                                  APPENDIX

A1.   Order of January 6, 2015 Granting Plaintiff’s Motion for PartialFILED
                                                                        Summary
                                                                            IN
      Judgment (CR 1:119).                                     6th COURT  OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                               7/7/2015 9:23:00 AM
A2.   Order of February 12, 2015 Granting Plaintiff’s Motion for Summary
                                                                 DEBBIE AUTREY
      Judgment (CR 1:192).                                          Clerk


A3.   Order of Dismissal dated February 27, 2015 (CR 1:197).

A4.   Texas Tort Claims Act, applicable provisions.

A5.   Subchapter I, Chapter 271, Texas Local Government Code, applicable
      provisions.

A6.   City of Georgetown v. Lower Colorado River Authority, 413 S.W.3d 803
      (Tex.App.—Austin 2013, pet. dism’d).

A7.   Plaintiff’s First Amended Petition for Declaratory Judgment (CR 1:24).

A8.   Defendant’s Verified Original Answer (CR 1:51).

A9.   Defendant’s Original Counterclaim (CR 1:57).

A10. Plaintiff’s Motion for Partial Summary Judgment (CR 1:68).

A11. Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment
     (CR 1:107).

A12. Plaintiff’s Motion for Summary Judgment (CR 1:120).

A13. Defendant’s Response to Plaintiff’s Motion for Summary Judgment (CR
     1:172).

A14. Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for
     Summary Judgment (CR 1:182).

A15. Defendant’s Surreply to Plaintiff’s Reply to Defendant’s Response to
     Plaintiff’s Motion for Summary Judgment (CR 1:189).
                                        39
APPENDIX
   A1
APPENDIX
   A2
APPENDIX
   A3
APPENDIX
   A4
                                                                                                                   Page 1




0110® Lex sNexis
                                       LexisNexis (R) Texas Annotated Statutes
                                Copyright © 2014 by Matthew Bender & Company, Inc.
                                          a member of the LexisNexis Group
                                                 All rights reserved.

                         *** This document is current through the 2013 3rd Called Session ***

                                CIVIL PRACTICE AND REMEDIES CODE
                                TITLE 5. GOVERNMENTAL LIABILITY
                                    CHAPTER 101. TORT CLAIMS
                        SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITS

                                  GO TO TEXAS CODE ARCHIVE DIRECTORY

                                     Tex. Civ. Prac. & Rem. Code § 101.021      (2014)

§ 101.021. Governmental Liability

 A governmental unit in the state is liable for:
      (1) 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:
       (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or
motor-driven equipment; and
        (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.

HISTORY: Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985.

NOTES:

 Legislative Note. --
 * See Texas Litigation Guide, Ch. 290, Negligence; Ch. 293, Claims Against Governmental Entities; Ch. 310,
Premises Liability.

LexisNexis (R) Notes:
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                                                  All rights reserved.

                          *** This document is current through the 2013 3rd Called Session ***

                                CIVIL PRACTICE AND REMEDIES CODE
                                TITLE 5. GOVERNMENTAL LIABILITY
                                    CHAPTER 101. TORT CLAIMS
                        SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITS

                                   GO TO TEXAS CODE ARCHIVE DIRECTORY

                                      Tex. Civ. Prac. & Rem. Code § 101.0215 (2014)

§ 101.0215. Liability of a Municipality

  (a) A municipality is liable under this chapter for damages arising from its governmental functions, which are those
functions that are enjoined on a municipality by law and are given it by the state as part of the state's sovereignty, to be
exercised by the municipality in the interest of the general public, 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, including when used for space flight activities as defined by Section 100A.001;
      (11)waterworks;
                                                                                                                    Page 2
                                       Tex. Civ. Prac. & Rem. Code § 101.0215



     (12) repair garages;

     (13) parks and zoos;

     (14) museums;

     (15) libraries and library maintenance;

     (16) civic, convention centers, or coliseums;
     (17) community, neighborhood, or senior citizen centers;

     (18) operation of emergency ambulance service;

      (19) dams and reservoirs;

      (20) warning signals;

      (21) regulation of traffic;

      (22) transportation systems;

      (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 collection;

      (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 E, Chapter 212, Local Government Code.

    (b) This chapter 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:
                                                                                                                       Page 3
                                          Tex. Civ. Prac. & Rem. Code § 101.0215


        (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 ultrahazardous.

       (c) The proprietary functions of a municipality do not include those governmental activities listed under Subsection
(a).

HISTORY: Enacted by Acts 1987, 70th Leg., 1st C.S., ch. 2 (S.B. 5), § 3.02, effective September 2, 1987; am. Acts
1997, 75th Leg., ch. 152 (S.B. 1697), § 1, effective September 1, 1997; am. Acts 1999, 76th Leg., ch. 1170 (S.B. 104), §
2, effective June 18, 1999; am. Acts 2001, 77th Leg., ch. 1399 (H.B. 2580), § 1, effective June 16, 2001; am. Acts 2013,
83rd Leg., ch. 50 (H.B. 278), § 1, effective September 1, 2013.

NOTES:

 1999 Note:
 Ch. 1170 applies beginning with the 1999-2000 school year. Acts 1999, 76th Leg., ch. 1170, § 3.
 * See Texas Litigation Guide, Ch. 290, Negligence; Ch. 293, Claims Against Governmental Entities; Ch. 310,
Premises Liability.
  Applicability. —
 Acts 2013, 83rd Leg., ch. 50 (H.B. 278), § 3 provides: "The change in law made by this Act applies only to a cause of
action that accrues on or after the effective date of this Act [September 1, 2013]. A cause of action that accrues before
the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in
effect for that purpose."
 2013 amendment,
 added "including when used for space flight activities as defined by Section 100A.001" in (a)(10); and substituted
"Subchapter E, Chapter 212" for "Subchapter A, Chapter 230" in (a)(36).

LexisNexis (R) Notes:



CASE NOTES




1. Trial court properly denied a city's plea to the jurisdiction in an inverse condemnation claim brought by property
owners; the city's construction and operation of a landfill was a governmental function, subject to sovereign immunity;
nevertheless, the trial court did not have jurisdiction over the property owners' request for injunctive relief involving
future actions. City of Anson v. Harper, 216 S. W.3d 384, 2006 Tex. App. LEXIS 6055, 167 Oil & Gas Rep. 16 (Tex. App.
Eastland 2006).



2. Plaintiffs theory of liability that a city was liable under the Texas Tort Claims Act (Act) and the recreational use
statute for injuries to a child stemming from the city's willful, wanton, and/or grossly negligent conduct with respect to
its duties and failure to repair playground equipment properly alleged a claim for which the Act, as limited by the
recreational use statute, waived the city's sovereign immunity pursuant to Tex. Civ. Prac. & Rem. Code Ann. 0'
                                                                                                                        Page 1




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                                                  All rights reserved.

                         *** This document is current through the 2013 3rd Called Session ***

                                CIVIL PRACTICE AND REMEDIES CODE
                                TITLE 5. GOVERNMENTAL LIABILITY
                                    CHAPTER 101. TORT CLAIMS
                        SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITS

                                  GO TO TEXAS CODE ARCHIVE DIRECTORY

                                     Tex. Civ. Prac. & Rem. Code § 101.022 (2014)

§ 101.022. Duty Owed: Premise and Special Defects.

  (a) Except as provided in Subsection (c), 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 Section 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.

HISTORY: Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985; am. Acts 2005,
79th Leg., ch. 281 (H.B. 2702), § 2.88, effective June 14, 2005.

NOTES:

 Legislative Note. --
 * See Texas Litigation Guide, Ch. 290, Negligence; Ch. 293, Claims Against Governmental Entities; Ch. 333, Libel
and Slander.
 Applicability. --
 Acts 2005, 79th Leg., ch. 281 (H.B. 2702), § 8.01 provides: "Section 101.022, Civil Practice and Remedies Code, as
amended by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. A cause of
action that accrued before the effective date of this Act is governed by the law in effect at the time the cause of action
accrued, and that law is continued in effect for that purpose."
                                                                                                                   Page 1




 el              LexisNexis
1 of 1 DOCUMENT

                                        LexisNexis (R) Texas Annotated Statutes
                                 Copyright © 2014 by Matthew Bender & Company, Inc.
                                           a member of the LexisNexis Group
                                                  All rights reserved.

                          *** This document is current through the 2013 3rd Called Session ***

                                CIVIL PRACTICE AND REMEDIES CODE
                                TITLE 5. GOVERNMENTAL LIABILITY
                                     CHAPTER 101. TORT CLAIMS
                        SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITS

                                   GO TO TEXAS CODE ARCHIVE DIRECTORY

                                      Tex. Civ. Prac. & Rem. Code § 101.025 (2014)

§ 101.025. Waiver of Governmental Immunity; Permission to Sue

  (a) Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter.
    (b) A person having a claim under this chapter may sue a governmental unit for damages allowed by this chapter.

HISTORY: Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985.

NOTES:

 Legislative Note. --
 * See Texas Litigation Guide, Ch. 290, Negligence; Ch. 293, Claims Against Governmental Entities; Ch. 310,
Premises Liability.

LexisNexis (R) Notes:



CASE NOTES




1. In a corporation's action for damages against a municipal landlord for violations of the Deceptive Trade Practices
Act, Tex. Bus. & Com. Code Ann. § 17.41 et seq., breach of express and implied warranties, and fraud in a real estate
APPENDIX
   A5
                                                                                                                        Page 1




41) Lex sNexls
1 of 1 DOCUMENT

                                        LexisNexis (R) Texas Annotated Statutes
                                 Copyright © 2014 by Matthew Bender & Company, Inc.
                                           a member of the LexisNexis Group
                                                  All rights reserved.

                          *** This document is current through the 2013 3rd Called Session ***

                                LOCAL GOVERNMENT CODE
                   TITLE 8. ACQUISITION, SALE, OR LEASE OF PROPERTY
 SUBTITLE C. ACQUISITION, SALE, OR LEASE PROVISIONS APPLYING TO MORE THAN ONE TYPE OF
                                   LOCAL GOVERNMENT
 CHAPTER 271. PURCHASING AND CONTRACTING AUTHORITY OF MUNICIPALITIES, COUNTIES, AND
                          CERTAIN OTHER LOCAL GOVERNMENTS
  SUBCHAPTER I. ADJUDICATION OF CLAIMS ARISING UNDER WRITTEN CONTRACTS WITH LOCAL
                                  GOVERNMENT ENTITIES

                                   GO TO TEXAS CODE ARCHIVE DIRECTORY

                                          Tex. Local Gov't Code § 271.151 (2014)

§ 271.151. Definitions

  In this subchapter:
       (1) "Adjudication" of a claim means the bringing of a civil suit and prosecution to final judgment in county or
state court and includes the bringing of an authorized arbitration proceeding and prosecution to final resolution in
accordance with any mandatory procedures established in the contract subject to this subchapter for the arbitration
proceedings.

      (2) "Contract subject to this subchapter" means:
       (A) a written contract stating the essential terms of the agreement for providing goods or services to the local
governmental entity that is properly executed on behalf of the local governmental entity; or
        (B) a written contract, including a right of first refusal, regarding the sale or delivery of not less than 1,000
acre-feet of reclaimed water by a local governmental entity intended for industrial use.
      (3) "Local governmental entity" means a political subdivision of this state, other than a county or a unit of state
government, as that term is defined by Section 2260.001, Government Code, including a:
        (A) municipality;

        (B) public school district and junior college district; and
                                                                                                                        Page 2
                                              Tex. Local Gov't Code § 271.151




          (C) special-purpose district or authority, including any levee improvement district, drainage district, irrigation
district, water improvement district, water control and improvement district, water control and preservation district,
freshwater supply district, navigation district, conservation and reclamation district, soil conservation district,
communication district, public health district, emergency service organization, and river authority.

HISTORY: Enacted by Acts 2005, 79th Leg., ch. 604 (H.B. 2039), § 1, effective September 1, 2005; am. Acts 2013,
83rd Leg., ch. 1138 (H.B. 3511), § 2, effective June 14, 2013.

NOTES:

 Applicability. --
 Acts 2013, 83rd Leg., ch. 1138 (H.B. 3511), § 4(c) provides: "Sections 271.151(2) and 271.153, Local Government
Code, as amended by this Act, apply to a claim that arises under a contract executed on or after the effective date of this
Act [June 14, 2013]. A claim that arises under a contract executed before the effective date of this Act is governed by
the law in effect on the date the contract was executed, and the former law is continued in effect for that purpose."
 2013 amendment,
  added the (2)(A) designation; added (2)(B); and made a related change.

LexisNexis (R) Notes:



CASE NOTES




1. In a case involving a right of first refusal, summary judgment was properly granted to a navigation district on the
issue of immunity because a contract between the district and two lessees was not governed by maritime law; therefore,
under Texas law, the district was a governmental entity under Tex. Loc. Gov't Code Ann. § 271.151; as the district was
immune, there was no need to consider whether summary judgment was properly granted on a breach of contract case.
Brown Water Marine Serv. v. Aransas County Navigation Dist. No. 1, 2008 Tex. App. LEXIS 2955 (Tex. App. Corpus
Christi Apr. 24 2008).



2. Court properly granted the city's motion for traditional summary judgment, because governmental immunity had not
been waived, when the Tooke decision created a default principle of governmental immunity in contract cases that
should be followed until either the Texas Legislature or the Texas Supreme Court specifically addressed the application
of the proprietary-governmental dichotomy in contract cases. Wasson Interests, Ltd. v. City of Jacksonville, 2014 Tex.
App. LEXIS 7377 (Tex. App.--Tyler July 9, 2014).



 3. In a case in which a doctor alleged that a county hospital district breached its consulting agreement with him, the
  doctor could not rely on Tex. Loc. Gov't Code Ann. § 271.152 to establish the hospital district waived its sovereign
 immunity because he failed to present evidence that the contract was executed by the hospital district. Because the
 jurisdictional facts affirmatively negated the existence of subject matter jurisdiction, the trial court erred by denying the
- hospital district's plea to the jurisdiction regarding the doctor's claim. Sabine County Hosp. Dist. v. Packard, 2012 Tex.
App. LEXIS 2914 (Tex. App. Tyler Apr. 11 2012).
                                                                                                                        Page 1




                 LexisNexis
                                        LexisNexis (R) Texas Annotated Statutes
                                 Copyright © 2014 by Matthew Bender & Company, Inc.
                                           a member of the LexisNexis Group
                                                  All rights reserved.

                          *** This document is current through the 2013 3rd Called Session ***

                                LOCAL GOVERNMENT CODE
                    TITLE 8. ACQUISITION, SALE, OR LEASE OF PROPERTY
 SUBTITLE C. ACQUISITION, SALE, OR LEASE PROVISIONS APPLYING TO MORE THAN ONE TYPE OF
                                   LOCAL GOVERNMENT
 CHAPTER 271. PURCHASING AND CONTRACTING AUTHORITY OF MUNICIPALITIES, COUNTIES, AND
                          CERTAIN OTHER LOCAL GOVERNMENTS
  SUBCHAPTER I. ADJUDICATION OF CLAIMS ARISING UNDER WRITTEN CONTRACTS WITH LOCAL
                                  GOVERNMENT ENTITIES

                                   GO TO TEXAS CODE ARCHIVE DIRECTORY

                                          Tex. Local Gov't Code § 271.152 (2014)

§ 271.152. Waiver of Immunity to Suit for Certain Claims

  A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into
a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for
breach of the contract, subject to the terms and conditions of this subchapter.

HISTORY: Enacted by Acts 2005, 79th Leg., ch. 604 (H.B. 2039), § 1, effective September 1, 2005.

NOTES:

 Applicability. —
 Acts 2005, 79th Leg., ch. 604 (H.B. 2039), § 2 provides:"Sections 271.152, 271.153, and 271.154, Local Government
Code, as added by this Act, apply to a claim that arises under a contract executed before the effective date of this Act
only if sovereign immunity has not been waived with respect to the claim before the effective date of this Act. A claim
that arises under a contract executed before the effective date of this Act and with respect to which sovereign immunity
has been waived is governed by the law in effect on the date the contract was executed, and the former law is continued
in effect for that purpose."

LexisNexis (R) Notes:
APPENDIX
   A6
                                                                                                             Page 1




              City of Georgetown, Texas, Appellant v. Lower Colorado River Authority, Appellee

                                            NO. 03-12-00648-CV

                      COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

                                413 S.W.3d 803; 2013 Tex. App. LEXIS 10665


                                           August 23, 2013, Filed

SUBSEQUENT HISTORY: Related proceeding at City                [*805] In this interlocutory appeal, appellant City
of Seguin v. Lower Colo. River Auth., 2014 Tex. App.    of Georgetown (the City) challenges the trial court's order
LEXIS 401 (Tex. App. Austin, Jan. 15, 2014)             denying its plea to the jurisdiction based on governmental
Petition for review dismissed by, Motion granted by,    immunity. The underlying controversy concerns the
Settled by City of Georgetown v. Lower Colo. River      City's long-term contract to purchase electricity from
Auth., 2014 Tex. LEXIS 438 (Tex., May 30, 2014)         appellee, the Lower Colorado River Authority (the
                                                        LCRA). The LCRA sought declaratory relief concerning
PRIOR HISTORY:     [**1] FROM THE DISTRICT              the parties' rights and obligations under the contract, and
COURT OF TRAVIS COUNTY, 250TH JUDICIAL                  the City filed a plea to the jurisdiction, asserting that the
DISTRICT. NO. D-1-GN-12-002982, HONORABLE               LCRA's pleadings fail to demonstrate a valid waiver of
TIM SULAK, JUDGE PRESIDING.                             governmental immunity. Because we conclude that the
                                                        City has no immunity from this suit, we affirm the trial
DISPOSITION: Affirmed.                                  court's order denying the City's plea to the jurisdiction.

