City of Greenville v. Reeves

165 S.W.3d 920, 2005 Tex. App. LEXIS 4993, 2005 WL 1524599

• Court: Court of Appeals of Texas
• Decided: June 29, 2005
• Docket: 05-04-00740-CV
• Status: Published

Opinions

OPINION

Opinion by

Justice RICHTER.

In this interlocutory appeal, the City of Greenville contends that the trial judge erred in denying its plea to the jurisdiction. We agree. Accordingly, we reverse the trial court’s order denying the plea to the jurisdiction and render judgment dismissing the case against the City for want of jurisdiction.

BACKGROUND

Claiming that the City had failed to pay for flooring material and labor provided in the construction of a City fire station, ap-pellees filed a lawsuit against the City alleging breach of an oral contract and, in the alternative, quantum meruit. The City answered this action, asserting, among other things, the defense of sovereign immunity. The City also filed a plea to the jurisdiction, again asserting immunity from suit. The trial court denied the plea, and this appeal ensued. See Tex. Civ. Prag. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp. 200-05) (allowing interlocutory appeal from order denying plea to jurisdiction).

DISCUSSION

Appellees argue that the trial court properly denied the City’s plea to the jurisdiction because the City’s immunity from suit was waived by the Texas Legislature in the adoption of section 51.075 of the local government code and by the City in its adoption of section 5 of its city charter. We disagree.

Standard and Scope of Review

A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a trial court has subject matter jurisdiction is a question of law to be reviewed de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In performing this review, we do not look to the merits of the plaintiffs case but consider only the pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001)).

Sovereign Immunity

Sovereign immunity protects the State, its agencies, and its officials from lawsuits for damages absent legislative consent. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The sovereign immunity of the State inures to the benefit of a municipality to the extent the municipality engages in the exercise of governmental functions. City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.1997). According to the supreme court, “[s]over-eign immunity embraces two principles: immunity from suit and immunity from liability. First, the State retains immunity from suit, without legislative consent, even if the State’s liability is not disputed. Second, the State retains immunity from liability though the Legislature has granted consent to the suit.” Id. at 405 (citations omitted) (emphasis omitted). When the State contracts with a private person, it waives immunity from liability, but not immunity from suit. Id. at 408. Immunity from suit bars a suit against the State unless the State expressly gives its consent to the suit. Id. at 405. The State may consent to suit by statute or by legislative resolution. Id. Express consent is required to show that immunity from a breach of contract suit has been waived. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex.2002). Legislative consent for suit or any other sovereign immunity waiver must be “by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2005); Pelzel, 77 S.W.3d at 248; Fed. Sign, 951 S.W.2d at 405. When determining whether there is a clear and unambiguous waiver of immunity from suit, we generally resolve any ambiguity in favor of retaining immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex.2003).

Section 51.075

Appellees contend section 51.075 of the Texas Local Government Code waives the City’s immunity from suit. Section 51.075 provides that a home-rule municipality “may plead and be impleaded in any court.” Tex. Local Gov’t Code Ann. § 51.075 (Vernon 1999). In construing this language, we have previously concluded that section 51.075 is not a clear and unambiguous waiver of the City’s immunity from suit. City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex.App.-Dallas 2002), rev’d on other grounds, 47 Tex. Sup.Ct. J. 408, 2004 WL 726906 (Tex. Apr. 2, 2004) (per curiam).

Appellees ask us to reconsider this conclusion. We revisited this issue recently in City of Carrollton v. McMahon Contracting, L.P., 134 S.W.3d 925 (Tex.App.-Dallas 2004, pet. filed). In deciding McMahon, we used the four factors set forth by the supreme court in Taylor to determine whether the Legislature has clearly and unambiguously waived sovereign immunity: (i) the statute waives immunity beyond doubt; (ii) ambiguities are resolved in favor of retaining immunity; (iii) if the Legislature requires the State be joined in a lawsuit in which immunity would otherwise attach, the Legislature has intentionally waived the State’s sovereign immunity; and (iv) whether the statute also provides an objective limitation on the State’s potential liability. See Taylor, 106 S.W.3d at 697-98; see also City of Mexia v. Tooke, 115 S.W.3d 618, 623-24 (Tex.App.-Waco 2003, pet. granted). We concluded that section 51.075 is not meaningless without waiver of immunity because the section could speak to a city’s capacity to participate in litigation when immunity has been waived or to take action to preserve immunity. See McMahon, 134 S.W.3d at 927. We also noted that often a statute will provide that “sovereign immunity to suit is waived” or use similar unambiguous language when the Legislature intends to waive immunity. See id. We did not apply the third or the fourth Taylor factors because neither is implicated in section 51.075. Based on this review, we again concluded that section 51.075 does not effect a waiver of the City’s immunity “by clear and unambiguous language.” See McMahon, 134 S.W.3d at 928.

We again note that the supreme court has never held that the language “plead and implead” is a clear and unambiguous waiver of immunity from suit. See id. Therefore, we decline to reconsider our previous holdings, and we thus conclude that section 51.075 does not constitute a clear and unambiguous waiver of the City’s immunity from suit.

Section 5 of the City Charter

Section 5 of the City charter, which is entitled “Powers of the City,” states that the City may “sue and be sued” and may “plead and be impleaded in all courts.” We have previously held that identical language in a city charter provision that specifically enumerated the city’s powers did not waive the city’s sovereign immunity. See Reata, 83 S.W.3d at 398. We reiterate that holding here. This language in the City’s charter simply speaks to the City’s capacity to sue and its capacity to be sued when immunity has been waived. See id.

We sustain the City’s sole issue and hold the trial judge erred in denying the City’s plea to the jurisdiction. We reverse the trial court’s order denying the plea to the jurisdiction and render judgment dismissing the case against the City for want of jurisdiction.

CONCLUSION

LANG, J. concurring.