
Opinion issued August 12, 2004






            










In The
Court of Appeals
For The
First District of Texas
 

 
 
NO. 01-03-00985-CV
__________

JOE NOAH AND SUSAN NEWMAN, Appellants

V.

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
Appellee




On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 03CV0134-A
 

 


* * * * *


__________

NO. 01-03-00986-CV
__________

TED BREEZY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF ELIZABETH ANN BREEZY; JOAN BREEZY SPEER;
KATHLEEN HAGAN; VICTORIA QUINN; PAUL HARGRAVE,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
MICHAEL HARGRAVE; LEANNA LANKFORD, INDIVIDUALLY AND
AS REPRESENTATIVE OF THE ESTATE OF BONNIE STANFORD
O’NEAL; SANDRA KOHLENBERG, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF BILLIE KOHLENBERG;
JOANN COOPER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF EDNA MAHAFFEY; GEORGE OLIVER JR.,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
GEORGE DAVIS OLIVER SR.; TANA EVERETT; CLIFTON EVERETT,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
BILLY EVERETT; DARON C. McCASLIN, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF JAMES B. McCASLIN; EDNA
PAULINE McCASLIN; TODD SISSON, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF LINDA PORRITT; SHAD
SISSON; BRANDI LANDUYUT; HARRIET WHITWORTH,
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
JOHN WHITWORTH; SAMUEL WHITWORTH; BARBARA HUNT;
MELINDA SLAUGHTER, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF MICHAEL GRAF; LACY GRAF; ANDREW GRAF;
HELEN CARRIG, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF PAUL CARRIG; THERESA CARRIG; KAY CALLIN;
MARTIN CARRIG; TINA VAUGHN, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF PEARL ETHEL PURVIS;
KEVIN TIPPIE; RICARDO BILLESCAS, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF IMELDA BILLESCAS
ROMEROS; IRMA YOUNG; VERONICA LOPEZ; YOLANDA B.
GARCIA; AND BELIA V. ZAMORA, Appellants

V.


UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
Appellee




On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 02CV0871-A
 



O P I N I O N
          We consider these two interlocutory, accelerated appeals together because they
present identical governmental immunity issues regarding the alleged mishandling
of willed bodies and remains.
 Appellants, Joe Noah and Susan Newman (“the Noah
plaintiffs”) and Ted Breezy, individually and as representative of the estate of
Elizabeth Ann Breezy, Joan Breezy Speer, Kathleen Hagan, Victoria Quinn, Paul
Hargrave, individually and as representative of the estate of Michael Hargrave,
Leanna Lankford, individually and as representative of the estate of Bonnie Stanford
O’Neal, Sandra Kohlenberg, individually and as representative of the estate of Billie
Kohlenberg, Joann Cooper, individually and as representative of the estate of Edna
Mahaffey, George Oliver Jr., individually and as representative of the estate of
George Davis Oliver Sr., Tana Everett, Clifton Everett, individually and as
representative of the estate of Billy Everett, Daron C. McCaslin, individually and as
representative of the estate of James B. McCaslin, Edna Pauline McCaslin, Todd
Sisson, individually and as representative of the estate of Linda Porritt, Shad Sisson,
Brandi Landuyut, Harriet Whitworth, individually and as representative of the estate
of John Whitworth, Samuel Whitworth, Barbara Hunt, Melinda Slaughter,
individually and as representative of the estate of Michael Graf, Lacy Graf, Andrew
Graf, Helen Carrig, individually and as representative of the estate of Paul Carrig,
Theresa Carrig, Kay Callin, Martin Carrig, Tina Vaughn, individually and as
representative of the estate of Pearl Ethel Purvis, Kevin Tippie, Ricardo Billescas,
individually and as representative of the estate of Imelda Billescas Romeros, Irma
Young, Veronica Lopez, Yolanda B. Garcia, and Belia V. Zamora (“the Breezy
plaintiffs”) (all appellants in both cases, collectively, “the plaintiffs”), challenge the
trial court’s orders granting, in each case, a plea to the jurisdiction in favor of
appellee, the University of Texas Medical Branch at Galveston (“UTMB”).

