Opinion

Reversed and Rendered, Opinion Issued July 10, 2003 Withdrawn; and

Substituted Memorandum Opinion filed August 7, 2003

Reversed and

Rendered, Opinion Issued July 10, 2003 Withdrawn;

and Substituted Memorandum Opinion filed August 7, 2003 .

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-01276-CV

_______________

UNIVERSITY OF TEXAS MEDICAL

BRANCH

AT GALVESTON , Appellant

V.

PATRICIA M. HARRISON, MICHAEL C. MURPHY, BILLY G. ODOM,

B. ALAN ODOM,

LISA ODOM, DAVID P. ODOM, TAMARA L. ODOM,

GARY B. BLACK,

CHARLES H. McBRIDE , MIKE McBRIDE ,

JOHNNA J.

HIGGINBOTHAM, TAMARA STELLY, ROBERT THOMAS, CELESTE FONTENOT, RUTH AHMED,

BARBARA ERWIN,

EMILY ERWIN

HEBERT, THOMAS KELLEY ERWIN,

HENRY BLAKE

ERWIN and SIDNEY BROWN, Appellees

________________________________________________________________________

On Appeal from

the 122nd District Court

Galveston County , Texas

Trial Court

Cause No. 02CV0820

________________________________________________________________________

S U B S T I T U T E

D M E M O R A N D U M O P I N I O N

Appellees ’ motion for rehearing is overruled, the opinion

issued in this case on July 10,

2003 is withdrawn, and the following opinion is issued in its

place.

In this suit for mishandling willed

bodies and remains, the University of Texas Medical Branch at Galveston

(“UTMB”) appeals the denial of its plea to the jurisdiction on the ground

(among others) that the State has not waived its immunity from suit for the

claims asserted against it in this case.

We reverse and render judgment for UTMB.

Background

Patricia M. Harrison, Michael C.

Murphy, Billy G. Odom, B. Alan Odom, Lisa Odom, David P. Odom, Tamara L. Odom,

Gary B. Black, Charles H. McBride, Mike McBride, Johnna

J. Higginbotham, Tamara Stelly , Robert Thomas,

Celeste Fontenot, Ruth Ahmed, Barbara Erwin, Emily Erwin Herbert, Thomas Kelley

Erwin, Henry Blake Erwin and Sidney Brown (collectively, “ appellees ”)

filed suit against UTMB alleging that, after they donated the bodies (the

“bodies”) of their family members to UTMB to advance the cause of medicine,

UTMB sold their family members’ body parts to private companies for profit and

failed to assure that the ashes returned to appellees

following cremation of the bodies were those, and only those, of each

respective appellee’s family member. Appellees asserted

claims against UTMB for negligence, breach of contract, fraud, and intentional

infliction of emotional distress and sought injunctive relief and damages for

emotional distress and mental anguish.

UTMB filed a plea to the jurisdiction on the ground, among others, that

the State did not waive immunity from suit for the claims asserted by appellees . The trial

court denied UTMB’s plea to the jurisdiction. [1]

Standard of Review

A unit of state government is immune

from suit unless the State consents to suit.

Dallas Area Rapid Transit v. Whitley , 104

S.W.3d 540, 542 ( Tex.

2003). Governmental immunity from suit

defeats a trial court’s subject matter jurisdiction. Id . Therefore, in a suit against a governmental

unit, a plaintiff must affirmatively demonstrate the court’s jurisdiction by

alleging a waiver of immunity. Id . In reviewing a ruling on a plea to the

jurisdiction based on governmental immunity, we determine from the facts

alleged by the plaintiff and the evidence relevant to the jurisdictional issue

whether the claim comes within a waiver of immunity. Id .

Conventional Contract Claims

UTMB’s

first issue argues, in part, that the trial court lacked jurisdiction over appellees ’ contract claims because the State has not waived

its immunity from suit as to those claims.

When the State contracts with a

private party, it thereby waives immunity from liability, but not immunity from

suit, which can be waived only by its express consent. Catalina

Dev., Inc. v. County of El Paso , 46 Tex. Sup. Ct.

J. 636, 637 ( May 8,

2003 ). For the Legislature

to waive the State’s sovereign immunity, a statute or resolution must contain a

clear and unambiguous expression of the Legislature’s waiver of immunity. Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 696 ( Tex. 2003).

In this case, appellees

did not plead or offer evidence of any Legislative consent to sue in the form

of a statute or resolution. Instead,

citing section 2260.002 of the Government Code, they contend that the statutory

immunity UTMB asserts does not apply to a claim for personal injury arising

from the breach of a contract. [2] See

Tex. Gov’t

Code Ann. § 2260.002 (Vernon Supp. 2003) (stating that chapter 2260 does

not apply to a claim for personal injury arising from the breach of a

contract).

Chapter 2260 of the Government Code

retains sovereign immunity from suit in certain breach of contract cases

against the State but provides an administrative process to resolve those

claims. Gen. Servs . Comm’n

v. Little-Tex Insulation Co., 39 S.W.3d 591, 595 ( Tex.

2001). This administrative scheme

applies to all written contracts for the sale of goods, services, or

construction. See Tex. Gov’t

Code Ann. § 2260.001(a)(1) (Vernon 2000); Little-Tex , 39 S.W.3d at 595 .

Absent a special statutory consent to sue, a party may not pursue a

breach of contract claim against the State without participating in Chapter

2260’s administrative process. Little-Tex , 39 S.W.3d at 598 . Therefore, the fact that Chapter 2260 does

not apply to appellees ’ claims (for personal injury)

does not mean that the State has no immunity, but instead that Chapter 2260 is

not available to appellees as a means to resolve

their claims despite the State’s immunity.

