1. No. 04-12-00177-CV
IN THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
________________________________________________________________________
CITY OF BOERNE
Appellant
v.
DEBBIE THOMAS, KYM THOMAS SMITH, MELISSA THOMAS SHIVLEY,
ROBERT ANDREW ANDERSON, AND JAMES ERIC ANDERSON,
Appellees
________________________________________________________________________
Cause No. 2009-CI-17409; Appeal from the 288th
Judicial District Court, Bexar County,
Texas
________________________________________________________________________
APPELLANT’S REPLY BRIEF
________________________________________________________________________
McKamie Krueger, L.L.P.
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
William M. McKamie
State Bar No. 13686800
mick@mckamiekrueger.com
Brian David Smith
State Bar No. 24044734
brian@mckamiekrueger.com
ATTORNEYS FOR APPELLANT
FILED
224EFJ016899945
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12 May 25 P7:16
Keith E. Hottle
CLERK
2. ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES...........................................................................................iv
REPLY ISSUES................................................................................................................. 1
APPELLEES’ ISSUE NUMBER ONE: Does the City of Boerne have immunity
from Third-Party Plaintiff David Vaughan’s claims for contribution and
indemnification that arise from Plaintiff Debbie Thomas’ alleged breach of
contract claims which have been brought against David Vaughan and Vaughan’s
Funeral Home? ......................................................................................................... 1
THIRD-PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE
NUMBER ONE....................................................................................................... 2
APPELLEES’ ISSUE NUMBER TWO: Has the legislature waived the City of
Boerne’s immunity for its admittedly negligent act regarding the real property in
Boerne Community Cemetery?................................................................................ 6
THIRD-PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE
NUMBER TWO...................................................................................................... 6
APPELLEES’ ISSUE NUMBER THREE: Does it matter that Third-Party
Plaintiff David Vaughan did not provide the City of Boerne with notice of
impending contribution and indemnification claims included in his Third-Party
Petition naming the City of Boerne as the Third-Party Defendant ........................ 10
THIRD-PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE
NUMBER THREE ............................................................................................... 10
APPELLEES’ ISSUE NUMBER FOUR: By taking an interlocutory appeal the
same day Judge Nellermoe denied the City of Boerne’s Plea to the Jurisdiction,
can Third-Party Plaintiff be denied any opportunity to amend when the City of
Boerne is alleging that the Third-Party Plaintiffs’ Petition is defective, because it
does not plead facts which would show a waiver of immunity?............................ 11
THIRD-PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE
NUMBER FOUR.................................................................................................. 12
CONCLUSION ................................................................................................................ 13
PRAYER........................................................................................................................... 14
6. 1
No. 04-12-00177-CV
IN THE FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
________________________________________________________________________
CITY OF BOERNE
Appellant
v.
Debbie THOMAS, Kym Thomas Smith, Melissa Thomas Shivley, Robert Andrew
Anderson, and James Eric Anderson,
Appellees
________________________________________________________________________
Cause No. 2009-CI-17409; Appeal from the 288th
Judicial District Court, Bexar County,
Texas
________________________________________________________________________
APPELLANT’S REPLY BRIEF
________________________________________________________________________
To The Honorable Fourth Court of Appeals:
NOW COMES Appellant, CITY OF BOERNE (City), and submits this Appellant’s
Reply Brief. For clarity, unless otherwise noted, the Appellant shall be referred to as the
Third Party Defendant- City of Boerne, the Original Plaintiffs as the Thomas Plaintiffs
and Original Defendants Third Party Vaughan Plaintiffs shall be referred to as the
Vaughan Plaintiffs.
I. REPLY ISSUES
APPELLEES’ ISSUE NUMBER ONE:
Does the City of Boerne have immunity from Third-Party Plaintiff David
Vaughan’s claims for contribution and indemnification that arise from Plaintiff Debbie
7. 2
Thomas’s alleged breach of contract claims which have been brought against David
Vaughan and Vaughan’s Hill Country Funeral Home?
