 We'll hear argument and 17 423 Hay Street Bridge restoration group against the city of San Antonio. Court. You will present argument for the petitioner. The petitioner has reserved five minutes for rebuttal. Good morning. Present in the court this morning are many members of the Hay Street Bridge restoration group and members of the Hay Street Bridge Community Coalition. There was some concern and I wanted to mention that your honors that the write up in the little brochure is not accurate but that I assure them that that is not this court's understanding of the case. The important issue before the court in this case is whether the city was immune from a breach of contract action brought by the Hay Street Bridge restoration group. This court has decided several cases involving governmental immunity from municipal entities and the law has been significantly clarified by these decisions. As you know there are two parts of the question of whether or not the city had governmental immunity. First whether the city entered the contract in pursuit of its governmental capacity and therefore whether it was clothed with derivative governmental immunity from the state. The court of appeals said yes it had immunity. The second part of the issue of course is if the city was acting in a governmental capacity and had derivative governmental immunity was that immunity waived by the local government's contract claims act. On the question of whether or not the city had governmental immunity the court specifically addressed this question in was in two which was decided on June 1st of this year before or I'm sorry after we had completed briefing on the merits. So we didn't have an opportunity to discuss that case and to apply what the court announced as a four part test. So I would like to go over that and one of the first exhibit that we've distributed is the Watson II decision and in that case Justice Boyd writing for the court announced a four part test to determine whether or not when the city of San Antonio entered the contract with the Hay Street Bridge restoration group it was acting in a governmental or a proprietary function. The first of the tests is whether the city's acting entering this fundraising contract was mandatory discretionary. Clearly the city decided and suggested and drafted this memorandum of understanding the contract in this case in order to help them gather resources for the Hay Street Bridge restoration project. This was a discretionary decision. It was merely that they wanted to have a source of funding. Was the funding the second part of the four part test is whether the fundraising agreement intended to benefit the general public or the city's residents. Clearly the purpose of this fundraising contract was to generate resources for the city and that was to benefit the city. Would the public derive any benefit from that though? Not from the fundraising contract itself. No. It was purely for the purpose of supplementing the city's resources. Explain that more because it really seems that that was to benefit the public. There's no doubt. There's no doubt that the work of the Hay Street Bridge restoration group was intended by the group to benefit the public. That's what they did. They worked before and after the contract doing that. But the contract that the city required of the Hay Street Bridge restoration group required the restoration group to continue its best efforts to raise funds, both cash and in-kind donations for the Hay Street Bridge restoration project. So from the city's perspective, what it was seeking was fundraising services. So, is that? I understand your answer. Yeah, that's right. And that was really what was undertaken by the group was generating funds, soliciting donations of cash, soliciting donations. When the project started, when the contract was entered, the city didn't even own the bridge. So, it was the Hay Street Bridge restoration group that negotiated and convinced Union Pacific, along with the city, who was their partner by this time, to donate the bridge. How does the group define its primary purpose? The primary purpose of the group is to preserve and maintain the Hay Street Bridge for the purpose of educating and promoting the community identity. The Hay Street Bridge is both a historic engineering monument, as well as a cultural monument for San Antonio's east side, the traditionally African-American part of San Antonio. So, their motive in entering into this contract surely was to benefit the community, but the city's motive was to generate funds. But where's that distinction? Because everything that you're saying to me sounds like it's very beneficial to the public, the historical significance of this very important project. And where's the distinction? The city normally would restore and maintain historic properties as part of their normal functioning. In this case, they required the Hay Street Bridge restoration group to generate resources for this preservation, to obtain the bridge and then to preserve it. So, yes, the city in agreeing to preserve the Hay Street Bridge agreed and the public benefited from that. But when the city said, we will require you to do fundraising services, and in exchange, we promise that whatever resources are generated by you will be allocated to the Hay Street Bridge restoration project. So, it's that contract that's in dispute, that separate fundraising contract, which, yes, the Hay Street Bridge restoration group agreed to that contract because it was part of their larger mission, but the city didn't have to do that in order to preserve the bridge. The reason they entered into that fundraising contract was simply to generate funds. But it's likely the project would not have been preserved for that, correct? Well, here's what happened. The Hay Street Bridge restoration group, you know, searched for resources, identified the possibility of a federal grant, generate, you know, got pro bono services committed to preparing an application for that grant, convince the city to join on that application, the federal government, the grant was awarded for a $2.9 million grant, and the city, at that point, said, well, we're not going to accept that grant unless the Hay Street Bridge restoration group agrees to give us