Texas a & M University System v. Koseoglu

• Decision Date: 07 September 2007
• Docket Number: No. 05-0321.,05-0321.
• Citation: 233 S.W.3d 835
• Parties: TEXAS A & M UNIVERSITY SYSTEM, Texas Engineering Experiment Station, and Dr. Mark McLellan, Petitioners, v. Dr. Sefa KOSEOGLU, Respondent.
• Court: Texas Supreme Court

233 S.W.3d 835

TEXAS A & M UNIVERSITY SYSTEM, Texas Engineering Experiment Station, and Dr. Mark McLellan, Petitioners, v. Dr. Sefa KOSEOGLU, Respondent.

No. 05-0321.

Supreme Court of Texas.

Argued November 14, 2006.

Delivered September 7, 2007.

Greg Abbott, Atty. Gen., Barry Ross McBee, Edward D. Burbach, Office of Atty. Gen., Jeffrey L. Rose, Atty. Gen., Robert Francis Johnson, Assistant Atty. Gen., Don Wayne Cruse Jr., Assistant Solicitor Gen., and Rafael Edward Cruz, Office of Atty. Gen., Austin, for Petitioner.

Wayne T. Rife, Law Offices of Wayne T. Rife, P.C., College Station, TX, for Respondent.

Justice GREEN delivered the opinion of the Court.

In this case we consider whether a plaintiff who, on appeal, loses a plea to the jurisdiction based on sovereign immunity is entitled to a remand for an opportunity to cure the jurisdictional pleading defect. We conclude that when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to amend. Additionally, we must interpret section 51.014(a) of the Texas Civil Practice and Remedies Code to determine whether appellate courts have jurisdiction to consider a government official's appeal of a trial court's denial of a plea to the jurisdiction based on sovereign immunity. We conclude that Section 51.014(a)(8) vests appellate courts with such jurisdiction.

Sefa Koseoglu worked as a contract employee at the Texas Engineering Experiment Station, which is a division of the Texas A & M University System. Koseoglu sued the Texas A & M University System, the Texas Engineering Experiment Station ("Texas A & M," collectively), and Mark McLellan, his supervisor, for allegedly breaching his employment contract. Both Texas A & M and McLellan filed pleas to the jurisdiction asserting sovereign immunity and challenging the trial court's jurisdiction to hear Koseoglu's claims. The trial court denied the pleas to the jurisdiction, and Texas A & M and McLellan appealed. The court of appeals reversed the trial court's judgment with respect to Texas A & M's appeal, holding Texas A & M's sovereign immunity from suit barred Koseoglu's breach of contract claim. 167 S.W.3d 374, 384 (Tex.App.-Waco 2005, pet. granted). Rather than dismiss Koseoglu's claim against Texas A & M, the court of appeals concluded Koseoglu deserved an opportunity to amend his pleadings and therefore remanded the matter to the trial court. Id. With respect to McLellan's appeal, the court of appeals held it was without jurisdiction to decide the appeal because, as a state official, McLellan had no statutory right under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code to appeal the trial court's denial of a plea to the jurisdiction premised on sovereign immunity. Id. We affirm the court of appeals' judgment with respect to Texas A & M's appeal, but reverse its remand order and dismiss Koseoglu's claim against Texas A & M. With respect to McLellan's appeal, we reverse the court of appeals' judgment and, rendering the judgment the court of appeals should have rendered, we dismiss Koseoglu's claim against McLellan.

I. Background

In 1999, while still employed by Texas A & M, Koseoglu began moonlighting for a private business enterprise he partially owned. In early 2002, soon after McLellan became Koseoglu's supervisor, Koseoglu requested permission to continue his outside employment. McLellan denied Koseoglu's request. Koseoglu nevertheless continued the outside employment and, in October 2002, McLellan informed Koseoglu that his employment would be terminated at the end of the following month. Seeking to negotiate the terms of his dismissal, Koseoglu sent a letter to the general counsel of the Texas A & M University System on December 19, 2002. In the letter, Koseoglu proposed that he be permitted to remain in his position until August 2003 and receive certain other financial and non-financial benefits. The letter included a blank signature line, under the word "AGREED," which was then signed by an attorney in the Texas A & M general counsel's office. On January 14 2003, Koseoglu's counsel sent a proposed draft of the final agreement to the Texas A & M general counsel's office. The final agreement was never signed. Koseoglu's counsel later wrote to the Texas A & M general counsel's office that, by refusing to execute the January 14 settlement documents, the Texas A & M University System was in breach of the December 19 "agreement."