THIRD PARTY DEFENDANT’S RESPONSE TO APPELLEES’
ISSUE NUMBER ONE
By the adoption of Tex. Civ. Practices and Remedies Code §101.0215, the
Texas Legislature defined which municipal services were governmental and which
were proprietary. Subsection 101.0215 (a) of the Tex. Civ. Practices and Remedies
Code provides that a municipality is liable for damages arising from its governmental
functions, which are those functions that are enjoined on a municipality by law and are
given to it by the state as part of the state‘s sovereignty, to be exercised by the
municipality in the public interest, including, but not limited to:
(1) police and fire protection and control;
(2) health and sanitation services;
(3) street construction and design;
(4) bridge construction and maintenance and street maintenance;
(5) cemeteries and cemetery care;
(6) garbage and solid waste removal, collection, and disposal;
(7) establishment and maintenance of jails;
(8) hospitals;
(9) sanitary and storm sewers;
(10) airports;
( 1 1 ) waterworks;
( 1 2 ) repair garages;
( 1 3 ) parks and zoos;
( 1 4 ) museums;
( 1 5 ) libraries and library maintenance;
( 1 6 ) civic, convention centers, or coliseums;
( 1 7 ) community, neighborhood, or senior citizen centers;
( 1 8 ) operation of emergency ambulance service;
( 1 9 ) dams and reservoirs;
( 2 0 ) warning signals;
( 2 1 ) regulation of traffic;
( 2 2 ) transportation systems;
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(23) recreational facilities, including but not limited to swimming pools,
beaches, and marinas;
(24) vehicle and motor driven equipment maintenance;
(25) parking facilities;
(26) tax collections;
(27) firework displays;
(28) building codes and inspection;
(29) zoning, planning, and plat approval;
(30) engineering functions;
(31) maintenance of traffic signals, signs, and hazards;
(32) water and sewer service;
(33) animal control;
(34) community development or urban renewal activities undertaken by
municipalities and authorized under Chapters 373 and 374, Local
Government Code;
(35) latchkey programs conducted exclusively on a school campus under an
interlocal agreement with the school district in which the school campus
is located; and
(36) enforcement of land use restrictions under Subchapter A, Chapter 230,
Local Government Code. Tex. Civ. Prac. & Rem. Code Ann.
§101.0215(a) (Vernon 2005 & Supp. 2006).
Section 101.0215 provides that the Tort Claims Act does not apply to the
liability of a municipality for damages arising from its proprietary functions, which are
those functions that a municipality may, in its discretion, perform in the interest of the
inhabitants of the municipality, including, but not limited to:
(1) the operation and maintenance of a public utility;
(2) amusements owned and operated by the municipality; and
(3) any activity that is abnormally dangerous or ultra hazardous.
§101.0215(b).
However, this Court must realize that Subsection 101.0215 (a), by itselfis not an
independent waiver of governmental immunity, and therefore Third-Party Plaintiff David
Vaughan must also establish the applicability of the Tort Claims Act under another
section before bringing a claim under TEX. CIV. PRAC. & REM. CODE ANN.§101.0215.
Bellnoa v. City of Austin, 894 S.W.2d 821, 826 (Tex. App.—Austin 1995, no writ); City
9. 4
of San Antonio v. Winkenhower, 875 S.W.2d 388, 391 (Tex. App.—San Antonio 1994,
writ denied).
In his Appellee’s Brief, Third-Party Plaintiff David Vaughan claims that the facts
plead on appeal constituted a waiver of immunity by the City of Boerne. In the matter
before this Court, the waiver of immunity argument made by counsel for the Vaughan
Plaintiffs is improper and does not apply to Third-Party Plaintiffs’ claims for contribution
and indemnification.
Under TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2), A governmental unit in
the state is liable for Property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting within his scope of
employment if the property damage, personal injury or death arises from the operation or
use of a motor-driven vehicle or motor-driven equipment; and
(A) the employee WOULD be personally liable to the claimant according to
Texas law; and
(1) Personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
The Breach of Contract allegation which Third-Party Plaintiff David Vaughan
seeks contribution and indemnification is from a year 2000 agreement between Plaintiff
Debbie Thomas and Defendants David Vaughan and Vaughan’s Hill County Funeral
Home to provide a variety of burial services on behalf of Debbie Thomas’s late husband.
In addition to providing full service mortician services at Vaughan’s Hill County
Funeral Home, David Vaughan provided Sexton services at the Boerne City Cemetery.
10. 5
Cemetery Sexton is a contract position at the Boerne City Cemetery and David Vaughan
has never beena City of Boerne employee.
Under the Texas Torts Claim Law, the actions of agents or contractors are
insufficient to waiving immunity protections afforded to municipalities by the state
legislature.Therefore, the first hurdle that Third-Party Plaintiff David Vaughan must
successfully clear is somehow establishing facts that support that a City of Boerne
employee performed in such a manner as prescribed by state law so as to waive their
immunity.
Third-Party Plaintiff David Vaughan failed to bring any allegations that a City of
Boerne employee used motor-driven equipment negligently, or that any injury resulted
from that employee’s use of the city owned equipment in the normal course of business.
