*1 insurаnce, professional medical DEPARTMENT TEXAS OF inevitably impact
would availability TRANSPORTATION, Auld, medical care. See 893. Petitioner, To the “availability increase of medical Texans,” care for Legislature sought v. liability make health damages care more predictable professional so medical in- JONES DIRT & BROTHERS PAVING surance would be available affordable CONTRACTORS, INC., rates. Id. Respondent.
Mandating prejudgment the award of No. 00-1067. interest on past damages, Legisla- as the Supreme Court of Texas. P, ture has done under subchaptеr does goal. not undermine that Prejudgment Argued on Jan. calculation, interest to precise and thus the maximum amount of addition- Decided June exposure may al readily be anticipated Auld,
insurance carriers. See (Hankinson,
at 909 J. concurring and dis-
senting). Legislature
Had the intended to limit prejudgment award of interest under
subchapter cap, K’s it would have referred
to that subchapter it subchap- when added Furthermore,
ter P in 1995. Leg- had the
islature prejudgment intended for interest
to be awarded in liability some health-care others,
cases but not it would not have
chosen the mandatory language did for
subchapter P. Given the self-contained Act,
structure of the it seems extremely
unlikely to me that the Legislature would ignored
have both K subchapter and used
mandatory language subchapter P had
it not intended exempt prejudgment past
interest on damages liability from the
cap. Because the Court concludes other-
wise, I dissent. *2 Cornyn, Attorney of the
John General Texas, Andy Taylor, First Assis- State Gilbert, General, Attorney F. tant Jack General, Attorney Leigh Assistant Ronda Neff, Click, Grady Boyd, Office Jeffrey S. General, Austin, Attorney for Peti- of the tioner. Hearne, Epp- D. &
Douglass Hearne Powers, & right, Eppright Ann R. Hearne Austin, Gest, for Respondent. opinion BAKER Justice delivered the Court, in which Chief Justice HECHT, PHILLIPS, Justice Justice OWEN, HANKINSON, Justice Justice O’NEILL, Justice JEFFERSON and joined. RODRIGUEZ Justice Paving Brothers Dirt & Contrac- Department with Texas tors’ contract Transportation provides prior Disadvantaged terminating removing (DBE) Enterprise Business subcontractor project, from a Jones had to demonstrate Oppor- Business “to the satisfaction of the in Austin” tunity Program Office [BOP] DBE was or unable unwilling stan- appropriate decide perform. We un- reviewing the BOP’s decision dard clause. We the contract’s satisfaction der of the decide whether section 201.112 also Code, which estab- Texas lishes administrative remedies TxDOT, exclu- disputes provides with remedy for common-law sive declara- breach of claims for tory relief.
We conclude that the Administrative The contract authorized Jones to deter- Judge correctly Law reviewed the BOP’s DBE mine what work the that Jones chose decision for whether it was based on perform. forty- would Jones contracted tiality, error. Concrete, percent two of the work to AK *3 Therefore, аppeals the court of erroneous- However, DBE. Jones and TxDOT soon ly instructed the trial court to remand the AK became concerned that Concrete was claim administrative to the ALJ to review unqualified, and its substandard work had the BOP’s decision under a different stan- project progressed. to be corrected as the dard. 899-900. Further- formally AK Jones notified Concrete that more, we Transportation conclude that the unsatisfactory, its work at- was then provides Code remedy exclusive tempted tо terminate AK Concrete from Jones’s against common-law claims project. Jones also notified the BOP Thus, TxDOT. the court of appeals incor- that replace wanted to AK Concrete rectly remanded claims to the trial court with another DBE subcontractor. replead for Jones to showing facts waiver BOP, charged TxDOT subdivision sovereign immunity. S.W.3d at 902. administering with DBE programs, re- Accordingly, we reverse ap- the court of quested provide that Jones to documents peals’ judgment remanding Jones’s com- demоnstrate that AK Concrete was unable mon-law claims to the trial court for re- unwilling perform. to reviewing After pleading, dismiss those claims for lack of