COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00272-CV
CITY OF WILLOW PARK, TEXAS APPELLANT
V.
E.S. & C.M., INC. APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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OPINION
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In three issues, appellant City of Willow Park, Texas appeals the trial
court’s order overruling its plea to the jurisdiction. 1 We affirm in part and reverse
and render in part. 2
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2013).
2
See Tex. R. App. P. 43.2(a), (c).
Background Facts
In the summer of 2011, appellee E.S. & C.M., Inc., an engineering firm,
sued appellant. Appellee alleged that it had entered into a consulting services
contract with appellant; 3 that the contract had obligated appellant to pay
approximately $1,119,000 to appellee in installments (the first of which—
approximately $279,773—was allegedly due); and that because of complicating
circumstances, appellant had only paid $75,728. 4 Appellee therefore brought
claims for breach of contract and quantum meruit, seeking damages and
attorney’s fees. Appellee pled that through entering a contract subject to section
271.152 of the local government code, 5 appellant had waived its immunity from
suit.
Appellant answered by generally denying appellee’s claims; pleading
several affirmative defenses, including governmental immunity; and asserting a
3
According to the petition, appellant engaged appellee for consulting
services because appellant had desired to apply to the Texas Water
Development Board (TWDB) for funding of a new wastewater treatment plant.
The consulting services included the preparation of an engineering feasibility
report and other documents that would “eventually be provided” to TWDB.
4
According to the petition, TWDB informed appellee that it could not fund
any project by appellant because appellant had pending lawsuits against it at the
time of its application to TWDB.
5
See Tex. Loc. Gov’t Code Ann. § 271.152 (West 2005) (stating that a
local government that is authorized to enter into a contract and that enters into a
contract “subject to this subchapter waives . . . immunity to suit for the purpose of
adjudicating a claim for breach of the contract, subject to the terms and
conditions of this subchapter”).
2
counterclaim. In the counterclaim, appellant alleged that appellee had falsely
represented that it would be able to obtain funding on appellant’s behalf for a
wastewater project. Appellant sued appellee for promissory estoppel and
negligent misrepresentation.
Almost two years after the filing of appellee’s original petition, appellant
filed a plea to the jurisdiction, alleging that it was immune from appellee’s suit.
Appellant argued that any waiver of immunity under section 271.152 was
inapplicable because in paragraph 12.11 of the parties’ contract, they had
expressly agreed that appellant had not waived its immunity. Appellant also
contended that a waiver under section 271.152, if any, did not apply to quantum
meruit claims. Finally, appellant urged that nothing in the law when the parties
signed the contract or the contract itself allowed appellee to recover attorney’s
fees even if appellee’s suit as a whole was not barred.
Appellee responded to appellant’s plea to the jurisdiction by contesting
appellant’s contention that the contract could preserve immunity that appellant
had already waived under section 271.152. Appellee also contended that
several provisions of the contract contemplated litigation and therefore reflected
a waiver of immunity, that the provision of the contract relied on by appellant did
not preclude litigation or reinstate immunity, that allowing appellant to contract
around a waiver of immunity would leave appellee without recourse to enforce
the agreement, that allowing the contract to override the statute’s immunity
waiver would contravene the public policy of allowing recourse when a
3
governmental entity breaches a contract, and that appellant’s assertion of
counterclaims precluded its contention that it enjoyed immunity from appellee’s
claims. Appellee also contended that chapter 271 of the civil practice and
remedies code supported its claim for attorney’s fees. Appellee did not expressly
contest that its claim for quantum meruit was jurisdictionally barred.
After appellant filed a letter brief to reply to some of appellee’s contentions
and after the trial court held a hearing on the plea to the jurisdiction, the court
overruled the plea. 6 Appellant brought this interlocutory appeal.
Breach of Contract
In its first issue, appellant contends that the trial court erred by denying its
plea to the jurisdiction with regard to appellee’s breach of contract claim.
Specifically, appellant argues that its immunity from a breach of contract claim
could not be waived under section 271.152 because the parties agreed that their
contract did not waive immunity.
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat
a cause of action without regard to whether the claims asserted have merit.
Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Big Rock Investors Ass’n v.
Big Rock Petroleum, Inc., 409 S.W.3d 845, 848 (Tex. App.—Fort Worth 2013,
6
Appellant also filed a traditional motion for summary judgment on an
affirmative defense that is unrelated to the issues in this appeal. At the joint
hearing on appellant’s motion for summary judgment and plea to the jurisdiction
and again during oral argument before this court, appellee has appeared to
concede that appellant enjoys immunity from a claim for quantum meruit.
