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Charlie Cannon D/B/A Charlie Cannon Contracting v. the City of Hurst, Texas ( 2005 )


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                                                    COURT OF APPEALS

                                                     SECOND DISTRICT OF TEXAS

                                                                     FORT WORTH

     

                                            NO. 2-04-049-CV  

     

     

    CHARLIE CANNON D/B/A CHARLIE                                         APPELLANT

      

    CANNON CONTRACTING

     

                                                       V.

     

    THE CITY OF HURST, TEXAS                                                   APPELLEE

     

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                FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

     

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                                    MEMORANDUM OPINION[1]

     

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    In a single issue Appellant Charlie Cannon asserts that the trial court erred by granting the City of Hurst=s plea to the jurisdiction because section 51.075 of the Texas Local Government Code[2] waives the City=s immunity from suit. The City of Hurst, a home-rule municipality, contracted with Owen Commercial Construction, Inc. for the construction of a public recreational facility.  Owen subcontracted with Cannon for masonry work on the project, and Cannon began to perform under the contract.  The City paid Owen, but Owen did not pay Cannon for completed work and terminated Cannon=s contract before the project was finished.  Cannon sued Owen and the City.  The City filed a plea to the jurisdiction on governmental immunity grounds, and the trial court granted it.  This appeal followed.

    A split of authority exists in the various courts of appeals regarding whether or not the phrases Aplead and be impleaded@ and Asue or be sued@  waive governmental immunity from suit, and these issues are currently pending before the Texas Supreme Court.  See City of Greenville v. Reeves, 165 S.W.3d 920, 923 (Tex. App.CDallas 2005, pet. filed) (addressing local government code section 51.075); City of Greenville v. Sisk Utils., Inc., 164 S.W.3d 931, 933 (Tex. App.CDallas 2005, pet. filed) (same); City of Mexia v. Tooke, 115 S.W.3d 618, 623‑24 (Tex. App.CWaco 2003, pet. granted) (same); see also Serv. Employment Redevelopment v. Fort Worth Indep. Sch. Dist., 163 S.W.3d 142, 156-57 & n.8 (Tex. App.CFort Worth 2005, pet. filed) (listing twelve courts of appeals cases addressing whether Asue and be sued@ language constitutes a waiver of immunity from suit); Desoto Wildwood Dev., Inc. v. City of Lewisville, No. 02-04-149-CV, 2005 WL 2839017, at *8 (Tex. App.CFort Worth Oct. 27, 2005, no pet. h.) (holding local government code section 51.075 waives a home-rule municipality=s immunity from suit and that Athere is no applicable distinction between the >plead and be impleaded= and >sue and be sued= phrases@).

    Unless the supreme court instructs us otherwise, we will follow our court=s decision in Desoto Wildwood Development, Inc. v. City of Lewisville.  We hold here, as we did in Desoto Wildwood, that local government code section 51.075 constitutes a waiver of the City=s immunity from suit and that, consequently, the trial court erred by granting the City=s plea to the jurisdiction.[3]  We reverse the trial court=s judgment and remand the case to the trial court.

     

     

     

    SUE WALKER

    JUSTICE

     

    PANEL M:   LIVINGSTON, WALKER, and MCCOY, JJ.

     

    DELIVERED: November 23, 2005


    [1]See Tex. R. App. P. 47.4.

    [2]Tex. Loc. Gov=t Code Ann. ' 51.075 (Vernon 1999) (providing that home-rule municipalities may Aplead and be impleaded in any court@).

    [3]We do not reach the issue of whether the City of Hurst is immune from liability.  See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (recognizing immunity from liability protects the State from judgments, even where there is an express consent on the part of the legislature to permit a suit).