for construction of a multi-phase complex project.  The record also contains a resolution adopted by the City Council on September 12, 1995, which granted authority to enter the management contract.  The resolution states that Ait is in the public interest of the citizens of El Paso to assist other water utilities located outside the city limits of El Paso County if the City of El Paso provides water and water [sic] and wastewater system management services; management services for water and wastewater design and construction projects, and assistance in submitting applications for financial assistance to implement water and wastewater system projects . . . .@  While EPWU generally performs certain governmental functions listed in Section 101.0215(a), namely sanitary and storm sewers; waterworks; engineering functions; and water and sewer service, its contract with LVWD was for professional management services related to LVWD=s activities in these areas, not its own.  See Tex.Civ.Prac.&Rem.Code Ann. ' 101.0215(a)(9), (11), (30), (32).  The laundry list of governmental functions in Section 101.0215(a), however, is not exhaustive.  See City of Houston v. Southwest Concrete Construction, Inc., 835 S.W.2d 728, 730 (Tex.App.--Houston [14th Dist.] 1992, writ denied). 

Under Texas common law, determining whether a city is performed a proprietary or governmental function has generally been evaluated by examining whether the act performed by the city as the agent of the State in furtherance of general law for the interest of the public at large, or whether it is performed by the city, in its discretion, primarily for the benefit of those within the corporate limits of the city, rather than for the use by the general public.  See City of Gladewater, 727 S.W.2d at 519; Bailey v. City of Austin, 972 S.W.2d 180, 192-93 (Tex.App.--Austin 1998, pet. denied); Southwest Concrete Construction, Inc., 835 S.W.2d at 730‑31.  The key difference between a proprietary and governmental function is that the city functions in its governmental capacity when it performs functions mandated by the State.  Truong v. City of Houston, 99 S.W.3d 204, 210 (Tex.App.--Houston [1st Dist.] 2002, no pet.). 

In the City=s reply brief, it argues that it was directed by the State to perform its duties under the contract, that LVWD could not obtain funding for its construction project from TWDB because it felt LVWD did not have the requisite experience to handle the Project, and that TWDB would lend the money if LVWD hired a project manager with the requisite experience, which turned out to be EPWU.  Since TWDB is a state agency, the City asserts, all contract requisites, regulations, and procedures handed down by TWDB to the City were state-mandated and not merely assumed as a matter of discretion.  The record, however, does not support the City=s contentions as there is no evidence that EPWU was required to serve as the project manager for the Project.^[7]  The City also asserts on appeal that EPWU services were performed in the interest of the inhabitants of Socorro and San Elizario, not for the benefit of inhabitants of the municipality of El Paso.  While it is clear that the communities of Socorro and San Elizario would benefit primarily from EPWU=s water and wastewater system management services, the City entered into the contract based in part on its determination that it was in the Apublic interest of the citizens of El Paso to assist other water utilities located outside the city limits in El Paso County . . . .@  Moreover, under the contract the City received compensation for its actual costs and was reimbursed for allowable and annually adjusted indirect costs.

After reviewing the summary judgment evidence, we find that Appellees presented some evidence which raises a genuine material fact issue as to whether the City was performing a proprietary function.  If the City was performing a proprietary function, the Texas Tort Claims Act does not apply.  See City of Corpus Christi v. Absolute Industries, 120 S.W.3d 1, 4 (Tex.App.‑-Corpus Christi 2001, pet. denied)(Tort Claims Act does not apply and the municipality is subject to the same duties and liabilities as those incurred by private persons and corporations when a tort is committed in the performance of a proprietary function).  Moreover, there is some evidence that the City was involved in the Project as project manager when the incident occurred.  Therefore, the trial court did not err in denying the City=s traditional and no-evidence summary judgment motion.  Issues Four and Five are overruled.  Given our disposition of these issues, we need not address the City=s remaining issue concerning its liability under the Tort Claims Act.  

For the reasons stated above, we affirm the trial court=s order.

August 20, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

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^[1] In deposition testimony, Catherine Fiore, EPWU contracts manager, explained that EPWU is a department of the City, but it is operated by an independent board.  EPWU is a

self-sustaining organization that is not funded by taxes, but rather is supported by water rates.  Witnesses referred to EPWU as PSB, or Public Service Board, interchangeably, therefore for the sake of clarity, we will refer to the entity as EPWU throughout this opinion.

^[2] In the record, the Project is also referred to as LVEP (or EDAP) Phase III CN Common Water & Wastewater Project AA.@

^[3] Mr. Quintero stated in deposition testimony that the water problem and possible solutions were discussed at a meeting at the Jonathan Rogers Water Treatment Plant which he and various employees from Parkhill, LWVD, and EPWU attended.  In deposition testimony, Dan Knorr, a Parkhill director and employee, also described the meeting about the water problem and stated that the meeting was held on EPWU facilities.

^[4] Defendant Maria L. Morales, Individually and as Administrator of the Estate of Concepcion Trujillo, deceased, was later dropped as a party to this suit.

^[5] The Texas Tort Claims Act waives sovereign immunity from liability in three general areas:  Ause of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.@  Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000);  see also Tex.Civ.Prac.&Rem.Code Ann. ' 101.021 (Vernon 1997).  The Act also waives immunity from suit for all claims for which it waives liability.  See Tex.Civ.Prac.&Rem.Code Ann. ' 101.025 (Vernon 1997).

^[6] Summary judgment evidence, however, also includes an affidavit from Ernesto Gomez, a principal in C & G Septic Systems, a subcontractor for Garney, in which Mr. Gomez states that his company continued to perform work and repairs all summer of 1999 under Garney=s direction and control at sites which were part of the Project, including the manhole on the farm. 

^[7] While the City directs our attention to a recital in the parties= contract, which states that Commitment Condition No. 14 of TWDB Resolution 94-09 requires that prior to the release of any portion of the financing amounts, LVWD and EPWU Ashall execute and deliver to the TWDB a management agreement . . .,@ the contract does not state that EPWU was mandated by the State to be the project manager.