Texas A&M University System, Texas Engineering Experiment Station and Dr. Mark McLellan v. Dr. Sefa Koseoglu

• Court: Court of Appeals of Texas
• Decided: March 9, 2005
• Docket: 10-03-00375-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-03-00375-CV

Texas A&M University System,

Texas Engineering Experiment

Station and Dr. Mark McLellan,

                                                                      Appellants

 v.

Dr. Sefa Koseoglu,

                                                                      Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 03-000679-CV-261

CONCURRING AND DISSENTING Opinion

          There comes a point in litigation when choices have to be made.  There are consequences of making choices.  When faced with a plea to the jurisdiction, a party can choose to amend or stand.  In Texas, we have extraordinarily liberal pleading rules.  And under the applicable standard of review, it’s like horseshoes, you get points for being close; you do not have to land a ringer every time.

          The ruling we should make should encourage the plaintiff to give it the best shot.  The plaintiff should make all the allegations that can be supported to bring the case within a waiver of sovereign immunity.  This is especially true once a plea to the jurisdiction has been filed.  Thereafter, by the passage of time, it is reasonable to conclude what is in the pleadings is all the plaintiff has to offer the trial court.  The trial court should be able to rule on the plea to the jurisdiction based upon what is on file in the way of pleadings and the evidence properly admitted at the hearing that supports a waiver.  Based upon that same record, we should be able to review the propriety of the trial court’s ruling.

          The alternative is what the majority is doing, encouraging the plaintiff to not plead all the information and never amend its pleadings until after it has suffered an adverse ruling.

          This is not an appeal of a dismissal after an adverse ruling, or no ruling, on special exceptions as was County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002).  Try as they might to change what Cameron says by rephrasing a quote, by inserting language it did not contain, into a parenthetical used in Cameron to explain a description of the case, see majority op. at pg. 14, Cameron does not hold that a plaintiff must be given an opportunity to replead after an adverse ruling on a plea to the jurisdiction.

          What the majority is actually holding is 1) that a plea to the jurisdiction is nothing more than a special exception, and 2) that the trial court must, that is must, give an advisory opinion of how it intends to rule on the plea, let some amount of time pass, though we do not know how much, and if no amended pleading is filed, then rule.

          What a waste of judicial resources, both trial and appellate.  I would hold that if the plaintiff has had a reasonable opportunity to evaluate the plea to the jurisdiction and amend the petition to meet the complaints raised in that plea, but fails or refuses to amend, the plaintiff must suffer the consequence of its decision.  Dr. Koseoglu had known for several months prior to the hearing that the jurisdiction of the trial court was being attacked.  He did nothing in response.

          Further, the bright-line rule which requires an opportunity to amend after an adverse ruling is contrary to the Texas Supreme Court’s instructions in Miranda.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).  We are to review what has been filed and determine, if we can, whether the plaintiff has affirmatively pleaded themselves out of court.  What we do not know is if there is an amended pleading, does this mean the movant has to start with a new plea to the jurisdiction?[1]

Accordingly, I concur in the result except to the extent the case as to Texas A&M University System and Texas Engineering Experiment Station is remanded to allow Koseoglu to amend his petition.  While Koseoglu asserts that he can replead to bring himself within the waiver of the Tort Claims Act, the facts alleged in his petition, if proven, affirmatively place him outside waiver of sovereign immunity in the Tort Claims Act.

Based upon the allegations made by Koseoglu, there is no amendment which will give the trial court jurisdiction.  Accordingly, because the allegations affirmatively demonstrate that the trial court has no jurisdiction, we should render a judgment of dismissal with prejudice as to these defendants.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) and Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004).

                                                                        TOM GRAY

                                                                        Chief Justice

Concurring and dissenting opinion delivered and filed March 9, 2005

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[1] After all, this is not like a special exception where the court’s ruling is specific enough to know what pleadings may bring some claim within the waiver and what claim may still not be adequately pled to show that it is not within an exception to governmental immunity.  See e.g., City of Waco v. Wright, No. 10-04-00045-CV, 2004 Tex. App. LEXIS 10117 (Tex. App.—Waco Nov. 10, 2005, no pet.)(mem. op.)(From the majority opinion in City of Waco v. Wright, it is impossible to tell what claim has been adequately pled. Id. at *2-4 (Gray, C.J., concurring)). I recognize that some Supreme Court Justices consider a plea to the jurisdiction as an arcane method by which to attack the trial court’s jurisdiction.  See Miranda, 133 S.W.3d at 239-245 (Brister, J., dissenting).  But the Legislature specifically identified this procedural vehicle as a proper vehicle through which to address the problem of suits against governmental entities.  The vehicle having been chosen by the Legislature, we have little choice but to ride it.