Helen Robinson v. University of Texas Medical Branch at Galveston

Affirmed and Majority and Concurring Opinions filed June 30, 2005 Affirmed and Majority and Concurring Opinions filed June 30, 2005. In The Fourteenth Court of Appeals _______________ NO. 14-03-01400-CV _______________ HELEN ROBINSON, Appellant V. UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellee _____________________________________________________________________ On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 02‑CV1466‑A _____________________________________________________________________ M A J O R I T Y   O P I N I O N This suit involves the mishandling of the remains of a deceased. Appellant, Helen Robinson (ARobinson@), appeals an order granting the plea to the jurisdiction of appellee, The University of Texas Medical Branch at Galveston (AUTMB@), wherein the trial court concluded that Robinson=s claims sound in contract, not tort; consent for suit was not obtained, and thus, UTMB retains sovereign immunity from suit; and Robinson did not avail herself of her administrative remedies prior to suit, thus, preventing her from prosecuting her suit against UTMB. Robinson contends in three issues that (1) UTMB=s failure to properly return her husband=s remains constitutes a tort arising from a duty to properly handle human remains; (2) the use of a body to train medical students constitutes the Ause of property@ such as to waive sovereign immunity; and (3) UTMB=s failure to return her husband=s body constitutes a breach of contract, and, thus, the waiver provisions of the Texas Tort Claims Act[1] provide her relief from UTMB=s immunity claims. We affirm. Background Helen Robinson filed suit against UTMB for the mishandling of the remains of her deceased husband, Ray Robinson. Mr. Robinson donated his body to the Anatomical Board of the State of Texas with arrangements for disposition to be made by UTMB under the AUTMB Willed-Body Program.@[2] Prior to his death, he executed a document entitled AWill Form@ which provided, among other provisions, for the cremation of his body on final disposition. By handwritten annotation, Mr. Robinson directed that after cremation his body be returned to his family. The agreement also contained an express relinquishment of rights and claims for liability against the Anatomical Board of the State of Texas and the receiving institution. Mr. Robinson=s body was delivered to UTMB upon his death. Later, Robinson received notification from UTMB that it was unable to return her husband=s ashes as the ashes were commingled with other donors= ashes. Robinson filed suit asserting a breach of contract claim, negligence, gross negligence for mental anguish, negligent supervision and constructive fraud. UTMB filed a plea to the jurisdiction alleging sovereign immunity, lack of legislative consent to sue, and that the suit fell outside the Texas Tort Claims Act as the body was not personal property. The plea to the jurisdiction was granted by the trial court. Standard of Review A governmental unit is immune from suit and liability unless the state has granted consent. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). A governmental entity=s immunity from suit defeats a court=s subject matter jurisdiction. Id. Thus, in a suit against a governmental unit, a plaintiff must affirmatively demonstrate the court=s jurisdiction by alleging a waiver of that immunity. See id. In determining whether a plaintiff has met this burden in a plea to the jurisdiction based on sovereign immunity, we look to the facts alleged by the plaintiff and the evidence relevant to the jurisdictional issue to determine whether the claim comes within a waiver of immunity. Id. In this case, it is undisputed that UTMB is a governmental unit and shares this governmental immunity. See Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). Breach of Contract Claim Robinson, in her third issue, argues that UTMB violated the agreement by not returning her husband=s remains. She further argues that UTMB is not immune from suit for breach of contract by reason of sovereign immunity because of the performance by Robinson of the terms of the agreement. In response, UTMB argues that Robinson cannot prevail because the state did not consent to the suit. When the state contracts with a private party, it thereby waives immunity from liability, but not from suit, which can only be waived by express consent of the legislature. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003). For the legislature to waive the state=s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the legislature=s waiver of immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). For agreements entered into between the state and an individual, such as this one, after August 30, 1999, Chapter 2260 of the Texas Government Code provides the exclusive and required method for resolving breach of contract suits. Tex. Gov=t Code Ann. ' 2260.005 (Vernon Supp. 2004B05); Gen. Servs. Comm=n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex. 2001), overruled on other grounds by Texas Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)). Compliance with Chapter 2260 is necessary before a party can sue the state for breach of contract. Texas Dep=t of Transp. v. Aer-Aerotron, Inc., 39 S.W.3d 220, 221 (Tex. 2001). Chapter 2260 provides an administrative process for the resolution of written contract claims against the state arising from the sale of goods, services, or construction. See Tex. Gov=t Code Ann. ' 2260.001(1) (Vernon 2000); Little-Tex Insulation Co., 39 S.W.3d at 595. Such administrative process requires that written notice be provided to the state within 180 days of the event giving rise to the claim with such notice stating with particularity the nature of the breach, the amount claimed for damages, and the legal theory for the recovery. Tex. Gov=t Code Ann. '2260.051 (Vernon 2000). Robinson did not plead or prove that she followed these procedures and availed herself of Chapter 2260=s exclusive method for resolving breach of contract claims. She further failed to plead or prove that the legislature consented to suit in the form of a statute or resolution. As a result, Robinson=s contract claim must fail, and we overrule her third issue. Claim Of Sovereign Immunity Waiver Robinson next contends that UTMB=s use of her husband=s body to train medical students constitutes Ause of tangible personal property@ such that the Texas Tort Claims Act=s waiver of immunity applies. For use of property to occur under the Texas Tort Claims Act, one must Aput or bring@ the property into Aaction or service.@ Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). AUse@ under the Texas Tort Claims Act has been defined to mean Ato employ for or apply to a given purpose.@ Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 178 (Tex. 1994). For the property exception to apply, the property must be the instrumentality of the harm. Texas Dep=t of Crim. Justice v. Diller, 127 S.W.3d 7, 11 (Tex. App.CTyler 2002, pet. denied). Here, UTMB=s use of the body was complete, and the only act remaining was the return of the ashes to Robinson. Return of the ashes was not the intended use of the body; therefore, the Texas Tort Claims Act=s waiver provisions do not apply. As a result, this contention fails, and we overrule Robinson=s second issue. Special Relationship Claim Robinson contends in her first issue that UTMB=s failure to return her husband=s remains gives rise to a cognizable tort claim due to the long standing legal duty to properly handle human remains. Texas does not recognize a general legal duty not to negligently inflict mental anguish damages for such damages are only recoverable for the breach of some other legal duty. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997); Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993). Robinson asserts that the provisions contained in the enabling statutes permitting the willed body program provide that legal duty. The Texas Legislature provided for the distribution of cadavers to institutions such as UTMB through the Anatomical Board of the State of Texas (AAnatomical Board@). Tex. Health & Safety Code Ann. ' 691.022 (Vernon Supp. 2004B05). The Anatomical Board has provided that the dissection of human remains is a special privilege and provided for the return of the remains to the family if so requested. 25 Tex. Admin. Code '' 479.4, 479.5 (2004). Robinson urges that these statutory requirements create a Aspecial relationship@ which has been recognized by the courts. Kerr, 855 S.W.2d at 600. Robinson further argues that this special duty is akin to a fiduciary duty which would remove her claim from immunity from suit. UTMB, on the other hand, urges that there is no recognized cause of action against state entities for which mental anguish damages are recoverable. In order for the Texas Tort Claims Act to waive sovereign immunity in limited circumstances, there must already exist a cause of action outside the Texas Tort Claims Act. Likes, 962 S.W.2d at 494. However, the Texas Tort Claims Act makes no reference to statutory duties, and there is no pre-existing common law tort duty regarding the handling of willed bodies. See Tex. Civ. Prac. & Rem. Code Ann. '' 101.001B.109; cf. Perry v. S.N., 973 S.W.2d 301, 309 (Tex. 1998) (refusing to adopt a statutory duty under the Family Code as a duty and standard of conduct in tort). The existence of statutory duties does not create a special duty cause of action for which mental anguish damages are recoverable. Cf. Fitzgerald v. Copeland, 80 S.W.3d 297, 305 (Tex. App.CFort Worth, 2002, pet. denied) (A[A] motorist owes no special duty to avoid inflicting mental anguish damages on other users of the highway.@). Robinson further urges that UTMB=s failure to return the body, in accordance with the instructions contained in the contract, creates a breach of a special duty permitting recovery under the Texas Tort Claims Act for mental anguish damages. A claim for mental anguish damages based on a special relationship is not a separate cause of action, but merely an element of recovery for the breach of another legal duty. Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, at *3 n.3 (Tex. App.CHouston [14th Dist.] Aug. 7, 2003, pet. denied). The character of the claim, as between tort and contract, is determined by the source of the duty breached, not whether the breach results from negligence. Id. (citing DeWitt County Elec. Co-op v. Parks, 1 S.W.3d 96, 105 (Tex. 1999). Such claim by Robinson would depend upon the existence of a contractual duty which UTMB breached. As the contract spells out the parties= rights concerning the use of the body, the contract would govern the dispute between the parties. Dewitt, 1 S.W.3d at 105. This special relationship claim asserted by Robinson arises from the contract and not an independent tort action. Noah v. University of Tex. Med. Branch at Galveston, No. 01‑03‑00985, No. 01‑03‑00986‑CV, 2004 WL 1794642, at *9 (Tex. App.CHouston [1st Dist.] Aug. 12, 2004, pet. denied); Taylor v. Anatomical Board of Texas, 148 S.W.3d 661, 665 (Tex. App.CBeaumont 2004, pet. denied). By entering into a contract the State does not waive its immunity from suit. Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 408 (Tex. 1997), superseded by statute on other grounds as stated in Little‑Tex Insulation Co., 39 S.W.3d at 593. By its failure to return the remains, as set forth in the contract, Robinson is asserting a waiverBbyBconduct exception to the sovereign-immunity rule. The Texas Supreme Court has expressly declined to adopt such an exception, and we decline to do so here. See Texas Natural Res. Conservation Comm=n. v. ITBDavy, 74 S.W.3d 849, 857 (Tex. 2002). As explained above, in this context, breach of contract claims are not actionable against UTMB and cannot promote a cognizable claim for mental anguish damages. UTMB has not waived immunity from suit by contracting with Robinson in this instance, and Robinson has not availed herself of her administrative remedies as provided by the legislature. The legislature has provided that Robinson may pursue her claims through legislative consent, administrative review or resolution of the legislature. See id. at 860. Robinson has, however, sought judicial review, and the law does not favor her in this regard, and her claim is rejected. Robinson further argues that UTMB is liable to her for its negligent supervision of the Willed Body Program, and such failure constitutes a misuse of tangible property that injured her. She cites Texas A & M University v. Bishop, in which the court found that tangible personal property was misused when the university failed to adequately supervise students presenting a drama wherein one of the students was injured by a knife used in the play. 105 S.W.3d 646, 656 (Tex. App.CHouston [14th Dist.] 2002), rev=d, 156 S.W.3d 580 (Tex. 2005). However, the Texas Supreme Court in reversing Bishop, found that the faculty sponsors, and their employer, Texas A & M University, did not Ause@ the personal property and thus did not waive immunity. See Bishop, 156 S.W.3d at 583B84. As we have found that the intended use of the body had been completed, there was no use of property that would fall under the limited waivers of the Texas Tort Claims Act. Thus, there can be no negligent supervision constituting a misuse of tangible property, and this claim fails. Robinson next claims constructive fraud against UTMB for UTMB=s breach of its special duty to properly handle willed bodies, i.e. a breach of fiduciary duty. The Tort Claims Act provides for governmental unit liability for personal injury caused by a condition or use of tangible personal property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. '101.021(2) (Vernon 1997). The claim for constructive fraud does not fall within the Texas Tort Claim Act=s limited waiver of immunity; therefore, UTMB retains its immunity. See City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex. App.CFort Worth 2001, no pet.). As we have already determined that there is no claim for misuse of tangible personal property, this claim must also fail. In this case, except for the contract claim, addressed previously, Robinson alleges no cause that would defeat the sovereign immunity enjoyed by UTMB. All the remaining causes allege a special relationship cause of action against UTMB arising out of the willed donor contract. We conclude the special relationship cause of action sounds in contract, and we have found no Texas case law supporting a tort duty owed to Robinson. Therefore, we overrule Robinson=s first issue. Accordingly, we affirm the judgment of the trial court. /s/ Brady G. Elliott Judge Judgment rendered and Majority and Concurring Opinions filed June 30, 2005. Panel consists of Justices Fowler, Edelman, and Elliott.[3] (Fowler, J., concurring.) [1] See Tex. Civ. Prac. & Rem. Code Ann. '' 101.001B.109 (Vernon 1997 & Supp. 2004B05) (hereinafter ATexas Tort Claims Act.@) [2] Authorization for the receipt of bodies is through the Anatomical Board of the State of Texas. Tex. Health & Safety Code Ann. ' 691.028 (Vernon Supp. 2004B05). [3] The Honorable Brady G. Elliott, Judge of the 268th District Court of Fort Bend County, sitting by assignment pursuant to Tex. Gov=t Code Ann. ' 74.003(h) (Vernon 2005).