NUMBER 13-21-00045-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
REGIONAL POOL ALLIANCE,
MATAGORDA COUNTY SELF INSURANCE POOL,
AND WEST TEXAS RURAL COUNTIES ASSOCIATION, Appellants,
v.
NORTHSTAR RECOVERY SERVICES, INC., Appellee.
On appeal from the 36th District Court
of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Benavides
In this contract dispute over disaster recovery and restoration services provided in
the wake of Hurricane Harvey, appellants Regional Pool Alliance (RPA), Matagorda
County Self Insurance Pool (MCSIP), and West Texas Rural Counties Association
(WTRCA) contend that they are immune from the claims of appellee NorthStar Recovery
Services, Inc. (NorthStar) because NorthStar failed to establish a waiver of immunity
under Chapter 271 of the Texas Local Government Code. Specifically, appellants argue
that (1) they are not “local governmental entit[ies]” as that term is defined by Chapter 271,
(2) they did not directly benefit from the services NorthStar performed, and (3) Chapter
271 does not waive claims for quantum meruit.1 We affirm in part and reverse and render
in part.
I. BACKGROUND
A. The Governmental Parties
Matagorda County “and Special Districts of Matagorda County” entered an
interlocal agreement and formed MCSIP as a self-insurance pool. Throckmorton,
Shackelford, Motley, Regan, Schleicher, McCulloch, and Foard Counties entered their
own interlocal agreement and formed WTRCA as a self-insurance risk pool.
In 2010, MCSIP and WTRCA, as founding members, entered the “Regional Pool
Alliance Interlocal Agreement” (Interlocal Agreement) for the purpose of “achiev[ing]
efficiencies in the performance of certain governmental functions, including . . . disaster
restoration, [and] disaster recovery and other applicable services.” The Interlocal
Agreement created RPA as “a distinct governmental unit . . . designated as the
administrative agency that shall oversee the performance of [the agreement]” under
1 In a parallel mandamus proceeding, under appellate cause number 13-21-00189-CV, appellants
raised the alternative argument that rather than governmental entities imbued with immunity from suit, they
are non-jural entities without the capacity to be sued. As explained below, we agree with appellants’ position
in this appeal that they are governmental entities entitled to immunity. Accordingly, on this same day, the
Court denied appellants’ petition for mandamus relief. In re Regional Pool Alliance, No. 13-21-00189-CV,
2022 WL ______, at * __, (Tex. App.—Corpus Christi–Edinburg May 5, 2002, orig. proceeding) (mem. op.).
2
§ 791.013 of the Texas Government Code. Under the Interlocal Agreement, RPA is
obligated to “employ personnel and independent contractors, perform administrative
activities, provide administrative services and generally organize the activities
contemplated [by the agreement].” The Interlocal Agreement contemplates that “other
governmental entities, or associations of governmental entities,” may join RPA.
At some point, Aransas County, Aransas County ISD, Taft ISD, and Ingleside ISD
(ISDs) joined RPA. The ISDs are located in Aransas County. It is not clear from the record
whether these governmental entities joined RPA as individual members or as part of an
“association[] of governmental entities.”
B. The Contract
In March 2016, NorthStar Group Services, Inc. entered a Master Services
Agreement (MSA) with “[RPA] and it’s [sic] members . . . to perform the work identified in
each Work Order.” The MSA includes an attached rate schedule and was executed by
RPA’s Director, Kathleen Hicks. Approximately a year later, NorthStar was substituted as
the contractor under the MSA.
In September 2017, RPA and NorthStar executed a work order whereby “[RPA] or
Its Members” requested NorthStar perform a laundry list of disaster recovery and
restoration services on “[a]ll buildings impacted by Hurricane Harvey for: Aransas County
ISD, Taft ISD, Ingleside ISD, [and] Aransas County Facilities.” These services included
“[p]rocurement of temporary office spaces” and “[e]xecut[ing] leases on behalf of RPA
Members.” The work order was again signed by Hicks in her capacity as Director of RPA.
The work order included a total of sixty-five separate job numbers, and RPA agreed to
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pay NorthStar “in accordance with the [MSA].”
