JURY'S DAMAGES AWARD TO ACCIDENT VICTIM'S SURVIVING SPOUSE UNDER TEXAS TORT CLAIMS ACT THROWN OUT & CASE DISMISSED
Texas Department of Transportation v. York, (Tex. 2009)(substituted opinion on rehearing dismissing case rather than remanding it for trial under alternative theory)
No. 07-0743 (Tex. May 22, 2009)(per curiam)(loose gravel does not qualify as special defect to bring it within the scope of immunity waiver provided by the Texas Tort Claims Act (TTCA) under the more lenient standard to establish liability for negligence)
TEXAS SUPREME COURT DEFENDS JUDGE-MADE SOVEREIGN IMMUNITY DOCTRINE AGAINST ENCROACHMENT BY LEGIS AND JURIES - ADDS NEW CHAPTERS TO ITS POTHOLE, GRAVEL & SPECIAL DEFECTS JURISPRUDENCE
To the apparent chagrin of the Texas Supreme Court, the Legislature has carved out a number of exceptions to the cherished sovereign immunity doctrine, wielded by the Supremes of Texas with abandon and to great effect to bump countless tort and contract claims against governmental defendants from the court dockets throughout the state regardless of merits and consideration of equity.
One such legislative grant of protection to the public, and a remedy for victims of governmental negligence, is the Texas Tort Claims Act (TTCA).
So what is the Court to do to when juries render verdicts for accident victims (or their survivors) under the Act?
The answer is to tinker with statutory definitions, such as "special defects" on public highways, which may be made the basis of suit for damages by victims of resulting wrecks.
In Tex. Dept. of Transportation v. York, a driver was killed after hitting a patch of loose gravel (left after road maintenance work) and skidding into an oncoming truck. The horrendous consequences were not enough to convince the Court that a "special defect" was in fact present. After all, its was just gravel spread on the road less than an inch deep.
You see....in order to state a viable claim under the Texas Tort Claims Act, the plaintiff does not just have to skid and crash, or even die, as a result of the defective condition of the road. What the Plaintiff needed to show, and the Court went looking for, was a "mound" of gravel, not just a thin spread left over after repaving work had not been properly completed.
No piles of gravel were in evidence in this case. Nor was there a pothole big enough to swallow up the hapless driver's vehicle, which instead ended up in the path of an oncoming truck. So, of course, the jury verdict for the crash victim's spouse must be thrown out.
In the earlier opinion, the case was remanded to the trial court for retrial on a different theory, but that was too much of a concession, so the Court foreclosed the possibility of another liability finding (and damages) in a second trial by outright dismissal on rehearing.
As Justice Hecht explained with great eloquence in a recent dissent: Nothing special with ordinary potholes. To his satisfaction, now the whole court chimes in in finding nothing special about loose gravel.
And that's a matter of law on which the court - not the jury - has the final say. Indeed, the only say.
Sorry. Sure. It's tragic.
But we can't create precedent for government defendants actually having to pay damages for negligence (never mind the statutory cap). The Texas Legislature could not possibly have meant to include a case like this when it authorized suits for personal injury damages caused by special defects on public highways. - Not when the jury finds the government agency at fault and and awards a million dollars to the family of the motorist who perished in the crash.
And if the Legis did, in a lamentable deparature from social Darwinism and the cost-savings it bestows, at least there is this Court, which will spare no effort to protect and defended the state's sovereign immunity - and the public fisc.
TxDoT v. York, No. 07-0743 (Tex. May 22, 2009)(per curiam) (substituted opinion on motion for rehearing dismissing case on immunity grounds) (Texas Tort Claims Act, TTCA, road hazard, no liability)
The Supreme Court holds that loose gravel is not a special defect as a matter of law, and therefore, reverses the court of appeals’ judgment and dismisses the case.
TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07) motion for rehearing granted. The Court's opinion and judgment of December 5, 2008 are withdrawn and the opinion and judgment of this date are substituted. 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 dismisses the case. Per Curiam Opinion.
Justice O'Neill notes her dissent to granting the motion for rehearing [without separate opinion] (link to original superseded opinion)
MORE LOOSE GRAVEL IMMUNITY: THE COMPANION CASE
TxDoT v. Gutierrez, (Tex. 2009)
No. 07-1013 (Tex. May 22, 2009)(per curiam) (gravel left on road not special defect under the TTCA, case dismissed as barred by sovereign immunity)
FROM THE OPINION:
The Tort Claims Act does not define “special defect” but likens it to “excavations or obstructions.” Id. Thus, in York we stress that “the central inquiry is whether the condition is of the same kind or falls within the same class as an excavation or obstruction.” __ S.W.3d at __. As we hold today in York, loose gravel, unlike other conditions we have said are special defects, “does not form a hole in the road or physically block the road like an obstruction or excavation,” id. at __, nor does it “physically impair a car’s ability to travel on the road in the manner that an excavated road or obstruction blocking the road does,” id. at __ (internal quotation and citation omitted). It thus falls outside the special-defect class as a matter of law. Instead it “falls in the same class as ordinary premise defects—those conditions that do not reach the level of an obstruction or excavation.” Id. This case presents the same condition (loose gravel) due to the same re-paving procedure (a spot seal), and we reach the same result: loose gravel is a premise defect, not a special defect.
TEXAS DEPARTMENT OF TRANSPORTATION v. STEPHANIE GUTIERREZ AND RONNIE GUTIERREZ; from Jim Wells County; 4th district 04-06-00583-CV, 243 SW3d 127, 09-05-07) 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 dismisses the case. Per Curiam Opinion
Also see: Other Texas Texas Supreme Court Tort Claims Act Decisions Previous post: Accident victims' dangerous road to the Texas Supreme Court
Other commentary: Loose gravel caused by repaving is not a "special defect" creating state liability for an automobile accident (Order List for May 22, 2009) (Don Cruse Blog)
TERMS: SOVEREIGN GOVERNMENTAL IMMUNITY, WAIVER OF IMMUNITY TO SUIT AND LIABILTIY, GOVERNMENT TORT LIABILTIY, PREMISES LIABILITY, HAZARDOUS ROAD CONDITIONS, ACCIDENTS, SPECIAL DEFECT, NEGLIGENCE, ACTUAL KNOWLEDGE ELEMENT
Showing posts with label sovereign immunity. Show all posts
Showing posts with label sovereign immunity. Show all posts
Monday, May 25, 2009
Strangling the TTCA: Dallas County v. Posey (Tex. 2009)
SUPREME COURT SNUFFS OUT PARENTS' CIVIL SUIT OVER SON'S HANGING DEATH IN JAIL
Dallas County v. Posey, (Tex. 2009)
No. 08-0094 (Tex. May 22, 2009) (per curiam) (TTCA, prisoner suicide with cord of jail cell phone)
Should suicidal prisoners have a phone with a cord in their cell, with which they can kill themselves? Probably not a good idea. Dallas County concluded as much and started removing them and replacing them with cordless phones.
