C. Borunda Holdings, Inc. v. Lake Proctor Irrigation Authority of Comanche County, Texas
11-15-00057-CV
| Tex. App. | Dec 22, 2016Background
- LPIA sued C. Borunda Holdings, Inc. to recover $111,481.41 for water furnished under fourteen water-supply agreements covering 2012–2013. Borunda counterclaimed for breach of contract and later amended to include a 2011 agreement.
- LPIA filed a lis pendens on Borunda’s real property; Borunda paid LPIA $118,045.52 to complete a property sale and LPIA’s attorney released the lis pendens. LPIA never obtained a judgment.
- LPIA later filed a notice of nonsuit, withdrawing its affirmative claims for recovery.
- LPIA moved for summary judgment and filed a plea to the jurisdiction asserting governmental immunity barred Borunda’s counterclaims beyond certain offsets.
- The trial court ruled it had jurisdiction over Borunda’s counterclaim only to the extent the claim was germane to and defensive of LPIA’s 2012–2013 claims (and only as an offset), and granted LPIA’s summary-judgment plea because LPIA had nonsuited its affirmative claims, leaving nothing to offset.
- Borunda appealed, arguing the trial court erred in finding it lacked subject-matter jurisdiction over its breach-of-contract counterclaim.
Issues
| Issue | Plaintiff's Argument (LPIA) | Defendant's Argument (Borunda) | Held |
|---|---|---|---|
| Whether governmental immunity bars Borunda’s counterclaim once LPIA nonsuited its affirmative claims | Sovereign/governmental immunity protects LPIA from Borunda’s claims once LPIA dismissed its affirmative claims | Nonsuit should not eliminate the court’s jurisdiction over Borunda’s breach claims that arose from the same agreements | Court held immunity does not bar only those counterclaims that are not germane or exceed offset; after nonsuit, no claim remained to offset, so Borunda cannot recover |
| Whether filing suit for affirmative relief waives governmental immunity for related defensive/offset claims | Filing affirmative damages claim waived immunity to the extent of offsetting, germane, connected, properly defensive claims | Counterclaim should remain actionable notwithstanding LPIA’s later nonsuit | Court held filing suit waived immunity for those defensive claims, but nonsuit removed the underlying claim to offset, so jurisdiction to award damages to Borunda ceased |
| Scope of waiver: do claims predating LPIA’s asserted period (2011) fall within waiver | Waiver limited to claims germane to LPIA’s pleaded claims (2012–2013) | Borunda sought to include 2011 breach as part of counterclaim | Court limited jurisdiction to claims connected to LPIA’s asserted 2012–2013 claims and not to pre-2012 claims LPIA did not pursue |
| Whether summary judgment was proper after LPIA’s nonsuit | With no affirmative claim remaining, Borunda has nothing to offset; summary judgment appropriate | Borunda contended it should still recover on its counterclaim | Court granted summary judgment for LPIA because nonsuit eliminated any live affirmative claim against which Borunda’s counterclaim could offset |
Key Cases Cited
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (sovereign immunity protects state and affects waiver analysis)
- Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) (governmental immunity principles)
- Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003) (distinguishing sovereign vs. governmental immunity)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (limits on waiver and scope of defensive/off‑setting claims)
- City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011) (waiver by filing suit and effect of nonsuit on immunity)
- Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) (no recovery for counterclaim once city’s counterclaim/nonsuit removed offset)