Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Civil Litigation No. 03-02-00150-CV, 1/16/2003. Click here for the full text of this decision FACTS: This is an appeal from the granting of a plea to the jurisdiction based on sovereign immunity. Appellant Ab-Tex Beverage Corp. sued Angelo State University for breach of contract and declaratory judgment arising out of a contract whereby Ab-Tex acquired the exclusive right to provide food and drink vending services on the university’s campus. The district court dismissed the suit for want of jurisdiction. HOLDING: Affirmed as modified. The district court’s order granted the university’s motion and then denied all “relief not expressly granted.” This quoted language is a “Mother Hubbard” clause which speaks to the finality and appealability of the judgment. There was never any doubt but that the university’s plea to the jurisdiction was directed at the entirety of Ab-Tex’s lawsuit; it was clear that the dismissal order disposed of all issues and parties and was final and appealable. While the Mother Hubbard clause was inappropriate and should not have been included in this order, the court does not believe that it effected an adjudication of the merits of Ab-Tex’s suit. The clause was obviously intended to apply to and deny any other relief requested in the university’s jurisdictional plea. The court holds that the dismissal order did not adjudicate the merits of Ab-Tex’s claims against the university, and would have no preclusive effect on these claims if Ab-Tex brings them again, should the impediment to jurisdiction ever be removed. The order should not have contained the sentence: “All relief not expressly granted herein is DENIED.” The court modifies the order to omit this sentence and to substitute in its place the sentence: “All of plaintiff’s claims are dismissed without prejudice for want of jurisdiction.” Ab-Tex argues that the trial court erred in refusing to abate the suit, citing Federal Sign v. Texas Southern University, 951 S.W.2d 401 (Tex. 1997), as authority for its position. Ab-Tex’s argument stretches the Supreme Court’s language in Federal Signtoo far. The court did not hold that a trial court must abate a breach-of-contract suit, rather than dismiss, when faced with a jurisdictional plea based on sovereign immunity. The question of whether to abate or dismiss the case was not an issue before the supreme court in Federal Sign. The fact situations in the two cases are entirely different. Merely repleading could not correct the jurisdictional defect in Ab-Tex’s suit. Removing the jurisdictional impediment must be done outside of the suit itself. The court cannot say that it was error to dismiss the suit rather than abate it. Because the dismissal was without regard to the merits, there is no reason why Ab-Tex cannot refile its suit should it ultimately obtain legislative permission to sue the university. Ab-Tex attacks the trial court’s dismissal because the university’s plea to the jurisdiction was not verified. The university’s plea did not contain allegations of fact that were necessary to the granting of the dismissal. A jurisdictional plea is not among those pleas required to be verified. The plea to the jurisdiction was not rendered defective because it was not verified. OPINION: Puryear, J.; Kidd, Patterson and Puryear, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.