No rush warranted to make jail cells safe in addition to secure, though, at least not in terms of risk managment and potential legal liability.
In one of its most recent decisions in a series of Tort Claims Act rulings sapping life from the sovereign immunity waiver found in the TTCA, the Supremes absolve county of any responsibility for prisoner's death-by-hanging in a holding cell, - as usual on immunity grounds.
Tragic, no doubt, the Court concedes.
Case dismissed!
Survivors of accident victims suing under the Tort Claims Act suffer similar fate: Loose gravel on road not a special defect that would permit them to sue.
Jury verdict reversed. Case dismissed!
Also see: JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina) (product liability, breach of implied warranty, prisoner strangled with cord of phone represented as safe for unsupervised use by inmates)
See other Texas Supreme Court Tort Claims Act Appeals (with predictable outcomes in finding that immunity bars suit contrary to the legislative purpose of the Tort Claims Act)
Prior post: Accident victims' perilous road to the Texas Supreme Court.
Dallas County v. Posey, (Tex. 2009)
No. 08-0094 (Tex. May 22, 2009) (per curiam) (TTCA, prisoner suicide with cord of jail cell phone)
Should suicidal prisoners have a phone with a cord in their cell, with which they can kill themselves? Probably not a good idea. Dallas County concluded as much and started removing them and replacing them with cordless phones.
No rush warranted to make jail cells safe in addition to secure, though, at least not in terms of risk managment and potential legal liability.
In one of its most recent decisions in a series of Tort Claims Act rulings sapping life from the sovereign immunity waiver found in the TTCA, the Supremes absolve county of any responsibility for prisoner's death-by-hanging in a holding cell, - as usual on immunity grounds.
Tragic, no doubt, the Court concedes.
Case dismissed!
Survivors of accident victims suing under the Tort Claims Act suffer similar fate: Loose gravel on road not a special defect that would permit them to sue.
Jury verdict reversed. Case dismissed!
Also see: JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina) (product liability, breach of implied warranty, prisoner strangled with cord of phone represented as safe for unsupervised use by inmates)
See other Texas Supreme Court Tort Claims Act Appeals (with predictable outcomes in finding that immunity bars suit contrary to the legislative purpose of the Tort Claims Act)
Prior post: Accident victims' perilous road to the Texas Supreme Court.
Saturday, May 9, 2009
Accident victims' hazardous road to the Texas Supreme Court
Another premises liability (road hazard) case with predictable outcome; even more predictable since a governmental entity would have had to pay for injuries. That's a no-no for the Supremos. Since the Legislature waived sovereign immunity by enacting the Texas Tort Claims Act, the legislation must be construed to prevent an outcome that could actually make government liable for personal injury damages caused to innocent citizens. To their credit, three dissented, including the Chief.
Denton County v. Beynon,
No. 08-0016 (Tex. May 1, 2009) (Majority opinion by Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, flood gate pole that pointed toward oncoming traffic and impaled car in accident did not qualify as special defect to bring personal injury claim within TTCA's waiver of immunity in crash victim's suit against county)
FROM JUSTICE O'NEILL'S DISSENT:
It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect.
I would agree with the Court if the particular hazard were farther from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.
Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz. While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle with its brights on driving down the center of the road. To avoid the oncoming car, Hilz steered his vehicle toward the edge of the road. As Hilz moved his car over, the right tires left the pavement and dropped about eight inches onto the unpaved, unimproved shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in his attempt to correct the path of the car, he lost control. Hilz turned the car left and then tried to correct by turning to the right. When he turned back to the right, the front wheels left the road and the car’s undercarriage caught the edge of the pavement. The vehicle began to slide along the road at a forty-five degree angle with its rear wheels still on the pavement. While the car slid along the pavement, a floodgate arm punctured the driver’s door.
In its proper position the floodgate arm, a seventeen-foot metal pole attached to a base buried in the ground, would have been facing away from traffic and secured in place. However, the arm was unsecured and improperly pointing toward oncoming traffic when Hilz’s car collided with it three feet from the pavement.
The arm penetrated the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s injuries resulted in amputation of her leg below the knee.
The Court does not dispute that the floodgate arm was in the wrong position, that the floodgate arm impaled the vehicle[1], or that its open position was unexpected and dangerous. The Court concludes, however, that because Hilz veered three feet from the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to the jurisdiction should have been granted.
I disagree.
Special defects are “defects of the same kind or class as ‘excavations or obstructions on highways, roads, or streets’ that present an ‘unexpected and unusual danger to ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (citation omitted). To be a special defect, the condition must also “unexpectedly and physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).
A special defect need not occur on the surface of a road, but “[w]hether on a road or near one, . . . conditions can be [special defects] only if they pose a threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).The Court concludes the floodgate arm is not a special defect because it was not blocking the road and the objective expectations of an “ordinary user” would not include veering off the road and onto the grass. But “ordinary users” of roads sometimes stray outside the lines, else there would be no need for shoulders.
In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder. As the court of appeals observed, normal users of the road nearly always drive on the paved surface, yet “it is certainly not inconceivable that a normal user of the road might pull off or leave the edge of the road onto the unimproved shoulder for one reason or another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course of driving, hazards like road debris, livestock, or other drivers who don’t respect their lanes are often encountered that require prudent drivers to take advantage of the shoulder, whether improved or unimproved.
The Court’s conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as the result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day.The Court recognizes that the test for determining the expectations of an ordinary user is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a collision, with two wheels still on the road, places a driver beyond the normal course of travel.
The Court’s concept of “ordinary user” limits special defects to those that appear only within the lines between the shoulders of the road, contrary to our acknowledgment in Payne that a number of courts have recognized that “conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that a culvert yards beyond the road’s end where a “right-turn only” lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No. 05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet. denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ denied).Not all off-road objects a driver might encounter in the ordinary course of travel qualify as special defects; to the contrary, few do.
Obstructions like road signs, construction equipment in marked construction zones, and properly secured floodgate arms are not unexpected and do not pose an unusual danger to ordinary travelers. See City of Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or class as the excavations or obstructions the statute contemplates” and “did not pose a threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine, or permanent condition is not a special defect.”).
But an unsecured floodgate arm pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.Under the particular circumstances presented in this case, I consider the floodgate arm a special defect and would affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.
Harriet O’Neill
Justice
OPINION DELIVERED: May 1, 2009
[1] The Court summarily concludes that the floodgate arm “is not of the same kind or class as an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have noted, “The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.” City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
In my view, a metal pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough to an obstruction to fall within the statute’s ambit.
