City of Georgetown, Texas v. Lower Colorado River Authority

statutory raised their fraud sentations determined, GEORGETOWN, CITY OF

claim. As we have based on Texas, Appellant analysis statutory our set forth in the representa fraud section above that false, tions made were not we must also LOWER COLORADO RIVER alleged misrepresenta conclude that AUTHORITY, Appellee. in support Appellees’

tions claim for negligent misrepresentation were not No. 03-12-00648-CV. Accordingly, Appellees false. failed to Texas, Appeals Court of therefore, meet the second element and Austin. negligent misrepresentation their claim of fails. See id. Because the evidence is Aug. 2013. legally insufficient negligent sustain Rehearing Overruled Nov. misrepresentation, we need not address sufficiency the factual of the evidence. See

Glover, 619 S.W.2d at 401. Having found

that the evidence was legally insufficient to jury findings

sustain both the of statutory negligent misrepresentation,

fraud and

render judgment Appellants for the on the

entirety sufficiency of its of the evidence AutoZone, Inc.,

claim. at 595.

Issue Four is sustained.

In light disposition of our of Appellants’ issue,

fourth we need not address Issues Six,

Five and Appellees’ justifi- related to

able reliance and actual damages for fraud. Tex.R.App. P. 47.1. Nor do we address

Issues Seven Eight concerning Appel- punitive

lees’ damages and the individual

liability of Romelia Mondragon. See id.

CONCLUSION

We reverse the trial court’s judgment judgment

and render that Appellees take

nothing on their statutory claims for fraud negligent misrepresentation against

Appellants.

ANTCLIFF, J., participating. Rubottom,

John Rader, W. James N. Lower Colorado River Authority, Associ- Counsel, Wooten, ate General Kennon L. McConnico, Stephen Webre, E. Jane M.N. Scott, Douglass McConnico, LLP, & Aus- tin, TX, Appellee. for JONES, Before Chief Justice Justices GOODWIN and FIELD.

OPINION FIELD, SCOTT K. Justice. interlocutory In this appeal, appellant (the City Georgetown City) challenges the trial denying court’s order plea its jurisdiction based on im- munity. underlying The controversy con- cerns the City’s long-term pur- contract to electricity chase from appellee, the Lower (the LCRA). Authority Colorado River The sought LCRA declaratory relief con- cerning parties’ rights and obligations contract, under the and the City filed a plea jurisdiction, to the asserting that the pleadings LCRA’s fail to demonstrate a valid waiver of governmental immunity. Because we conclude that the has no suit, from this we affirm the trial court’s order denying City’s plea to the jurisdiction.

BACKGROUND According to pleadings, its the LCRA entered into standard “Wholesale Power Agreements” with municipalities, various including City, in 1974. Under the terms of the Wholesale Agreement, Power purchase would 100% of its elec- tricity from the LCRA and then resell that electricity City’s to the retail customers through municipal utility. The Whole- Townsend, Fuente, Lambeth Jose De Agreement La sale Power expire is set Gonzales, Emerson, Amy 25, 2016, Daniel M. Lloyd, June given and the Gosselink, Townsend, PC, Rochelle & Aus- LCRA notice of its intent not to renew the tin, TX, Appellant. contract. subject authority court’s to determine that on June asserts LCRA specific cause of action. See in matter of letter to the LCRA City sent a Blue, Indep. Bland Sch. Dist. the LCRA had alleged that

which (Tex.2000). im Governmental Pow- of the Wholesale the terms breached a court of sub electricity munity deprives to oth- from suit selling Agreement er and therefore is According ject-matter jurisdiction a lower rate. er customers jurisdic in a to the plea asserted LCRA, properly letter stated that Lueck, Power tion. State Wholesale City would terminate (Tex.2009). has sub a trial court thirty days unless the Whether within Agreement jurisdiction question of law ject-matter On Au- alleged breach. cured the LCRA v. 2012, follow-up a that we review de novo. Westbrook 13, City the sent gust (Tex.2007). 389, 231 394 Penley, that the Whole- S.W.3d it declared letter in which When, here, plea jurisdiction as the to the was terminated. Agreement sale Power we construe the challenges pleadings, the under the LCRA filed this response, In liberally plaintiff, of the pleadings favor action, declaratory judg seeking a lying evidence, challenged with and unless materially breached it has not ment that allegations Dep’t all as true. Texas accept The Agreement.1 the Power Wholesale Miranda, 133 Parks & Wildlife jurisdiction, the assert plea a to City filed (Tex.2004). S.W.3d 226-27 fail affir pleadings ing that the LCRA’s a waiver of the matively demonstrate in this case concern Some of the issues immunity. In its statutes, City’s governmental ques which is a interpretation of that the LCRA asserts pleadings, amended novo. tion of law that we review de See Combs, City has no Am. Title Ins. 258 First Co. City’s (Tex.2008). arises out of the because this case When con S.W.3d function, gov statute, rather than its struing primary objective a our Alternatively, function. give legisla ascertain and effect to City govern that if the LCRA asserts In determin ture’s intent. Id. at 631-32. immunity has been immunity, intent, consider the ing legislative we first Tex. Loc. Gov’t by waived statute. See language of the statute. plain GMC sovereign § immu (waiving 271.152 (Tex.App.-Aus Code Bray, 243 S.W.3d “subject contract claims nity statutory for breach of pet.). tin When text is clear, and conditions of this sub- legislative to the terms in it is determinative hearing, the trial chapter”). Following tent, enforcing plain meaning unless jurisdic City’s plea to the court denied an produce the statute’s words would ab States, followed. interlocutory appeal tion. This Entergy Inc. v. surd result. Gulf 51.014(a)(8) (Tex.2009). (permitting Summers, P. Tex.R.App. S.W.3d interlocutory plea from denial of appeal analysis of the statute is also informed Our jurisdiction). “the entire stat presumption that “a intended to be effective” and

