City of Mexia v. Tooke

• Decision Date: 23 July 2003
• Docket Number: No. 10-02-261-CV.,10-02-261-CV.
• Citation: 115 S.W.3d 618
• Parties: CITY OF MEXIA, Texas, Appellant, v. Judy TOOKE and Everett Tooke, d/b/a J.E. Tooke & Sons and d/b/a Nature's Way Organic Landscaping, Appellees.
• Court: Texas Court of Appeals

115 S.W.3d 618

CITY OF MEXIA, Texas, Appellant, v. Judy TOOKE and Everett Tooke, d/b/a J.E. Tooke & Sons and d/b/a Nature's Way Organic Landscaping, Appellees.

No. 10-02-261-CV.

Court of Appeals of Texas, Waco.

July 23, 2003.

Rehearing Overruled August 13, 2003.

Kathleen French Dow, Buenger & Associates, Waco, for Appellant.

Brian L. Gibson, Gibson & Associates, P.L.L.C., Groesbeck, for Appellees.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

In this appeal, we decide whether section 51.075 of the Texas Local Government Code provides a waiver of immunity from suit for home-rule municipalities. Texas appellate courts are divided on this issue. We conclude that section 51.075 does not constitute a "clear and unambiguous" waiver of immunity from suit.

BACKGROUND

The City of Mexia contracted with J.E. Tooke and Sons ("Tooke") for curbside collection of brush and leaves within the city. The contract was automatically renewable each year unless either party gave written notice of an intent to terminate at least sixty days before the anniversary date of the contract. The contract took effect on November 1, 1996.

A city employee verbally notified Tooke in December 1997 that it would no longer require Tooke's services under the contract because of budgetary limitations. The city manager sent Tooke a letter in March 1998 confirming the prior verbal notification. Tooke¹ sued the City for breach of contract in September 1999.

The court denied the City's plea to the jurisdiction. A jury found that the City breached the contract, that Tooke suffered $8,659 in damages as a result, and that Tooke had incurred $7,500 in reasonable and necessary attorney's fees. The court rendered judgment in accordance with the verdict.

SOVEREIGN IMMUNITY

GENERAL PRINCIPLES

Sovereign immunity protects the State, its agencies and officials, and political subdivisions of the State from suit, unless immunity from suit has been waived. Fed. Sign v. Tex. Southern U., 951 S.W.2d 401, 405 (Tex.1997); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex.1996). A municipality is a political subdivision of the State. Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(B) (Vernon Supp.2003); McKinney, 936 S.W.2d at 283.

The sovereign immunity of the State inures to the benefit of a municipality insofar as the municipality engages in the exercise of governmental functions,² except where that immunity has been waived. City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.1997); Oldfield v. City of Houston, 15 S.W.3d 219, 225 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Conversely, a municipality has no "sovereign immunity" when it engages in the exercise of proprietary functions.³ Id. This has long been the state of the law. E.g., City of Galveston v. Posnainsky, 62 Tex. 118, 127 (1884).

"[I]it is the Legislature's sole province to waive or abrogate sovereign immunity." Tex. Nat. Resources Conservation Commn. v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002) (quoting Fed. Sign, 951 S.W.2d at 409); accord Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex.1993). Immunity from suit can be waived only by legislative consent or constitutional amendment. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex.2003); Fed. Sign, 951 S.W.2d at 405. Such a waiver must be expressed "by clear and unambiguous language." Tex. Gov't Code Ann. § 311.034 (Vernon Supp.2003); Fed. Sign, 951 S.W.2d at 405 (quoting U. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994)); accord Taylor, 106 S.W.3d at 696.

Statutory language providing that a political subdivision "may sue or be sued" provides the requisite clarity to establish a waiver of immunity from suit. Mo. Pacific R.R. v. Brownsville Nav. Dist., 453 S.W.2d 812, 813 (Tex.1970) (citing Act effective Feb. 19, 1925, 39th Leg., R.S., ch. 5, § 46, 1925 Tex. Gen. Laws 7, 21 (repealed 1971) (current version at Tex. Water Code Ann. § 62.078 (Vernon 1988)));⁴ Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 448 (Tex.App.-Fort Worth 2001, no pet.); accord Taylor, 106 S.W.3d at 696-97 ("we have little difficulty recognizing the Legislature's intent to waive immunity from suit when a statute provides that a state entity may be sued") (emphasis added); but cf. Jackson v. City of Galveston, 837 S.W.2d 868 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (statute which provides that Type A general-law municipality "may sue and be sued" does not waive immunity from suit); Townsend v. Memorial Med. Ctr., 529 S.W.2d 264, 267 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n.r.e.) (statute permitting hospital authority to "sue and be sued" does not waive immunity from suit).

