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    EPGT TEXAS PIPELINE, L.P., Successor to PG & E Texas Pipeline, L.P., Appellant, v. HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellee.
    No. 01-02-01056-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 12, 2004.
    Rehearing Overruled Sept. 24, 2004.

      Jack D. Ballard, Mary Jo Cantu, The Ballard Law Firm, Houston, TX, for Appellant.
    Dennis S. Dresden, Benckenstein, Nor-vell & Nathan, LLP, Mark Allen, Tekell Book, Robin T. Pickle, Frank E. Sanders, Assistant County Attorney, Houston, TX, for Appellee.
    Panel consists of Justices ALCALA, HIGLEY, and BLAND.
   OPINION

JANE BLAND, Justice.

EPGT Texas Pipeline, L.P., successor to PG & E Texas Pipeline, L.P. (PG & E) appeals a final summary judgment granted in favor of the appellee, Harris County Flood Control District (“HCFCD”). PG & E seeks damages resulting from the herniation and displacement of its gas pipeline in the City of South Houston, as a result of HCFCD’s nearby drainage excavation project. We conclude that (1) the Texas Tort Claims Act (“TTCA”) governs sovereign immunity for claims in tort against the State and the political subdivisions of the State, and PG & E does not allege a claim in tort for which the TTCA provides a waiver of immunity; and (2) the Water Code waives HCFCD’s immunity as to PG & E’s breach of contract claim, but the trial court properly granted summary judgment, because PG & E is not an intended third party beneficiary to the contract upon which it bases its claim. We therefore affirm the summary judgment as to PG & E’s tort and contract claims. We reverse and render the summary judgment on PG <& E’s inverse condemnation claim, however, as the Harris County Courts at Law have exclusive jurisdiction over such a claim, and the trial court thus lacked jurisdiction to enter summary judgment on the claim.

The Facts and the Procedural History

In 1961, HCFCD acquired an easement and a perpetual license from the Galveston, Houston, and Henderson Railroad Company (the “Railroad”), for real property located in Berry Bayou, Harris County. PG & E owns, operates, and maintains a natural gas pipeline lying in an adjacent right of way, acquired from its predecessor-in-interest, the Lo-Vaca Gathering Company.

In 1997, HCFCD executed a construction contract with Ramex Construction Company (Ramex), to improve drainage in the existing Berry Bayou ditch. PG & E’s pipeline runs across and parallel to the Ramex construction site. During construction, Ramex used motor-driven vehicles to remove two concrete double-box culvert structures that ran parallel to the PG & E pipeline. Ramex also removed soil supporting both the concrete double-box culverts and PG & E’s pipeline. Ramex’s actions removed the lateral support of the pipeline, causing it to shift sideways and downward four feet. The pipeline sustained a lateral bulge of approximately twelve and one-half feet along a 500 foot portion of the pipeline. Because of these events, PG & E had to remove the pipeline from service and repair it.

In November 1998, PG & E sued both HCFCD and Ramex for breach of contract, declaratory judgment, strict liability for removal of naturally necessary support, and negligence. PG & E also asserted an inverse condemnation claim solely against HCFCD. In a second amended petition, PG & E pleaded that the TTCA conferred jurisdiction upon the trial court. In a later supplemental amended petition, PG & E further alleged that HCFCD had consented to suit for breach of contract, based upon section 49.006 of the Texas Water Code. PG & E sought $488,251.78 in actual damages for repairs and lost profits, and $500,000 in exemplary damages, as well as attorney’s fees and interest. HCFCD counterclaimed for trespass and negligence, alleging that PG & E damaged the bayou, resulting in additional project costs to it of up to $401,699.65.

In December 2001, HCFCD filed a traditional and a no-evidence motion for summary judgment. In March 2002, the trial court granted HCFCD’s motions. PG & E appeals the trial court’s final judgment granting HCFCD’s motions for summary judgment.

HCFCD’s Sovereign Immunity

A motion for summary judgment may raise a challenge to a trial court’s subject-matter jurisdiction. City of Hedwig Village Planning & Zoning Comm’n v. Howeth Invs., Inc., 73 S.W.3d 389, 391 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A plaintiff then bears the burden of alleging facts affirmatively showing that a trial court has subject-matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). A court should take the plaintiffs allegations to be true and construe all inferences in favor of jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446. The question whether a trial court has subject-matter jurisdiction over a claim is one of law, and thus we review it de novo. Miranda, 133 S.W.3d at 226.

Under the common-law doctrine of sovereign immunity, a unit of government cannot be sued without its consent. State v. Terrell, 588 S.W.2d 784, 785 (Tex.1979); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.-Austin 1991, writ denied). Sovereign immunity protects a governmental unit in two basic ways. First, the state is immune from suit against it, regardless of the state’s liability. Federal Sign v. Tex. Southern Univ., 951 S.W.2d 401, 405 (Tex.1997); Dillard, 806 S.W.2d at 592. Second, the state also is immune from liability, even if the state otherwise has consented to be sued. Federal Sign, 951 S.W.2d at 405; Dillard, 806 S.W.2d at 592. “Immunity from suit bars a suit against the State unless the State expressly gives its consent to the suit,” while “[i]mmunity from liability protects the State from judgments even if the Legislature has expressly given consent to the suit.” Federal Sign, 951 S.W.2d at 405. If applicable, sovereign immunity shields governmental entities from liability, including protection from suit for the vicarious acts of government agents or employees acting in the scope of their employment. Bennett v. Tarrant County Water & Control Imp. Dist. No. 1, 894 S.W.2d 441, 450 (Tex.App.-Fort Worth 1995, writ denied). Those governmental entities immune from suit include statutorily created special purpose districts like HCFCD. Id. The TTCA waives sovereign immunity from liability in certain circumstances, and correspondingly waives immunity from suit, to the extent immunity from liability has been waived under the Act. Tex. Civ. Prac. & Rem.Code Ann. § 101.021, .025 (Vernon 1997).