ute is OF REVIEW STANDARD and reasonable result is intended.” just (3). 311.021(2), § We is a Tex. Gov’t Code plea jurisdiction A to the object matters as “the may trial consider such dilatory challenges plea did not rule on the LCRA’s sought injunctive The trial court 1. The also relief LCRA relief, "commanding City] refrain request injunctive to desist and and that claim is [the prematurely taking any further action to interlocutory appeal. part Agreement].” Power [Wholesale terminate the attained,” sought to be “the circumstances function for which enacted,” leg under which the statute was apply). does not history, islative and “common law or for The LCRA City asserts that when the statutory provisions, including mer laws on purchase contracted to power as a munici- subjects.” same or similar Id. pal utility, performed proprie- 311.023(l)-(4). tary function rather than a governmental function. See Tex. Civ. Prac. & Rem.Code

DISCUSSION 101.0215(b)(1) (defining “operation or A municipality performs gov maintenance of a public utility” as proprie- ernmental function acts “as the tary purposes function for of Texas Tort agent of the State in gener furtherance of Act). Therefore, according Claims al law public for the interest of the LCRA, has no governmental im- Dallas, large.” Gates v. suit, munity from this which (internal arises out of (Tex.1986) operation municipal of a utility. omitted), quotations superseded by statute grounds on other as stated in City of asserts that “the proprietary- McFarland, 809, Terrell v. 766 S.W.2d governmental function dichotomy is a crea- denied). (Tex.App.-Dallas writ Giv ture of tort law” that does not apply to en that the municipality effectively is act Specifically, contract claims. ar- ing performs on behalf of the state when it gues that because section 271.152 of the function, governmental it is imbued with Local Government Code—the statute that sovereign immunity, the state’s and there waives sovereign immunity for certain con- governmental immunity.2 fore is entitled to tract claims—does not pro- mention the contrast, By Id. “[proprietary functions prietary-governmental dichotomy, the leg- performed by are those functions city, islature intended for the dichotomy not to discretion, primarily for the of benefit apply Therefore, to contract claims. ac- corporate those within the of limits cording City, municipalities have municipality.” municipali Id. Because the governmental immunity contract claims for ty acting is not on behalf of the state regardless of whether the claim arises out functions, performs it proprietary the mu proprietary of their governmental func- nicipality traditionally is not entitled to result, tions. As a asserts that it governmental immunity for those func governmental has immunity from tions, LCRA’s and thus has “the same duties and claims and that LCRA cannot demonstrate by private liabilities as those incurred per Id.-, unambiguous clear and corporations.” sons or waiver of the see also Bai Austin, City’s immunity. ley 972 S.W.2d Tooke v. 192- Mexia, denied) (Tex.2006) (Tex.App.-Austin pet. 197 S.W.3d (concluding city’s provision (noting health must clearly and insurance to its employees unambiguously is sovereign immunity). waive frequently sovereign 2. Courts hospitals, use the terms and universities. Governmental hand, immunity governmental immunity immunity, and inter- protects politi- on the other State, changeably, technically but the including terms involve cal subdivisions of the coun- ties, cities, (internal concepts. two distinct See Wichita Falls State and school districts.” Id. Hosp. omitted). Taylor, Although 106 S.W.3d 694 n. 3 citations this distinction (Tex.2003). case, "Sovereign immunity analysis refers to does affect our immunity liability,” noting the State’s from suit and worth City's when we refer to the thereof, immunity, which "the referring extends to various divisions of the or lack we are boards, government, including agencies, governmental immunity. state See id. or resolution. Wich- from suit statute primarily case in this arguments . The Hosp. Taylor, proprietary-govern- ita Falls State whether concern (Tex.2003). contract dichotomy applies legislature’s in- this issue explain, As we will must be claims. from suit waiver of (1) questions: separate legal two volves unambiguous. and clear dichot- proprietary-governmental does the im- principles These at 332-33. claims under the omy apply to waiver of munity from suit and (2) so, legisla- if law and common are well established. law? In mak- common abrogated ture determinations, first discuss these ing However, well estab it is also for underlying rationale history and wheth that before a court considers lished differently functions treating proprietary immunity has been governmental er Next, we functions. than waived, whether must determine the court applies the common law whether consider in the immunity exists first dichotomy See, El v. Hein place. e.g., City Paso Finally, we determine to contract claims. (Tex.2009) rich, 366, 371-72 abrogated legislature has whether vires claims are not that ultra (explaining thereby ending the precedent, common-law impli therefore do not against state and dichotomy to contract of the application immunity). distinc sovereign cate “[T]he claims. finding waiving tion between History proprietáry- rationale yields a fine one that it nonexistent is and, to the risk that the same effect ‘[d]ue long recognized sov avoiding

