City of Arlington, Texas v. Charles H. Matthews

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-04-317-CV

CITY OF ARLINGTON ,

TEXAS APPELLANT

V.

CHARLES H. MATTHEWS APPELLEE

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FROM

THE 342ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM

OPINION [1]

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The City of Arlington appeals

from the trial court = s denial of

its plea to the jurisdiction on Charles H. Matthews = claims. The primary issue we

are called upon to decide is whether the A plead and be impleaded @ provision of section 51.075 of the Texas Local Government Code

constitutes a waiver of the City = s sovereign immunity from suit for Matthews = intentional tort and breach of contract claims. Based on stare decisis, we hold that this

provision does waive immunity for the breach of contract claims but does not

waive immunity for the intentional tort claims.

Therefore, we affirm in part and reverse and render in part.

The facts of this case are

well known to the parties and the relevant case law in this appellate district

is settled. [2]

A plea to the jurisdiction

challenges the trial court = s authority to determine the subject matter of the action. [3] Whether the trial court had subject matter

jurisdiction is a question of law that we review de novo. [4] The plaintiff has the burden of alleging

facts that affirmatively establish the trial court = s subject matter jurisdiction. [5] In determining whether jurisdiction exists,

we accept the allegations in the pleadings as true and construe them in favor

of the pleader. [6]

We must also consider evidence relevant to jurisdiction when it is necessary to

resolve the jurisdictional issue raised. [7]

Governmental entities such as

the City are immune from suit unless the legislature has expressly consented to

the suit. [8] Absent legislative consent to sue a

governmental entity, the trial court lacks subject matter jurisdiction over the

case. [9]

In its second issue, the City

complains that the trial court erred by denying its plea to the jurisdiction on

Matthews = breach of contract claims because the City = s immunity from suit for these claims has not been waived under either

section 51.075 of the local government code or the City = s charter. [10]

Section 51.075 of the local

government code provides that a home‑rule municipality such as the City A may plead and be impleaded in any court. @ [11] Various panels of this court have held that this provision

constitutes a waiver of immunity from suit for breach of contract claims. [12] Accordingly, under controlling precedent of

this court, the City = s sovereign

immunity from suit for Matthews = breach of contract claims is waived. [13] We overrule the City = s second issue. [14]

We now turn to the question

raised in Matthews = first issue

of whether the City is immune from suit for Matthews = intentional tort claims. The

Texas Tort Claims Act provides that a city = s immunity from suit is not waived for claims arising from intentional

torts. [15] Notwithstanding this provision, Matthews

contends that the City = s immunity

from suit has been waived by section 51.075 of the local government code. The most recent pronouncement from this

court, however, is that the specific provisions of the Tort Claims Act trump

general waiver provisions such as the one contained in section 51.075. [16] Accordingly, we are required by controlling

precedent of this court to hold that the City = s immunity from suit for Matthews = tort claims has not been waived. [17]

Matthews also contends that

the City = s misconduct arose from the exercise of its proprietary functions, for

which a municipality has no sovereign immunity from suit. [18] We disagree.

Matthews = tort claims

are based on the City = s alleged

intentional misconduct in interfering with his post-settlement employment and

attempts to obtain employment. [19] These allegations relate to the operation of

a police department, the hiring and firing of city employees, as well as other

personnel actions, [20]

and the provision of police protection, all of which are governmental

functions. [21] Thus, Matthews = claims arise from the City = s exercise of its governmental functions, not its proprietary

functions, and the City is immune from suit for these claims. [22]

For the foregoing reasons, we

hold that the City has not waived its sovereign immunity from suit for Matthews = tort claims. Therefore, the trial

court erred by denying the City = s plea to the jurisdiction as to those claims. We sustain the City = s first issue.

Having disposed of Matthews = issues on appeal, we reverse the trial court = s denial of the City = s plea to the jurisdiction as to Matthews = tort claims and render judgment dismissing those claims. We affirm the remainder of the trial court = s judgment.

JOHN CAYCE

CHIEF JUSTICE

PANEL A: CAYCE,

C.J.; LIVINGSTON and MCCOY, JJ.