Here, HCFCD moved for summary judgment claiming immunity from suit. PG & E thus must allege facts sufficient to show that HCFCD waived immunity to the causes of action PG & E asserts. PG & E maintains that HCFCD has waived immunity from suit pursuant to section 101.021(1) of the TTCA and section 49.006 of the Texas Water Code. See Tex. Crv. Prac. & Rem.Code Ann. § 101.021; Tex. Water Code Ann. § 49.006 (Vernon 2000).

Standard of Review

Summary judgment for a defendant is proper if the defendant negates at least one element of each of the plaintiffs theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). A “no evidence” motion for summary judgment is proper if, after adequate time for discovery, the movant shows that the non-movant has produced no evidence on at least one essential element of the nonmovant’s theory of recovery. See Tex.R. Civ. P. 166a(I); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). When reviewing a summary judgment, we view all evidence in a light favorable to the nonmovant, and indulge every reasonable inference in the nonmovant’s favor. Science Spectrum, 941 S.W.2d at 911. Sovereign immunity is an affirmative defense. Harris County v. Louvier, 956 S.W.2d 106, 107 (Tex.App.-Houston [14th Dist.] 1997, no pet.).

Thus, as movant on the affirmative defense of sovereign immunity, HCFCD has the burden to establish all the essential elements of the defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Once a movant establishes sovereign immunity as a matter of law, the burden of production shifts to the non-movant to establish a waiver of immunity. See Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.-San Antonio 1999, no pet.); Ager v. Wichita Gen. Hosp., 977 S.W.2d 658, 660 (Tex.App.-Fort Worth 1998, no pet.); see also Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989) (burden does not shift to non-movant unless movant establishes defense as matter of law). Though the burden of production shifts, the burden of proof remains with the movant to conclusively establish its entitlement to summary judgment on its affirmative defense as a matter of law. See Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975); Garza v. Williams Bros. Constr. Co., 879 S.W.2d 290, 295 (Tex.App.-Houston [14th Dist.] 1994, no writ); see also Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex.App.-Waco 2000, pet. denied); Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 818 (Tex.App.-Corpus Christi 1996, writ denied).

The Negligence Claim

The TTCA waives sovereign immunity for property damage in the following circumstances: (1) an injury caused by a government employee’s operation or use of a motor-driven vehicle or motor-driven equipment and (2) the government employee would be personally liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A)-(B) (Vernon 1997). Relying on these provisions, PG & E contends that the Legislature has waived HCFCD’s sovereign immunity as to PG & E’s negligence claim for property damage. HCFCD responds that it did not waive its sovereign immunity as to PG & E’s negligence claims, because the undisputed facts show that no State employee operated a motor-driven vehicle that caused the damage to PG & E’s pipeline. Rather, Ramex, an independent contractor, operated the motor-driven vehicles. The waiver of immunity provision in the TTCA thus does not apply under these facts. PG & E replies that a fact issue exists regarding whether Ramex acted as HCFCD’s independent contractor — as HCFCD contends — or whether Ramex was a de facto state “employee,”'— as PG & E contends-thus falling within the TTCA waiver of immunity.

Section 101.021 of the TTCA provides that a governmental unit is liable for:

property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment....

Tex. Crv. Prac. & Rem.Code Ann. § 101.021(1) (emphasis added).

The TTCA further defines “employee” as

a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

Id. § 101.001(2) (Vernon Supp.2004) (emphasis added). Thus, whether the trial court properly granted summary judgment on PG & E’s tort claims depends on whether fact issues exist as to Ramex’s status as an independent contractor.

In determining whether a worker is an employee or an independent contractor, the focus is on who has the right to control the details of the work. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). In determining whether Ramex is an independent contractor, we examine: (1) the independent nature of its business; (2) its obligation to supply necessary tools, supplies, and materials; (3) its right to control the progress of the work; (4) the duration of its employment; and (5) the method by which it is paid, whether by the time or by the job. Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 786 (Tex.App.-El Paso 1996, writ denied). A “possibility” of control is not evidence of a right to control. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999). Determining whether a contract gives a right of control is generally a question of law for the court, rather than a question of fact for the jury. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002). If the controlling facts are undisputed, the question whether the relationship which exists is that of an employee or of an independent contractor is a question of law. Sherard v. Smith, 778 S.W.2d 546 (Tex.App.-Corpus Christi 1989, writ denied).

HCFCD presented the following undisputed evidence to show that Ramex was an independent contractor on the Berry Bayou Project: (1) Ramex furnished the equipment and supplies to perform the job, including the motor-driven vehicles at issue; (2) HCFCD hired Ramex by the job, as a result of a bid process; and (3) HCFCD paid Ramex by the job, according to its bid. HCFCD further provided deposition testimony from Rosbell Ramos, a Ramex employee, that his company decided the means and methods used to remove the double-box culverts, and that no one from Harris County told him how to do it. We hold that HCFCD presented competent summary judgment evidence to establish Ramex’s status as an independent contractor.

In response, PG & E points out that Brenda Trevino, the HCFCD Berry Bayou project manager, stated in deposition testimony that PG & E’s pipeline must be “field-located,” by HCFCD before construction commences. Ms. Trevino also testified that HCFCD made the decision to install sheetpile walls to provide additional lateral support to the pipeline. Trevino noted, however, that no one from HCFCD evaluated “the sufficiency of Ramex’s work in connection with the removal of the original section of box culvert.” When asked about what she relied on in determining whether Ramex’s work was sufficient, she testified, “I’m relying on the fact that the construction project is put in place as per the plans and on the expertise of the field inspection crew and the experts that have been employed.” She further stated that the field inspection crew consisted of HCFCD personnel that observed Ramex’s activities.

