RECENT CASES AND OPINIONS FROM THE FIRST AND FOURTEENTH COURTS OF APPEALS
TSU's former president, currently on trial on criminal charges, looses appeal in wrongful termination suit against Board of Regents, rejects waiver-by-conduct theory See Priscilla D. Slade v. Texas Southern University Board of Regents, No. 01-06-00990-CV (Tex.App.- Houston [1st Dist.] , Aug. 30, 2007)(Opinion by Justice Sam Nuchia)(breach of contract claim against state university barred by sovereign immunity, waiver-by-conduct theory not applicable)
Houston Court of Appeals Says UH Has Immunity to Suit Brought By Former Student Who Tripped and Fell at Dec. 2001 Commencement
New Development in Sovereign Immunity Case Law: Waiver by Misconduct
Justice Evelyn Keys withdraws her earlier dissent to Justice Hank's precedent-breaking holding in breach-of-contract case against Texas Southern University (TSU), and urges Texas Supreme Court to Adopt Waiver-by-Conduct Exception to Sovereign Immunity Doctrine
Texas sovereign immunity doctrine, as established by Texas Supreme Court in 1997 case involving same university allows state entities to breach their contracts without consequences and "steal money" from contractors. Federal Sign v. Tex. S. Univ. (Tex. 1997)
TSU v. State Street (Tex.App.--Houston [1st Dist.] Jan. 11, 2007)(substituted sep. opinion by Keyes) OPINION CONCURRING IN PART WITH, AND DISSENTING IN PART TO, THIS COURT'S JUDGMENT: Concurring and Dissenting Opinion by Justice Evelyn Keyes Before Justices Nuchia, Keyes and Hanks 01-06-00497-CV Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation Appeal from 80th District Court of Harris County
I withdraw my concurring and dissenting opinion issued June 8, 2006 and substitute this opinion in its stead. To the extent this case may be properly construed as a breach of contract action on a valid contract, I join the opinion of the Court and urge the Supreme Court of Texas to adopt the waiver-by-conduct exception to sovereign immunity from suit adopted by most other states. See Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 419-20 (Tex. 1997) (Enoch, J., dissenting). However, I do not think it is necessary to reach the issue of waiver of sovereign immunity because I believe that appellees CMS Viron Corporation and CMS Energy Resource Management Company (collectively "Viron") and State Street Bank and Trust Company ("State Street") have properly pleaded an inverse condemnation claim against appellant Texas Southern University ("TSU"), to which there is no sovereign immunity, and that this case should be decided as an inverse condemnation case. Therefore, I dissent from the majority's holding that State Street and Viron have not properly pleaded an inverse condemnation claim, and I concur in the judgment reversing and remanding this case.
TSU v. State Street Bank (Tex.App.-Houston [1st Dist.] June 8, 2006)(Hanks)(original majority opinion, since superseded) [Panel of First Court finds state university’s conduct sufficiently egregious to warrant recognition of waiver-by-conduct exception to sovereign immunity to breach of contract claims; affirms denial of TSU’s plea to the jurisdiction against the breach of contract claim; grants plea with respect to takings and declaratory judgment claims] Decision: Affirm Trial Court Judgment in Part, Reverse Trial Court Judgment in Part, and Remand Case to Trial Court for Further Proceedings: Opinion by Justice Hanks Before Justices Nuchia, Keyes and Hanks 01-05-00758-CV Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation Appeal from 80th District Court of Harris County
Who and When Can an Interlocutory Appeal Be Taken Where Immunity Is An Issue?
Baylor College of Medicine v. Hernandez (Tex.App.– Houston [14th Dist.] July 27, 2006)(Guzman) [Doctors not entitled to interlocutory appeal, plea to the jurisdiction improper] Holding: Because section 51.014 of the Civil Practice and Remedies Code does not confer this court with jurisdiction to decide any of the issues presented on interlocutory appeal, the appeal is dismissed. Section 51.014(a)(8): Plea to the Jurisdiction by a Governmental Unit Section 51.014(a)(8) permits an appeal from an order that “grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2005). A party cannot take an interlocutory appeal from the denial of a plea to the jurisdiction unless the plea raises an issue that can deprive the trial court of jurisdiction. See Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004). Moreover, an interlocutory appeal is not available if the plea to the jurisdiction was not made by a “governmental unit.” See Tex. A & M Univ. Sys. v. Koseoglu, 167 S.W. 3d 374, 377–79 (Tex. App.—Waco 2005, pet. granted); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 721 (Tex. App.—Fort Worth 2004, no pet.); Perry v. Del Rio, 53 S.W.3d 818, 821 (Tex. App.—Austin 2001), pet. dism’d, 66 S.W.3d 239, 264 (Tex. 2001).