Additionally, there is no allegation that a condition or use of tangible personal or real
property used by a City of Boerne employee was improper or defective. Finally, Third-
Party Plaintiff Vaughan improperly argues that moving someone’s remains is a defect in
real property.
Only the Legislature may waive the State’s immunity from suit. Id. The
Legislature expresses such a waiver either through a resolution, a statute, or a
constitutional provision. Id. This expression of waiver must be clear and unambiguous.
State v. Oakley, 227, S.W.3d 58, 62 (Tex. 2007); Taylor at 696; Fed. Sign v. Tex. S.
Univ., 951 S.W.2d 401, 405 (Tex. 1997). Any ambiguity is an alleged waiver of
sovereign immunity is construed in favor of the State, that is, in favor of retaining
immunity. See Taylor at 697.
11. 6
A comparison of the facts of this case with current law supports the City of
Boerne’s position that it is immune from Third-Party Plaintiff David Vaughan’s claims
for contribution and indemnification based on Plaintiff Linda Thomas’s claim of breach
of contract.
APPELLEES’ ISSUE NUMBER TWO:
Has the legislature waived the City of Boerne’s immunity for its admittedly
negligent act regarding the real property in the Boerne Community Cemetery?
THIRD PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE
NUMBER TWO
As mentioned above Subsection 101.0215 (a) of the Tex. Civ. Practices and
Remedies Code provides that a municipality can be found liable for damages arising
from its governmental functions. In his Appellee’s Brief, Third-Party Plaintiff David
Vaughan claims that the facts plead on appeal constituted a waiver of immunity by the
City of Boerne.
In the matter before this Court, the waiver of immunity argument made by counsel
for the Vaughan Plaintiffs is improper and does not apply to Third-Party Plaintiffs’
claims for contribution and indemnification.
Under TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2), A governmental unit in
the state is liable for Property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting within his scope of
employment if the property damage, personal injury or death arises from the operation or
use of a motor-driven vehicle or motor-driven equipment; and
12. 7
(B) the employee WOULD be personally liable to the claimant according to
Texas law; and
(2) Personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
Property damage, personal injury, and death proximately caused by the wrongful
act or omission or the negligence of an employee acting within his scope of employment
if:
(C) the property damage, personal injury or death arises from the operation or
use of a motor-driven vehicle or motor-driven equipment; and
(D) the employee WOULD be personally liable to the claimant according to
Texas law; and
(3) Personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
There has been no allegation that a City of Boerne employee used motor-driven
equipment negligently, nor that an injury resulted therefrom. Additionally, there is no
allegation that a condition or use of tangible personal or real property by a City of Boerne
employee was improper or defective, nor that any injury resulted therefrom. In short,
Third-Party Plaintiffs’ reliance on a “condition” or “use” of real property is misapplied in
the fact pattern before this Court and does not waive immunity.
As stated above, liability for premises defects extends only to personal injury
and death. It does not extend to property damage. The premises for which the
governmental unit is sought to be held liable must be owned, occupied, or controlled by
13. 8
the governmental unit. Kinnear v. Texas Comm’n v. Human Rights, 14 S.W.3d 199, 300
(Tex. 2000).
A condition or use or real property involves what are referred to as “premise
defects.”Premise defects include such things as a pothole in a street, a water hose placed
across a sidewalk at a state university, a slippery floor in a building, etc. Section
101.021 waives governmental immunity for certain premise defects.
The degree of liability that the governmental unit has for a premise defect
depends on what duty is owed to the person entering the real property. The person‘s
status on the property, i.e. invitee, licensee, or trespasser, determines what duty the city
owes. See Gunn v. Harris Methodist Affiliated Hosp. , 887 S.W.2d 248, 250 (Tex.
App.—Fort Worth 1994, writ denied). The Tort Claims Act declares the duty of a
governmental unit as follows:
(a) If a claim arises from a premise defect, the governmental unit owes to
the claimant only the duty that a private person owes to a licensee on
private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn
of special defects such as excavations or obstructions on highways,
roads, or streets or to the duty to warn of the absence, condition, or
malfunction of traffic signs, signals, or warning devices as is required
by §101.060.
(c) If a claim arises from a premise defect on a toll highway, road, or
street, the governmental unit owes to the claimant only the duty that a
private person owes to a licensee on private property. Tex. Civ. Prac. &
Rem. Code Ann. §101.022 (Vernon 2005 & Supp. 2006).
