10-0548 Rusk State Hospital v. Dennis Black and Pam Black from Cherokee County and the 12th District Court of Appeals, Tyler For petitioner: Michael Murphy, Austin For respondents: Dennis Black, Tyler A principal issue is whether sovereign immunity may be raised in an interlocutory appeal from a trial court order that did not address subject-matter jurisdictional challenges that were not presented to the trial court. In this case the Blacks sued Rusk State Hospital over their son's suicide and filed expert reports required to establish a health-care liability claim. The state appealed from the trial court's order denying its challenge to the reports' adequacy and added in that interlocutory appeal its initial argument that the suit should be dismissed on immunity grounds. The court of appeals addressed the state's expert-reports challenge, but held that Civil Practice and Remedies Code section 51.014(a)(8), permitting interlocutory appeal for certain issues, does not authorize such an appeal on claims that have not been considered by the trial court. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The principal issues are (1) whether governmental immunity protects a municipality sued for contract breach over an alleged proprietary function and, if so, (2) whether the city's leasing lakefront property outside city limits was a proprietary function. This case presents the umbrella question: Does the "proprietary-government dichotomy" to waive immunity in tort cases against government apply to those arising in contract? Wasson sued the city for terminating its lease without just cause on city-owned Lake Jacksonville property. The city claimed Wasson violated its restrictions on commercial use of the property, but agreed to reinstate the lease as long as Wasson only rented to small groups or families and only for terms no shorter than a month. Jacksonville later evicted Wasson, claiming Wasson's new online advertisement violated the reinstatement agreement. The city answered Wasson by a plea to the court's jurisdiction, contending it had governmental immunity from the suit. The trial court granted the plea. The court of appeals affirmed, holding in part that the city's lease did not involve goods and services, the statutory basis to waive immunity on contract claims against a government.

In this dispute ultimately challenging the city's contention it is immune from a breach-of-contract claim (eviction based on alleged residential lease violation) the issues are (1) whether governmental immunity should bar the claim when the city's lease arguably results from both proprietary and governmental functions and (2) whether the city acted in a proprietary function by leasing lakefront residential lots outside the city then purportedly terminated the lease according to its governmental function.