                                                        BACKGROUND
COUNSEL: For appellant: Mr. Lambeth Townsend, Mr.
Jose De La Fuente, Mr. Daniel Gonzales, Ms. Amy M.          According to its pleadings, the LCRA entered into
Emerson, Lloyd, Gosselink, Rochelle & Townsend, PC,     standard "Wholesale Power Agreements" with various
Austin, TX.                                             municipalities, including the City, in 1974. Under the
                                                        terms of the Wholesale Power Agreement, the City would
For appellee: Mr. John W. Rubottom, Mr. James N.        purchase 100% of its [**2] electricity from the LCRA
Rader, Lower Colorado River Authority, Associate        and then resell that electricity to the City's retail
General Counsel, Austin, TX; Mr. Kennon L. Wooten,      customers through its municipal utility. The Wholesale
Mr. Stephen E. McConnico, Ms. Jane M. N. Webre,         Power Agreement is set to expire June 25, 2016, and the
Scott, Douglass & McConnico, LLP, Austin, TX.           City has given LCRA notice of its intent not to renew the
                                                        contract.
JUDGES: Before Chief Justice Jones, Justices Goodwin
and Field. Dissenting Opinion by Justice Goodwin.            [*806] The LCRA asserts that on June 28, 2012, the
                                                        City sent a letter to the LCRA in which it alleged that the
OPINION BY: Scott K. Field                              LCRA had breached the terms of the Wholesale Power
                                                        Agreement by selling electricity to other customers at a
OPINION                                                 lower rate. According to the LCRA, the letter stated that
                                                                                                                    Page 2
                               413 S.W.3d 803, *806; 2013 Tex. App. LEXIS 10665, **2



the City would terminate the Wholesale Power                   S.W.3d 217, 226-27 (Tex. 2004).
Agreement within thirty days unless the LCRA cured the
alleged breach. On August 13, 2012, the City sent a                 Some of the issues in this case concern interpretation
follow-up letter in which it declared that the Wholesale       of statutes, which is a question of law that we review de
Power Agreement was terminated.                                novo. See First Am. Title Ins. Co. v. Combs, 258 S.W.3d
                                                               627, 631 (Tex. 2008). When construing a statute, our
     In response, the LCRA filed this underlying action,       primary objective is to ascertain and give effect to the
seeking a declaratory judgment that it has not materially      legislature's intent. Id. at 631-32. In determining
breached the Wholesale Power Agreement.1 The City              legislative intent, we first consider the plain language of
filed a plea to the jurisdiction, asserting that the LCRA's    the statute. GMC v. Bray, 243 S.W.3d 678, 685 (Tex.
pleadings fail to affirmatively demonstrate a waiver of        App.--Austin 2007, no pet.). When statutory text is clear,
the City's governmental immunity. In its amended               it is determinative of legislative intent, unless enforcing
pleadings, the LCRA asserts that the City has no               the plain meaning of the statute's words would produce
governmental immunity because this case arises out of          an absurd result. Entergy Gulf States, Inc. v. Summers,
the [**3] City's proprietary function, rather than its         282 S.W.3d 433, 437 (Tex. 2009). [**5] Our analysis of
governmental function. Alternatively, the LCRA asserts         the statute is also informed by the presumption that "the
that if the City has governmental immunity, that               entire statute is intended to be effective" and that "a just
immunity has been waived by statute. See Tex. Loc. Gov't       and reasonable result is intended." Tex. Gov't Code §
Code § 271.152 (waiving sovereign immunity for breach          311.021(2), (3). We may consider such matters as "the
of contract claims "subject to the terms and conditions of     object [*807] sought to be attained," "the circumstances
this subchapter"). Following a hearing, the trial court        under which the statute was enacted," legislative history,
denied the City's plea to the jurisdiction. This               and "common law or former statutory provisions,
interlocutory appeal followed. See Tex. R. App. P.             including laws on the same or similar subjects." Id. §
51.014(a)(8) (permitting interlocutory appeal from denial      311.023(1)-(4).
of plea to jurisdiction).
                                                               DISCUSSION
       1      The LCRA also sought injunctive relief
       "commanding [the City] to desist and refrain from            A municipality performs a governmental function
       taking any further action to prematurely terminate      when it acts "as the agent of the State in furtherance of
       the [Wholesale Power Agreement]." The trial             general law for the interest of the public at large." Gates
       court did not rule on the LCRA's request for            v. City of Dallas, 704 S.W.2d 737, 738-39 (Tex. 1986)
       injunctive relief, and that claim is not part of this   (internal quotations omitted), superseded by statute on
       interlocutory appeal.                                   other grounds as stated in City of Terrell v. McFarland,
                                                               766 S.W.2d 809, 813 (Tex. App.--Dallas 1988, writ
STANDARD OF REVIEW                                             denied). Given that the municipality is effectively acting
                                                               on behalf of the state when it performs a governmental
     A plea to the jurisdiction is a dilatory plea that        function, it is imbued with the state's sovereign
challenges the trial court's authority to determine the        immunity, and therefore is entitled to governmental
subject matter of a specific cause of action. See Bland        immunity.2 Id. By contrast, "[p]roprietary functions are
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.         those functions performed by a city, in its discretion,
2000). Governmental immunity from suit deprives a court        primarily [**6] for the benefit of those within the
of subject-matter jurisdiction and therefore [**4] is          corporate limits of the municipality." Id. Because the
properly asserted in a plea to the jurisdiction. State v.      municipality is not acting on behalf of the state when it
Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Whether a trial        performs proprietary functions, the municipality
court has subject-matter jurisdiction is a question of law     traditionally is not entitled to governmental immunity for
that we review de novo. Westbrook v. Penley, 231 S.W.3d        those functions, and thus has "the same duties and
389, 394 (Tex. 2007). When, as here, the plea to the           liabilities as those incurred by private persons or
jurisdiction challenges the pleadings, we construe the         corporations." Id.; see also Bailey v. City of Austin, 972
pleadings liberally in favor of the plaintiff, and unless      S.W.2d 180, 192-93 (Tex. App.--Austin 1998, pet. denied)
challenged with evidence, we accept all allegations as         (concluding that city's provision of health insurance to its
true. Texas Dep't of Parks & Wildlife v. Miranda, 133
                                                                                                                   Page 3
                               413 S.W.3d 803, *807; 2013 Tex. App. LEXIS 10665, **6



employees is proprietary function              for   which     unambiguously waive sovereign immunity).
governmental immunity does not apply).
                                                                      [*808] The arguments in this case primarily
       2     Courts frequently use the terms sovereign         concern whether the proprietary-governmental dichotomy
       immunity        and     governmental      immunity      applies to contract claims. As we will explain, this issue
       interchangeably, but the terms technically involve      involves two separate legal questions: (1) does the
       two distinct concepts. See Wichita Falls State          proprietary-governmental dichotomy apply to contract
       Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.          claims under the common law and (2) if so, has the
       2003). "Sovereign immunity refers to the State's        legislature abrogated the common law? In making these
       immunity from suit and liability," which extends        determinations, we first discuss the history and
       to "the various divisions of the state government,      underlying rationale for treating proprietary functions
       including agencies, boards, hospitals, and              differently than governmental functions. Next, we
       universities. Governmental immunity, on the             consider whether the common law applies the
       other hand, protects political subdivisions of the      proprietary-governmental dichotomy to contract claims.
       State, including counties, cities, and school           Finally, we determine whether the legislature has
       districts." Id. (internal [**7] citations omitted).     abrogated common-law precedent, thereby ending the
       Although this distinction does not affect our           application of the dichotomy to contract claims.
       analysis in this case, it is worth noting that when
       we refer to the City's immunity, or lack thereof,       History      and      [**9]      rationale             for
       we are referring to governmental immunity. See          proprietary-governmental dichotomy
       id.
                                                                    Texas has long recognized sovereign immunity as
      The LCRA asserts that when the City contracted to        the bedrock principle that "'no state can be sued in her
purchase power as a municipal utility, the City performed      own courts without her consent, and then only in the
a proprietary function rather than a governmental              manner indicated by that consent.'" See Tooke, 197
function. See Tex. Civ. Prac. & Rem. Code §                    S.W.3d at 331 (quoting Hosner v. DeYoung, 1 Tex. 764,
101.0215(b)(1) (defining "operation or maintenance of a        769 (1847)). This immunity extends to the various
public utility" as proprietary function for purposes of        divisions of the state government as well as its political
Texas Tort Claims Act). Therefore, according to the            subdivisions, such as the City. See supra n.2.
LCRA, the City has no governmental immunity from this          "[G]overnmental immunity has two components:
suit, which arises out of its operation of a municipal         immunity from liability, which bars enforcement of a
utility.                                                       judgment against a governmental entity, and immunity
                                                               from suit, which bars suit against the entity altogether."
     The City asserts that "the proprietary-governmental       Tooke, 197 S.W.3d at 332. When a governmental entity
function dichotomy is a creature of tort law" that does not    enters into a contract it "necessarily waives immunity
apply to contract claims. Specifically, the City argues that   from liability, . . . but it does not waive immunity from
because section 271.152 of the Local Government                suit." Id. Thus, when governmental immunity applies, a
Code--the statute that waives sovereign immunity for           governmental entity may not be sued for breach of
certain contract claims--does not mention the                  contract unless its immunity from suit has been waived.
proprietary-governmental dichotomy, the legislature            Id. We defer to the legislature to waive immunity from
intended for the dichotomy not to apply to contract            suit by statute or resolution. Wichita Falls State Hosp. v.
claims. Therefore, according to the City, municipalities       Taylor, 106 S.W.3d 692, 695-96 (Tex. 2003). The
have governmental immunity [**8] for contract claims           legislature's waiver of immunity [**10] from suit must
regardless of whether the claim arises out of their            be clear and unambiguous. Tooke, 197 S.W.3d at 332-33.
proprietary or governmental functions. As a result, the        These principles of immunity from suit and waiver of
City asserts that it has governmental immunity from            immunity are well established.
LCRA's claims and that LCRA cannot demonstrate a
clear and unambiguous waiver of the City's immunity.               However, it is also well established that before a
See Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.          court considers whether governmental immunity has been
2006) (noting that legislature must clearly and                waived, the court must determine whether governmental
                                                               immunity exists in the first place. See, e.g., City of El
                                                                                                                     Page 4
                               413 S.W.3d 803, *808; 2013 Tex. App. LEXIS 10665, **10



Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex. 2009)            62 Tex. at 125).
(explaining that ultra vires claims are not against state
and therefore do not implicate sovereign immunity).                  The courts have traditionally been left to determine
"[T]he distinction between waiving immunity and finding         which municipal functions are proprietary and which are
it nonexistent is a fine one that yields the same effect and,   governmental. See, e.g., Gates, 704 S.W.2d at 739.
'[d]ue to the risk that the latter could become a ruse for      However, in 1987, the Texas Constitution was amended
avoiding the Legislature, courts should be very hesitant to     to give the legislature the authority to "define for all
declare immunity nonexistent in any particular case.'"          purposes those functions of a municipality that are to be
Nueces Cnty. v. San Patricio Cnty. 246 S.W.3d 651, 652          considered governmental and those that are proprietary,
(Tex. 2008) (quoting City of Galveston v. Texas, 217            including reclassifying a function's classification assigned
S.W.3d 466, 471 (Tex. 2007)). Therefore, courts generally       under prior statute or common law." Tex. Const. art. XI, §
presume that governmental immunity applies. See id.             13(a). Thus, the legislature may, through statute, change
With these principles in mind, we turn to the history of        the common-law classifications of municipal functions,
the proprietary-governmental dichotomy.                         effectively "grant[ing] municipalities immunity [**13]
                                                                from certain suits that could have been maintained at
     Over 125 years ago, the Texas Supreme Court                common law." City of Tyler v. Likes, 962 S.W.2d 489,
considered the extent [**11] to which governmental              503 (Tex. 1997).
immunity applies to municipalities. City of Galveston v.
Posnainsky, 62 Tex. 118 (1884). In Posnainsky, a father              The legislature has exercised its authority to
sued a municipality for injuries resulting from his minor       reclassify proprietary functions as governmental
child's fall into an uncovered drain on a public street. Id.    functions almost exclusively in the Tort Claims Act.3 See
at 122-23. The court held that because the municipality         Tex. Civ. Prac. & Rem. Code § 101.0215; see also Likes,
constructed and maintained the streets for its "own             962 S.W.2d at 502 (noting that Tort Claims Act
advantage or emolument," it was not immune from suit            reclassified maintenance of storm sewers as
for [*809] negligently maintaining those streets. Id. at        governmental function even though considered
131. As the court explained, when a municipality                proprietary function at common law). As noted above, the
"exercises powers exclusively public in their character,        Tort Claims Act specifically defines the "operation and
forced upon it without its consent, simply because the          maintenance of a public utility" as a proprietary function,
state can thus, through such local agencies, more easily        thereby affirming its common-law classification, at least
and effectively discharge duties essentially its own, it is     with respect to tort claims. See Tex. Civ. Prac. & Rem.
but proper that no action should be maintained against"         Code § 101.0215(b)(1); San Antonio Indep. Sch. Dist. v.
the municipality unless the state has waived immunity           City of San Antonio, 550 S.W.2d 262, 264 (Tex. 1976)
from suit. Id. at 125. However, when municipalities             (noting that operation of public utility is proprietary
"exercise power not of this character, voluntarily              function at common law).
assumed--powers intended for the private advantage and
                                                                       3 The legislature has also specified that certain
benefit of the locality and its inhabitants,--there seems to
                                                                       public operations and government agencies
be no sufficient reason why they should be relieved from
                                                                       perform only governmental functions. See, e.g.,
that liability to suit and measure of actual damage to
                                                                       Tex. Transp. Code § 452.0561(b) (stating that
which an individual [**12] or private corporation"
                                                                       operations of public transportation entity are
would be held. Id.
                                                                       governmental functions); [**14] Tex. Water
     Posnainsky established what has become the                        Code § 67.0105(b) ("The furnishing of a water
proprietary-governmental         dichotomy.     When      a            supply and fire hydrant equipment by a
municipality exercises powers, public in nature, at the                governmental entity or a volunteer fire
direction of the state, it performs a governmental function            department. . . is an essential governmental
for which it has governmental immunity. But when a                     function . . . ."); Tex. Spec. Dist. Code §
municipality acts within its discretion, primarily for the             3503.002(b) (stating that operations of
benefit of those within its corporate limits, it performs a            "TexAmericas      Center"    are   governmental
proprietary function for which it has no immunity. See                 functions for all purposes). The City's contract
Nueces Cnty., 246 S.W.3d at 652-53 (citing Posnainsky,                 with the LCRA does not implicate any of these
                                                                                                                  Page 5
                             413 S.W.3d 803, *809; 2013 Tex. App. LEXIS 10665, **14



       provisions, and therefore these statutes are not             at 343-44.
       applicable to the case before us.
                                                                  However, the supreme court's opinion in Tooke has
The common-law rule and Tooke v. City of Mexia               brought that uniform assumption into question. In Tooke,
                                                             the       supreme       court      stated       that     the
    Posnainsky applied the proprietary-governmental          "proprietary-governmental dichotomy has been used to
dichotomy to a tort [*810] claim. See 62 Tex. at 125.        determine a municipality's immunity from suit for
Prior to Tooke, 197 S.W.3d at 343-44, the Texas appellate    tortious conduct. . . . [b]ut we have never held that this
courts--including this Court--also unanimously applied       distinction determines whether immunity from suit is
the proprietary-governmental dichotomy to claims for         waived for breach of contract claims . . . ,"5 197 S.W.3d
contract damages. See Bailey, 972 S.W.2d at 192.4            at 343. The court explained that it "need not determine
Although some of these opinions acknowledged that the        that issue" because the case involved a governmental
dichotomy was originally applied to tort claims, the         function, and thus, even assuming that the dichotomy
opinions mostly assumed, without explanation, that "the      applied, the municipality had governmental immunity. Id.
dichotomy applies with equal force to contract claims."      Nevertheless, Tookearguably called into question the
See City of Mexia v. Tooke, 115 S.W.3d 618, 624-25 (Tex.     vitality of the longstanding assumption that the
App.--Waco 2003), aff'd, 197 S.W.3d at 347.                  proprietary-governmental dichotomy applies with equal
                                                             force to contract claims as it does to tort claims. See East
       4     See also Temple v. City of Houston, 189         Houston Estate Apartments, L.L.C. v. City of Houston,
       S.W.3d 816, 819-20 (Tex. App.--Houston [1st           294 S.W.3d 723, 731-32 (Tex. App.--Houston [1st Dist.]
       Dist.] 2006, no pet.); [**15] City of Roman           2009, no pet.) (discussing appellate courts' post-Tooke
       Forest v. Stockman, 141 S.W.3d 805, 811 (Tex.         treatment of proprietary-governmental [**17] dichotomy
       App.--Beaumont 2004, no pet.); City of Mexia v.       for contract claims). However, until the supreme court
       Tooke, 115 S.W.3d 618, 624-25 (Tex. App.--Waco        answers this question, we rely on this Court's precedent,
       2003), aff'd, 197 S.W.3d 325, 347 (Tex. 2006);        as well as the [*811] nearly unanimous opinions of our
       Williams v. City of Midland, 932 S.W.2d 679,          sister      courts,      to     conclude        that     the
       683-84 (Tex. App.--El Paso 1996, no writ); City of    proprietary-governmental dichotomy applies to contract
       Houston v. Southwest Concrete Constr., Inc., 835      claims under the common law.
       S.W.2d 728, 732-33 (Tex. App.--Houston [14th
       Dist.] 1992, writ denied); City of Dallas v.                 5 Immediately following this sentence, the court
       Moreau, 718 S.W.2d 776, 779-80 (Tex.                         in Tooke cited Gates v. City of Dallas, a previous
       App.--Corpus Christi 1986, writ ref'd n.r.e.);               supreme court opinion in which the court noted
       International Bank of Commerce of Laredo v.                  that "[c]ontracts made by municipal corporations
       Union Nat. Bank of Laredo, 653 S.W.2d 539, 546               in their proprietary capacity have been held to be
       (Tex. App.--San Antonio 1983, writ ref'd n.r.e.);            governed by the same rules as contracts between
       Blythe v. City of Graham, 287 S.W.2d 527, 530                individuals." See Tooke, 197 S.W.3d at 343 n.89
       (Tex. App.--Fort Worth 1956, writ ref'd n.r.e.);             (citing Gates, 704 S.W.2d 737, 738-39 (Tex.
       Boiles v. City of Abilene, 276 S.W.2d 922, 925               1986)). Given that the disposition in Gates
       (Tex. App.--Eastland 1955, writ ref'd); City of              appears to have required an application of the
       Crosbyton v. Texas-New Mexico Util. Co., 157                 proprietary-governmental dichotomy to a contract
       S.W.2d 418, 420-21 (Tex. App.--Amarillo 1941,                claim, it is not entirely clear what the court in
       writ ref'd w.o.m.); Texas One P'ship v. City of              Tooke meant when it said, in dicta, that it had
       Dallas, No. 05-92-01097-CV, 1993 WL 11621, at                never held that the dichotomy applies to such
       *3 (Tex. App.--Dallas Jan. 15, 1993, writ denied)            claims. See id.; see also City of San Antonio ex.
       (not designated for publication). The parties do             rel. City Pub. Serv. Bd. v. Wheelabrator Air
       not cite to, and we could not find, any cases from           Pollution Control, Inc., 381 S.W.3d 597, 604
       the Texarkana or Tyler [**16] Courts of Appeals              (Tex. App.--San Antonio 2012, pet. filed)
       applying      or   refusing     to    apply     the          (concluding Tooke brings Gates into question).
       proprietary-governmental dichotomy to a contract             Nevertheless, [**18] we will take at face value
       claim prior to Tooke v. City of Mexia, 197 S.W.3d            the supreme court's conclusion that it has never
                                                                                                                   Page 6
                               413 S.W.3d 803, *811; 2013 Tex. App. LEXIS 10665, **18



       expressly held that the proprietary-governmental               arguments can be used as a "ruse" to circumvent
       dichotomy applies to contract claims.                          the legislature. See Nueces Cnty. v. San Patricio
                                                                      Cnty., 246 S.W.3d 651, 652 (Tex. 2008). While we
    Prior to Tooke, the appellate courts unanimously                  agree that courts should not make this
applied the proprietary-governmental dichotomy to                     determination               lightly,            the
contract claims. See supra n.3. Following Tooke, several              proprietary-governmental dichotomy has existed
appellate courts, including this Court, have assumed                  for over 125 years and has been applied to
without deciding that the dichotomy continues to apply to             contract claims for at least 70 years. See City of
contract claims. See, e.g., East Houston Estate                       Galveston v. Posnainsky, 62 Tex. 118 (1884); City
Apartments, L.L.C., 294 S.W.3d at 731-32; Smith v. City               of Crosbyton, 157 S.W.2d at 420-21. Therefore,
of Blanco, No. 03-08-00784-CV, 2009 Tex. App. LEXIS                   we disagree with the City's assertion that applying
7889, 2009 WL 3230836, at *3 (Tex. App.--Austin Oct. 8,               the proprietary-governmental dichotomy to
2009, no pet.) (mem. op.). At least one of our sister courts          contract claims is a ruse to avoid the legislature;
has     continued      to     expressly      apply       the          rather, it is a reasonable application of
proprietary-governmental dichotomy to contract claims                 jurisprudence that is nearly as old as the state
post-Tooke. See Casso v. City of McAllen, No.                         itself. See Posnainsky, 62 Tex. at 127-28.
13-08-00618, 2009 Tex. App. LEXIS 2049, 2009 WL
781863, at *5-7 (Tex. App.--Corpus Christi Mar. 26,                 In its brief, the City primarily relies on the San
2009, pet. denied) (mem. op.) (concluding municipality's       Antonio Court of Appeals' recent holding in City of San
provision of health insurance to its employee is               Antonio ex. rel. City Public Service Board v.
proprietary function for which it had no immunity from         Wheelabrator Air Pollution Control, Inc., 381 S.W.3d
contract claim). These opinions did not engage in              597, 603-05 (Tex. App.--San Antonio 2012, pet. filed). In
substantial analysis of why the dichotomy was equally          that case, the court held that the legislature's failure to
applicable to contracts, perhaps because they did not          include the proprietary-governmental dichotomy in "the
[**19] think such analysis was necessary.                      contract-claim scheme" meant that the dichotomy did
                                                               [**21] not apply. Id. at 605. In reaching this conclusion,
     Although Tooke brought this issue into question, it       the court did not expressly state whether the legislature
did not suggest, and we have not found, any principled         abrogated the common-law rule that would have applied
reason why the proprietary-governmental dichotomy              the dichotomy to contract claims. However, the court
should apply to tort claims but not contract claims under      noted that Tooke brought Gates--a previous supreme
the common law.6 See 197 S.W.3d at 343-44. Without             [*812]      court     opinion      that    applied      the
such a principled reason or guidance from the supreme          proprietary-governmental dichotomy to a contact
court, we are reluctant to overturn our own precedent or       claim--into question because Tooke "used a compare
disagree with persuasive authority from the majority of        signal when citing Gates right after explicitly stating it
our sister courts on the issue. See Grapevine Excavation,      has never held that the proprietary/governmental
Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex. 2000)            distinction applies to determine whether immunity is
("Adhering to precedent fosters efficiency, fairness, and      waived for breach of contract claims. . . " Wheelabrator,
legitimacy."); see also Bailey, 972 S.W.2d at 192; supra       381 S.W.3d at 604 (citing Tooke, 197 S.W.3d at 343
n.3. The proprietary-governmental dichotomy exists             n.89). To the extent Wheelebrator's analysis suggests that
because we have determined that when a municipality            Tooke changed the common law, we respectfully
does not act on behalf of the state, it is not imbued with     disagree.
the state's immunity. Thus, the underlying rationale for
the dichotomy is the relationship, or lack thereof,                 We agree that Tooke's citation to Gates could be read
between the municipality and the state, not the                to mean that Gates did not expressly hold that the
relationship between the municipality and the party            proprietary-governmental dichotomy applies to contract
bringing suit. See Posnainsky, 62 Tex. at 126-128.             claims, and thus there is no binding precedent from the
                                                               supreme court that answers this question. See supra n.4.
       6 The City argues that we should be hesitant to         Nevertheless, we do not agree with Wheelebrator's
       conclude that governmental immunity does                intimation that Tooke changed the common law or
       [**20] not exist in this context because such           somehow called the holding of Gates into question.
                                                                                                                      Page 7
                               413 S.W.3d 803, *812; 2013 Tex. App. LEXIS 10665, **22