LIVINGSTON, J. concurs without opinion.

DELIVERED:

February 9, 2006

[1] See Tex. R. App. P. 47.4.

[2] We

are aware that there is a split of authority among the courts of appeals

regarding whether A plead

and be impleaded @ and A sue

and be sued @

waive governmental immunity from suit and that these issues are currently

pending before the Texas Supreme Court. Compare

City of Mexia v. Tooke, 115 S.W.3d 618 , 621‑23 (Tex. App. C Waco

2003, pet. granted) (holding that A plead and be impleaded @ does

not constitute clear and unambiguous waiver of immunity from suit, but

recognizing that A sue

and be sued @

provides requisite clarity to establish waiver of immunity from suit) , with

City of Greenville v. Reeves, 165 S.W.3d 920, 923 (Tex. App. C Dallas

2005, pet. filed), City of Lubbock v. Adams, 149 S.W.3d 820 , 824‑25

(Tex. App. C Amarillo

2004, pet. filed), United Water Servs., Inc. v. City of Houston, 137

S.W.3d 747, 755 (Tex. App. C Houston [1st Dist.] 2004,

pet. filed), City of Houston v. Clear Channel Outdoor, Inc., 161 S.W.3d

3, 4-5 (Tex. App. C Houston

[14th Dist.] 2004, pet. filed), Goerlitz v. City of Midland, 101 S.W.3d

573, 577 (Tex. App. C El

Paso 2003, pet. filed) (all holding that A plead and be impleaded @ or A sue

and be sued @

language waives immunity from suit), and City of Carrollton v. McMahon

Contracting, Inc., 134 S.W.3d 925 , 927‑28 (Tex. App. C Dallas

2004, pet. filed), Satterfield & Pontikes Constr., Inc. v. Irving ISD,

123 S.W.3d 63, 68 (Tex. App. C Dallas 2003, pet. filed), Townsend

v. Mem = l

Med. Ctr., 529 S.W.2d 264, 267 (Tex. Civ. App. C Corpus

Christi 1975, writ ref = d

n.r.e.) (all holding that such language does not waive immunity from suit).

[3] Tex.

Dep = t of

Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

[4] Tex.

Natural Res. Conservation Comm = n v. IT-Davy, 74

S.W.3d 849, 855 (Tex. 2002); Mogayzel v. Tex. Dep = t of

Transp., 66 S.W.3d 459, 463 (Tex. App. C Fort

Worth 2001, pet. denied).

[5] Tex.

Ass = n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993).

[6] Id.;

Tex. Dep = t of

MHMR v. Lee, 38 S.W.3d 862, 865 (Tex. App. C Fort

Worth 2001, pet. denied).

[7] Bland

ISD v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

[8] Tex.

Dep = t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004); Jones, 8 S.W.3d at 638 .

[9] Miranda, 133

S.W.3d at 224 ; Jones, 8 S.W.3d at 638 .

[10] The

City = s

charter also provides that the City A shall . . . be capable of . .

. suing and being sued, impleading and being impleaded . . . in all courts and

tribunals. @

[11] Tex. Loc. Gov = t Code Ann. '

51.075 (Vernon 1999).

[12] See

Cannon v. City of Hurst, No. 2-04-00049-CV, 2005 WL 3118763 , at

*1 (Tex. App. C Fort

Worth Nov. 23, 2005, no pet.) (mem. op.); DeSoto Wildwood Dev., Inc. v. City

of Lewisville, No. 2-05-00149-CV, 2006 WL 133485 at *8 (Tex. App. C Fort

Worth January 19, 2006 no pet. h.) (op on reh = g); Serv.

Employment Redevelopment v. Fort Worth ISD, 163 S.W.3d 142, 155 (Tex. App. C Fort

Worth 2005, pet. filed); Avmanco, Inc. v. City of Grand Prairie, 835

S.W.2d 160, 165 (Tex. App. C Fort Worth 1992, writ dism = d as

moot). The City = s

reliance on City of Fort Worth v. Pastusek Indus., Inc., is misplaced

because we did not construe the meaning of A plead and be impleaded @ or A sue

and be sued @ in

that case. See 48 S.W.3d 366, 372

(Tex. App. C Fort

Worth 2001, no pet.).