In April 2003, Koseoglu sued McLellan and Texas A & M for breach of contract, asserting they breached the alleged December 19 agreement between Koseoglu and Texas A & M. Texas A & M and McLellan each pled the affirmative defense of sovereign immunity and filed pleas to the jurisdiction. Koseoglu filed a motion for summary judgment, contending in part that Texas A & M's and McLellan's sovereign immunity had been waived for his breach of contract action because it had been waived for an underlying action under 42 U.S.C. § 1983 in which Koseoglu asserted a denial of due process with respect to his employment contract with Texas A & M. Four months after Texas A & M and McLellan filed their pleas to the jurisdiction, the trial court denied them. Before the trial court ruled on Koseoglu's motion for summary judgment, Texas A & M and McLellan each filed an interlocutory appeal. The court of appeals reversed the trial court's denial of Texas A & M's plea to the jurisdiction and dismissed McLellan's interlocutory appeal for want of jurisdiction. 167 S.W.3d at 384. The court of appeals concluded that governmental entities do not waive their immunity from suit in Texas by accepting benefits under a contract, and that Koseoglu's pleadings against Texas A & M did not fit the narrow exception suggested by the plurality in Texas A & M University—Kingsville v. Lawson, 87 S.W.3d 518 (Tex.2002), because Koseoglu's underlying Section 1983 claim was not one for which sovereign immunity had been waived. 167 S.W.3d at 380. Thus, the court of appeals held Koseoglu's breach of contract claim was barred by Texas A & M's sovereign immunity from suit and remanded the case to the trial court, suggesting it might be possible for Koseoglu to state some entirely different claim for which sovereign immunity might have been waived "with respect to the termination of the employer-employee relationship." Id. at 383. With respect to McLellan's appeal, the court of appeals held that, while section 51.014(a)(8) of the Texas Civil Practice and Remedies Code vested it with interlocutory appellate jurisdiction over a jurisdictional plea filed by state officials whose positions are derived from the Texas Constitution, the statute did not give it authority to review interlocutory orders on jurisdictional pleas filed by all other state officials, such as McLellan. Id. at 377-79. Both Texas A & M and McLellan then timely appealed the court of appeals' decision to this Court.

Texas A & M and McLellan argue the court of appeals erred on dual grounds. First, they contend the court of appeals erred in concluding it was without interlocutory appellate jurisdiction to review the jurisdictional plea filed by McLellan, a state official acting in his official capacity. Second, they argue the court of appeals should have dismissed Koseoglu's breach of contract claim after it concluded it was barred by sovereign immunity, rather than remand it to the trial court. We first consider Texas A & M's and McLellan's second issue.

II. Koseoglu's Suit Against Texas A & M

Koseoglu argues Texas A & M waived its sovereign immunity from suit on his Section 1983 due process claims and therefore, under Lawson, 87 S.W.3d at 519-23, Texas A & M's immunity has been waived in this breach of contract case as well. In Lawson, a plurality of this Court held a plaintiff's claim for breach of an agreement settling his underlying Whistleblower Act claim was encompassed within the Legislature's decision to waive immunity for Whistleblower Act claims. Id. at 522-23. But the court of appeals correctly held that the State and its officials sued in their official capacities are immune from money damages sought in a Section 1983 claim unless they waive their immunity. 167 S.W.3d at 380 (citing Will v. Mich. Dep't of St. Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). It is up to the Legislature to institute such a waiver, and to date it has not seen fit to do so. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 857 (Tex.2002). Thus, as the court of appeals held, Koseoglu never had an actionable Section 1983 claim against Texas A & M and, therefore, his pleadings are deficient in the sense that Lawson is not implicated.

However, rather than dismiss Koseoglu's lawsuit against Texas A & M, the court of appeals reversed the trial court's denial of Texas A & M's plea to the jurisdiction and remanded the cause to the trial court so that Koseoglu could amend his pleadings. 167 S.W.3d at 383-84. It is true that a plaintiff deserves "a reasonable opportunity to amend" unless the pleadings affirmatively negate the existence of jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004); Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004); County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). Thus, the issue is whether Koseoglu has already been afforded that opportunity. If not, we agree that he deserves the opportunity if his pleadings can be cured.

Koseoglu argues a plaintiff is not required to amend his pleadings until they are determined by a court to be deficient. Thus, he contends he should now be provided an opportunity to amend. Texas A & M, on the other hand, argues the plaintiff's opportunity to amend should come after the governmental entity files its plea to the jurisdiction, which puts the plaintiff on notice of alleged defects in his pleadings, but before the trial court takes any definitive action. Accordingly, Texas A & M...