[**22] By its own terms, Tooke assumed without                 dichotomy [**24] no longer applies to contract claims.
deciding that the proprietary-governmental dichotomy           The City again relies on the analysis in Wheelebrator, in
applied to contract claims and therefore did not overrule      which the San Antonio Court of Appeals stated the
any prior precedent. See 197 S.W.3d at 343. Furthermore,       following:
the underlying analysis in Tooke primarily concerned
whether the phrase "plead and be impleaded" within the                      The Legislature easily could have
local government code was a clear and unambiguous                      included the proprietary/governmental
waiver of sovereign immunity. See id. at 342-43. As we                 dichotomy it used in the tort-claims
have explained, the proprietary-governmental dichotomy                 context [*813] in the contract-claim
concerns whether a municipality has governmental                       scheme, but chose not do so. As it is solely
immunity in the first place, not whether that immunity                 the Legislature's role to clearly and
has been waived. Therefore, Tooke's analysis of waiver of              unambiguously     waive      governmental
immunity        has     little   bearing      on      the              immunity from suit, and it has not done so
proprietary-governmental dichotomy, and the more                       for quantum meruit claims, we hold [the
relevant precedents are those cases addressing whether                 municipality] is immune from suit on
governmental immunity exists in the first instance. See,               Wheelebrator's quantum meruit claim.
e.g., Heinrich, 284 S.W.3d at 371-72; Nueces Cnty. 246
S.W.3d at 652-53.                                              See 381 S.W.3d at 605 (internal quotation omitted).
                                                               Because we conclude that this analysis incorrectly places
     For the foregoing reasons, we adhere to our               the burden on the legislature to affirmatively adopt the
precedent and conclude that the proprietary-governmental       common-law rule, we respectfully disagree.
dichotomy does apply to contract claims under the
common law. See Bailey, 972 S.W.2d at 192. Having                   We are mindful of the fact that although "silence can
made this determination, we next consider whether the          be significant . . . . legislatures do not always mean to say
legislature has abrogated that common-law [**23] rule.         something by silence. Legislative silence may be due to
                                                               mistake, oversight, lack of consensus, implied delegation
Legislative intent                                             to courts or agencies, or an intent to avoid unnecessary
                                                               repetition." PPG Indus., Inc. v. JMB/Houston Ctr.
     In its brief, the City argues that the legislature's      Partners Ltd. P'ship, 146 S.W.3d 79, 84 (Tex. 2004).
failure to expressly adopt the propriety-governmental          Therefore, in order to give effect [**25] to the
dichotomy for contract claims indicates that the               legislature's intent, we must utilize other tools of statutory
dichotomy does not apply. As we have noted, the                construction. See Tex. Gov't Code § 311.023. In
legislature has the authority to reclassify a municipality's   particular, we consider the common law's treatment of the
functions as either proprietary or governmental, thereby       proprietary-governmental dichotomy prior to the
abrogating their common-law classifications. See Tex.          adoption of section 271.152, as well as the legislative
Const. art. XI, § 13(a). The legislature has exercised this    history and purpose behind that section's adoption. See id.
authority almost exclusively in the Tort Claims Act, in        § 311.023(3)-(4); Tex. Loc. Gov't Code § 271.152.
which it provided non-exhaustive lists of proprietary and
governmental functions. See Tex. Civ. Prac. & Rem.                  Section 271.152 was signed into law on June 17,
Code § 101.0215; supra n.3. Section 271.152 of the Local       2005, just over one year before the supreme court issued
Government Code--the section that waives local                 its opinion in Tooke. See Act of May 23, 2005, 79th Leg.,
governmental entities' immunity from suit for certain          R.S., ch. 604, §§ 1-2, 2005 Tex. Gen. Laws 1548, 1549;
contract      claims--does       not      reference     the    see also Tooke, 197 S.W.3d at 325. At the time the
proprietary-governmental dichotomy. Given that chapter         legislature considered and adopted section 271.152, the
271 does not mention the proprietary-governmental              appellate      courts    unanimously      applied     the
dichotomy in any respect, there is no plain statutory text     proprietary-governmental dichotomy to contract claims in
from which we can determine whether the legislature            the same manner that they applied the dichotomy to torts.
intended to abandon the dichotomy for contract claims.         See supra n.3. We presume that the legislature was aware
                                                               of the state of the common law when it adopted section
     The City asserts that we should take the legislature's    271.152. See Shook v. Walden, 304 S.W.3d 910, 917 (Tex.
silence to mean that the proprietary-governmental
                                                                                                                     Page 8
                               413 S.W.3d 803, *813; 2013 Tex. App. LEXIS 10665, **25



App.--Austin 2010, no pet.). The legislature did not                   various contract claims. See Clear Lake City
express any disagreement with that precedent; therefore                Water Auth. v. MCR Corp., No. 01-08-00955-CV,
we presume that the legislature did not intend to abrogate             2010 Tex. App. LEXIS 2194, 2010 WL 1053057,
[**26] the common law. See Cash Am. Int'l Inc. v.                      at *9 n.6 (Tex. App.--Houston [14th Dist.] March
Bennett, 35 S.W.3d 12, 16 (Tex. 2000) ("Abrogating                     11, 2010, pet. denied) [**28] (mem. op.).
common-law claims is disfavored and requires clear
repugnance between the common law and statutory                      Finally,     as     we      have    explained,      the
causes of action.") (internal quotations omitted).              proprietary-governmental dichotomy concerns whether
Furthermore, although the legislature could have repeated       governmental immunity exists in the first place, not
the list of proprietary and governmental functions from         whether it has been waived. Therefore, the statutory
the Tort Claims Act in some part of chapter 271 of the          provision that waives governmental immunity in chapter
Local Government Code, it could have reasonably                 271       does      not      logically    implicate      the
concluded that such repetition was unnecessary. See Tex.        proprietary-governmental dichotomy, which applies
Civ. Prac. & Rem. Code § 101.0215; PPG Indus., Inc.,            before consideration of waiver. As a result, the legislature
146 S.W.3d at 84 (noting legislative silence may indicate       could have reasonably believed it did not need to reiterate
intent to avoid unnecessary repetition); see also Tooke,        the validity of the dichotomy in section 271.152. This
197 S.W.3d at 343-44 (concluding that there is "no reason       interpretation is directly supported by section 271.158, in
to think that the classification [of proprietary and            which the legislature expressly stated that nothing in
governmental functions] would be different under the            section 271.152 "shall constitute a grant of immunity to
common law ").                                                  suit to a local governmental entity."

     Similarly, the history behind section 271.152                   Therefore, we find that Wheelebrator's interpretation
indicates that it was adopted to expand, rather than limit,     of the legislature's silence is inconsistent with legislative
plaintiffs' ability to sue municipalities for contract          history and the purpose of section 271.152. We conclude
damages. As section 271.158 of the Local Government             that the legislature did not intend section 271.152 to
Code makes clear, nothing in section 271.152 "shall             abrogate the common law's treatment of the
constitute a grant of immunity to suit to a local               proprietary-governmental dichotomy. Having concluded
governmental entity." [**27] This is consistent with the        that the common law applies that dichotomy to contract
bill analysis for section 271.152, which states that it         claims, and that the operation of a municipal utility is a
"clarifies and re-expresses the legislature's intent that all   proprietary function, we further [**29] conclude that the
local governmental entities that are given the statutory        City was acting in its proprietary capacity when it entered
authority to enter into contracts shall not be immune from      into its contract with the LCRA. See Tex. Civ. Prac. &
suits arising from contracts, subject to the limitations set    Rem. Code § 101.0215(b)(1) (listing operation and
forth in C.S.H.B. 2039." House Comm. On Civil                   maintenance of municipal utility as proprietary function);
Practices, [*814] Bill Analysis, Tex. H.B. 2039, 79th           Tooke, 197 S.W.3d at 344 (using classification of
Leg., R.S. 2005. Thus, the legislative history strongly         municipal function in Tort Claims Act in application to
indicates that section 271.152 was adopted to expand--or        contract claim). Therefore, the City has no governmental
at a minimum not reduce--access to the courthouse.7 It          immunity from the LCRA's claims, and the trial court did
would be entirely inconsistent with this purpose to treat       not err in denying the City's plea to the jurisdiction on
section     271.152     as    an    abrogation     of    the    this basis.8
proprietary-governmental dichotomy for contract claims.
                                                                       8    Having concluded that the City has no
See Likes, 962 S.W.2d at 503 (noting that when
                                                                       governmental immunity, we need not address the
legislature    reclassifies   proprietary     function    as
                                                                       LCRA's alternative argument that the City's
governmental function, it expands governmental
                                                                       immunity has been waived.
immunity beyond common law).
                                                                CONCLUSION
       7 As our sister court explained, section 271.152
       was adopted to overrule various appellate court               We affirm the trial court's order denying the City's
       cases that found that governmental entities'             plea to the jurisdiction.
       immunity from suit had not been waived for
                                                                                                                 Page 9
                              413 S.W.3d 803, *814; 2013 Tex. App. LEXIS 10665, **29



    Scott K. Field, Justice                                        The        majority's      analysis      of       the
                                                              proprietary-governmental dichotomy also glosses over
    Before Chief Justice Jones, Justices Goodwin and          LCRA's pleadings. In its pleadings, LCRA does not
Field                                                         allege a breach of contract claim but seeks declaratory
  Dissenting Opinion by Justice Goodwin                       relief. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011
                                                              (UDJA); see, e.g., East Houston Estate Apartments,
    Affirmed                                                  L.L.C. v. City of Houston, 294 S.W.3d 723, 731 (Tex.
                                                              App.--Houston [1st Dist.] 2009, no pet.) (noting that
    Filed: August 23, 2013
                                                              courts       of    appeals      have      "applied     the
DISSENT BY: Melissa Goodwin                                   governmental-proprietary dichotomy to breach of
                                                              contract cases"). The UDJA "does not enlarge a trial
DISSENT                                                       [**31] court's jurisdiction." City of El Paso v. Heinrich,
                                                              284 S.W.3d 366, 370 (Tex. 2009). Except for suits
     Because I would conclude that the Lower Colorado         challenging statutes or ordinances, the UDJA does not
River Authority (LCRA) failed to allege a valid waiver of     waive governmental entities' immunity from suit. See id.;
governmental immunity from suit by the City of                IT-Davy, 74 S. W.3d at 855-56; Multi-County Water
Georgetown (the City), I respectfully dissent. See            Supply, 321 S.W.3d at 907 (noting that UDJA "is not a
McCandless v. Pasadena Indep. Sch. Dist., No.                 general waiver of governmental immunity" and that "[b]y
03-09-00249-CV, 2010 Tex. App. LEXIS 2383, 2010 WL            entering into a contract, a governmental entity waives
1253581, at *3 (Tex. App.--Austin Apr. 2, 2010, no pet.)      immunity from liability but does not waive immunity
(mem. op.) ("Plaintiff bears the burden to affirmatively      from suit"); Lower Colorado River Auth. v. Riley, No.
demonstrate the trial court's jurisdiction by alleging a      10-10-00092-CV, 2011 Tex. App. LEXIS 10236, 2011 WL
valid waiver of immunity, [**30] which may be either          6956136, at *2 (Tex. App.--Waco Dec. 28, 2011, no pet.)
by reference to a statute or to express [*815] legislative    (mem. op.) (UDJA "not general waiver of sovereign
permission." (citing Texas Dep't of Transp. v. Jones, 8       immunity"). Thus, LCRA's UDJA claims do not satisfy
S.W.3d 636, 637 (Tex. 1999))).                                its burden to allege a valid waiver of immunity from suit.
                                                              See, e.g., IT-Davy, 74 S.W.3d at 855-56, 860 (stating that
     The majority concludes that the "City has no             immunity generally protects a governmental entity from
immunity from this suit" based upon its conclusion that       declaratory-judgment suits that seek to establish a
"the City was acting in a proprietary capacity when it        contract's validity or enforce performance under the
entered into its contracts with the LCRA." This               contract "because such suits attempt to control state
conclusion, however, ignores the well-established             action").
doctrine of governmental immunity that protects political
subdivisions of the state, including cities, from suit. See        LCRA's pleadings also fail to establish that section
Ben Bolt v. Texas Political Subdivisions, 212 S.W.3d 320,     271.152 of the Local Government Code applies to waive
324 (Tex. 2006); Tooke v. City of Mexia, 197 S.W.3d 325,      the City's immunity from suit: the LCRA expressly states
328 (Tex. 2006); Multi-County Water Supply Corp. v.           it is not bringing a breach of contract claim for money
City of Hamilton, 321 S.W.3d 905, 907 (Tex.                   damages.1 See Tex. Loc. Gov't Code §§ 271.151-.160
App.--Houston [14th Dist.] 2010, pet. denied). "A             (waiving immunity of local governmental entities for
political subdivision enjoys governmental immunity from       [*816] breach of contract claims that seek to recover
suit to the extent that immunity has not been abrogated       balance owed under a contract for goods or services and
by the Legislature." Ben Bolt, 212 S. W.3d at 324 (citing     limiting recoverable damages); McCandless, 2010 Tex.
Texas Natural Res. Conserv. Comm'n v. IT-Davy, 74             App. LEXIS 2383, 2010 WL 1253581, at *3 (concluding
S.W.3d 849, 853 (Tex. 2002)); Multi--County Water             "without a properly pleaded breach-of-contract [**32]
Supply, 321 S.W.3d at 907 ("Immunity from suit deprives       action, section 271.152 does not waive governmental
the trial court of subject-matter jurisdiction and bars an    immunity"); cf. Ben Bolt, 212 S.W.3d at 323, 328
action against the governmental unit in the absence of        (concluding that limited statutory waiver in section
express, clear, and unambiguous consent to suit." (citing     271.151 applied to insurance coverage dispute in
Tex. Gov't Code § 311.034; Tooke, 197 S.W.3d at               "declaratory judgment action seeking a determination that
332-33)).                                                     the loss was a covered occurrence under the insurance
                                                                                                             Page 10
                             413 S.W.3d 803, *816; 2013 Tex. App. LEXIS 10665, **32



agreement's terms"); City of San Antonio v. Wheelabrator    at 637 (plaintiff's burden to allege valid waiver of
Air Pollution Control, Inc., 381 S.W.3d 597, 599-600        immunity). I would conclude that LCRA failed to do so.2
(Tex. App.--San Antonio 2012, pet. filed) (plaintiff
seeking money damages under a breach of contract claim             2 I also cannot join the majority's analysis of
or, alternatively, a quantum meruit claim). LCRA does              section 271.152 of the Local Government Code,
not seek to recover the balance owed under a contract.             the section expressly waiving immunity from suit
See Tex. Loc. Gov't Code § 271.153 (listing recoverable            for certain contract claims. See Tex. Loc. Gov't
damages).                                                          Code § 271.152. Section 271.151(2) defines a
                                                                   "contract subject to this subchapter" to mean "a
       1 In its pleadings, LCRA states: "it merely seeks           written contract stating the essential terms of the
       to construe LCRA's obligations under a state                agreement for providing goods or services to the
       statute and a contract and does not otherwise               local governmental entity that is properly
       attempt to control Defendants or establish their            executed on behalf of the local governmental
       liability for money damages.... LCRA does not               entity." Id. §271.151(2). Contracts properly
       seek to validate the contract, impose liability on          executed by a local governmental entity, such as a
       Defendants, or enforce their performance LCRA's             city, whether in its governmental or proprietary
       declaratory-action does not seek to establish that          capacity, fall within the plain language of a
       the City owes LCRA money or that the City                   "contract subject to this subchapter." See id.
       previously breached its contractual obligations."
                                                                Melissa Goodwin, Justice
    Although a governmental entity waives its immunity
from liability by entering into contracts, it was LCRA's        Before Chief Justice Jones, Justices Goodwin and
burden to allege a valid waiver of immunity from suit.      Field
See Ben Bolt, 212 S.W.3d at 324 ("By entering into a
                                                                Filed: August 23, 2013
contract, the State waives its immunity from liability
[**33] but not its immunity from suit."); Jones, 8 S.W.3d
APPENDIX
   A7
                                          CAUSE NO. CV-14-41722

CITY OF BONHAM                                                           IN THE DIS

Plaintiff,

vs.                                                                      FANNIN COUNTY, TEXAS

SIDNEY B. HALE, JR

Defendant.                                                               336th JUDICIAL DISTRICT


      PLAINTIFF'S FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT

        NOW COMES Plaintiff, City of Bonham and files this First Amended Petition against

Defendant, Sidney B. Hale, Jr. ("Hale" or "Defendant"), seeking declaratory judgment relief, and

in support thereof would show as follows:

                                            I. DISCOVERY PLAN

         1.       This matter shall proceed under a Level 2 Discovery Plan.

                                     II. JURISDICTION AND VENUE

        2.        This Court has jurisdiction over this matter pursuant to the Texas Declaratory

Judgment Act. Venue is appropriate in this Court because the subject property is located within

the boundaries of Fannin County, Texas.

                                                  III. PARTIES

         3.       Plaintiff is the owner of the property which is the subject of this lawsuit.

        4.        Defendant is a resident of Fannin County, Texas and may be served at 910 E. 11 th

Street, Bonham, Fannin County, Texas 75418.