C. The Suit
By the time work was completed, NorthStar had billed RPA roughly $111 million,
and RPA had paid NorthStar roughly $89 million but disputed the remainder. NorthStar
filed its original petition in June 2020. NorthStar’s live pleading alleges claims against
each appellant for breach of contract, suit on a sworn account, and quantum meruit.
NorthStar also alleges that immunity has been waived for each appellant under Chapter
271 of the Local Government Code. Among the exhibits attached to NorthStar’s pleading
are copies of the MSA, the rate schedule, and the September 2017 work order.
D. The Plea to the Jurisdiction
Appellants filed a combined plea to the jurisdiction, arguing, as they do here, that
(1) they were not subject to Chapter 271’s waiver, (2) even if they were, they did not
receive a service under the contract, and (3) NorthStar’s quantum meruit claim is outside
the scope of Chapter 271’s waiver. As supporting evidence, appellants submitted:
• RPA’s Interlocal Agreement;
• MCSIP’s by-laws;
• WTRCA’s interlocal agreement;
• An affidavit from Schleicher County Judge Charlie Bradley;
• An affidavit from Matagorda County Judge Nate McDonald; and
• An affidavit from Aransas County Judge C.H. “Burt” Mills Jr.
The plea was originally set for hearing December 2, 2020.
On November 12, 2020, NorthStar filed a verified motion for a sixty-day
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continuance on the basis that appellants were not cooperating with NorthStar’s
jurisdictional discovery requests. The trial court continued the plea hearing until January
13, 2021, but the order does not compel appellants to comply with any of NorthStar’s
discovery requests.2
During the subsequent plea hearing, NorthStar conceded that Chapter 271’s
waiver “does not allow for a claim for quantum meruit” and informed the trial court that it
intended to file a notice of nonsuit after the hearing. NorthStar maintained that the trial
court had jurisdiction over its other claims. After taking the matter under advisement, the
trial court denied the plea in its entirety, and this interlocutory appeal ensued. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
II. STANDARD OR REVIEW & APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A plaintiff must plead facts that
affirmatively demonstrate the trial court’s subject matter jurisdiction. Fleming v. Patterson,
310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.
Air Control Bd., 852 S.W.2d at 446).
Sovereign immunity protects the State and its agencies from lawsuits for money
damages and deprives a trial court of subject matter jurisdiction over the plaintiff’s claims.
2It is not clear from the record whether the trial court held a hearing on NorthStar’s motion for a
continuance. If a hearing did occur, we have not been provided a copy of the reporter’s record.
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Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).
Governmental immunity offers the same protections for political subdivisions of the State,
including municipalities and school districts. Id. To prevail on a claim of immunity, the
governmental defendant “may challenge the pleadings, the existence of jurisdictional
facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018). When a defendant challenges the existence of jurisdictional facts, the analysis
“mirrors that of a traditional summary judgment.” Tex. Dep’t of Transp. v. Lara, 625
S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372
S.W.3d 629, 634 (Tex. 2012)). Accordingly, when a governmental entity establishes the
absence of a jurisdictional fact, the burden shifts to the plaintiff to raise a genuine issue
of material fact for the jury to resolve; otherwise, the trial court should rule on the plea as
a matter of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.
2004).
Absent a legislative waiver, governmental entities are generally immune from
breach of contract claims. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)
(explaining why the judiciary defers to the Texas Legislature to waive immunity from
contract claims). Chapter 271 of the Texas Local Government Code provides a limited
waiver of immunity for certain contract claims against a “local governmental entity.” TEX.
LOC. GOV’T CODE ANN. § 271.152. Chapter 271 defines “local governmental entity” as “a
political subdivision of this state, other than a county or a unit of state government,” and
provides a non-exclusive list of examples, including municipalities, public school districts,
and special-purpose districts or authorities. Id. at § 271.151(3)(A)–(C). The waiver only
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applies to certain types of contracts, id. at § 271.152, including “a written contract stating
the essential terms of the agreement for providing goods or services to the local
governmental entity that is properly executed on behalf of the local governmental entity.”
Id. at § 271.151(2)(A).