fundraising services. But that's not a normal practice. The city says, oh, this is like other projects, but it's not true. We were unable to find any other instance in which the city required a fundraising contract with a community organization. So they went out, they did something unusual, the city, entering into this contract, and the reason for it was they didn't want to commit any money to this preservation of the bridge. The promise that the city made in exchange for the group's promise to provide these services was to dedicate any funds raised to this project, right? Was it also to create the park or to use this property as the park? Was that a promise made in consideration for the group's services? That was not a part of the original contract, no. It's clear that the original contract, and as the jury found, the word funds includes both cash and in-time donations. It's clear from the very beginning that there was a contemplated in-time donations in the form of land and the bridge and other such resources. But no, the availability of this piece of land to be a place for the visitor center and all of that didn't come up until afterwards. And it's my understanding there's a fact issue as to whether the donation of this piece of land was the result of the group's efforts versus something the city did on its own? No, Your Honor, there's no fact issue on that. Is everybody agrees that the group generated this? The group generated it. If we disagree with you and believe that there is governmental immunity here, can you address whether that immunity has been waived? Absolutely. Under the Local Government Contracts Act, as you know, this is a service contract covered by that act under section 152 that is 271.152. Governmental immunity is waived for contracts subject to this act and it says for the purpose of adjudicating. But you're seeking specific performance and there is an argument that that can never be. And I've included in the back of exhibit three is the Complete Act and exhibit two is the version of section 153 that applies to this case. There have been various amendments and that's the one that applies here. As I said, the waiver, the provision, and this is drawing on this Court's decision in Zachary which really sorted out the interaction and interplay between section 152 and 153. 152 waives immunity subject to the other limitations in the act, including section 153. So the Court of Appeals looked at section 153, which again you have in the exhibits, and said well, 153 prohibits any action that does not include a request for money damages. And the Court then said the only money damages sought were specific performance and therefore immunity was not waived. That's an incorrect reading, incorrect on contract law and incorrect on the statute. Contract law as you know allows alternative remedies. One is monetary damages, compensatory damages, and the other is specific performance. Most cases seek monetary damages and indeed specific performance is not available if there is a reasonable and an adequate monetary award, whether or not it's granted or whatever. In this case, this is one of those rare cases in which monetary damages are not adequate to remedy the group's injury. The group sought to better the community. They didn't seek a payment for their fundraising services. What injury is left? The city says the project has been completed and the property has been sold and the funds were credited to the city's involvement, the city's funding, so there's nothing left. The project is not complete. There is no visitor center. There is no place for parking of school buses and other people, visitors to the bridge. There are no restroom facilities. There are none of the facilities that the project threw out and this was clear in the evidence at trial that there was always an assumption that this land would be used as a visitor center. But let me take a step back from that and just focus, if I will, on the city's motion to dismiss. The affidavit, tendered with that motion, gives you no time, no personal knowledge. I assume that what they're referring to, as your honor said, the sale of the land. I'm assuming that that was a sale that happened before the city filed its notice of appeal. So apparently the city, after four years of an appellate litigation, is now saying that this case was moved before we filed our notice of appeal. We don't know because the affidavit doesn't tell you when any of the events that it talks about. Moreover, as I said, it doesn't tell you anything other than that this affidavit, declareant, is familiar with this project. Well, a lot of people are familiar with the project. I think she says that the land was sold to the animal beer company. We have not yet had post-judgment discovery to which we are entitled, but I assume that they're talking about a transfer that happened in 2014. But the public records show that that transfer was not to the animal beer company, as it says in the affidavit, but to the Seymour Texas Land Company. So on its face, the affidavit is inaccurate at least as far as the public records are concerned. Moreover, she says, well, this money was taken and allocated to the project. But a few months later, after the sale of this land, we see a check for the exact amount written to the animal beer company. We don't know, and we're entitled to discovery on what happened. First of all, what time period is the court, is the city talking about? Was it before they even filed a notice of appeal, in which case it's really problematic. But second of all, on the law in Houston, we are entitled to see what was done with the money. Firstly, your time is expired. Thank you. Are there any other questions? Thank you. We'll hear from the city. May it please the court. Mr. Truesdale and Mr. Poza will present arguments for the respondent. Mr. Truesdale will open with the first five minutes. May it please the court. Commissioner's brief in this case concludes with the following statement. And it's in repetitive briefs, but the statement is, the only thing left to be done in this case is for the city to perform the part of the contract that it was ordered to do so in the judgment. Justice Heck, you just asked what relief is left to be performed in this case. And the answer to