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Ethio Express Shuttle Service5/12/2005
Appellant, Ethio Express Shuttle Service, Inc., appeals the trial court's judgment dismissing its case for want of jurisdiction. On appeal, Ethio claims the trial court should not have granted the City's plea to the jurisdiction, arguing alternatively that either (1) the City was not engaged in a proprietary function and therefore did not enjoy sovereign immunity, or (2) the Texas Tort Claims Act waived immunity. We affirm because the City was engaged in a governmental function when it regulated transportation to and from airports and because the causes of action Ethio alleged do not fall within the Act's limited waiver of immunity.
Factual and Procedural Background
Ethio is a private bus shuttle service that operates in Houston, Texas. When Ethio initially asked the City for a ground transportation permit to provide shuttle service from two airports the City owned, the City denied the request, stating that its exclusive contract with Yellow Cab prohibited it from allowing Ethio to provide a scheduled shuttle service for airport traffic. As a result, Ethio designed its proposed routes to operate in other areas. Later, however, the City informed Ethio that its Yellow Cab contract was not exclusive and that it should have granted Ethio the permit. By this point, Ethio already had expended a considerable amount of money redesigning its routes based on the City's earlier representation that Ethio would not be permitted to provide a private shuttle service from either of the City's airports.
Ethio then filed suit against the City, alleging negligent misrepresentation, fraud, conspiracy to commit fraud, business disparagement and slander, tortious interference with contract, conspiracy to tortiously interfere with contract, and conspiracy to engage in an unlawful restraint of trade. The City specially excepted to Ethio's failure to plead a valid waiver of sovereign immunity. Ethio responded by filing its First Amended Petition in which it asserted the court had jurisdiction because the City was engaged in a proprietary function and, thus, enjoyed no sovereign immunity. The City then filed a plea to the trial court's jurisdiction, this time asserting it was not engaged in a proprietary activity and had not waived sovereign immunity. In response, Ethio urged that the trial court had jurisdiction, arguing alternatively that either the City was engaged in a proprietary activity or the Texas Tort Claims Act had waived the City's sovereign immunity. The trial court granted the City's plea and dismissed Ethio's claims against the City for want of jurisdiction.
On appeal, Ethio argues that the City's regulation of the private shuttle service from its airports is a proprietary activity for which the City does not enjoy governmental immunity. In the alternative, Ethio urges this court to find the City's immunity has been waived by the Texas Tort Claims Act. We first address Ethio's claim that the City was engaged in a proprietary activity.
Standard of Review
The City's plea to the jurisdiction challenged the trial court's authority to determine the subject matter of Ethio's suit. See Metropolitan Transit Auth. v. Burks, 79 S.W.3d 254, 256 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). Deciding whether the trial court had subject matter jurisdiction is a question of law, reviewed de novo. See id. (citing Mayhew v. Town of Sunnydale, 964 S.W.2d 922, 928 (Tex. 1998)). The burden is on Ethio, as the plaintiff in a suit against a sovereign entity, to establish the trial court's jurisdiction. See Reyes v. City of Houston, 4 S.W.3d 459, 461 (Tex. App.--Houston [1st Dist.] 1999, p
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