2006 Texas Supreme Court Opinions By Justice Phil Johnson
NOTEWORTHY CASE
Government Entities Waive Immunity When They Sue or Assert Claims of Their Own In Pending Suits, Supreme Court Issues Long-Awaited New Opinion, authored by Justice Johnson, after Withdrawal of Original One
Reata v. City of Dallas No. 02-1031 (Tex. June 30, 2006)(Justice Johnson) REATA CONSTRUCTION CORPORATION v. CITY OF DALLAS; from Dallas County; 5th district (05 01 01780 CV, 83 SW3d 392, 08 14 02) motion to strike The State of Texas amicus curiae brief in support of motion for rehearing dismissed as moot The Court withdraws its opinion issued April 2, 2004, and issues a substituted opinion. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Wainwright, Justice Medina, and Justice Green Justice Brister delivered a concurring opinion, joined by Justice Hecht and Justice O'Neill (Justice Willett not sitting)
The issue in this case is whether the City of Dallas has governmental immunity from suit for claims by Reata Construction Corporation arising from the City’s alleged negligence. The court of appeals held that the City had immunity. We conclude that the City does not have immunity from suit as to Reata’s claims which are germane to, connected with, and properly defensive to the City’s claims, to the extent Reata’s claims offset those asserted by the City. We reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.
Reata also claims the City’s immunity from suit is waived by section 51.075 of the Local Government Code, which provides that a home-rule municipality “may plead and be impleaded in any court.” See Tex. Loc. Gov’t Code § 51.075. However, waiver of immunity for tort claims is governed by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code ch. 101; Miranda, 133 S.W.3d at 224-25 (holding that the governmental entity was immune from suit for a tort unless it was expressly waived by the Tort Claims Act). Under rules of statutory construction, we give precedence to the Tort Claims Act over section 51.075 because the Tort Claims Act is the later-enacted, more specific statute regarding waiver of immunity in tort cases. See Tex. Gov’t Code § 311.026. Moreover, in Tooke v. City of Mexia, ___ S.W.3d ___, ___ (Tex. 2006), we have held that the phrase “plead and be impleaded” in section 51.075 does not clearly and unambiguously reflect legislative intent to waive immunity from suit. See Taylor, 106 S. W.3d at 697-98 (Tex. 2003).
Cases With Dissenting Opinions by Justice Johnson
In re A.M and B.M. No. 03-0509 (Tex. May 5, 2006)(Medina) [custody switch and child support off-set and reimbursement claims, either-or or both, actual support, presumption or what proof required?] 03-0509 IN THE INTEREST OF A.M. AND B.M., CHILDREN; from Harris County; 13th district (13 00 00649 CV, 101 S. W.3d 480, 07-18-02) 2 petitions The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Medina delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett
From the opinion: In this case, we must decide under what circumstances a parent, who has been ordered to pay periodic child support, may raise the affirmative defense of Texas Family Code section 157.008 to a suit to collect that support. The statute provides that an obligor parent, who by agreement has possessed a child for periods exceeding court-ordered possession, and who has provided actual support for the child during such period, “may request reimbursement for that support as a counterclaim or offset against the claim of the obligee [parent].” Tex. Fam. Code § 157.008(d). The court of appeals concluded that this statute provided the obligor both an offset and an affirmative right to reimbursement for periodic child support payments during a period of excess possession, that the obligor did not have to provide an accounting of expenses to receive this relief, and that the Attorney General, as assignee of the obligee parent’s right to enforce the child support order, could litigate offsets, but could not defend against an affirmative claim for reimbursement from the obligee. 101 S.W.3d 480. Because we disagree that section 157.008 permits the obligor to obtain both an offset and affirmative reimbursement for the same periodic payment, and further disagree that the Attorney General lacks standing to litigate any part of the defense provided by this statute, we reverse. Justice Johnson delivered a concurring and dissenting opinion: I agree with the court of appeals’ conclusion that the absence of evidence that Chism or anyone other than Mullen provided support for the children during the time that Mullen had possession of them would allow an inference that Mullen provided some level of actual support for that period of time. ... I do not agree, as the majority concludes, that the inference of some support allows a second inference, labeled as a presumption, that Mullen provided actual support in the specific amount of his monthly child support obligation. Mullen was statutorily obligated to prove the amount of support he provided in order to receive an offset or reimbursement. In my view, Mullen is entitled to offset only the amount of actual support he proved and the trial court found, subject to proper appellate review and limited as provided by statute.”)
Kroger v. Suberu No. 03-0913(Tex. May 5, 2006)(Jefferson) [wrongful prosecution suit, shoplifting accusation] KROGER TEXAS LIMITED PARTNERSHIP AND ROBERT MOODY v. THERESA SUBERU; from Dallas County; 5th district (05 02 00818 CV, 113 S.W3.d 588, 08 18 03) The Court reverses the court of appeals' judgment and renders judgment. Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett (“The evidence is legally insufficient to support a finding that Kroger lacked probable cause to initiate criminal proceedings against Suberu for shoplifting, and legally insufficient to support a finding that Kroger’s conduct was extreme and outrageous. Accordingly, we reverse the court of appeals’ judgment and render judgment that Suberu take nothing. See Tex. R. App. P. 60.2(c).”) Justice Johnson delivered a concurring and dissenting opinion, joined by Justice Medina, and by Justice Wainwright as to Part III
2006 Opinions by Justice Johnson
Barker v. Eckman No. 04-0194 (Tex. Dec. 1, 2006)(Johnson) EMZY T. BARKER, III AND AVA BARKER D/B/A BRUSHY CREEK BRAHMAN CENTER AND BRUSHY CREEK CUSTOM SIRES v. WALTER W. ECKMAN, INDIVIDUALLY AND AS NOMINEE AND TRUSTEE, ECKMAN, INC., AND LARRY ECKMAN; from Harris County; 1st district (01‑01‑00079‑CV, ___ SW3d ___, 01‑22‑04) 2 petitions The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court
In re Palm Harbor Homes, Inc. No. 04-0490 (Tex. June 9, 2006) (Johnson) [arbitration law, home purchasers must arbitrate claim against manufacturer even though not a party to contract, but third-party beneficiary] IN RE PALM HARBOR HOMES, INC. AND PALM HARBOR HOMES I, L.P. D/B/A PALM HARBOR VILLAGE; from Brazoria County; 1st district (01 02 00370 CV, 129 SW3d 636, 12 31 03) stay order issued November 19, 2004, lifted
The Court conditionally grants the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett Justice O'Neill delivered a concurring opinion