that is in the judgment itself. This case is not about a park. The judgment was not about a park. The judgment in this case ordered as follows. It says it is therefore ordered and decreed that the city of San Antonio shall allocate, apply, and use all funds raised by Plaint of Hay Street Bridge Restoration Group by applying said funds. If the city complete the project as envisioned, there were a recitation of validity of things that weren't completed? Well, yes. The city has completed all that. Here's the most important part. What did the judgment requires to do? The judgment required us to apply and allocate funds. And the funds that are at issue in this case are the funds that were generated from the property. The fund, a portion of property can't be applied to a budget. The funds that are generated from the sale of a property can be allocated to a budget. And that's what happened here. Now, the reason I'm focusing on the judgment, obviously, is that's what we have to show that we've satisfied. But more importantly, not only is the relief that the judgment granted important, but the relief the judgment did not grant is equally important. Because the claims in this case that involved any allegations about the use of the property as a park were denied by the jury. The jury found that the property was not held, owned, used, or held as a park. And accordingly, the transport denied the territory relief that had anything to do with the property as used as a park. Does the visitor's center fall within the ambit of park? A visitor's center, theoretically. Does that fall within park? It means that part of a park? Or is that a stand-alone? That's not, with respect, the question is, is the property held as a park? And the property was not held as a park. And when the judgment says the property is held as funds and you must allocate the funds as the agreement says you must, then the question is, did we do what the judgment said that we must do? And the question is answered by the affidavit that says, there's not an affidavit. The declaration, Your Honor, I'm sorry. But it says that the funds that were generated from the sale of the property were so allocated. And that's dispositive. When do you assert that happened? After the sale of the property. And here's another point that's important because it has to do with the distinction between Alamo, Brewing, or the Seymour Company. Bottom line is that in every pleading that the petitioners held of the trial court, they complained that the city of San Antonio had put an ordinance out to sell this property to Alamo Brewing Company, quote, or its affiliates. And the record shows that the affiliate is Seymour, which is the owner of Alamo Brewing Company. So if there's a deviation between the names, the names are consistent with respect to the relationship of the parties. And that's not, even beside the point in any event, because there's no dispute that the property was sold. So on December 4th, 2014, and this is 2018, so when does the city assert that the judgment was compliant with? In 2014 after the sale. Well, and along the same lines, it's just striking that if your position is that you satisfied the judgment in 2014, what were you doing for all those years litigating the case? That's a very good question. And the answer is, is that when this case was, when we sought the appeal and we were pursuing a judgment, reversing a plea to the jurisdiction that denied our claim to governmental immunity in connection with the specific performance claim, we wanted a judgment on that. We wanted to get that taken care of. And the other fact is, Justice Blacklock, is that throughout the history of the litigation, particularly on appeal, the petitioner's position has been somewhat of a moving target with respect to its interpretation of what the judgment imposed upon us, what duties it imposed, what relief it was afforded. You know, I noted this in the motion to dismiss that we filed throughout the history of this case and to this day at this argument, the city still cannot, or the group does not identify what relief it wants in the event that it prevails in this court. So did you recently discover that you satisfied the judgment or did you know all along you satisfied the judgment and you were still seeking an opinion in your favor from the Court of Appeals? The question of when we discovered that, or when it occurred to a council that the judgment had been satisfied and the case was moved, that's a different question. But the bottom line point is that once we discovered that, we filed our motion and the consequences of that motion, whether we knew about it in 2015 or we knew about it in August of 2018, the consequences are that it determines the fact that the judgment has been satisfied and if the judgment has been satisfied, there's no relief left to be granted. And I just asked the court to consider if this court reverses the immunity ruling and sends this case back, what more is there to be done? The petitioner asks in the briefing, you know, all that is left to be done is what is ordered by the judgment. And our contention is everything that the judgment ordered us to do has been done and this dispute is moot. Nothing in the... Any other questions? Thank you, Mr. Trinsale. Mr. Poser, we'll hear from you. Mr. Boyd, to your question, the Court of Appeals did not reach underlying factual disputes on the merits. For instance, the city has always contended that the 803 North Cherry property was donated but not by the efforts of the group. The city contends there's a fact issue on whether the group generated that donation. And if in fact your... if in fact the group did not generate the donation, then the property doesn't fall within the MOU at all. We believe the property doesn't fall within the MOU just based on the judgment itself. But independently of that, we do not believe that this land that was donated was donated by them. We do not believe that the land is funds under the memorandum that could go through the San Antonio Area Foundation that could be used. We do agree that if it is those things, to Mr. Trusdale's point, if it is those things, we've done that. We don't... By allocating the sale price to the budget. In effect, really, I mean, money is... You contend