City of San Antonio, Acting Through City Public Service Board of San Antonio v. Wheelabrator Air Pollution Control, Inc.
2012 Tex. App. LEXIS 6297
| Tex. App. | 2012Background
- Wheelabrator and Casey entered a written contract with CPS for two baghouses at J.T. Deely Station; CPS withheld 10% retainage ($4,173,099) and paid the rest; Wheelabrator sought retainage payment in 2007 after claiming full performance; Casey sought damages including delay costs; Casey's suit challenged procurement and potentially void contract; Wheelabrator later sued CPS in 2011 seeking the retainage or quantum meruit; CPS filed a plea to the jurisdiction asserting immunity from suit for quantum meruit and equity-based claims; trial court denied the plea and CPS appeals; issue presented is whether governmental immunity waives for quantum meruit under contract-claims framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is quantum meruit within the Chapter 271 waiver? | Wheelabrator argues waiver applies to all contract/quasi-contract claims. | CPS argues waiver is limited to written contracts; quantum meruit outside waiver. | Immunity not waived for quantum meruit under Chapter 271. |
| Does the TTCA proprietary/governmental distinction apply to contract claims? | Wheelabrator seeks application of proprietary/governmental distinction to negate immunity. | CPS contends distinction not applicable in contract/quasi-contract context. | Distinction does not apply to contract/quantum meruit immunity. |
| Did CPS waive immunity by conduct (waiver by conduct)? | Wheelabrator relies on accepting benefits while withholding retainage. | Legislature did not authorize waiver by conduct; conduct-based waiver rejected. | No waiver by conduct; immunity remains. |
Key Cases Cited
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (proprietary/governmental distinction not determining contract immunity; sovereign default discussed; Tooke governs contract immunity analysis)
- Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986) (proprietary functions subject municipalities to same duties as private entities; immunity from suit not necessarily waived)
- Temple v. City of Houston, 189 S.W.3d 816 (Tex. App.—Houston [1st Dist.] 2006) (proprietary function life insurance benefits; discusses governmental immunity scope)
- IT-Davy v. City of Cambridge, 74 S.W.3d 849 (Tex. 2002) (sovereign immunity as default; framework for waiver analysis)
- Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) (recognizes legislative waiver framework for contract claims and limits of immunity)