4
pet. filed). Such a plea may raise the issue of governmental immunity, which
generally protects political subdivisions of the State from lawsuits for damages.
See Lewisville ISD v. CH Townhomes, Inc., 346 S.W.3d 21, 22 (Tex. App.—Fort
Worth 2011, pet. denied).
Immunity involves two issues: whether a governmental entity has
consented to suit and whether the entity has accepted liability. Harris Cnty.
Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Immunity
from suit is jurisdictional and bars suit unless the State expressly waives
immunity or consents to the suit. Id.; Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex. 1999). As a city, appellant enjoys governmental immunity from
suit unless it has been waived. See Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 694 n.3 (Tex. 2003); Univ. of Tex. at Arlington v. Williams, No. 02-
12-00425-CV, 2013 WL 1234878, at *2 (Tex. App.—Fort Worth Mar. 28, 2013,
pet. filed) (mem. op.) (“[A] plaintiff asserting a claim against a governmental unit
must allege facts that affirmatively demonstrate that the legislature has waived
immunity for the claims brought.”).
If a court lacks subject matter jurisdiction in a particular case, then it lacks
authority to decide that case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443 (Tex. 1993). Whether the trial court has subject matter
jurisdiction is a question of law that we review de novo. Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). When
5
reviewing a grant or denial of a plea to the jurisdiction, we consider the plaintiff's
pleadings, construed in favor of the plaintiff, and any evidence relevant to the
jurisdictional issue without considering the merits of the claim beyond the extent
necessary to determine jurisdiction. Big Rock Investors Ass’n, 409 S.W.3d at
848.
As we have explained,
When a governmental entity . . . enters into a contract, it
waives immunity from liability but does not waive immunity from suit
unless the legislature has clearly and unambiguously waived the
governmental entity’s immunity from suit. To invoke the trial court’s
subject matter jurisdiction over a claim arising out of a governmental
entity’s contractual obligations, the plaintiff must allege a valid waiver
of immunity from suit and plead sufficient facts demonstrating the
trial court’s jurisdiction.
City of N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900,
906 (Tex. App.—Fort Worth 2011, no pet.) (op. on reh’g) (citation omitted).
Chapter 271 of the local government code contains such a clear and
unambiguous waiver of immunity. See id. at 907. That chapter provides, in part,
that when a local government entity, including a municipality, enters into a written
contract that states “the essential terms of the agreement for providing goods or
services,” the local government entity waives immunity “to suit for the purpose of
adjudicating a claim for breach of the contract.” See Tex. Loc. Gov’t Code Ann.
§ 271.151(2)(A), (3)(A) (West Supp. 2013), § 271.152; Ben Bolt-Palito Blanco
Consol. ISD v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212
S.W.3d 320, 327–28 (Tex. 2006) (applying section 271.152).
6
According to legislative history documents, section 271.152 was enacted
with the intent that “all local governmental entities that are given the statutory
authority to enter into contracts shall not be immune from suits arising from those
contracts.” Senate Research Ctr., Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S.
(2005); see also House Research Org., Bill Analysis, Tex. H.B. 2039, 79th Leg.,
R.S. (2005) (explaining that supporters of the enactment of section 271.152
argued that it would “bring fairness to business relationships between contractors
and local government entities” and would avoid “a fundamentally unfair situation
that denie[d] redress . . . to a contractor who completed a project for a city that
refused to pay”). In other words, as the supreme court has recognized, the
legislature enacted section 271.152 to “loosen the immunity bar so that all local
governmental entities that have been given or are given the statutory authority to
enter into contracts shall not be immune from suits arising from those contracts.”
Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex.
2010).
Appellant has not contested in the trial court or on appeal that section
271.152’s limited waiver of immunity would normally apply to the contract
between the parties. Instead, appellant contends that a provision within the
contract overrides the waiver. 7 The contract between the parties included the
following provisions:
7
In its brief, appellant contends, “[T]he parties . . . entered into a written
agreement which specifically reinstated any immunity that might otherwise have
7
1.1 Employment of the Consultant – The City hereby
agrees to retain the Consultant[8] to perform professional engineering
services in connection with the Project. Consultant agrees to
perform such services in accordance with the terms and conditions
of this Agreement. . . .
....
1.3 Schedule of Work – The Consultant agrees to
commence work immediately upon the execution of the Agreement,
and to proceed diligently with said work . . . .