that there was never a contractual obligation on the part of the city to... a contractual obligation to the group to build the park or to use the property for... Exactly. We believe our obligations are limited to the document, the memorandum. But the MOU refers to the Hey Street Bridge project which was described in the grant application to the federal government which included a park and the parking and all of that, right? Not that we know of. I mean, the parking and all that never came up. And I guess if I could sort of roll it back into our sort of Boston II analysis, if you look at the ordinance, if you look at the undisputed testimony, the author of the memorandum, if you look at the memorandum itself, and then if you look at finally the city-state contract that actually creates the funding and creates the project itself. If you start with the May 2001 ordinance, it describes exactly... This is sort of the enabling and ordinance that sort of got everybody on board together, both the group and the city. And it talks about what was then called Neighborhoods Acting Together with the Planning Department of a study of the potential uses of the historic Hey Street Bridge. It's envisioned in that ordinance that there is going to be an application made through the state of Texas, the statewide transportation enhancement program. This is going to be a state project. The bridge is an instance of, an instantiation of, this sort of broader statewide project. It's not even a question of going to the Tort Claims Act and finding, you know, bridge for the city. That there's going to be this called TEA 21 application process. The scope of work is determined. The scope of work has nothing to do with anything other than the bridge itself and the restoration of the bridge, rehabilitation of the bridge. And indeed, this has nothing to do with the dichotomy issue, but I think it's important in that ordinance it states, whereas approval of this ordinance will support initiatives of the downtown strategic plan, the downtown neighborhood plan, the master plan in Craig, as well as freeing up lands for new development, including residential development, just adjacent to the bridge. So, public policy-wise, the bridge was maybe the jewel in the crown. Public policy-wise, the bridge is the project, that's the governmental project, but the city is looking at both the importance of that overall development and trying to have development, in particular residential development, on the east side. I in residential development or residential development, that's going to benefit lower income communities. There's no question that outside of the bridge project, the other things that were going on would be considered, I mean, there's nothing to do with the memorandum, but would be sort of proprietary interest the city would have in the east side next to the bridge and the bridge sort of forming the basis. That was sort of their public policy. But it's sort of like looking, I guess what I would say is the group, or there may be other citizens, I mean, there is not unanimity. There is a large number of east side residents that are very favoring the development that's going on right now. There's a group that disagrees with that, so that's not atypical. But the one thing that I don't think the group can say is they can't claim surprise or shock that it would be used for residential development on the land adjacent to the bridge. Since 2001, that was sort of the public policy of the city. Well, since you brought up the policy, that's what I'm just trying to determine whether in the end the low-income residents actually benefit from what's actually taking place. The low-income residents will be benefiting presumably by what the bridge attracts as far as development. So that's the idea. I mean, City of San Antonio thought the Alamo Dome on the east side would have that same benefit. I don't think that's proven to be what their expectations were. We are seeing residential development now in the land that was sold as a matter of fact on 803 North Cherry that is residential development that's intended to be. And I'll only bring that up to have the larger context of where this is fitting in. Before we get to the dichotomy issue, going back to I.T. Davey and Cook and Federal Sign and all the late 90s, 2000 cases, the court repeatedly referred to sovereign or governmental immunity as barring suits against the government for money damages. And it seems like lately we've sort of blurred that a little bit but it seems to me that there's a preliminary question to be answered. Does immunity even apply to a claim that does not seek money damages? And I wonder if that's something you've looked at and your client have a position on? I mean obviously one of the motivating factors for us was remember that the city is going to be paying the 20% whether they make it all up or whether they're short, money's fungible we paid them. What was important to us was the fact that a trial court had said that we had to specifically perform that very thing and we thought we had immunity from that. They brought the suit under 271 and we said you won't find the remedy in 271, we have immunity for that. And whether you look at the 271 issue as the Austin Court of Appeals did in the West Travis County Public Utility case where because there's no money like ours due and owing under the contract is this really even something that's captured? Is this contract even captured by or subject to the act? In that case Justice Pemberton had a concurrence in dissent basically a couple of lines that went off in the second question that is is there a remedy for which there's waiver? So although our Court of Appeals and our briefing focus on what unpacked if you will Justice Pemberton had had is his concurrence in dissent, he comes out in the same place but for a different reason. So we unpack that you could say the same thing is true in this case. That is is this claim for a specific performance where there's really no obligation there's no right that we have to their services under the memorandum they're using their best efforts there's no liability if they fail to use their best efforts if they fall short in their fundraising there's no liability it's basically sort of rolling