                                                    IV. FACTS

         5.       City of Bonham owns a Quonset hangar on the grounds of the City of Bonham

Airport (the "Quonset Hangar"). By lease dated on or about June 18, 1984, Hale leased the




PLAINTIFF'S FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT AND INJUNCTION                         PAGE 1
                               •                                            •
Quonset Hangar from the City of Bonham ("the Lease"). A true and correct copy of The Lease

is attached hereto as Exhibit "A." Paragraph 4 of the lease incorporates into the Lease the terms

of the Rules and Regulations of the Bonham Municipal Airport, attached hereto as Exhibit "B."

        6.       The Lease by its terms expired 5 years after it was first signed. However, both

parties continued performing under the Lease on a month-to-month basis.

        7.       On February 13, 2012, The City Council of the City of Bonham adopted new

Airport Rules and Regulations (the "2012 Airport Rules and Regulations"), a true and correct

copy of which are attached hereto as Exhibit "C." Section 8 of the Airport Rules and

Regulations implies knowledge of them to people using the Bonham Municipal Airport. Section

7-6 contains language eliminating any liability of the City of Bonham for any damage to persons

or property.

        8.       After passage of the 2012 Airport Rules and Regulations, both parties continued

to perform under the Lease.

        9.       On December 6, 2013, a severe ice storm impacted the Bonham Municipal

Airport, causing widespread damage (the "Incident"). The roof of the Quonset Hangar collapsed

as a result of the Incident. Defendant claims over $400,000.00 in damages from City of Bonham

as a result of the collapse, notwithstanding that City of Bonham has pointed out the Hold

Harmless language in the 2012 Airport Rules and Regulations eliminating any claim he might

have.

         10.      On June 4, 2014, Hale's counsel sent a demand letter making a claim against

Plaintiff under the Texas Tort Claims Act. This letter is attached hereto as Exhibit D.




                                                                                              PAGE 2
PLAINTIFFS FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT AND INJUNCTION
                               •
         11.     Plaintiff has exhausted its attempts to secure Defendant's compliance with the

terms of the Lease and 2012 Airport Rules and Regulations, and is without further remedy, save

and except the intervention of this Court.

        V. CAUSE OF ACTION — REQUEST FOR DECLARATORY JUDGMENT

        12.      This action is being brought pursuant to Chapter 37 of the Texas Civil Practice

and Remedies Code. Section 37.004 of that Chapter states, in relevant part, that "A person

interested under a... written contract... or whose rights, status or other legal relations are affected

by a ...contract...may have determined any question of construction or validity arising under the

...contract...and obtain a declaration of rights, status or other legal relations thereunder."

        13.      In this matter, Defendant takes the position that he is not bound by the terms of

the Lease and, specifically, the Hold Harmless provision of the 2012 Airport Rules and

Regulations.

        14.      In contrast, the City of Bonham asserts that the Hold Harmless language does

apply either as a part of the Lease under principles of contract construction, under the doctrine of

ratification, or under the doctrine of subordination of contractual rights to local rules, laws and

ordinances.

         15.      Sovereign immunity protects governmental entities from lawsuits for money

damages. Texas Natural Res. Conservation Comm 'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002). Political subdivisions of the state, including cities, are entitled to governmental immunity

unless it has been waived. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.

2003). Sovereign immunity encompasses immunity from suit, which bars a suit unless the

governmental entity has consented, and immunity from liability, which protects the entity from




                                                                                                    PAGE 3
PLAINTIFF'S FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT AND INJUNCTION
                               •                                            •
judgments even if it has consented to the suit. Texas Dept of Transp. v. Jones, 8 S.W.3d 636,

638 (Tex. 1999).

        16.      Section 101.021(2) of the Texas Tort Claims Act (The "Act") provides that a

governmental unit is liable for "personal injury and death" arising out of the condition or use of

tangible personal or real property. Property damage, as Hale claims here, is not recoverable.

And while Section 101.0215(10) of the Act does include airports as a governmental function of a

municipality, that liability must still arise out of Section 101.021. See, e.g., City of Kemah v.

Vela, 149 S.W.3d 199, 203-04, n. 1 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).

        17. Moreover, even if sovereign immunity had been waived, Hale would be limited in

his damages. Under the terms of the Lease, he would not be able to maintain a claim for any

damages. Moreover, under Section 101.023(d) of the Act, liability for property damages against

a municipality is limited to $100,000.

        18.      This is a live, genuine controversy because the determination of this issue directly

affects the ongoing relationship between the parties.

        19.      Plaintiff requests the Court enter the following judicial declarations:

                 (a)       The Lease adopts the 2012 Airport Rules and Regulations.

                 (b)       By the terms of section 7-6 the 2012 Airport Rules and Regulations, Hale

                           has no claim against City of Bonham as a result of the Incident.

                  (c)      Plaintiff is immune from suit under the concept of sovereign immunity.

                               VI. REQUEST FOR ATTORNEY'S FEES

        20.       Plaintiff requests that this Court award Plaintiff its reasonable costs and attorney's

fees pursuant to the Texas Declaratory Judgment Act and Chapter 38 of the Texas Civil Practice

and Remedies Code.




PLAINTIFFS FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT AND INJUNCTION                           PAGE 4


                                                     A7
                                •                                                 •
                                     VII. CONDITIONS PRECEDENT

         21.      All conditions precedent to Plaintiff being entitled to bring this action and recover

the relief requested herein have been performed, have occurred or have been waived.

                                                  VIII. PRAYER

         WHEREFORE, Premises Considered, Plaintiff respectfully requests that the Court enter

the judicial declarations requested hereinabove and award Plaintiff its reasonable and necessary

costs and attorneys fees, and for such other relief to which Plaintiff may be justly entitled.

                                                        Respectfully submitted,

                                                        HELMES & GREENE, LLC




                                                       John Reen
                                                       Texas St      ar No. 00789777
                                                       jreenan@ lmsgreene.com
                                                       Christopher S. Kilgore
                                                       Texas State Bar No. 11398350
                                                       ckilgore@helmsgreene.com
                                                        1700 Pacific Ave., Suite 3740
                                                       Dallas, Texas 75201
                                                       Telephone: (214) 466-7910
                                                       Facsimile: (214) 466-7915

                                                        ATTORNEYS FOR PLAINTIFF
                                                        CITY OF BONHAM




PLAINTIFF'S FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT AND INJUNCTION                        PAGE 5
VIIIIIHX a
             •
                                                                                         •
 THE STATE OF TEXAS
 COUNTY OF FANNIN

                                  THXS LEASE AGREEMENT!

        Made and entered into by and between the City . off. Bonham,
 Texas, hereinafter called the Lessor and                          Sidney B. Halet Jr.
 and     t;r-I-e.jiy4,4a.tmi4a442r-y-   ficeiRvi          „via, ab°2.
                    •                                     1
 hereinafter palled the Lessee, WITMESSETH
                                               1   .




        The Lessor does hereby LEASE, GRANT pap LET unto the Lessee
herein, the folloWng described premises located and situated at
the City of Bonham. Municipal Airport; Metal. Quonset Hgt Hangar
                                               2,
        The said Lease shall be for a period of five . years,
effective from the date of this instrument. Likewise, the same
sh1;11 be renewable at a negotiable lease rate, at the option
of the City of Bonham! Texas, acting by and through its duly
designated representatives.
                                              3..
        The consideration for,this                     Lease   Agreement is .e72.0.0
monthly with the same being payable on the first business day
of each month or cm the date of the execution of the lease,
if the same is on an annual basis,                       -

                                                                                   g#9
       ill payments are to . he paid to the City ecr tery.at the
Bonham City Hall.
       •Failure to pay such rental, When the same shall become due
and owing, shall render this Lease Agreement pull and,vOid at
the option of the Lessor and wild . subject the Lessee to attorney
fees and costs should they fail to surrender such premises to
the said City.
                                              4.
       The Lessee herein agrees, obligates andbindshinself to
abide by the Rules and Regulations of the Bonham Municipal Air-
part, a copy of which are attached hereto and made. a part of this
lease by reference to the same_and for all purposes.
                             •                                         •
•
                                    • . 5,

         During the term of the lease Agreement the Lessee agrees

    to the. following terms and conditions.:
             (a)   The. Lessee will not alter, change qr remodel the
    premises or any Improvements thereon/ without first obtaining
    the prior consent, in writing, of the ,Bonham Airport Board.
             (b)   The Lessee will not sublet, rent or mortgage any
    part or Portion of the above desoribed premises, to anyone with-
    outfirst obtaining the written con-Sent of. the. Bonham Airport

    Board.
         (c)       The Lessee Shall have the right and privilege to
    place such items of_ personal property on the premises, as he

    desires, provided that, it is. in Compliance with the regulations
    established by the Bonham Airport Board.
                                       6.

         The lessee shall abide by- all FAA,. Rules and Regulations
                                                   .    . ,
    iril the occupancy of the premises- and shall also,aBida by a11 .
    City Ordinances or Resolutioailfthe said .city.
                                       7.
         Either party to this Lease Agreement shall,havp the right
    to terminate the same by giving 6. Months notice,           writingiof
                                                            .
    their desire to. terminate the lease/ and thwieffeetive date
    thereof.



    CITY OF BONHAM, TEXAS
    EXHIBITB
4
              •                                        •
                                      city of            BOIVI ► M
                                               SONHAM, TEXAS 75418

                            301 EAST FIFTH STREET • P .0. SOX 578 • TELEPHONE 583.3541




               RULES FOR AIRPORT HANGER USE


1. The Airport Manager will maintain a list of all aircraft
   hangered and fees charged. Past due rentals over three
   months will lose hanger space. Rental fees may be paid
   in advance.

2. The Airport Manager will maintain a current list of all
   aircraft owners desiring aircraft space. This list will
     identify space required for this person's specific air-
     craft (some types of aircraft will only go into certain
     stalls).

3. Only operational aircraft will be allowed to utilize
   hanger space. A reasonable time period for repairing
   out of commission aircraft will be allowed not to
   exceed 90 days if there is a waiting list.

4.   Hanger space is not transferable with sale of aircraft
     it there is a waiting list for space. If an aircraft
     owner with a hanger rented sells his aircraft with
     intent to purchase another of like size (will fit into
     same hanger space), he may maintain his hanger for 90
     days to complete the sales transaction provided the
     rent is paid through this period.

    The City of Donham Airport Board passed on the above
rules for hanger use effective March 14, 1978.

    we believe these few rules for hanger use at the Airport
will help the Airport Manager to operate the hanger rentals
and hanger priorities in a fair and equitable manner to
everyone involved.

    If you have any questions on the above, please contact
the Airport Manager.

                             Sincerely,
                                     •            •
                             r.
                            'Charles Slitith




                           33
•


    •




    EXHIBITC
                        •


                                 City of 113ortbam
                          Airport Rules and Regulations
                                Resolution No. ni312.3
    rusolut;on providing rules for the efficient and safe operation of the Jones Field Municipal
Airport (hereinafter referred to as the "Airport"); and to provide the greatest service for the
citizens of Bonham and the aviation public, is adopted by the City Council.

The definition of ''Airport'', "aircraft", "airplane", and other common terms used herein is as
defined in Part 1, Code of Federal Regulations, Title 14, Aeronautics and Space. "Airport" with
a capital refers to the specific airport for which these rules are adopted.

Section 1.     Use of Airport Restricted

No person, partnership ; firm, association, corporation or entity, Incorporated or otherwise, shall
use the Airport for any commercial activity, unless approved by the City Council or its duly
authorized agent.

Section 2,     General Rules and Regulations

The following rules and regulations shall be observed in the use arid operation of the Airport:
       Rule 2-1. Federal Air Traffic Rules of the Federal Aviation Administration (FM) for
       aircraft operated within the United States, and presently or hereafter effective, are
       hereby referred to, adopted, and made a part hereof as though fully set forth and
       incorporated herein In the event there is a conflict between this document and Federal
       Air Traffic Rules, then the latter shall apply.
      Rule 2-2. Safeguard of Persons and Property — The Director of Public Works shall at
      all limes have authority to take necessary and legal actions to safeguard any person,
      aircraft, equipment, or property at the Airport NOTAMS will be issued for actions
      affecting flight at the airport.
      Rule 2-3. Through-the-Fence Operations Prohibited — No private individual,
      partnership, FBC. company, or corporation shall be permitted direct ground access to
      the Airport by their aircraft, customers' aircraft, or private vehicle from property adjacent
      to or in the immediate vicinity of the Airport. Furthermore, no private individual,
      partnership, company, corporate, or customers' aircraft or vehicle shall be permitted
      direct, ground access to property from tine Airport — a practice commonly known as a
      "through-the-fence operation."
      Rule 2-4. Lien for Charges — To enforce the payment of any charge for repairs,
      improvements, storage, or care of any personal property by the City in connection with
      the operation of the Airport, the City may place 2 lien upon such personal property,
      which shall be enforceable as provided by law.
      Rule 2-5, Lien Possessory Right- To enforce the payment of any such charge, the
      Public Works Director/Airport Manager may retain possession of such personal property
      until all reasonable, customary, and usual compensation has been paid in full.

                                           Page 1 of 1

                                                                                       021312.3




                                            35
                 •                                                    •
 Rule 2-6. Unauthorized Signs and Equipment — No signs. non-aeronautical
 equipment, portable buildings, or trailers may be erected, moved-in, or installed on
 Airport property, except as may be specifically authorized by the Public Works
 Direct/Airport Manager,
 Rule 2-7. Surreptitious Activities — Any person observing suspicious, unauthorized or
 criminal activities snouid report such activities immediately to the Director of Public •
 Works, local police, officers of the Texas Department of Public Safety, and the
 Transportation Security Administration General Aviation Information Hotline at 1-866-GA
 SECUR(E) or 1-866-427-3287.
 Rule 2-8. Wrecked Aircraft — Every aircraft owner and hisiner pilot or agents, shall he
 responsible for notifying FAA, or NTSB if applicable: and promptly removing disabled or
 wrecked aircraft from the operational areas of the Airport. Director of Public Works shall
 also be notified and may provide additional guidance regarding removal of said aircraft,
 Rule 2.9, Repairs to Aircraft — All aircraft repairs shall be performed in accordance
 wi:h applicable FAA regulations. Repairs/maintenance shall be performed in hangars
 ',j7)k)ss operational circumstances make this impractical.
 Rule 2-13. Damage to Airport — Damage of any Kind by any person on Vie airport
 premises could result in criminal and/or financial liability to either the city and/or the
 vArier(s) of any personal property damaged.
Rule 2 - 11. Injury to Person — Persons entering the Airport ground side property by
euromo011e, other vehicular conveyance, or on foot (does not include persons in aircraft
using approved airside facilities) do so at their own risk and with no liability incurring to
the City for any injury or damage to person or property.
Rule 2-12. Authorized Aircraft — Aircraft with current and correct FAA Certificates of
Registration and Airworthiness. Use of the Airport by ultrelight aircraft (FAR 103) in the
weight shift control and powered parachute class shall be subject to approval by the City
Council and shall be in accordance with FM Order 5100.6 (latest change) and
appropriate FART, Part 61 and 163 arid any other rules established by the City.
Rule 2.13. Registration — All based aircraft shail provide registration Information
annually by January 15 ° to the Public Works Director,
Rule 2-14. Animals — All animals on airport premises are regulated by existing
ordinances enacted by the City of Bonham. In general, all animals shall be leashed and
under control of responsible party at all times.
Rule 2-15, Living Quarters - No person may make permanent living quarters on
Airport, unless specifically authorized by lease.
Rule 2 - 16. Intoxicants and Narcotics Prohibited — These substances are considered
illegal on the airport premises unless authorized by a medical professional.
Rule 2 17. Foreign Objects Care should be taken not to .deposit foreign objects on
       -


airport premises. If observed, please remove or notify Public Works Director.
Rule 2-15. Litter     Do not litter or allow litter to accumulate on the surface:; of the
airpor. Acceptable hangar conditions are addressed in hangar lease. Offenders may be
subject to removal and/or cleanup costs.




                                    Page 2 of 2

                                                                                021312,3




                                   310
                         •                                                  •
 Section 3.        Ground Operations

       Rule 3-1. - No unauthorized vehicles on taxiways or runways. The operator(s) of all
       authorized vehicles will be familiar with and follow all applicable rules and regulations of
       city/county/state and/or FM. All other vehicles will exercise caution while operating on
       applicable airport surfaces. Vehicles shall be vigilant when in proximity of buildings and
       provide adequate clearance for safe travel,
       Rule 3-2, - All vehicles shall yield right of way to aircraft in motion and emergency
       vehicles and not approach
       Rule 3.2. - Maximum recommended speed for ell vehicles is 15MPH unless otherwise
       posted.

Section 4. Airport Security

       Rule 4-1. - The Transportation Security Administration publication 'Security Guidelines
       for General Aviation Airports", Information Publication A-001 dated May 2004, is
       available for reference at their website - vv‘vw.rsa.gov/.
      This document is used by the Airport as a guideline to security en the Ai:port and is
      incorporated as a working document.

Section 5. Aircraft Operation Rules

      Rule 5-1. Aircraft Tie Downs
          A.  Unoccupied aircraft, that are not hangared, shall be parked on the ramp and tied
          down. During inclement weather or in the event overnight parking Is required the
          wheels should be chocked and brakes set. In the event ramp tie downs are not
          available, the grass areas immediately North of the ramp may be used on a
          temporary basis, however this will he at the pilots risk.

         B. All aircraft owners or their agents are responsible for the tie down or security of
         their aircraft at all times and particularly during inclement weather.
         C, Ramp parking is limited and any operator who requires their airplane to remain on
         the ramp over four days should notify the Director of Public Works. Nightly tie down
         fee. may apply,
      Rule 5-2. Running Aircraft Engines
         A. Pilots shall follow all procedures outlined in the AIM and applicable FARs related
         to starting of aircraft engines.
         El. No engine shall be started, run up, or warmed up until and unless the aircraft is
         in such position that the propeller stream or jet blast will clear all buildings, other
         aircraft, and groups of people.
     Rule 5 3. Damage to Airport lighttng - Report any airport lighting damage to Director
               -


     of Public Works immediately. Damage to lighting could result in liability as defined in
     'Rule 2-10,
     Rule 5-4. Taxiing Aircraft - All aircraft shall be taxied in a safe and responsible manner
     at a speed suitable to such operation. Departing aircraft yield to landing aircraft.
     Reckless operation will not be acceptable.