Texas has a ruse for the latter could become immunity principle the bedrock ereign as very hesitant Legislature, courts should be “ can be sued her own ‘no state any immunity nonexistent to declare ” consent, only then her and courts without Cnty. case.’ Nueces v. San Pa particular ” by that consent.’ in the manner indicated (Tex.2008) Cnty. 246 S.W.3d tricio Tooke, (quoting 197 S.W.3d at 331 See Texas, 217 v. (quoting City Galveston 1 Tex. DeYoung, Hosner (Tex.2007)). Therefore, 466, 471 (1847)). var immunity extends to the This governmen presume generally courts as government ious divisions of the state these immunity applies. tal See id. With subdivisions, such as political well as its mind, history we turn to the principles in n. 2. City. supra “[Governmental dichoto of the immunity two immunity components: my. enforcement of a liability, from which bars years ago, Supreme the Texas Over 125 governmental entity, judgment against a gov- the extent to which Court considered suit, immunity from which bars suit immunity applies municipali- entity altogether.” against Posnainsky, ties. Galveston governmental a en S.W.3d at 332. When (1884). Posnainsky, In a father Tex. 118 “necessarily into it tity enters a contract injuries resulting municipality a sued liability, ... but it immunity waives from fall into an uncov- his minor child’s waive from suit.” Id. does not 122- public- a street. Id. at ered drain on Thus, governmental immunity ap when the mu- 23. The court held that because entity may not governmental be plies, maintained the constructed and nicipality im of contract unless its sued for breach advantage or emolu- for its “own streets munity from suit has been waived. Id. We ment,” from suit for it was not immune legislature defer to the waive maintaining those negligently streets. Id. was amended to give legislature As the court explained, authority at 131. when to “define purposes for all those municipality powers exclusively “exercises functions of a municipality that are to be character, in their public upon forced it considered and those that consent, simply without its are proprietary, because including reclassifying a thus, through agencies, state can such local assigned function’s classification pri- under easily effectively discharge more or statute or common law.” Tex. Const. 13(a). own, XI, essentially Thus, it but proper duties its art. legislature may, statute, that no action should be through maintained change the common- against” municipality unless the state law functions, classifications of municipal has waived from suit. Id. effectively at “granting] municipalities im However, municipalities munity “exer- from certain suits that could have character, power cise not of this voluntari- been maintained at common law.” City of ly assumed—powers Likes, (Tex. intended for the pri- Tyler 1997). advantage locality vate and benefit of the inhabitants,—there and its seems to be no has exercised its authori they sufficient reason why should be re- ty to reclassify proprietary functions as liability lieved from that to suit and meas- governmental functions exclusively almost damage ure of actual an which individu- in the Tort Claims Act.3 See Tex. Civ. al private corporation” be would held. 101.0215; Prac. & Rem.Code see also

Id. Likes, 962 S.W.2d at 502 (noting that Tort Claims Act reclassified maintenance of