it back into the Washington too the reason why the only reason the memorandum exists it's only reason for existence is to make sure the bridge project happens and that's true I was just going to ask before you move on damages and remedies available under the statute are there any remedies I mean there wouldn't be any remedies in this case because there's no money damages even if you'd have to rewrite the memorandum it'd have to be a different document of course the majority in the Austin Court of Appeals looked at essential terms under the Act after include things such as the amount of now as I understand the group's argument on that issue is the Act has specific damage items that are waived and the Act goes to the additional trouble specifically saying those things that aren't those damage elements that aren't waived and therefore in specific performance is not captured in either of those boxes so somehow it's there they characterize it as a remedy not necessarily an element of damages for a bridge of contract right and I think it's sort of want to impose well it's just we know in contract law if money damages are inadequate one can go to specific performance fine for contract law but that has nothing to do with the immunity issue and so in effect they say since the legislature may not understand maybe their best argument or at least their attempt at what I would consider their best argument would be well here's the waiver for balance due and owing things of that nature here's some things that for sure don't count as being waived consequential damages and such and so well gosh there's no mention of specific performance so they must have intended that because they know what contract law is well they may know what contract law is and not want to perform it so I don't think if we're going to maintain a clear and unambiguous waiver standard that that implicitness is going to count I would I would just add in volume 5 of the reporters record the group called as a witness Nina Nixon Mendes she's the author of the memorandum this is undisputed testimony and it helps corroborate harmonize both the ordinance in the memorandum and ultimately the city-state contract in that just briefly in that testimony she says this is a memorandum of understanding that was drafted in conjunction with the proposal that was sent to council for funding of the Hays Creek Bridge and she is asked says I was asked to prepare a memorandum of understanding by our planning director Emil Masavius who's the one who signed it I was manager for the neighborhood division at the time and that was a role I assumed with other neighborhood groups that we that we worked with in developing memorandum of understanding she's describing how this isn't the first time that's been done and she says I was being asked to prepare this because the Hays Street Bridge restoration group wanted the city to apply for this federal funding the T-21 enhancement funds and it was our planning directors believe that it would be important to demonstrate to city council in submitting this grant application that the Hays Street Bridge group showed that they were interested in raising funds towards the project as well the questions asked and did the city go out looking for somebody to do the fundraising for the city to do that 20% match no no again the idea behind the memorandum of understanding was that the group was already working on the fundraising and we just wanted to sort of crystallize the understanding that we had with them when we presented the contract for council they were interested in raising the match the cash match for the project and so that's why we sat down and drafted the memorandum of understanding the that's drafted and signed by the group and by the city on June 4th 2002 the next month it does work it is effective the next month the city signs the contract with the state that had been signed by the state in January 2002 it was on the mayor's desk if you will or the city manager's desk for some number of months the memorandum is the inducement to a city with limited resources on infrastructure projects on why this one works and so yes I would say citizen lobbying was effective and they thought that this would help as well there's no and that's why the memorandum of understanding is rather cavalier about best efforts no liability it's really just sort of this it's really asking a community that has been involved continue to be involved to assure the decision makers of the city that they would continue to be involved the mission accomplished and walk away anything that would keep that involvement was important was important to the policy makers in deciding what infrastructure projects get the green light which ones don't so I don't think I think the evidence is clear and if you look at the memorandum of understanding every paragraph is tagged to the project every paragraph in that contract is tagged to the Hay Street Bridge project in the scope of the project if you look at the city-state contract and the memorandum of understanding is strictly the bridge and its rehabilitation there's no reference to anything outside of that project but the jury found otherwise they did assuming we don't have immunity that's what we're addressing that's what we were going to address with the court of appeals that they didn't reach was that this has nothing to do with this has nothing to do with other things but right now in front of this court we have the jury's findings and the trial court's judgment based on those findings without trying to go behind that and question that we're all stuck with that right now it's just a question of whether there was immunity right but what we're stuck with is a judgment that will never give them what they want I mean they're not appellants below they're not cross appellants below they can't touch that judgment their problem is there needs to be the motion to dismiss sort of ferrets it out for this court their problem and their position has always been they don't like the judgment that was entered they think they have jury findings that should give them different better relief they never filed a notice of appeal there is a sanctions motion pending against the city of San Antonio right now that whenever it goes if it goes