Satterfield & Pontikes v. Irving Ind. Sch.

• Decision Date: 26 September 2003
• Docket Number: No. 05-03-00004-CV.,05-03-00004-CV.
• Citation: 123 S.W.3d 63
• Parties: SATTERFIELD & PONTIKES CONSTRUCTION, INC., Appellant, v. IRVING INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

123 S.W.3d 63

SATTERFIELD & PONTIKES CONSTRUCTION, INC., Appellant, v. IRVING INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 05-03-00004-CV.

Court of Appeals of Texas, Dallas.

September 26, 2003.

Rehearing Overruled January 12, 2004.

Donald F. Hawbaker, Timothy Dwayne Matheny, Jeffrey A. Ford, Ford, White & Nassen, P.C., Dallas, for Appellant.

W. Andrew Messer, Boyle & Lowry, L.L.P., James W. Deatherage, Jim & Associates, PC, Irving, for Appellee.

Before Justices JAMES, FRANCIS, and LANG.

OPINION

Opinion by Justice FRANCIS.

In this breach of contract case against the Irving Independent School District, we must decide whether the Legislature intended to waive the District's immunity from suit by enacting section 11.151 of the Texas Education Code. Because the language used in section 11.151 does not clearly and unambiguously indicate waiver, we affirm the trial court's order dismissing Satterfield & Pontikes Construction Inc.'s claims for want of jurisdiction.

BACKGROUND

The District contracted with Satterfield for the construction of a new middle school. During construction, the project experienced certain delays. Satterfield filed this lawsuit alleging the District failed to pay delay damages and extend completion time for the project in accordance with certain contract provisions.

The District moved to dismiss the lawsuit for want of jurisdiction asserting it was immune from suit. In response, Satterfield filed its first amended petition asserting the Legislature had waived the District's immunity by enacting section 11.151 of the Texas Education Code, which allows the District to "sue and be sued." The trial court granted the District's plea to the jurisdiction. Satterfield appeals.

DISCUSSION

Governmental immunity protects governmental entities from lawsuits for damages absent legislative consent. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The doctrine is comprised of two distinct concepts: (1) immunity from suit (barring a lawsuit unless the Legislature expressly gives its consent to suit), and (2) immunity from liability (protection from judgments even if the Legislature has expressly given its consent to the suit). See id. Although a governmental entity waives immunity from liability when it contracts with private citizens, immunity from suit is not waived by merely entering into a contract. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003); Gen. Serv.'s Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). Instead, express consent is required to show that immunity from a breach of contract suit has been waived. See Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex.2002). This consent must be expressed by clear and unambiguous language. Tex. Gov't Code Ann. § 311.034 (Vernon Supp.2003); Pelzel, 77 S.W.3d at 248.

We review de novo the trial court's ruling on a plea to the jurisdiction based on immunity from suit. See Tex. Natural Res. Conserv. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Where, as here, there was no evidence presented to the trial court on the jurisdictional issue, we look solely to the pleadings to determine whether the trial court's jurisdiction was properly invoked. See Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 326 (Tex.App.-Beaumont 2002, no pet.). Satterfield's pleadings must establish, either by reference to a statute or express legislative permission, the Legislature's consent to its lawsuit, or immunity from suit will deprive the trial court of subject matter jurisdiction. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). When determining whether the Legislature has clearly and unambiguously waived immunity from suit, we generally resolve any ambiguity in favor of retaining immunity. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex.2003).

Satterfield pleaded the "sue and be sued" language contained in section 11.151 clearly expresses the Legislature's intention to waive the District's immunity from suit in breach of contract actions. We do not agree. The statutory provision we are called upon to construe is located in the education code under a subchapter entitled "Powers and Duties of Board of Trustees of Independent School District." It provides as follows:

§ 11.151 In General

(a) The trustees of an independent school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be sued, and receive bequests and donations or other moneys or funds coming legally into their hands.

TEX. EDUC.CODE ANN. § 11.151(a) (Vernon 1996).