Posnainsky established what has storm sewers as function become the proprietary-governmental di though even considered proprietary func chotomy. When a municipality exercises law). tion at above, common nature, As noted powers, public in at the direction of state, Tort Claims Act specifically defines performs governmental func “operation tion for and maintenance public which it has of a immuni utility” ty. proprietary function, as a But when a municipality thereby acts within discretion, affirming classification, its primarily common-law for the benefit of limits, least with corporate respect those within its to tort per claims. See Tex. proprietary 101.0215(b)(1); § forms a Civ. Prac. & function for which it Rem.Code no immunity. Cnty., See San Indep. Nueces 246 Antonio Sch. v. City Dist. of Antonio, (Tex. (citing 262, S.W.3d at 652-53 Posnainsky, 62 San 550 S.W.2d 264 125). 1976) at Tex. (noting that operation of public utili law). ty is proprietary function at common The traditionally courts have been The City common-law rule and Tooke v. left municipal to determine which functions of Mexia are proprietary governmen and which are See, Gates, e.g., tal. 704 S.W.2d at 739. Posnainsky applied the proprie However, 1987, in the tary-governmental dichotomy Texas Constitution to a tort specified 3. The partment has also that cer- governmental ... is an essential public operations government agen- _”); tain Spec. function Tex. Dist.Code perform governmental only cies functions. 3503.002(b) (stating § operations of See, 452.0561(b) e.g., Transp. Tex. Code "TexAmericas Center" are (stating operations public transporta- of purposes). City’s functions for all con- functions); entity tion are Tex. tract with the implicate any LCRAdoes not of 67.0105(b) ("The furnishing Water Code of provisions, these and therefore these statutes supply hydrant a water equipment and fire applicable are not to the case before us. governmental entity or a volunteer fire de- 810 Tooke, is waived for whether from suit Prior to at 125. 62 Tex.