the documentation provided, Jones and af- jurisdiction, and remand remaining Concrete, ter interviewing Jones and AK claim to the trial court for proceedings that, although BOP concluded AK consistent with opinion. Concrete’s work substandard and had I. BACKGROUND corrected, to be there was no evidence that problems delayed had project. Jones contraсted with to recon- TxDOT Therefore, the BOP denied request Jones’s struct 4.28 miles of FM in Presidio replace to AK Concrete. County. Because federal partly funds supported project, the contract re- Eventually, discharged TxDOT AK Con- quired Jones to subcontract at least ten attempting crete for to bribe a TxDOT percent Also, of the work to a DBE. be- time, inspector. by But Jones cause of this funding, govern- the federal longer secure substitute subcontrac- required ment Jones’s contract with tor and completed thus the work itself. provision TxDOT to have a requiring this, late, job Because of Jones finished the Jones to obtain approval from TxDOT’s $22,500 liquidated TxDOT assessed a DBE terminating BOP before that Jones damages against failing Jones for to meet project: hired for a deadline. Prior to terminating removing a DBE pro- Jones then initiated administrative
subcontractor named in the commit- ment, ceedings Code to the Contractor must demonstrate $139,000 costs, recover about additional Op- satisfaction of the Business $22,500 which included a refund of the portunity Program Office in Austin the originally designated liquidated damages DBE that TxDOT assessed was not able TraNsp. Jones. See to willing perform.... Any against substitu- tions of ap- DBEs shall be 201.112. TxDOT’s contract claims com- Next, proval by Opportunity the Business Pro- mittee claim. denied Jones’s gram requested hearing Office Austin. a contested case in the peti- Hearings. appeals noted Jones’s
State Office of Administrative
201.112(b);
showing
facts
a waiver
allege
tion failed
2003.021(b)(1).
2001.051,
sovereign immunity
§§
of TxDOT’s
Gov’t Code
and declar-
was not
common-lаw breach of contract
The ALJ determined
claims,
have
atory judgment
for the
dam-
Jones should
liquidated
liable
to amend. 24 S.W.3d
ages,
opportunity
but
denied
claims for the
an
she
Jones’s
Therefore,
re-
finishing
additional
related
Jones’s
costs
ALJ deter- manded
claims to
trial court
AK Concrete’s work. The
these
opportunity
replead
denying
mined
the BOP’s decision
allow Jones
exception
as an
DBE
“waiver
conduct”
request to terminate its
“was
immunity. 24
was not
TxDOT’s
reasonable and
based
*4
misconduct,
appeals
thе
of
fraud,
or
error.”
at 901-02. Because
court
gross
any
under
recovery
the
deci- did not affirm Jones’s
adopted
proposed
TxDOT
ALJ’s
it
liquidated
grounds,
the
did not decide
Jones
sion
reimburse Jones
24
at 902.
damages.
attorney’s fees.
S.W.3d
damages
deny
and
additional
recover
re-
parties petitioned
Both
re-
sought
substantial evidence
view.
trial court.
view of
decision
the
TxDOT’s
201.112(d);
Thansp.
suit,
2001.171. In that
II. ADMINISTRATIVE
Gov’t
original claims for common-law
REVIEW
also raised
PROCEEDING —JUDICIAL
contract, declaratory judgment,
breach
against
claim
TxDOT—
Jones’s
and
fees. TxDOT answered
attorney’s
in the
and
proceeding
in the administrative
immunity against
and asserted
recover, among
other
trial court —seeks
issuing
claims.
original
Jones’s
Without
incurred
allegedly
the
things,
costs Jones
law,
the
findings of fact or conclusions
not
its re-
approve
the BOP did
because
the part
trial court affirmed
of TxDOT’s
DBE.
trial
replace
the
In the
quest
damages,
reimbursing
liquidated
order
the
court,
the
ALJ commit-
Jones claimed
deny-
part of
order
but it reversed the
the
law,
ted an error of
because she
damagеs. The trial court
ing additional
she
the
wrong standard when
reviewed
the
for Jones
then rendered
deny
request to
decision to
BOP’s
$139,077
included
damages,
terminate the DBE. Jones asserts
$22,500
inter-
damages, plus
in liquidated
deci-
reviewed
BOP’s
ALJ should have
attorney’s
and
fees.
est
under a “reasonableness”
sion
re-
applies when
the trial
because that standard
reversed
The court
appeals
First,
viewing a
under
“satisfaction”
ap-
court of
decision
judgment.
court’s
v.