....
3.1 Compensation for Consultant’s Services – . . .
[C]ompensation for this Project shall be for an amount not to exceed
. . . $1,119,000 . . . .
....
In addition to all remedies at law, the parties may
resolve/mediate any controversy, claim or dispute arising out of or
relating to the interpretation or performance of this Agreement, or
breach thereof, by voluntary mediation . . . .[9]
....
12.5 Venue – This entire Agreement is performable in Parker
County, Texas and the venue for any action related directly or
indirectly . . . to this Agreement or in any manner connected
therewith shall be in Parker County, Texas, and this Agreement shall
be construed under the laws of the State of Texas.
....
been waived . . . . As a result, the statutory exception to immunity does not apply
in this case.”
8
The “Consultant” is appellee.
9
This provision appeared under article nine of the contract, titled “DISPUTE
RESOLUTION/MEDIATION.” Appellee relies on terms such as these to argue
that the contract contemplates litigation between the parties.
8
12.8 Waiver – Waiver by either party of any breach of this
Agreement, or the failure of either party to enforce any of the
provisions of this Agreement, at any time, shall not in any way affect,
limit, or waive such party’s right thereafter to enforce or compel strict
compliance.
....
12.11 Sovereign Immunity – The parties agree that the City
has not waived its sovereign immunity by entering into and
performing its obligations under this Agreement.[10] [Emphasis
added.]
Appellant argues that paragraph 12.11 is “clearly aimed at contractually
reinstating . . . immunity which might otherwise be waived by operation of
[section 271.152].” Appellant also contends that the parties were free to contract
around section 271.152’s limited waiver of immunity, relying on Texas supreme
court cases. See, e.g., Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 95 (Tex.)
(“As a fundamental matter, Texas law recognizes and protects a broad freedom
of contract.”), cert. denied, 132 S. Ct. 455 (2011). Appellant correctly argues that
under some circumstances, parties may waive statutory and even constitutional
rights by contract and that nothing in section 271.152 specifically precludes
reinstatement or avoidance of the limited waiver of immunity. See Solar
Applications Eng’g, Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 112 (Tex.
2010) (“Parties are free, of course, to contract out of statutory default rules . . .
and may even contractually waive constitutional rights.”); In re Go Colorado 2007
10
As a city, appellant actually enjoys governmental immunity, not sovereign
immunity. See City of Houston v. Williams, 353 S.W.3d 128, 134 & n.5 (Tex.
2011).
9
Revocable Trust, 319 S.W.3d 880, 883 (Tex. App.—Fort Worth 2010, orig.
proceeding) (explaining that the constitutional right to a jury trial may be waived
through a prelitigation contract as long as the waiver is knowing, voluntary, and
intelligent); see also Wright v. Sport Supply Group, Inc., 137 S.W.3d 289, 294
(Tex. App.—Beaumont 2004, no pet.) (“Absent a statute or fundamental public
policy precluding waiver, one generally may contractually waive . . . constitutional
or statutory rights, whether present or future.”). Appellee replies that the parties
could not, by contract, circumvent the waiver of immunity that the legislature
intended and that even if they could do so, paragraph 12.11 is ambiguous and
does not avoid section 271.152’s limited waiver.
We disagree with appellee’s contentions that paragraph 12.11 is
ambiguous or that it does not directly conflict with section 271.152. Whereas
section 271.152 states that a local governmental entity may waive its own
immunity by entering a contract, 11 paragraph 12.11 plainly states that appellant
did not waive its immunity by entering the contract at issue. 12 See Tex. Loc.
11
We note that section 271.152 does not itself waive immunity but instead
provides a mechanism for a local government entity to waive its own immunity by
entering a contract. Thus, we disagree with appellee’s arguments that the
legislature on its own accord waived appellant’s immunity and that paragraph
12.11, which purports to preclude appellant’s waiver of its immunity, does not
therefore necessarily conflict with section 271.152.
12
Although appellee’s former shareholder and director, Billy Lohrke, signed
an affidavit stating that none of the parties to the contract “agree[d] to allow
[appellant] to reinstate . . . immunity that was legislatively waived,” we construe
contracts according to the ordinary meaning of the words expressed within them.
10
Gov’t Code Ann. § 271.152. Thus, the statutory and contractual provisions are
incompatible, and one of them must yield. Based on principles generally
underlying the waiver of sovereign or governmental immunity, on the purpose
behind the enactment of section 271.152, and on legislative intent expressed
within another section in chapter 271, we conclude that the contractual provision
cannot be enforced.