back and the judgment's in place they will be trying to hold the city for doing what for doing the very thing that the judgment itself says that we have to do because they have a different interpretation they believe either there was an oral agreement on the side that needs to be flushed out and added to a judgment which would have been a nice notice of appeal point that they would have to bring up because it's more relief than they got are they believe and sometimes say that the judgment is ambiguous and once the court clarifies the trial court judgment changes that judgment will be held in contempt for what the judgment will say but all that is yet to be decided if we agree with your motion to dismiss that this petition is moved because you've sat at the city has satisfied its obligations under the judgment then we dismiss this case and it gets active again in the court of appeals on all that you've just described well if the case is dismissed I presume it's dismissed across the board because although we still don't we still say that they did not donate the land we still say that the land can't be used as funds we in fact did that assume it was our position is well assume it was donated assume we're wrong about that assume they brought the donation assume that land can be funds and assume that land doesn't have to go to the city turn your ear foundation like the document says assume all of that in their favor we've done that very thing any other questions thank you Mr. Poser Ms. Castley you have five minutes I would like to say this is the first time that I've heard that there's a contested fact about whether or not the hastier bridge restoration group solicited the land talk about a moving target I wanted to just Justice Guzman be the project what the city is now doing all along this has been about a sweetheart deal it's been about giving this land along with the money to a close friend of the former react that's what it's about the project is going to have housing for the wealthy that will have a beautiful view I don't think so I just wanted to give you this low income or wealthy or a good policy or a bad policy has nothing to do with what this court's deciding at this point but council did mention public policy that sort of surrounded the circumstances so to that extent thank you for that clarification Thank you Justice and Justice Boyd you asked whether immunity applies if no money is sought I looked into that question it's not answered it certainly one of the justifications current justifications for immunity is that it saves the public fisk I assume that if it does apply we rely on the second justification which has to do with not binding the state in the future but as far as I know that has not been decided by this court I wanted to say that the motion to dismiss rests on two very flawed legal arguments one is that the judgment has a plain meaning of funds which is not the same meaning that the jury found for that word interpretation of the judgment is something that begins with the district court and then can be appealed later on but we filed a motion to show cause why the city should not be held in contempt in 2014 all of the issues that the city is now bringing to you to decide have been waiting for resolution in a hearing before the district court and the same with the interpretation of judgment we're entitled to have to have the judgment interpreted as any contract or any other piece of legislation would be interpreted so that's flawed the second one is this novel idea that the jury finding that the city did not own claim or hold the land as a park somehow binds us from rescission of a transfer that was made in violation of the judgment there were two claims initially in this case the breach of contract and a secondary claim under local government code section 253 which has to do with when a municipality transfers a piece of land that is quote owned, held or claimed as a park and the remedy for that is if it's done that then there has to be an election held by the populist okay in the beginning of the trial we had to decide whether to go forward our name played to that action was ill at the time and second of all that's not the remedy we've ever wanted in this case so that was the only reason for that jury finding and yes the jury found in other words that this land prior to the trial prior to 2010 prior to 2012 was not held by the city as a park we knew that it wasn't part of the park um you know a list of properties that's not the point and it certainly doesn't preclude it doesn't preclude the district court from finding that a transfer in violation of the judgment has to be rescinded what they do next is up to them but we're entitled to hearing our motion to show cause and we have a remedy available that is that this actually comply with the judgment um excuse me um the other point is the relationship to the bridge and the um public benefit and that goes to the question of whether or not the city was acting in a governmental or proprietary function here it's worth cautioning um and recognizing as this court has done repeatedly in its decisions that the Texas court claims act list of governmental functions was expanded for the purpose of bringing more of the municipal actions under the caps in the tort claims act or the tort reform act what it was yes that this court has said that list can be guidance for courts but the question of whether governmental immunity exists in the first place is one for the judiciary the there was a constitutional amendment empowering the legislature to define the scope of governmental immunity for all purposes but they haven't done that they've only defined it for the purposes of tort claims not for the purposes of contract claims and so even if this well that's one point the second point is in the WASN 2 that you all decided just recently this court said a proprietary action that is that touches on or in some ways involved with governmental action is not to be treated as a governmental function unless it is essential to that purpose so that goes to whether or not this contract was essential to a governmental purpose for the city any other questions thank you Ms. Casterly the case is submitted and the court will take another break to assess all rise