MURRY B. COHEN, Justice.
This is an interlocutory appeal from an order denying appellant's plea to the jurisdiction based on sovereign immunity. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.1998). We modify the order to dismiss Araserve's tort and constitutional claims, and we affirm the order, including that portion denying sovereign immunity on Araserve's contract claims, as so modified.
We construe Araserve's pleadings in its favor and take those allegations as true. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).
In 1981, TSU and Araserve's predecessor contracted for Araserve to provide food services for TSU. Araserve provided $122,778.50 in food and services that TSU requested but refused to pay for.
Araserve sued, asserting claims for: (1) contract; (2) quasi-contract (quantum meruit, unjust enrichment, and detrimental reliance); (3) tort (common-law fraud, misrepresentation, and negligent misrepresentation); and (4) constitutional violations (due process, due course of law, and equal protection violations
TSU filed a jurisdictional plea based on sovereign immunity. The trial judge denied TSU's plea and abated the cause while the Texas Supreme Court consideredTexas Southern University v. Federal Sign
II. Contract and Quasi-Contract Claims
TSU contends sovereign immunity from suit bars Araserve's contract and quasi-contract claims.
As a general rule, the State cannot be sued for damages without its express permission. Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997). Even if the State consents to be sued, it generally remains immune from liability. Id. TSU is a State agency entitled to sovereign immunity. Id. TSU concedes it waived immunity from liability by contracting with Araserve, but TSU contends it remains immune from suit.
The precise issue here is whether a government contractor that fully performs its contract must obtain legislative consent to sue for agreed payment. Both parties contend this case is controlled by Federal Sign v. Texas Southern University.
A. Federal Sign v. Texas Southern University
TSU accepted Federal Sign's bid to build and deliver basketball scoreboards. See Federal Sign, 951 S.W.2d at 403. After Federal Sign began work, but before completion or delivery, TSU contracted with another company. Id. TSU asserted sovereign immunity from Federal Sign's breach of contract suit, but the judge granted judgment for Federal Sign. Id. The court of appeals and the Supreme Court held the suit was barred by sovereign immunity.
The six-justice majority held:
Id. at 408 (emphasis in original). The majority opinion six times stated that only the legislature may waive sovereign immunity from suit. Id. at 405, 408, 409, 412. However, the majority also stated:
Id. at 408 n. 1 (emphasis added).
Four justices who joined the majority opinion also concurred, emphasizing that the issue before the Court was narrow: whether "the State, merely by entering into a contract for goods and services, waives immunity from suit for breach of the contract before the other party has tendered performance." Id. at 412 (Hecht, J., concurring) (emphasis added). The concurring opinion stated:
Id. at 412-13 (emphasis in original). However, in explaining why the Court would not abolish sovereign immunity from all contract suits, the concurring opinion then set out four "compelling reasons" to defer to the legislature to waive immunity from suit: (1) the handling of contract claims against the government involves complex policy choices (and the legislature has repeatedly considered but rejected waiving all immunity from contract suits); (2) not all factors that weigh in determining the State's contract liability can be assessed in a judicial proceeding (for example, whether the State must honor long-term
Id. at 415 (Hecht, J., concurring).
B. The Parties' Interpretation of
TSU reads Federal Sign's majority opinion broadly, concluding "a private citizen must have legislative consent to sue the State on a breach of contract claim." Federal Sign, 951 S.W.2d at 408. It relies also on the concurring opinion's compelling reasons to leave sovereign immunity's waiver to the legislature alone. Id. at 413-15. In contrast, Araserve relies upon the portion of Federal Sign's concurring opinion (and the majority opinion's footnote one) suggesting "the State may waive immunity by conduct other than simply executing a contract." Id. at 412-13 (Hecht, J., concurring). As another court recently asked, do we follow the Federal Sign majority opinion's broad language or the concurring opinion's strong suggestion? See Alamo Community College Dist. v. Obayashi Corp., 980 S.W.2d 745, 748 (Tex.App.-San Antonio Aug. 31, 1998, pet. filed) (designated for publication). What of the fact that both opinions leave open the possibility of waiver without legislative approval, while also reaffirming decades of law that only the legislature may or should waive immunity from contract suits?