claim. See 343-44, appellate the Texas ....”5 claims 197 197 S.W.3d breach of contract unani including this Court —also that it explained at 343. The court S.W.3d courts — proprietary-govern the applied mously issue” because “need not determine n for contract dichotomy to claims mental function, the case involved a at 192.4 Bailey, 972 S.W.2d damages. See thus, assuming that the dichoto- even opinions acknowl these some of Although govern- my municipality had applied, originally dichotomy was edged that Nevertheless, immunity. Id. Tooke mental claims, mostly opinions to tort applied vitality question into of arguably called that “the di assumed, explanation, without pro- that the longstanding assumption force to con equal with applies chotomy dichotomy applies prietary-governmental Tooke, v. City Mexia tract claims.” of , contract claims as it equal with force to (Tex.App.-Waco 624-25 115 S.W.3d 618 Houston to tort claims. See East does 2003), S.W.3d at 347. aff'd, 197 City v. Hous- Apartments, Estate L.L.C. of However, opinion court’s supreme ton, 723, (Tex.App.- 731-32 294 S.W.3d assump- that uniform brought Tooke has (discuss- 2009, pet.) no Houston [1st Dist.] Tooke, supreme In question. tion into treatment ing appellate post-Tooke courts’ “proprietary-govern- that the court stated dichotomy for of dichotomy has been used deter- claims). However, the su- until immunity from suit municipality’s amine rely question, this preme court answers .... we have conduct [b]ut for tortious precedent, as well as the determines on this Court’s that this distinction never held Houston, refusing apply pro Appeals applying or Temple City v. 4. See also of 816, (Tex.App.-Houston prietary-governmental [1st 819-20 to a con S.W.3d 2006, Mexia, City v. pet.); Roman Forest no prior Dist.] v. tract claim Tooke of of Stockman, 805, (Tex.App. 141 S.W.3d S.W.3d at 343-44. 2004, pet.); Mexia Beaumont no of 618, Tooke, (Tex.App. 624-25 115 S.W.3d sentence, following Immediately (Tex. 2003), aff'd, 197 S.W.3d Waco Dallas, cited Gates v. court Tooke Midland, 2006); Williams supreme opinion in which previous court 679, 683-84 (Tex.App.-El Paso S.W.2d by munici court noted that made ”[c]ontracts writ); City Houston v. Southwest Con capacity corporations pal in their Constr., Inc., 732-33 crete governed by to be the same have been held 1992, writ de (Tex.App.-Houston Dist.] [14th contracts between individuals.” See rules as Moreau, nied); City Dallas Gates, (citing 197 S.W.3d at 343 n. 89 (Tex.App.-Corpus Christi 779-80 (Tex. 1986)). Given n.r.e.); International Bank Com writ ref’d appears disposition in Gates to have that the Laredo, v. Union Nat. Bank merce Laredo of of required application proprietary- an of 539, (Tex.App.-San Antonio S.W.2d 546 653 claim, dichotomy to a contract 1983, n.r.e.); Blythe City Gra writ ref’d of entirely in it not clear what the court Tooke is 527, ham, (Tex.App.-Fort 287 S.W.2d 530 said, dicta, that it had never meant when 1956, n.r.e.); City writ ref’d Bolles Worth of dichotomy applies such held that Abilene, 922, (Tex.App.-East- 276 925 S.W.2d id.; City see also San Antonio claims. See 1955, ref’d); of City Crosbyton v. writ land of Air City rel. Pub. Serv. Bd. v. Wheelabrator ex 418, Co., Mexico Util. 157 S.W.2d Texas-New Control, Inc., 597, Pollution 1941, (Tex.App.-Amarillo ref’d writ 2012, (con filed) pet. (Tex.App.-San Antonio Dallas, w.o.m.); P’ship City Texas One of brings question). cluding Gates into Tooke 05-92-01097-CV, WL at *3 No. Nevertheless, we will take at face value the 15, 1993, denied) writ (Tex.App.-Dallas Jan. that it has never supreme court’s conclusion (not publication). parties designated for find, proprietary-govern to, expressly held that any cite and we could not do not dichotomy applies claims. to contract Tyler Texarkana or Courts of cases from the nearly opinions unanimous of our sister 197 S.W.3d at 343-44. Without such a courts, principled proprietary- guidance to conclude that reason or from the court, supreme we are1reluctant governmental dichotomy applies to con- over precedent turn our own disagree with tract claims under the common law. persuasive authority from the majority of Tooke, appellate Prior courts our sister courts on the issue. See Grape unanimously applied proprietary-gov Excavation, vine Inc. v. Maryland Lloyds, dichotomy to contract claims. (Tex.2000) 35 S.W.3d (“Adhering to supra n. 3. Following See several precedent fairness, efficiency, fosters courts, Court, appellate including this have legitimacy.”); Bailey, see also deciding assumed without that the dichoto 192; supra n. 3. The proprietary-gov my apply continues to to contract claims. ernmental dichotomy exists because we See, e.g., Apart East Houston Estate have determined that municipality when a ments, L.L.C., 731-32; 294 S.W.3d at state, not does act on behalf of the it is not Blanco, v. City Smith No. 03-08-00784- Thus, imbued with the immunity. state’s CV, (Tex.App. WL at *3 the underlying rationale for the dichotomy 8, 2009, (mem. Austin Oct. pet.) op.). is the relationship, thereof, or lack be At one least of our sister courts has contin tween the municipality state, and the not ued to expressly apply proprietary- the relationship between the municipality governmental dichotomy to contract claims party and the bringing suit. See Posnain McAllen, post-Tooke. See Casso v. sky, 62 Tex. at 126-128. 13-08-00618, No. 2009 WL at *5-7 brief, In primarily relies on (Tex.App.-Corpus 26, 2009, Christi Mar. the San Antonio Court of Appeals’ recent denied) (mem. pet. op.) (concluding munici holding City San Antonio ex rel. City pality’s provision of health insurance to its Public Service Board v. Wheelabrator Air employee function for which Control, Inc., Pollution claim). it had no from contract 603-05 (Tex.App.-San Antonio pet. opinions engage These did not in substam filed). case, In that the court held that analysis tial why the dichotomy was the legislature’s failure to include the pro- contracts, equally applicable to perhaps prietary-governmental dichotomy in “the they because not think analysis did such contract-claim scheme” meant that the di- necessary. was chotomy did apply. not Id. at- 605. In Although brought Tooke this issue into reaching conclusion, the court did not question, it suggest, did not and we have expressly state whether the legislature ab- found, any principled why reason rogated the common-law rule that would applied have the dichotomy to contract apply should to tort claims but not con However, claims. the court noted that tract claims under the common law.6 See Tooke brought Gates—a previous supreme City argues 6. The that we should be hesitant years. claims for at least 70 Gal to conclude that (1884); Posnainsky, does veston v. 62 Tex. 118 argu not exist in this context Crosbyton, because such 157 S.W.2d at 420-21. There of fore, ments can be disagree used as a "ruse” to City's circumvent we with the assertion that legislature. Cnty. the applying See Nueces v. San proprietary-governmental Patri the di Cnty., (Tex.2008). cio 246 chotomy S.W.3d to contract claims is a ruse to avoid rather, agree While we legislature; that courts should not make the ap it is a reasonable lightly, this determination the proprietary- plication jurisprudence nearly that is as old governmental dichotomy has existed for over Posnainsky, as the state itself. See 62 Tex. at years applied and has been to contract 127-28. reasons, the foregoing the For we adhere to applied proprietary- that opinion court dichotomy to a contact precedent pro our and conclude that the because Tooke “used question dichotomy prietary-governmental ap claim—into does citing right Gates compare signal a under the ply contract claims common stating it has never held after explicitly law. See at Bailey, 972 S.W.2d Hav distinct that proprietary/governmental the determination, ing made we next con this immuni- tion to determine whether applies legislature sider the whether abro ty breach contract claims is waived for that rule. gated common-law ” Wheelabrator, .... 381 S.W.3d at 604 Legislative intent 89). at n. (citing brief, City argues In the s analysis sug-

