                                  MEMORANDUM OPINION
                                         No. 04-12-00177-CV

                                         CITY OF BOERNE,
                                             Appellant

                                                   v.

                 David VAUGHAN and Vaughan’s Hill Country Funeral Home, Inc.,
                                       Appellees

                      From the 288th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CI-17409
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: July 11, 2012

REVERSED AND RENDERED

           The City of Boerne appeals the trial court’s order denying its plea to the jurisdiction and

affording appellees, David Vaughan and Vaughan’s Hill Country Funeral Home, Inc.

(collectively “Vaughan”), an opportunity to amend their pleadings.               Because Vaughan’s

pleadings affirmatively demonstrate that no cause of action exists for which the City’s immunity

is waived, the trial court erred in affording Vaughan the opportunity to amend. We reverse the

trial court’s order and dismiss the underlying claims against the City.
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                                          BACKGROUND

       Vaughan was an independent contractor engaged by the City as a cemetery sexton for the

Boerne Cemetery. Vaughan sold two cemetery plots to Debbie Thomas after verifying the

availability of the plots with the City. Thomas’s husband was buried in one of the plots. Eight

years later, the City discovered that the plot in which Thomas’s husband was buried had

previously been sold to another person.

       After unsuccessfully attempting to negotiate a resolution of the matter, the City and

Vaughan, without any prior notice to Thomas, disinterred the remains of Thomas’s husband from

the plot and reinterred the remains in another section of the Boerne Cemetery. Thomas sued

Vaughan alleging breach of contract and numerous other tort claims. Vaughan filed a third-party

petition against the City for indemnity and contribution, asserting the plot was sold by Vaughan

to Thomas based on the City’s representation that the plot was available and that the remains of

Thomas’s husband were moved by the City based on the City’s decision.

       The City filed a plea to the jurisdiction. Vaughan responded that the City waived its

immunity because Vaughan was merely acting as the City’s agent when he signed the contract to

sell the plot to Thomas. Vaughan further responded that the City was engaged in a proprietary

function for which it is not entitled to immunity. After a hearing, the trial court denied the plea,

but ordered Vaughan to amend his pleadings. Before Vaughan’s deadline for amending his

pleadings, the City filed this interlocutory appeal of the trial court’s order. See TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(b) (West Supp. 2011) (interlocutory appeal from order denying

plea to the jurisdiction stays all other proceedings in the trial court pending resolution of the

appeal).




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                                      STANDARD OF REVIEW

       “Immunity from suit deprives a trial court of jurisdiction.” City of Houston v. Williams,

353 S.W.3d 128, 133 (Tex. 2011). “Whether a trial court possesses jurisdiction is a question of

law we review de novo.” Id.

       “The trial court must determine at its earliest opportunity whether it has the constitutional

or statutory authority to decide the case before allowing the litigation to proceed.” Tex. Dept. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “When a plea to the jurisdiction

challenges the pleadings, we determine if the pleader has alleged facts that affirmatively

demonstrate the court’s jurisdiction to hear the cause.” Id. “We construe the pleadings liberally

in favor of the plaintiffs and look to the pleaders’ intent.” Id. “If the pleadings do not contain

sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the

plaintiffs should be afforded the opportunity to amend.” Id. at 226-27. An incurable defect

exists if “the petition affirmatively demonstrates that no cause of action exists or that plaintiff’s

recovery is barred.” Peek v. Equip. Serv. Co., 779 S.W.2d 802, 805 (Tex. 1989).

                                     BREACH OF CONTRACT

Liability of an Agent

       In its response to the City’s plea to the jurisdiction, Vaughan asserted that the City

waived its immunity by entering into a contract with Thomas for the sale of the cemetery plots at

issue. Vaughan contends that because he was acting as the City’s agent in entering into the

contract, he is entitled to indemnity. Under ordinary principles of agency involving private

litigants, this is a correct proposition. See Ross F. Meriwether & Assocs., Inc. v. Aulbach, 686

S.W.2d 730, 731 (Tex. App.—San Antonio 1985, no writ).



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       Here, however, the litigation involves private litigants and a governmental entity, and that

distinction is significant. The City’s immunity is waived as to breach of contract claims only if

the contract is for the provision of goods and services to the City. See TEX. LOC. GOV’T CODE

ANN. §§ 271.152, 271.151(2) (West 2005). Because the contract relating to the sale of the

cemetery plots to Thomas was not a contract for the provision of goods and services to the City,

Vaughan cannot allege facts that would establish a waiver of immunity for this claim. See id.;

see also Tex. A&M Univ. v. Bading, 236 S.W.3d 801, 802-03 (Tex. App.—Waco 2007), pet.

denied, Zachary Const. Corp. v. Tex. A&M Univ., 298 S.W.3d 617 (Tex. 2009) (holding

university immune from claims seeking contribution and/or indemnity). Accordingly, Vaughan

cannot establish jurisdiction under a breach of contract theory.