It is “well-established law that instruments pertaining to the same transaction may
be read together to ascertain the parties’ intent, even if the parties executed the
instruments at different times and the instruments do not expressly refer to each other.”
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (citing
Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984); Bd. of Ins.
Comm’rs v. Great So. Life Ins. Co., 239 S.W.2d 803, 809 (Tex. 1951)). “[A] court may
determine, as a matter of law, that multiple documents comprise a written contract.” Id.
(citing Jones v. Kelley, 614 S.W.2d 95, 98 (Tex. 1981)). “A master service agreement
does not provide for the performance of any specific work or any specific price; instead[,]
it requires the issuance of work orders and, upon acceptance of the work orders, they
become part of the master service agreement.” Shell W. E & P, Inc. v. Pel-State Bulk
Plant, LLC, 509 S.W.3d 581, 587 (Tex. App.—San Antonio 2016, no pet.) (citing In re
Helix Energy Sols. Grp., Inc., 303 S.W.3d 386, 391 (Tex. App.—Houston [14th Dist.]
2010, no pet.) (orig. proceeding); Teledyne Movible Offshore, Inc. v. Leasco Fleeting &
Barge Serv., Inc., 827 S.W.2d 633, 634–35 (Tex. App.—Beaumont 1992, writ denied)).
III. ANALYSIS
It is undisputed that each appellant is itself a governmental entity entitled to
governmental immunity. Indeed, as evidenced by the record, each appellant was formed
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pursuant to the Interlocal Cooperation Act by a group of governmental units for the
express purpose of performing certain governmental functions. See Ben Bolt-Palito
Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Cas. Joint Self-Ins. Fund,
212 S.W.3d 320, 324–26 (Tex. 2006) (holding that a governmental self-insurance pool
formed under the Interlocal Cooperation Act was a governmental entity entitled to
immunity because it performed governmental functions).
A. Appellants are Subject to Chapter 271
Rather, by their first issue, appellants contend that they fall outside the scope of
Chapter 271 because they are not “local governmental entit[ies].” See TEX. LOC. GOV’T
CODE ANN. §§ 271.151(3), 271.152. Appellants advance two interrelated arguments in
support of their position: (1) appellants do not enjoy a separate existence apart from their
members, and (2) because some of their members are counties, and counties are
expressly excluded from the definition of “local governmental entity,” appellants
themselves cannot be “local governmental entit[ies].” See id. § 271.151(3). The Supreme
Court of Texas has previously rejected these arguments.
In Ben Bolt, the supreme court found that a self-insurance pool comprised of “eight
counties, six municipalities, forty-three independent school districts, and various special
districts and other political subdivisions” was “a discrete governmental unit separate and
apart from its members.” 212 S.W.3d at 322, 328. The pool derived its immunity “from the
performance of governmental functions, not from the immunities of those members that
combined to form it.” Id. at 328. Consequently, the court concluded that the pool was a
“local governmental entity” under Chapter 271 even though eight of its members were
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counties. Id. (“The only entities expressly excluded from the statutory waiver are counties
and units of state government, and the [pool] itself is neither of these.”).
Like Ben Bolt, WTRCA and MCSIP are self-insurance pools. See id. at 322.
Similarly, RPA is a distinct governmental entity formed under the Interlocal Cooperation
Act for the purpose of performing governmental functions. See id. at 324–25. Because
none of these governmental entities is a county or a unit of state government, each one
is necessarily a “local governmental entity” for purposes of Chapter 271. See id. at 328.
Appellants’ first issue is overruled.
B. No Direct Benefit to WTRCA or MCSIP
Appellants next argue that only Aransas County and the ISDs received a direct
benefit under the contract. Stated differently, appellants contend that Chapter 271’s
waiver does not apply to them because they did not receive any services under the
contract.
First, we must determine what documents constituted the “written contract stating
the essential terms of the agreement for providing . . . services.” See TEX. LOC. GOV’T
CODE ANN. § 271.151(2). Here, the MSA and attached rate schedule do not contain all
the essential terms of the agreement; the parties’ intent only becomes clear when we
consider those documents together with the September 2017 work order. See Fort Worth
Indep. Sch. Dist., 22 S.W.3d at 840; Shell W. E & P, 509 S.W.3d at 587. Accordingly, we
conclude that the written contract is comprised of the MSA, the attached rate schedule,
and the separate work order. See Fort Worth Indep. Sch. Dist., 22 S.W.3d at 840.