In determining independent contractor status, the focus is on the right to control the details of the work. Exxon Corp., 867 S.W.2d at 21 (emphasis added). Although PG & E presented evidence that HCFCD participated in the construction plans and specifications, and made inspections as to the completion of the work according to the plans, Trevino’s testimony does not create a fact issue that HCFCD had a right to control, or did control, the details of Ramex’s work with respect to the operation of a motor-driven vehicle, the only type of activity for which HCFCD waives its immunity in tort. Thus, we hold that Trevino’s testimony does not create a fact issue regarding HCFCD’s waiver of immunity under the TTCA.

In addition to Trevino’s testimony, PG & E relies on conditions in the HCFCD/Ra-mex contract to establish that Ramex is not an independent contractor. These provisions acknowledge that a county-designated engineer may furnish specifications to, supervise, and ask Ramex to discharge, any Ramex employees who do not “perform work in a proper and skillful manner.” PG & E contends that the authority granted in these contract provisions establishes a fact issue as to whether HCFCD retained control over Ramex. These contract provisions, however, indicate control over the general requirements of the project, and its proper completion, but do not show control over the details of Ramex’s work with regard to Ramex employees use of motor-driven vehicles — the standard for determining whether a party is an employee or independent contractor within the scope of section 101.021. See Tex. Crv. Prac. & Rem.Code Ann. § 101.021; Exxon Corp., 867 S.W.2d at 21; see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 & n. 91 (Tex.2003); Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 220 (Tex.App.-Houston [14th Dist.] 1994, no writ) (finding off-duty officers hired by private corporation to be independent contractors because, in part, they furnished their own equipment). In particular, the fact that the engineer reserved the right to ask Ramex to remove an objectionable worker does not mean that HCFCD controlled the details of Ramex’s work. See Thomas v. Harris County, 30 S.W.3d 51, 54 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (holding physicians who treated inmates at county jail were not county employees because county merely contracted with their employer for medical services, and physicians were paid by employer rather than county). As the contract acknowledges, Ramex is the ultimate decision-maker to hire and to fire — not the county or its engineer.

PG & E further relies on a project manual HCFCD sent to Ramex and all other bidders for the project. PG & E contends that this manual requires Ramex to remove the double-box culverts that provided the lateral support to the soil surrounding the pipeline. In the manual, section B of the Work Sequence states that “a major work activity” includes removing an existing 2-12'xl2'x600 concrete box. PG & E also directs us to a manual provision dictating that HCFCD decide the controls Ramex is to employ, including erosion and sediment controls. Project specifications, however, do not show a right to control the details of the work. For example, the manual does not direct HCFCD to use motor-driven equipment to remove the double-box culverts supplying the lateral support. Moreover, PG & E has not presented any evidence to show that the manual provisions and directions are in fact attributable to HCFCD. The manual on which PG <& E relies indicates that TSC Engineering prepared it. PG & E neither disputes the manual’s author, nor does it allege that TSC Engineering also served as HCFCD’s employee for purposes of the TTCA. Accordingly, PG & E has not established a fact issue concerning HCFCD’s requisite right of control over the details of Ramex’s work, based on the project manual’s provisions.

After reviewing the summary judgment evidence in a light most favorable to PG & E, including the contract, the deposition testimony, and the manual, we agree with the trial court that PG & E did not raise a genuine issue of fact as to whether HCFCD exerted sufficient control over the details of Ramex’s work. If no dispute exists as to the controlling facts and only one reasonable conclusion can be inferred, the question of whether the relationship which exists is that of an employee or an independent contractor is a question of law. Bright, 89 S.W.3d at 606; Sherard, 778 S.W.2d at 548. We therefore conclude that the trial court properly granted summary judgment to HCFCD on PG <& E’s negligence claim.

Strict Liability

PG & E contends that the trial court erred in granting summary judgment on its strict liability claims for removal of the pipeline’s lateral and subjacent support. HCFCD moved for summary judgment, contending that PG & E did not allege any waiver of immunity from suit on this ground. PG & E responds that TTCA section 101.021(1) waives HCFCD’s sovereign immunity. See Tex. Crv. Prac. & Rem. Code Ann. 101.021(1). Although some authority exists for strict liability claims for removal of lateral and subjacent support, we disagree that section 101.021(1) waives HCFCD’s immunity from suit for such claims.

HCFCD is immune from suit unless the Legislature has waived immunity in plain and unambiguous terms. Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex.2000); Fed. Sign, 951 S.W.2d at 405. As PG & E’s strict liability claim does not allege a wrongful act or omission distinct from its negligence claims, PG & E’s cause of action does not fall within the exception to sovereign immunity under section 101.021(1). Moreover, it is not within our authority to establish such an exception — such a function falls to the Legislature. See Kerrville State Hosp., 28 S.W.3d at 3; Tex. Gov’t Code Ann. § 311.034 (Vernon Supp.2004) (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).

PG & E has failed to present any authority, and we find none, allowing a party to pursue a claim of strict liability for removal of lateral and subjacent support against a governmental entity cloaked with sovereign immunity. At least one other court has held that strict liability claims do not fall within the waiver provisions in section 101.021. See Univ. of N. Tex. v. Harvey, 124 S.W.3d 216 (Tex.App.-Fort Worth 2003, pet. filed). In Harvey, the Fort Worth Court of Appeals held that the Legislature did not waive strict liability claims under TTCA section 101.021(2). Under these facts, we agree, and conclude that the trial court properly granted HCFCD’s summary judgment on PG & E’s strict liability claim.