Pipe
Lake
Line Co.
claim
contract. See Black
thе administrative
peals remanded
(Tex.
Co.,
80, 88
Constr.
to remand Union
trial
with instructions
court
1976),
grounds,
part
overruled in
other
decision
to review the BOP’s
ALJ
Co., 767
v. Marathon Oil
S.W.2d
AN Sterner
request to terminate
denying Jones’s
hand,
(Tex.1989).
686,
other
690
On the
under a different standard
Concrete
re-
the ALJ
Second,
properly
TxDOT asserts
24
899-900.
review.
S.W.3d
partial-
decision under
viewed
BOP
appeals concluded
the court of
misconduct,
fraud,
gross
or
error stan-
ity,
rule on
it did not
trial court erred because
and,
dard,
applies when
that standard
jurisdiction
in-
becаuse
plea
TxDOT’s
deci-
referee’s
stead,
reviewing
agreed-upon
it ren-
it
overruled when
impliedly
v. McKen-
Antonio
City
court of
sion. See
San
judgment. The
dered
final
Bros.,
315,
zie Constr.
136 Tex.
clause. See State v. Martin
S.W.2d
(1942)
(1941).
989,
505,160
58,
(plaintiff
S.W.2d
allege
prove
highway
must
that State
Jones,
The court of appeals agreed with
engineer’s
partiality,
decision was based on
reversed the trial
judgment,
court’s
fraud, misconduct,
error);
Austin
gross
remanded the case to the trial court. The
Bridge
Teague,
Co. v.
137 Tex.
appeals
court of
detеrmined
(1941)
1091,1092
(applying partiali-
subdivision,
is a
BOP
the satis-
fraud, misconduct,
ty,
gross
error stan-
effectively subject
faction clause was
Highway Engi-
dard of review
“State
TxDOT’s sole determination. 24 S.W.3d at
clause);
neer’s” decision under satisfaction
Relying
on Black
(Tex.
Clark,
State v.
appeals concluded that the ALJ committed
writ) (court
1985, will set
App.-Austin
an error of law when it reviewed Jones’s
highway engineer’s
aside State
decision
claim,
proper
because the
review
only if
plaintiff proves was based on
standard is reasonableness
rather
than
fraud, misconduct,
partiality,
er-
or gross er-
ror);
State,
Bridge
Austin
Co. v.
Thus,
ror.
Texas courts applied have this standard which is to prove, less onerous in other cases in which desig- allays agreements the contract concerns that condi- engineer nates an building project upon might on the party’s tioned one satisfaction to determine whether aspect per- illusory they some be could be vulnera- formance suffices under a party’s satisfaction ble to that whim or bad-faith with- Lake,
holding approval. Black 538 a “whim” or party’s “caprice” be illusory, S.W.2d at 88. the Court concluded that the
ty’s
performance
about
decision
whether
satisfactory
objectively
must be
reason-
B. ANALYSIS
Lake,
Ap-
at 88.
able. Black
We
conclude
ALJ
facts,
plying
that standard
correct
review standard —
decided that the contractors could recover
gross
re
error—-to
“not
for the additional work if it was
rea-
view the BOP’s decision to deny Jones’s
scope
sonably within
contract’s
request
remove AK Concrete from the
simply
technical
and not
specifications”
Lake,
In
job.
Black
this Court had to
Black
the addi-
inspectors
Lake’s
ordered
required
whether
decide
the contract
fraud,
mis-
tional work
“the absence of
prime contractor and
to per
subcontractor
Lake,
conduct,
Black
mistake.”