                                              TORTS

Proprietary v. Governmental Functions

       A governmental entity’s liability for its tortious conduct often depends in part on whether

the entity’s conduct involved a proprietary or governmental function. When a municipality

commits a tort while engaged in a proprietary function, it is liable to the same extent as a private

entity or individual. Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006); Martinez v. City

of San Antonio, 220 S.W.3d 10, 14 (Tex. App.—San Antonio 2006, no pet.).                   When a

municipality commits a tort while engaged in a governmental function, its liability is determined

by the provisions of the Texas Tort Claims Act. Martinez, 220 S.W.3d at 14. Vaughan contends

that selling cemetery plots is a proprietary function; therefore, the City is not immune from suit.

Legislative Determination of Governmental Function

       Although in certain cases a court must consider the classification of a function as either

proprietary or governmental, such classification is not necessary if the function is defined by



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statute. Martinez, 220 S.W.3d at 14. The Texas Constitution authorizes the Legislature to define

for all purposes those functions of a municipality that are to be considered governmental and

those that are proprietary, including reclassifying a function’s classification assigned under prior

statute or common law. TEX. CONST. art. XI, § 13; Tooke, 197 S.W.3d at 343. For purposes of

tort liability, the Legislature has statutorily included “cemeteries and cemetery care” among a

municipality’s governmental functions. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(5)

(West 2011). Moreover, the Legislature has expressly provided that proprietary functions of

a municipality do not include those governmental activities listed in the statute.               Id. at

§ 101.0215(c). Therefore, the Legislature has given deference to the judiciary to interpret what

constitutes a proprietary function only to the extent it is not listed in the statute. Herschbach v.

City of Corpus Christi, 883 S.W.2d 720, 730 (Tex. App.—Corpus Christi 1994, writ denied); see

also Martinez, 220 S.W.3d at 14.

Sale of Cemetery Plots as Governmental or Proprietary Function

       Vaughan argues that although the statute includes “cemeteries and cemetery care” as a

governmental function, selling cemetery plots is proprietary.          In support of this argument

Vaughan relies on City of Corpus Christi v. Absolute Indus., 120 S.W.3d 1 (Tex. App.—Corpus

Christi 2001, pet. denied). In the Corpus Christi case, however, the city relied on the statutory

listing of “garbage and solid waste removal, collection, and disposal” to argue that it was

immune from a claim against it for intentionally interfering with a contract between a private

company and a refinery. Id. at 2. The court disagreed and held that the actions about which the

private company complained did not center on the removal, collection, or disposal of solid waste,

but on the city’s interference with contractual relations. Id. at 3. The court reasoned that the fact

that the contract at issue pertained to solid waste disposal was irrelevant. Id. at 3.



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       In the instant case, the complaint centers directly on the City’s actions in relation to the

cemetery, specifically the sale of a plot previously sold to another person and the disinterring of

remains from the cemetery. Accordingly, the cited case is readily distinguishable from the

instant case.   Furthermore, we note that a plaintiff may not “‘split various aspects of [a

municipality’s] operation into discrete functions and recharacterize certain of those functions as

proprietary.’” Martinez, 220 S.W.3d at 15 (quoting City of San Antonio v. Butler, 131 S.W.3d

170, 178 (Tex. App.—San Antonio 2004, pet. denied)). Therefore, Vaughan is precluded from

splitting the sale of cemetery plots from the City’s operation of the cemetery to argue that the

selling of cemetery plots is proprietary. See id.

Waiver of City’s Immunity

       Because the City’s actions related to a governmental function, Vaughan was required to

allege facts that would show a waiver of immunity under the Texas Tort Claims Act. Martinez,

220 S.W.3d at 14. Vaughan attempts to do this by asserting that Thomas’s claims in this case

were for personal injury “caused by a condition or use of” real property. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.021(2) (West 2011). Even if we ignore that Vaughan’s claims against

the City are not the same as Thomas’s claims against Vaughan, see Tex. Dept. of Transp. v. City

of Floresville Power & Light Sys., 53 S.W.3d 447, 455 (Tex. App.—San Antonio 2001, no pet.)

(noting waiver of immunity must be examined based on cross-claim brought by defendant

against governmental entity not on claim brought by plaintiff against defendant), Vaughan’s

argument would still fail. In order for immunity to be waived under this section of the statute, a

premises condition must actually be the instrumentality that causes the plaintiff’s harm. San

Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 37 (Tex. App.—San Antonio 1998, pet. denied).

No possible amendment to Vaughan’s pleadings, or to Thomas’s for that matter, could establish



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that a premises condition was the cause of harm alleged in the instant case. Instead, it was

actions taken pertaining to the cemetery plot that allegedly caused the harm, not the cemetery

plot itself. See id.; see also Tex. Dept. of Transp., 53 S.W.3d at 455-56 (holding claim for

indemnity is claim for financial loss not personal injury damages).

                                          CONCLUSION

       We are cognizant of the distress that can arise from an unwanted disinterment of a loved

one’s remains. Likewise, we are aware of an agent’s frustration when the agent is sued for

actions taken based on information provided by a principal, especially where the principal admits

its fault in providing erroneous information to the agent.       However, policy considerations

reviewed by the Legislature favor governmental immunity, and we are obligated to apply the

Legislature’s enactments.

       Because the pleadings in this case affirmatively demonstrate that no cause of action exists

for which the City’s immunity is waived, the trial court erred in denying the plea to the

jurisdiction. Accordingly, the trial court’s order is reversed, and the claims against the City are

dismissed.

                                                 Catherine Stone, Chief Justice




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