Friday, February 29, 2008

Duty to Defend: Tx. Supreme Court rules for builder in dispute over coverage under CGL policy

Grimes Construction, Inc. v. Great American Lloyds Ins. Co., No. 06‑0332 (Tex. Feb. 29, 2008)(per curiam) (insurance coverage dispute, duty to defend, indemnify)
Court of Appeals below: No. 02‑04‑00335‑CV, 188 S.W.3d 805 (Tex.App.- Fort Worth [2nd Dist.], March 9, 2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.


This declaratory judgment action concerns the duty to defend and indemnify under a commercial general liability (CGL) policy. The appeal presents issues similar to those decided in Lamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d 1 (Tex. 2007).

The CGL’s insuring agreement provides coverage for “property damage” caused by an “occurrence.” Property damage is defined as “physical injury to tangible property,” and an occurrence is defined as an “accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Id. at 6. In Lamar Homes, we were asked whether an insurer under a CGL policy had a duty to defend its insured, a homebuilder, against allegations that the builder’s defective workmanship caused physical damage to parts of the home. Id. at 4. We concluded that allegations of unintended construction defects might constitute an “accident” or “occurrence” under the CGL policy and that allegations of damage to or loss of use of the home itself might also constitute “property damage” sufficient to trigger the duty to defend under the policy. Id.

The trial court here rendered summary judgment for the insurer, concluding that the homebuilder’s CGL policy did not protect the builder from property damage claims involving its own work. The court of appeals affirmed, concluding among other things, that defective work was a contract claim outside the scope of the CGL’s insuring agreement. 188 S.W.3d 805, 812-15. We rejected similar arguments in Lamar Homes, concluding that labels of tort or contract could not override the language of the insuring agreement. 242 S.W.3d at 13. Because the court of appeals’ decision here conflicts with our analysis in Lamar Homes, we reverse its judgment and, without hearing oral argument, we remand the case to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 59.1.

Opinion delivered: February 29, 2008

Monday, February 18, 2008

Sam Nuchia's Rare Reversals

In endorsing Justice Sam Nuchia of the First Court of Appeals for reelection today, the Houston Chronicle offers an interesting rationale: Sam has not been reversed much by the Texas Supreme Court.

There are 80 justices on the courts of appeals. Assuming the Supreme Court decides 144 cases a year, as it did in FY 2007, what are the odds of high court review for any one justice? Not very high. Not to mention that the reversal rate for the Houston courts of appeals is lower than that of other parts of the state.

As it happens Justice Nuchia was reversed just last week, albeit in a case in which rather than writing the panel's majority opinion, he supplied the second vote. See Thao Chau v. Jefferson Riddle, M.D., No. 07-0035 (Tex. Feb. 15, 2008)(per curiam)

Bad timing.



Feb. 17, 2008, 10:58PM

Primary endorsements

The Chronicle recommends a vote for the

• 1st Court of Appeals, Place 3, Republican Sam Nuchia — The incumbent in this seat on an important intermediate court, Nuchia is a former Houston police chief. Rarely reversed by the Texas Supreme Court, Nuchia wrote the admirable opinion reversing the wrongful conviction of Andrea Yates, who was mentally ill when she drowned her five children in the bath.

Friday, February 15, 2008

2008-02-15 Texas Supreme Court Smites Critics

Who said the Texas Supreme Court is not a responsive democratic institution?

Stung by recent criticism over its lack-luster performance statistics, the Texas Supreme Court handed down 154 pages worth of opinions today, way too much for any court watcher, legal-beat journalist, or even a bevy of editoral assistants, to get their teeth into - much less digest -in one sitting. Indeed, enough fodder for thought for an entire week. The flurry also purports to substantiate Chief Justice Jefferson's plea that the nine-member body is not monolithic, as more than 20% of the overall volume consists of separate opinions and only one case was decided per curiam. Notably absent is any stining dissent. When under attack, it makes sense to circle the wagons. It also makes sense to offer a gesture of peace, as the court did today when made an exception to its solid pro-defendant stance and reopened the courthouse door to a malpractice suit by a baby who just would not breath through its stomach and suffered brain injury for want of oxygen as a consequence. The Court agreed with the distraught parents that the doctor was not a good samaritan after all.

Today's tally, in reverse order of page count follows:

30 Pages: Bowden v. Phillips Gas Co., No. 03-0824 (Tex. Feb. 15, 2008)(Justice Wainwright) (unanimous opinion minus Brister, who sat this one out because the case came from where he did)
29 Pages: Fairfield Ins. Co. v. Stephens Martin Paving, LP, No. 04-0728 (Tex. Feb. 15, 2008)(Plurality Opinion by Justice Wainwright)
28 Pages: Concurring opinion in Fairfield Insurance by Hecht
25 Pages: Evanston Ins. Co. v. Atofina Petrochemicals, Inc., No. 03-0647 (Tex. Feb. 15, 2008)(Justice Green)
16 Pages: PR Investments and Special Retailers, Inc. v. Texas, No. 04-0431 (Tex. Feb. 15, 2008)(Justice Willett)
13 Pages: National Union Fire Ins. Co. of Pittsburg, PA v. Crocker, No. 06-0868 (Tex. Feb. 15, 2008)(Justice Willett)
6 Pages: Thao Chau v. Jefferson Riddle, MD, No. 07-0035 (Tex. Feb. 15, 2008)(per curiam)
6 Pages: Justice Hecht's separate opinion in Evanston Insurance
1 Page: Justice Johnson's concurrence in Fairfield insurance

Justice Phil Johnson actually did not weigh in with a full page. Much rather, it was a three sentence fence-sitting statement. Though unopposed in the Republican primary, Johnson must be too busy gearing up for the fight in the Fall to keep his seat. Perhaps he is trying to avoid the fate of Baltasar Cruz, who was crucified by the Dallas Morning News for verbosity, and written off as a viable judicial candidate for lack of a crucial qualification: Proven competence in raking in wads of campaign cash.

Monday, February 11, 2008

Supremely Productive - Not!

Slowpokes or Ideologues?

Court critics' focus on backlog misguided: Hechtian approach to case disposition may be at fault

Too much ink has been spilled already over the alleged deterioration of the Supreme Court's case clearance rate. If that were really the problem, it could be solved all too easily: The members of the Court could simply let the conveyor belt system take most petitions into oblivion by automated disposal. If a good number of cases remain pending the reason is that these cases survived the initial screening. At least one member, and later invariably more than one, deemed an issue in the case worthy of further examination. Recent data indicates that the Court, whose composition has changed, is accepting more cases for review on the merits.

For a court of last resort that excersises what is essentially discretionary review, a higher acceptance rate is not inherently a bad thing.

This is not to say the criticism aired by the media and court watchers is unwarranted. But the focus should not be merely on one indicator - disposition speed; it should be on productivity overall, as well as on substantive results.

While the evaluation of the jurisprudential significance and impact on different categories of litigants of the Court's decisions and opinions cannot easily be quantified, and is in any event subject to political and philosophical disagreements, indicators of productivity of the court as an institution, and of individual justices, are readily available.

See the pdf version of the FY 2007 Annual Report, to which the Texas judiciary's webmaster-in-chief has finally placed a link on the appellate courts' portal pages.