14. 9
Therefore, the standard of care that is generally imposed in premise defect
cases against a governmental entity is that of the licensor to licensee. As with
§101.0215, §101.022 does not create a separate basis for liability. Section 101.022 acts
to limit the duty owed by the governmental entity and serves as a limitation upon the
general liability created under §101.021.
Additionally, the Third-Party Vaughan Plaintiffs’ must plead and prove that an act
falling within those areas for which sovereign immunity has been waived was a
proximate cause of some compensable damage or injury. Proximate causation consists
of: (1) cause in fact and (2) foreseeability.
Cause in fact means that the negligent act or omission was a substantial factor in
bringing about the injury, and without which no harm would have been incurred. Mere
usage of a motor-driven vehicle or tangible personal property does not establish
causation. Foreseeability means that the actor who caused the injury, as a person of
ordinary intelligence, should have anticipated the dangers that his negligent act or
omission created for others.
The Tort Claims Act does not create new legal duties, but only waives
governmental immunity in circumstances where a private person similarly situated would
be liable. To establish tort liability, a plaintiff must prove the existence and violation of a
legal duty owed to him by the defendant. The existence of a legal duty is a generally a
question of law for the court. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d
392 (Tex. 1991).
15. 10
Clearly, governmental immunity has not been waived in this case. Subject matter
jurisdiction is lacking, and claims against the City of Boerne must be dismissed.
APPELLEES’ ISSUE NUMBER THREE:
Does it matter that Third-Party Plaintiff David Vaughan did not provide the City
of Boerne with notice of impending contribution and indemnification claims included in
his Third Party Petition naming the City of Boerne as the Third Party Defendant?
THIRD PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE
NUMBER THREE
The Texas Tort Claims Act requires a potential claimant to give formal written
notice of claim to a governmental unit not later than six months after the incident giving
rise to the claim occurred. TEX. CIV. PRAC. & REM. CODE ANN. §101.101. No such
notice was ever provided by Third-Party Vaughan Plaintiffs to the City of Boerne.
Additionally, Section 10.03 of the Home Rule Charter of the City of Boerne has
authority by ordinance to specify time limitations during with notice of personal injury or
property damage claims against the City must be presented. Section 2-1, Art. I, Code of
Ordinances of the City of Boerne, Texas also provides that notice in writing of a claim
must be presented to the City within ninety days after the occurrence of the alleged injury
or damage which describes the acts which took place and how those events affix liability
upon the City.
No such notice was ever provided by the Third-Party Vaughan Plaintiffs to the
City of Boerne. Failure to give the required notice under the Texas Tort Claims Act and
the City Charter and Ordinance bars the claims of Third-Party Vaughan Plaintiffs. See
16. 11
Colquitt v. Brazoria Cty., 324 S.W.3d 539 (Tex. 2010); Martinez v. Val Verde Cty. Hosp.
Dist., 140 S.W.3d. 370 (Tex. 2004).
The City of Boerne is entitled to an order dismissing Third-Party Plaintiffs’ claims
for indemnity and contribution based in tort, on the grounds of governmental immunity,
which has not been waived. Further, Third-Party Plaintiffs failed to give timely notice of
claim to the City as required by the Texas Tort Claims Act and the City Charter, so the
claim is barred.
The notice required by the Texas Tort Claims Act is not just notice of facts; it is
notice by a particular claimant that the City may have liability (See Record Page 19 line
19-24) After reviewing the facts of this case and the Clerk’s Record, the Third-Party
Plaintiffs’ failed to meet the notice required the Torts Claims Act informing the City that
liability might be affixed on them.
APPELLEES’ ISSUE NUMBER FOUR:
By taking an interlocutory appeal the same day as Judge Nellermoe denied the
City of Boerne’s Plea to the Jurisdiction, can Third-Party Plaintiff be denied any
opportunity to amend when the City of Boerne is alleging that the Third-Party Plaintiffs’
Petition is defective, because it does not plead facts which would show a waiver of
immunity?
17. 12
THIRD PARTY DEFENDANT’S RESPONSE TO APPELLEES’ ISSUE NUMBER
FOUR
Summary Of Plea To The Jurisdiction
Although the Third-Party Defendant is the moving party on this plea to the
jurisdiction, the Third-Party Vaughan Plaintiffs are the parties seeking to invoke the
Court’s jurisdiction by filing their Petition. Accordingly, the Third-Party Plaintiffs bear
the burden to allege facts affirmatively demonstrating the trial court’s jurisdiction to hear
the case. Tex. Ass'n of Bus., 852 S.W.2d at 445-46.