Denton County v. Beynon,
No. 08-0016 (Tex. May 1, 2009) (Majority opinion by Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, flood gate pole that pointed toward oncoming traffic and impaled car in accident did not qualify as special defect to bring personal injury claim within TTCA's waiver of immunity in crash victim's suit against county)
FROM JUSTICE O'NEILL'S DISSENT:
It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect.
I would agree with the Court if the particular hazard were farther from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.
Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz. While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle with its brights on driving down the center of the road. To avoid the oncoming car, Hilz steered his vehicle toward the edge of the road. As Hilz moved his car over, the right tires left the pavement and dropped about eight inches onto the unpaved, unimproved shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in his attempt to correct the path of the car, he lost control. Hilz turned the car left and then tried to correct by turning to the right. When he turned back to the right, the front wheels left the road and the car’s undercarriage caught the edge of the pavement. The vehicle began to slide along the road at a forty-five degree angle with its rear wheels still on the pavement. While the car slid along the pavement, a floodgate arm punctured the driver’s door.
In its proper position the floodgate arm, a seventeen-foot metal pole attached to a base buried in the ground, would have been facing away from traffic and secured in place. However, the arm was unsecured and improperly pointing toward oncoming traffic when Hilz’s car collided with it three feet from the pavement.
The arm penetrated the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s injuries resulted in amputation of her leg below the knee.
The Court does not dispute that the floodgate arm was in the wrong position, that the floodgate arm impaled the vehicle[1], or that its open position was unexpected and dangerous. The Court concludes, however, that because Hilz veered three feet from the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to the jurisdiction should have been granted.
I disagree.
Special defects are “defects of the same kind or class as ‘excavations or obstructions on highways, roads, or streets’ that present an ‘unexpected and unusual danger to ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (citation omitted). To be a special defect, the condition must also “unexpectedly and physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).
A special defect need not occur on the surface of a road, but “[w]hether on a road or near one, . . . conditions can be [special defects] only if they pose a threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).The Court concludes the floodgate arm is not a special defect because it was not blocking the road and the objective expectations of an “ordinary user” would not include veering off the road and onto the grass. But “ordinary users” of roads sometimes stray outside the lines, else there would be no need for shoulders.
In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder. As the court of appeals observed, normal users of the road nearly always drive on the paved surface, yet “it is certainly not inconceivable that a normal user of the road might pull off or leave the edge of the road onto the unimproved shoulder for one reason or another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course of driving, hazards like road debris, livestock, or other drivers who don’t respect their lanes are often encountered that require prudent drivers to take advantage of the shoulder, whether improved or unimproved.
The Court’s conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as the result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day.The Court recognizes that the test for determining the expectations of an ordinary user is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a collision, with two wheels still on the road, places a driver beyond the normal course of travel.
The Court’s concept of “ordinary user” limits special defects to those that appear only within the lines between the shoulders of the road, contrary to our acknowledgment in Payne that a number of courts have recognized that “conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that a culvert yards beyond the road’s end where a “right-turn only” lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No. 05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet. denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ denied).Not all off-road objects a driver might encounter in the ordinary course of travel qualify as special defects; to the contrary, few do.
Obstructions like road signs, construction equipment in marked construction zones, and properly secured floodgate arms are not unexpected and do not pose an unusual danger to ordinary travelers. See City of Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or class as the excavations or obstructions the statute contemplates” and “did not pose a threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine, or permanent condition is not a special defect.”).
But an unsecured floodgate arm pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.Under the particular circumstances presented in this case, I consider the floodgate arm a special defect and would affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.
Harriet O’Neill
Justice
OPINION DELIVERED: May 1, 2009
[1] The Court summarily concludes that the floodgate arm “is not of the same kind or class as an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have noted, “The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.” City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
In my view, a metal pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough to an obstruction to fall within the statute’s ambit.
OTHER RECENT TTCA DECISIONS FROM THE TEXAS SUPREME COURT:
City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, plea to the jurisdiction)
UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (Texas Tort Claims Act, TTCA, premises liability, dangerous condition, ostrich defense, know-nothing defense)
City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition, children's drowning deaths, flooded roads)
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)
PER CURIAM OPINION
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)
EXCERPT FROM COURT OF APPEAL'S OPINION BY JUSTICE CASTILLO
IV. IMMUNITY
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.
V. CONCLUSION
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.
ERRLINDA CASTILLO
Justice
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)
PER CURIAM OPINION
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)
EXCERPT FROM COURT OF APPEAL'S OPINION BY JUSTICE CASTILLO
IV. IMMUNITY
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.
V. CONCLUSION
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.
ERRLINDA CASTILLO
Justice
Friday, September 7, 2007
Texas A&M Univ. System v. Koseoglu decided - Supreme Court takes further step to curtail state employees' rights in the name of sovereign immunity
Texas A&M University System vs. Sefa Koseoglu, No. 05‑0321 (Tex. September 7, 2007)(Justice Green)
Sep. 7, 2007 - Texas Supreme Court endorses dismissal of public university employee's breach of contract claim against employer with prejudice even though court did not reach the merits for lack of jursidiction and employee could seek legislative permission to sue. Court also holds that public official sued in his official capacity is entitled to interlocutory appeal when trial court denies jurisdictional plea, reverses lower court on that issue, and renders judgment for both governmental defendants. In resolving conflicting holdings by the lower courts of appeals, today's decision establishes new state-wide precedent on an important issue in the area of sovereign immunity.
Justice Green delivered the opinion of the Court:
In this case we consider whether a plaintiff who, on appeal, loses a plea to the jurisdiction based on sovereign immunity is entitled to a remand for an opportunity to cure the jurisdictional pleading defect. We conclude that when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to amend. Additionally, we must interpret section 51.014(a) of the Texas Civil Practice and Remedies Code to determine whether appellate courts have jurisdiction to consider a government official’s appeal of a trial court’s denial of a plea to the jurisdiction based on sovereign immunity. We conclude that Section 51.014(a)(8) vests appellate courts with such jurisdiction.
* * *
Conclusion. With respect to the trial court’s denial of Texas A&M’s plea to the jurisdiction, we affirm the portion of the court of appeals’ judgment holding that Koseoglu’s breach of contract claims against Texas A&M were barred by sovereign immunity. But because Koseoglu’s pleadings are incurably defective, remanding the cause to the trial court will serve no legitimate purpose. Therefore, we reverse the court of appeals’ remand order and dismiss Koseoglu’s claims against Texas A&M with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is with prejudice).
With respect to McLellan’s appeal, having examined the plain language of Section 51.014(a)(8), its logical application, and the legislative history, we hold a state official may seek interlocutory appellate review from the denial of a jurisdictional plea. Accordingly, we reverse that portion of the court of appeals’ judgment that it was without jurisdiction to decide McLellan’s appeal of the trial court’s denial of his jurisdictional plea and, under Rule 60.2(c) of the Texas Rules of Appellate Procedure, we render the judgment the court of appeals should have rendered.
