357 S.W.3d 761
Tex. App.2011Background
- This is an accelerated appeal from a trial court denial of La Marque ISD's plea to the jurisdiction in a breach-of-contract suit brought by Healthy Resources Enterprise (HRE) after Hurricane Ike.
- The central issue is whether the parties' Agreement for Professional Services and subsequent purchase orders waive La Marque ISD's governmental immunity under Tex. Local Gov't Code § 271.152.
- The Agreement, dated October 7, 2008, covered disaster-recovery services from October 2008 to April 2009 and contemplated additional duties via Work Orders or amendments.
- HRE submitted specific job-order proposals; La Marque ISD issued multiple purchase orders in February 2009 for construction and renovation work, with not-to-exceed prices and retainage terms.
- La Marque ISD ultimately sought termination and 30-day notice under the contract terms; HRE seeks payment for completed work.
- The trial court denied the plea to the jurisdiction, and the court of appeals affirmed, holding the contract may be a waivable subject under §271.152.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Agreement and purchase orders constitute a contract subject to waiver | La Marque ISD argues no waiver without a proper contract. | HRE maintains the Agreement and PO's satisfy §271.152. | Waiver question exists; evidence at least shows a contract subject to waiver. |
| Whether the purchase orders/Work Orders bring the agreement within the waiver | The scope is limited to non-construction services. | The work orders/amendments integrate construction work into the waiver. | Evidence shows enlarged scope via Work Orders; contract qualifies for waiver. |
Key Cases Cited
- ICI Construction, Inc. v. Orangefield ISD, 339 S.W.3d 235 (Tex.App.-Beaumont 2011) (identical issue; multiple docs may lack essential waiver terms)
- Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831 (Tex. 2000) (established framework for waivers via contracts under §271)
- City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441 (Tex.App.-Houston [14th Dist.] 2007) (contracts implicated on immunity waiver analysis)
- City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2011) (applies §271 waiver principles to contract instruments)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (immunity from suit requires clear legislative waiver)