Two things are striking:

1. The inferior courts of appeals work much harder

Although the case load of the supreme court is comparable to those of the large metropolitan courts of appeals, it issues a comparatively small number of opinions: A total of 170 in FY 2007, and that includes the separate opinions (dissents and concurrences). 69 of the merits opinions were issued as per curiam opinions, which are on average much shorter.

By contrast, the First Court of Appeals issued 1,234 opinion in the same time period, 665 of which were original signed opinions on the merits. While it is true that this nine-member court sits in panels of three and thus divides the workload, its opinion production still puts the Supremes in the shade, not to mention that the court of appeals justices still have to keep up with their colleagues' work to maintain uniformity for the court as a whole both in its civil and criminal jurisprudence. The Supremes, by contrast, do not even have to deal with criminal law issues, since those appeals (with the exception of appeals by juvenile defendants) go to the Court of Criminal Appeals.

2. The same picture emerges when we look at individual justices: The CoA judges keep busy - very busy - and it shows

On the Supreme Court, the most prolific jurist, Nathan Hecht, wrote 32 opinions, only eight of which were deciding majority opinions. Compare that to Justice Terry Jennings (also one of the most original thinkers in the entire state of Texas judging by the number of separate opinions) who wrote 164 opinions in the same time period, Justice Evelyn Keyes, who penned 157, or Justice George C. Hanks, Jr., who - unlike his two aforementioned colleagues - rarely disagrees with fellow panel members and produced 142.

Justices with such work ethic would probably clear up the high court's backlog by year's end.

3. 100+ Opinions a year per judge is the norm and should be set as an eminently feasible bench mark

Almost every intermediate appeals court judge delivered more than 100 opinions annually, thus proving that kind of output to be a realistic goal. (The major exceptions are those who did not hold the office for the entire year and did not have their opinion productions pro-rated in the official statistics.)

Nor can it be said that the courts of appeals face less complex issues and can thus process more cases. After all, the Supreme Court hears precisely the same legal issues when they are taken to it by parties wanting a second or third bite at the appellate apple. It's no different with original proceedings. The Supremes won't normally entertain a mandamus petition unless it has previously been presented to the intermediate court in the appellate district in which the trial court is located. Occasionally, lower appeals court justices even break new legal ground, as did Justice Hanks in recognizing the waiver-by-conduct theory in sovereign immunity law, and Justice Keyes in passing judgment on the enforceability of a contract between spouses providing for the destruction of their frozen embryos in the event of divorce. In both cases the Supremos denied review, and thus let the new precedents stand.

So what's wrong with the current Texas Supreme Court? - Merely lazy or side-tracked?

If the "laziest" appellate court judges churn out at least one hundred opinions a year, what does that make the most productive member of the high court? - Not even to mention Justice Green, who - though not known to support the environmentalist agenda of the party of like name - helped save a lot of trees by turning in a whopping total of four.

Perhaps the real problem is the High Court's agenda - and its members' stubborn determination to squeeze, twist, and mold the case law so that it will support the substantive results they want to attain.

Indeed, if most of the courts work hours, energy, and its considerably intellectual prowess is tied up trying to explain -- in reams of pages -- why a statute that says a city may be sued does not mean that the city may actually be sued - precedent and common sense notwithstanding - or why a church should be allowed to run a diploma mill where others are not permitted to do so, and are in fact fined if they ignore the law, then there is obviously less time to mete out justice in other cases (or less time to visit injustice upon other litigants, depending on viewpoint). See, respectively, Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006)(44 Page Opinion by Hecht) and HEB Ministries, Inc. v. Texas Higher Education Coordinating Board, No. 03-0995 (Tex. Aug. 31, 2007) (45 Page Opinion by Hecht)

Wednesday, February 6, 2008

The Chief's Lame Defense of his Travelgaters; Loyalty Trumps Logic

Three of Chief Jefferson's colleagues, Medina, Hecht, and Green are enveloped in ethics clouds. While the smoke has lifted - at least temporarily - from David Medina' loan and lien incineration troubles, complaints over misuse of campaign funds have been filed against all three. Controversy and suspicion is smoldering on.

Asked about the ethics cloud in his recent interview with the legal trade paper TEXAS LAWYER Chief Jefferson takes umbrage at the insinuation that something is amiss, and bewails the effect of the adverse publicity on the public's perception of the Court and its confidence in it, blaming the charges brought against the trio on - you guessed it - politics.

After all - so the appeal to common sense goes - we have an elected judciary here, and we are in the heat of campaign season.

There is, alas, a slight problem with that defensive theory, plausible as it might sound. The three brethren whose ethics (or reputed lack thereof) have most recently come under strict scrutiny are not (unlike the Chief himself) up for re-election this year.

One would hope non-sequiturs such as this - it's campaign season, that's why any criticism of those not running can't be taken seriously - will not in the imminent future corrupt the intellectual integrity of Chief Jefferson's own contributions to the Court's emerging non-monolithic jurisprudence.

But then again, the notion that under our judicial selection system any and all supremos are in nothing short of a "permanent campaign" certainly has a redeeming - or shall we say pragmatic - quality to it - especially coming from the Chief.

It would help explain why a justice would do a lot of circuit riding on top of participating in the court's outreach program that takes them to orals at sundry law schools around the State. It should also demonstrate to the saticsfaction of the ethics police, if not their civilian instigators, why the trips back home four years prior to the next date with the voting public are properly construed as campaign-related wooing activities, and thus legitimate expense items. Or does it?

One thing is sure. Chief Jefferson has shown himself a good sport and a good union man, apt at crafting his state of the judiciary address into a special plea for more bread and butter for the bench holders of the state's many courts. Why should we expect any less loyality to one, or two, or even three of his own inner circle, at a time when misfortune strikes, not to mention malevolence spewing forth from opponents with an agenda of their own. A worthy leader sticks up for and protect the members of the team - when they find themselves at the short end of the budget stick, or interest rate squeeze, or under an occasional criminal indictment - as the case might be.

If only the Legislature weren't so stingy when it comes to assuring the financial fitness of those who run the court of last resort in non-criminal matters! Members would not be forced to tap their campaign chests to burn rubber commuting to work, much less let the loan-ridden homestead they can ill afford on their $150K salary go up in flames and become migrant laborers in the state's capital.


Sunday, February 3, 2008

Nueces County v. San Patricio County (Tex. 2008)

Claiming governmental immunity, Defendant gets to keep property tax revenues belonging to neighbor in county vs. county suit

Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam) (Tooke progeny, governmental immunity, county v. county dispute over border and wrongfully collected property taxes)

The enlightened public may have learned in Government 101, or even in high school, that sovereignty is an attribute of nations and states, but in Texas, any governmental entity can invoke the sovereignty mantra, when convenient, thanks to the Supreme Court's exercise of its power to make the common law what it wants it to be. The immunity doctrine allows local governments to win lawsuits they might otherwise lose when sued by their citizens, contractors, or employees without even defending them on the merits. But it does not stop there: In another twist to its immunity jurisprudence, the Texas Supreme Court holds that a county may invoke derivative sovereign immunity and keep ill-gotten gains (property tax revenues) that belonged to the neighboring county, which brought suit for declaratory judgment in a border dispute and for recoupment of lost taxes which - it turns out - rightfully belonged to it.

