Judy Tooke and Everett Tooke d/b/a Tooke & Sons and d/b/a Nature's Way Organic Landscaping v. City of Mexia

Summary

The Supreme Court of Texas held that statutory phrases such as "sue and be sued" and "plead and be impleaded" do not, standing alone, clearly and unambiguously waive governmental immunity from suit. The Court overruled Missouri Pacific Railroad Co. v. Brownsville Navigation District to the extent it held otherwise and concluded that section 51.075 of the Texas Local Government Code did not waive the City of Mexia's immunity from the Tookes' breach-of-contract claim. The Court affirmed the court of appeals' judgment, noting that a later statutory waiver did not permit recovery of the consequential damages awarded.

Holdings

1. Such phrases do not, by themselves, clearly and unambiguously waive governmental immunity from suit. Their meaning depends on the statutory context and may concern only an entity's capacity to sue and be sued.
2. Section 51.075, which states that a home-rule municipality may plead and be impleaded in any court, does not clearly and unambiguously waive the City's immunity from suit for breach of contract.
3. The City's partial performance and payment for the work actually performed did not waive immunity from suit for the Tookes' claim for lost profits on unperformed work.
4. The Court did not decide whether the proprietary-governmental distinction governs immunity from suit for breach-of-contract claims, but held that the contract involved solid-waste collection, a statutory governmental function.
5. The City's charter provision stating that the City may sue and be sued, contract and be contracted with, and implead and be impleaded did not clearly and unambiguously waive governmental immunity from suit.
6. Texas Local Government Code sections 271.151-.160 applied retroactively to the pre-effective-date contract, but did not waive immunity for the Tookes' claim because their lost-profit damages were consequential damages excluded by section 271.153.
7. Missouri Pacific Railroad Co. v. Brownsville Navigation District is overruled to the extent it held that a standalone sue-and-be-sued clause in an organic statute always waives governmental immunity from suit.

Questions Presented

1. Whether Texas Local Government Code section 51.075, providing that a home-rule municipality may plead and be impleaded in any court, clearly and unambiguously waives governmental immunity from suit for breach of contract.
2. Whether the City's partial performance of the contract and acceptance of its benefits waived immunity from suit.
3. Whether the governmental/proprietary-function distinction eliminated the City's immunity from suit for this contract.
4. Whether the City's charter provision allowing it to sue and be sued, contract and be contracted with, and implead and be impleaded waived immunity from suit.
5. Whether the 2005 statutory waiver in Texas Local Government Code sections 271.151-.160 applied retroactively and authorized the Tookes' lost-profit claim.
6. Whether Missouri Pacific Railroad Co. v. Brownsville Navigation District should be overruled to the extent it held that a standalone statutory sue-and-be-sued clause always waives governmental immunity from suit.

Disposition

affirmed