When Plaintiff, “fails to allege sufficient facts” in its petition to establish a waiver
of immunity, granting the motion to dismiss for lack of subject matter jurisdiction is
appropriate.” Montgomery Cnty. v. Fuqua, 22 S.W.3d 662, 665 (Tex. App.—Beaumont,
2000, pet. denied).
After failing to plead facts which would support a waiver of governmental
immunity, legal counsel for the Third Party Vaughan Plaintiffs asked the Court to Grant
him additional time to amend his pleadings.
When a Plaintiff, “fails to allege sufficient facts” in its petition to establish a
waiver of immunity, granting the motion to dismiss for lack of subject matter jurisdiction
is appropriate.” Montgomery Cnty. v. Fuqua, 22 S.W.3d 662, 665 (Tex. App.—
Beaumont, 2000, pet. denied).
On March 13, 2012, the Honorable Barbara Nellermoe of the 45th
Judicial District
signed an Order denying Third Party Defendant, City of Boerne’s Plea to the Jurisdiction.
Under Tex. Civ. Prac.& Rem. Code § 51.014(a)(8), a denial of a Plea to the Jurisdiction
18. 13
is immediately appealable to the Fourth Court of Appeals of Texas provided that the
moving party’s Plea to the Jurisdiction was filed and requested submission of a hearing
within 180 days from the date that they filed their first responsive pleading. The City of
Boerne timely met all deadlines necessary to perfect their right to an immediate
interlocutory appeal prior to the March 13, 2012 denial of their Plea to the Jurisdiction.
Once an interlocutory appeal has been perfected, all proceedings in the trial court,
including a trial on the merits, are stayed pending resolution of the appeal. Additionally,
supersedeas of the trial court’s order is automatic. The City of Boerne is a Texas home-
rule municipality, and is exempt from security for costs, including bonds for appeal and
supersedeas. Tex. Civ. Prac. & Rem. Code § 51.014(b). Greanias v. City of Houston,
841 S.W.2d 411, 413 (Tex. App. – Houston [1st
. Dist.] 1992, orig. proceeding.
It remains our position that since the denial of the City of Boerne’s Plea to the
Jurisdiction has been appealed to the Fourth Court of Appeals of Texas, the automatic
stay requirements under State law not only apply to Trial on the Merits, they also
temporarily relieve State District Courts of jurisdiction to act on any motions surrounding
this case.
II. CONCLUSION
In conclusion, The State District Court lacked jurisdiction over all causes of action
alleged by Third-Party Plaintiffs against Third Party Defendant City of Boerne when the
Plea to the Jurisdiction was originally argued.
Since the Third-Party Vaughan Plaintiffs were the parties seeking to invoke the
Court’s jurisdiction by filing their Petition, they bear the burden to allege facts which
19. 14
affirmatively demonstrated the trial court had jurisdiction to hear the case. When the
Third-Party Vaughan Plaintiffs failed to allege sufficient facts in their pleadings to
establish a waiver of immunity, the court lacked of subject matter jurisdiction, and should
have granted Third Party Defendant City of Boerne plea to the Jurisdiction.
PRAYER
For the foregoing reasons, Appellants, the City of Boerne, respectfully requests
that the court reverse the March 13, 2012 order of the district court denying the plea to
the jurisdiction, and for such further relief to which it may be entitled.
Respectfully submitted,
MCKAMIE KRUEGER, L.L.C.
941 Proton Road
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
/s/ Brian D. Smith__________________
WILLIAM M. MCKAMIE
State Bar No. 13686800
BRIAN D. SMITH
State Bar No. 24044734
ATTORNEYS FOR APPELLANT
CITY OF BOERNE
20. 15
CERTIFICATE OF SERVICE
I certify that a copy of Appellant’s Brief was served in accordance with the Texas
Rules of Appellate Procedure as indicated below on the 25TH
day of May, 2012,
addressed to:
Mark A. Lindow Via Fax No.: 210.227.4602
Lindow Stephens Treat LLP
SBN: 12367875
600 Navarro Street, Sixth Floor
San Antonio, Texas 78205
Office 210-227-2200
Troy “Trey” S. Martin, III Via Fax No. 210.223.5052
SBN: 13108800
Mr. Curtis L. Cukjati
SBN: 05207540
Jeffrey Tom
SBN: 24056443
Martin & Cukjati, LLP
1802 Blanco Rd.
San Antonio, TX 78212
Office 210.223.2627
/s/ Brian D. Smith__________________
BRIAN D. SMITH
