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Sarigollu v. City of Arlington

Court of Appeals of Texas, Second District, Fort Worth

June 22, 2017

BURAK SARIGOLLU APPELLANT
v.
CITY OF ARLINGTON APPELLEE

         FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 348-283880-16

          PANEL: MEIER, SUDDERTH, and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          MARK T. PITTMAN JUSTICE

         Appellant Burak Sarigollu appeals from the trial court's dismissal of his negligence claims against Appellee the City of Arlington. In a single issue, Sarigollu argues that the trial court erred by granting Arlington's motion for summary judgment based on sovereign immunity. We affirm.

         I. Background

         In July 2015, sewage began seeping into Sarigollu's home in Arlington. Sarigollu called 911, and city fire department and city utilities department employees responded. The utilities crew spent an hour unsuccessfully looking for the blockage causing the sewage leak. During that time, sewage continued to flow into Sarigollu's home from every drain on the first floor. The utilities crew finally located the blockage after fire department personnel suggested that they might be searching in the wrong place.

         After Arlington refused to reimburse Sarigollu for the expenses and damages to his home resulting from the sewage, he sued. In his original petition, he alleged that Arlington was negligent by (1) failing to perform proper and timely inspections of the sewer system in his neighborhood; (2) failing to keep proper maps or diagrams of the sewer system; (3) failing to properly train its employees to locate sewer problems in a timely manner; (4) failing to locate the blockage in a timely manner; (5) failing to repair the blockage in a timely manner; and (6) failing to properly maintain the sewer system. Sarigollu also sought exemplary damages for gross negligence and intentional infliction of mental distress from the "misleading 'claims' process used by" the city.

         Arlington filed a motion for partial summary judgment on Sarigollu's exemplary damages claim asserting that it had immunity from claims for exemplary damages. Arlington also filed a motion for summary judgment on Sarigollu's negligence claims, alleging that the trial court did not have jurisdiction because none of the claims as pleaded by Sarigollu fell within the waiver of governmental immunity under section 101.021 of the Texas Tort Claims Act (TTCA). Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011); see Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) ("The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for summary judgment." (footnotes omitted)).

         Citing TTCA sections 101.0215(a)(9) and 101.0215(a)(32), Arlington asserted in its summary judgment motion on the negligence claims that "sanitary and storm sewers" and "water and sewer service" are governmental functions. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(9), (32) (West Supp. 2016). And, it argued, because a city has immunity for its performance of governmental functions, and because there was no waiver of immunity in this case, the trial court had no jurisdiction over Sarigollu's claims. Arlington further asserted that Sarigollu's claims were incurably defective, and he therefore should not be given the opportunity to amend his pleadings. The trial court agreed and granted summary judgment for Arlington and dismissed Sarigollu's claims without giving him the opportunity to replead. In the same order, the trial court granted summary judgment for Arlington on Sarigollu's exemplary damages claim.

         Sarigollu filed a motion for new trial, which was denied by operation of law. See Tex. R. Civ. P. 329b(c). Sarigollu now appeals the dismissal of his lawsuit.[2]

         II. Pleas to the Jurisdiction

         A plaintiff has the burden of alleging facts that affirmatively demonstrate that the trial court has subject-matter jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). Because a governmental unit has immunity from suit, a plaintiff asserting a claim against a governmental unit must allege facts that affirmatively demonstrate that the legislature has waived immunity for the claims brought. Univ. of Tex. at Arlington v. Williams, 455 S.W.3d 640, 643 (Tex. App.-Fort Worth 2013), aff'd, 459 S.W.3d 48 (Tex. 2015). When considering a plea to the jurisdiction challenging the plaintiff's pleadings, the court construes the pleadings liberally, taking all factual assertions as true and looking to the plaintiff's intent. Heckman, 369 S.W.3d at 150. We must grant the plea to the jurisdiction if the plaintiff's pleadings affirmatively negate the existence of jurisdiction. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).

         III. Immunity of Municipalities

         A municipality is entitled to immunity for some but not all of its functions. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 388 (Tex. App.-Fort Worth 2008, no pet.). A municipality is liable for torts arising from the exercise of its proprietary functions, but it is generally immune from suit and from liability for torts arising from the exercise of its governmental functions, except for the limited waiver provided by the TTCA. Id. at 389. In determining whether a municipality is immune from suit, we first determine whether the governmental function at issue is governmental or proprietary. Id. TTCA section 101.0215 sets out a nonexclusive list of governmental functions. Tex. Civ. Prac. & Rem. Code Ann. ยง ...


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