SECTION 51.075

Section 51.075 of the Local Government Code provides that a home-rule municipality "may plead and be impleaded in any court." Tex. Loc. Gov't Code Ann. § 51.075 (Vernon 1999). The Fort Worth and El Paso Courts of Appeals have concluded that this language waives a home-rule municipality's immunity from suit. Goerlitz v. City of Midland, 101 S.W.3d 573, 577 (Tex.App.-El Paso 2003, pet. filed); State v. Kreider, 44 S.W.3d 258, 266 (Tex.App.-Fort Worth 2001, pet. denied); Knowles v City of Granbury, 953 S.W.2d 19, 23 (Tex.App.-Fort Worth 1997, pet. denied); Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 164-65 (Tex.App.-Fort Worth 1992, writ dism'd as moot); but see City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371-72 (Tex.App.-Fort Worth 2001, no pet.) (breach of contract claim against city barred by sovereign immunity).⁵ The Dallas Court of Appeals has reached the opposite conclusion. City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392, 398 (Tex.App.-Dallas 2002, pet. filed); contra City of Garland v. Shierk, No. 05-99-258-CV, 2000 WL 721602, at *2, 2000 Tex.App. LEXIS 3706, at *4-6 (Tex.App.-Dallas June 6, 2000, pet. denied) (citing Avmanco, 835 S.W.2d at 165) (not designated for publication).

Because the El Paso court (and the Dallas court in Shierk) relied almost exclusively on the Fort Worth court's analysis, we begin with the latter's analysis. See Goerlitz, 101 S.W.3d at 576-77 & n. 1 (citing Knowles, 953 S.W.2d at 23; Avmanco, 835 S.W.2d at 164-65). Beginning with Avmanco, the Fort Worth court has taken the position that section 51.075 waives a home-rule municipality's immunity from suit.⁶ 835 S.W.2d at 165; but see Pastusek Indus., 48 S.W.3d at 371-72.

In Avmanco, the court cited McCollum v. City of Richardson to support the proposition that the "plead and be impleaded" language of section 51.075 waives immunity from suit. Avmanco, 835 S.W.2d at 165 (citing McCollum, 121 S.W.2d 423, 424 (Tex.Civ.App.-Dallas 1938, writ dism'd)). However, McCollum is inapposite on two counts because: (1) the City of Richardson was an incorporated municipality for which former article 1140 provided "power to sue and be sued";⁷ and (2) it was a suit instituted by a municipality rather than a suit against a municipality. 121 S.W.2d at 423-24.

In addition, we cannot agree that the term "plead and be impleaded" constitutes a "clear and unambiguous" waiver of immunity from suit. Tex. Gov't Code Ann. § 311.034; Taylor, 106 S.W.3d at 696; Fed. Sign, 951 S.W.2d at 405. The Supreme Court has never held this particular language sufficient. Holding such language adequate fails to account for the fact that the Legislature used the same terminology in statutes governing general-law municipalities side-by-side with the "sue and be sued" language which the Supreme Court has construed to waive immunity from suit. Tex. Loc. Gov't Code Ann. §§ 51.013, 51.033 (Vernon 1999); see also Taylor, 106 S.W.3d at 696-97; Mo. Pacific R.R., 453 S.W.2d at 813.

According to the Code Construction Act, we must presume that the Legislature intended the entirety of the Local Government Code to be effective. Tex. Gov't Code Ann. § 311.021(2) (Vernon 1998). Thus, we presume that the Legislature used every word for a particular purpose. City of Austin v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex.2002). If we construe the term "plead and be impleaded" to have the same meaning as the term "sue and be sued," we run afoul of this settled principle of statutory construction.

Rather, the Supreme Court has established guidelines to consider in the absence of a clear and unambiguous waiver of immunity: (1) the statute in question must waive immunity "beyond doubt"; (2) ambiguities are generally resolved in favor of immunity; (3) if the Legislature requires the joinder of a governmental entity in a suit for which immunity would otherwise attach, the Legislature has waived immunity; and (4) if the Legislature simultaneously enacts legislation limiting the governmental unit's potential liability, a waiver of immunity may be found. Taylor, 106 S.W.3d at 697-98.

With regard to the first guideline, the Court observed that it has found a waiver of immunity in other circumstances where the statute in question would be meaningless if it did not waive immunity. Id. at 697 (citing Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 8 (Tex.2000)). The statute under review in Fernandez (the State Applications Act) expressly incorporated the anti-retaliation provisions of the workers compensation statutes. See Fernandez, 28 S.W.3d at 4 (citing Act of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, § 15.44, sec. 15(b), 1989 Tex. Gen. Laws 1, 111 (repealed 1993) (current version at Tex. Labor Code Ann. § 501.002(a)(10) (Vernon Supp.2003))). The same statute also expressly designated individual state agencies as "employers" for purposes of the anti-retaliation law. Id. at 7-8 (citing Act of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, § 15.44, sec. 15(b), 1989 Tex. Gen. Laws 1, 112 (repealed 1993) (current version at Tex. Labor Code Ann. § 501.002(b) (Vernon Supp.2003))). The Court concluded that the express designation of state agencies as employees for purposes of the anti-retaliation law "makes no sense unless ...