Courts have consistently deferred to the legislature’s judgment in matters
concerning the waiver of sovereign or governmental immunity. See IT–Davy, 74
S.W.3d at 854. Such deference is proper because the legislature has an interest
in controlling fiscal matters through the appropriations process. See Tex. Gov’t
Code Ann. § 311.034 (West 2013).
Thus, in IT-Davy, which the supreme court decided before the enactment
of section 271.152, the court held that neither the State nor its agents could
waive sovereign immunity even by signing a contract that expressly purported to
do so. 74 S.W.3d at 858 (“[E]ven though the TNRCC’s executive director had
the authority to enter into the contract with IT–Davy on the TNRCC’s behalf, he
did not have authority to, and thus did not, waive the TNRCC’s immunity from
suit.”); see Wichita Falls State Hosp., 106 S.W.3d at 695 (explaining that the
consent of “the people” for their government to be sued is expressed within the
laws of the state and that it is the legislature’s responsibility to balance “the
See Doe v. Tex. Ass’n of Sch. Bds., Inc., 283 S.W.3d 451, 458 (Tex. App.—Fort
Worth 2009, pet. denied).
11
conflicting policy issues associated with waiving immunity”); see also Webb Cnty.
v. Khaledi Props., Ltd., No. 04-12-00251-CV, 2013 WL 3871060, at *2 (Tex.
App.—San Antonio July 24, 2013, no pet.) (mem. op.) (citing IT-Davy and holding
that immunity from a breach of contract suit may be waived only by the
legislature, not expressly by the contracting parties); Potter Cnty. v. Tuckness,
308 S.W.3d 425, 430 (Tex. App.—Amarillo 2010, no pet.). If parties to a contract
cannot, between themselves, voluntarily choose to waive an entity’s sovereign or
governmental immunity because the legislature has sole province over such
matters, we cannot conclude that parties may collectively and voluntarily
abrogate the legislature’s intention to waive such immunity. In other words,
because matters of immunity hinge upon legislative policy balancing of
competing public and private interests, see IT-Davy, 74 S.W.3d at 857, we
conclude that these parties could not tilt that balance in either direction through
their contract. See Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353
(Tex. 2013) (reiterating that it is the legislature’s “sole province” to waive or
abrogate sovereign immunity); see also Bacon v. Tex. Historical Comm’n, 411
S.W.3d 161, 172 (Tex. App.—Austin 2013, no pet.) (explaining that the
contemporary rationale for governmental immunity is that the legislature “is best
suited to make the policy-laden judgments as to if and how . . . government
resources should be expended”).
Next, the above-described polices underlying section 271.152—including
avoiding the elimination of redress to contractors when a governmental entity
12
refuses to pay—would be thwarted by enforcing paragraph 12.11 of the parties’
contract. See House Research Org., Bill Analysis, Tex. H.B. 2039, 79th Leg.,
R.S. (2005). And we conclude that the legislature intended to avoid a mutual
elimination of section 271.152’s policy because chapter 271, by its own
language, indicates that some contractual terms that conflict with the chapter’s
waiver of immunity cannot be enforced. Specifically, although section 271.154
allows parties to incorporate “[a]djudication procedures” (such as notice or
alternative dispute resolution provisions) into contracts subject to chapter 271,
the section prohibits such procedures from “conflict[ing] with the terms” of section
271.152. See Tex. Loc. Gov’t Code Ann. § 271.154 (West 2005). We cannot
imagine that the legislature would have precluded some contractual terms from
conflicting with chapter 271’s limited waiver of immunity while intending to allow
for the possibility that a contractual term could override the waiver altogether.
We recognize that there is a strong public policy in enforcing voluntary and
knowing contracts. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246
S.W.3d 653, 664 (Tex. 2008); see also Fortis Benefits v. Cantu, 234 S.W.3d 642,
649 (Tex. 2007) (indicating that courts should be “loathe” to judicially rewrite a
contract’s plain language). But the freedom of contract is “not unbounded”;
parties do not have the right to enter contracts that violate another strong public
policy as expressed through the legislature’s statutes. See Fairfield Ins. Co., 246
13
S.W.3d at 664; 13 Woolsey v. Panhandle Ref. Co., 131 Tex. 449, 455, 116 S.W.2d
675, 678 (1938) (disapproving of a contract that made the “wise provisions of the
law . . . futile”); see also In re I.R.H., No. 04-12-00366-CV, 2013 WL 1850778, at
*1–2 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem. op.) (holding that
a provision in an agreed final decree of divorce that required a parent to pay
$25,000 to the other parent before seeking to modify conservatorship was
against public policy and therefore void); Westchester Fire Ins. Co. v. Admiral
Ins. Co., 152 S.W.3d 172, 182 (Tex. App.—Fort Worth 2004, pet. denied)
(en banc op. on reh’g) (“Courts look to state statutes and judicial decisions to
determine public policy.”).