Because appellees failed to plead, or

otherwise establish, a consent to sue the State for their contract claims, the

trial court had no jurisdiction over those claims. Accordingly, we sustain UTMB’s

first issue to that extent.

Special Relationship Claims

UTMB’s

first issue further contends that appellees ’

remaining claims for mental anguish, although framed as tort claims, are, in

reality, contract claims for which the State is similarly immune from suit.

Because Texas does not

recognize a general legal duty not to negligently inflict mental anguish,

mental anguish damages are recoverable only for the breach of some other legal

duty. City of Tyler v. Likes , 962 S.W.2d 489, 494 ( Tex. 1997); Boyles v. Kerr , 855 S.W.2d 593, 594 ( Tex.

1993). Therefore, negligently inflicted

emotional anguish may be an element of recoverable damage where a defendant

violates some other legal duty to a plaintiff, [3] depending,

in part, on the nature of the duty breached.

Likes , 962 S.W.2d at 494 . With other exceptions not applicable to this

case, mental anguish damages are recoverable for the breach of a duty arising

out of certain special relationships, including a very limited number of

contracts dealing with intensely emotional noncommercial subjects, such as

preparing a corpse for burial. See id. at 496 ; Restatement (Second) of Contracts § 353 cmt .

a, illus. 3 (1981) (recognizing emotional disturbance as an element of recovery

for breach of contracts for carriage or proper disposition of dead bodies).

Where a defendant’s conduct would

give rise to liability independent of the fact that a contract exists between

the parties, the plaintiff’s claim may also sound in tort. DeWitt County Elec. Co-op v. Parks , 1 S.W.3d 96, 105 ( Tex.

1999). Conversely, if the defendant’s conduct

would give rise to liability only because it breaches the parties’ agreement,

the plaintiff’s claim ordinarily sounds only in contract. Id . Thus, for example, a person who enters a

neighbor’s property and cuts down trees with no contractual right to do so can

be held liable in tort. Id . But if a contract spells out the parties’

respective rights about whether trees may be cut, then the contract, and not

common law negligence, governs any dispute about whether or how trees may have

been cut, i.e. , even if any failure

to comply with the contract resulted from negligence. See id . Therefore, the character of a claim, as

between tort and contract, is determined

by the source of the duty breached, not whether the breach results from

negligence (versus some other cause such as inability to perform or intentional

conduct).

In this case, except for their

conventional contract claims (addressed in the preceding section), the causes

of action asserted by appellees are all based on

their alleged special relationship with UTMB arising from the contractual

arrangement to donate the bodies. [4] At the bottom of the first page of the “Will

Form” constituting the parties’ agreement, the donor was asked to choose

whether the ashes were to be (1) returned to the donor’s family, or (2)

scattered in the Gulf of Mexico in an

annual observance. Apart from the duties

created by this contractual stipulation, appellees

have not cited and we have not found, any Texas case law

recognizing a tort duty that UTMB owed to them and allegedly breached. Because a claim for mental anguish damages is

not itself a distinct cause of action (but only an element of recovery for the

breach of another duty), and because UTMB is alleged to have breached no tort

duty that is independent from its contractual duties, we conclude that appellees ’ special relationship claims for mental anguish

damages sound in contract rather than tort, [5] and are

thereby subject to the requirement for consent (discussed in the preceding

section) to overcome the State’s immunity from suit. Because no such consent has been alleged or

proved, we sustain the State’s first issue as to appellees ’

special relationship claims.

Accordingly, we reverse the judgment of the trial court and render

judgment that UTMB’s plea to the jurisdiction be

granted and that the case be dismissed for lack of subject matter jurisdiction.

/s/ Richard H. Edelman

Justice

Judgment rendered and Substituted

Memorandum Opinion filed August 7,

2003 .

Panel consists of Chief Justice

Brister and Justices Edelman and Guzman.

[1] See Tex. Civ . Prac . & Rem . Code Ann.

§ 51.014(a)(8) (Vernon Supp. 2003) (allowing interlocutory appeal of denial of

a plea to the jurisdiction by a governmental unit).

[2] A footnote to appellees ’

brief also contends that UTMB waived its immunity by accepting the benefits of

its contracts with appellees in taking and using the

willed bodies. Although the Texas

Supreme Court has alluded to the possibility that the State could waive its

immunity from suit by conduct, it has yet to find such an equitable waiver of

immunity or to prescribe the type of situation that might qualify for it. See

Catalina , 46 Tex. Sup. Ct.

J. at 637. As an intermediate appellate

court, we defer to the Texas Supreme Court to decide when, if ever, and under

what circumstances such a contention might become sustainable.

[3] Thus, unlike tortious

interference with contract and other separate tort causes of action that can

arise in the context of a contractual relationship, a claim for mental anguish

damages based on a special relationship is not a distinct cause of action, but

merely an element of recovery for the breach of another legal duty.

[4] Appellees have not

asserted a “bystander” cause of action in this case.

[5] Opinions discussing the special

relationship cause of action sometimes describe it in terms that blur the

distinction between contract and tort claims.

See, e.g., Pat H. Foley & Co.

v. Wyatt , 442 S.W.2d 904, 906 (Tex. Civ .

App.—Houston [14th Dist.] 1969, writ ref’d n.r.e .) (“While the plaintiff’s pleadings additionally

allege negligence, an initial basic allegation is that the defendant failed to

perform according to its contractual responsibility. This is not a claim for mental anguish founded

solely in negligence.”). However, if an

independent negligence duty does not otherwise exist, we can find no authority

or rationale for holding that a negligent breach of contract somehow transforms

the associated contract claim into a tort claim or creates a new tort claim.