At least one commentator has suggested that because "sue and be sued" language originated in the corporate law context, these provisions can easily be read as a designation to give a particular entity a legal existence in the courts. George C. Kraehe, "There's Something About Cities": Understanding Proprietary Functions of Texas Municipalities and Governmental Immunity, 32 Tex. Tech. L.Rev. 1, 35-36 (2000). We agree. In fact, we recently reached a similar conclusion in City of Dallas v. Reata Construction Corp., 83 S.W.3d 392, 399 (Tex.App.-Dallas 2002, pet. filed). In Reata, the subcontractor contended language in the local government code that the City could "plead and be impleaded in any court" and a city charter provision stating the City could "sue and be sued" waived the City's immunity from its negligence suit. Id. at 398. In rejecting the subcontractor's claim, we noted that such language merely "speak[s] to the City's capacity to sue and its capacity to be sued when immunity has been waived." Id.

We likewise view section 11.151 as acknowledging the District's capacity to sue and its capacity to be sued once immunity has been waived. A school district has only those powers granted to it by the Legislature. See Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447, 453 (Tex.1995). The sue and be sued language merely recognizes the District's ability to utilize the courts as a legal entity, just as the remainder of section 11.151 authorizes the District to hold property, and receive bequests, donations, and other funds. At a minimum, we conclude section 11.151(a) is ambiguous as to whether it addresses the District's capability to sue and be sued as an entity or is an expression of the Legislature's intent to waive the District's immunity from suit. We are required to construe the statute in a manner that retains the District's immunity. See Taylor, 106 S.W.3d at 697.

In reaching this conclusion, we reject Satterfield's assertion that Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex.1970) mandates a different result. In Missouri Pacific, the railway sought indemnity from the navigation district for the railway's liability in a wrongful death suit based on a "written track agreement" prohibiting the district from allowing certain objects to be placed near the track. Id. at 812-13. Although generally acknowledging the district's immunity from suit, the court construed a "sue and be sued" provision in a 1925 statute creating the district as a general consent to suit by the Legislature thereby authorizing the railway's suit against the navigation district. Id. at 813.

As support for its holding, the Missouri Pacific court noted specifically that suits against counties had been held to be authorized by statutes that were significantly less straight forward on the waiver of immunity issue such as those: (1) merely requiring the filing of a claim before institution of suit, (2) providing for county inhabitants to serve as jurors or witnesses, and (3) prohibiting the issuance of an execution on a judgment against a county. Id. The court held the "sue and be sued" statute was "quite plain and gives general consent for District to be sued in the courts of Texas in the same manner as other defendants." Id. Our research has revealed Missouri Pacific as the first and only time the Texas Supreme Court has directly addressed the issue of whether a "sue and be sued" statute constitutes a waiver of immunity from suit. More importantly, the supreme court has since departed from the logic of Missouri Pacific in the three decades following that decision.

Ten years after Missouri Pacific, the supreme court held that any waiver of immunity from suit must be expressed by the Legislature in clear and unambiguous language. Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). That holding has been consistently reaffirmed. See Tex. Gov't Code Ann. § 311.034; Taylor, 106 S.W.3d at 696; Pelzel, 77 S.W.3d at 248; IT-Davy, 74 S.W.3d at 854; Fed. Sign, 951 S.W.2d at 405; City of La Porte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995).

More recently, in a construction contract action similar to the one before us, the supreme court applied the clear and unambiguous standard to hold a presentment statute did not waive a county's immunity from suit. See Pelzel, 77 S.W.3d at 249. The statute in Pelzel provided "a person may not sue on a claim against a county unless the person has presented the claim to the commissioners court and the commissioners court has neglected or refused to pay all or part of the claim." The Pelzel court acknowledged Missouri Pacific's holding by stating that "sue and be sued" language "arguably show[s] intent to waive sovereign immunity" Id. (emphasis added). But Pelzel also noted there were no cases to support Missouri Pacific's assertion that a county's immunity from suit had been held to be waived by statutes requiring the filing of a claim before institution of suit. Id. at 251. After Pelzel, the rationale behind Missouri Pacific's holding, which was based in part on an understanding that a presentment statute waived immunity from suit, has been called into question.

Similarly, applying the clear and unambiguous standard in a wrongful death case, the supreme court has also concluded the Legislature did not waive a...