C. Waiver by Conduct Beyond the Contract's Execution
We agree with the Obayashi court that Federal Sign's holding was only that sovereign immunity from suit is not waived merely by executing a contract. Obayashi, op. at 748. Accordingly, we hold TSU did not waive its sovereign immunity from suit merely by executing the contract. See id. That does not decide this case, of course, because Araserve did more than tender performance—it performed, fully and repeatedly. Neither Federal Sign nor the three Supreme Court opinions on which it relied—Missouri Pacific Railroad Company v. Brownsville Navigation District,
As the Federal SignCourt implied, there is no Supreme Court precedent directly addressing the situation here. See Federal Sign, 951 S.W.2d at 408 n. 1.
In Herring, a bank sued the Texas Prison Commission for money from the sale of land. Herring, 269 S.W. at 1031. The Court held the State could not be sued without consent. Id. at 1033. However, the State was attempting to set aside the purchase; thus, that lawsuit was not, like this one, to recover for accepted goods and services. See id. at 1031.
In Dodgen, a company had a state permit to take mudshell from Galveston Bay. Dodgen, 308 S.W.2d at 838-39. When the Game and Fisheries Commission changed the permit's terms, the company sued for a declaration of its rights under the permit, which it contended was a contract. Id. at 839. The Court held the suit was one against the State
In Missouri Pacific Railroad, MOPAC sought indemnity from the Brownsville Navigation District for its liability in a wrongful death suit under a "written track agreement" with the district. Missouri Pac. R.R., 453 S.W.2d at 812-13. This agreement prohibited the district from allowing certain objects to be placed near the track; MOPAC alleged the district allowed an object, which caused a worker's death, to be so placed. Id. While recognizing the State's immunity from contract suit, the Court held that a "sue and be sued" statute showed legislative permission. Id. at 813. Neither the agreement nor the allegations were the same as here.
In University of Texas at Dallas v. Ntreh, on which TSU relies, the Court affirmed dismissal of a contract claim for the same reasons set out in Federal Sign. Ntreh, 947 S.W.2d 202, 202 (Tex.1997). In Ntreh, however, the contract claim was based on wrongful student discipline; it was not one for payment of delivered goods and services. Ntreh v. University of Texas at Dallas, 936 S.W.2d 649, 650 (Tex.App.-Dallas 1996), aff'd in part and modified in part, 947 S.W.2d 202 (Tex.1997). Ntreh is not dispositive.
The Obayashi opinion is the only one applying Federal Sign's concurring opinion's suggestion to the factual situation before us.
The Obayashi court interpreted Federal Sign as holding only that the State's mere execution of a contract does not waive immunity from suit. Id., op. at 748. Second, the Obayashi court held that ACCD had waived sovereign immunity from that contract suit:
Id., op. at 749-750. Obayashi answers our inquiry in Araserve's favor.
We recognize that there are some factually similar court of appeals opinions—deciding cases in which the plaintiff had fully performed his contract, the State refused to pay, and the plaintiff sought payment for the goods and services rendered—holding that the legislature must still consent to suit, but these were decided before Federal Sign. See Firemen's Ins. Co. of Newark, N.J. v. University of Texas Sys., 909 S.W.2d 540, 542 (Tex.App.-Austin 1995, writ denied); Green Int'l, Inc. v. State, 877 S.W.2d 428, 433 (Tex. App.-Austin 1994, writ dism'd). Therefore, they are not controlling.
TSU also relies on the fact that the Supreme Court denied application for writ of error in Firemen's Insurance Company of Newark, N.J. v. University of Texas System on the same day it decided Federal Sign. The Firemen's Insurance court held legislative consent was required to sue the defendant governmental entity even though the project was 97 percent complete before the State refused payment. See id. at 542. The Supreme Court denied writ and overruled a rehearing motion. Firemen's Ins. Co. of Newark New Jersey v. Board of Regents of the Univ. of Texas Sys., 40 Tex. S.Ct. J. 938 (July 31, 1997). TSU argues that the denial of writ in Firemen's Insurance shows the Court intended not to change the requirement that consent to suit must come from the legislature.
We disagree. The Supreme Court's denial of an application for a writ of error does not reflect approval or even consideration of the case's merits. TEX. GOV.CODE ANN. § 22.007(e) (Vernon 1988); Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 694 n. 2 (Tex.1990); see Tex.R.App. P.69.1; Obayashi, op. at 749-750 ("[W]e decline to read the denial of writ in Firemen's [Insurance]as an implicit rejection of the suggestion in the Federal Signmajority and concurring opinions that sovereign immunity [from suit] may be waived by conduct other than entering a contract....").