Pursuant to the work order, NorthStar performed a non-exhaustive list of twenty-
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eight recovery and restoration services on “[a]ll buildings impacted by Hurricane Harvey
for: Aransas County ISD, Taft ISD, Ingleside ISD, [and] Aransas County Facilities.” The
supreme court has interpreted “services” in Chapter 271 to broadly mean “any act
performed for the benefit of another.” San Antonio River Auth. v. Austin Bridge & Rd.,
L.P., 601 S.W.3d 616, 629 (Tex. 2020) (quoting Kirby Lake Dev., Ltd. v. Clear Lake City
Water Auth., 320 S.W.3d 829, 839 (Tex. 2010)). The governmental entity need not be the
primary beneficiary under the contract, but it must receive some direct benefit for Chapter
271’s waiver to apply. Id. Conversely, an “indirect, attenuated” benefit will not trigger the
waiver. Id. (quoting Kirby Lake Dev., 320 S.W.3d at 839). Performing a service that a
governmental entity was otherwise contractually obligated to perform constitutes a direct
benefit to that entity. Byrdson Servs., LLC v. S. E. Tex. Reg’l Plan. Comm’n, 516 S.W.3d
483, 486 (Tex. 2016).
Aransas County and the ISDs were clearly the primary beneficiaries under the
contract; NorthStar performed sixty-five separate projects on buildings owned by these
distinct governmental entities, including a courthouse, detention center, library, and
numerous schools. See id. at 487 (recognizing homeowners as primary beneficiary under
reconstruction services contract). NorthStar notes that WTRCA, MCSIP, and RPA were
formed for similar purposes and suggests that it provided all three a direct benefit by
fulfilling the disaster services contemplated by their respective interlocal agreements.
NorthStar fails to recognize that WTRCA and MCSIP have a different relationship with
Aransas County and the ISDs than RPA does.
WTRCA, MCSIP, Aransas County, and the ISDs are all members of RPA, but
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Aransas County and the ISDs are not members of WTRCA or MCSIP. As their names
suggest, WTRCA is comprised of rural counties in West Texas, and MCSIP consists of
Matagorda County and other political subdivisions in that county. In other words, whatever
obligations WTRCA and MCSIP may have to their respective members regarding disaster
services, their obligations to Aransas County and the ISDs are limited to those provided
for in the Interlocal Agreement.
The purpose of the Interlocal Agreement is “to achieve efficiencies in the
performance of certain governmental functions.” The agreement contemplates that
members will pool their resources to procure goods and services, with each member
responsible for its portion of the costs.3 See TEX. GOV’T CODE ANN. § 791.025(a) (“A local
government, including a council of governments, may agree with another local
government or with the state or a state agency, including the comptroller, to purchase
goods and services.”). Here, that meant collectively bargaining with NorthStar for
presumably better terms under the MSA than the members could have achieved
individually. See id.
But contrary to NorthStar’s suggestion, nothing in the Interlocal Agreement
obligates one member to perform governmental functions on another member’s behalf.
See Byrdson, 516 S.W.3d at 486. Thus, while NorthStar performed disaster recovery and
restoration services for Aransas County and the ISDs, it did not perform any services that
WTRCA or MCSIP would have otherwise performed as co-members of RPA. See id.
3 The Interlocal Agreement provides that RPA will “divide the cost of services between the
[members],” and “no [member] shall be liable for any debt or liability incurred on behalf of another
[member].”
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Because the trial court erred by finding that Chapter 271’s waiver applied to WTRCA and
MCSIP, we grant appellants’ second issue in part.
C. Fact Issue on Direct Benefit to RPA
On the other hand, based on the limited record before us, whether Chapter 271’s
waiver applies to NorthStar’s contract claims against RPA is inconclusive at this point.
Consequently, RPA did not “meet the summary judgment standard of proof” to prevail on
its plea to the jurisdiction. See Miranda, 133 S.W.3d at 228.
