TEXAS ONE PARTNERSHIP, Appellant v. THE CITY OF DALLAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-92-01097-CV

Case Date: 01/15/1993

Plaintiff: TEXAS ONE PARTNERSHIP, Appellant

Defendant: THE CITY OF DALLAS, Appellee

Preview:TEXAS ONE PARTNERSHIP, Appellant v. THE CITY OF DALLAS, Appellee
AFFIRMED and Opinion filed January 15, 1993. S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-92-01097-CV ............................ TEXAS ONE PARTNERSHIP, Appellant V. THE CITY OF DALLAS, Appellee .............................................................. On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. 90-13515-E .............................................................. OPINION Before Justices Baker, Kinkeade, and Burnett Opinion By Justice Baker The trial court granted the City a summary judgment against Texas One. Texas One contends that the trial court erred in entering summary judgment against it. Texas One argues the City cannot claim governmental immunity because the City's action was a proprietary and not a governmental function. Texas One also argues there are genuine issues of material fact about its claims. We agree with Texas One that the City may not claim governmental immunity. However, we conclude there are no material fact issues. We hold the trial court properly granted summary judgment. We affirm the trial court's judgment. FACTUAL BACKGROUND On June 8, 1988, Texas One applied to the City to take part in the Rental Rehabilitation Program (RRP). The United States Department of Housing and Urban Development (HUD) established the RRP program to provide matching funds to private developers to rehabilitate low-income housing units. When Texas One applied for the program, the RRP provided up to seventy-five percent of the funds necessary to rehabilitate the units. The City contracted with private banks to act as closing agents and to administer the loans. Texas One applied for a loan under the RRP to rehabilitate the Ewing Estate Apartments. On September 30, 1988, the City's Housing and Neighborhood Services Department (HNSD) loan committee approved Texas One's loan subject to availability of funds and other conditions. On October 5, 1988, Rosie Norris, assistant director of the HNSD, sent a letter to Texas One informing it of the loan committee's action. FN:1 When Norris sent the letter, Texas One could not close the loan because the City did not have a contract with a bank to act as closing agent. On April 6, 1989, University Savings became the City's closing agent. On April 19, 1989, the City told University Savings to prepare closing documents for Texas One's loan. On April 30 and May 1, 1989, the Dallas Morning News ran articles critical of the city employees administering the RRP and criticized one loan made to a savings-and-loan criminal. On May 17, 1989, the City suspended the program to permit the city auditor to investigate these allegations. On June 13, 1989, the City contacted HUD and canceled the funding of Texas One's project under the RRP. Texas One sued the City for breach of the loan commitment. STANDARD OF REVIEW The standards we apply in reviewing a trial court's grant of a summary judgment are: 1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is
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entitled to judgment as a matter of law. 2. Deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the nonmovant as true. 3. We must indulge in every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method of summarily ending a case that involves only a question of law and no genuine issue of material fact. See Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). The trial court's duty is to determine if there are any fact issues to try--not to weigh the evidence or determine its credibility and try the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. It is not the intent of the rule to deprive the litigants of their right to a full hearing on the merits of any real issue of material fact. See Gulbenkian, 252 S.W.2d at 931. A movant must show its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). The trial court may not grant summary judgment by default against the nonmovant for failing to respond to the motion when the movant's summary judgment proof is legally insufficient. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). To show its right to a summary judgment, a defendant must either disprove an essential element of the plaintiff's cause of action as a matter of law or establish all elements of its defense as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex. App.--San Antonio 1987, writ denied). A nonmovant need not answer or respond to a motion for summary judgment to contend on appeal that the grounds expressly presented by the movant's motion are insufficient as a matter of law to support summary judgment. However, the nonmovant may not raise any other issues as grounds for reversal. City of Houston, 589 S.W.2d at 678. Except to attack the legal sufficiency of the movant's grounds for summary judgment, the nonmovant must expressly present to the trial court any reason for avoiding the movant's entitlement to summary judgment. The nonmovant must present summary judgment proof when necessary to show a fact issue. The nonmovant must expressly present to the trial court in a written answer or response to the motion those issues that would defeat the movant's right to summary judgment and, failing to do so, may not assign them on appeal as error. Tex. R. Civ. P. 166a(c); City of Houston, 589 S.W.2d at 678-79. GOVERNMENTAL VERSUS PROPRIETARY FUNCTION Texas One contends the trial court erred in concluding that the City's participation in the RRP was a governmental function and therefore the City was immune from liability. Texas One contends that the trial court erred in denying it a summary judgment because as a matter of law the City's participation in the RRP was a proprietary function. Under the Texas Tort Claims Act, a municipality is immune from liability for its employees' tortious conduct if the tort arises from a governmental function. Governmental functions are those functions that the law enjoins on a municipality and that the State gives as part of the State's sovereignty for the municipality to exercise in the interest of the general public. Tex. Civ. Prac. & Rem. Code Ann.

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