In the per curiam opinion allowing the defendant county to keep the extra cash, the Court also reiterates the remarkable proposition that the Texas Legislature, which meets but for a few months every other year, is in a better position to decide whether County B is entitled to recoup the taxes at issue from County A. As has become customary in sovereign immunity appeals, the Court mischaracterizes the resolution of this type of dispute as a policy choice, rather than a case-specific ruling based on the facts of the dispute, which is precisely what juries (or judges in a bench trial) are supposed to sort out, whereas it is the legislature's job to pass laws of general applicability.

The current Court would put the Legislature in charge of making special laws to deal with each situation (or pass resolutions to waive immunity in specific disputes after the aggrieved party has hired a high-powered lobbyist, and then have the paty return to court to litigate for actual judicial relief on the merits of its claim).

Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam) (governmental immunity, county vs. county dispute over wrongfully collected property taxes)


Nueces County collected ad valorem taxes on property later determined in a boundary dispute to belong to its neighbor San Patricio County. We must decide whether governmental immunity protects Nueces County from San Patricio County’s suit to recover the taxes that it paid. We hold that it does, and reverse the court of appeals’ judgment.

San Patricio County sued Nueces County under Local Government Code section 72.009 to establish their common boundary line. See Tex. Loc. Gov’t Code § 72.009. As part of that suit, San Patricio County sought to recover taxes that Nueces County had collected on the disputed land. The trial court resolved the boundary dispute as to some of the disputed land in San Patricio County’s favor, but held that Nueces County was protected by governmental immunity from San Patricio County’s suit to recover the taxes collected by Nueces County on the land.

The court of appeals affirmed the trial court’s boundary determination but reversed its dismissal of the tax-recovery suit, concluding that governmental immunity did not protect Nueces County. 214 S.W.3d 536, 553–54. Reasoning by analogy to cases holding that municipalities do not enjoy governmental immunity when performing proprietary functions, the court of appeals held that counties enjoy immunity only when “carrying out governmental activities implicitly delegated by the State to be carried out.” Id. at 553 (citing City of Galveston v. Posnainsky, 62 Tex. 118, 128 (1884)). The court concluded that governmental immunity does not protect Nueces County because its assessment and collection of ad valorem taxes on property not located within its boundaries is not a governmental activity delegated by the state. Id.

The court of appeals reasoned that immunity does not exist in the first instance, an argument asserted by the state, though on different grounds, in City of Galveston v. Texas, 217 S.W.3d 466, 471 (Tex. 2007). Identifying no waiver of immunity here, the court of appeals determined that immunity does not exist when a county acts beyond its delegated power. 214 S.W.3d at 553. But we have said that the distinction between waiving immunity and finding it nonexistent is a fine one that yields the same effect and, “[d]ue to the risk that the latter could become a ruse for avoiding the Legislature, courts should be very hesitant to declare immunity nonexistent in any particular case.” City of Galveston, 217 S.W.3d at 471. Governmental immunity, then, would presumptively apply in this suit between counties.

The court of appeals’ reasoning that Nueces County was not entitled to immunity because it acted beyond its governmental authority in taxing what turned out to be San Patricio’s land is additionally flawed to the extent it is based upon a line of cases holding that cities do not enjoy immunity from suit when they undertake “proprietary” rather than “governmental” functions.

The court of appeals reasoned that, although counties are granted the power to assess taxes on their own land, they have no governmental authority to tax other counties’ land; when they do, they act beyond their governmental authority and thus outside sovereign immunity’s protections. 214 S.W.3d at 553; see Tex. Const. art. VIII, § 1-a (granting counties the exclusive right to assess ad valorem taxes on property within their own boundaries).

However, as “involuntary agents of the state” without the power to serve the local interests of their residents, counties have no “proprietary” functions; all of their functions are “governmental” in nature. Tex. Const. art. XI, § 1 interp. commentary; Posnainsky, 62 Tex. at 128. The court of appeals’ premise that Nueces County is not entitled to immunity because it mistakenly taxed land beyond its boundaries does not diminish the governmental nature of Nueces County’s actions. Virtually all negligent or improvident action on the part of a governmental unit could be characterized as action beyond its delegated constitutional authority. But such characterization does not deprive the governmental unit of immunity.

For example, in City of Galveston, we held that the city was shielded by governmental immunity even though it presumably had no delegated constitutional power to negligently destroy state roads. See City of Galveston, 217 S.W.3d at 468. We have likewise recognized immunity in suits alleging that the governmental unit exercised what could as well be characterized as nondelegated powers, like collection of illegal taxes from voluntary payers, see Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 876–79 (Tex. 2005), injury against citizens, see Posnainsky, 62 Tex. at 125, and breach of contract, see Tooke v. City of Mexia, 197 S.W.3d 325, 328 (Tex. 2006).

Governmental immunity nevertheless shields counties against such suits absent express legislative waiver. Cf. Tooke, 197 S.W.3d at 332 (noting that one of the primary policies behind governmental immunity is to shield the public from “the costs and consequences of improvident actions of their governments”).

San Patricio County contends that allowing a money-damages suit against Nueces County under these circumstances is consistent with the policies supporting governmental immunity, insofar as the suit does not seek to divert Nueces County’s properly collected tax resources from their intended purpose; rather, Nueces County is itself the wrongful depletor of tax revenues which belong to San Patricio County. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002).

However, we emphasized in City of Galveston that the “heavy presumption in favor of immunity” derives not just from principles related to separation of powers but from practical concerns: “In a world with increasingly complex webs of governmental units, the Legislature is better suited to make the distinctions, exceptions, and limitations that different situations require. The extent to which any particular city, county, port, municipal utility district, school district, or university should pay damages involves policy issues the Legislature is better able to balance.” City of Galveston, 217 S.W.3d at 469. That principle holds equally true here.

Accordingly, without hearing oral argument, we grant the petition for review, vacate the court of appeals’ judgment, and render judgment dismissing San Patricio County’s claim for damages for lack of jurisdiction. See Tex. R. App. P. 59.1, 60.2(c).

OPINION DELIVERED: January 25, 2008

Full style: NUECES COUNTY v. SAN PATRICIO COUNTY; from Refugio County; 13th district (13-05-00022 CV, 214 S.W.3d 536, 12-07-2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and renders judgment. Per Curiam Opinion
Link to briefs

Opinion below by Honorable Errlinda M. Castillo 214 S.W.3d 536, (Tex. App. - Corpus Christi, December 7, 2006)



On January 7, 2005, simultaneously with entry of the judgment granting the bill of review judgment, the trial court granted Nueces's summary-judgment motion and denied San Patricio's motion in the tax suit. The trial court determined that it lacked jurisdiction because Nueces was immune from suit and entered the following judgment:

On September 29, 2004, the court heard the parties' motions for summary judgment. The parties appeared by their lawyers and argued their motions.
The Court found that Nueces County established conclusively and as a matter of law that it has immunity from San Patricio County's suit and therefore this Court has no jurisdiction over such suit.

The Court therefore GRANTS Defendant's motion for summary judgment and denies Plaintiff's motion for summary judgment.

The Court ORDERS this suit dismissed for want of jurisdiction.

