Wheelabrator Air Pollution Control, Inc. v. City of Public Service Board of San Antonio, a Municipal Board of the City of San Antonio
492 S.W.3d 1
Tex. App.2014Background
- Wheelabrator and Casey Industrial contracted with CPS in 2004; Casey and Wheelabrator later sued CPS for breach and their suits were consolidated.
- Wheelabrator sued for breach of contract, monetary damages, and sought recovery of attorney’s fees, alleging CPS waived immunity under the contract and chapter 271.
- CPS filed a plea to the jurisdiction asking the trial court to dismiss Wheelabrator’s attorney’s fees claim on governmental-immunity grounds; the plea was granted as to attorney’s fees.
- Wheelabrator opposed, arguing the plea was the wrong procedural vehicle, CPS waived immunity by seeking affirmative relief, CPS performed a proprietary function (no immunity), and that dismissal was premature.
- The controlling contractual date was 2004; key provisions of chapter 271 that authorize attorney’s fees were not retroactive to that contract.
- The court affirmed dismissal of the attorney’s fees claim, holding chapter 271 did not waive CPS’s immunity from suit for attorney’s fees under these facts and CPS had not otherwise waived immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CPS may be stripped of immunity from suit for attorney’s fees under chapter 271 | Wheelabrator: chapter 271 waived immunity and permits fees | CPS: chapter 271’s fee provisions do not apply to 2004 contract; no clear waiver | Held: No waiver for attorney’s fees; chapter 271 did not allow recovery for this contract date |
| Proper procedural vehicle to challenge fees claim | Wheelabrator: plea to the jurisdiction was improper; issue is immunity from liability | CPS: immunity from suit defeats subject-matter jurisdiction and is properly raised by plea to the jurisdiction | Held: Plea to the jurisdiction was proper because immunity from suit deprives court of jurisdiction |
| Whether CPS waived immunity by seeking affirmative relief in its pleadings (Reata rule) | Wheelabrator: CPS waived immunity by asserting affirmative relief/offsets | CPS: Its offset request was defensive and would not produce monetary recovery to CPS | Held: No waiver — CPS’s offset was defensive, not an affirmative monetary claim |
| Whether CPS lost immunity because it performs a proprietary function (public utility) | Wheelabrator: operating a utility is proprietary so immunity should not bar fees | CPS: proprietary-function doctrine does not alter chapter 271’s waiver framework | Held: No waiver under proprietary-function theory; chapter 271 does not incorporate that dichotomy |
| Whether plea was premature because Wheelabrator lacked discovery/time to respond | Wheelabrator: needed time to develop record and amend pleadings | CPS: litigation had been pending years; Wheelabrator had opportunity to respond | Held: Plea not premature; pleadings conclusively negated jurisdiction for fees |
Key Cases Cited
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (distinguishes immunity from suit and immunity from liability; standard for jurisdictional review)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (governmental entity may waive immunity by asserting affirmative claims for monetary relief)
- Zachry Constr. Corp. v. Port of Houston Auth. of Harris County, 449 S.W.3d 98 (Tex. 2014) (chapter 271’s limitations on recovery constrain the scope of any waiver of immunity)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (retroactivity and scope of chapter 271 provisions)