Like Koseoglu’s pleadings against Texas A&M, his pleadings against McLellan were deficient in the sense that he never had an actionable Section 1983 claim. In both instances, Koseoglu deserves the opportunity to amend his pleadings if they can be cured, but in both instances, because Koseoglu’s underlying claim is one for breach of contract, the defects cannot be cured. Accordingly, just as we dismissed Koseoglu’s claim against Texas A&M with prejudice, we likewise dismiss with prejudice the claim against McLellan in his official capacity.
Texas A&M Univ. Sys. v. Koseoglu, No. 05‑0321 (Tex. Sep. 7, 2007)
TEXAS A&M UNIVERSITY SYSTEM, TEXAS ENGINEERING EXPERIMENT STATION, AND DR. MARK MCLELLAN v. DR. SEFA KOSEOGLU; from Brazos County; 10th district (10‑03‑00375‑CV, 167 SW3d 375, 03‑09‑05)
The Court affirms in part and reverses in part the court of appeals' judgment and dismisses the case. Justice Paul W. Green delivered the opinion of the Court.
Opinion below: Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006)(oral argument heard on November 14, 2006 by the Texas Supreme Court); Texas Supreme Court Cause No. 05-0321 (also see --> e-briefs)
Sep. 7, 2007 - Texas Supreme Court endorses dismissal of public university employee's breach of contract claim against employer with prejudice even though court did not reach the merits for lack of jursidiction and employee could seek legislative permission to sue. Court also holds that public official sued in his official capacity is entitled to interlocutory appeal when trial court denies jurisdictional plea, reverses lower court on that issue, and renders judgment for both governmental defendants. In resolving conflicting holdings by the lower courts of appeals, today's decision establishes new state-wide precedent on an important issue in the area of sovereign immunity.
Justice Green delivered the opinion of the Court:
In this case we consider whether a plaintiff who, on appeal, loses a plea to the jurisdiction based on sovereign immunity is entitled to a remand for an opportunity to cure the jurisdictional pleading defect. We conclude that when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to amend. Additionally, we must interpret section 51.014(a) of the Texas Civil Practice and Remedies Code to determine whether appellate courts have jurisdiction to consider a government official’s appeal of a trial court’s denial of a plea to the jurisdiction based on sovereign immunity. We conclude that Section 51.014(a)(8) vests appellate courts with such jurisdiction.
* * *
Conclusion. With respect to the trial court’s denial of Texas A&M’s plea to the jurisdiction, we affirm the portion of the court of appeals’ judgment holding that Koseoglu’s breach of contract claims against Texas A&M were barred by sovereign immunity. But because Koseoglu’s pleadings are incurably defective, remanding the cause to the trial court will serve no legitimate purpose. Therefore, we reverse the court of appeals’ remand order and dismiss Koseoglu’s claims against Texas A&M with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is with prejudice).
With respect to McLellan’s appeal, having examined the plain language of Section 51.014(a)(8), its logical application, and the legislative history, we hold a state official may seek interlocutory appellate review from the denial of a jurisdictional plea. Accordingly, we reverse that portion of the court of appeals’ judgment that it was without jurisdiction to decide McLellan’s appeal of the trial court’s denial of his jurisdictional plea and, under Rule 60.2(c) of the Texas Rules of Appellate Procedure, we render the judgment the court of appeals should have rendered.
Like Koseoglu’s pleadings against Texas A&M, his pleadings against McLellan were deficient in the sense that he never had an actionable Section 1983 claim. In both instances, Koseoglu deserves the opportunity to amend his pleadings if they can be cured, but in both instances, because Koseoglu’s underlying claim is one for breach of contract, the defects cannot be cured. Accordingly, just as we dismissed Koseoglu’s claim against Texas A&M with prejudice, we likewise dismiss with prejudice the claim against McLellan in his official capacity.
Texas A&M Univ. Sys. v. Koseoglu, No. 05‑0321 (Tex. Sep. 7, 2007)
TEXAS A&M UNIVERSITY SYSTEM, TEXAS ENGINEERING EXPERIMENT STATION, AND DR. MARK MCLELLAN v. DR. SEFA KOSEOGLU; from Brazos County; 10th district (10‑03‑00375‑CV, 167 SW3d 375, 03‑09‑05)
The Court affirms in part and reverses in part the court of appeals' judgment and dismisses the case. Justice Paul W. Green delivered the opinion of the Court.
Opinion below: Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006)(oral argument heard on November 14, 2006 by the Texas Supreme Court); Texas Supreme Court Cause No. 05-0321 (also see --> e-briefs)
Sunday, June 3, 2007
June 1, 2007 - Texas Cities Have Their Day In Court
Following its precedent-setting decisions in Tooke and Reata a year earlier, Supreme Court of Texas decides numerous sovereign immunity appeals involving cities.
June 1, 2007 - Texas Supreme Court hands down eleven opinions, including six cases with cities as parties; grants three petitions for review. None of the justices concurred or dissented.
High Court denies 36 petitions for review and 11 petitions for mandamus relief.
This week's opinion authors are Chief Justice Jefferson, Justice Brister, Justice Johnson, and Justice Medina. Seven opinion were issued per curiam, including one granting mandamus relief.