In discovery responses, Nueces expressly admitted that it collected ad valorem taxes on property determined in the boundary suit to lie within San Patricio boundary. By its cause of action, San Patricio alleged that Nueces collected ad valorem taxes on property adjudged located within San Patricio's boundary. The issue San Patricio posits is whether the doctrine of governmental immunity rendered the trial court powerless to grant relief to one county whose sovereign prerogative was usurped by another county. San Patricio maintains that immunity does not apply and, thus, it and not Nueces was entitled to summary judgment as a matter of law.

A. Plea to the Jurisdiction

Encompassed within Nueces's summary-judgment motion was its plea to the jurisdiction. Nueces asserted that it enjoyed sovereign immunity from suit and it had not waived immunity. San Patricio countered with a motion for partial summary judgment (exclusive of the amount of taxes due and owing) asserting as grounds its
sovereign right to a claim for ad valorem taxes admittedly collected and retained by Nueces on property adjudged within San Patricio's boundary.

A. Standard and Scope of Review

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist., 34 S.W.3d 547, 554 (Tex. 2000). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect on the face of the pleadings, making it impossible for the plaintiff to amend its petition in order to confer jurisdiction on the district court. MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624 (Tex. App.-Austin 2005, pet. denied). The plaintiff then has the burden of alleging facts to affirmatively demonstrate that the court has jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry. Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland, 34 S.W.3d at 554. When we consider a trial court's order on a plea to the jurisdiction, we construe the pleadings in the plaintiff's favor and look to the pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d at 446; Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex. 1989). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. See Peek, 779 S.W.2d at 804-05; Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974). On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. See Peek, 779 S.W.2d at 804-05; see also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
We review a denial of a plea to the jurisdiction de novo. See Miranda, 133 S.W.3d at 226. We do not look at the merits of the case but construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept the pleadings' factual allegations as true. Tex. Ass'n of Bus., 852 S.W.2d at 446. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider evidence necessary to resolve the jurisdictional issues. See Miranda, 133 S.W.3d at 227 (citing Bland, 34 S.W.3d at 555).

In Miranda, the Supreme Court recognized that a trial court's review of a plea to the jurisdiction challenging the existence of jurisdictional facts "mirrors" that of a traditional summary judgment. Id.; Tex. R. Civ. P. 166a(c). The Miranda Court explained that, by requiring the state to meet the summary judgment standard of proof, "we protect the plaintiffs from having to 'put on their case simply to establish jurisdiction.'" Miranda, 133 S.W.3d at 228 (quoting Bland, 34 S.W.3d at 554). Under this procedure, the burden is on the defendant to put forth evidence establishing as a matter of law that the trial court lacks jurisdiction. (17) Id.; Tex. R. Civ. P. 166a. The burden then shifts to the plaintiff to demonstrate that there is a disputed issue of material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228. The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002); see also Brown, 80 S.W.3d at 555 ("In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and evidence pertinent to the jurisdictional inquiry.").

B. Governmental Immunity

The parties do not dispute that counties of the State are authorized to levy ad valorem taxes upon all property within their respective boundaries for county purposes. See Tex. Const. art. VIII, § 1-a. The question squarely before us, however, is whether Nueces enjoys immunity from suit on taxes levied on property adjudged as San Patricio's property.

As a general rule, a governmental unit (18) is immune from tort liability under the doctrine of sovereign immunity. (19) See Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Historically, this doctrine, as its name implies, shields the sovereign from liability. Tyrrell v. Mays, 885 S.W.2d 495, 499 (Tex. App.-El Paso 1994, reh'g denied). Because the governmental entities involved here are counties, (20) we use the term governmental immunity in this opinion. (21) United Water Servs. v. City of Houston, 137 S.W.3d 747, 750 n.4 (Tex. App. 2004).

A trial court is required to look to common law principles to determine whether a county enjoys governmental immunity from suit. See Texas A&M University-Kingsville v. Lawson, 87 S.W.3d 518, 520 (Tex. 2002) ("In Texas, the bar of sovereign immunity is a creature of the common law and not of any legislative enactment."). Because we have found no case law addressing the horizontal immunity question before us, for guidance we look to case law addressing derivative immunity in the context of municipalities.

Since 1884, municipalities have enjoyed immunity when performing governmental functions, but not when performing proprietary functions. See City of Galveston v. Posnainsky, 62 Tex. 118, 132-33 (1884) (first distinguishing between municipality's governmental and proprietary functions for purposes of immunity from tort claims). The court reasoned that in so far as municipalities exercised powers conferred on them for public purposes pertaining to the administration of general laws made to enforce the general policy of the state, they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power. Id. at 127. The Supreme Court's reasoning shows that municipalities enjoy immunity from suit for governmental activity, not due to any inherent sovereignty, but, rather, because the State cloaks them with the State's sovereign immunity from suit while they carry out the State's public purposes. See id. at 126-27. Thus, any immunity from suit that a municipality enjoys derives solely from the State's immunity-the former receives immunity from suit only when carrying out governmental activities implicitly delegated to it to carry out in the latter's stead. See id. at 128. Texas courts have repeatedly noted or applied variations of the "derived immunity" reasoning that the Posnainsky court first recognized. (22)

"Counties are declared, by the laws of this state, to be corporations and they are municipal corporations in the sense that they are agencies 'to regulate and administer the internal concerns of the locality in matters peculiar to the place incorporated. . . ." Posnainsky, 62 Tex. at 127. (23) Thus, for municipal corporations of any class, and however incorporated, exercising powers conferred on them for public purposes that pertain to the administration of general laws made to enforce the general policy of the state, they should be deemed agents of the state, subject to suit only when the state, by statute, declares they may be. Id. at 127. Therefore, a county's immunity from suit arises from the State's immunity and is exercised only when the county is carrying out governmental activities implicitly delegated by the State to be carried out. (24) Id. at 128.

C. Application of the Law to the Facts

San Patricio maintains that the trial court erred in granting Nueces's jurisdictional plea because immunity from suit does not apply to a governmental entity when it is performing an act that is not a governmental function. Nueces's immunity from suit "does not arise from any inherent sovereignty of its own, but instead derives from its status as a political subdivision of the state." See State of Texas v. City of Galveston, 175 S.W.3d 1, 5 (Tex. App.-1st Dist. Houston 2004). Immunity is exercised only when the county is carrying out governmental activities implicitly delegated by the State to be carried out. Posnainsky, 62 Tex. at 128. Nueces cannot be shielded by the umbrella of governmental immunity when it assesses and collects ad valorem taxes on property not located within its boundaries because this is not a governmental activity delegated by the State. See id. Because the State does not delegate the collection of taxes on property that is not within a county's boundaries, immunity does not arise. (25) Because Nueces admittedly levied taxes on property adjudged located in San Patricio County and retains those taxes, governmental immunity did not apply to an act not authorized and not derived from the sovereign State.

Accordingly, we agree with and adopt San Patricio's argument as follows:

While the State may also have independent general immunity with respect to its governmental subdivisions, a county has no independent general immunity with respect to the State or the State's governmental subdivisions. A county's immunity is derivative. It enjoys immunity when it acts as an agent of the State in exercising sovereign rights delegated to it by the State.
It follows that Nueces has no immunity from San Patricio's suit for taxes levied on property within San Patricio's boundary. Nueces could have immunity only if exercised a sovereign right when it collected the taxes. It could exercise a sovereign right only if it was delegated the power by the State to collect the taxes. The State delegated Nueces no right to tax property in San Patricio nor to resist San Patricio's suit to recover the taxes. On the other hand, when San Patricio brought this suit, it exercised its State sovereignty committed to it to collect taxes on [property within its boundaries].