          In each case, the plaintiffs, in two issues, contend that the trial court erred in
granting UTMB’s pleas to the jurisdiction because the plaintiffs had adequately
alleged (1) that UTMB breached a “special relationship” with them, such as to permit
them to seek mental anguish damages against UTMB or, alternatively, that they are
entitled to seek recovery for such damages notwithstanding the existence of a special
relationship and (2) that UTMB caused their injuries by the use of “tangible personal
property,” such that UTMB’s governmental immunity was waived, pursuant to the
provisions of the Tort Claims Act.

          We affirm the orders of the trial court.
Factual and Procedural Background
          The plaintiffs, following the deaths of relatives who had agreed to donate their
bodies to UTMB, each signed UTMB forms, entitled “Donation of a Decedent’s
Body,” which read, in part, as follows:
I [signator] . . . donate said decedent’s body to [UTMB] for the purpose
of advancing medical science.

          . . . .
 
It is my understanding that [the] final disposition of the body shall be
cremation.
 
I hereby relinquish all rights and claims regarding hereon [sic] described
body, by any person whatsoever, and direct that in accepting and using
the body for scientific purposes, and disposing of the body, neither the
Anatomical Board of the State nor the receiving institution shall incur
any liability, and no claim shall arise against that institution in any
manner.

This form also provided that, in the event that UTMB did not need a body at the time
of a decedent’s death, the remains could be assigned to another institution.
          In July 2002, a representative of UTMB sent a letter to each of the plaintiffs
concerning the fate of the donated remains of the plaintiffs’ deceased relatives.  Each
letter read, in part, as follows:
I am writing to express my deep personal regret that we are unable to
return [the decedent’s] ashes to you.  On behalf of [UTMB], I pledge
that we will do everything in our power to symbolically recognize the
importance of [the decedent’s] contribution to medical education and
research.
 
We make no excuses for the failure of oversight that led to the
commingling of donors’ ashes and caused pain to the relatives of those
to whom we owe such a special debt of gratitude.  We also recognize
that nothing can ever take the place of the remains of your loved one.
 
. . . .
 
We understand your need for closure and are putting every effort into
finding answers to the questions that donors’ families have raised.  Our
internal audit continues, as does the criminal investigation, and I
promise to keep you informed of any significant findings or
developments.

          . . . .
 
We cannot undo what has been done, but we can reaffirm our deepest
appreciation for [the decedent’s] invaluable gift and vow to work hard
at regaining whatever trust we have compromised.

          The plaintiffs subsequently filed separate lawsuits against UTMB,
 asserting
causes of action for negligence, negligent supervision, negligent entrustment,
negligence per se, breach of contract, and constructive fraud.  In their “Sixth
Amended Petition,” the Breezy plaintiffs summarized the basis for their lawsuit as
follows:
While they were still alive, UTMB promised all of the people whose
ashes and remains are now missing that their bodies would only be used
for the advancement of medical science and education.  UTMB assured
these individuals and their families that their bodies would be treated
with the dignity and consideration that is due to every human being.  As
a result of UTMB’s failure of oversight and negligent practices,
however, the bodies of Plaintiff’s loved-ones were not used for the
advancement of science or education as promised, but were treated as
chattel.  Their ashes were commingled and are unable to be identified,
and their body parts were sold for profit.

The Noah plaintiffs based their causes of action against UTMB on similar allegations.
          The plaintiffs sought recovery of damages for mental anguish and emotional
distress, as well as their attorneys’ fees, and they alleged that their injuries had been
caused by either a condition of, or by UTMB’s use or misuse of, “tangible personal
property”


