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Click here for the full text of this decision FACTS: Sefa Koseoglu filed a breach of contract suit against Texas A&M, Mark McLellan and others. Specifically he claimed that the defendants breached a negotiated settlement made with Koseoglu earlier. A&M filed a plea to the jurisdiction based on sovereign immunity. A&M also pleaded sovereign immunity as an affirmative defense in its response to Koseoglu’s petition. Koseoglu filed a motion for summary judgment saying he was entitled to judgment as a matter of law. He also claimed that A&M sovereign immunity had been waived by A&M’s denial of due process to Koseoglu having to do with an employment contract. The trial court denied A&M’s plea to the jurisdiction, and A&M filed an interlocutory appeal. On appeal, A&M and McLellan again asserted sovereign immunity. Koseoglu argued in response that sovereign immunity had been waived both because A&M had accepted the benefits of the settlement agreement, and because the settlement agreement had been reached to resolve A&M’s liability on a due process claim for which immunity has already been waived. Alternatively, Koseoglu argued that he should be permitted to amend his pleadings if his suit is to be dismissed. HOLDING: Reversed and remanded in part; dismissed in part. The court first reviewed McLellan’s appeal. The court found that it did not have jurisdiction to review the denial of a plea to the jurisdiction based on sovereign immunity raised by a government employee � like McLellan � in an interlocutory appeal. The court, however, found that a government employee need not wait until after the conclusion of the litigation to seek appellate review when a trial court denies the plea to the jurisdiction, but he must do so by motion for summary judgment. Because McLellan only filed a plea to the jurisdiction in this case, his appeal had to be dismissed for lack of jurisdiction. The court then considered whether, in his original pleadings, Koseoglu alleged sufficient facts to establish a waiver of immunity. The court found that the Texas Supreme Court had not yet recognized a waiver of immunity that was based on acceptance of contract benefits, as Koseoglu had alleged. As for Koseoglu’s due process claim, the court found A&M had not waived its immunity from suit here, either. The court held that it would allow Koseoglu on remand to amend his pleadings. The court agreed that Koseoglu did not need to amend his pleadings until a trial court determined that they were deficient, and thus, he should have been provided with an opportunity to amend since this court otherwise found his pleadings to be deficient. Though the pleadings were inadequate at this junction to show that immunity was waived, the court conceded that a cause of action for which sovereign immunity can be waived may be made upon amendment. OPINION: Reyna, J.; Gray, C.J., Vance and Reyna, JJ. CONCURRENCE AND DISSENT: Gray, C.J. The author thinks that the majority’s decision to allow Koseoglu to amend his pleadings encouraged Koseoglu and other plaintiffs not to plead all of the information they posses and to never amend their pleadings until after they had suffered an adverse ruling. Using the majority’s approach renders future appellate opinions merely advisory, he argues.

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