[In short], we have a suit brought by one county asserting a sovereign right against another county defending no sovereign right. While Nueces is sovereign with respect to objects committed to it, Nueces is not sovereign with respect to objects committed to San Patricio. Nueces has no sovereignty with respect to San Patricio on [the summary-judgment facts]. Nueces has no immunity on [the summary-judgment facts]. (26)

We conclude that, as a matter of law, summary judgment on governmental immunity grounds in favor of Nueces was improper. Conversely, San Patricio has demonstrated, as a matter of law, summary judgment in its favor is proper. We sustain San Patricio's second issue and overrule Nueces's first counterpoint to the extent it relates to the tax suit. We reverse the trial court's dismissal judgment in the tax suit. Because San Patricio sought only partial judgment with respect to the question of immunity, we remand the case for further proceedings. See Tex. R. App. P. 43.3, 44.1.


We sustain San Patricio's issues on appeal and overrule Nueces' counterpoints. By our decision, we affirm the April 11, 2003 judgment in the boundary case, vacate the bill of review judgment, and reverse and remand the tax suit judgment.



DaimlerChrysler Corp. v. Inman (Tex. 2008)

Head-popping Jurisprudence - Risk of ejection too remote for Justice Hecht to give drivers a personal stake in the matter of whether their seat belts work.

No blood, no crushed skulls, and no imminent prospect of injury - ergo, no right to sue car maker to get seat belts fixed - so goes the Hechtian logic. Plaintiffs should have gotten themselves killed first to show real risk of buckles that release belts accidentally. That may be overstating it a bit, but it would make for a better case, which Justice Hecht would have to dispose of on other grounds, such as finding no evidence that the manufacturer's defective restraint was responsible for the injury. Still, according to the latest opinion in a consumer class action suit before the supreme court, popping the windshield with one's head would seem to be a minimum requirement to get judicial recognition that the laws of physics have not been suspended, a fact not lost on the authors of mandatory seatbelt legislation, but apparantly on a sufficient number of learned members of the Texas Supreme Court.

A majority of five spearheaded by Hecht deems the prospect of sailing throw the windshield in a front-end collision too speculative to warrant an action for live-saving repairs. Consumers simply have not yet earned victim status and thus the right to avail themselves of open courts and judicial relief. So their suit to get their cars fixed must be dismissed for lack of standing.

The ruling turns a new page in the Court's annals of anti-plaintiff case dispositions. So far, the Court has been helping out corporate defendants by de-certifying classes and making it uneconomical for wronged consumers and for the plaintiffs' bar to pursue individual law suits. Now the trial courts are being stripped of jurisdiction altogether to even consider consumer claims in the first instance.

In a separate opinion issued the same day in an unrelated case Justice Dale Wainwright extols the virtues of certainty and predictability in cout decisions. While Wainright wrote in dissent in that case, the Supremes already meet the standard in the area of consumer litigation: All class action appeals will be decided in favor of the defendant - an outcome as predictible and as certain as hitting the steering wheel - and then the windshield - upon impact in the absence of a restraint.

Daimler Chrysler Corp. v. Inman, No. 03-1189 (Tex. Feb. 1, 2008)(Opinion by Justice Nathan Hecht) (consumer class action dismissed on standing grounds, jurisdictional dismissal for want of standing)
DAIMLERCHRYSLER CORPORATION v. BILL INMAN, DAVID CASTRO, AND JOHN WILKINS, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; from Nueces County; 13th district (13-02-00415-CV, 121 S.W.3d 862, 11/20/03)The Court reverses the court of appeals' judgment and dismisses the case for want of jurisdiction. Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Medina, and Justice Willett joined.
Chief Justice Wallace Jefferson delivered a dissenting opinion, in which Justice Harriet O'Neill, Justice Paul Green, and Justice Phil Johnson joined.


Three plaintiffs have sued for themselves and a nationwide class of some ten million owners and lessees of DaimlerChrysler vehicles, equipped with Gen-3 seatbelt buckles, and sold over the course of a decade. They allege that it is too easy to press the release button on the buckle and unlatch it without intending to do so. They do not contend that this is unavoidable, probable, or even eventual, only that it is possible. Two of the plaintiffs have never experienced anything like what they claim might happen, and the third is not sure whether he has or not, but he has never been injured. They have sued to have the buckles replaced with ones that are harder to unlatch. At least two similar class actions have been brought in other states without success.[1]
Of course, the risk that seatbelt buckles will be unlatched accidentally can be eliminated by making them more difficult to operate, but that would discourage people from using them at all, resulting in more injuries. In designing seatbelt buckles, the risk of injury from accidental release of easy-to-unlatch buckles must be balanced against the risk of injury from non-use of hard-to-unlatch buckles, for either way, there is risk. The National Highway Traffic Safety Administration is charged with being sure that balance is struck in the right place for vehicles sold throughout the country. The decision is not one for a jury in one state or another to make for the rest of the nation. NHTSA has never required that the Gen-3 buckles be recalled and replaced.
The trial court granted class certification. The court of appeals reversed and remanded for further proceedings, holding that “the trial court still has significant pre-certification work to do” to determine which jurisdictions’ laws would govern class members’ claims.
[2] But the court of appeals rejected DaimlerChrysler’s broader argument: that the plaintiffs’ fear of possible injury from an accidental release of a seatbelt is so remote that they lack standing to assert their claims.[3] That is, DaimlerChrysler argues not merely that the plaintiffs’ claims will fail but that the court lacks jurisdiction to hear them. We agree, reverse the judgment of the court of appeals, and order the case dismissed.
Three Nueces County residents, Bill L. Inman, David Castro, and John Wilkins, bought Dodge vehicles manufactured by DaimlerChrysler Corp., equipped with Gen-3 seatbelt buckles — respectively, a new 1997 Dodge Caravan, a new 1995 Dodge Ram 1500, and a used 1999 Dodge Intrepid. Castro and Wilkins testified that they had never experienced any problems with the buckles and had never heard of anyone who had. Wilkins had been in one accident and the seatbelt worked properly. Inman testified that his seatbelt might have released twice when it should not have, but he was “not a hundred percent sure of this because [he] didn’t pay any attention at the time”. The first time, he did not know how he hit the release button, but “all at once” his seatbelt was loose. The second time, he said, he thought he bumped the button while trying to replace the lid on a cooler sitting between the seats of his van. He was not hurt or endangered either time, and he does not know of anyone who was ever harmed because of a Gen-3 buckle.
In June 2000, Inman sued DaimlerChrysler in the county court at law in Nueces County, alleging that the Gen-3 buckles were defective. Castro and Wilkins joined as plaintiffs in January 2002. In depositions, the plaintiffs explained why they decided to sue even though they had never been hurt because of their seatbelts. Inman testified that he had run into his lawyer on the street, who told him “there could be a problem with the seatbelt”, and “some way or another [they] got around to sort of discussing a lawsuit.” According to Castro’s testimony, he became involved in this lawsuit after hearing that the seatbelts in his Dodge truck were defective from his cousin, an investigator working for the law firm representing Inman. Wilkins testified that he was informed by a friend who worked for the same firm that there was litigation over whether the Gen-3 buckle was defective. And so the three decided to sue on behalf of ten million vehicle owners and lessees across the nation.
In their seventh amended petition, the plaintiffs alleged that the Gen-3 buckle is “dangerously subject to accidental release, far more dangerous than other buckle designs”, that it is “subject to release at any time, and especially in the event of a collision”, and that the buckle “design does not minimize the possibility of accidental release”. The plaintiffs do not contend that the buckle will release by itself; it must be pressed. They contend only that it is too easy for the button to be pressed inadvertently, either by the wearer or something else in the vehicle. The plaintiffs allege negligence, negligent misrepresentation, breach of express warranty that the vehicles are safe and meet all safety requirements,
[4] breach of the implied warranties of merchantability[5] and fitness for a particular purpose,[6] and violations of the Texas Deceptive Trade Practices-Consumer Protection Act.[7] They do not contend that the Gen-3 buckles made their vehicles worth less than they paid for them, and they expressly “do not seek damages for personal injury, property damage or death.” They claim damages only for the cost of replacing the buckles with ones that are harder to unlatch, which they “believe[] to be not in excess of $75 per buckle”, and any lost use while repairs are made, “believed not to exceed $500.00 per vehicle.” Thus, if we assume four seatbelts per vehicle, plaintiffs claim no more than $2,400 for themselves and no more than $8 billion for the class.
DaimlerChrysler moved for summary judgment on the ground that the plaintiffs’ pleadings failed to state a viable cause of action. The plaintiffs offered evidence of the defect they allege in the Gen-3 buckles. They contended that the buckle design violates a Federal Motor Vehicle Safety Standard requiring that a “[b]uckle release mechanism shall be designed to minimize the possibility of accidental release.”
[8] The plaintiffs offered evidence that the buckles failed “ball tests” used by the industry to determine the force required to press the release button, but they offered no evidence that there was any governmental requirement that the buckles pass such tests. They also offered evidence that DaimlerChrysler received fifty complaints documenting over one hundred instances when Gen-3 buckles unlatched, and that the buckles unlatched in two NHTSA crash tests and in crash tests conducted by the Canadian government and DaimlerChrysler itself, but they offered no evidence that any determination has ever been made that the buckles unlatched more easily than they should. The trial court denied DaimlerChrysler’s motion. In certifying the class, the court found:

