Ted Breezy, Indiv., and as Representative of The Estate of Elizabeth Ann Breezy: Joan Breezy Speer; Kathleen Hagan; Victoria Quinn; Paul Hargrave, Individually and as the representative of the estate of Micahel Hargrave; Leanna Lankford, et al v. The Anatomical Board of the State of Texas--Appeal from 10th District Court of Galveston County

Affirmed and Memorandum Opinion filed August 11, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01321-CV

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

V.

THE ANATOMICAL BOARD OF THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 02-CV-0871

M E M O R A N D U M O P I N I O N

Appellants[1] are family members of deceased individuals who donated their bodies to the University of Texas Medical Branch at Galveston (AUTMB@) through its willed body program, wherein donors enter into a contract with UTMB for their bodies to be used for advancing medical science. Appellants contend that UTMB failed in its promise to return the ashes of their loved ones, instead commingling them with the ashes of other donors. Appellants also allege that some of the donors= body parts were sold for profit. Appellants sued eighteen defendants in connection with the mishandling of these corpses, including appellee the Anatomical Board of the State of Texas (Athe Board@), which they sued for negligence, negligent supervision, negligent entrustment, negligence per se, breach of contract, constructive fraud, and vicarious liability. The trial court granted the Board=s plea to the jurisdiction based on sovereign immunity, and this appeal followed. We affirm.

In Texas, sovereign immunity protects a unit of state government against lawsuits for damages unless the state has consented to suit. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Board is a state agency entitled to such immunity. Taylor v. Anatomical Bd., 148 S.W.3d 661, 663 (Tex. App.CBeaumont 2004, pet. denied). Sovereign immunity encompasses two distinct principles: immunity from suit and immunity from liability. Miranda, 133 S.W.3d at 224. When a governmental unit contracts with a private party, it thereby waives immunity from liability but not immunity from suit. Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex. 2003). It is the role of the Texas Legislature to waive immunity from suit, and to constitute a waiver, a statute or resolution must contain a clear and unambiguous expression of such a waiver. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Appellants do not contend that the legislature has waived immunity through a statute or resolution for any contract-based claims in this case, and thus, any claims that sound in contract are barred by sovereign immunity.[2]

Through their various causes of action, appellants primarily seek recovery for mental anguish caused by the mishandling of their family members= bodies. In Texas, there is no duty to avoid negligently inflicting emotional distress. Lions Eye Bank v. Perry, 56 S.W.3d 872, 875 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (citing Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993)). Thus, emotional distress damages are available for only limited types of claims, including Athe foreseeable result of a breach of duty arising out of certain special relationships.@ Id. at 876. Appellants= theory in their two issues on appeal is that (1) the contract between the donors and UTMB, along with various statutory duties,[3] creates a Aspecial relationship@ that gives rise to tort-based claims and (2) the legislature has waived immunity for these tort claims under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005).

This court has addressed these very issues in two other cases involving UTMB=s willed body program. See Robinson v. Univ. of Tex. Med. Branch at Galveston, No. 14-03-01400-CV, __ S.W.3d __, 2005 WL 1529402 (Tex. App.CHouston [14th Dist.] June 30, 2005, no pet. h.); Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314 (Tex. App.CHouston [14th Dist.] Aug. 7, 2003, pet. denied) (mem. op.). In Harrison, we stressed that Athe 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.@ Harrison, 2003 WL 21803314, at *3. Thus, we held that the duties created by the donation contract give rise to contract-based claims, which are barred by sovereign immunity. Id.; see also Robinson, 2005 WL 1529402, at *3B4; Taylor, 148 S.W.3d at 665; Noah v. Univ. of Tex. Med. Branch at Galveston, Nos. 01-03-00985-CV & 01-03-00986-CV, __ S.W.3d __, 2004 WL 1794642, at *5 (Tex. App.CHouston [1st Dist.] Aug. 12, 2004, pets. denied). In Robinson, we considered and rejected the argument that the statutory duties relied upon by appellants give rise to a tort cause of action: AThe existence of statutory duties does not create a special duty cause of action for which mental anguish damages are recoverable.@ Robinson, 2005 WL 1529402, at *3; see also Taylor, 148 S.W.3d at 665; Noah, 2004 WL 1794642, at *6.

Harrison and Robinson clearly dictate that appellants= claims are contract-based and therefore barred by sovereign immunity. We overrule appellants= first issue. Because we determine that their claims sound in contract rather than tort, we need not address whether appellants= claims are permitted by the Texas Tort Claims Act, as alleged in their second issue. We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 11, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

[1] Appellants are Ted Breezy, Individually and as the Representative of the Estate of Elizabeth Ann Breezy; Joan Breezy Speer; Kathleen Hagan; Victoria Quinn; Paul Hargrave, Individually and as the Representative of the Estate of Michael Hargrave; LeAnna Lankford, Individually and as the Representative of the Estate of Bonnie Stanford O=Neal; Sandra Kohlenberg, Individually and as the Representative of the Estate of Billie Kohlenberg; Joann Cooper, Individually and as the Representative of the Estate of Edna MaHaffy; George Oliver, Jr., Individually and as the Representative of the Estate of George Davis Oliver, Sr.; Tana Everett; Clifton Everett, Individually and as the Representative of the Estate of Billy Everett; Daron C. McCaslin, Individually and as the Representative of the Estate of James B. McCaslin; Edna Pauline McCaslin; Todd Sisson, Individually and as the Representative of the Estate of Linda Porritt; Shad Sisson; Brandi Landuyut; Harriet Whitworth, Individually and as the Representative of the Estate of John Whitworth; Samuel Whitworth; Barbara Hunt; Melinda Slaughter, Individually and as the Representative of the Estate of Michael Graf; Lacy Graf; Andrew Graf; Helen Carrig, Individually and as the Representative of the Estate of Paul Carrig; Theresa Carrig; Kay Callin; Martin Carrig; Tina Vaughn, Individually and as the Representative of the Estate of Pearl Ethel Purvis; Kevin Tippie; Ricardo Billescas, Individually and as the Representative of the Estate of Imelda Billescas Romeros; Irma Young; Veronica Lopez; Yolanda B. Garcia; and Belia V. Zamora.

[2] Appellants argue that the Board=s immunity from suit has been waived Aby its conduct in accepting full contractual performance from a private party.@ Although the Texas Supreme Court has alluded to the possibility that the State could waive its immunity from a breach of contract suit by conduct, see Catalina, 121 S.W.3d at 705B06, it has yet to set forth guidance on when finding such a waiver would be appropriate, and we decline to do so here. See Robinson v. Univ. of Tex. Med. Branch at Galveston, No. 14-03-01400-CV, __ S.W.3d __, 2005 WL 1529402, at *4 (Tex. App.CHouston [14th Dist.] June 30, 2005, no pet. h.); Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, at *2 n.2 (Tex. App.CHouston [14th Dist.] Aug. 7, 2003, pet. denied) (mem. op.); see also Noah v. Univ. of Tex. Med. Branch at Galveston, Nos. 01-03-00985-CV & 01-03-00986-CV, __ S.W.3d __, 2004 WL 1794642, at *7 (Tex. App.CHouston [1st Dist.] Aug. 12, 2004, pets. denied).

[3] See, e.g., Tex. Health & Safety Code Ann. ' 691.022 (Vernon Supp. 2004B2005) (AGeneral Duties@ of the Board); 25 Tex. Admin. Code ' 479.4 (2005) (AFinal Disposition of the Body and Disposition of Remains@); 25 Tex. Admin. Code ' 479.5 (2005) (AAbuse of a Corpse@).