                                         Pagc 3 of 3
                                                                                    021312.3




                                           37
          Rule.5-5. Parking Aircraft
                A. Unattended aircraft shall not be parked within fifty (50) feet of an aircraft fuel
                pump or fuel service truck parking area,
               B. Aircraft shall not be parked in such a manner as to hinder the normal movement
               of other aircraft and traffic unless specifically authorized by the Director of Public
               Works and only as a temporary measure.
               C. It is the responsibility of the pilot in command when leaving a parked aircraft
               unaqerided to see that the brakes are set and / or it is properly chocked and / or tied
               down
          Rule 5-6. Authority to Suspend Operations - The Director of Public Works may
         suspend or resliiot any or all operations whenever such action is deemed necessary in
         the Interest of safety. Appropriate NOTAMS will be issued by the Director of Public
        Works. Any suspensions and restrictions will be temporary in nature unless
        circumstances require otherwise,
        Rule 5-7. Emergency Locator Transmitter (ELT) - All pilots are urged to monitor and
        report any observed ELT activation.
        Role 5-8. Standard Traffic Pattern and Altitude, Non Towered Airports - All flight
        acb/ity will adhere to FM Advisor/ Circular g0-86 (latest change)
        Rule 5-9. Clearing Public Right of Ways- - Aircraft operators are expected to be
        familiar with and comply with regulations and recommendations contained within
        FAR 77.
        Rule 5-10. Takeoffs on Other Than Runways - All takeoffs and landings will be
        performed only on active runway unless authorized by NOTAM.
         Rule 5.11,    Agricultural Sp raying Operations            Ag operations shall be
        accomplished in accordance with the standards of the Texas Department of Agriculture
        in an area sc designated by the Director of Public Works, Ag operators are required to
        secure adequate insurance to cover liability and cleanup costs in the event of a chemical
        spill.
       Rule 5.12.     Model Aircraft - Model aircraft not capable of carrying a person shall not
       be permitted to operate, take off or be launched from, fioWn over or land at the Airport.
       Model A/C operations for specific aeronautical events such as fly-ins or air shows may
       be approyed for specific times by the Director of Public Works.
Section 6 .       Fueling, Flammable Fluids. and Fire Safetx

       Rule 6-1.         Fueling Aircraft
              A. All aircraft shall be grounded with engine snot down prior to fueling.
              B. Fuel Storage in hangars Is governed by terms of hangar leases.
              C. Persons or businesses wishing to dispense fuel into their privately owned aircraft
              shall not be denied: however, all Commercial operators and Private use involving
              over 20 gallon of aviation fuel, must obtain a fuel permit Issued by the City
              D. All fueling facilities require prior approval of the City Council and pertinent
              conditions will be set on a case by case basis,


                                              Page 4 of 4
                                                                                          021312.3




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P. 0. Box 130246                                 A PRormsionm, CORPORATION                           Office: (281) 367-7732
The Woodlands, Texas 77393-0246                                                                   Facsimile: (281) 367-8003


Gary Linn Evans                                                                                      Direct: (832) 541-8037
E-mail: evans@texasaviationlaw.com


         June 4, 2014

         Mr. Bill Shipp                                   Via CMRRR No. 7013 1090 0000 2669 1742
         City Manager                                     Via Email: bonhamcitymanager®cableone.net
         City of Bonham, Texas                            and Via Facsimile No. 903-583-5761
         514 Chestnut
         Bonham, Texas 75418

         Re:    NOTICE, DEMAND, AND PROOF OF CLAIM: Sydney B. Hale and Stephen Hale,
         d/b/a H&M Aircraft Service; Hangar Collapse of December 8, 2013 at the City of Bonham
         Municipal Airport, Bonham Texas.

         Dear Mr. Shipp:

         The undersigned and this law firm represent Sydney and Stephen Hale, cUb/a H&M Aircraft Service
         (the "Hales") regarding the above-referenced matters. Please direct all future correspondence
         regarding this matter to the undersigned at the address, e-mail address, and/or facsimile number
         stated herein. Hereinafter, "you," "your," "City of Bonham," and/or the "City" shall refer to the City
         of Bonham, Texas.

         As you are certainly aware, on or about December 8, 2013, the hangar in which the Hales were
         conducting their aircraft repair and maintenance business at the City of Bonham Municipal Airport
         collapsed, causing extensive damages to the hangar and the property contained therein (the
         "Incident"). The hangar was used to conduct the Hales' aircraft related business and store multiple
         aircraft. After several months of correspondence with you and with others, on your behalf, we have
         been unable to reach an acceptable agreement resolving the damages sustained by the Hales, in
         whole or in part.

         While you have previously received actual notice of the Incident and the Hales' damages caused by
         the Incident, this correspondence shall serve as formal, written notice of the Hales' claims against
         the City of Bonham, including, but not limited to, any claims arising under the Texas Tort Claims
         Act. A preliminary listing of all of the items the Hales claim to be missing, lost, stolen, damaged,
         or otherwise responsible for the aggregate of the claimed economic losses has previously been
         provided, and is also attached hereto for your convenience.


                                                         41( a via dolga w. cum
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                                                             2,
                           •                                                •
Mr. Bill Shipp
City Manager
City of Bonham, Texas
June 4, 2014
Page 2

Prior to the Incident, the Hales informed the City of the observed and deteriorating condition of the
hangar. The City, specifically Mr. Ronnie Ford, on behalf of the City, unequivocally instructed the
Hales to immediately vacate the premises and to stay out of the hangar. There was a significant
likelihood that had the center section of the structure been supplementally supported at that time,
the hangar would not have collapsed. Indeed, it was not until several hours later, after the City's
failure to act that the hangar collapsed. Such action represents and assumption of complete command
and control over the premises. The City's failure to reasonably protect the hangar from further
collapse caused the damages incurred by the Hales, at least in part.

Following the Incident, an examination of the debris revealed that the apex bolts that held the top
seam of the roof together were extensively corroded, undersized, and apparently had not been
inspected in decades, making the hangar unsafe for occupancy and/or use. This presented an
unreasonably dangerous condition which posed an unreasonable risk of harm to the Hales. The City
was aware of this condition, yet did nothing to make the premises safe. Further discovery will be
required to more fully determine what other and further duties the City breached in connection with
the Hangar, including any inspections that might be required under the City's statutes.

This correspondence additionally serves as a final attempt to reach an acceptable offer of resolution,
including, but not limited to, full payment of the damages incurred by the Hales as a result of the
City's actions and/or failure to act, as well as the availability of hangar space at the Bonham Airport
as to the Hales for and in support of their aircraft maintenance business. The Hales have been
conducting their maintenance business at the Airport for many decades. The availability of hangar
space to continue their business is a key material aspect to any potential solution to the issues that
have arisen as a result of the Incident. However, Airport personnel seem to take particular delight
in frustrating and impeding the Hales' attempts at continuing their business, completely
unnecessarily so in our view.

 We anticipate your prompt cooperation with an attention to these matters. If we fail to receive a
response from you within thirty (30) days of the receipt of this notice, we will proceed with all
judicial measures available to recover compensation for all of the damages you have caused the
Hales, all as allowed and set forth under the Texas Tort Claims Act.

                                       Sincerely,

                                       COATS & EVANS, P.C.

                                       /s/ Gary L. Evans
                                       Gary L. Evans

Encl.



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                                                                                               INVENTORY LIST FOR I-1 8 M AIRCRAFT SERVICE
                                                                                                           Bonham, Texas 75418
                                                                                                           at Jones Field Airport
                                                                                                 Loss from December 8, 2013 Building Collapse
                                                                                                                                                                       subtotals       527 . 510 50   $222.608.90       $418. 801.50

              BRAND NAME                          MODEL*        AGE OF ITEM     QUANTITY                                          ITEM DESCRIPTION                                 , URC BASE PRICIESTIMATED VAIJAEPLACEMENT VALU
 Whelan Strobe Tester                        B-148-000          1 year              1       Whelan Strobe System Tester                                                                   $128   50
 Site Built                                                     18 yews             1       Portable Office                                                                            $20,000   00    $20,00060         $22,000.00
 Champion                                   CT -475             17 Years            1       Spark Plug Tester and Cleaner                                                               31,000   00     $1.000.00         $1,700.00
 Carnbell Hausleld                          TF000821H           18 years            1       Campbell Hausfeld Commercial Air Compressor .Attachments &Hose                              33,600   00     $5,000.00         $3.600.00
,Unknown                                    Unknown             15 - 20 years      All      Tables and Cabinets                                                                                         $2,000.00         $3,000.00
lWiliams                                    Unknown             8 Years            12        Combination Wrenches 181/8" - 2"-12 point                                                        650      $84900.00          $1,112.00
 Champion                                   Numerous            New                48        Champion Spark Plugs                                                                       31,332 00       $1,332.00         $1,332.00
 mss ,                                      106 173.781         40 Yeas             1       . Small Air Compressor 2 cyl. 2h.p. 20 ga1.7.0 scfm @SOPS!                                                    $600.00           $300.00
'TELEDYNE CONTINENTAL                       o-200 Series        40 Years            1        Cessna 150-0-200 Series Engine w/All Accessories TCM                                                      $10,000.00        $25,000.00
    PON                                     PA -24 -250         54 Years            1        Piper PA-24 -250 Commanche Low line                                                                       $50000.00         $60,000.00
                                            1501_               41 Years            1        Cessne 150 N10732 IF R Cert. , New Minenum Ed. Engine, Avionics Upgrade                                   $30000.00,        $36. 000.00
'Wag Aero                                   Name                 New                2       Marco 10                                                                                                                      $1,178.00
    R8D,Kamas,Kleen-Ez                      E330                18 Years            1       Cleaning VAT and Solution                                                                                     1559.90           $900.00
    Buffalo                                                     18 Years            1       Large Hydraulic Press 12 Ton And Accessories                                                                  $eoo.00         $1,000.00
    Various Brands                                              3 - 20 years        8       Jack                                                                                                        $3,500,00,        ;3,500.00
    Cessna                                  0-200 Series        Used                2       amine Mounts      FOf 0-200 Engines                                                                         $2.006.00         $3,200.00
    Various                                 Multiple            1 - 39 years     Multiple !Regular Tools                                                                                                $5,000.00         $5,000.00
    Various                                 Multiple            New To 5 Year    Maki* !Tool Cabinet Chest and Tools By Office                                                                          $1,500.00-        $3,000.00
    Unknown                                 N/A                 2 Years             1     ; 4 °UMW Tool Cart - Blue                                                                                       $800.00           $800.00
    Various, Dell                           Multiple            10 - 16 Years      2        computers and Equipment                                                                                     $4,009.09.        $6,66000
    Aerostell                               Multiple            New                10       Now Cases of Av. 011 Aeroshell                                                                                $700.00           $960.00
    Icpn Vertex                             A24, VXA220           5 Years           2     Portable Aircraft Radios                                                                                        $850.00 '         $850.00
AY Comm, David Clark                        AC-900, H10-66        4-10 years        5     Aircraft Head Sets                                                                                            $1,500.00         $1,718.57
;Premier Motets Inc.                        Multiple          . .25 Years       _Multiple Aircraft Rolls And Sheets Of Aluminum. Sheet Metal                                                              $500.00;        $2,500.00
1.10,110 DOW                                                      16 Years         20     3 - Shelf 47" W x 36.4 " H x 27.6" D. Shelving                                                                s3500.00'        $19,00000
                                            Various               New            6 Boxes Champion Spirit Plugs . Various irk      $27.70 Per Plug
                                                                                                                                  a                                                                       .apo.00 I ,     $1,994.40
! 1=1/99.nlinfi                             0-360                .5 Years           2     Aircraft Cylinders
'Garman                                                           4 Years            1    Gamin GPS, Accessories,Mount, Full Manual, Software Update                                                    $3,500.00!      $3,509.00
  Siff.*,_Bendix                             Various              8 Years         2 Bets, Magnetoes & Ignition Harnesses                                                                                $2,800.00                  80 1.
  Delco                                     .Multiple             5-20 Years        2       Starters - Delco                                                                                              $400.00           $905
                                            !Mum*              .0_ 7.20 Years       2       Generators
 Weg_Aerg,chief, Aircraft Spruce            nee«ied             !All               AN       AN Bolts and Screws                                                                                                           $eocosp.
!AlVsk._A•roShief, Aircraft Spruce, Avian   Assorted            All                All      Fasteners                                                                                                     $809.430 :.     $3,000.00
MagAero,Shief, Aircraft Spruce . Aviall     Assorted             All               All      Rivets                                                                                                      $150000;_,        $2,500.00
                                            15X                AO Years             1       : Strut Pump-Pneumatic                                                                                      $1,000.00;          $500.00
    All Rewired                             Assorted           All Up To Date      Al      'Aircraft Manuals & All Current Revisions E. Sutegrtgions                                                   $10,000.00;       $25,000.00
                                            7AC                      Years         2 . Magneto Switches                                                                                 $1,000.00       $1,50003          $1,500.00
                                            260                ;20 Years           1        Simpson 260 VOM And Case And Lead Attadanents                                                                 $350.00-
    MS.PAL199/1. _                          MSC*04240941         25 Years           1      ,Etcher And AI Attectabents                                                                                    t490:09!, .     _$554,331
                                            Unknown              20 Years          1       :Commercial Wet Dry VOCUUM                                                                                     $200.00.          $648.00 '
 1-9.calHatciamfo
              : AlPre                                             5 years           1   ...iGelvanaed Parts Wash Container                                                                                $100.00',         $100.00.
;Nrcre. 6,6fIM6                             20 Gal.,LH/RH        8 Years                    Wur.nirNm
                                                                                                    _.F4e1TanIC.1-1*FtH                                                                                   $25.0 •00 :     $1100,7.4
INB;r1fIPnice                               Various              4 Years           AN       •Gesket Material                                                                                              120049 .       . ;40410
 Rglige_Electric Co.Stay Warn,                                   25 Years           1        Electric Injector cleaner Pot 110 Volts                                                                      $15000            $300.00 _ :
          gEo,                              4 Drawer             28 Years           5        Fib Cabinets 4 Drawer Commercial Vertical Files                                                              $750.00         $1,149.95 '
                                            Multiple             All               All      .Assorted.t1sed Aircraft Parts                                                                              $2,500.00!        $5,000.00
!   The Tank Depot                                             , 22 Years           1        Portable Fuel Tank With Pump Hose, And No )e                                                                                   $650.00
                                                                                                                                                                                                        _ $60190
    Chicago Pneumatic                       CP872                25 Years           3        Die Gnrider                                                                                                  P0 0,99. .        $250.00
    Sears                                                        35 Years           1        Bench Grinder and Stand W/ Wire Brush                                                                        $100.00;          $250.00
    Sears                                   Dremel 4000          3 Years            1        Dremel 4000 - 6/50 w/ Rotary Tool Kit                                                                        $100.00'          $170.00
    Sears                                   Des ilbiss           30 years           2       : Aircraft Spray Guns and Equipment                                                                           $000,90           $823.28
    Lowes                                   300 -Ft Cart Hose Re 5 Years            5       Water Hose Can                                                                                                $150.00           $208.33
    Aircraft Spruce                         Various             1- 10 Years        All      Jumper Cable Sets And Adaptor Power Plugs                                                                     $300.00.          $983.50
    Local Business                          N/A                 12 Years            1       16'x4' Professional Business Sign                                                                             $600.00           $800.00
    Watson Electric                         Venous              1 - 15 Years       All      Space Heaters - Office                                                                                         $60.00!          $300.00
    Superior                                MOO*                1 - 10 Years       All      AN Mac. Gasket 0/H Continental 8 Lycoming Engine Sets                                                       $3000.00          $3,000.00
    Walton                                                      22 Years            1       Bench and Vise                                                                                                $150.00           $300.00
    Burroughs                               N/A                 22 Years           All     Specialty Aircraft Cylinder Wrenches                                                                         $2,000.00         62.690.0 3.
    Local Business                          WA                  15 Years           All     Furniture - Desks, Couch, Curtains, Fumishngs                                                                $2,500.00         $2,500.00
    Chef. Wag Aero,Aircrall Spruce                              1 - 30 Years       All     Multiple Different Solenoid Contactors . .                                                                   $1.500.00         $3,000.00
    Aviall                                  Multiple            1 - 6 Years     Ful Rack Aircraft Tires and Tubes                                                                                         $500.00         $1,800.00
    Multiple                                Multiple            1 - 30 Years     Multiple Electrical Equipment, AviationWirerdPmectors
                                                                                                                          ._                                                                              $500.00         $1,500.00
    Brown Tool Co.Yard Store                                    1- 30 Years      Multiple  Pneumatic Tools                                                                                                $500.00         $5,000.00
    Grainger, Other                         mum*                1- 10 Years      Multiple Butane, Kerosene Heaters, Smudge Pots - Shop                                                                  $2,500.00         $1,500.00
Grainger                           8500 CFM              15 years           2       Champion Water Coolers- Shop                                                  $300.00     $3.868.00
Watson Electric                    Lights                13 Years           2       Fixed Lights 230 Volt                                                                       $200.00
Local                              Various               15 - 20 Years     All      Electrical Service - Disconnect - Shop Panel - Office Panel and Wiring      54.00000      $4.000.00
Wag Aero                           10/10 Scale          22 Years            1       Inclinometer                                                                   $75.00         595.00
McCraw Oil Co.                     Solvent              New                 5       5 Gat Cans Of Solvent                                                         5100.00       $200.00
Wag Aero                           Multiple             3 - 20 Years        5        Floor Creepers & Landing Gear Axle Stand & mechanics Roller Seat             $150.00       $479.98
Toolbarn corn                      Multiple              11 Years        Multiple   Greenlee Knockout Set 8 Fishtape & Sell Test Non-Contact Voltage Detector     $150.00     $1,234.94
Wag Aero                           Multiple             1-30 Years       Multiple   Spark Plug Tools & 0:11Fiter Cutter & Oil Filter Torque Wrench                $750.00     $1 006.90
Wag Aero                           Rapco                 New                3       Aircraft Vacuum Pumps                                                         $500.00       $950.00
Various                            Vanous                   10 Years     Multiple   Welding Rods & Supplies                                                     $2,000.00     $2.000.00
Wag Aero                           SCAT                  New             Multiple   Scat Hose                                                                     $200.00       $377.50
Antique                            Antique              Antique             2       Refrigerator and Antique Coke Box                                             $500.00       $600.00
Best Buy                                                3 Years             1       Microwave                                                                     $100.00       $300.00
Sears                                                   8 Years             1       Office A/C Unit                                                               $300.00       $500.00
Palomar, Sears                     Various              36 Years           8        CB Base Stations and Linear AMP and Microphone and . Equipment              $1,000.00     $4,000.00
Milwaukee                          2101-22              7 Years             3       Cordless Milwalkee Screw Guns, Chargers, Cases                                $300.00       $387.00
Local Vender                        Various             1 - 40 Years       All      Aircraft Electric Wee and Assorted Connectors                                 $400.00     $1,500.00
Fluke                              87V                  3 - 9 Years         2       Fkike Voms &Leeds 8 Attachments                                               $750.00     $1,000.00
MSC Industrial Supply Co.          190-502              3 Years             1        190-502 500 MHz Fluke Scope Meter Test Tool                                $1,500.00     $5,199.95
Local Electric                     Multiple             1-12 Years       Multiple   Solder and Soldering Irons and Accessories                                    $250.00     $1,250.00
Zoro Tools , Buy Heat ShrinkCorn   hg-501-a & Adj. Tem; 19 Years           2        Heat Guts .                                                                   $100.00       $123.81
Various                            Multiple             1 - 40 Years     Multiple   Drill Motors - Bits & Taps                                                    $500.00     $2,200.00
Various                            Multiple             1 - 45 Years     Multiple   Machines! Tooling & Measuring Devices                                         $600.00     $5,811.47
Various                            Multiple             1 -10 Years      Multiple   Multiple Ladders & Scaffolding                                                $200.00     $1,079.46
Dawes,westem Flyer. Sears                               35 Years +       Multiple   Several Bicycles                                                             $200.00      $1,500.00
General Shelters                   Port A Cool          1 Year              1       Portable Water and Air Conditioner                                           $6.60 .00    $1,595.00
Various                            Multiple             1 - 13 Years     Multiple   Lubricants, Greases, Grease Guns, Paints and Glass Cleaners 8. Polishes      $400.00      $2,000.00
Wag Aero                           J-100, .1-105        3 - 7 Years         4       Aircraft Jacks, Aircraft Jacks- Piper & Beech                                $800.00      $1,216.50 .
Multiple                           Multiple             1 - 6 Years         5       Battery Chargers                                                              $200.00     $1,767.45
Aircraft Spruce                    Multiple             New.      .      Multiple   Complete Intake Assemblies & Elements & Champion Oil Filters                                $688.25
oragger.Com                        NOG-6                12 & 15 Years       2       Gas Tow Motors                                                              $1,800.00     $3,190.00
Northern Tool                      P-3060-2                                 5       RoN Around Work Tables                                                        $300.00     $1,699.95
The Jack House Inc.                                     10 Years            2       Tall Wing jacks                                                             $2,000.00     $2,000.00
Aviall                                                  New                12       Lord Cowl Mounts 2 $15.91 Ea.                                                 $150.00      $190.52
Yard Store.Com                     270A                 6 Years             2       Rivet Gun & Regulator                                                         $384.95      $384.95
Yard Store.Com                     PIN 120              6 Years             1       Rivet Set Mix Straight                                                          $29.95       $29.95
Yard Store.Com                     P/N121               6 Years             1       Rivet Set Mix Angled                                                            $29.95       $29.95
Yard Store.Com                     P/N 181              6 Years             1       Rivet Set Swivel Flush                                                          $18.95'      $18.95
Yard Store.Com                     2470                 6 Years             1       Beck Rivet Set                                                                  $21.95       $21.95
Yard Store.Com                     5011 - 2K            6 years             1       Rivet Squeezer                                                                $195.95       6 16.66
Yard Store.Com                     SKT17                6years              1       Rivet Squeezer Set                                                            $119.95       $119.95
Yard Store.Com ,                   P/N 1410             7 Years             1       Air DriN (2600 RPM)                                                           $289.95       $289.95
Yard Store.Com                     P/N1412              7 Years             1       Air Drill (9600niiid)                                                        $319.95        $319.95
Yard Store.Com                     P/N 1AM1541          7 Yeas              1       Air Orel 45 Degree                                                           $553.95       $553.95
Yard Stcre.Com                     P/N 1AM1551          7 Years             1       Air Drill 90 Degree                                                          $571.95       $571.95
Yard Store.Com                     P/N 4135/4136        7 Years             1       Sheet Metal Winker, Stretcher Set                                            $382.95        6362.95
Yard Store.Com                     P/N24606             9 Years             1       Tap & Die Set                                                                $139.95        $139.95
Yard Store.Com                     AT540A               10 Years            1       Screw Removal Tool                                                             $30.95        $30. 96
Yard Stcre.Con                     04522                10 Years            1       nameless Heat Gun                                                              $89.95        689.95
Yard Store.Com                     PIN 131              6 Years             4       Cleco Pliers                                                                   $23.80        $23.80
Yard Store.Com                     P/N24EL              13 Years           50       C locos .$2.25 ea.                                                           $112.50        $112.50
Yard Store.Com                     25CL-1/8             6 Years             1       Clecos 25 pa's .                                                               $11.95        $11.95
Yard Store.Com                     25CL -3116           6 Years             1       Clecos 25 pa's .                                                               $11.95        $11.95
Yard Store.Corn                    25C1-3/32            6 Toffs             1       Clecos 25 pc.'s                                                                $11.95        $11.95
Yard Store.Com                     HNX -1/8             6 Years            50       Pecos HNX 1/8                                                                 $197.50      $197.50
Yard Store.Corn                    HNX -3/32            6 Years            50       Clecos HNX 3/32                                                               $197.50      $197.50
Yard Store.Com                     KWN -1/8             6 Years            50       Clecos KWN 1/8                                                                $147.50      $147.50
Yard Store.Com                     KWN -3/32           6 Years             50       Clecos KWN 3/32                                                               $147 . 50    $147.50
Continental                        LRJ3                 18 years            1       4400 LB. Capacity Shop Hoist 4000                                           $3,000.00     $3,727.00
Cessna                             172                  5 Years             1       Rt. Side Elevator                                                           $2,000.00     $2.000.00
Champion                           M41N                 New                25       Antique Spark Plugs 5 Boxes                                                               $1,250.00
Continental Red Seal               SA-190               New                25       Antique Spark Plugs 5 Boxes                                                               $1,250.00
Eismann                            Antique             Antique            1 Set     Ignition Leads                                                                             $500.00
Northern Tool                      3103K                30 Years            2       Surface Prep Grinder Kit                                                                    $250.00
Northam Tool                       301B                 30 veers            1       Angle Die Grinder 1/4 "                                                                    $100.00
Northem Tool                       WBA-1-3672W          15 Years            5       Workbench. Wood Top 721N x36"D.                                                           $2,500.00
Northern Tool                      WW-4284              15 Yeas             3       Welded Steel Workbench 84". X 42"                                                         $2,099.97
Portable Partitions                Panels               21 Yeas            25       Hush Panel Configurable Cubicle Partition                                                 $3,975.00
Wal-Mart                           Pump Up Sprayer      1 Year              2       Pump Up Sprayer                                                                              $34.00
Horne Depot                        locr Water Hose      5 Years             3       Industrial Pro 5/8" x,100' Water Hose                                                       $149.94
Sears                              Arne°                6 Years             4       Amflow Blow Gun Siphon Sprayer                                                              5125.76
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APPENDIX
   A8
                                      CAUSE NO. CV-14-41722