Breach of Contract

The trial court granted HCFCD’s summary judgment and no-evidence summary judgment on PG & E’s breach of contract claim. HCFCD moved for summary judgment on the grounds that (1) it is immune from suit, and (2) PG & E is not a third party beneficiary of the contract it claims HCFCD breached. PG & E responds that the trial court has jurisdiction over contract claims against HCFCD based on section 49.066 of the Texas Water Code and section 262.001 of the Local Government Code. PG & E further contends that it is an intended third party beneficiary of the HCFCD/Railroad contract. We first address whether PG & E pleaded a basis for waiving HCFCD’s sovereign immunity.

The Texas Water Code provides:

A district may sue and be sued in the courts of this state in the name of the district by and through its board. A suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board. All courts shall take judicial notice of the creation of the district and of its boundaries.

Tex. WateR Code Ann. § 49.006(a).

Courts have construed similar language in other statutes to waive immunity from suit. See Missouri Pac. R. Co. v. Browns Navigation Dist., 453 S.W.2d 812, 813-14 (Tex.1970); United Water Serv. v. City of Houston, 137 S.W.3d 747 (Tex.App.-Houston [1st Dist.] 2004, pet. filed); Loyd v. ECO Res., Inc., 956 S.W.2d 110, 122 (Tex.App.-Houston [14th Dist.] 1997, no pet.). We hold that the “sue and be sued” statutory language waives HCFCD’s immunity from suit by legislative consent. Accordingly, we address whether PG & E raises a fact issue as to its status as a third party beneficiary.

To claim third party beneficiary status, PG & E relies on language in the HCFCD/Railroad contract that obligates HCFCD not to interfere with the activities of the Railroad’s licensees, in particular:

It is expressly agreed and understood that this license is made and given on condition that [HCFCD’s] use of the property under this license shall not interfere with the [Railroad’s] and its successors’, licensees’, invitees’ and assigns’ operations over, or upon said property, nor with maintenance of or repairs to its tracks or any of its facilities upon said property.

PG & E argues that this section confers enforceable third party rights upon a limited class of persons, including the Railroad’s other licensees. PG & E contends that the contract affords it rights as the successor of a Railroad licensee, namely, the Lo-Vaca Gathering Company, to which the Railroad granted a pipeline license in 1964.

PG & E further relies on the HCFCD/Railroad contract’s non-waiver clause:

It is expressly covenanted and agreed that no waiver by Licensor, its successors or assigns, of any condition herein set forth shall extend to or affect or be deemed to waive any other breach (whether prior or subsequent) of such condition herein set forth.

PG & E contends that these clauses together demonstrate an intent to confer legally enforceable benefits upon the Railroad’s licensees, particularly because the contract does not disclaim any third party beneficiary rights. HCFCD responds that the Railroad contract obligates HCFCD to the Railroad for conduct that interferes with the Railroad’s other licensees, but it does not elevate PG & E to an intended beneficiary, with authorization to sue HCFCD directly for a breach.

Unambiguous contracts — as the parties agree this one to be — are construed as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). We read and consider the entire contract to determine the true intent of the parties. Dedier v. Grossman, 454 S.W.2d 231, 234 (Tex.Civ.App.-Dallas 1970, writ ref’d n.r.e.); see also Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 132 (Tex.App.-Houston [14th Dist.] 2000, pet. dism’d). A court should employ the plain and generally accepted meaning of the contract terms, unless the instrument defines them in a technical or different sense. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996).

In determining whether a third party has a right to enforce a contract, courts look to the express intent of the contracting parties. MCI Telecomms. Corp v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999); Whitten v. Vehicle Removal Corp., 56 S.W.3d 293, 311 (Tex.App.-Dallas 2001, pet. denied). A court should not imply or create third party beneficiary rights unless they are expressly intended by the contracting parties, and plainly and fully spelled out in the four corners of the contract. MCI Telecomms., 995 S.W.2d at 651; Whitten, 56 S.W.3d at 311. Thus, courts should presume that an agreement confers no third party enforcement rights unless it “clearly appears” that the contract intends a third party to benefit, to the point of suing upon the contract. MCI Telecomms., 995 S.W.2d at 651; Whitten, 56 S.W.3d at 311. Accordingly, a court will not interpret a contract to confer third party beneficiary rights unless: (1) the contract plainly expresses the third party obligation of the bargain-giver, (2) it is unmistakable that a benefit to the third party is within the contemplation of the primary contracting parties, and (3) the primary parties contemplate that the third party would be vested with the right to sue for enforcement of the contract. Whitten, 56 S.W.3d at 311. The fact that a third party receives incidental benefits from a contract does not establish a right of action to enforce the contract. MCI Telecomms., 995 S.W.2d at 650; Young Ref. Corp. v. Pennzoil Co., 46 S.W.3d 380, 387 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

In MCI, Texas Utilities (TU) sought to recover attorney’s fees for a breach of a contract between MCI and the Missouri Pacific Railroad (MoPac). TU claimed it was a third party beneficiary of the MCI/MoPac contract as a licensee, and that MCI had damaged TU’s poles in laying fiber optic cable along the easement. The MCI/MoPac contract explicitly provided, however, that “neither this Agreement, nor any term or provision hereof, nor any inclusion by reference, shall be construed as being for the benefit of any party not in signatory hereto.” Id. at 649-50. The Texas Supreme Court held that the contract’s disclaimer provision reflected that the parties had no intent to confer third party benefits under the contract. Id. at 652. The Court further observed that nothing in the contract indicated that MCI and MoPac ever intended to confer a direct benefit to TU. Id. at 652.

