TXU Energy Retail Company L.L.C. v. Fort Bend Independent School District
05-14-01515-CV
| Tex. App. | Feb 17, 2015Background
- TXU Energy Retail Company L.L.C. sued Fort Bend Independent School District in the 116th District Court, Dallas County, seeking damages under a bid-based blend-and-extend contract.
- Fort Bend competitively bid the electricity contract in May 2010, explicitly requesting blend-and-extend availability in the RFQ.
- TXU and other bidders offered blend-and-extend terms as part of their bids, and the 2011 Contract Extension implemented that provision.
- TXU asserts Fort Bend waived governmental immunity by entering into the original 2010 Agreement and by the 2011 Extension, and by representations that the contract was valid and enforceable.
- Fort Bend contends the 2011 Extension is void and maintains immunity, arguing the bid process did not contemplate a valid extension.
- TXU seeks reversal of a partial summary judgment and plea to the jurisdiction, arguing the contract terms were competitively bid and Fort Bend waived immunity by conduct; TXU also asserts promissory estoppel based on waiver by conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Fort Bend waive immunity by conduct regarding the 2010/2011 contract? | TXU: waiver by conduct occurred via representations that contract was valid and Fort Bend would enforce it. | Fort Bend: no waiver by conduct; immunity cannot be waived by the conduct alleged. | Waiver by conduct possible; reversal warranted on immunity issue |
| Was the blend-and-extend provision itself competitively bid and notice given to bidders? | TXU: provision was explicitly requested and bid in 2010 RFQ; bidders offered it. | Fort Bend: the 2011 extension is void because not separately bid; bid process insufficient. | Blend-and-extend was competitively bid; contract extension consistent with bidding |
| Are TXU's claims based on express terms of the 2010 Agreement quasi-contractual? | TXU: claims are true contract claims based on a written agreement. | Fort Bend: enforcement of express terms is quasi-contractual liability improperly elevating contract. | Not quasi-contractual; true contract claim |
| Did the trial court err in granting summary judgment on jurisdiction before addressing merits? | TXU: merits documentation shows immunity waiver; should be addressed on merits after reversal of jurisdiction. | Fort Bend: merits should not defeat jurisdictional challenge; immunity bars claims. | Plea to jurisdiction precluded partial merits adjudication; reversal appropriate |
| If immunity is waived, are promissory-estoppel theories preserved through waiver by conduct? | TXU: promissory estoppel arises from Fort Bend's conduct and representations tied to the contract's enforceability. | Fort Bend: promissory estoppel separate issue; waiver by conduct governs jurisdiction only. | Promissory estoppel preserved through waiver-by-conduct argument |
Key Cases Cited
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (plea to jurisdiction interacts with merits; fact issues may defeat immunity claim)
- Richmond Printing v. Port of Houston Auth., 996 S.W.2d 220 (Tex. App.—Houston [14th Dist.] 1999) (void-ab-initio contracts; relevance to bid enforcement)
- Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905 (Tex. 2007) (contract vs. implied liability; contract framework in public procurement)
- Walker v. Cotter Properties, Inc., 181 S.W.3d 895 (Tex. App.—Dallas 2006) (contract claims vs. quasi-contract distinctions)
- Dugan v. Compass Bank, 129 S.W.3d 579 (Tex. App.—Dallas 2003) (preservation of issues on appeal; standards for jurisdictional review)
- Texas S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893 (Tex. App.—Houston [1st Dist.] 2007) (governmental immunity waiver by conduct discussion)