Plaintiffs’ claims are not based on any hypothetical defect in the Gen-3 buckle that may, or may not, manifest itself in the future. Instead, Plaintiffs’ allege that the sale of Gen-3 buckles breached warranties and consumer remedies because each buckle was sold in violation of federal standards, industry standards, and Defendant’s internal standards and that each Gen-3 buckle has manifested this breach from the moment it was sold until the present.

The trial court certified two classes. One was for:

All United States resident persons (except residents of California or Nevada) who own or lease new vehicles, model year 1993-2002, manufactured and/or sold by Daimler/Chrysler and equipped with Gen-3 seat belt buckles ... [excluding] any person who has an action for damages for personal injury or death or property damage against Defendants.

The other class was identical except for the word “used” in place of “new”. On appeal, DaimlerChrysler argued that the case should be dismissed because the plaintiffs had not sustained any legally cognizable injury and therefore lacked standing to assert their claims. Alternatively, DaimlerChrysler argued that the class should be decertified because the trial plan adopted by the trial court was flawed and incomplete, the plaintiffs were inadequate class representatives, and they had not satisfied the predominance, superiority, and manageability requirements for class certification contained in Rule 42(b)(3) of the Texas Rules of Civil Procedure. Specifically, DaimlerChrysler argued that the trial court would be required to apply the laws of 48 states and adjudicate issues peculiar to individual class members. The court of appeals rejected DaimlerChrysler’s standing argument but agreed that the trial court had not fully examined what law should govern the class claims.
[9] There it stopped; without addressing DaimlerChrysler’s other arguments, the court reversed the class certification and remanded the case for further proceedings.[10]
We granted DaimlerChrysler’s petition for review to consider its argument that the plaintiffs lack standing to assert their claims.
The parties agree that the plaintiffs cannot succeed on any of their claims without showing they have suffered legally compensable injury. But the plaintiffs argue that they need not show that they can prove the requisite injury until after class certification has been decided and the trial court reaches the merits of their claims.
[11] DaimlerChrysler argues that the claimed injury is so hypothetical, so iffy, that the plaintiffs do not have standing to assert it and the court does not have jurisdiction to hear it.[12] The issue is important because courts must not decide hypothetical claims.[13] Practically speaking, the timing is important, because a disagreement over $2,400 is one thing and a disagreement over $8 billion is quite another.
A person who buys a defective product can sue for economic damages,
[14] but the law is not well developed on the degree to which the defect must actually manifest itself before it is actionable. For example, in Compaq Computer Corp. v. Lapray, we observed that “the law in most states (including Texas) is unclear” on “whether to permit express warranty claims for unmanifested defects”.[15] The plaintiffs here argue that this issue cannot be resolved until the trial court determines whether a class should be certified. Nor, they say, can the court consider at this stage whether the defect they allege in the Gen-3 seatbelt buckle has manifested itself sufficiently for them to recover damages on their other claims for negligence, negligent misrepresentation, breach of implied warranties, or DTPA violations.
But DaimlerChrysler does not argue here that the plaintiffs’ claims cannot succeed (although that is certainly their position). Rather, it argues that whatever the plaintiffs’ causes of action may require, they have not suffered the kind of injury to give them standing to invoke the trial court’s subject-matter jurisdiction. If there is no injury sufficient for jurisdiction, surely there is no injury sufficient for a cause of action. But if the plaintiffs have no standing, the trial court has no more jurisdiction to deny their claims than it does to grant them. Without jurisdiction, the trial court should not render judgment that the plaintiffs take nothing; it should simply dismiss the case.
The requirement in this State that a plaintiff have standing to assert a claim derives from the Texas Constitution’s separation of powers among the departments of government, which denies the judiciary authority to decide issues in the abstract, and from the Open Courts provision, which provides court access only to a “person for an injury done him”.[17] A court has no jurisdiction over a claim made by a plaintiff without standing to assert it.[18] For standing, a plaintiff must be personally aggrieved;[19] his alleged injury must be concrete and particularized,[20] actual or imminent, not hypothetical.[21] A plaintiff does not lack standing simply because he cannot prevail on the merits of his claim; he lacks standing because his claim of injury is too slight for a court to afford redress.
We have drawn this distinction in a recent case, M.D. Anderson Cancer Center v. Novak.
[22] Attorney Novak received a form letter from the M.D. Anderson Cancer Center soliciting donations and stating that “well over 50%” of its cancer patients “return home cured”.[23] Novak did not contribute; instead, he sued the hospital on behalf of everyone who received the letter, alleging that the stated cure-rate was false and the letter therefore fraudulent.[24] This Court held that he lacked standing to assert his individual claim:

Even if Novak was an intended victim of a “completed” mail fraud for purposes of governmental prosecution, he was not actually defrauded. His lack of any actual or threatened injury prevents him from being “personally aggrieved” such that he has any personal stake in the litigation. Therefore, Novak lacks standing as an individual . . . .