To extent Wheelabrator1 the legislature’s the expressly adopt failure to law, the gests changed common that Tooke the propriety-governmental dichotomy for disagree. respectfully contract that the claims indicates dichoto Tooke n agree We citation Gates my noted, does As we have the apply. not mean that did not be read to Gates could legislature authority to reclassify has the expressly proprietary-gov hold that municipality’s functions as either proprie applies dichotomy to contract tary governmental, thereby abrogating claims, is no binding prece and thus there their classifications. common-law See Tex. dent court that answers supreme from the 13(a). XI, legislature The Const. art. supra n. See 4. Neverthe question. authority has exercised this almost exclu less, agree with s we do not Wheelabrator Act, sively in the Tort Claims in which it changed the common intimation that Tooke provided proprie non-exhaustive lists law the holding or somehow called of Gates tary and governmental functions. See terms, By into its own Tooke question. 101.0215; Tex. Civ. Prac. & Rem.Code deciding proprie that the assumed without n. supra Section 271.152 of the 3. Local dichotomy tary-governmental applied to section that Government Code—the waives therefore contract claims and did not over local entities’ immunity from any precedent. rule prior S.W.3d Furthermore, for suit certain contract at anal claims—does underlying 343. ysis reference primarily proprietary-governmental in Tooke concerned whether di the phrase “plead impleaded” chotomy. chapter and be with Given does not local code government was clear mention proprietary-governmental di unambiguous sovereign waiver of im chotomy any there is respect, plain no munity. See id. at 342^3. we have As statutory text from which we can deter explained, mine whether the intended to dichotomy municipality concerns whether abandon claims. immunity has governmental in the first The that we should asserts take the place, not whether that has been legislature’s silence to mean that pro- Therefore, analysis waived. Tooke’s prietary-governmental dichotomy long- waiver of on bearing has little applies er to contract claims. The the proprietary-governmental dichotomy, again analysis in relies on the Wheelabra- precedents and the more relevant are tor, in which the San Antonio Court addressing govern those cases whether Appeals following: stated the exists in first in See, Heinrich, easily could e.g., Legislature stance. have in- 371-72; Cnty., 246 at 652- cluded proprietary/governmental Nueces di- chotomy it used in the con- tort-claims scheme, in text the contract-claim but ture was aware of the state of the common solely chose not do so. As it is law when it adopted section 271.152. See Walden, clearly role to unam- Legislature’s and Shook v.

biguously governmental immunity (Tex.App.-Austin waive pet.). legis suit, from and it has done so for lature did not express any disagreement claims, quantum precedent; meruit we hold with that [the therefore we pre immune municipality] legislature from suit on sume that the did not intend to quantum meruit claim. abrogate Wheelebrator’s the common law. See Cash Am. Bennett, Int’l Inc. v. (internal quotation See 381 S.W.Sd at 605 (Tex.2000) (“Abrogating common-law omitted). Because we conclude that this claims is disfavored requires and clear re analysis incorrectly places the burden on pugnance between the common law and legislature affirmatively adopt to action.”) (internal statutory causes of quo rule, respectfully common-law disagree. omitted). Furthermore, tations although We are mindful of the although fact that repeated could have the list significant “silence can be .... legislatures proprietary and functions always do not say something by mean to from the Tort Claims Act in part some Legislative may silence. silence be due to chapter the Local Government mistake, consensus, oversight, lack of im- Code, it could have reasonably concluded plied delegation agencies, to courts or that such repetition was unnecessary. See an intent to unnecessary repetition.” avoid Tex. 101.0215; § Civ. Prac. & Rem.Code Indus., PPG Inc. v. Ctr. JMB/Houston Indus., Inc., PPG 146 S.W.3d at 84 (noting Partners Ltd. P’ship, 146 S.W.3d legislative may silence indicate intent to (Tex.2004). Therefore, give in order. to unnecessary avoid repetition); see also intent, legislature’s effect to the we must Tooke, 197 S.W.3d at 343-44 (concluding utilize other statutory tools of construction. that there is “no reason to think that the § See Tex. particu- Gov’t Code 311.023. In classification govern [of and lar, we consider the common law’s treat- would be different functions] under ment of proprietary-governmental di- law.”). the common chotomy prior adoption of section 271.152, as well as the legislative history Similarly, the history behind section purpose adop- behind that section’s 271.152 indicates that adopted it was to 311.023(3)-(4); tion. See id. Tex. Loc. limit, expand, rather than plaintiffs’ ability Gov’t Code 271.152. to municipalities sue for damages. signed

Section 271.152 was into law on As 271.158 of the Local Govern- section 17, 2005, just year June over one clear, before ment nothing Code makes in section supreme opinion court issued its in 271.152 “shall grant constitute a of immu- 23, 2005, May Tooke. See Act of nity 79th suit a local entity.” R.S., 1-2, Leg., §§ ch. 2005 Tex. Gen. This is analysis consistent with the bill 1548, 1549; 271.152, Laws see also 197 section which states-that it “clari- S.W.3d at 325. At the time the legislature fies and re-expresses legislature’s in- 271.152, considered adopted section tent that all local entities the appellate unanimously courts applied given statutory that are authority dichotomy enter into contracts shall not be immune to contract claims the same manner that arising contracts, from suits subject they applied to torts. See to the limitations set forth C.S.H.B. supra n. presume legisla 3. We that the Practices, 2039.” House Comm. On Civil applies H.B.2039, that the common law Leg., concluded 79th Analysis, Tex.