June 1, 2007 Signed and Per Curiam Opinions Issued by the Texas Supreme Court
Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation, hospital lien)
First Commerce Bank v. Palmer, No. 05-0686 (Tex. Jun. 1, 2007)(Medina)(guarantee agreement, lack or failure of consideration defense)
State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction)
In Re Southwestern Bell Telephone Co., L.P. , No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)(agency primary jurisdiction)
Hubicki v. Festina, a Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, defective service)
City of Arlington v. Matthews, No. 06-0251 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Pasadena v. Kinsel Industries, No. 06-0353 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Elsa v. M.A.L., No. 06-0516 (Tex. Jun. 1, 2007)(per curiam)
Tellez v. City of Socorro, No. 05-0629 (Tex. Jun. 1, 2007)(per curiam)(zoning)
Dallas Fire Fighters Association v. City of Dallas,No. 04-0821 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Abilene Housing Authority v. Gene Duke Builders, No. 05-0631 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Petions Denied (Cases involving cities and other local governments only)
No. 03‑0954 CITY OF DALLAS v. FIRST TRADE UNION SAVINGS BANK, FSB; from Dallas County; 5th district (05‑02‑00953‑CV, 133 SW3d 680, 07‑25‑03)
No. 04‑0797 CITY OF TEXARKANA v. CITIES OF NEW BOSTON, HOOKS, DEKALB, WAKE VILLAGE, MAUD, AVERY, AND ANNONA; from Bowie County; 6th district (06‑04‑00023‑CV, 141 SW3d 778, 07‑23‑04) 2 petitions
No. 04‑1115 SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. CITY OF SAN ANTONIO, ACTING BY AND THROUGH SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑03‑00835‑CV, ___ SW3d ___, 11‑03‑04)motion to strike dismissed as moot
No. 06‑0161 HARRIS COUNTY v. OCTAVISH FREEMAN; from Harris County; 1st district (01‑04‑00148‑CV, 183 SW3d 885, 01‑12‑06)
No. 06‑0481 THE CITY OF SAN ANTONIO v. EL DORADO AMUSEMENT COMPANY, INC.; from Bexar County; 4th district (04‑04‑00638‑CV, 195 SW3d 238, 02‑15‑06)2 petitions
No. 07‑0029 AUSTIN INDEPENDENT SCHOOL DISTRICT v. CHRISTINA BELL LOWERY; from Travis County; 3rd district (03‑06‑00169‑CV, 212 SW3d 827, 11‑30‑06)
No. 07‑0182 CITY OF MCALLEN v. MANUEL TRIGO, JR., ET AL.; from Hidalgo County; 13th district (13‑04‑00344‑CV, ___ SW3d ___, 06‑02‑04)
June 1, 2007 - Texas Supreme Court hands down eleven opinions, including six cases with cities as parties; grants three petitions for review. None of the justices concurred or dissented.
High Court denies 36 petitions for review and 11 petitions for mandamus relief.
This week's opinion authors are Chief Justice Jefferson, Justice Brister, Justice Johnson, and Justice Medina. Seven opinion were issued per curiam, including one granting mandamus relief.
June 1, 2007 Signed and Per Curiam Opinions Issued by the Texas Supreme Court
Daughters of Charity Health Services of Waco v. Linnstaedter, No. 05-0108 (Tex. Jun. 1, 2007)(Brister)(workers compensation, hospital lien)
First Commerce Bank v. Palmer, No. 05-0686 (Tex. Jun. 1, 2007)(Medina)(guarantee agreement, lack or failure of consideration defense)
State of Texas v. Beam, No. 06-0974 (Tex. Jun. 1, 2007)(Jefferson)(expunction)
In Re Southwestern Bell Telephone Co., L.P. , No. 05-0511 (Tex. Jun. 1, 2007)(mandamus)(Johnson)(agency primary jurisdiction)
Hubicki v. Festina, a Lichtenstein Foundation, No. 05-0357 (Tex. Jun. 1, 2007)(per curiam)(default judgment, defective service)
City of Arlington v. Matthews, No. 06-0251 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Pasadena v. Kinsel Industries, No. 06-0353 (Tex. Jun. 1, 2007)(per curiam) (sovereign immunity, Tooke)
City of Elsa v. M.A.L., No. 06-0516 (Tex. Jun. 1, 2007)(per curiam)
Tellez v. City of Socorro, No. 05-0629 (Tex. Jun. 1, 2007)(per curiam)(zoning)
Dallas Fire Fighters Association v. City of Dallas,No. 04-0821 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Abilene Housing Authority v. Gene Duke Builders, No. 05-0631 (Tex. Jun. 1, 2007)(per curiam)(sovereign immunity, Tooke)
Petions Denied (Cases involving cities and other local governments only)
No. 03‑0954 CITY OF DALLAS v. FIRST TRADE UNION SAVINGS BANK, FSB; from Dallas County; 5th district (05‑02‑00953‑CV, 133 SW3d 680, 07‑25‑03)
No. 04‑0797 CITY OF TEXARKANA v. CITIES OF NEW BOSTON, HOOKS, DEKALB, WAKE VILLAGE, MAUD, AVERY, AND ANNONA; from Bowie County; 6th district (06‑04‑00023‑CV, 141 SW3d 778, 07‑23‑04) 2 petitions
No. 04‑1115 SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. CITY OF SAN ANTONIO, ACTING BY AND THROUGH SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑03‑00835‑CV, ___ SW3d ___, 11‑03‑04)motion to strike dismissed as moot
No. 06‑0161 HARRIS COUNTY v. OCTAVISH FREEMAN; from Harris County; 1st district (01‑04‑00148‑CV, 183 SW3d 885, 01‑12‑06)
No. 06‑0481 THE CITY OF SAN ANTONIO v. EL DORADO AMUSEMENT COMPANY, INC.; from Bexar County; 4th district (04‑04‑00638‑CV, 195 SW3d 238, 02‑15‑06)2 petitions
No. 07‑0029 AUSTIN INDEPENDENT SCHOOL DISTRICT v. CHRISTINA BELL LOWERY; from Travis County; 3rd district (03‑06‑00169‑CV, 212 SW3d 827, 11‑30‑06)
No. 07‑0182 CITY OF MCALLEN v. MANUEL TRIGO, JR., ET AL.; from Hidalgo County; 13th district (13‑04‑00344‑CV, ___ SW3d ___, 06‑02‑04)
Friday, May 4, 2007
May 4, 2007 Texas Supreme Court Opinions
The Texas Supreme Court issued three per curiam opinions and three signed opinions today.
In Re Bexar County Criminal DA's Office, No. 05-0613 (Tex. May 4, 2007)(Willett)(mandamus) (testimonial privileges, work-product privilege)
Justice Willett issued a second concurring opinion. Justice Johnson dissented, joined by Chief Justice Jefferson and Justice Medina. Justice Green did not participate.
The Court characterizes the issue presented in this mandamus proceeding as one of first impression: Whether work product privilege protects prosecutors from having to testify in a malicious prosecution case when they have already released the prosecution file. The civil suit arose from a protracted feud between neighbors that culminated in a charge of terroristic threat, which was investigated by the DA's Office, and ultimately dropped. The trial court granted the DA's motion to quash and for protective order. The court of appeals disagreed and ordered that the trial court withdraw its order. On petition for mandamus relief, the Supreme Court, in an opinion written by Justice Don R. Willett, sides with the DA, and orders the trial court's order to quash the witness subpoenas reinstated. The Court holds that direct testimony by the prosecutor is not required to prove causation and malice in malicious prosecution suits, and that the DA did not waive work-product privilege for live testimony and exposure of mental processes of its investigators by producing the documents in its file. The Court suggests that the plaintiff has enough evidence to prove his case by alternative means, and that exceptions to the hearsay rule may also be available.