Lake,
form additional work for Black
at 89.
whether
the work
extra-contractual
Here,
of appeals
the court
determined
compensable
quantum
and therefore
between Jones and
Lake,
meruit. Black
tuting our for that of the archi- tect engineer, and we held that In seeking judicial addition to review decision of the engineer decision, architect or agency brought two *7 final and conclusive in the absence original causes of action in the trial court: mistake.” a common-law breach of contract claim Black at 88. declaratory judgment and a action. Both premised claims are on the same contract Here, we likewise should refrain from dispute that was the of the suit for substituting our for that of the judicial review. TxDOT claims that the BOP. The record shows that the BOP is a jurisdiction trial court lacked the decide TxDOT subdivision in Austin with the sole claims, original because Jones’s adminis- purpose of the DBE administering and remedy trative action is the exclusive Historically Under-Utilized Business Pro- available on the contract claim. Further, grams. the record establishes regulations that federal require determining that thе In trial the court could to, claims, contractor provide original documents and re- the court of resolve the from, that, approval appeals ceive the BOP before ter- had stated Jones sued after Moreover, session, minating a DBE. the federal the legislative Jones would contract, government reviews the BOP’s records to not have able to been assert the properly procedures declaratory ensure it follows for judgment actions addi- seeking obtaining agency prоcess tion to the decision. The avail itself that before the appeals Legislature’s court of relied on a amend- the consent sue under Transportation ment to the Code that es- Civil Practice and Remedies Code. Little- procedure Tex, the tablishes administrative at 597. resolving disputes contract with TxDOT. 1997, the Legislature In amended recognized at 900. The court an ad- Transportation Code establish that not- Legislature provided procedure through ministrative law, any withstanding proce- other disputеs resolve with may ties contract Transportation proscribed dures 1, 1997, 75th June TxDOT. See Act of Code “shall constitute the exclusive reme- 1.36(a), R.S., 1171, § Tex. Leg., ch. dy resolving law” for a claim that sec- (codified 4427, Laws, Gen. Tex. governs. 24 Act (citing tion S.W.3d at 900 201.112). TraNSp. § Legisla- Code 1997, R.S., 1171, Leg., 75th ch. June amendment ex- ture’s comment to this 1.36, § 1997 Tex. Gen. Laws plains Code’s stat- (codified TRánsp. 201.112, § at Tex. remedy utory procedure the exclusive cmt.)). appeals But the court of concluded determining disputes between that it clear not whether exclusive private parties. TxDOT and
remedy rule when Jones’s action 201.112, § cmt. This exclu- TRANSP. Code arose. 24 900. Consequently, S.W.3d at remedy any claim applies sive rule appeals court of focused whether pending before on the amend- any demonstrating pled facts date, September ment’s effective immunity sovereign TxDOT waived its Transp.Code 201.112, cmt. The See concluding from After suit. that Jones Legislature to mean the “pending” defined so, appeals had not done court of re- claim with TxDOT but has been filed manded the breach declar- yet judicial not sought claimant has review. atory the trial judgment claims to court 201.112, cmt. See replead any give opportunity facts whether TxDOT demonstrating Analysis B. immunity waived from suit. its We conclude S.W.3d at remanding erred in Jones’s common-law Applicable declaratory judg breach of contract and
A. Law replead- ment claims to trial court for protects Sovereign immunity ing. analogous case is Little-Tex This money damages from lawsuits for State Co., we Insulation in which held Legislature expressly unless thе consents in the participate must administra Comm’n v. suit. General Sews. expressly pro process Legislature tive Little-Tex Insulation *8 contract claims vided for certain breach of (Tex.2001). party seeking a Generally, seeking Legisla as a prerequisite breach contract can estab redress for of Prac consent to under the ture’s sue Civil by bringing lish consent to sue legislative Little-Tex, tice and Remedies Code. See obtaining special suit under a statute Here, the Legislature Little-Tex, legislative resolution. See that Trans expressly has determined 596; Tex. PRAC. & S.W.3d at Civ. Rem.Code provides the exclusive rem Further, portation Code § when a statute ex 107.001. against TxDOT. edy for contract claims pressly provides pro for an administrative Transp. 