Port Freeport v. RLB Contracting, Inc.
369 S.W.3d 581
Tex. App.2012Background
- Port Freeport f/k/a Brazos River Harbor Navigation District entered a written contract with RLB Contracting for the Velasco Terminal Site Civil Project.
- The contract had a total price of $6,938,000 and a listed unit price for excavation of $7 per cubic yard with an estimated 365,000 cubic yards.
- The contract incorporated General Conditions, including Article 4.03 on Differing Subsurface Conditions, Article 10.05 on Claims and Disputes, Article 11.03 on Unit Price Work, and Articles 12.01–12.02 on Change Orders.
- RLB alleged wetter, more silty material than anticipated necessitating lime treatment, productivity loss, delays, and additional costs; it sought a contract price increase and related damages.
- Port Freeport filed a plea to the jurisdiction arguing RLB failed to comply with contractual adjudication procedures, which it contends voids the waiver of immunity under Texas Local Government Code § 271.152.
- The trial court denied the plea; the court of appeals affirmed, holding the contract falls within § 271.152 and § 271.154 does not bar the suit for the claimed breach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract contains essential terms for 271.152 waiver | RLB argues essential terms exist in the contract | Port Freeport argues essential terms are lacking due to noncompliance with procedures | Yes; contract provides time, price, service and unit-price framework. |
| Whether RLB's claim is a breach of contract (within 271.152) or an equitable claim | RLB pleads breach of contract | Port Freeport claims equitable relief is sought | RLB pleads breach of contract, within 271.152. |
| Whether § 271.154 precludes the waiver due to contract adjudication procedures | N/A | Noncompliance with adjudication procedures defeats waiver | No; § 271.154 does not preclude waiver; procedural noncompliance is not a prerequisite to waiver. |
Key Cases Cited
- City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2011) (clarifies elements for contract waiver under 271.152 and essential terms)
- Kirby Lake Development, Ltd. v. City of Fort Worth, 320 S.W.3d 829 (Tex. 2010) (limits on adjudication under 271.153 and relevance to 271.154 procedures)
- PKG Contracting, Inc. v. City of Dallas, 263 S.W.3d 444 (Tex. App.—Dallas 2008, pet. denied) (discusses § 271.154 interplay with contract notice requirements)
- Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767 (Tex. 2000) (statutory interpretation guidance for adjudication procedures)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (defines immunity from suit vs. liability and framework for waivers)