Bill claims, and that Thus, history dichotomy, that to contract legislative the R.S. 2005. municipal utility 271.152was is a operation that section the of a indicates strongly function, a minimum not further conclude expand proprietary adopted —or It courthouse.7 in City acting proprietary to the was that the reduce —access inconsistent with this entirely it entered into its contract capacity would be as an ab- 271.152 treat section Tex. Prac. & purpose’to with the LCRA. See Civ. 101.0215(b)(1) proprietary-governmental of the rogation (listing opera- Rem.Code Likes, claims. See dichotomy for contract municipal utility maintenance of tion and legis- that when (noting function); Tooke, 962 S.W.2d at 503 proprietary as function as reclassifies lature (using at 344 classification mu- function, expands govern- governmental Act in ap- function in Tort Claims nicipal law). common immunity beyond claim). Therefore, mental plication immunity the has no explained, pro- as we have Finally, claims, and the trial from LCRA’s dichotomy concerns prietary-governmental denying City’s plea in court did not err immunity exists whether jurisdiction to the on this basis.8 whether it has been place, the first Therefore, statutory provision waived. CONCLUSION immunity that waives denying affirm the trial court’s order We implicate the logically 271 does not chapter City’s plea jurisdiction. dichotomy, of waiv- applies which before consideration Dissenting Opinion by Justice result, legislature could have er. As a GOODWIN. to reit- reasonably believed it did not need dichotomy in validity of the sec- erate GOODWIN, Justice, MELISSA is direct- interpretation tion 271.152. This dissenting. 271.158, in which

ly supported by section Because I conclude that the Low would expressly stated noth- legislature (LCRA) Authority er Colorado River constitute a ing in section 271.152 “shall allege govern failed to a valid waiver of a local grant immunity govern- to suit to by mental suit entity.” (the Georgetown City), respectfully I dis Therefore, Indep. sent. See McCandless v. Pasadena we find Wheelab- Dist., 03-09-00249-CV, No. 2010 WL legislature’s of the Sch. interpretation rator’s (Tex.App.-Austin Apr. at *3 legislative silence is-inconsistent with his (mem. (“Plaintiff op.) bears tory pet.) section 271.152. purpose and the affirmatively the burden to demonstrate conclude that the did not We by alleging a abrogate jurisdiction the trial court’s intend section 271.152 immunity, may which be valid waiver of proprie treatment of the common law’s reference to a statute or to ex dichotomy. Having either tary-governmental As., (Tex.App.-Houston March explained, Dist.] [14th 7. our sister court section denied) (mem. op.). pet. ap- adopted to overrule various 271.152 was govern- pellate court cases that found Having gov- mental entities’ from suit had not concluded that the has no immunity, waived for various contract claims. See we need not address the been City’s Corp., argument that the v. MCR No. LCRA’s alternative Clear Lake Water Auth. 01-08-00955-CV, at *9 has been waived. 2010 WL n. 815 723, ton, (citing Texas 294 731 legislative permission.” (Tex.App.-Hous- S.W.3d press 636, Jones, 2009, Transp. v. 8 S.W.3d Dep’t pet.) (noting Dist.] ton no that [1st of (Tex.1999))). 637 appeals “applied govern- courts of have of mental-proprietary to breach “City majority that The concludes cases”). The contract UDJA “does based immunity from this suit” has no enlarge jurisdiction.” City a trial court’s conclusion that “the was upon its Heinrich, 366, El v. Paso 284 S.W.3d proprietary capacity in a acting of (Tex.2009). Except 370 for challeng- into its with the LCRA.” suits entered contracts conclusion, however, ignores ordinances, well- or ing This statutes does UDJA doctrine of im governmental established governmental immunity not waive entities’ protects that munity political subdivisions id.; from IT-Davy, suit. See at S.W.3d state, cities, including from suit. of the 855-56; Multi-County Supply, Water 321 Bolt v. Subdivi See Ben Texas Political (noting S.W.3d at 907 a UDJA “is not sions, 320, (Tex.2006); 212 S.W.3d 324 of general governmental immunity” waiver Mexia, 325, 197 S.W.3d Tooke of “[b]y contract, entering and that into a a (Tex.2006); Sup Multi-County 328 Water governmental entity immunity waives from Hamilton, ply Corp. City liability does not immunity but waive from 905, (Tex.App.-Houston [14th Dist.] 907 suit”); Lower Colorado River Ri- Auth. v. denied). political “A subdivision pet. 10-10-00092-CV, ley, No. 2011 WL governmental from suit enjoys *2 (Tex.App.-Waco at Dec. extent that not been (mem. (UDJA op.) gen- pet.) “not Bolt, Legislature.” Ben abrogated of sovereign immunity”); eral waiver at (citing 324 Texas Natural S.W.3d Thus, satisfy LCRA’s UDJA claims do not IT-Davy, 74 Res. Conserv. Comm’n v. a allege its burden to valid waiver im- (Tex.2002)); Multi-Coun See, munity e.g., suit. IT-Davy, from (“Im ty Supply, 321 Water S.W.3d at 855-56, (stating S.W.3d at that immu- munity deprives from suit the trial court of nity generally protects a en- subject-matter jurisdiction an ac and bars tity declaratory-judgment suits in the against tion unit seek to establish a or validity contract’s clear, express, unambigu absence and performance enforce under the contract ous to suit.” Tex. Gov’t (citing consent suits attempt “because such to control 311.034; Tooke, Code action”). state 332-33)). pleadings LCRA’s also fail to establish majority’s analysis proprie- of the 271.152 of section the Local Govern- tary-governmental dichotomy glosses also applies ment to waive im- City’s Code pleadings. pleadings, over LCRA’s In its munity from suit: expressly LCRA allege does not a contract LCRA breach of bringing, states it is not con- breach of declaratory claim seeks but relief. money tract damages.1 Prac. & claim for See Tex. §§ Tex. Civ. 37.001- Rem.Code (UDJA); see, §§ Loc. e.g., (waiving .011 East Es- Gov’t Code 271.151-.160 Houston tate Apartments, L.L.C. v. Hous- of local entities for contract, Defendants, pleadings, merely impose liability 1. In its LCRA "it states: on obligations to construe under a performance.... seeks LCRA's enforce their LCRA'sdeclar- statute state contract and does not atory-action does not seek to establish that attempt to otherwise control Defendants or money City previ- owes LCRA or that the money liability their dam- establish for ously obligations.” breached its contractual ages LCRA .... does not seek to validate the to re- claims that seek contract breach DAVIS, Appellant Dennis under owed

