the City of Houston v. Atser, L.P.

Concurring and dissenting opinion issued April 5, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00240-CV

———————————

The City of Houston , Appellant

V.

Atser, L.P. , Appellee

On Appeal from the 334th Judicial District Court

Harris County, Texas

Trial Court Case No. 2008-48039

CONCURRING AND DISSENTING MEMORANDUM OPINION

I respectfully

concur in the judgment with respect to the first issue (the $5M claim),

and I respectfully dissent from the judgment with respect to the second (the

$250K claim). Although a majority

of the panel has agreed on the judgment in this appeal, see Tex. R. App. P.

41.1(a), the fact that a justice concurring in the judgment has declined to

provide or join any legal opinion means that there is no majority reasoning to

explain the outcome, except to the extent that the two opinions partially agree

about why we lack appellate jurisdiction with respect to the City’s $5M

claim. The panel opinions in this appeal

thus lack any precedential value except to the extent of our agreement as

described in this opinion. Cf. Univ. of Texas Med. Branch at Galveston

v. York , 871 S.W.2d 175, 177 (Tex. 1994) (noting that plurality opinions

are “not authority for determination of other cases” because “the principles of

law involved have not been agreed upon by a majority of the sitting court”); Rothenberg v. State , 176 S.W.3d 53, 57

(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d )

(observing that plurality opinions may be persuasive authorities, but they lack

precedential value).

I conclude that this appeal should

be dismissed in its entirety for want of interlocutory appellate

jurisdiction. “Appellate courts have

jurisdiction to consider immediate appeals of interlocutory orders only if a

statute explicitly provides such jurisdiction.” Texas

A & M Univ. Sys. v. Koseoglu , 233

S.W.3d 835, 840 (Tex. 2007) (citing Stary v. DeBord , 967 S.W.2d 352 , 352–53 (Tex. 1998)). The City appealed only from the trial court’s

March 9, 2010 interlocutory order

denying its motion for partial summary judgment, and we have interlocutory

jurisdiction only if that order denied a plea to the jurisdiction. See Tex. Civ. Prac . & Rem. Code Ann. § 51.014(a )( 8) (West

2008). A summary judgment motion that

“clearly challenged the trial court’s subject matter jurisdiction” is treated

as a plea to the jurisdiction for the purpose of determining interlocutory

appellate jurisdiction. Thomas v. Long , 207

S.W.3d 334, 339 (Tex. 2006). The availability of an interlocutory

appeal is not “constrained by the form or caption of a pleading,” but will

instead be determined by “the substance of a motion to determine the relief

sought, not merely its title.” Id. (quoting Surgitek , Bristol –Myers

Corp. v. Abel , 997 S.W.2d 598, 601 (Tex. 1999)).

The general thrust of

the City’s arguments on appeal is that its motion for partial summary judgment

challenged the existence of jurisdictional facts necessary to plead and prove the

waiver of governmental immunity for contract claims pursuant to Local

Government Code section 271.152. We cannot address the merits of the City’s

arguments on appeal because, as I explain below, they were not presented to the

trial court as jurisdictional arguments.

The statute authorizing an appeal from an interlocutory order that “grants

or denies a plea to the jurisdiction by a governmental unit as that term is

defined in Section 101.001 [of the Civil Practice and Remedies Code],” Tex. Civ. Prac .

& Rem. Code Ann. § 51.014(a )( 8), is

strictly construed as a “narrow exception to the general rule that only final

judgments are appealable.” Koseoglu , 233

S.W.3d at 841 (quoting Bally Total

Fitness Corp. v. Jackson , 53 S.W.3d 352, 355 (Tex. 2001)). Although the question of the trial court’s subject

matter jurisdiction can be raised for the first time on appeal by the court or

by the parties, see Texas Ass’n

of Bus. v. Texas Air Control Bd. ,

852 S.W.2d 440 , 445–46 (Tex. 1993), that principle presupposes that we are

properly exercising our appellate jurisdiction, and on this record we cannot do

so.

$5M

claim.

With respect to the first issue, a

careful examination of the substance of the motion for partial summary judgment

reveals that the City did not “clearly challenge” the trial court’s subject

matter jurisdiction as to ATSER’s $5M claim.

Although the argument, excerpted in the majority’s opinion, made

reference to the governmental immunity statute, it did so only with specific

reference to the kinds of claims that ATSER could not pursue against a

governmental unit, i.e., a purported “tort or quasi-contract claim” and “these

types of claims.” ATSER did not allege

such claims in the third amended petition, the live pleading. Thus, in context, the City’s reference to the

statutory waiver of governmental immunity under section 271.152 was

a straw man argument because ATSER had already voluntarily dropped its unjust

enrichment and quantum meruit claims from the suit. The real issue is whether the City is immune

from suit for the contract claim.