—specifically, the remains of the plaintiffs’ relatives and the tools and
equipment used in the cremation process.
          UTMB filed pleas to the jurisdiction in each case.  Among its several grounds,
UTMB argued that (1) no “special relationship” existed between the plaintiffs and
UTMB, such as would permit the plaintiffs to recover mental anguish damages
without sustaining a physical injury, and (2) the Tort Claims Act does not waive
UTMB’s governmental immunity from the plaintiffs’ causes of action.  The trial court
subsequently granted UTMB’s pleas to the jurisdiction, dismissed the plaintiffs’
causes of action against UTMB, and severed the plaintiffs’ claims against UTMB into
separate causes.
Governmental Immunity
          A governmental unit, such as UTMB, is immune from suit unless the State
consents to suit.  Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.
2003); see Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (Vernon Supp. 2004)
(defining “governmental unit”).  Governmental immunity from suit defeats a trial
court’s subject matter jurisdiction.  Whitley, 104 S.W.3d at 542.  In a suit against a
governmental unit, a plaintiff must, therefore, affirmatively demonstrate the trial
court’s jurisdiction by alleging facts demonstrating a waiver of immunity.  Id.  In our
review of the trial court’s rulings on UTMB’s pleas to the jurisdiction based on
governmental immunity, we determine from the facts alleged by the plaintiffs, and
from the evidence relevant to the jurisdictional issues, whether the plaintiffs’ claims
fall within a waiver of immunity.  Id.
          Under the Tort Claims Act, a state governmental unit, such as UTMB, is liable
for personal injuries “caused by a condition or use of tangible personal or real
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); see id. § 101.025 (Vernon 1997) (waiving governmental immunity
from suit “to the extent of liability created by this chapter”).  The Texas Supreme
Court has held that “the Tort Claims Act does not create a cause of action; it merely
waives sovereign immunity as a bar to a suit that would otherwise exist.”  City of
Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997).
          In their first issue, the plaintiffs argue that the trial court erred in granting
UTMB’s pleas to the jurisdiction because the plaintiffs “adequately alleged a breach
of a ‘special relationship’” establishing their standing to seek mental anguish
damages against UTMB in the absence of physical injuries.  The plaintiffs also argue,
in the alternative, that they are entitled to seek recovery of damages for mental
anguish from UTMB for its alleged breach of its contractual duties.
Special Relationship
          Here, the plaintiffs seek recovery of damages for their mental anguish and
emotional distress resulting from the commingling of the ashes and alleged
mishandling of the remains of their relatives.  Texas courts generally do not recognize
a legal duty to avoid negligently inflicting mental anguish.  Id.; Boyles v. Kerr, 855
S.W.2d 593, 597 (Tex. 1993).  However, the Texas Supreme Court has noted that
mental anguish damages may be compensable when they are a foreseeable result of
the breach of a duty arising out of certain “special relationships,” including “a very
limited number of contracts dealing with intensely emotional noncommercial subjects
such as preparing a corpse for burial.”  Likes, 962 S.W.2d at 496; see Pat H. Foley
& Co. v. Wyatt, 442 S.W.2d 904, 906 (Tex. Civ. App.—Houston [14th Dist.] 1969,
writ ref’d n.r.e.).  Special relationship cases generally have three common elements: 
(1) a contractual relationship between the parties, (2) a particular susceptibility to
emotional distress on the part of the plaintiff, and (3) the defendant’s knowledge of
the plaintiff’s particular susceptibility to the emotional distress, based on the
circumstances.  Lions Eye Bank v. Perry, 56 S.W.3d 872, 877 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied); see also Johnson v. Standard Fruit & Vegetable Co.,
984 S.W.2d 633, 638 (Tex. App.—Houston [1st Dist.] 1997), rev’d on other grounds,
985 S.W.2d 62 (Tex. 1998).
          Thus, Texas courts have recognized that a claimant may recover damages such
as those sought by the plaintiffs based on a contractual theory of liability.  We note,
however, that when a governmental unit contracts with a private party, the
governmental unit waives its immunity from liability, but not its immunity from suit. 
Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003).  A
governmental unit’s immunity from suit may be waived only by express consent.  Id.
          The plaintiffs argue that their special relationship claims sound in tort, not in
contract, and that, accordingly, they are not required to establish an express waiver
of immunity to proceed with their claims under the Tort Claims Act.  In support of
this assertion, the plaintiffs direct our attention to section 868 of the Restatement
(Second) of Torts, entitled “Interference with Dead Bodies,” which provides as
follows:
One who intentionally, recklessly or negligently removes, withholds,
mutilates or operates upon the body of a dead person or prevents its
proper interment or cremation is subject to liability to a member of the
family of the deceased who is entitled to the disposition of the body.