cover balance limiting recoverable or services goods McCandless, 2010 WL damages); Texas, Appellee. The STATE of properly- a (concluding “without at *3 No. 03-11-00450-CR. action, section pleaded breach-of-contract im- not waive 271.152 does Texas, Appeals Court of Bolt, 212 S.W.3d munity”); Ben cf. Austin. statutory limited (concluding that Aug. 2013. applied 271.151 to insur- waiver in section “declaratory coverage dispute ance 7, 2013. Rehearing Overruled Oct. seeking a determination action judgment Discretionary Review Refused was a covered occurrence the loss Feb. 2014. terms”); agreement’s under the insurance Air Antonio v. Wheelabrator San Inc., Control, Pollution 2012, pet. (Tex.App.-San Antonio

filed) money damages un- seeking (plaintiff or, of contract claim alterna-

der a breach claim).

tively, quantum meruit LCRA to recover the balance owed

does not seek Tex. Gov’t

under a contract. See Loc. § recoverable dam- (listing 271.153

Code

ages). entity waives

Although liability by entering into from

contracts, allege it was burden to LCRA’s immunity from suit. See

a valid waiver of Bolt, (“By entering 212 S.W.3d at 324

Ben contract,

into the State waives' its immu-

nity liability from but not its Jones, suit.”); (plain- at 637 im- allege

tiffs burden to valid waiver of

munity). I would conclude that LCRA to do so.2

failed gov- goods to the local join majority’s analysis providing or services I also cannot entity properly executed on that is section 271.152 of the Local Government Code, governmental entity.” waiving Id. expressly behalf of the local the section 271.151(2). properly executed Contracts from suit for certain contract claims. See entity, city, such as a Section a local Tex. Loc. Gov’t Code 271.152. 271.151(2) subject governmental or whether in its defines a "contract to this language capacity, plain of a subchapter" fall within to mean "a written contract stat- subchapter.” subject to See id. ing agreement for "contract the essential terms of the

Case Details

Case Name: City of Georgetown, Texas v. Lower Colorado River Authority

Court Name: Court of Appeals of Texas

Date Published: Aug 23, 2013

Citation: 413 S.W.3d 803

Docket Number: 03-12-00648-CV

Court Abbreviation: Tex. App.