The appropriate test when considering whether a contract violates public
policy is whether the tendency of the agreement is injurious to the public. City of
The Colony v. N. Texas Mun. Water Dist., 272 S.W.3d 699, 730 (Tex. App.—Fort
Worth 2008, pet. dism’d); see Westchester Fire Ins. Co., 152 S.W.3d at 182–83
(explaining that in weighing a contract term against public policy, we should
consider the strength of the public policy as manifested by legislation or judicial
decisions and the likelihood that a refusal to enforce the term will further that
policy). Enforcing paragraph 12.11 or identical provisions in the future would be
injurious to the public because it would allow local governments to breach
13
As explained in Fairfield, the supreme court has not been shy to declare
agreements unenforceable for a violation of public policy. See 246 S.W.3d at
665 & n.20.
14
contractual terms without the possibility of redress, contravening section
271.152’s policy. Cf. Nat’l Cnty. Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 3–
4 (Tex. 1993) (plurality op.) (holding that an insurance contract’s provision that
excluded coverage to a driver’s family members was ineffective because it
attempted to narrow coverage that the legislature had intended to exist).
For all of these reasons, we hold that paragraph 12.11 of the parties’
contract is void because it contravenes the legislature’s public policy expressed
within chapter 271 of the local government code. See In re C.H.C., 396 S.W.3d
33, 51 (Tex. App.—Dallas 2013, no pet.) (“A court can declare a contract void as
against public policy and refuse to enforce it.”). Thus, we conclude that appellant
did not retain or reinstate its immunity from appellee’s breach of contract claim,
and we overrule appellant’s first issue. 14
Attorney’s Fees
In its second issue, appellant contends that the trial court erred by denying
its plea to the jurisdiction because it is immune from appellee’s request for
attorney’s fees in connection with its breach of contract claim. Appellee pled for
attorney’s fees under section 271.153 of the local government code, which
currently provides that a plaintiff in a suit against a local governmental entity for
breach of contract may recover “reasonable and necessary attorney’s fees that
14
Therefore, we decline to analyze appellee’s alternative argument that
appellant waived its immunity for a breach of contract claim against it by pleading
a counterclaim.
15
are equitable and just.” See Tex. Loc. Gov’t Code Ann. § 271.153(a)(3) (West
Supp. 2013).
The parties executed their contract, however, in January 2008. At that
time, chapter 271 did not provide for the recovery of attorney’s fees in a breach
of contract suit subject to the chapter. See Act of May 23, 2005, 79th Leg., R.S.,
ch. 604, 2005 Tex. Gen. Laws 1548 (amended 2009) (current version at Tex.
Loc. Gov’t Code Ann. § 271.153). And the 2009 amendment to the statute,
which added the possibility of recovering attorney’s fees, expressly provided that
the change in the law applied “only to a claim that [arose] under a contract
executed on or after the effective date of th[e] Act.” See Act of May 31, 2009,
81st Leg., R.S., ch. 1266, §§ 8, 17, 2009 Tex. Gen. Laws 4006 (amended 2011)
(current version at Tex. Loc. Gov’t Code Ann. § 271.153); see also Sharyland
Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 412 n.5 (Tex. 2011)
(recognizing that the 2009 amendment to section 271.153 that authorized the
recovery of attorney’s fees was not retroactive). In fact, as appellant argues, the
version of the statute in effect at the time the parties entered into their contract
specifically precluded an award of attorney’s fees for either party in a chapter 271
breach of contract claim unless such fees were particularly authorized by the
parties’ contract. Act of May 23, 2005, 79th Leg., R.S., ch. 604, 2005 Tex. Gen.
Laws 1548 (amended 2009). The contract in this case did not allow for
attorney’s fees.
16
Thus, it is evident that appellee is not entitled to attorney’s fees in
connection with its breach of contract suit against appellant. But appellee argues
that the appropriateness of its request for attorney’s fees is not a jurisdictional
issue and must instead be raised through a motion for summary judgment. We
disagree.
