rejecting the contention that a trial court “lacks jurisdiction to hear a claim for damages outside of the legislature’s waiver of sovereign immunity” and holding immunity from liability for damages is waived if not pled
How later courts described this case
- rejecting the contention that a trial court “lacks jurisdiction to hear a claim for damages outside of the legislature’s waiver of sovereign immunity” and holding immunity from liability for damages is waived if not pled
- noting that “governmental units litigate as any other party in Texas courts and must observe the same rules that bind all other litigants, which include the laws and rules governing pleadings”
- refusing to remand to court of appeals where respondent failed to include argument seeking remand in its brief to the supreme court or to raise the issue until after argument in the supreme court
- governmental immunity and charitable immunity must be pleaded as affirmative defenses or they are waived
Written by the judges who cited it.
The opinion
GONZALEZ, Justice,
concurring and dissenting.
CONCURRING AND DISSENTING OPINION
I agree that the City waived its defense of governmental immunity by failing to affirmatively plead it. Therefore, I concur in reversing the judgment of the court of appeals. However, I disagree with the court’s refusal to remand the cause to the court of appeals for consideration of the City’s insufficiency cross-points because of defects or irregularities in appellate procedure. This elevates form over substance and is contrary to our recent decision in Inpetco, Inc. v. Texas American Bank/Houston N.A., 729 S.W.2d 300 (Tex.1987), and Tex.R.App.P. 185. 1 I would remand the cause to the court of appeals for consideration of the City's insufficiency points.
The only justification set forth by the majority for denying the City’s motion to amend its brief is that it “comes too late.” This explanation is no explanation at all, for by its very definition an amended brief is one which is submitted at some time after the filing of the original brief. Tex. R.App.P. 136(g) provides that a respondent’s brief “may be amended at any time when justice requires upon such reasonable notice as the court may prescribe.” I believe that the cause of justice is better served by allowance of leave for the City to amend its response. 2
The court has traditionally been liberal in permitting amendments, even to the point of allowing an amendment after writ has been granted. See, e.g., Cochran v. Wool Growers Central Storage Co., 140 Tex. 184 , 166 S.W.2d 904 (1942). See also Calvert, Application for Writ of Error in Appellate ProceduRE in Texas § 27.7, at 612 (2d ed. 1979). I do not believe the City has “laid behind the log” or acted mischievously in failing to include insufficiency cross-points in their response and an alternative prayer for remand. Ineptness or a blunder by the City Attorney in this case is no justification for circumventing the process.
*524 It is important to note that the failure of a respondent to file a response will not preclude this court from denying a petitioner’s application for writ of error, nor will it prevent the court from remanding the cause if the application is granted. As explained by Justice Calvert:
[W]hen the party prevailing in the [court of appeals] had before that Court other points not considered by the Court ... which, if sustained, would lead to an affirmance of the judgment of the [court of appeals], such other points should be called to the attention of the Supreme Court in the answer to the application for writ of error.
This action is not prerequisite to review of the points but it is of great convenience to the Court and will prevent any possibility of their being overlooked.
Calvert, Some Problems of Supreme Court Review, 21 Tex.Bar J. 75, 112 (1958). In light of this rule of review, I believe it is hyper-technical for the majority to say that if a response is filed, the court is limited in disposing of the case by the arguments briefed and relief prayed for. Otherwise, the respondent would have been better off not filing any response at all.
The majority has conceded that its decision of reversal is based “at least in part” on the irregularity of the City’s brief in failing to include its insufficiency points. Since these points have been preserved in accordance with Tex.R.App.P. 136(d), 3 I would allow the City’s amendment. Moore v. Dilworth, 142 Tex. 538 , 179 S.W.2d 940 (1944); Cochran v. Wool Growers Central Storage Co., supra.
Under McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964), when this court reverses a court of appeals’ judgment, the respondent is entitled to have the cause remanded to the court of appeals for consideration of any points not disposed of below. By failing to remand for consideration of the City’s insufficiency cross-points, the court has done violence to this long-standing principle of justice.
I am baffled by the majority’s refusal to remand the cause to the court of appeals. The citizens of San Antonio have as much right as any other litigant to have a court of appeals pass on their challenge that the jury findings are not supported by sufficient evidence. The majority’s decision does not comport with my sense of justice which is to give to every party their due.
PHILLIPS, C.J., and WALLACE and CULVER, JJ., join in this concurring and dissenting opinion.
. Rule 185 provides “The Supreme Court will not affirm or reverse a judgment or dismiss a writ of error for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities."
. During oral argument, the City requested that in the event of reversal, we remand to the court of appeals for consideration of its insufficiency points. The City requested at that time leave to file a supplemental brief to memorialize the oral request and this request was granted from the bench. We should not penalize the City because the majority has second-guessed itself.
. Rule 136(d) provides: Respondent shall con-fíne his brief to reply points that answer the points in the application for writ of error or that provide independent grounds for affirmance and to such cross-points that respondent has preserved and that establish respondent's rights.