CITY OF BONHAM                                      §    IN THE DISTRICT COURT OF
                                                    §
Plaintiff,                                          §
                                                    §
v.                                                  §    FANNIN COUNTY, TEXAS
                                                    §
SIDNEY B. HALE, JR.                                 §
                                                    §
Defendant.                                          §    336TH JUDICIAL DISTRICT



         DEFENDANT SIDNEY B. HALE, JR.’S VERIFIED ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW, Defendant Sidney B. Hale, Jr. (“Mr. Hale” and/or “Defendant”) and files

this his Verified Original Answer against Plaintiff, City of Bonham, Texas (the “City” and/or

“Plaintiff”), and in support thereof, would respectfully show this Court the following:

                                    I.       GENERAL DENIAL

        Defendant appears and generally denies each and every, all and singularly, the material

allegations contained in Plaintiff’s Original Petition, and any amendments or supplements

thereto, in accordance with Rule 92 of the Texas Rules of Civil Procedure, demands strict proof

thereof and says that this is a matter for jury trial.

                                    II.     VERIFIED DENIALS

        1. Defendant denies that conditions precedent have been performed or have occurred.

        2. Defendant denies the existence of a valid and enforceable lease agreement between

             the parties. The originally executed lease agreement has long expired and the parties

             have not entered into a renewal of said lease.

        3. Defendant denies that Plaintiff gave notice and proof of Plaintiff’s claims.



                                                    1
                              III.    AFFIRMATIVE DEFENSES

       1.      No causation. Defendant is informed and believes, and based thereon alleges that

any injury, damage, loss, or detriment suffered by Plaintiff was directly and proximately caused

by persons separate and apart from Defendant whether named or unnamed in this action.

       2.      Negligence of Others. Defendant is informed and believes, and based thereon

alleges that any injury, damage, loss or detriment suffered by Plaintiff was directly and

proximately caused, in whole or in part, by the negligence of persons separate and apart from

Defendant whether named or unnamed in this action.

       3.      Plaintiff’s Negligence. Defendant is informed and believes, and based thereon

alleges that any injury, damage, loss, or detriment suffered by Plaintiff was directly and

proximately caused, in whole or in part, by the negligence of Plaintiff.

       4.      Comparative Responsibility. Defendant is informed and believes, and based

thereon alleges that in the event that a finding is made that Defendant was negligent and that said

negligence proximately contributed to Plaintiff’s damages, which is expressly and specifically

denied, and/or that Defendant is otherwise legally responsible for Plaintiff’s damages, Plaintiff’s

amount of recovery from Defendant should be reduced on the basis of Plaintiff’s own negligence

and/or the negligence of third parties which contributed to the damages for which Plaintiff is

seeking recovery in accordance with the doctrine of comparative responsibility and the Texas

Civil Practice & Remedies Code.

       5.      Assumption of Risk. Defendant is informed and believes, and based thereon

alleges that at and before the time and place of the accident which is the basis for the present suit,

Plaintiff fully knew of and appreciated any risk of danger of injury, loss, damage or detriment

regarding the events and matters alleged in the Original Petition, and having full knowledge and



                                                  2
appreciation of such risk and dangers, voluntarily exposed itself to and assumed all risk and

dangers of injury, loss, damage or detriment from the events and matters alleged in the Original

Petition.

        6.      Mitigation of Damages. Defendant is informed and believes, and based thereon

alleges that at and before the time and place of the accident which is the basis for the present suit,

Plaintiff fully knew of and appreciated any risk of danger of injury, loss, damage or detriment

regarding the events and matters alleged in the Original Petition, and having full knowledge and

appreciation of such risk and dangers, failed to take any action to mitigate any damages incurred

and voluntarily exposed itself to injury, loss, damage or detriment from the events and matters

alleged in the Original Petition.

        7.      Right to Amend. Defendant intends to rely upon such other defenses as may

become legally available hereafter or become apparent during discovery proceedings in this case

and hereby reserves its right to amend its answer to assert any such defenses.

                                IV.     SPECIAL EXCEPTIONS

        Defendant specially excepts to Plaintiff’s original petition because the Declaratory

Judgment Act does not expand the trial court’s jurisdiction to include determinations of liability.

See Tex. Nat. Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 859-60 (Tex. 2002). Just as a

declaratory judgment cannot be used against a government or governmental official to establish

the validity of a contract, enforce the performance of a contract, or ignore contractual liability,

see id. [emphasis added], a declaratory judgment cannot be used by a governmental entity for the

same purpose.




                                                  3
                                  V.       ATTORNEYS’ FEES

       The preceding is incorporated by reference as if fully copied and set forth at length. As a

result of the events giving rise to this complaint, Defendant has been required to retain the

services of counsel to prosecute this action. Defendant additionally sues for reasonable attorneys’

fees and legal expenses for the prosecution of this action to judgment and for any appeal

therefrom.

                                  VI.      AMEND PLEADINGS

       Defendant reserves the right to amend these pleadings.

                                    VII.      JURY DEMAND

       Defendant hereby make demand for jury trial, as is his right under the Constitution and

laws of the State of Texas, in accordance with Tex. R. Civ. P. 216 (a), and tenders the required

jury fee concurrently herewith.

                            VIII. REQUEST FOR DISCLOSURE

       Under Texas Rule of Civil Procedure Rule 194 et. seq., Defendant requests that plaintiff

disclose, within thirty (30) days after service of this instrument, the information or material

described in Rule 194.2.

                                        IX.     PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays:

       1.      That Plaintiff take nothing by way of this cause of action and that this cause of

action be dismissed;

       2.      That Defendant be awarded all costs and expenses incurred herein; and

       3.      That Defendant be granted such other and further relief, both at law and in equity,

to which Robinson may show itself justly entitled.



                                                4
                                           Respectfully submitted,

                                           COATS & EVANS, P.C.

                                           /s/ Gary L. Evans
                                                 Gary Linn Evans
                                                 Texas Bar No. 00795338
                                                 Email: evans@texasaviationlaw.com
                                                 George Andrew Coats
                                                 Texas Bar No. 00783846
                                                 Email: coats@texasaviationlaw.com
                                                 P.O. Box 130246
                                                 The Woodlands, TX 77393-0246
                                                 Telephone: 281-367-7732
                                                 Facsimile: 281-367-8003

                                                   ATTORNEYS FOR DEFENDANT
                                                   SIDNEY B. HALE, JR.

                                CERTIFICATE OF SERVICE

        I certify that pursuant to Rule 21a of the Texas Rules of Civil Procedure a true and
correct copy of the foregoing instrument has been delivered to all counsel of record on the 7TH
day of July, 2014.

                                           s/ Gary L. Evans
                                                 Gary L. Evans


Mr. John Reenan                                    Via Electronic Filing and/or
jreenan@helmesgreene.com                           Facsimile No. 214-466-7915
Mr. Christopher S. Kilgore
ckilgore@helmesgreene.com
HELMES & GREENE, LLC
1700 Pacific Ave., Suite 3740
Dallas, Texas 75201
Telephone: 214-466-7910
Facsimile: 214-466-7915




                                              5
APPENDIX
   A9
                                    CAUSE NO. CV-14-41722

CITY OF BONHAM                                   §    IN THE DISTRICT COURT OF
                                                 §
Plaintiff,                                       §
                                                 §
v.                                               §    FANNIN COUNTY, TEXAS
                                                 §
SIDNEY B. HALE, JR.                              §
                                                 §
Defendant.                                       §    336TH JUDICIAL DISTRICT



             DEFENDANT SIDNEY B. HALE, JR.’S ORIGINAL COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, Defendant Sidney B. Hale, Jr. (“Mr. Hale” and/or “Defendant” and/or

“Counterplaintiff”) and files this his Original Counterclaim against the City of Bonham, Texas

(the “City” and/or “Plaintiff” and/or “Counterdefendant”), and in support thereof, would

respectfully show this Court the following:

                                  I.        LEVEL TWO CASE

         Mr. Hale requests that this case be designated as a Level Two case for discovery purposes

pursuant to Tex. R. Civ. P. 190 et. seq.

                                           II.   PARTIES

         Defendant/Counterplaintiff is an individual residing in Fannin County, Texas.

         Plaintiff/Counterdefendant is located in Fannin County, Texas and is duly organized and

acting under the laws of the State of Texas. Service of this document may be had in accordance

with Rule 21a, Texas Rules of Civil Procedure, by serving Counterdefendant’s attorney of

record, Mr. John Reenan, Helmes & Greene, LLC, 1700 Pacific Ave., Suite 3740, Dallas, Texas

75201.



                                                 1
                                    III.        JURISDICTION

       This Court has jurisdiction over this matter pursuant to Sections 101.001 et. seq. of the

Texas Civil Practice and Remedies Code because the Texas Legislature waived

Counterdefendant’s sovereign immunity for claims involving negligence and premises defects.

       The City is a governmental unit and owner of the premises. The condition of the roof of

the Hanger constitutes a premises defect. More specifically, the apex bolts that held the top seam

of the roof together were extensively corroded, undersized, and apparently had not been

inspected in decades, making the hangar unsafe for occupancy and/or use and posed an

unreasonable risk of harm. The City knew or should have known of the danger.

       The City owed Mr. Hale the duty owed to an invitee under Texas law. The City breached

the duty owed to Mr. Hale by not adequately warning Mr. Hale of the condition and not making

the condition reasonably safe. The City’s breach proximately caused Mr. Hale’s injuries. If it

were a private person, the City, would be liable under Texas law.

       No exception to the wavier of immunity bars the claim because no exception applies or

an exception to an exception reinstates the wavier. Notice was provided as required by the Texas

Tort Claims Act.

                                           IV.     VENUE

       Venue is appropriate in Fannin County, Texas because the property which is the subject

of the present suit is located in Fannin County, Texas and all, or substantially all, of the events

giving rise to this litigation occurred in Fannin County, Texas.

                                           V.     NOTICE

       Plaintiff/Counterdefendant was provided with notice of the claim in accordance with Tex.

Civ. Prac. & Rem. Code §101.101, and/or received actual notice of the claim prior to this



                                                   2
litigation.

                                VI.    BACKGROUND FACTS

        Plaintiff/Counterdefendant is the owner of a hangar on the grounds of the City of

Bonham Airport (the “Hangar”). On or about June 18, 1984, Mr. Hale entered into a lease

agreement with the City for the Hangar (the “Lease”). The Lease, by its own terms, expired after

five years.

        On or about December 8, 2013, the Hangar roof collapsed, causing extensive damages to

the hangar and the property contained therein (the “Incident”). The Hangar was used to conduct

Mr. Hale’s aircraft repair and maintenance business and to store multiple aircraft.

        Prior to the Incident, Mr. Hale informed the City of the observed and deteriorating

condition of the hangar. The City, specifically Mr. Ronnie Ford, on behalf of the City,

unequivocally instructed Mr. Hale to immediately vacate the premises and to stay out of the

Hangar. There was a significant likelihood that had the center section of the structure been

supplementally supported at that time, the Hangar would not have collapsed. Indeed, it was not

until several hours later, after the City’s failure to act that the Hangar collapsed. Such action

represents and assumption of complete command and control over the premises. The City’s

failure to reasonably protect the Hangar from further collapse caused the damages incurred by

Mr. Hale, at least in part.

        Additionally, the City barred Mr. Hale from the property, which was saturated with ice

and water, for many weeks, during which all sorts of damage was done to his personal property,

including sensitive aviation tools, parts, gauges, servicing equipment, inventory, and tooling.

        Following the Incident, an examination of the debris revealed that the apex bolts that held

the top seam of the roof together were extensively corroded, undersized, and apparently had not



                                                 3
been inspected in decades, making the hangar unsafe for occupancy and/or use. This presented

an unreasonably dangerous condition which posed an unreasonable risk of harm to Mr. Hale. The

City was aware of this condition, yet did nothing to make the premises safe. Further discovery

will be required to more fully determine what other and further duties the City breached in

connection with the Hangar, including any inspections that might be required under the City’s

statutes.

                                  VII.   CAUSES OF ACTION

        Defendants’ acts and omissions have given rise to the following:

                                            Negligence

        Mr. Hale will show that the foregoing constitutes negligence as that term is used and

understood by the Courts of this State. The preceding is incorporated by reference the same as if

fully copied and set forth at length.

        As owner of the Hangar, the City owed a duty of reasonable care to Mr. Hale. The City

had a duty to maintain the premises in a reasonably safe and habitable condition. The City

breached its duties to Mr. Hale. As a result of the City’s breach, Mr. Hale incurred damages.

                                         Premises Defect

        The preceding is incorporated by reference as if fully copied and set forth at length. In

addition to, and without prejudice to any other cause of action described herein, the foregoing

constitutes a premises defect as that term is used and understood by the Courts of this State.

        The City is a governmental unit and owner of the premises. The condition of the roof of

the Hanger constitutes a premises defect. More specifically, the apex bolts that held the top seam

of the roof together were extensively corroded, undersized, and apparently had not been




                                                 4
inspected in decades, making the hangar unsafe for occupancy and/or use and posed an

unreasonable risk of harm. The City knew or should have known of the danger.

       The City owed Mr. Hale the duty owed to an invitee under Texas law. The City breached

the duty owed to Mr. Hale by not adequately warning Mr. Hale of the condition and not making

the condition reasonably safe. The City’s breach proximately caused Mr. Hale’s injuries. If it

were a private person, the City, would be liable under Texas law.

       No exception to the wavier of immunity bars the claim because no exception applies or

an exception to an exception reinstates the wavier. Notice was provided as required by the Texas

Tort Claims Act.

                           Breach of Contract/Promissory Estoppel

       The preceding is incorporated by reference as if fully copied and set forth at length. In

addition to, and without prejudice to any other cause of action described herein, to the extent the

Court determines there is a valid and enforceable contract between the parties, the foregoing

constitutes breach of contract and promissory estoppel as those terms are used and understood by

the Courts of this State. In pertinent part, the City claims a lease agreement between the parties

for lease of the Hangar.

       The City breached the contract(s) described in the preceding paragraph when the City

defaulted under the terms of the Agreement and refused to keep the Hangar in a safe condition.

Mr. Hale substantially relied upon the promises made by the City to their detriment, which

reliance was foreseeable by the City, which represents an action under the theory of promissory

estoppel as well. Upon information and belief, the City had no intention of performing under the

terms of the agreement at the time the City entered into the contract with Mr. Hale.

Consequently, the City should be held liable for its breach of the contract(s).



                                                 5
        As a result of the City’s breach of contract/promissory estoppel, Mr. Hale has suffered

damages within the jurisdictional limits of this Court. Additionally, pursuant to Tex. Civ. Prac. &

Rem. Code §38.001 et. seq., Mr. Hale requests that this Court, upon trial of this matter, award it

the reasonable and necessary attorneys’ fees, legal expenses, and costs of court incurred in

seeking the recovery for the City’s breach of contract.

                            Damages Based Upon Unjust Enrichment

        In addition to, and without prejudice to the foregoing, Mr. Hale seeks recovery of its

damages pursuant to the theory of unjust enrichment. The preceding is incorporated by reference

as if fully copied and set forth at length.

        The City agreed to provide a reasonably safe and habitable hangar space to Mr. Hale in

exchange for monthly lease payments.

        Although the City refused to maintain the premises in a safe and habitable condition, the

City continued to avail itself of all of the services, benefits and privileges provided by Mr. Hale.

The City has been, and continues to be, unjustly enriched unless the Court requires it to pay for

such use and benefits.

