Opinion filed June 24, 2010
In The
Eleventh Court of Appeals
__________
No. 11-09-00004-CV
__________
M.T.D. ENVIRONMENTAL, L.L.P., Appellant
V.
CITY OF MIDLAND, Appellee
On Appeal from the County Court at Law No. 2
Midland County, Texas
Trial Court Cause No. CC14397
M E M O R A N D U M O P I N I O N O N M O T I O N F O R R E H E A R I N G
In its motion for rehearing, the City of Midland has raised the issue of governmental immunity. This question was not raised on appeal by either party, and the majority opinion only addressed the questions that were raised. As the court stated:
We hold only that Subchapter C in itself gives MTD the right to resolve its dispute in court. While we are aware that this court can address the issue of governmental immunity on its own, we decline to do so because that issue was neither fully developed below nor briefed in this court.
M.T.D. Environmental, L.L.P. v. City of Midland, No. 11-09-00004-CV, 2010 WL 1948319, at *5 (Tex. App.—Eastland May 13, 2010, no pet. h.).
The Prompt Payment Act[1] may or may not contain a waiver of governmental immunity from suit. But, that issue was not raised either in the trial court or this court. The first mention of governmental immunity from suit – as far as the contract claim – was in the concurring opinion.
The City has failed to provide either argument or authorities to this court to show why it is entitled to governmental immunity. That issue and the record should be developed in the trial court below. MTD sued for breach of contract. It may be that governmental immunity from suit is waived under Section 271.152 of the Local Government Code. See Tex. Local Gov’t Code Ann. §§ 271.151-.160 (Vernon 2005 & Supp. 2009). Does this contract fall under Sections 271.151 and 271.152? If so, does the release provision in the contract between MTD and the City affect any waiver of immunity pursuant to Section 271.152? What is the effect, if any, of Section 271.155 on the provisions of the parties’ contract? Section 2251.004 of the Prompt Payment Act declares that any purported release or waiver of a right to prompt payment under Subchapter B of the Prompt Payment Act is void. What is the effect, if any, of this statute on MTD’s breach of contract claim and the City’s claim of governmental immunity?
On remand, the jurisdictional issue of governmental immunity for MTD’s breach of contract claim and the jurisdictional issue of governmental immunity for MTD’s attorney’s fees claim should be addressed separately.
The motion for rehearing of the City is denied.
TERRY McCALL
JUSTICE
June 24, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
Opinion filed June 24, 2010
In The
Eleventh Court of Appeals
__________
No. 11-09-00004-CV
__________
M.T.D. ENVIRONMENTAL, L.L.P., Appellant
V.
CITY OF MIDLAND, Appellee
On Appeal from the County Court at Law No. 2
Midland County, Texas
Trial Court Cause No. CC14397
C O N C U R R I N G M E M O R A N D U M O P I N I O N
O N M O T I O N F O R R E H E A R I N G
For the reasons stated in my concurring opinion, I respectfully concur in the denial of the City’s motion for rehearing.
RICK STRANGE
JUSTICE
June 24, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Tex. Gov’t Code Ann. §§ 2251.001-.055 (Vernon 2008).