## IN THE SUPREME COURT OF TEXAS

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### No. 17-0888
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### C ARL 

### O WENS 

### , J R 

### ., C ONNIE 

### O WENS 

### , M ICHAEL 

### T ERRY 

### , AND 

### S ANDI 

### T ERRY 

### , P ETITIONERS

v. 

### T HE 

### C ITY OF 

### T YLER 

### , T EXAS 

### , R ESPONDENT

══════════════════ ══════════════ ══════════ O N P ETITION FOR R EVIEW FROM THE C OURT OF A PPEALS FOR THE T WELFTH D ISTRICT OF T EXAS

══════════════════ ══════════════ ══════════ PER CURIAM The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents. The Owens, Terry, and Chatelain families lease three contiguous lot s on the lake pursuant to lease agreements with the city. The Chatelains decided to build a ne w pier and boathouse extending from their lot onto the water. They asked the city for a build ing permit. The Owens and Terry families objected. After some attempts at compromise, the city approved the Chatelains’ request for a permit. The Owens and Terry families sued the city and the Chatelains, seeking to block the construction. They alleged seve ral causes of action, including breach of contract. The city filed a plea to the jurisdiction assert ing governmental immunity. The trial court denied the plea. The city took an interlocutory appeal pursuant to T EX

. C IV

. P RAC

. & R EM

. C ODE § 51.014(a)(8). Relying primarily on Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427 (Tex. 2016) ( Wasson2 I

), the court of appeals concluded that the claims against the c ity were barred by governmental immunity because they arose from the city’s governmental (rathe r than proprietary) acts. The court of appeals reversed the denial of the city’s plea to the jurisdiction, rendered judgment dismissing the claims against the city, and remanded the case f or further proceedings. ___ S.W.3d ___, ___ (Tex. App.—Tyler 2017) (mem . op.). The plaintiffs pet itioned for review. After the court of appeals issued its decision, this Court deci ded Wasson Interests, Ltd. v. City of Jacksonville , 559 S.W.3d 142 (Tex. 2018) ( Wasson II ). In Wasson II , we stated: to determine whether governmental immunity applies to a breach- of-contract claim against a municipality, the proper inquiry is whether the munic ipality was engaged in a governmental or proprietary function when it entered the c ontract, not when it allegedly breached that contract. Stated differently, the focu s belongs on the nature of the contract, not the nature of the breach. If a municipali ty contracts in its proprietary capacity but later br eaches that contract for gover nmental reasons, immunity does not apply.
Wasson II at 149. By no fault of its own, the court of appeals did not c onduct the inquiry described above, under which the city’s immunity from a breach of contrac t claim depends on “the nature of the contract, not the n ature of the breach.” Id . To afford the court of appeals the opportunity to re-conduct its review in accordance with our intervening decisi on in Wasson II , we remand this case to the court of appeals without hearing oral argument. T EX

. R. A PP

. P. 59.1; see, e.g. , Bossier Chrysler-Dodge II, Inc. v. Rauschenberg , 238 S.W.3d 376 (Tex. 2007) (per curiam). The petition for review is gran ted, the judgment of the court o f appeals is vacated, and the case is remanded to the court of a ppeals for further considerat ion in light of Wasson II

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OPINION DELIVERED: December 21, 2018