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Click here for the full text of this decision FACTS:The appellant, Helen Robinson, filed suit against the appellee, the University of Texas Medical Branch at Galveston (UTMB), for the mishandling of the remains of her deceased husband. The husband had donated his body to the Anatomical Board of the State of Texas with arrangements for disposition to be made by UTMB under the “UTMB Willed-Body Program.” By handwritten annotation, the husband directed that after cremation his body be returned to his family. The agreement also contained an express relinquishment of rights and claims for liability against the Anatomical Board of the State of Texas and the receiving institution. The husband’s body was delivered to UTMB upon his death, but Robinson received notification from UTMB that it was unable to return her husband’s ashes because the ashes were commingled with other donors’ ashes. Robinson filed suit asserting a breach of contract claim, negligence, gross negligence for mental anguish, negligent supervision and constructive fraud. UTMB filed a plea to the jurisdiction alleging sovereign immunity, lack of legislative consent to sue, and that the suit fell outside the Texas Tort Claims Act as the body was not personal property. The plea to the jurisdiction was granted by the trial court, and Robinson appealed. HOLDING:The court affirms the judgment of the trial court. A governmental entity’s immunity from suit defeats a court’s subject matter jurisdiction. Thus, in a suit against a governmental unit, a plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a waiver of that immunity. The court finds that it is undisputed that UTMB is a governmental unit and shares such governmental immunity. When the state contracts with a private party, the court notes that it thereby waives immunity from liability, but not from suit, which can only be waived by express consent of the legislature. For agreements entered into between the state and an individual, such as this one, after Aug. 30, 1999, Chapter 2260 of the Texas Government Code provides the exclusive and required method for resolving breach of contract suits. The court finds that Robinson did not plead or prove that she followed these procedures and availed herself of Chapter 2260′s exclusive method for resolving breach of contract claims. She further failed to plead or prove that the legislature consented to suit in the form of a statute or resolution. As a result, the court holds that Robinson’s contract claim must fail. Robinson next contends that UTMB’s use of her husband’s body to train medical students constitutes “use of tangible personal property” such that the Texas Tort Claims Act’s waiver of immunity applies. But the court finds that UTMB’s use of the body was complete, and the only act remaining was the return of the ashes to Robinson. Return of the ashes was not the intended use of the body; therefore, the court holds that the Texas Tort Claims Act’s waiver provisions do not apply. Robinson next contends that UTMB’s failure to return her husband’s remains gives rise to a cognizable tort claim due to the long standing legal duty to properly handle human remains. The court notes that the Anatomical Board has provided that the dissection of human remains is a special privilege and provided for the return of the remains to the family if so requested. But in order for the Texas Tort Claims Act to waive sovereign immunity in limited circumstances, there must already exist a cause of action outside the Texas Tort Claims Act. The court finds that the Texas Tort Claims Act makes no reference to statutory duties, and also finds that there is no pre-existing common law tort duty regarding the handling of willed bodies. Consequently, the court holds that the existence of statutory duties does not create a special duty cause of action for which mental anguish damages are recoverable. Robinson further urges that UTMB’s failure to return the body, in accordance with the instructions contained in the contract, creates a breach of a special duty permitting recovery under the Texas Tort Claims Act for mental anguish damages. By its failure to return the remains, as set forth in the contract, Robinson is asserting a waiver-by-conduct exception to the sovereign-immunity rule. The court notes that the Texas Supreme Court has expressly declined to adopt such an exception, and the court declines to do so, either. The court reiterates that breach of contract claims are not actionable against UTMB and cannot promote a cognizable claim for mental anguish damages. The court holds that UTMB has not waived immunity from suit by contracting with Robinson, and Robinson has not availed herself of her administrative remedies as provided by the legislature, which has provided that Robinson may pursue her claims through legislative consent, administrative review or resolution of the legislature. Finally, the court rejects Robinson’s claim of constructive fraud against UTMB for UTMB’s breach of its special, fiduciary duty to properly handle willed bodies. The court holds that the claim for constructive fraud does not fall within the Texas Tort Claim Act’s limited waiver of immunity; therefore, UTMB retains its immunity. Because there is no claim for misuse of tangible personal property, the court holds that this claim must also fail. The court concludes that the special relationship cause of action sounds in contract, and no Texas case law supports a tort duty owed to Robinson. OPINION:Elliott, J.; Elliot, Fowler and Edelman, JJ. CONCURRENCE:Fowler, J. “I concur in the result the majority reaches but I disagree with the court’s resolution of all the claims alleged in Mrs. Robinson’s petition except for the breach of contract and special relationship claims. Mrs. Robinson’s petition alleged claims for traditional negligence, gross negligence, negligent supervision, negligence per se, special relationship, and constructive fraud. In each but the special relationship claim, the majority finds Mrs. Robinson cannot pursue these claims because she has not alleged a use of tangible personal property for which the Texas Tort Claims Act waives immunity. I would hold that Mrs. Robinson could not pursue these claims because the remaining claims, although pleaded as tort claims, are all contractually based and thus subject to Chapter 2260′s administrative prerequisites.”

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