Although the non-interference language TU relied upon in the MCI case corresponds to the contract in this case, PG & E distinguishes MCI from the present facts on the basis that the HCFCD/Railroad contract does not contain a provision expressly disclaiming any third party rights. PG & E ignores, however, the affirmative requirement that HCFCD and the Railroad expressly contract directly for PG & E’s benefit. See id. at 651-52. An express disclaimer is not necessary to deny third party rights; instead, an express obligation is necessary to confer them. See Union Pac. R.R. Co. v. Novus Int’l, Inc., 113 S.W.3d 418, 422-23 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (concluding that the contract did not clearly spell out an intent on behalf of the contracting parties to confer a direct benefit to a non-contracting party). We conclude that the HCFCD/Railroad contract does not evidence an intent to directly benefit PG & E or its predecessor. Thus, PG & E is not a third party beneficiary of the contract as a matter of law. See MCI Telecomms., 995 S.W.2d at 652; Union Pac., 113 S.W.3d at 422-23 (“Nowhere in the rail contract is it stated that the parties are contracting for the benefit of Carbide’s customers.”) (emphasis in original); Young Ref., 46 S.W.3d at 387-88 (“[N]et profits agreement contains no indication of an intent to benefit Young Refining. Young Refining is not mentioned in the agreement, and all of the obligations flow between [the parties to the agreement]. Young Refining would have benefitted, but only incidentally, by the contract.”). Accordingly, the trial court properly granted summary judgment on PG & E’s contract claim.

In connection with its contract claim, PG & E contends that the trial court erred in granting summary judgment on its declaratory judgment claim. In its second amended petition, PG & E sought to have the trial court declare the parties’ rights as to the HCFCD/Railroad agreement and PG & E’s third party beneficiary status. As we have concluded that PG & E has no right to sue as an intended third party beneficiary on the HCFCD/Railroad contract, the trial court properly granted summary judgment on PG & E’s declaratory judgment claim.

Inverse Condemnation

PG & E contends that the trial court erred in granting summary judgment on its inverse condemnation claim.

The Texas Constitution provides that, “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person-” Tex. Const. art. I, § 17. Inverse condemnation occurs when property is taken, damaged, or destroyed for public use without process or without proper condemnation proceedings, and the property owner attempts to recover compensation. City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex.1971); Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.App.-Houston [1st Dist.] 1989, writ denied). Under section 17, a landowner may recover for damages to his property even though there is no transfer of property rights. Tex. Const. art. I, § 17; State v. Biggar, 848 S.W.2d 291, 297-98 (Tex.App.-Austin 1993), aff’d, 873 S.W.2d 11 (Tex. 1994); Steele v. City of Houston, 603 S.W.2d 786, 790 (Tex.1980).

Jurisdiction over such claims is exclusively vested with the Harris County Courts at Law, pursuant to section 25.1032(c) of the Texas Government Code. See Tex. Gov’t Code Ann. § 25.1032(c) (Vernon 2004) (“A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.”).

In Taub v. Aquila Southwest Pipeline Corp., 93 S.W.3d 451 (Tex.App.-Houston [14th Dist.] 2002, no pet.), our sister court held that, based on this section and its history, the Harris County Civil Courts at Law have exclusive jurisdiction over a party’s claims for inverse condemnation seeking condemnation damages. Based upon the plain language contained in § 25.1032(c), we agree with HCFCD and our sister court. The trial court did not have subject matter jurisdiction over PG <& E’s inverse condemnation claims. Accordingly, we reverse the trial court’s judgment on PG & E’s inverse condemnation claim, as it should have been dismissed without prejudice. See Tex. Civ. Prac. & Rem.Code Ann. § 16.064(a)(1) (Vernon 2004); City of Houston v. Boyle, 148 S.W.3d 171 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.).

HCFCD further contends that we should dismiss PG & E’s other claims because they are inherently intertwined with the inverse condemnation claim, relying on Taub. In Taub, however, the court of appeals observed that “the Harris County Civil Courts at Law have jurisdiction, but not exclusive jurisdiction, over a landowner’s claims, regardless of the amount in controversy....” Taub, 93 S.W.3d at 458 (emphasis added). We conclude that PG & E’s remaining claims were properly brought in the district court-save the fact that HCFCD is immune from two of them. Accordingly, we hold that the trial court had jurisdiction to grant summary judgment on PG & E’s other claims.

Conclusion

We affirm the judgment of the trial court as to PG & E’s negligence, strict liability, breach of contract, and declaratory judgment claims. We reverse the judgment insofar as it disposes of the claim for inverse condemnation, and render that PG & E’s claim for inverse condemnation be dismissed without prejudice. We deny all other outstanding motions.

      . EPGT Texas Pipeline, L.P., a subsidiary of El Paso Corporation, acquired PG & E during the pendency of this lawsuit. This is the second appeal in this case. See Harris County Flood Control Dist. v. PG & E Tex. Pipeline, L.P., 35 S.W.3d 772 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (op. on reh’g). We use "PG & E" for continuity in reference.

      . The trial court’s March 12 judgment also granted PG & E’s summary judgment on HCFCD’s counterclaim. HCFCD did not appeal.

      . At oral argument, PG & E contended for the first time that HCFCD waived its sovereign immunity as to all of PG & E’s claims by asserting a counterclaim in which it sought actual damages. PG & E relies upon the Texas Supreme Court’s recent decision in Reata Constr. Corp. v. City of Dallas, No. 02-1031, 2004 WL 726906, - S.W.3d - (Tex. Apr.2, 2004). We note that in Reata, however, the Texas Supreme Court appeared to limit its holding to find such a waiver in connection with a governmental plea in intervention for affirmative relief and for money damages. We decline to address the issue, as neither party briefed it, and PG & E did not raise it in the trial court. Tex.R.App. P. 33.1, 38.1(e)(h).

      . See Corley v. Exxon Pipeline Co., 821 S.W.2d 435 (Tex.App.-Houston [14th Dist.] 1991, writ denied); San Jacinto Sand Co. v. Southwestern Bell, 426 S.W.2d 338, 345 (Tex.App.-Houston [14th Dist.] 1968, writ ref’d n.r.e.).