It was irrelevant whether M.D. Anderson’s fund-raising letter was false, or whether recipients might have been deceived into giving when they would not otherwise have done so. The point was that Novak was not himself deceived or injured, and therefore he did not have standing individually to assert fraud. Accordingly, we dismissed the entire action for want of jurisdiction.
M.D. Anderson is different from the present case in that once Novak decided the letter was false, he could never be deceived and therefore could never be injured, other than out of concern for others. In this case, the plaintiffs could accidentally unlatch their Gen-3 seatbelt buckles and subject themselves to harm, though that has never happened to two of them and the third is unsure. M.D. Anderson is important because it shows that standing, and the concrete injury it requires, is quite distinct from the merits of a claim and the injury required to prove it.
Two decisions from the Fifth Circuit illustrate this point. In Rivera v. Wyeth-Ayerst Laboratories, Rivera used Duract, a prescription painkiller manufactured by Wyeth.
[27] Wyeth had instructed that the drug should not be used for more than ten days generally and not by anyone with preexisting liver conditions.[28] Over the course of a year, before Wyeth voluntarily withdrew Duract from the market, twelve users reportedly suffered liver failure.[29] Eleven of them had used the drug for more than ten days, and the twelfth had a history of liver disease.[30] Although Rivera suffered no physical or emotional harm herself, she sued for a refund of the purchase price on behalf of all other users of the drug who also had not been harmed, alleging that the product was defective.[31] She sued only for breach of an implied warranty of merchantability and sought only economic damages.[32] The court concluded that the kind of injury Rivera alleged did not give her standing to sue.[33] Accordingly, it dismissed the action for want of jurisdiction.
Contrast Rivera with Cole v. General Motors Corp.
[34] There, GM determined that a defect in side-impact-air-bag sensing modules would improperly trigger inflation. As the court explained:

GM sent a voluntary recall notice to all DeVille record owners and lessees explaining that GM

has decided that a defect which relates to motor vehicle safety exists and may manifest itself in your 1998 or 1999 model year Cadillac DeVille. [GM] ha[s] learned of a condition that can cause the side impact air bags in your car to deploy unexpectedly, without a crash, as you start your car or during normal driving.

GM indicated that it had received 306 reports of inadvertent deployment out of approximately 224,000 affected vehicles.

Three plaintiffs sued for economic damages because repairs to the vehicles were unreasonably delayed. GM argued that they lacked standing, based on Rivera. The court disagreed.
An important difference between these two cases is that the Cole plaintiffs alleged a defect that would cause GM’s side-impact air bags to deploy by itself unexpectedly during normal operation, something GM conceded in its voluntary recall, while the Rivera plaintiffs alleged a defect in medication which had caused injury only when taken by someone contrary to Wyeth’s instructions. In Cole, injury was a matter of time; in Rivera, it might never happen. The air bags in Cole’s vehicle might deploy improperly regardless of what she did, just as they might in the other vehicles in which they were installed. Taking Duract had not hurt Rivera, and there was almost no chance that the defect she alleged in the drug ever would injure her, given that she was fully aware of the restrictions on its use.
Any possibility of injury to the plaintiffs in the present case is even more remote than it was in Rivera. There, Wyeth received twelve complaints over a year before it voluntarily withdrew the drug from the market. Here, according to the plaintiffs themselves, DaimlerChrysler received only fifty complaints from ten million vehicle owners and lessees over ten years — five per year, one for every 200,000 owners and lessees. By comparison, in Cole, GM received 306 reports in two years, one for every 732 owners and lessees. In any event, evidence of such complaints cannot prove defect.
[37] The plaintiffs contend that ball tests showed how easily the Gen-3 buckle release button could be pressed and that crash tests showed that the buckle could somehow be unlatched, but there is nothing to indicate that the design of the buckle failed to minimize the risk of accidental release versus the risk of non-use so as to pose any concrete threat of injury to the plaintiffs.
The dissent criticizes us for assuming that Texas law governs, but it unquestionably does — over the issue of standing, a part of subject-matter jurisdiction, which is the only issue we decide. The dissent argues that we have improperly focused our standing analysis on the plaintiffs’ claims rather than on the plaintiffs themselves, but that is incorrect. We do not rule out the possibility that somewhere there may be owners or lessees of vehicles with Gen-3 seatbelt buckles that can allege concrete injury. Our focus is on
Inman, Castro, and Wilkins, and they have not shown that they can. The dissent argues that standing requires only, one, a real controversy that, two, will be determined. Those are requirements for standing,[38] but so is concrete injury, because if injury is only hypothetical, there is no real controversy.[39] The dissent argues essentially that our conclusion that the plaintiffs lack standing is nothing more than a summary judgment on the merits of their claims, that we have “equate[d] standing with an unsuccessful claim”,[40] but this is simply wrong. We agree that the allegations in Cole gave the plaintiff standing, regardless of whether she could prevail on the merits of her claim, and even though the Fifth Circuit denied class certification.[41] We do not render judgment that the plaintiffs take nothing, as we would if their claims failed on the merits; we dismiss the case for want of jurisdiction. We do not decide the degree to which a defect must manifest itself in a product before a warranty is breached. Standing in this case is a separate inquiry, just as it was in M.D. Anderson and Rivera.
Both of those cases show that when a claim of injury is extremely remote, the jurisdictional inquiry cannot be laid aside in an expectation that the claimant will also lose on the merits. A court that decides a claim over which it lacks jurisdiction violates the constitutional limitations on its authority, even if the claim is denied. As the United States Supreme Court has warned, the denial of a claim on the merits is not an alternative to dismissal for want of jurisdiction merely because the ultimate result is the same because the assertion of jurisdiction “carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers.”
The dissent charges that our decision “suggests a visceral distaste of class actions”. We disagree. We simply think that the rights of ten million vehicle owners and lessees across the United States should not be adjudicated in an action brought by three plaintiffs who cannot show more than the merest possibility of injury to themselves. To hold that Inman, Castro, and Wilkins have standing would drain virtually all meaning from the requirements that a plaintiff must be “personally aggrieved” and that his injury must be “concrete” and “actual or imminent”.
* * * * *
If the named plaintiffs in a putative class action do not have standing to assert their own individual claims, the entire action must be dismissed.
[43] Accordingly, the judgment of the court of appeals is reversed and the case is dismissed for want of jurisdiction.