Do we follow the Federal Sign majority opinion's broad language or the concurring opinion's strong suggestion? We agree with the Obayashi court that the Federal Sign concurring opinion's suggestion controls. We are not unmindful of the well-founded rule, which Federal Sign's majority and concurring opinions repeatedly reaffirmed, that only the legislature may waive sovereign immunity from suit. Nor do we ignore the compelling reasons cited by the Federal Sign concurring opinion for not abolishing all contract suit immunity. However, when three justices would abolish sovereign immunity in contract cases, a six-justice majority states "there may be" circumstances in which the State waives immunity from contract suits by conduct exceeding the contract's execution, and a four-justice concurrence strongly suggests such a waiver under facts identical to those here, we will follow that suggestion. See Obayashi, slip op. at 749-750.
Our decision is eased by other factors. First, many policy considerations that the Federal Signconcurring opinion said weighed against abolishing sovereign immunity do not exist for contract work already completed and accepted.
Araserve's contract and quasi-contract claims seek only payment for the goods and services it provided and TSU accepted (plus contractual interest), nothing more. Therefore, we hold TSU waived its sovereign immunity from Araserve's contract and quasi-contract suit by the conduct alleged here, which exceeded the contract's mere execution in a way specifically recognized by the Federal Sign concurring opinion. See Federal Sign, 951 S.W.2d at 408 n. 1 & 412-13 (Hecht, J., concurring); Obayashi, op. at 750.
We overrule TSU's challenge to the denial of its jurisdictional plea on Araserve's contract and quasi-contract claims. We do not reach Araserve's alternative arguments (venue statute, attorney's fee provision) concerning waiver of immunity from suit for these claims or its request for abatement.
III. Tort Claims
TSU next argues the trial judge erred in denying its jurisdictional plea on Araserve's fraud, misrepresentation, and negligent misrepresentation claims. Specifically, TSU argues (1) they sound in contract, not tort, and, alternatively, (2) the Texas Tort Claims Act
Araserve does not contend the TTCA waives TSU's sovereign immunity from its tort claims. Rather, Araserve contends only that TSU waived its right to assert an immunity defense to these claims by not pleading the defense sufficiently below. We disagree. TSU's answer and plea to the jurisdiction stated, "Absent a showing of waiver of the doctrine of sovereign immunity, this court is without jurisdiction to entertain a suit against the State of Texas...." TSU's briefs below argued that sovereign immunity from suit (1) extended to tort claims and (2) barred money damages as a remedy for the constitutional and tort claims. We hold this raised the defense of sovereign immunity. Nothing was waived. See, e.g., Petta v. Rivera, 923 S.W.2d 678, 686 (Tex. App.-Corpus Christi 1996, writ denied) (holding sovereign immunity not waived when answer noted claims were "barred by sovereign immunity").
We sustain TSU's challenge to the denial of its jurisdictional plea on Araserve's tort claims.
IV. Constitutional Claims
TSU also argues the trial judge erred in denying its jurisdictional plea on Araserve's constitutional claims. Specifically, TSU argues that, because Araserve seeks damages for these claims, they are in the nature of a constitutional tort, a claim that Texas does not recognize. Again, Araserve argues TSU waived this challenge by not raising it below.
There is no implied right of action for damages for violation of state constitutional rights. City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.1995). Suits without consent seeking equitable remedies for constitutional violations are allowed, but suits for money damages are not. Alcorn v. Vaksman, 877 S.W.2d 390, 404 (Tex.App.-Houston [1st Dist.] 1994, writ denied). TSU argued below that sovereign immunity barred all constitutional claims for money damages.
We sustain TSU's challenge to the denial of its jurisdictional plea on Araserve's constitutional claims.
We modify the order denying TSU's plea to the jurisdiction to dismiss only Araserve's tort and constitutional claims, and we affirm the order as so modified.
OPINION ON REHEARING
On Motion for rehearing, Texas Southern University (TSU) argues for the first time that we should treat appellee's contract and quasi-contract claims differently, because TEX. CONST. art. III, § 44 precludes quasi-contractual claims against the State. That is the opposite of what TSU argued to us in its brief, where it stated:
TSU's motion for rehearing is