[13] See

Grapevine Excavation, Inc. v. Maryland Lloyds, 35

S.W.3d 1, 5 (Tex. 2000) (holding stare decisis has its greatest force in

statutory construction cases); Mobil Oil Corp. v. Shores, 128 S.W.3d

718, 722 (Tex. App. C Fort

Worth 2004, no pet.) (op. on reh = g) (basing decision in part

on binding precedent of this court).

[14] The

City = s

alternative argument that the trial court lacks subject matter jurisdiction

over Matthews =

breach of contract claims because his pleadings and the evidence relevant to

jurisdiction demonstrate that A none of the wrongs alleged in

his pleadings fall within the scope of the [parties =

agreement], @ is

without merit. The face of Matthews =

pleadings conclusively shows that he does indeed allege breaches of the

agreement = s

provisions.

[15] Tex. Civ. Prac. & Rem. Code Ann. '

101.057(2) (Vernon 2005). All of

Matthews = tort

claims are based on the City = s alleged intentional

misconduct.

[16] See

Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 450 (Tex.

App. C Fort

Worth 2001, no pet.) (holding that sue and be sued language does not waive

immunity from suit under Tort Claims Act); see also Serv. Employment

Redevelopment, 163 S.W.3d at 150 (citing Henry with approval). But see Knowles v. City of Granbury,

953 S.W.2d 19, 21, 23 (Tex. App. C Fort Worth 1997, pet. denied)

(holding, without analysis, that A sue and be sued @

waived city = s

immunity from suit for both tort and breach of contract claims).

[17] See

Grapevine Excavation, Inc., 35 S.W.3d at 5 ; Mobil Oil Corp.,

128 S.W.3d at 722 . We are unpersuaded by

Matthews =

argument, based on the supreme court = s plurality opinion in Texas

A & M University‑Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002),

that the City waived its immunity from suit for his intentional tort claims by

entering into the settlement agreement. Lawson is inapposite because the

governmental entity in that case settled a claim for which it was not

immune from suit. Id. at 518-19 .

And, as a plurality opinion, Lawson is A not

authority for determination of other cases, either in [the supreme court] or

lower courts. @ Univ. of Tex. Med. Branch v. York, 871

S.W.2d 175, 177 (Tex. 1994); accord City of Fort Worth v. Crockett, 142

S.W.3d 550, 554 (Tex. App. C Fort Worth 2004, pet. denied)

(op. on reh = g). Further, the Tort Claims Act does not provide

for waiver of immunity by contract.

[18] The

Tort Claims Act does not apply if a suit concerns a city = s

performance of a proprietary rather than a governmental function. Tex.

Civ. Prac. & Rem. Code Ann. ' 101.0215(b); City of San

Antonio v. Butler, 131 S.W.3d 170, 177 (Tex. App. C San

Antonio 2004, pet. filed); Oldfield v. City of Houston, 15 S.W.3d 219,

225 (Tex. App. C Houston

[14th Dist.] 2000, pet. denied).

[19] Matthews

asserts that the City A actually

intentionally interfered with prospective employment for [Matthews] over a

period of years, @ by

releasing damaging information about his employment with the police department

to prospective employers, A as well as compelling a then

current employer (store) to terminate [Matthews] or lose all other Arlington

Police Department officers providing security on the store. @ Matthews also alleges that a private club at

which he had found work was targeted by the police department and eventually

closed.

[20] City

of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995); City

of Dallas v. Moreau, 718 S.W.2d 776, 779-80 (Tex. App. C Corpus

Christi 1986, writ ref = d

n.r.e.).

[21] Tex. Civ. Prac. & Rem. Code Ann. '

101.0215(a)(1). The City = s

alleged interference with its own contract with Matthews will not support a tortious

interference claim. See Morgan

Stanley & Co. v. Tex. Oil Co., 958 S.W.2d 178, 179 (Tex. 1997) ( A a

person must be a stranger to a contract to tortiously interfere with it @ ).

[22] Tex. Civ. Prac. & Rem. Code Ann. '

101.057(2).