      . HCFCD contends that PG & E cannot raise this basis for waiver of immunity from suit for the first time on appeal because it was not before the trial court. The trial court signed its judgment on March 12, 2002. PG & E filed a second supplemental petition alleging waiver based on the Texas Water Code’s sections 49.001(a)(1) and 49.066(a) on January 14, 2002. Thus, PG & E presented this ground to the trial court.


source: Caselaw Access Project

author: TERRY JENNINGS, Justice.

license: Public Domain

text:
    D.B., Appellant, v. K.B., Appellee.
    No. 01-03-00062-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 12, 2004.

      Jason H. Truitt, Truitt & Settle, L.L.P., Humble, TX, for Appellant.
    Stu Stewart, Robert L. Galloway, Thompson & Knight, LLP, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION

TERRY JENNINGS, Justice.

In this appeal from a divorce proceeding, appellant, D. B., challenges the trial court’s rendition of summary judgment in favor of appellant’s ex-wife, appellee, K. B., that the potential proceeds from appellant’s qui tam lawsuit are community property. In his sole issue, appellant contends that the trial court erred in granting appellee’s no-evidence summary judgment motion and in denying appellant’s no-evidence summary judgment motion because (1) appellee failed to respond to appellant’s motion, (2) appellee failed to comply with Texas Rules of Civil Procedure 166a(c) and 166a(d), (8) there was no evidence that appellant’s potential qui tam fee constituted community property, and (4) the False Claims Act preempts Texas community property law. We affirm.

Facts and Procedural Background

While he was married to appellee, appellant, having learned of a fraud against the United States government, filed a qui tam lawsuit under the False Claims Act in federal district court. Appellant served the United States Attorney’s Office with a copy of his complaint and documentation that he thought would be of interest to it. As the relator in that proceeding, appellant could potentially recover a fee of between 15 and 30 percent of any damages awarded in the qui tam lawsuit.

On November 27, 2000, appellee, who had been married to appellant for over 10 years, filed a petition for divorce. Thereafter, appellant and appellee came to an agreement on how to divide the majority of their assets and liabilities. However, they did not agree on whether appellant’s potential fee from the qui tam lawsuit was a community asset to be divided as part of the divorce.

On December 18, 2001, the trial court conducted an in camera evidentiary hearing, with appellant as the sole testifying witness, to determine whether appellant’s potential qui tam fee was a community asset. At the hearing, appellant testified that he had filed the qui tam lawsuit while he was married to appellee and that, up to the date of the hearing, he had paid the “expenses and costs of the lawsuit” himself. Appellant also stated that, should the federal government decide not to prosecute the case, he did not intend to prosecute it himself.

Following this hearing, the trial court directed the parties to file summary judgment motions on the issue of whether appellant’s potential qui tam fee was a community asset. On January 28, 2002, the parties filed opposing no-evidence summary judgment motions. In his motion, appellant argued that, because appellee had failed to establish that he had a present vested interest in the qui tam fee as of the date of the divorce, there was no evidence that the fee was community property or that the community presumption applied. In her motion, appellee argued that, because appellant testified that he learned about the fraud and filed the lawsuit during their marriage, there was no-evidence that the potential qui tam fee was separate property.

On January 31, 2002, appellant filed a response to appellee’s no-evidence summary judgment motion, in which he argued that the trial court should not consider appellee’s motion because she did not comply with the requirements of Texas Rules of Civil Procedure 166a(c) and 166a(d). Specifically, appellant asserted that appel-lee (1) failed to file her motion at least 21 days before the date of the summary judgment hearing and (2) used “deposition transcripts” as summary judgment evidence without notifying appellant of her intent to do so at least 21 days before the summary judgment hearing.

On February 3, 2002, following a hearing on the parties’ no-evidence summary judgment motions, the trial court issued an order granting appellee’s motion in all respects. Thereafter, following a bench trial on the issues of spousal maintenance, attorney’s fees, and whether a particular debt was a community liability, the trial court made the following findings in its final decree:

With respect to the [qui tam ] False Claims Act issue, pursuant to and consistent with the Court’s ruling on [appel-lee’s] Motion for Summary Judgment, the Court finds that there is a community interest in any proceeds that may be derived as a result of that action or those proceedings. The Court is awarding those one-half to each party.

Standard of Review

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s claim. Tex.R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on each of the challenged elements. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment may not be properly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Grant, 73 S.W.3d at 215.

Failure to Respond

Appellant argues that, because appellee did not file a response to his no-evidence summary judgment motion, the trial court should have granted his motion and denied appellee’s motion. However, when both parties file opposing motions for summary judgment, one is necessarily responsive to the other. Seaman v. Seaman, 686 S.W.2d 206, 210 (Tex.App.-Houston [1st Dist.] 1984, writ ref’d n.r.e). Appellant and appellee filed opposing no-evidence summary judgment motions on the sole issue of whether appellant’s potential qui tarn fee was a community asset. Here, appellee’s no-evidence summary judgment motion was necessarily responsive to appellant’s no-evidence summary judgment motion on the same issue.

Rules 166a(c) and 166a(d)

Appellant also argues that the trial court should not have considered appellee’s summary judgment motion because appellee, (1) without leave of the trial court, filed her motion “withfin] less than the required 21 days notice” and (2) used “deposition transcripts” as summary judgment evidence without notifying appellant of her intent to do so at least 21 days before the summary judgment hearing. See Tex.R. Civ. P. 166a(e) and 166a(d).

Rule 166a(c) provides that, except on leave of court and with notice to opposing counsel, a summary judgment motion and any supporting affidavits shall be filed and served at least 21 days before the time specified for the summary judgment hearing. Tex.R. Civ. P. 166a(c). Rule 166a(d) provides that discovery not on file with the clerk may be used as summary judgment evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to other instruments, are filed and served on all parties, together with a statement of intent to use the specified discovery as summary judgment evidence, at least 21 days before the summary judgment hearing. Tex.R. Civ. P. 166a(d).