201.112, § cmt. types certain of contract See cedure to resolve Tex. Code State, rule remedy applies claims must This exclusive against dispute. Jones’s Jones its adminis- conclude that the ALJ re- filed Because we the cor- trative claim with viewed the BOP’s decision under TxDOT Decembеr the ALJ issued her final that rect we reverse the court order adopted TxDOT in and insofar as it remands appeals’ December trial sought judicial substantial evidence that issue to the court with instruc- April review on review the Accordingly, tions remand ALJ to remedy provision applies, exclusive be- decision under a different standard. BOP’s Furthermore, cause Jones filed its claim with because we conclude that TxDOT but yet sought judicial Transportation provides had not review on the Code the ex- remedy amendment’s effective date. See Tex. clusive for breach of contract Transp. 201.112, TxDOT, § against The trial we reverse the cmts. claims also Code jurisdiction court appeals’ judgment remanding thus lacks over Jones’s court common-law breach of contract and declar- common-lawbreach of contract and declar- claims, atory judgment atory judgment no matter how claims to the trial court for Therefore, pleads replead them. Jones to im- we hold waiver munity. erred in remand- Accordingly, we rеverse the court ing those appeals’ judgment entirety, claims to the trial court for re- dis- its pleading. miss common-law breach of con- Jones’s declaratory judgment
tract and claims against jurisdiction, for lack of and IV. CONCLUSION remaining remand the claim to the trial jurisdiction The trial court’s in this case court for proceedings consistent with this was limited to a substantial evidence re- opinion. view of TxDOT’s final order. 201.112(d); § Code Tex. Gov’t concurring Justice ENOCH filed a and § 2001.171. Accordingly, the trial Code dissenting opinion. only court could hаve affirmed the ALJ’s opinion Justice ENOCH filed an decision, or reversed and remanded it concurring part dissenting part. the trial court determined that the ALJ’s was, decision among specific other statuto- I do not take issue with the standard considerations, ry by affected an error of that the Court concludes the Administra- § law. See Tex. Gov’t Code 2001.174. Judge apply Con- tive Law should to this claim. sequently, the trial court erred proceed- award- Jones initiated the administrative ing interest, damages, Code, Jones additional ings Trаnsportation under the and I attorney’s fees. In rendering judg- agree its with the case need ment, the trial court either exceeded its not be remanded for review under a differ- power review disagree substantial evi- ent standard. But I with the rule, dence entertained origi- holding Court’s nal jurisdiction claims over which it had no provides remedy Code the exclusive procedure pro- the administrative against breach of contract claims the Tex- vides remedy. the exclusive See Department Transportation. as TRAnsp. 201.112, cmt; statutory allowing provision admin- Gov’t discussed, 2001.174. we remedy As have istrative this case1 is substan- *9 identify failed tially provisions similar to the at issue trial court’s errors. General Services Commission v. Little- Transp. 1. See Tex. 201.112.
486 Therefore,
Tex for the rea- InsulUtion Co.2 Little-Tex, MIDLAND COM JUDICIAL DISTRICT expressed my sons dissent AND COR MUNITY SUPERVISION I respectfully part dissent from that of the DEPARTMENT, Peti RECTIONS dismissing Court’s com- Jones’ tioner, mon-law breach of contract and declarato- ry judgment claims. v. It a fair I question why ask contin- JONES, Respondent. Ruthie Ann dissenting sovereign
ue from this Court’s immunity concerning con- No. 01-0557. jurisprudenсe when clearly tracts the Court so decided Supreme Court of Texas. Sign issue v. Federal Texas South- University3 ern Re- Texas Natural 27, June source v. IT— Conservation Commission (Tex.2002).4 74 Davy, Simply, 849 decided, wrongly
these cases were unabated,
damage wreaked continues full cost remains untotalled. List grow.5 continues to As to the immunity holding, I re-
Court’s
spectfully
again.
dissent —
2001,
(Tex.2001).
no
(Tex.App.-Houston [1st Dist.]
2.