Nathan L. Hecht

Opinion delivered: February 1, 2008
[1] Quacchia v. DaimlerChrysler Corp., 19 Cal. Rptr. 3d 508 (Cal. Ct. App. 2004) (affirming the trial court’s refusal to certify a class); Hiller v. DaimlerChrysler Corp., No. 02-681, 2007 Mass. Super. LEXIS 442, 2007 WL 3260199 (Mass. Super. Ct. Sept. 25, 2007) (refusing class certification). In remanding Hiller to state court after removal, the United States District Court could not help but observe that “plaintiffs’ lawsuit appears to be as manufactured as defendant’s cars”. Hiller v. DaimlerChrysler Corp., No. Civ.A. 02-10533-RWZ, 2004 U.S. Dist. LEXIS 4578, at *3, 2004 WL 574331 (D. Mass. Mar. 23, 2004). Two other state court class actions have been removed and remanded. Coker v. DaimlerChrysler Corp., 220 F. Supp. 2d 1367 (N.D. Ga. 2002); Sylvester v. DaimlerChrysler Corp., No. 1:02CV0567, 2002 U.S. Dist. LEXIS 17989, 2002 WL 32005242 (N.D. Ohio Mar. 25, 2002).
[2] 121 S.W.3d 862, 886 (Tex. App.–Corpus Christi 2003).
[3] Id. at 885.
[4] See Tex. Bus. & Com. Code § 2.313.
[5] Id. § 2.314.
[6] Id. § 2.315.
[7] Id. §§ 17.41-.63.
[8] 49 C.F.R. § 571.209 S4.1(e).
[9] 121 S.W.3d 862, 885-886 (Tex. App.–Corpus Christi 2003) .
[10] Id.
[11] See Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 404 (Tex. 2000) (“Deciding the merits of the suit in order to determine the scope of the class or its maintainability as a class action is not appropriate. . . . However, in determining whether the class-certification requirements have been satisfied, the trial court may look beyond the pleadings.”); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the procedural rule governing class actions] are met.” (quoting Miller v. Mackey Int’l, 452 F.2d 424 (5th Cir. 1971))).
[12] See Texas Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (“An opinion issued in a case brought by a party without standing is advisory because rather than remedying an actual or imminent harm, the judgment addresses only a hypothetical injury.”).
[13] See id.
[14] E.g. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 443-445 (Tex. 1989).
[15] 135 S.W.3d 657, 679 (Tex. 2004) (footnote omitted). Cf. Collins v. DaimlerChrysler Corp., 894 So.2d 988 (Fla. Dist. Ct. App. 2004) (holding that plaintiff’s complaint that the value of her car was less because it was equipped with Gen-3 seatbelt buckles is actionable under the state consumer protection law even though the alleged defect has never manifest itself in an emergency or caused damages).
[16] See, e.g., Martinez v. Second Injury Fund of Tex., 789 S.W.2d 267, 277 (Tex. 1990) (Hecht, J., dissenting) (“Rendition of judgment on the merits is inappropriate in an action over which the trial court lacks jurisdiction.”); West v. Brenntag Sw., Inc., 168 S.W.3d 327, 339 (Tex. App.–Texarkana 2005, pet. denied) (“Having found that West lacked standing to sue for negligence or nuisance, the judgment as to those claims is reversed and judgment is rendered that those claims be dismissed for want of jurisdiction. The judgment as to the remaining claims is reversed and judgment is rendered that West take nothing.”).
[17] Texas Ass’n of Bus., 852 S.W.2d at 444; Tex. Const. art. I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”).
[18] Texas Ass’n of Bus., 852 S.W.2d at 444.
[19] Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) (“A plaintiff has standing when it is personally aggrieved.”).
[20] Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (stating that for a plaintiff to have standing he “‘must establish that he has a “personal stake” in the alleged dispute’ and that the injury suffered is ‘concrete and particularized’”, quoting Raines v. Byrd, 521 U.S. 811, 819 (1997), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).
[21] Texas Ass’n of Bus., 852 S.W.2d at 444.
[22] 52 S.W.3d 704 (Tex. 2001).
[23] Id. at 706.
[24] Id.
[25] Id. at 707-708 (citations and emphasis omitted).
[26] Id. at 711.
[27] 283 F.3d 315, 316-317 (5th Cir. 2002).
[28] Id. at 316-317.
[29] Id. at 317.
[30] Id.
[31] Id. at 317, 319-320.
[32] Id. at 319-320.
[33] Id. at 321-322.
[34] 484 F.3d 717 (5th Cir. 2007).
[35] Id. at 718-719.
[36] Id. at 722-723.
[37] Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 140 (Tex. 2004) (“we have never held that mere claims of previous accidents can prove a product is defective”).
[38] Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996); Texas Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446(Tex. 1993).
[39] Texas Ass’n of Bus., 852 S.W.2d at 444.
[40] Ante at ___.
[41] 484 F.3d 717, 730 (5th Cir. 2007).
[42] Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
[43] M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 711 (Tex. 2001) (“Accordingly, if the named plaintiff lacks individual standing, the court should dismiss the entire [class action] suit for want of jurisdiction

Friday, February 1, 2008

2008-02-01 Texas Supreme Court Opinions

Another class action nixed: Justice Nathan Hecht delivers the deadly blow. In a second decision today, Texas high court issues a new opinion in an insurance case last decided in 2005. Comment: How how are they ever going to catch up with the backlog if they keep rehashing cases with 2002 cause numbers? Also see ---> F.F.P. Operating Partners, L.P. v. Duenez, No. 02-0381 (Tex. May 11, 2007)(subst. op. by Wainwright; opinion released Nov. 3, 2006 withdrawn)(Dram Shop Act)

Also see –>>> Feb. 1, 2008 Tex. Sup. Ct. Weekly Orders


Senior Supremo Hecht leads charge to thwart consumer class actions by depriving plaintiffs of standing - and the trial and appellate courts of jurisdiction - rather than merely undoing class certification in interlocutory appeal, as has become the Court's practice to protect industry defendants. The new approach to vindicate the economic interests of corporate defendants complements Hecht's expansion of the judicially created doctrine of sovereign immunity to force dismissal of suits against governmental defendants by the trial courts without regard to merits. Four justices, including Chief Jefferson, who is running for re-election this year, took a strong stand against Hecht's latest example of legislating from the bench by boldly rewriting judicial doctrines to keep consumers and other pesky plaintiffs out of the state's court houses.

Daimler Chrysler Corp. v. Inman, No. 03-1189 (Tex. Feb. 1, 2008)
(Opinion by Justice Nathan Hecht) (class action dismissed on standing grounds, jurisdictional dismissal, DWOJ)
DAIMLERCHRYSLER CORPORATION v. BILL INMAN, DAVID CASTRO, AND JOHN WILKINS, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; from Nueces County; 13th district (13-02-00415-CV, 121 S.W.3d 862, 11/20/03)The Court reverses the court of appeals' judgment and dismisses the case for want of jurisdiction. Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Medina, and Justice Willett joined.
Chief Justice Wallace Jefferson delivered a dissenting opinion, in which Justice Harriet O'Neill, Justice Paul Green, and Justice Phil Johnson joined.

Appeals with sequel(s): New opinions issued in insurance case from Harris County

Excess Underwriters v. Frank's Casing Crew & Rental Tools, Inc., No. 02-0730 (Tex. Feb. 1, 2008)(Substitute opinion on rehearing by Justice Harriet O'Neill, 2005 opinion withdrawn) (insurance law, right to reimbursement)
EXCESS UNDERWRITERS AT LLOYD'S, LONDON AND CERTAIN COMPANIES SUBSCRIBING SEVERALLY BUT NOT JOINTLY TO POLICY NO. 548/TA4011F01 v. FRANK'S CASING CREW & RENTAL TOOLS, INC.; from Harris County; 14th district (14-01-00349-CV, 93 S.W.3d 178, 06/27/02)The Court affirms the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Medina, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Green joined. Justice Wainwright delivered a dissenting opinion. (Justice Brister not sitting)