A governmental entity’s immunity from a request for attorney’s fees is
properly litigated through a plea to the jurisdiction. See Harris Cnty. Flood
Control Dist. v. Great Am. Ins. Co., 309 S.W.3d 614, 617–18 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (explaining that the 2009 amendment to
section 271.153 was not retroactive, holding that a governmental entity therefore
had immunity from a claim for attorney’s fees, and reversing a trial court’s denial
of the entity’s plea to the jurisdiction); City of Houston v. Petroleum Traders
Corp., 261 S.W.3d 350, 360–61 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(holding that a city could not be entitled to attorney’s fees in a chapter 271 claim
and reversing the denial of a plea to the jurisdiction to that extent); see also Univ.
of Tex. Sys. v. Ochoa, 413 S.W.3d 769, 774 (Tex. App.—Austin 2012, pet.
denied) (“Having sustained the University’s sole issue on appeal, we reverse the
district court’s order denying the University’s plea to the jurisdiction and render
judgment dismissing Ochoa’s attorney’s fees claims for lack of subject-matter
jurisdiction.”).
Although appellee relies on one of our previous cases to contend that the
potential recovery of attorney’s fees may not be litigated in an interlocutory
17
appeal from a denial of a plea to the jurisdiction, we decided the merits of an
issue regarding immunity from attorney’s fees in that interlocutory appeal. City of
N. Richland Hills, 340 S.W.3d at 913, 917 (dismissing a request for attorney’s
fees for a lack of subject matter jurisdiction) (citing City of Corinth v. NuRock
Dev., Inc., 293 S.W.3d 360, 370 (Tex. App.—Fort Worth 2009, no pet.)). Thus,
because appellant properly raised the issue of attorney’s fees in its plea to the
jurisdiction and because the law makes attorney’s fees unrecoverable for
appellee’s litigation of its breach of contract claim under the circumstances of this
case, we sustain appellant’s second issue.
Quantum Meruit
In its third issue, appellant argues that the trial court erred by overruling its
plea to the jurisdiction with regard to appellee’s quantum meruit claim. Appellee
did not respond to appellant’s third issue within its brief.
Although governmental entities may waive immunity for a breach of
contract claim under section 271.152 by executing a contract subject to that
section, our sister courts have uniformly held that section 271.152 does not
provide for a waiver of immunity for quantum meruit claims and that entities
retain immunity for such claims. See Dallas Cnty. Hosp. Dist. v. Hospira
Worldwide, Inc., 400 S.W.3d 182, 187 (Tex. App.—Dallas 2013, no pet.)
(“[Section 271.152’s] waiver does not apply to extra contractual claims such as
quantum meruit.”); City of San Antonio ex rel. City Pub. Serv. Bd. v.
Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597, 602 (Tex. App.—San
18
Antonio 2012, pet. denied) (“[T]he legislative waiver of immunity in the contract
context is restricted to suits for breach of a written contract for goods and
services.”); City of Deer Park v. Ibarra, No. 01-10-00490-CV, 2011 WL 3820798,
at *6 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.) (“The
workers’ promissory estoppel and quantum meruit claims sound in equity, and
they are simply not included in section 271.152’s limited waiver of governmental
immunity.”).
We agree with our sister courts that section 271.152, by its express
language, does not allow governmental entities to waive immunity for quantum
meruit claims. See Tex. Loc. Gov’t Code Ann. § 271.152 (“A local governmental
entity that . . . enters into a contract subject to this subchapter waives sovereign
immunity to suit for the purpose of adjudicating a claim for breach of the contract
. . . .”) (emphasis added). We therefore sustain appellant’s third issue.
Conclusion
Having overruled appellant’s first issue, we affirm the trial court’s order
denying appellant’s plea to the jurisdiction to the extent that the trial court did not
dismiss appellee’s breach of contract claim. Having sustained appellant’s
second and third issues, however, we reverse the trial court’s order denying
appellant’s plea to the jurisdiction to the extent that the trial court did not dismiss
appellee’s claim for quantum meruit and its request for attorney’s fees on its
breach of contract claim. We therefore render a judgment dismissing appellee’s
quantum meruit claim and its request for attorney’s fees on its breach of contract
19
claim with prejudice, and we remand this case for further proceedings on
appellee’s breach of contract claim. 15
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: February 6, 2014
15
We lift our August 20, 2013 order staying the trial court’s proceedings.
20
City of Willow Park, Texas v. E.S. & C.M., Inc.
Combined Opinion