State of Texas v. Fidelity and Deposit Co. of Maryland, No. 04-0180 (Tex. May 4, 2007)(per curiam)(sovereign immunity case; waiver by filing suit)
In this construction dispute the Court adds finishing touches to its holding in Reata Construction v. City of Dallas, a new version of which was handed down last year following withdrawal of its original opinion and a long hiatus and corresponding period of suspense on the part of court watchers and the appellate bar. The Court, without dissent, holds that a state agency (here TxDoT) waives its sovereign immunity to counterclaims arising from the same underlying facts by suing a private party for breach of contract or indemnification. Utilization and exhaustion of the administrative dispute resolution process was not required here because the statute in effect at the time did not cover the type of construction project at issue, and the subsequent legislative amendment only had prospective effect.
City of San Antonio v. Ytuarte, No. 05-0991 (Tex. May 4, 2007)(per curiam)(official immunity)
This case stems from hot pursuit by police of a suspect fleeing in a stolen car, and injury to a bystander, who then brought suit against those involved in the chase. Supreme Court chides court of appeals for not engaging in the proper analysis of the officer's official immunity defense, and the summary judgment evidence on the issue of good faith. Resolving the appeal per curiam, the Court renders judgment that police officer acted in good faith, and is thus immune to liability. Case dismissed.
Seagull Energy v. Railroad Commission of Texas, No. 03-0364 (Tex. May 4, 2007)(Medina)(government entities, agency authority)
This case involves a challenge by Seagull Energy to the Railroad Commission's action with respect to one of its mineral leases. The Court holds that the Commission did not act arbitraily or exceed the scope of its authority in the regulation of drilling and production from commingled oil/gas deposits when it denied an exception to one of its rules.
Equistar Chemicals v. Dresser-Rand Co., No. 04-0121 (Tex. May 4, 2007)(Johnson) (jury)
In this suit stemming from the failure of commercial equipment the Supreme Court disagrees with the court of appeals that error in the instruction and charge to the jury as to the economic loss rule and measure of damages was properly preserved.
Young v. Qualls, No. 05-1091 (Tex. May 4, 2007)(per curiam)(attorney's fees)
In the case, the appellate court reduced the damages the jury had awarded in the court below. The Supremes remand to the trial court for a redetermination of the proper amount of attorney's fees in light of diminished results produced by counsel for the prevailing party.
Also see 2007 Texas Supreme Court Cases 2007 Texas Supreme Court Per Curiam Opinions
In Re Bexar County Criminal DA's Office, No. 05-0613 (Tex. May 4, 2007)(Willett)(mandamus) (testimonial privileges, work-product privilege)
Justice Willett issued a second concurring opinion. Justice Johnson dissented, joined by Chief Justice Jefferson and Justice Medina. Justice Green did not participate.
The Court characterizes the issue presented in this mandamus proceeding as one of first impression: Whether work product privilege protects prosecutors from having to testify in a malicious prosecution case when they have already released the prosecution file. The civil suit arose from a protracted feud between neighbors that culminated in a charge of terroristic threat, which was investigated by the DA's Office, and ultimately dropped. The trial court granted the DA's motion to quash and for protective order. The court of appeals disagreed and ordered that the trial court withdraw its order. On petition for mandamus relief, the Supreme Court, in an opinion written by Justice Don R. Willett, sides with the DA, and orders the trial court's order to quash the witness subpoenas reinstated. The Court holds that direct testimony by the prosecutor is not required to prove causation and malice in malicious prosecution suits, and that the DA did not waive work-product privilege for live testimony and exposure of mental processes of its investigators by producing the documents in its file. The Court suggests that the plaintiff has enough evidence to prove his case by alternative means, and that exceptions to the hearsay rule may also be available.
State of Texas v. Fidelity and Deposit Co. of Maryland, No. 04-0180 (Tex. May 4, 2007)(per curiam)(sovereign immunity case; waiver by filing suit)
In this construction dispute the Court adds finishing touches to its holding in Reata Construction v. City of Dallas, a new version of which was handed down last year following withdrawal of its original opinion and a long hiatus and corresponding period of suspense on the part of court watchers and the appellate bar. The Court, without dissent, holds that a state agency (here TxDoT) waives its sovereign immunity to counterclaims arising from the same underlying facts by suing a private party for breach of contract or indemnification. Utilization and exhaustion of the administrative dispute resolution process was not required here because the statute in effect at the time did not cover the type of construction project at issue, and the subsequent legislative amendment only had prospective effect.
City of San Antonio v. Ytuarte, No. 05-0991 (Tex. May 4, 2007)(per curiam)(official immunity)
This case stems from hot pursuit by police of a suspect fleeing in a stolen car, and injury to a bystander, who then brought suit against those involved in the chase. Supreme Court chides court of appeals for not engaging in the proper analysis of the officer's official immunity defense, and the summary judgment evidence on the issue of good faith. Resolving the appeal per curiam, the Court renders judgment that police officer acted in good faith, and is thus immune to liability. Case dismissed.
Seagull Energy v. Railroad Commission of Texas, No. 03-0364 (Tex. May 4, 2007)(Medina)(government entities, agency authority)
This case involves a challenge by Seagull Energy to the Railroad Commission's action with respect to one of its mineral leases. The Court holds that the Commission did not act arbitraily or exceed the scope of its authority in the regulation of drilling and production from commingled oil/gas deposits when it denied an exception to one of its rules.
Equistar Chemicals v. Dresser-Rand Co., No. 04-0121 (Tex. May 4, 2007)(Johnson) (jury)
In this suit stemming from the failure of commercial equipment the Supreme Court disagrees with the court of appeals that error in the instruction and charge to the jury as to the economic loss rule and measure of damages was properly preserved.
Young v. Qualls, No. 05-1091 (Tex. May 4, 2007)(per curiam)(attorney's fees)
In the case, the appellate court reduced the damages the jury had awarded in the court below. The Supremes remand to the trial court for a redetermination of the proper amount of attorney's fees in light of diminished results produced by counsel for the prevailing party.
Also see 2007 Texas Supreme Court Cases 2007 Texas Supreme Court Per Curiam Opinions
Sunday, April 22, 2007
April 20, 2007 Texas Supreme Court Opinions
The Supreme Court opinions issued April 20, 2007 cover much legal ground and do not lend themselves to an easy summary under a common theme.
After a lull lasting several weeks, during which only a couple of per curiam opinions were handed down, the Supreme Court, on Friday issued thirteen opinions covering a wide array of issues spanning family law, employment law, leases, medical malpractice, and other areas of law and practice, not to mention sovereign immunity, a perennial theme. Two of the signed opinions were authored by Chief Justice Wallace B. Jefferson. Justice Nathan L. Hecht, Justice Scott A. Brister, Justice Harriet O'Neill, and Justice Dale Wainwright wrote one opinion each. The remaining decisions were issued per curiam. In this batch of opinions, dissent was remarkably absent. Justice Johnson delivered a concurring opinion in one of two cases involving Baylor University. Baylor v. Coley, No. 04-0916 (Tex. Apr. 20, 2007)(Hecht);
Baylor Univ. v. Sonnichsen, No. 04-0851 (Tex. Apr. 20, 2007).
