the City of Houston v. Atser, L.P., 403 S.W.3d 354

ATSER brought breach of contract claims arising from 1999, 2003 amendments, and 2006 contracts with the City of Houston; ATSER also asserted quantum meruit and unjust enrichment claims before the third amended petition narrowed to contract claims.
The City raised governmental immunity defenses and challenged jurisdiction via a plea to the jurisdiction and special exceptions; the trial court denied the plea to the jurisdiction.
The City filed a Partial Motion for Summary Judgment (Feb 11, 2010) asserting no evidence of essential breach elements and that immunity barred certain damages claimed; the motion also argued immunity as to the $5 million and $250,000 claims under Chapter 271.
The City again argued immunity in the traditional portion of the motion, contending ATSER failed to prove performance and that damages were not within the waiver in Chapter 271.
The appellate court concluded the Partial Motion for Summary Judgment was a motion to reconsider the prior denial of the plea to the jurisdiction, and since no interlocutory appeal was timely filed, it lacked jurisdiction to review the merits of the appeal.
The court ultimately dismissed the City’s interlocutory appeal for lack of jurisdiction because no timely interlocutory notice of appeal challenged the jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ATSER’s claims fall within the Chapter 271 waiver	ATSER argues the City waived immunity under 271.152 for breach claims.	City contends 271.152 (and 271.153) do not waive immunity for ATSER’s damages as pleaded.	No waiver found; immunity not defeated on these facts.
Whether the $5 million and $250,000 damages claims are actionable under Chapter 271	ATSER asserts damages fall within the statutory waiver for breach.	City maintains damages do not fall within the limited waiver or are immune.	Damages not within the Chapter 271 waiver; immunity applies.
Whether the Partial Motion for Summary Judgment was a proper interlocutory appealable order	City sought to appeal denial of partial summary judgment on immunity grounds.	City treated motion as an immunity challenge; appeal should be interlocutory.	The motion was a motion to reconsider; no timely interlocutory appeal; lack of jurisdiction.

Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) (permits interlocutory review for denial of jurisdictional challenges when appropriate)
Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex. 2001) (interlocutory appeals would undermine the statutory purpose)
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996) (denial of a summary judgment is generally not appealable)
Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334 (Tex. 2000) (appeals from interlocutory orders governed by narrow exceptions)