Restatement (Second) of Torts § 868 (1979).  The comments following this
section explain the basis for liability under such circumstances, in part, as follows:
The technical basis of the cause of action is the interference with the
exclusive right of control of the body, which frequently has been called
by the courts a “property” or a “quasi-property” right.  This does not,
however, fit very well into the category of property, since the body
ordinarily cannot be sold or transferred, has no utility and can be used
only for the one purpose of interment or cremation.

Id. cmt. a.
          It is true that, when a defendant’s conduct would give rise to liability
independently of the fact that a contract exists between the parties, the plaintiff’s
claims may also sound in tort.  DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 105
(Tex. 1999) (citing Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494
(Tex. 1991)).  However, if the defendant’s conduct would give rise to liability only
because it breaches the parties’ agreement, the plaintiff’s claims ordinarily sound only
in contract.  Parks, 1 S.W.3d at 105; see UTMB v. Harrison, No. 14-02-01276-CV,
2003 WL 21803314, at *3  (Tex. App.—Houston [14th Dist.] Aug. 7, 2003, pet.
denied) (mem. op.) (“[T]he character of a claim, as between tort and contract, is
determined by the source of the duty breached, not whether the breach results from
negligence . . . .”).
          In Parks, landowners sued an electrical utility cooperative for cutting down two
trees and trimming another that had grown within an easement.  Id. 1 S.W.3d at 98. 
The landowners and the cooperative had previously entered into an easement
agreement, which gave the cooperative certain rights with regard to trees that were
located on or near the easement.  Id. at 99.  Noting that the contract spelled out the
parties’ respective rights concerning the cutting of trees, the Texas Supreme Court
held that the landowners could not maintain a negligence claim independent of their
contract claim because the contract, and not common-law negligence, governed any
dispute about whether trees could be cut or how trees were to be cut.  Id. at 105.
          Here, as noted above, the causes of action asserted by the plaintiffs against
UTMB all originate from (1) the plaintiffs’ special relationships with UTMB, which
were formed as a result of their contractual agreements to donate the bodies of the
plaintiffs’ relatives, and (2) UTMB’s alleged breach of its duties owed to the
plaintiffs under this contractual special relationship.  With certain limitations, the
plaintiffs transferred the “right of control” of the remains of their relatives—the basis
for a potential tort cause of action under section 868—to UTMB by the terms of the
parties’ contractual agreements.  In the absence of these contractual arrangements, no
special relationship would have existed between the parties.  Thus, the source of the
duties allegedly breached by UTMB was the parties’ contractual agreements, not
section 868.  Moreover, the plaintiffs have not directed us to any Texas case adopting
section 868 of the Restatement (Second) of Torts as the basis for a tort cause of action
for breach of a special relationship.  Rather, as noted above, Texas courts have treated
such special relationship claims, generally, as sounding in contract.  See Likes, 962
S.W.2d at 496; Harrison, 2003 WL 21803314, at *3; Lions Eye Bank, 56 S.W.3d at
877; Johnson, 984 S.W.2d at 638; Wyatt, 442 S.W.2d at 906.
          We hold that, because the special relationship claims presented by the plaintiffs
in this case do not arise from a breach of any duties owed to the plaintiffs by UTMB
independent of its contractual duties, the plaintiffs’ special relationship claims sound
in contract, not tort.  See Harrison, 2003 WL 21803314, at *3 (holding that, because
plaintiffs did not allege that UTMB breached tort duties independent of contractual
duties, special relationship claims for mishandling of remains sounded in contract,
rather than in tort.).

