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City of Helotes v. Page

Court of Appeals of Texas, Fourth District, San Antonio

December 18, 2019

CITY OF HELOTES, Appellant
v.
Jean Marie PAGE, Appellee

          From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI01629 Honorable Karen H. Pozza, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          PATRICIA O. ALVAREZ, JUSTICE.

         The City of Helotes appeals the trial court's order denying its plea to the jurisdiction. The trial court found that Jean Marie Page's "injuries were caused by a proprietary function." The City argues Page's injuries were the result of a governmental function. We affirm the trial court's order.

         Background

         In 2018, Page sued the City for injuries she sustained when a City employee dropped a table while removing it from a parked golf cart. She alleged the table struck the cart's accelerator which caused the cart to propel forward and strike her. She alleged the City employee was negligent in leaving the golf cart's ignition in the "on" position, in dropping the table on the accelerator, and in misplacing the table in the golf cart which allowed the table to strike the accelerator when the table was dropped.

         The accident occurred when the City employee was setting up for an event called the "MarketPlace at Old Town Helotes." The MarketPlace, which was first held in August of 2008, is held on the first Saturday of each month. The MarketPlace is described as a vendor's fair. The City rents booths to vendors who sell crafts, merchandise, and food, or advertise and display the services they offer.[1] The City has its own booth from which it sells beer. The MarketPlace also has an area for children with activities like an inflatable slide. The MarketPlace is held on public streets in "Old Town Helotes," and the streets are closed to traffic. The MarketPlace is sponsored, supervised, regulated, operated, and managed by the City.

         In the City Administrator's deposition, he stated that the rationale for the MarketPlace was "essentially economic development to bring people into [the special district called] Old Town Helotes to improve the finances of [the] existing businesses [and] to generate involvement in the community in that area." The rationale included "economic revitalization of our Old Town Helotes historic district." The administrator further described it as "a place making idea. You bring people into Old Town Helotes and it-and it helps develop that area."

         The City filed a plea to the jurisdiction arguing it was immune from suit because the MarketPlace is a governmental function. Page responded that the City was not immune from suit because the MarketPlace is a proprietary function. The trial court found that Page's "injuries were the result of a proprietary function," and it denied the City's plea. The City appeals.

         Plea to the Jurisdiction, Standard of Review

         Governmental immunity protects political subdivisions of the State, such as municipalities, from suit and liability. Chambers-Liberty Ctys. Nav. Dist. v. State, 575 S.W.3d 339, 344 (Tex. 2019); Wasson Interests, Ltd. v. City of Jacksonville (Wasson I), 489 S.W.3d 427, 429-30 (Tex. 2016). Because governmental immunity implicates the trial court's jurisdiction, it may be asserted in a plea to the jurisdiction. Chambers-Liberty Ctys. Nav. Dist., 575 S.W.3d at 345; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). "Parties may submit evidence at the plea-to-the-jurisdiction stage, and the trial court's review generally mirrors the summary judgment standard." Chambers-Liberty Ctys. Nav. Dist., 575 S.W.3d at 345 (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016)). "When reviewing a plea to the jurisdiction [such as this where] evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Miranda, 133 S.W.3d at 228 (citation omitted). "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Chambers-Liberty Ctys. Nav. Dist., 575 S.W.3d at 345 (quoting Miranda, 133 S.W.3d at 227-28). "Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo." Miranda, 133 S.W.3d at 226; accord Chambers-Liberty Ctys. Nav. Dist., 575 S.W.3d at 345.

         Governmental/Proprietary Function Dichotomy

         "The governmental/proprietary dichotomy recognizes that immunity protects a governmental unit from suits based on its performance of a governmental function but not a proprietary function." Wasson Interests, Ltd. v. City of Jacksonville (Wasson II), 559 S.W.3d 142, 146 (Tex. 2018). The State's sovereignty shields a municipality when the municipality acts "'as a branch' of the State but not when [it acts] 'in a proprietary, non-governmental capacity.'" Id. (quoting Wasson I, 489 S.W.3d at 430). But if a municipality performs a proprietary function, it is subject "to the same duties and liabilities as those incurred by private persons and corporations." Id. (quoting Gates v. City of Dall., 704 S.W.2d 737, 739 (Tex. 1986)).

         A. ...


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