        Mr. Hale hereby seeks recovery of the reasonable value of the services, benefits and

privileges by which the City has been unjustly enriched at least in an amount equal to the

damages incurred by Mr. Hale. Mr. Hale additionally seeks recovery of all of its attorneys' fees

and legal expenses incurred to recover the value of such services, benefits and privileges by

which the City has been unjustly enriched, pursuant to the provisions of Texas Civil Practice and

Remedies Code §38.001, et seq.

        The events leading up to and amounting to such unjust enrichment are proximately

responsible for the damages sustained by Mr. Hale in this matter.



                                                 6
                    Violations of the Texas Deceptive Trade Practices Act

       The preceding is incorporated by reference as if fully copied and set forth at length. In

addition to, and without prejudice to any other cause of action described herein, the foregoing

constitutes violation of the Texas Deceptive Trade Practices Act (the “DTPA”).

       The City violated the DTPA when it engaged in false, misleading, or deceptive acts or

practices that Mr. Hale relied on to his detriment. Specifically, the City failed to keep the Hanger

in which Mr. Hale operated his business reasonably safe and habitability. The condition of the

Hangar posed an unreasonable risk of harm to its occupants, making the hangar unsafe for

occupancy and/or use. The City further breached an express and/or implied warranty that the

premises would be reasonably safe and fit for occupancy.

       The City further violated the DTPA when it engaged in an unconscionable action or

course of action that, to Mr. Hale’s detriment, took advantage of Mr. Hale’s lack of knowledge,

ability, expertise, or capacity to a grossly unfair degree. Specifically, the City failed to maintain

the premises in a reasonably safe condition. The condition of the Hangar posed an unreasonable

risk of harm to its occupants, making the hangar unsafe for occupancy and/or use.

       The City’s wrongful conduct was a producing cause of Mr. Hale’s damages.

       Mr. Hale would also show that the City acted “intentionally” and “knowingly” as those

terms are defined in the DTPA. Mr. Hale would show that the City committed unconscionable

actions “intentionally” and “knowingly.” Mr. Hale seeks recovery of actual damages, economic

damages, statutory damages, mental anguish, treble damages, and attorneys’ fees for the City’s

violations of the DTPA.

       As a direct and proximate result of these actions, the City has violated the provisions of

the Texas Deceptive Trade Practices Act and Mr. Hale has been damaged in the manner and



                                                 7
amount as described above.

                                        Gross Negligence

       The preceding is incorporated by reference as if fully copied and set forth at length. In

addition to, and without prejudice to any other cause of action described herein, the foregoing

constitutes gross negligence as that term is used and understood by the Courts of this State. The

preceding is incorporated by reference the same as if fully copied and set forth at length.

       As owner of the Hangar, the City owed a duty of reasonable care to Mr. Hale. The City

had a duty to maintain the premises in a reasonably safe and habitable condition. The City

breached its duties to Mr. Hale. As a result of the City’s breach, Mr. Hale incurred damages.

       The City failed to keep the Hanger in which Mr. Hale operated his business reasonably

safe and habitability. The condition of the Hangar posed an unreasonable risk of harm to its

occupants, making the hangar unsafe for occupancy and/or use. The City’s negligence posed an

extreme degree of risk and potential harm to others resulting in the likelihood of serious injury to

any occupants of the Hangar. The City acted with conscious indifference to the rights, safety or

welfare of others.

       The wrongful conduct and gross negligence of the City proximately caused the damages

incurred by Mr. Hale.

                                             Bailment

       The preceding is incorporated by reference as if fully copied and set forth at length. In

addition to, and without prejudice to any other cause of action described herein, the foregoing

constitutes bailment as that term is used and understood by the Courts of this State. The

preceding is incorporated by reference the same as if fully copied and set forth at length.

       Upon notice of the deteriorating condition of the hangar, the City instructed Mr. Hale to



                                                 8
immediately vacate the premises and to stay out of the Hangar. Such action represents and

assumption of complete command and control over the premises, as well as delivery and

acceptance of the personal property within the hangar. Mr. Hale vacated the premises as

demanded by the City with the understanding that the structure would be repaired and then

returned to the control of t Mr. Hale, with all of its contents intact.

        The City exercised control and dominion over the Hanger and its contents, yet failed to

return the property, in an undamaged condition, to Mr. Hale. Indeed, the City barred Mr. Hale

from the property, which was saturated with ice and water, for many weeks, during which all

sorts of damage was done to their personal property, including sensitive aviation tools, parts,

gauges, servicing equipment, inventory, and tooling.

        The events leading up to and amounting to such bailment are proximately responsible for

the damages sustained by Mr. Hale in this matter.

                              VIII. CONDITIONS PRECEDENT

        All conditions precedent have been performed or have occurred prior to Mr. Hale

bringing suit as required by the Tex. Civ. Prac. & Rem. Code.

                                   IX.     ATTORNEYS’ FEES

        The preceding is incorporated by reference as if fully copied and set forth at length. As a

result of the events giving rise to this complaint, Mr. Hale has been required to retain the services

of counsel to prosecute this action. Mr. Hale additionally sues for reasonable attorneys’ fees and

legal expenses for the prosecution of this action to judgment and for any appeal therefrom.

                                   X.      AMEND PLEADINGS

        Mr. Hale reserves the right to amend these pleadings.




                                                   9
                             XI.      DEMAND FOR JURY TRIAL

       Mr. Hale hereby makes demand for jury trial, as is his right under the Constitution and

laws of the State of Texas, and in accordance with Tex. R. Civ. P. 216(a), and tenders the

required jury fee concurrently herewith.

                                         XII.     PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendant/Counterplaintiff, Sidney B.

Hale, Jr. respectfully requests that Plaintiff/Counterdefendant, the City of Bonham, Texas, be

cited to appear and answer and that, on final trial, Mr. Hale have the following:

       1.      Judgment against Plaintiff/Counterdefendant for damages in an amount within the

               jurisdictional limits of this Court, jointly and severally;

       2.      Judgment     against   Plaintiff/Counterdefendant     in      an   amount   within   the

               jurisdictional limits of this Court as special damages, jointly and severally;

       3.      Judgment against Plaintiff/Counterdefendant for exemplary and enhanced

               damages to the maximum extent permitted by law, jointly and severally;

       4.      Prejudgment interest as provided by law, jointly and severally;

       5.      Post judgment interest as provided by law, jointly and severally;

       6.      Costs of suit, jointly and severally;

       7.      Attorneys’ fees and legal expenses to the maximum extent permitted by law,

               jointly and severally; and

       8.      All such other and further relief, general or special, at law or in equity, to which

               Mr. Hale may be justly entitled.




                                                  10
                                            Respectfully submitted,

                                            COATS & EVANS, P.C.

                                            /s/ Gary L. Evans
                                                  Gary Linn Evans
                                                  Texas Bar No. 00795338
                                                  Email: evans@texasaviationlaw.com
                                                  George Andrew Coats
                                                  Texas Bar No. 00783846
                                                  Email: coats@texasaviationlaw.com
                                                  P.O. Box 130246
                                                  The Woodlands, TX 77393-0246
                                                  Telephone: 281-367-7732
                                                  Facsimile: 281-367-8003

                                                   ATTORNEYS FOR DEFENDANT
                                                   SIDNEY B. HALE, JR.

                                CERTIFICATE OF SERVICE


        I certify that pursuant to Rule 21a of the Texas Rules of Civil Procedure a true and
correct copy of the foregoing instrument has been delivered to all counsel of record on the 12th
day of November, 2014.

                                            /s/ Gary L. Evans
                                                  Gary L. Evans


Mr. John Reenan                                    Via Electronic Filing and/or
jreenan@helmsgreene.com                            Facsimile No. 214-466-7915
Mr. Christopher S. Kilgore
ckilgore@helmsgreene.com
HELMS & GREENE, LLC
1700 Pacific Ave., Suite 3740
Dallas, Texas 75201
Telephone: 214-466-7910
Facsimile: 214-466-7915



                                              11
APPENDIX
  A10
APPENDIX
  A11
                                   CAUSE NO. CV-14-41722

CITY OF BONHAM                                  §    IN THE DISTRICT COURT OF
                                                §
Plaintiff,                                      §
                                                §
v.                                              §    FANNIN COUNTY, TEXAS
                                                §
SIDNEY B. HALE, JR.                             §
                                                §
Defendant.                                      §    336TH JUDICIAL DISTRICT



     DEFENDANT SIDNEY B. HALE, JR.’S RESPONSE TO PLAINTIFF’S PARTIAL
                   MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW, Defendant Sidney B. Hale, Jr. (“Mr. Hale” and/or “Defendant”) and files

this his Response to Plaintiff City of Bonham’s (the “City” and/or “Plaintiff”) Partial Motion for

Summary Judgment, and in support thereof, would respectfully show this Court the following:

                                           I.
                                 JURISDICTIONAL FACTS

        This Court has jurisdiction over this matter pursuant to Sections 101.001 et. seq. of the

Texas Civil Practice and Remedies Code because the Texas Legislature waived Plaintiff’s

sovereign immunity for claims involving negligence and premises defects.

        The City is a governmental unit and owner of the premises. The condition of the roof of

the Hanger constitutes a premises defect. More specifically, the apex bolts that held the top seam

of the roof together were extensively corroded, undersized, and apparently had not been

inspected in decades, making the hangar unsafe for occupancy and/or use and posed an

unreasonable risk of harm. The City knew or should have known of the danger.

        The City owed Mr. Hale the duty owed to an invitee under Texas law. The City breached

the duty owed to Mr. Hale by not adequately warning Mr. Hale of the condition and not making

                                                1
the condition reasonably safe. The City’s breach proximately caused Mr. Hale’s injuries. If it

were a private person, the City, would be liable under Texas law.

       No exception to the wavier of immunity bars the claim because no exception applies or

an exception to an exception reinstates the wavier. Notice was provided as required by the Texas

Tort Claims Act.

                                          II.
                                   BACKGROUND FACTS

       Plaintiff is the owner of a hangar on the grounds of the City of Bonham Airport (the

“Hangar”). On or about June 18, 1984, Mr. Hale entered into a lease agreement with the City for

the Hangar (the “Lease”). The Lease, by its own terms, expired after five years.

       On or about December 8, 2013, the Hangar roof collapsed, causing extensive damages to

the hangar and the property contained therein (the “Incident”). The Hangar was used to conduct

Mr. Hale’s aircraft repair and maintenance business and to store multiple aircraft.

       Prior to the Incident, Mr. Hale informed the City of the observed and deteriorating

condition of the hangar. The City, specifically Mr. Ronnie Ford, on behalf of the City,

unequivocally instructed Mr. Hale to immediately vacate the premises and to stay out of the

Hangar. There was a significant likelihood that had the center section of the structure been

supplementally supported at that time, the Hangar would not have collapsed. Indeed, it was not

until several hours later, after the City’s failure to act that the Hangar collapsed. Such action

represents an assumption of complete command and control over the premises, to the complete

and total exclusion of all other persons and entities. The City’s failure to reasonably protect the

Hangar from further collapse caused the damages incurred by Mr. Hale, at least in part.




                                                 2
        Additionally, the City barred Mr. Hale from the property, which was saturated with ice

and water, for many weeks, during which all sorts of damage was done to his personal property,

including sensitive aviation tools, parts, gauges, servicing equipment, inventory, and tooling.

        Following the Incident, an examination of the debris revealed that the apex bolts that held

the top seam of the roof together were extensively corroded, undersized, and apparently had not

been inspected in decades, making the hangar unsafe for occupancy and/or use. This presented

an unreasonably dangerous condition which posed an unreasonable risk of harm to Mr. Hale. The

City was aware of this condition, yet did nothing to make the premises safe. Further discovery

will be required to more fully determine what other and further duties the City breached in

connection with the Hangar, including any inspections that might be required under the City’s

statutes.

                                       III.
                             ARGUMENT AND AUTHORITIES

        Sovereign immunity protects the State, its agencies and officials, and political

subdivisions of the State from suit, unless immunity from suit has been waived. Gen. Servs.

Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). The sovereign immunity

of the State inures to the benefit of a municipality insofar as the municipality engages in the

exercise of governmental functions, except when that immunity has been waived. See Fort

Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000); City of Tyler v.

Likes, 962 S.W.2d 489, 501 (Tex. 1997); see also City of Houston v. Rushing, 39 S.W.3d 685,

686 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (stating, "The City of Houston, as a

home-rule municipality, is generally immune from both suit and liability in its governmental

functions.").




                                                 3
       The Texas Tort Claims Act (“TCA”) establishes certain waivers of governmental

immunity. Likes, 962 S.W.2d at 494. The entity remains immune unless waived by the TCA.

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). If the City was

performing a proprietary function, however, the TCA does not apply. See City of Corpus Christi

v. Absolute Industries, 120 S.W.3d 1, 4 (Tex.App.—Corpus Christi 2001, pet. denied); City of El

Paso v. Morales, No. 08-02-00484-CV, 2004 Tex. App. LEXIS 7806, *26-27 (Tex. App.—El

Paso Aug. 20, 2004, pet. denied). When a municipality commits a tort while engaged in

proprietary functions, it is liable to the same extent as a private entity or individual. Texas River

Barges v. City of San Antonio, 21 S.W.3d 347, 356 (Tex. App.—San Antonio 2000, pet. denied).

       Under Section 101.0215 of the TCA, certain municipal functions are defined as

governmental and others as proprietary. See Tex. Civ. Prac. & Rem. Code §101.0215. The Texas

legislature has defined governmental functions as "those functions that are enjoined on a

municipality by law and are given it by the state as part of the state's sovereignty, to be exercised

by the municipality in the interest of the general public . . . ." Tex. Civ. Prac. & Rem. Code

§101.0215(a). Proprietary functions are "those functions that a municipality may, in its

discretion, perform in the interest of the inhabitants of the municipality . . . ." Tex. Civ. Prac. &

Rem. Code §101.0215(b); see also City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex. 1987)

(proprietary function is one performed by a city, in its discretion, primarily for the benefit of

those within the corporate limits of the city, rather than for use by the general public). A

municipality retains its immunity for activities which the legislature has defined as

governmental, except to the extent immunity is waived by acts, omissions, and conditions as

specified in the TCA. See Williams v. City of Midland, 932 S.W.2d 679, 682 (Tex. App.—El

Paso 1996, no writ); Morales, 2004 Tex. App. LEXIS 7806 at *14-15.



                                                 4
        Under Texas common law, determining whether a city is performed a proprietary or

governmental function has generally been evaluated by examining whether the act performed by

the city as the agent of the State in furtherance of general law for the interest of the public at

large, or whether it is performed by the city, in its discretion, primarily for the benefit of those

within the corporate limits of the city, rather than for the use by the general public. See

Gladewater, 727 S.W.2d at 519; Bailey v. City of Austin, 972 S.W.2d 180, 192-93 (Tex. App.—

Austin 1998, pet. denied). The key difference between a proprietary and governmental function

is that the city functions in its governmental capacity when it performs functions mandated by

the State. Truong v. City of Houston, 99 S.W.3d 204, 210 (Tex. App.—Houston [1st Dist.] 2002,

no pet.).

        Under the TCA, a municipality is liable for damages arising under certain specified

governmental functions, including airports, including when used for space flight activities as

defined by Section 100A.001. Tex. Civ. Prac. & Rem. Code § 101.0215(a). Moreover, the TCA

states that the proprietary functions of a municipality do not include those governmental

activities listed under Subsection (a). Tex. Civ. Prac. & Rem. Code § 101.0215(c). Section

101.0215 lists numerous functions of a city that are designated as governmental. Many courts

have held that all activities associated with the operation of one of the government functions

listed in section 101.0215(a) are governmental and cannot be considered proprietary, regardless

of the city's motive for engaging in the activity. See e.g., Texas River Barges, 21 S.W.3d at 356-

57) (city's removal of barge company from marina is included within government function of

operating a marina and park even if removal was motivated by desire to protect city's profit by

exclusive contract with another barge company); City of Dallas v. Reata Constr. Corp., 83

S.W.3d 392, 395 (Tex. App.—Dallas 2002, pet. filed) (marking the location of water main is



                                                 5
encompassed by government function of "waterworks" and water services); Mitchell v. City of

Dallas, 855 S.W.2d 741, 744 (Tex. App.—Dallas 1993), aff'd, 870 S.W.2d 21 (Tex. 1994)

(refusing to consider that some activities related to the operation of a city park might be

proprietary where TTCA lists "parks and zoos" as government function). Consequently, all

activities related to the City of Bonham’s operation of the airport are considered governmental.

       The Tort Claims Act provides a limited waiver of immunity for injuries caused by (1) use

of publicly owned automobiles, (2) premises defects, and (3) injuries arising out of conditions or

use of property. Miranda, 133 S.W.3d 217, 225 (Tex. 2004) [emphasis added]; see also Tex.

Civ. Prac. & Rem. Code § 101.021. The TCA also waives immunity from suit for all claims for

which it waives liability. See id. at § 101.025; Morales, 2004 Tex. App. LEXIS 7806 at *14-15.

Liability for premises defects is implied under Section 101.021(2) because a premises defect

arises from a condition existing on real property. City of Midland v. Sullivan, 33 S.W.3d 1, 6

(Tex. App.—El Paso 2000, pet. dism'd w.o.j.); Lamar Univ. v. Doe, 971 S.W.2d 191, 195 (Tex.

App.—Beaumont 1998, no pet.); Perez v. City of Dallas, 180 S.W.3d 906, 910 (Tex. App.—

Dallas 2005, no pet.).

       If a claim arises from a premise defect, the governmental unit generally owes the

claimant the same duty that a private person owes to a licensee on private property. See Tex. Civ.

Prac. & Rem. Code § 101.022(a); State Dep't of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.

1992); State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). However, the governmental entity

owes the claimant the duty owed to an invitee, if the claimant pays for the use of the premises, as

is the case here. See Payne, 838 S.W.2d at 237; Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 69-70

(Tex. App.—Houston [1st Dist.] 2009, pet. denied). If a plaintiff is an invitee, an owner is

required to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a



                                                6
premises condition of which the owner is or reasonably should be aware. Payne, 838 S.W.2d at

237; City of Galveston v. Albright, NO. 14-04-00072-CV, 2004 Tex. App. LEXIS 9693, *8-9

(Tex. App.—Houston [14th Dist.] Nov. 2, 2004, no pet.). In other words, the premises owner or

occupier has a duty to keep the premises in a reasonably safe condition and to inspect the

premises to discover any latent defects and to make safe any defect or give adequate warning.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983); Adam Dante Corporation v.

Sharpe, 483 S.W.2d 452 (Tex. 1972). An invitee need only prove that the owner or occupier

knew or should have known of the condition. Mayer v. Willowbrook Plaza Ltd. P'ship, 278

S.W.3d 901, 910 (Tex. App.—Houston [14th Dist.] 2009, no pet.); City of Houston v. Cogburn,

No. 01-11-00318-CV, 2013 Tex. App. LEXIS 2827, *8 (Tex. App.—Houston [1st Dist.] Mar.

19, 2013, no pet.).

       In a premises liability case, the plaintiff must establish (1) a legal duty owed to the

plaintiff, (2) breach of that duty, and (3) damages (4) proximately caused by the breach. See

Perez v. DNT Global Star, L.L.C., 339 S.W.3d 692, 700 (Tex. App.—Houston [1st Dist.] 2011,

no pet.). As with any other negligence action, a defendant in a premises liability case is liable

only to the extent it owes the plaintiff a legal duty. See Gen. Elec. Co. v. Moritz, 257 S.W.3d

211, 217 (Tex. 2008). As a rule, to prevail on a premises liability claim, a plaintiff must prove

that the defendant possessed—that is, owned, occupied, or controlled—the premises. See Wilson

v. Tex. Parks & Wildlife Dep't, 8 S.W.3d 634, 635 (Tex. 1999) (emphasis added). Moreover, an

invitee must establish the following elements to prevail on his premises liability claim: (1) the

premise owner or occupier had actual or constructive knowledge of a condition; (2) the condition

posed an unreasonable risk of harm; (3) the owner or occupier did not exercise reasonable care to

reduce or eliminate the risk; and (4) the owner or occupier's failure to use such care proximately



                                                7
caused the plaintiff's injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Hall v.

Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex. App.—Houston [1st Dist.] 2005,

pet. denied).

       In the case of a premises liability claim, to establish a waiver of immunity a plaintiff must

comply with both §101.021 and §101.022(a). See Tex. Civ. Prac. & Rem. Code §§ 101.021(2),

101.022(a); see e.g. Tennison, 509 S.W.2d at 561; City of Del Rio v. Felton, No. 04-06-00091-

CV, 2007 Tex. App. LEXIS 660, *8 (Tex. App.—San Antonio 2007, no pet.). Under Section

101.021(a), a governmental unit is liable for damages proximately caused by the wrongful act or

omission or the negligence of an employee acting within the scope of employment if (a) the

damages arise from the operation or use of a motor vehicle or equipment; and (b) the employee

would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code

§101.021(a). A governmental unit is also liable for damages 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. Tex. Civ. Prac. & Rem. Code §101.021(b)

[emphasis added]. Here, provided all elements of the claim were established at trial, the City

would absolutely be liable to Mr. Hale under the facts of this case.

       Mr. Hale’s status as an invitee carries with it a greater duty of care by the City. Indeed,

the City is required to use ordinary care to reduce or eliminate an unreasonable risk of harm

created by a premises condition of which the owner is or reasonably should be aware. Payne, 838

S.W.2d at 237. When Mr. Hale informed the City of the unreasonable unsafe condition of the

hangar, the City, specifically Mr. Ronnie Ford, on behalf of the City, unequivocally instructed

Mr. Hale to immediately vacate the premises and to stay out of the Hangar. Not only did the City

prevent Mr. Hale from taking any action to protect his property from the unreasonable risk of



                                                 8
harm posed by the deteriorated roof, the City did absolutely nothing to reduce or eliminate the

risk of harm to Mr. Hale. The City assumed complete command and control over the property

when they ejected Mr. Hale and all other occupants from the property. The City then barred Mr.

Hale from re-entering the property for weeks, allowing all sorts of aircraft grade equipment and

tools to be exposed to the elements, either damaging it or losing it completely. To allow the City

to avoid liability for such egregious conduct goes against the spirit and intent of the Texas Tort

Claims Act. In other words, a City should not be allowed to voluntarily take on proprietary

functions, such as the management and leasing of property, operate with conscious indifference

to the rights, safety, or welfare of others, then escape all responsibility and liability for its

responsibilities and duties to its tenants (and the public). Consequently, the City’s Partial Motion

for Summary Judgment should be in all respects denied.

                                         IV.
                                CONCLUSION AND PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendant, Sidney B. Hale, Jr. respectfully

requests that Plaintiff, the City of Bonham’s Partial Motion for Summary Judgment be in all

respects denied. Defendant further requests all such other and further relief, general or special, at

law or in equity, to which he may be justly entitled.




                                                 9
                                            Respectfully submitted,

                                            COATS & EVANS, P.C.

                                            /s/ Gary L. Evans
                                                  Gary Linn Evans
                                                  Texas Bar No. 00795338
                                                  Email: evans@texasaviationlaw.com
                                                  George Andrew Coats
                                                  Texas Bar No. 00783846
                                                  Email: coats@texasaviationlaw.com
                                                  P.O. Box 130246
                                                  The Woodlands, TX 77393-0246
                                                  Telephone: 281-367-7732
                                                  Facsimile: 281-367-8003

                                                   ATTORNEYS FOR DEFENDANT
                                                   SIDNEY B. HALE, JR.

                               CERTIFICATE OF SERVICE

        I certify that pursuant to Rule 21a of the Texas Rules of Civil Procedure a true and
correct copy of the foregoing instrument has been delivered to all counsel of record on the 30th
day of December, 2014.

                                            /s/ Gary L. Evans
                                                  Gary L. Evans


Mr. Christopher S. Kilgore                         Via Electronic Filing and/or
Dottie Sheffield                                   Facsimile No. 972-532-6496
HELMS & KILGORE, PLLC
2201 Main Street, Suite 212
Dallas, Texas 75201
Telephone: 972-532-6484
Facsimile: 972-532-6496

ATTORNEYS FOR PLAINTIFF
CITY OF BONHAM



                                              10
APPENDIX
  A12
APPENDIX
  A13
                                   CAUSE NO. CV-14-41722

CITY OF BONHAM                                   §    IN THE DISTRICT COURT OF
                                                 §
Plaintiff,                                       §
                                                 §
v.                                               §    FANNIN COUNTY, TEXAS
                                                 §
SIDNEY B. HALE, JR.                              §
                                                 §
Defendant.                                       §    336TH JUDICIAL DISTRICT



 DEFENDANT SIDNEY B. HALE, JR.’S RESPONSE TO PLAINTIFF’S MOTION FOR
                       SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW, Defendant Sidney B. Hale, Jr. (“Mr. Hale” and/or “Defendant”) and files

this his Response to Plaintiff City of Bonham’s (the “City” and/or “Plaintiff”) Partial Motion for

Summary Judgment, and in support thereof, would respectfully show this Court the following:

                                          I.
                                   BACKGROUND FACTS

        Plaintiff is the owner of a hangar on the grounds of the City of Bonham Airport (the

“Hangar”). On or about June 18, 1984, Mr. Hale entered into a lease agreement with the City for

the Hangar (the “Lease”). The Lease, by its own terms, expired after five years.

        On or about December 8, 2013, the Hangar roof collapsed, causing extensive damages to

the hangar and the property contained therein (the “Incident”). The Hangar was used to conduct

Mr. Hale’s aircraft repair and maintenance business and to store multiple aircraft.

        Prior to the Incident, Mr. Hale informed the City of the observed and deteriorating

condition of the hangar. The City, specifically Mr. Ronnie Ford, on behalf of the City,

unequivocally instructed Mr. Hale to immediately vacate the premises and to stay out of the



                                                 1
Hangar. 1 There was a significant likelihood that had the center section of the structure been

supplementally supported at that time, the Hangar would not have collapsed. Indeed, it was not

until several hours later, after the City’s failure to act that the Hangar collapsed. Such action

represents an assumption of complete command and control over the premises, to the complete

and total exclusion of all other persons and entities. The City’s failure to reasonably protect the

Hangar from further collapse caused the damages incurred by Mr. Hale, at least in part.

           Additionally, the City barred Mr. Hale from the property, which was saturated with ice

and water, for many weeks, during which all sorts of damage was done to his personal property,

including sensitive aviation tools, parts, gauges, servicing equipment, inventory, and tooling.

           Following the Incident, an examination of the debris revealed that the apex bolts that held

the top seam of the roof together were extensively corroded, undersized, and apparently had not

been inspected in decades, making the hangar unsafe for occupancy and/or use. This presented

an unreasonably dangerous condition which posed an unreasonable risk of harm to Mr. Hale. The

City was aware of this condition, yet did nothing to make the premises safe. Further discovery

will be required to more fully determine what other and further duties the City breached in

connection with the Hangar, including any inspections that might be required under the City’s

statutes.

                                               II.
                                    ARGUMENT AND AUTHORITIES

           The Motion for Summary Judgment filed by the City is essentially a plea to the

jurisdiction, claiming that Defendant’s claims are barred by sovereign immunity. Indeed, a plea

to the jurisdiction is the proper vehicle by which a party contests a trial court’s authority to

determine the subject matter of a cause of action. State v. Lueck, 290 S.W.3d 876, 880 (Tex.

1
    There are no disagreements or fact issues regarding Mr. Ford’s conduct, which is uncontroverted.

                                                          2
2009); Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). A governmental unit may

properly challenge a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction

since absent the state’s consent to suit a trial court has no subject matter jurisdiction. Tex. Dep’t.

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

       A trial court must not weigh the merits of the case, but instead consider only the

pleadings and evidence pertinent to the jurisdictional question. Bland Indep. Sch. Dist. v. Blue,

34 S.W.3df 547, 554 (Tex. 2000). In doing so, the trial court must construe the pleadings

liberally in favor of jurisdiction, Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989), and

must take all factual allegations plead as true, unless the governmental unit pleads and proves

that the allegations were fraudulently made in order to confer jurisdiction. Cont. Coffee Prods.

Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex. 1996). If a party pleads facts that affirmatively

demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the

case is proper. Peek, 779 S.W.2d at 804-805. However, if the pleadings are insufficient to

demonstrate the court’s jurisdiction, but do not affirmatively show incurable defects in

jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before

dismissing. Id.

   1. The City is not Immune From Claims Arising out of its Proprietary Functions.

       The City of Bonham is a home rule municipal corporation. As such it has broad powers

of self-government. City of Corpus Christi v. Continental Bus Systems, Inc., 445 S.W.2d 12, 16

(Tex. Civ. App.—Austin 1969, writ ref’d n.r.e.). Municipal corporations exercise their broad

powers through two different roles; proprietary and governmental. The governmental functions

of a municipal corporation have been defined as those acts which are public in nature and

performed by the municipality “as the agent of the State in furtherance of general law for the



                                                  3
interest of the public at large.” City of Crystal City v. Crystal City Country Club, 486 S.W.2d

887, 889 (Tex. Civ. App.—Beaumont 1972, writ ref’d n.r.e.). Proprietary functions are those

functions performed by a city, in its discretion, primarily for the benefit of those within the

corporate limit of the municipality. Id.

       Under Texas common law, determining whether a city is performed a proprietary or

governmental function has generally been evaluated by examining whether the act performed by

the city as the agent of the State in furtherance of general law for the interest of the public at

large, or whether it is performed by the city, in its discretion, primarily for the benefit of those

within the corporate limits of the city, rather than for the use by the general public. See

Gladewater, 727 S.W.2d at 519; Bailey v. City of Austin, 972 S.W.2d 180, 192-93 (Tex. App.—

Austin 1998, pet. denied). The key difference between a proprietary and governmental function

is that the city functions in its governmental capacity when it performs functions mandated by

the State. Truong v. City of Houston, 99 S.W.3d 204, 210 (Tex. App.—Houston [1st Dist.] 2002,

no pet.). Here, the City voluntarily engaged in the business of owning and leasing real estate in

and around the Airport. This “real estate” aspect of the City is not a necessary component to the

operation of the Airport and is not a function mandated by the State, and thus, is a proprietary

function.

       Unlike governmental functions, for which municipal corporations have traditionally been

afforded some degree of governmental immunity, proprietary functions have subjected municipal

corporations to the same duties and liabilities as those incurred by private persons and

corporations. See Turvey v. City of Houston, 602 S.W.2d 517 (Tex. 1980). While the doctrine of

governmental immunity protects municipalities from being sued for matters arising from the

performance of their governmental functions, no such protection exists for municipalities



                                                 4
performing their proprietary functions. City of Texarkana v. City of New Boston, 141 S.W.3d

778, 783 (Tex. App.—Texarkana 2004, pet. denied). Indeed, contracts made by municipal

corporations in their proprietary capacity have been held to be governed by the same rules as

contracts between individuals. Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex. 1986).

Consequently, in the present case, because the City was engaged in a proprietary function in the

ownership and leasing of real estate, governmental immunity does not apply to Defendant’s

claims for breach of contract and bailment.

   2. No Waiver of Immunity is Necessary when No Immunity Exists

       When the City entered into the lease agreement with Mr. Hale, the City was engaged in a

proprietary function, and thus no immunity against Defendant’s claims exists. In 2005, the

Legislature enacted Subchapter I of Chapter 271 of the Texas Local Government Code “to

loosen the immunity bar” by waiving immunity to suit for certain claims arising under written

contracts with governmental entities. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v.

Tex. Political Subdivisions Property/Casualty Joint Self-Insurance Fund, 212 S.W.3d 320, 326

(Tex. 2006). Indeed, Section 271.152’s waiver of immunity was intended to broaden, not narrow,

the scope of contract claims that could be filed against cities. The statutory waiver scheme is

inapplicable in contract cases in which no immunity exists in the first place, i.e., when a city

engages in a proprietary function. In the present case, the City was engaged in a proprietary

function in the ownership and leasing of real estate, and thus, governmental immunity does not

apply. Moreover, it was not necessary for the Legislature to provide a waiver of immunity for

contract and/or quasi-contractual claims where the governmental unit is acting in a proprietary

capacity, because there was no immunity to waive. Because the City was engaged in proprietary




                                               5
functions, i.e. the ownership and leasing of real estate, there is no governmental immunity

applicable to Mr. Hale’s breach of contract and bailment claims.

       When Mr. Hale informed the City of the unreasonable unsafe condition of the hangar, the

City, specifically Mr. Ronnie Ford, on behalf of the City, unequivocally instructed Mr. Hale to

immediately vacate the premises and to stay out of the Hangar. Not only did the City prevent Mr.

Hale from taking any action to protect his property from the unreasonable risk of harm posed by

the deteriorated roof, the City did absolutely nothing to reduce or eliminate the risk of harm to

Mr. Hale. The City assumed complete command and control over the property when they ejected

Mr. Hale and all other occupants from the property. The City then barred Mr. Hale from re-

entering the property for weeks, allowing all sorts of aircraft grade equipment and tools to be

exposed to the elements, either damaging it or losing it completely.

       To allow the City to avoid liability for the egregious conduct demonstrated in the present

case goes against the spirit and intent of the doctrine of immunity. A City should not be allowed

to voluntarily take on proprietary functions, operate with conscious indifference to the rights,

safety, or welfare of others, then escape all responsibility and liability due to its tenants (and the

public) under the guise of immunity. Indeed, the doctrine of governmental immunity does not

give the City, or any other governmental unit, a “free pass” to ignore its duties and obligations

under the law and escape all responsibility for its actions. Consequently, the City’s Motion for

Summary Judgment should be in all respects denied.

                                          IV.
                                 CONCLUSION AND PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendant, Sidney B. Hale, Jr. respectfully

requests that Plaintiff, the City of Bonham’s Motion for Summary Judgment be in all respects




                                                  6
denied. Defendant further requests all such other and further relief, general or special, at law or

in equity, to which he may be justly entitled.

                                                 Respectfully submitted,

                                                 COATS & EVANS, P.C.

                                                 /s/ Gary L. Evans
                                                       Gary Linn Evans
                                                       Texas Bar No. 00795338
                                                       Email: evans@texasaviationlaw.com
                                                       George Andrew Coats
                                                       Texas Bar No. 00783846
                                                       Email: coats@texasaviationlaw.com
                                                       P.O. Box 130246
                                                       The Woodlands, TX 77393-0246
                                                       Telephone: 281-367-7732
                                                       Facsimile: 281-367-8003

                                                        ATTORNEYS FOR DEFENDANT
                                                        SIDNEY B. HALE, JR.

                                 CERTIFICATE OF SERVICE

        I certify that pursuant to Rule 21a of the Texas Rules of Civil Procedure a true and
correct copy of the foregoing instrument has been delivered to all counsel of record on the 5th
day of February, 2015.

                                                 /s/ Gary L. Evans
                                                       Gary L. Evans


Mr. Christopher S. Kilgore                              Via Electronic Filing and/or
Dottie Sheffield                                        Facsimile No. 972-532-6496
HELMS & KILGORE, PLLC
2201 Main Street, Suite 212
Dallas, Texas 75201
Telephone: 972-532-6484
Facsimile: 972-532-6496



                                                    7
ATTORNEYS FOR PLAINTIFF
CITY OF BONHAM




                          8
APPENDIX
  A14
APPENDIX
  A15
                                   CAUSE NO. CV-14-41722

CITY OF BONHAM                                   §    IN THE DISTRICT COURT OF
                                                 §
Plaintiff,                                       §
                                                 §
v.                                               §    FANNIN COUNTY, TEXAS
                                                 §
SIDNEY B. HALE, JR.                              §
                                                 §
Defendant.                                       §    336TH JUDICIAL DISTRICT



     DEFENDANT SIDNEY B. HALE, JR.’S SURREPLY TO PLAINTIFF’S REPLY ON
              PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW, Defendant Sidney B. Hale, Jr. (“Mr. Hale” and/or “Defendant”) and files

this his Response to Plaintiff City of Bonham’s (the “City” and/or “Plaintiff”) Partial Motion for

Summary Judgment, and in support thereof, would respectfully show this Court the following:

                                             I.
        The Texas Supreme Court in Tooke v. City of Mexia, did recognize that a municipality is

not immune from suit for torts committed in the performance of its proprietary functions, as it is

for torts committed in the performance of its government functions. 197 S.W.3d 325, 343 (Tex.

2006). Additionally, while the Court indicated that they have not held that the same distinction

determines whether immunity was waived in suits involving breach of contract claims, the Court

also did not indicate that the distinction does not apply. Id. Rather, the Court determined that it

was not necessary to make that determination based on the facts presented in Tooke. Indeed, the

Court held that, “even if the City were not immune from suit for breach of a contract whose

subject lies within its proprietary functions, the Tookes’ contract does not qualify.” Id. at 344.

This leaves the door open for the Court to make that determination at a later date.



                                                 1
          The Texas Tort Claims Act was enacted in 1985, well before the decision was entered in

Tooke. Since the enactment of Section 271.152 of the Local Government Code in 2005, the

Supreme Court has not yet revisited whether or not the proprietary-governmental dichotomy

applicable in tort cases is also applicable in breach of contract cases. While the Fourth Court of

Appeals in San Antonio has held that this distinction does not apply in contract cases, the

decisions of that Court are not binding on the present court. Absent a decision to the contrary by

the Texas Supreme Court, there is no authority mandating that this Court find that the

proprietary-governmental function distinction does not apply in the present case. Indeed, the

Gates case, whereby the Texas Supreme Court recognized that contracts made by municipal

corporations in their proprietary capacity have been held to be governed by the same rules as

contracts between individuals, Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex. 1986), has not

been overturned and still constitutes good law.

          Consequently, because the City was engaged in a proprietary function in the ownership

and leasing of real estate, governmental immunity does not apply to Defendant’s claims for

breach of contract and bailment. Thus, Plaintiff’s motion for summary judgment should be

denied.

                                          II.
                                 CONCLUSION AND PRAYER

          WHEREFORE, PREMISES CONSIDERED, Defendant, Sidney B. Hale, Jr. respectfully

requests that Plaintiff, the City of Bonham’s Motion for Summary Judgment be in all respects

denied. Defendant further requests all such other and further relief, general or special, at law or

in equity, to which he may be justly entitled.




                                                  2
                                            Respectfully submitted,

                                            COATS & EVANS, P.C.

                                            /s/ Gary L. Evans
                                                  Gary Linn Evans
                                                  Texas Bar No. 00795338
                                                  Email: evans@texasaviationlaw.com
                                                  George Andrew Coats
                                                  Texas Bar No. 00783846
                                                  Email: coats@texasaviationlaw.com
                                                  P.O. Box 130246
                                                  The Woodlands, TX 77393-0246
                                                  Telephone: 281-367-7732
                                                  Facsimile: 281-367-8003

                                                   ATTORNEYS FOR DEFENDANT
                                                   SIDNEY B. HALE, JR.

                               CERTIFICATE OF SERVICE

        I certify that pursuant to Rule 21a of the Texas Rules of Civil Procedure a true and
correct copy of the foregoing instrument has been delivered to all counsel of record on the 11th
day of February, 2015.

                                            /s/ Gary L. Evans
                                                  Gary L. Evans


Mr. Christopher S. Kilgore                         Via Electronic Filing and/or
Dottie Sheffield                                   Facsimile No. 972-532-6496
HELMS & KILGORE, PLLC
2201 Main Street, Suite 212
Dallas, Texas 75201
Telephone: 972-532-6484
Facsimile: 972-532-6496

ATTORNEYS FOR PLAINTIFF
CITY OF BONHAM



                                               3
