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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(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.,

, 384

2 (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,

(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

3 Tyler v. Likes,

(Tex. 1997) (citing Dilley v.

City of Houston,

(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,

(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,

.

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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