Baylor's Day in the Supreme Court - University prevails in two employment disputes
The two university cases involved contract issues regarding employment. In Baylor Univ. v. Sonnichson, a former coach's fraud claims failed because he was seeking the same damages he could not recover for breach of an alleged oral contract because that claim was barred by the statute of frauds. In Bayler v. Coley, the Plaintiff likewise ended up empty-handed. The Court held that the there was no evidence that the University had breached Coley's contract, and that there was no jury charge error regarding constructive discharge. Justice Johnson wrote separately on the issue of preservation of jury charge error and concluded that Coley' s proposed jury instruction was not substantially correct because it contained a comment on the weight of the evidence by referring to her as being tenured in a position, rather than a field, which would have allowed for greater flexibility in assignments and responsibilities without resulting in a potentially actionable demotion. The nature of Coley's job responsibilities was not clearly defined and was a contested issue.
Two more in a steady stream of sovereign immunity decisions
Sovereign immunity, which accounts for a large number of cases in which the Supreme Court granted review recently, was not an issue in these two higher education employment cases because Baylor is a private university. In an unremarkable sovereign immunity case decided on Good Friday, the Court reversed for reconsideration in light of new case law by the trial court, as it has done in other cases decided in per curiam opinions. See State of Texas v. Precision Solar Controls Inc. (Tex. April 5, 2007). In the latest sovereign immunity case, U.S. v. Boateng, the Texas Supreme Court had occasion to examine a different angle. In this case, immunity was invoked by the United States (on behalf of a Medicare intermediary), rather than a state entity or a local government. Moreover, the defensive plea was asserted in a bill a review proceeding in which the party seeking relief from a prior judgment necessarily appears as petitioner, rather than defendant. The Supreme Court denied the United States' petition, thus allowing the case to be remanded to the trial court on mandate of the court of appeals, which had reversed the trial court's order granting the bill of review without trial. The Supreme Court opined that fact issues regarding the extent of the immunity claims remained unresolved.
In a second sovereign immunity case in which a decision was handed down April 20, 2007, the Supreme Court examined whether a takings claim is the proper avenue for the owner of a patent who performs services under contract with the State to assert his intellectual prporty rights. The patent-holder, Herbert Holland, had filed suit claiming the State’s unauthorized use of his patented technology constituted a taking under Article I, section 17 of the Texas Constitution. Writing for the Court, Justice Harriet O'Neill, rejects the takings claim, when, as here, the State’s use is pursuant to colorable contract rights, even though the contract was not between the State and Holland individually. Because the State was not acting under its powers of eminent domain, Holland could not assert a valid takings claim against the State for the alleged unlawful use of his patent. Finding that the state retained its immunity from suit under these circumstances, the Supreme Court reverses the court of appeals' judgment and dismisses Holland’s claim for want of jurisdiction. State of Texas v. Holland, No. 05-0292 (Tex. Apr. 20, 2007)
Domestic Relations, Benefits, and Wills
Several of the most recent decisions of the Supreme Court impact family law practitioners and probate lawyers. In the Estate of Marvin Nash afforded the Court an opportunity to address the effect of a divorce on a will, while in Holmes v. Kent, in a per curiam opinon, the Court resolved a benefits dispute under the Teacher Retirement System (TRS) by finding that a former teacher had not followed proper procedure to remove her former husband as designated beneficiary of an optional annuity prior to her death. The Court adopted the position urged by the TRS, which had filed an amicus brief in which it argued that the statutory requirements for changes in beneficiaries should be strictly adhered to.
Although the Supreme Court does not hear criminal cases, it had occasion to grant habeas corpus relief in a case in which a party sought to enforce contractual alimony by having the ex-spouse jailed for nonpayment. Finding that failure to comply with a private agreement regarding alimony created a debt not enforceable by contempt, the Supreme Court ordered the ex-husband released from custody. In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam).
Variations on Malpractice: Doctor vs. Lawyer and Doctor vs. Doctor
Two of the decided cases involved health care liability claims. In Low v. Henry, the Supreme Court reviewed the propriety of a sanctions order for factually false allegations against physicians in a medical malpractice case. In an opinion authored by Justice Wainwright the Court agrees with the trial court that pleading abuse did occur, but remands for reconsideration of the $50,000 in sanctions imposed on the attorney, which the Court deems severe and not supported by sufficient evidence. Low v. Henry, 50 Tex. Sup. J. 606 (Tex. 2007). In Jackson v. Axelrad Justice Brister wrote the opinion for the court resolving a dispute over the responsibilities of a patient in the medical malpractice context, where the patient-plaintiff himself was also a medical doctor, rather than a lay person to whom special knowledge and expertise cannot be imputed, and should have reported a critical symptom.
Commercial Tenants Beware!
On the business law front, the Supreme Court addressed an important and recurring issue in commercial leasing. Writing for the unanimous court, Chief Justice Jefferson held that the "as-is" provision of the parties' contract, and the express warranty disclaimer contained therein were valid and enforceable, and thus barred the tenant's suit against the landlord.
Gym-N-I Playground, Inc. v. Snider, No. 05-0197 (Tex. Apr. 20, 2007)(Jefferson)
Second Bite at Out-of-State Defendants
In IRA Resources, Inc. v. Griego, an appeal from the trial court's ruling on a special appearance, the high court determines that the court of appeals had improperly found special jurisdiction, and remands with instructions that the court reexamine the case to see if the criteria for general jurisdiction were satisfied. The court of appeals had not reached that issue.
Mandamus Relief Granted (Conditionally, as is Customary)
The Supreme Court granted mandamus in two of the cases disposed of April 20, 2007. As it had done on several occasions before, it directed a trial court to enforce arbitration. In Re RLS Legal Solutions, LLC. It did so notwithstanding the concerns Chief Justice Jefferson had recently voiced in his State of the Judiciary Address about the erosion of legal and appellate remedies by private arbitration. In addition, the Court granted mandamus to require disqualification of counsel in a suit by a doctor against a medical center for revoking his hospital privileges, holding that there was no adequate other remedy. The hospital's attorney had previously been associated with the firm that represented the doctor and the representation of the current client would have required him to call into question the advice given the doctor by his former law partner. In Re Michael Angelo Basco, No. 05-0771 (Tex. Apr. 20, 2007)(per curiam)
After a lull lasting several weeks, during which only a couple of per curiam opinions were handed down, the Supreme Court, on Friday issued thirteen opinions covering a wide array of issues spanning family law, employment law, leases, medical malpractice, and other areas of law and practice, not to mention sovereign immunity, a perennial theme. Two of the signed opinions were authored by Chief Justice Wallace B. Jefferson. Justice Nathan L. Hecht, Justice Scott A. Brister, Justice Harriet O'Neill, and Justice Dale Wainwright wrote one opinion each. The remaining decisions were issued per curiam. In this batch of opinions, dissent was remarkably absent. Justice Johnson delivered a concurring opinion in one of two cases involving Baylor University. Baylor v. Coley, No. 04-0916 (Tex. Apr. 20, 2007)(Hecht);
Baylor Univ. v. Sonnichsen, No. 04-0851 (Tex. Apr. 20, 2007).
