UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40380
PAIR-A-DICE ACQUISITION PARTNERS, INC,
Plaintiff-Appellant,
VERSUS
CITY OF GALVESTON, TEXAS; ET AL
Defendants
THE BOARD OF TRUSTEES OF THE GALVESTON WHARVES; GALVESTON WHARVES
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(01-CV-300)
December 11, 2002
Before JOLLY and DUHÉ, Circuit Judges, and LITTLE,* District Judge.
PER CURIAM:**
Pair-A-Dice Acquisition Partners, Inc. (“Pair-A-Dice”) appeals
the district court’s grant of summary judgment in favor of the
Board of Trustees of Galveston Wharves (“the Wharves”) in a dispute
*
F.A. Little, Jr., Senior U.S. District Judge, Western District
of Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
arising from Pair-A-Dice’s attempt to enter into an agreement with
the Wharves to operate a gambling ship in the Port of Galveston.
Pair-A-Dice pressed breach of contract, fraud and constitutional
claims against the Wharves, and summary judgment was granted. The
constitutional claims have been abandoned on appeal. Because we
find no contract was ever entered into between the parties, and
because the defendant Wharves enjoys sovereign immunity from any
tort liability, the judgment of the district court is affirmed,
essentially for the reasons given in the district court’s opinion.
I.
This Court reviews grants of summary judgment de novo. Patel
v. Midland Memorial Hospital and Medical Center, 298 F.3d 333, 339
(5th Cir. 2002). Summary judgment is appropriate if the moving
party establishes that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
II.
Pair-A-Dice essentially argues that the Wharves assumed
contractual obligations by issuing its request for proposals,
receiving Pair-A-Dice’s proposal, and failing to follow the
procedures established for processing the proposals received. This
claim fails for a variety of reasons. First, no contract was ever
entered into between the Wharves and Pair-A-Dice. It is axiomatic
that contracts are created by offer and acceptance. See Williford
Energy Co. v. Submergible Cable Serv., Inc., 895 S.W.2d 379, 384
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(Tex.App.-Amarillo 1994). The mere submission of a proposal does
not create any contractual obligation on the part of either party.
See Peterson v. NCNB Texas Nat’l Bank, 862 S.W.2d 182, 183 (Tex.
App.-Eastland 1993) (“A bid is simply an offer and does not alone
create a contract.”). In fact, the procedures themselves
explicitly state that the Wharves retained the right to accept or
reject any or all proposals received. Second, to the extent that
Pair-A-Dice argues the Wharves’ alleged failure to follow its
procedures somehow constitutes a breach of contract, it appears the
Wharves followed the stated procedures. Pair-A-Dice had argued
that the Wharves violated its procedures by entering into a
contract with Talisman, a competitor, instead of Pair-A-Dice, for
the very services contemplated by the bidding procedures. However,
it appears that the Wharves never entered into any exclusive
agreement with any entity to operate a gambling boat at the Port of
Galveston. Any agreement reached with Talisman was not for the
exclusive, long term operation of a gambling facility in the Port
of Galveston. Accordingly, summary judgment was proper with
respect to Pair-A-Dice’s contract claims.
Pair-A-Dice’s second claim, sounding in tort for fraud and
misrepresentation, similarly must fail. The Wharves enjoy
sovereign immunity, and as such we need not address the merits of
Pair-A-Dice’s fraud claim. A municipality cannot be sued in tort
for the performance of its governmental functions, although it may
be sued for performance of its proprietary functions. City of
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Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997) (citing Dilley v.
City of Houston, 222 S.W.2d 992 (Tex. 1949) (explaining distinction
between governmental and proprietary functions)). The City of
Galveston delegated to the Wharves the power to operate the port
with the sovereign immunity that attends this government function.
Lake Charles Harbor and Terminal Dist. v. Board of Trustees of the
Galveston Wharves, 62 S.W.3d 237, 246 (Tex.App.-Houston 2001). In
requesting and reviewing proposals for the gaming vessel, the
Wharves undertook a governmental, not proprietary function. It had
the power to “operate a port improvement or facility.” TEX. TRANSP.
CODE § 54.003(a). This power provided is “a public and governmental
function.” § 54.003(c). Further, facilitating the operation of a
gaming vessel to raise revenue, and administering the berthing of
vessels are “necessary or convenient for the proper operation of a
port or harbor of the municipality.” TEX. TRANSP. CODE § 54.002(3)(G).
Accordingly, the Wharves are immune from any legal action for
alleged fraud stemming from the exercise of this governmental
function. Lake Charles, 62 S.W.3d at 246.
III.
For the foregoing reasons, and based largely on the
explanation offered by the district court, the judgment of the
district court is
AFFIRMED.
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