In regard to appellant’s assertion that appellee filed her summary judgment motion “withfin] less than the required 21 days notice,” we note that parties may alter the deadlines for filing summary judgment motions by Rule 11 agreement. See Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 377 (Tex.App.-Fort Worth 2003, pet. denied). Here, on January 25, 2001, appellant and appellee executed a Rule 11 Agreement extending the time for filing them summary judgment motions to January 28, 2001. Appellee filed this agreement with the trial court, and both parties filed their motions on January 28. Accordingly, we hold that appellee was not required to obtain the trial court’s leave to file her motion “withfin] less than the required 21 days notice.”

In regard to appellant’s assertion that appellee failed to give him at least 21 days notice of her intention to use “deposition transcripts” as summary judgment evidence, we note that, to preserve a complaint for appellate review, a trial court must either expressly or implicitly rule on a request, objection, or motion. Tex. R.App. P. 33.1(a)(2)(A). Here, although appellant objected to appellee’s failure to give him at least 21 days notice of her intention to use deposition transcripts as summary judgment evidence, appellant failed to obtain a written ruling on his objection. See Green v. Industrial Spe cialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (noting that, to preserve error, party must obtain written ruling on objections to summary judgment evidence). Moreover, we can find nothing in the record to indicate that the trial court implicitly ruled on appellant’s objection. See Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753 (Tex.App.-Corpus Christi 2001, pet. denied) (noting that “for there to be an ‘implicit’ ruling ... there must be something in the summary judgment or the record to indicate [that] the trial court ruled on objections other than the mere granting of the summary judgment.”). Accordingly, we hold that appellant has waived any error in regard to his argument that appellee failed to notify him of her intention to use deposition transcripts as summary judgment evidence at least 21 days prior to the summary judgment hearing.

Community Property

Appellant next argues that the trial court erred in granting appellee’s summary judgment motion because there was no evidence that appellant’s potential qui tam fee was community property. He asserts that, in her summary judgment motion, appellee failed to show that the qui tam fee was “received or otherwise vested during the marriage” or that, if it is ever actually received, the qui tam fee will be “an asset that will relate back to the community in any way.”

As noted above, appellee, in her summary judgment motion, argued that there was no evidence that appellant’s potential qui tam fee was separate property. Separate property consists in part of property owned or claimed by a spouse before marriage. Tex. Fam.Code Ann. § 3.001(1) (Vernon 1998). Community property consists of property other than separate property that is acquired by either spouse during the marriage. Id. § 3.002 (Vernon 1998). The characterization of property as either “community” or “separate” is determined by the inception of title to the property. Alsenz v. Alsenz, 101 S.W.3d 648, 652 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Inception of title occurs when a party first has the right of claim to the property. Id. Property possessed by either spouse on dissolution of marriage is presumed to be community property. Tex. Fam.Code Ann. § 3.003. To defeat this presumption, a spouse must establish by clear and convincing evidence that property is separate property. Id.

No Texas case has addressed the issue of whether a potential qui tam fee that has not been received during marriage qualifies as community property. However, in 1976, in another case of first impression, the Texas Supreme Court addressed an analogous issue in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). In Cearley, as part of a property division pursuant to a divorce, a wife was granted a “fractional interest in future military retirement benefits if and when received by [her] husband.” Id. at 662. The benefits had not vested and had not been acquired by the husband during the marriage and were subject to forfeiture in the event that the husband died or was dishonorably discharged prior to his retirement date. Id. at 665. Nevertheless, the Court held that, because the husband had a contingent interest in the benefits at the time of divorce, the benefits were “a community asset subject to consideration along with other property in the division of the estate of the parties.” Id. at 666. In its analysis, the Court explained as follows:

Although a servicemen’s military pension is not payable before the date of its maturity, it is not ‘earned’ on that day. Rather, it is a form of deferred compensation which is earned during each month of his military service. The portion that [the husband] earned during the months of coverture became contingent earnings of the community which may or may not bloom into full maturity at some future date.

Id.

Although there are no Texas cases directly on point, an intermediate California appellate court addressed the exact issue presented here in Biddle v. Biddle, 52 Cal.App.4th 396, 60 Cal.Rptr.2d 569 (1997). In Biddle, the court held that, because a husband had discovered a False Claims Act violation and had filed a qui tam lawsuit during marriage, his potential qui tam fee “amounted] to a contingent future interest and divisible community property.” Id. at 400, 60 Cal.Rptr.2d 569. Although Biddle is not binding precedent, we note that, in reaching its holding, the court relied on Brown v. Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), a case decided by the California Supreme Court, which the Texas Supreme Court quoted extensively in Cearly. See Cearley, 544 S.W.2d at 663-64. We find the reasoning of Biddle to be persuasive, and recognize that, under appropriate circumstances, a potential fee from a qui tam lawsuit, although not received during marriage, may qualify as community property.

Here, appellee produced summary judgment evidence, consisting of excerpts from appellant’s testimony at the in camera hearing, which established that, during their marriage, appellant learned of the fraud against the federal government, filed the qui tam lawsuit, and provided the United States Attorney’s Office with knowledge that would be of interest to them. Once the lawsuit was filed, appellant’s receipt of a qui tam fee became contingent upon the United States Attorney’s Office prosecuting his case and securing a monetary settlement or a damage award. However, were appellant to receive a fee in the future, he would not have “earned” that fee on the date on which it was paid. See Cearley, 544 S.W.2d at 665. Rather, he would have earned the fee by discovering the fraud, filing the qui tam lawsuit, and providing the United States Attorney’s Office with information; all events that occurred during appellant’s marriage to appellee. Accordingly, we hold that appellant possessed a contingent interest in the qui tam fee during his marriage to appellee. See id. at 666.