The City relies upon ICI Construction, Inc. v. Orangefield Independent School District , 339 S.W.3d 235

(Tex. App.—Beaumont 2011, no pet.), as an example in which an appellate court

upheld a trial court’s order granting a plea to the jurisdiction based upon the

plaintiff’s failure to establish the existence of an actionable contract within

the scope of the waiver of governmental immunity, thus demonstrating the

absence of jurisdictional facts necessary for the case to proceed. See ICI

Construction , 339 S.W.3d at 239 . That authority is inapplicable because in

this case the City did not present an argument in its motion for partial

summary judgment that the alleged infirmities in ATSER’s contract claim

deprived the court of subject matter jurisdiction. Quite to the contrary of suggesting immunity

from suit, the City’s motion acknowledged that “ Atser’s

only possibility of recovery lies in an action for breach of contract, which is

Atser’s only remaining claim.”

Accordingly, I concur

in the judgment that the appeal must be dismissed as to the $5M claim for lack

of appellate jurisdiction. However I

would not parse the motion to distinguish between the City’s no-evidence and

traditional summary judgment grounds, as Justice Keyes has done in her opinion. The City’s motion either challenged subject matter

jurisdiction over the $5M claim or it did not.

I agree with Justice Keyes that it did not. We therefore lack appellate jurisdiction for

interlocutory review of the trial court’s subject matter jurisdiction over the $5M claim.

$250K

claim.

With respect to the City’s second issue,

a close review of the City’s motion demonstrates that it also did not challenge

subject matter jurisdiction over the $250K claim. “Sovereign immunity encompasses two

principles: immunity from suit and immunity from liability.” Gen. Servs . Comm’n v. Little-Tex Insulation Co., Inc. ,

39 S.W.3d 591, 594 (Tex. 2001). The City did not argue that it was immune from suit for the

$250K claim. As

noted in the lead opinion, with respect to the $250K claim the City’s motion

only disclaims liability for lost profits because ATSER is prohibited by

statute from obtaining that type of damages.

See Tex. Loc. Gov’t Code Ann.

§ 271.153(b )( 1) (West 2005) (excluding recovery

of consequential damages for contract claim against local governmental entity,

except to extent allowed under section 271.153(a)(1)). S uch an argument does

not implicate the City’s immunity from suit; rather, it only implicates

immunity from liability for damages. See Kirby Lake Dev., Ltd. v. Clear Lake Water

Auth. , 320 S.W.3d 829, 840 (Tex. 2010); City of Houston v. S. Elec. Servs ., Inc. , 273 S.W.3d 739 , 743 –44 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied).

Because the motion for

partial summary judgment only claimed immunity from liability for the $250K

claim, the City did not challenge the trial court’s subject matter jurisdiction

over that claim. “Immunity from

liability does not affect a court’s jurisdiction to hear a case.” Texas

Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999) (per curiam ); see also

City of Houston v. Williams , 353 S.W.3d 128, 133 (Tex. 2011) (“Immunity

from suit deprives a trial court of jurisdiction.” ( citing

Jones , 8 S.W.3d at 638–39)); S. Elec. Servs . ,

273 S.W.3d at 744–45 (affirming denial of plea to the jurisdiction based upon

section 271.153). The City’s

argument was premised upon immunity from liability for a category of

damages. It was not premised upon

immunity from suit, and therefore it did not “clearly challenge” the trial court’s subject matter jurisdiction. See

Thomas , 207 S.W.3d at 339 . Accordingly, the City’s motion for partial

summary judgment cannot be treated as a plea to the jurisdiction for the

purpose of establishing interlocutory appellate jurisdiction, and the

appeal should likewise be dismissed as to the $250K claim. See Baylor Coll. of Med. v. Tate , 77 S.W.3d 467 , 472 –73

(Tex. App.—Houston [1st Dist.] 2002, no pet.).

Although no analysis

with respect to the City’s second issue has garnered the support of a majority

of the panel, and therefore the legal discussion has no precedential value, I

respectfully disagree with the portion of the lead opinion which reviews the

City’s second issue and suggests, incorrectly, that the City cannot use a plea

to the jurisdiction to challenge the existence of jurisdictional facts

necessary to substantiate a claim within the scope of a legislative waiver of governmental

immunity. See Texas Dep’t of Parks & Wildlife

v. Miranda , 133

S.W.3d 217 , 227–28 (Tex. 2004) (observing that a plea

to the jurisdiction may challenge the existence of jurisdictional facts and “if

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as

a matter of law”); ICI

Construction , 339 S.W.3d at 239 .

Michael

Massengale

Justice

Panel consists of Justices Keyes, Sharp, and

Massengale.

Justice Sharp, concurring in the

judgment only.

Justice Massengale,

concurring in the judgment in part and dissenting from the judgment in part.