In the Interest of K. K. M., a Child--Appeal from 307th District Court of Gregg County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2010 » In the Interest of K. K. M., a Child--Appeal from 307th District Court of Gregg County

State: Texas

Court: Texas Northern District Court

Docket No: 06-10-00067-CV

Case Date: 09/21/2010

Plaintiff: C. H., Harold, Michael & Jerry Smith Electric, Inc. and Kathryn Nicholson Best

Defendant: City of Port Lavaca--Appeal from 267th District Court of Calhoun County

Preview:C. H., Harold, Michael & Jerry Smith Electric, Inc. and
Kathryn Nicholson Best v. City of Port Lavaca--Appeal
from 267th District Court of Calhoun County
NUMBER 13-99-168-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
C. H. HAROLD, MICHAEL & JERRY
SMITH ELECTRIC, INC. AND
KATHRYN NICHOLSON BEST, Appellants,
v.
CITY OF PORT LAVACA, Appellee.
On appeal from the 267th District Court
of Calhoun County, Texas.
O P I N I O N
Before Chief Justice Seerden, and Justices Chavez and Rodriguez
Opinion by Justice Rodriguez
Appellants C.H. Harold, Michael & Jerry Smith Electric, Inc., and Kathryn Nicholson Best appeal an order granting
summary judgment in favor of the City of Port Lavaca (City). By one point of error, appellants generally appeal the
order granting summary judgment. We affirm.
In 1988, at the request of a local civic organization, the City planted several trees along Main Street in order to
beautify the downtown business district. The trees were planted along the sidewalk adjacent to appellants' buildings. In
1996, appellants became aware that the trees had caused structural damage to their respective buildings and filed suit
against the City on August 29, 1997. The City filed a motion for summary judgment based on limitations and
governmental immunity. The trial court granted the City's motion, but did not specify the grounds upon which the
motion was granted.
In appellants' sole point of error, they argue that the City did not establish all elements of their affirmative defenses as
a matter of law. Appellants contend the City failed to establish governmental immunity under the Texas Transportation
Code. They further maintain that the City did not prove immunity because it did not make findings regarding the
improvements as required by the transportation code. We disagree.
Granting a defendant's motion for summary judgment is proper when the evidence (1) establishes that there is no
file:///C|/Users/Peter/Desktop/opinions/PSDs2/10523.html[8/20/2013 9:17:41 PM]

genuine issue of material fact concerning any essential element of a plaintiff's cause of action, see Gibbs v. General
Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); or (2) proves all of the 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). When the trial court does not specify the grounds upon which it granted summary
judgment, the appealing party must show it is error to base summary judgment on any ground asserted in the motion.
See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). This Court must affirm the summary judgment if
any one of the movant's theories or affirmative defenses has merit. See id.
Governmental units are generally immune from tort liability except where that immunity has been specifically waived
by the legislature. Dallas County Mental Health and Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Section
101.021 of the 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 1985). As set forth in section 316.008(3) of the Texas Transportation Code, planting trees is a government
function performed by city employees within scope of their employment. See Tex. Trans. Code Ann. 316.008 (Vernon
1995).
In this case, the City performed a governmental function when it planted the trees on Main Street adjacent to
appellants' buildings pursuant to section 316.008 of the transportation code. See Tex. Trans. Code Ann. 316.008
(Vernon 1995). Furthermore, the City did not waive immunity from liability under section 101.021 of the civil practice
and remedies code. See Tex. Civ. Prac. Rem. Code Ann. 101.021 (Vernon 1985). Therefore, we conclude that the City
is immune from liability as a matter of law.
Appellants argue the City should be exposed to liability for two reasons. First, they contend the City failed to comply
with section 316.002(b)(1) of the Texas Transportation Code. That section states that a governing body may only grant
permission to use property for improvements (such as trees) to a person who owns the underlying fee title to the real
property. See Tex. Trans. Code Ann. 316.002(b)(1) (Vernon 1995).
Appellants misinterpret section 316.002(b)(1). This section applies only if a municipality delegates the implementation
of an improvement to a third party. See id. In this case, the City did not delegate the planting of the trees to a third
party; rather the City completed the planting itself. Accordingly, section 316.002(b)(1) is inapplicable here.
Appellants also contend the City is not insulated from liability because it did not make the findings required by the
transportation code. See Tex. Trans. Code Ann. 316.003 (Vernon 1995) (improvement described in section 316.002
may not be established unless municipality finds improvement will not cause hazard or inconvenience). However,
because appellants did not present this issue to the trial court, it may not be considered on appeal as grounds for
reversal of a summary judgment. Vela v. City of McAllen, 894 S.W.2d 836, 838 (Tex. App. Corpus Christi 1995, no
writ) (citing State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986)). Accordingly, appellants' sole
point of error is overruled.
Because the trial court properly granted summary judgment on one of the grounds in the City's motion for summary
judgment, it is unnecessary to address appellants' remaining contentions. See Carr v. Brasher, 776 S.W.2d 576, 569
(Tex. 1989).
We conclude the City proved entitlement to government immunity as a matter of law. The judgment of the trial court
is AFFIRMED.
NELDA V. RODRIGUEZ
file:///C|/Users/Peter/Desktop/opinions/PSDs2/10523.html[8/20/2013 9:17:41 PM]

Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this the 20th day of July, 2000.
file:///C|/Users/Peter/Desktop/opinions/PSDs2/10523.html[8/20/2013 9:17:41 PM]

Download 10523.pdf