UTMB v. Thompson (Tex.App.–Houston [14th Dist.] June 20, 2006)(Opinion by Anderson, J.) [TTCA. denial of university’s plea to the jurisdiction reversed, judgment of dismissal rendered, sovereign immunity not waived for this type of health care liability claim] TRIAL COURT'S DENIAL OF UNIVERSITY'S PLEA TO THE JURISDICTION REVERSED AND JUDGMENT OF DISMISSAL RENDERED 14-06-00014-CV University of Texas Medical Branch v. Tinesha T. Thompson Appeal from 122nd District Court of Galveston County (Judge John A. Ellisor Jr.)
14-92-00603-CV 05/20/1992 Texas Southern University v. Bank of Houston and Porter,... 14-93-00464-CV 05/19/1993 Texas Southern University v. Federal Sign 14-97-01135-CV 10/10/1997 Texas Southern University v. Greenleaf, Dianna F. 14-02-00706-CV 07/10/2002 Berry, Maxine P. v. Board of Regents of Texas S... 14-04-00524-CV 05/27/2004 Texas Southern University Charles v. David Carter
UH CASES IN THE FIRST COURT OF APPEALS
01-98-00141-CV 01/28/1998 The State of Texas v. John R. Phenix & Associates 01-98-00091-CV 01/29/1998 University of Houston - Clear Lake v. Marsh, Karen and Marsh, D. 01-01-00919-CV 10/12/2001 University of Houston System v. Graciela Lubertino, Ph.D. 01-02-00294-CV 03/21/2002 Freedman, Glenn B. v. University of Houston 01-02-00368-CV 04/15/2002 University of Houston Main Campus v. Steve Simons 01-02-00469-CV 05/10/2002 Glenn A. Goerke v. University of Houston 01-04-00625-CV 06/01/2004 Tamunosiki A. Opuiyo v. University of Houston-Downtown 01-04-00828-CV 08/04/2004 The University of Houston v. Stephen Barth 01-06-00448-CV 05/15/2006 Univ. of Houston v. Yvonne Michelle De Luna, (Tex.App.- Houston [1st Dist.] Apr. 12, 2007)
UH CASES IN THE FOURTEENTH COURT OF APPEALS
14-98-00155-CV 2/10/1998 The State of Texas v. John R. Phenix and Associates 14-99-00198-CV 3/9/1999 The University of Houston v. Elthon, Don 14-00-00361-CV 3/28/2000 Long, Laura v. University of Houston 14-01-00457-CV 5/1/2001 Elthon, Don v. The University of Houston 14-01-00718-CV 8/1/2001 Chhim, Suzanne v. University of Houston . 14-03-00170-CV 2/11/2003 In Re: The Board of Regents - pending in the Texas Supreme Court 14-03-00392-CV 4/7/2003 Board of Regents of the University of Houston v. FKM Partnership, LTD. 14-03-01212-CV 10/29/2003 David E. Moore v. University of Houston-Clear Lake
UH CASES IN THE TEXAS SUPREME COURT
05-0243 03/30/2005 WOLFGANG HIRCZY DE MIÑO, PH.D V. THE UNIVERSITY OF HOUSTON 05-0661 08/17/2005 FKM PARTNERSHIP, LTD. V. BOARD OF REGENTS OF THE UNIVERSITY OF HOUSTON 02-0619 07/10/2002 UNIVERSITY OF HOUSTON ET AL V. SUZANNE CHHIM 02-0716 08/08/2002 DON ELTHON V. THE UNIVERSITY OF HOUSTON 00-0044 01/18/2000 THE UNIVERSITY OF HOUSTON V. DON ELTHON 98-0356 04/21/1998 UNIVERSITY OF HOUSTON V. STERLING BANK f/k/a ENTERPRISE BANK 98-1080 11/02/1998 UNIVERSITY OF HOUSTON, MATT V. DEMETRIA CLARK 94-0565 06/10/1994 LOREN R. SMITH V. BOARD OF REGENTS OF THE UNIVERSITY D-0138 08/01/1990 ANDREA MARIE DELANEY V. THE UNIVERSITY OF HOUSTON C-7416 04/26/1988 GULF REGIONAL EDUCATION TELEVISION V. UNIVERSITY OF HOUSTON
PUBLISHED OPINIONS FROM THE HOUSTON COURTS OF APPEALS