Baylor's Day in the Supreme Court - University prevails in two employment disputes
The two university cases involved contract issues regarding employment. In Baylor Univ. v. Sonnichson, a former coach's fraud claims failed because he was seeking the same damages he could not recover for breach of an alleged oral contract because that claim was barred by the statute of frauds. In Bayler v. Coley, the Plaintiff likewise ended up empty-handed. The Court held that the there was no evidence that the University had breached Coley's contract, and that there was no jury charge error regarding constructive discharge. Justice Johnson wrote separately on the issue of preservation of jury charge error and concluded that Coley' s proposed jury instruction was not substantially correct because it contained a comment on the weight of the evidence by referring to her as being tenured in a position, rather than a field, which would have allowed for greater flexibility in assignments and responsibilities without resulting in a potentially actionable demotion. The nature of Coley's job responsibilities was not clearly defined and was a contested issue.
Two more in a steady stream of sovereign immunity decisions
Sovereign immunity, which accounts for a large number of cases in which the Supreme Court granted review recently, was not an issue in these two higher education employment cases because Baylor is a private university. In an unremarkable sovereign immunity case decided on Good Friday, the Court reversed for reconsideration in light of new case law by the trial court, as it has done in other cases decided in per curiam opinions. See State of Texas v. Precision Solar Controls Inc. (Tex. April 5, 2007). In the latest sovereign immunity case, U.S. v. Boateng, the Texas Supreme Court had occasion to examine a different angle. In this case, immunity was invoked by the United States (on behalf of a Medicare intermediary), rather than a state entity or a local government. Moreover, the defensive plea was asserted in a bill a review proceeding in which the party seeking relief from a prior judgment necessarily appears as petitioner, rather than defendant. The Supreme Court denied the United States' petition, thus allowing the case to be remanded to the trial court on mandate of the court of appeals, which had reversed the trial court's order granting the bill of review without trial. The Supreme Court opined that fact issues regarding the extent of the immunity claims remained unresolved.
In a second sovereign immunity case in which a decision was handed down April 20, 2007, the Supreme Court examined whether a takings claim is the proper avenue for the owner of a patent who performs services under contract with the State to assert his intellectual prporty rights. The patent-holder, Herbert Holland, had filed suit claiming the State’s unauthorized use of his patented technology constituted a taking under Article I, section 17 of the Texas Constitution. Writing for the Court, Justice Harriet O'Neill, rejects the takings claim, when, as here, the State’s use is pursuant to colorable contract rights, even though the contract was not between the State and Holland individually. Because the State was not acting under its powers of eminent domain, Holland could not assert a valid takings claim against the State for the alleged unlawful use of his patent. Finding that the state retained its immunity from suit under these circumstances, the Supreme Court reverses the court of appeals' judgment and dismisses Holland’s claim for want of jurisdiction. State of Texas v. Holland, No. 05-0292 (Tex. Apr. 20, 2007)
Domestic Relations, Benefits, and Wills
Several of the most recent decisions of the Supreme Court impact family law practitioners and probate lawyers. In the Estate of Marvin Nash afforded the Court an opportunity to address the effect of a divorce on a will, while in Holmes v. Kent, in a per curiam opinon, the Court resolved a benefits dispute under the Teacher Retirement System (TRS) by finding that a former teacher had not followed proper procedure to remove her former husband as designated beneficiary of an optional annuity prior to her death. The Court adopted the position urged by the TRS, which had filed an amicus brief in which it argued that the statutory requirements for changes in beneficiaries should be strictly adhered to.
Although the Supreme Court does not hear criminal cases, it had occasion to grant habeas corpus relief in a case in which a party sought to enforce contractual alimony by having the ex-spouse jailed for nonpayment. Finding that failure to comply with a private agreement regarding alimony created a debt not enforceable by contempt, the Supreme Court ordered the ex-husband released from custody. In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam).
Variations on Malpractice: Doctor vs. Lawyer and Doctor vs. Doctor
Two of the decided cases involved health care liability claims. In Low v. Henry, the Supreme Court reviewed the propriety of a sanctions order for factually false allegations against physicians in a medical malpractice case. In an opinion authored by Justice Wainwright the Court agrees with the trial court that pleading abuse did occur, but remands for reconsideration of the $50,000 in sanctions imposed on the attorney, which the Court deems severe and not supported by sufficient evidence. Low v. Henry, 50 Tex. Sup. J. 606 (Tex. 2007). In Jackson v. Axelrad Justice Brister wrote the opinion for the court resolving a dispute over the responsibilities of a patient in the medical malpractice context, where the patient-plaintiff himself was also a medical doctor, rather than a lay person to whom special knowledge and expertise cannot be imputed, and should have reported a critical symptom.
Commercial Tenants Beware!
On the business law front, the Supreme Court addressed an important and recurring issue in commercial leasing. Writing for the unanimous court, Chief Justice Jefferson held that the "as-is" provision of the parties' contract, and the express warranty disclaimer contained therein were valid and enforceable, and thus barred the tenant's suit against the landlord.
Gym-N-I Playground, Inc. v. Snider, No. 05-0197 (Tex. Apr. 20, 2007)(Jefferson)
Second Bite at Out-of-State Defendants
In IRA Resources, Inc. v. Griego, an appeal from the trial court's ruling on a special appearance, the high court determines that the court of appeals had improperly found special jurisdiction, and remands with instructions that the court reexamine the case to see if the criteria for general jurisdiction were satisfied. The court of appeals had not reached that issue.
Mandamus Relief Granted (Conditionally, as is Customary)
The Supreme Court granted mandamus in two of the cases disposed of April 20, 2007. As it had done on several occasions before, it directed a trial court to enforce arbitration. In Re RLS Legal Solutions, LLC. It did so notwithstanding the concerns Chief Justice Jefferson had recently voiced in his State of the Judiciary Address about the erosion of legal and appellate remedies by private arbitration. In addition, the Court granted mandamus to require disqualification of counsel in a suit by a doctor against a medical center for revoking his hospital privileges, holding that there was no adequate other remedy. The hospital's attorney had previously been associated with the firm that represented the doctor and the representation of the current client would have required him to call into question the advice given the doctor by his former law partner. In Re Michael Angelo Basco, No. 05-0771 (Tex. Apr. 20, 2007)(per curiam)
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