Evans, Leroy, Artemio Alvarez, Jimmy Carmona, Criselda Carmona, Deena Dick, Jose Garcia, Jose Garza, Jr., Luis Jimenez, Gracie Charles and Joe Castillas v. City of Bishop, Texas

• Court: Court of Appeals of Texas
• Decided: August 10, 2000
• Docket: 13-99-00288-CV
• Status: Published

Opinion

NUMBER 13-99-288-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

LEROY EVANS, ET AL.

, Appellants,

v.

CITY OF BISHOP, TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 347th District Court of Nueces County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez

Appellants Leroy Evans, Artemio Alvarez, Jimmy Carmons, Crisilda Carmons, Deena Dick, Tela Garcia, Jose Garcia, Jr., Luis Jimenez, Gracie Casillas, Charles Casillas, and Joe Casillas, appeal an order granting summary judgment in favor of the City of Bishop (the City). Appellants are homeowners who reside near a storm sewer maintained by the City. In October 1997, the City experienced heavy rains and flooding for several days. After sustaining property damage to their homes as a result of this flooding, appellants sued the City under the Texas Tort Claims Act, claiming the City's failure to properly maintain the storm sewer caused the flooding that damaged appellants' property. The City moved for summary judgment on the basis of governmental immunity and the trial court granted the City's motion. By four issues, appellants generally contend that the court erred in granting summary judgment on the basis of immunity. We affirm.

It is proper to grant a defendant's motion for summary judgment when the evidence establishes (1) that there is no genuine issue of material fact concerning any essential elements of a plaintiff's cause of action, see Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or (2) all essential elements of an affirmative defense as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex. 1984) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)). In reviewing an order granting summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant's favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985).

In their first and second issues, appellants contend the City was not immune from suit for property damage and, therefore, the trial court improperly granted the City's motion for summary judgment. We disagree.

Governmental units are generally immune from tort liability except where that immunity has been specifically waived by the legislature. See Dallas County Mental Health and Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Section 101.021 of the Texas Civil Practice and Remedies Code states that a governmental unit of the state, performing a government function, is liable for property damage caused by one of its employees acting within the scope of employment only if (1) the property damage arises from the operation or use of a motor vehicle or motor-driven equipment; (2) the employee would be personally liable to the claimant pursuant to Texas law; and (3) the governmental unit would be liable to the claimant under Texas law if the unit were a private entity. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).

The City's maintenance of the storm sewer is a governmental function. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(9) (Vernon Supp. 2000) (operation and maintenance of storm sewer is governmental function).⁽¹⁾ Because the City's alleged failure to properly maintain the storm sewer, which thereby allegedly caused the flood damage, did not arise from the use of a motor vehicle or motor-driven equipment, appellants cannot avail themselves of the Texas Tort Claims Act's waiver of immunity for property damage. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997); City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). Therefore, we conclude that the City is immune from liability as a matter of law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).

Because we conclude the City is immune from suit, we need not address appellants' remaining contentions. See Carr v. Brasher, 776 S.W.2d 576, 569 (Tex. 1989).

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 10th day of August, 2000.

1. Appellants suggest that the City's acts with respect to the storm sewer were proprietary rather than governmental. There is no evidence in the record to support this contention. Pursuant to section 101.0215(9), the City's maintenance of the storm sewer is clearly a governmental function. See Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(9) (Vernon Supp. 2000).