          As noted above, to bring a lawsuit against a governmental unit for breach of
contract, a party must generally obtain express consent to sue.  Catalina, 121 S.W.3d
at 705; Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002); see
Tex. Civ. Prac. & Rem. Code Ann. §§ 107.001–.005 (Vernon 1997) (providing
statutory means to obtain legislative resolution granting permission to sue
governmental unit).  The Legislature has also provided an administrative process by
which parties can resolve claims against governmental units concerning written
contracts for goods, services, or construction.  See Tex. Gov’t Code Ann.
§§ 2260.001–.108 (Vernon 2000 & Supp. 2004); Gen. Servs. Comm’n v. Little-Tex.
Insulation Co., Inc., 39 S.W.3d 591, 595-96 (Tex. 2001).  Chapter 2260 expressly
provides that its procedures do not apply to claims for personal injuries arising from
an alleged breach of a contract and that its procedures “are exclusive and required
prerequisites to suit” under Chapter 107.  Tex. Gov’t Code Ann. §§ 2260.002,
2260.005 (Vernon Supp. 2004).
          Here, it is undisputed that the plaintiffs did not obtain legislative consent to sue
UTMB.  The plaintiffs assert that, because their claims for personal injuries do not
fall within the types of claims requiring compliance with the administrative process
established by Chapter 2260, “UTMB’s claimed immunity [from suit] is unavailing.” 
However, the fact that Chapter 2260 does not apply to the plaintiffs’ claims does not
mean that UTMB has waived its governmental immunity from suit.  Rather, the
plaintiffs must still establish the existence of consent to sue UTMB.  See Harrison,
at *2.
          Because the record indicates that the plaintiffs did not establish the existence
of legislative consent to sue UTMB for their special relationship claims, which arose
from a breach of contract, we hold that UTMB is immune from suit on such claims
and that the trial court did not have subject matter jurisdiction over those claims.
 
Duties Created by Statute
          The plaintiffs alternatively argue that, independently of its contractual duties,
UTMB breached certain statutory duties created by the provisions of the
Administrative Code
 and the Health and Safety Code
 concerning the handling and
disposal of the remains of willed bodies and prohibiting the sale or transfer of bodies
or body parts out of state.
          Although these statutes prescribe the manner in which UTMB and other
institutions must handle and dispose of willed bodies and their remains,
 the plaintiffs
do not point to any provisions in these statutes creating a private cause of action or
an express waiver of governmental immunity from suit.  Legislative consent to suit,
whether expressed by statute or otherwise, must be given in “clear and unambiguous
language.”  Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994); see,
e.g., Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 1997) (“Sovereign
immunity to suit is waived and abolished to the extent of liability created by this
chapter.”).
          Accordingly, we hold that the plaintiffs have not shown that the provisions of
the Administrative Code and the Health and Safety Code contain an express statutory
waiver of UTMB’s governmental immunity from the plaintiffs’ suit for the recovery
of mental anguish damages.
Waiver by Conduct
          The plaintiffs further argue that UTMB’s conduct in allegedly breaching its
contractual duties constitutes an equitable basis for this Court to hold that UTMB
waived its governmental immunity from suit.
          Although the Texas Supreme Court has suggested that certain circumstances
“might warrant recognizing a waiver by conduct,” the Court has, so far, not
recognized such a waiver when a governmental unit simply breaches its contractual
duties.  Catalina, 121 S.W.3d at 706; see Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,
408 n.1 (Tex. 1997).  In the absence of any precedential authority setting out more
than the possibility of an equitable waiver of immunity by such conduct, we decline
to recognize an equitable waiver of UTMB’s immunity from suit under these
circumstances.  See Harrison, at *2 n.2 (“As an intermediate appellate court, we defer
to the Texas Supreme Court to decide when, if ever, and under what circumstances
such a contention might become sustainable.”).
Conclusion
          We hold that, under the circumstances presented, the plaintiffs have not
established the existence of a waiver of UTMB’s immunity from suit for their causes
of action seeking recovery solely of mental anguish damages.  Accordingly, we
further hold that the trial court did not err in granting UTMB’s pleas to the
jurisdiction, and we overrule the plaintiffs’ first issue.  Because our resolution of this
issue disposes of these appeals, we do not consider the plaintiffs’ second issue.
          We affirm the orders of the trial court.
 
 

                                                                        Terry Jennings
                                                                        Justice

Panel consists of Justices Taft, Jennings, and Hanks.