To rebut the community presumption, appellant was required to produce clear and convincing evidence that he did not earn the potential qui tam fee during the marriage. Tex. Fam.Code Ann. § 3.003. However, in his no-evidence summary judgment motion, appellant simply argued that the evidence showed that his interest in the qui tam fee, “if any, [was] so remote and so unrelated to the community estate” that the potential fee could not be community property.

Accordingly, because appellant failed to produce any summary judgment evidence establishing that he did not earn the potential qui tam fee during marriage, we hold that appellant’s interest in the fee was community property and was properly subject to division by the trial court as part of the divorce.

Preemption

Appellant finally argues that the trial court erred in granting appellee’s no-evidence summary judgment motion because the False Claims Act preempts Texas law. Therefore, to the extent that Texas community property law grants appellee an interest in his potential qui tam fee, appellant argues that Texas law is preempted by the False Claims Act.

Preemption is generally an affirmative defense, which must be set forth in a defendant’s answer or the issue will be waived. Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex.1991). A defendant may raise a preemption argument for the first time on appeal only if the issue of preemption implicates the subject matter jurisdiction of the court. Id. at 545.

Here, appellant did not raise the issue of preemption in his answer to appellee’s petition for divorce, and he did not raise the issue until after the trial court had already granted appellee’s no-evidence summary judgment motion. Moreover, appellant’s preemption argument does not implicate the subject matter jurisdiction of either the trial court or of this court. Therefore, we hold that appellant has waived this issue.

Conclusion

We hold that the trial court did not err in granting appellee’s no-evidence summary judgment motion and in denying appellant’s no-evidence summary judgment motion.

We overrule appellant’s sole issue and affirm the judgment of the trial court.

      . See 31 U.S.C. § 3730(b) (1994).

      . The parties have requested that we refer to them by their initials because the use of their names “could alert the unnamed defendants in the qui tam suit of the [federal] government’s on-going investigation.” To preserve the confidentiality of the investigation, we grant the parties’ request. See Gustafson v. Chambers, 871 S.W.2d 938, 950 (Tex.App.-Houston [1st Dist.] 1994, orig. proceeding).

      . Tex.R. Civ. P. 166a(c).

      . Tex.R. Civ. P. 166a(d).

      . See 31 U.S.C. § 3730(d) (1994).

      . See id. §§ 3729, 3730 (1994).

      . Although appellant states three general issues for our review, he presents his arguments in the body of his brief as we have listed above, and we address them accordingly. Moreover, we note that appellant also argues that the trial court erred in granting appellee’s no-evidence summary judgment motion and in denying appellant’s no-evidence summary judgment motion because neither appellee’s pleadings nor her inventory and appraisement "contain an allegation that [his potential qui tam fee] [was] a contested issue in the case.” However, because appellant does not include any citations to authority in support of this argument, it is waived. See Tex.R.App. P. 38.1(h); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

        .See 31 U.S.C. § 3730(d)(1), (2).

      . At the in camera hearing, appellant testified that, should the government decide not to prosecute the case, he “had no intent to prosecute [it] himself.”

      . Moreover, we note that Texas community property law is not preempted by the False Claims Act under federal preemption principles. There is no preemption without a clear and direct statement by Congress of intent to preempt. See Boyle v. United Techs. Corp., 487 U.S. 500, 504-06, 108 S.Ct. 2510, 2514-15, 101 L.Ed.2d 442 (1988) (preemption of state law occurs only when significant conflict exists between federal policy or interest and operation of state law or when application of state law would frustrate objectives of federal legislation; when litigation is purely between private parties and does not touch upon rights and duties of United States, federal law does not govern). The division of community property in this divorce action does not touch upon the rights or duties of the United States.


text:
    Joe NOAH and Susan Newman, Appellants, v. UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellee. 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.
    Nos. 01-03-00985-CV, 01-03-00986-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 12, 2004.
    Rehearing Overruled Jan. 3, 2005.

      David George, Sandra T. Krider, Edwards & George, LLP, Houston, TX, for Appellants.
    Anne L. Morgan, Ryan D. Clinton, Asst. Attys. Gen., Austin, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and HANKS.
   OPINION

TERRY JENNINGS, Justice.

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 Billeseas, individually and as representative of the estate of Imelda Billeseas 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 grant-mg 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 Plaintiffs 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 hable 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 plaintiffs 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 Toets § 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 plaintiffs 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 plaintiffs 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. So. Univ., 951 S.W.2d 401, 408 n. 1 (Tex.1997). In the absence of any prece-dential 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.

      . Although filed in separate cause numbers in the trial courts below, these cases were considered together by the same judge, the Hon. Norma Venso, sitting as the presiding judge of the 56th District Court and as an assigned judge to the 10th District Court.

      . We have jurisdiction over these appeals pursuant to section 51.014(a)(8) of the Civil Practice and Remedies Code, which permits an interlocutory appeal of a district court’s order that grants a plea to the jurisdiction filed by a governmental unit. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004).

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2004).

      . The plaintiffs also asserted causes of action against other defendants who are not parties to these appeals.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997).

      . Similarly, in Lions Eye Bank, the court held that the plaintiffs could not establish all of the elements of a special relationship giving rise to a duty not to negligently inflict mental anguish because there was no contractual relationship between the plaintiffs and defendant. 56 S.W.3d at 877.

      . See 25 Tex. Admin Code §§ 477.1-479.5 (2004).

      . See Tex. Health & Safety Code Ann. §§ 691.021-.035 (Vernon 2003 & Supp.2004).

      . See, e.g., 25 Tex Admin. Code § 479.4(d) ("Provisions must be made that the individual ashes of a single body may be recovered for return to the family if that request has been made in advance.”); Tex. Health & Safety Code Ann. § 691.022 (requiring State Anatomical Board to adopt rules "to ensure that each body and anatomical specimen ... is treated with respect.”) (Vernon Supp.2004).