RPA relies on three pieces of evidence to negate the trial court’s jurisdiction—a
one-page affidavit by Aransas County Judge C.H. Mills Jr., the Interlocal Agreement, and
the contract. Judge Mills states in his affidavit that “RPA owns no real property, and RPA
owns no property upon which [NorthStar] alleges it performed remediation work.” As
discussed above, the fact that Aransas County and the ISDs were the primary
beneficiaries under the contract does not necessarily prove that RPA did not receive a
direct benefit. See, e.g., Austin Bridge, 601 S.W.3d at 630 (“The contract may primarily
require Austin Bridge to provide construction services to the District, but it further requires
Austin Bridge to provide services directly for the River Authority, fulfilling the River
Authority’s management obligations.”). Other than authenticating the Interlocal
Agreement, nothing else in Judge Mills’ affidavit advances RPA’s position.
That leaves us to compare the Interlocal Agreement and the contract. We conclude
that RPA’s obligations under the Interlocal Agreement are sufficiently broad to potentially
overlap with the scope of work performed by NorthStar. As the administrative agency
responsible for overseeing the performance of the Interlocal Agreement, RPA is expressly
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obligated to its members to “employ personnel and independent contractors, perform
administrative activities, provide administrative services[,] and generally organize the
activities contemplated [by the Interlocal Agreement].” The Interlocal Agreement further
provides that “RPA recognizes that the governmental functions to be performed
. . . require input and direction from trained professionals.”
The work order, which was “requested by [RPA] or Its Members” and executed by
RPA’s Director, includes a non-exhaustive list of twenty-eight services to be performed
by NorthStar for Aransas County and the ISDs. Viewing the evidence in the light most
favorable to NorthStar, some of the services listed are “administrative” or
“organiz[ational]” in nature, including “[p]rocurement of temporary office spaces” and
“execut[ing] leases on behalf of RPA [m]embers.” See Alamo Heights, 544 S.W.3d at 771
(explaining that when reviewing evidentiary pleas, courts “must take as true all evidence
favorable to the plaintiff, indulging every reasonable inference and resolving any doubts
in the plaintiff’s favor” (citing Miranda, 133 S.W.3d at 228)). Thus, NorthStar may have
fulfilled some of RPA’s obligations to Aransas County and the ISDs under the Interlocal
Agreement, which would be a direct benefit to RPA.4 See Austin Bridge, 601 S.W.3d at
629–30; Byrdson, 516 S.W.3d at 487.
It was RPA’s burden to present sufficient evidence to negate the trial court’s
jurisdiction over NorthStar’s contract claims. See Miranda, 133 S.W.3d at 228. Because
the evidence raised a fact issue regarding whether RPA received a direct benefit, the trial
4 Based on the limited record before us, we do not know whether all the services contemplated by
the work order were actually performed. It is also unclear to what extent, if at all, RPA directly benefited
from the “input and direction” of NorthStar.
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court did not err by denying RPA’s plea to the jurisdiction with respect to NorthStar’s
contract claims. See Byrdson, 516 S.W.3d at 484 (“When evidence is presented with a
plea to the jurisdiction, the trial court may rule on the plea as a matter of law if the evidence
does not raise a fact issue on the jurisdictional question.” (citing Miranda, 133 S.W.3d at
227–28)). Appellants’ second issue is denied in part.
D. No Waiver for Quantum Meruit Claims
By their third issue, appellants submit that Chapter 271 only waives immunity from
“a claim for breach of contract,” and thus, the trial court does not have jurisdiction over
NorthStar’s extra-contractual claims for quantum meruit. See TEX. LOC. GOV’T CODE ANN.
§ 271.152. We, along with many of our sister courts, have concluded that Chapter 271
does not waive immunity from quantum meruit claims. Vantage Sys. Design, Inc. v.
Raymondville Indep. Sch. Dist., 290 S.W.3d 312, 316–17 (Tex. App.—Corpus Christi–
Edinburg 2009, pet. denied); see, e.g., City of Willow Park v. E.S., 424 S.W.3d 702, 712
(Tex. App.—Fort Worth 2014, pet. denied) (noting that “our sister courts have uniformly
held that [§] 271.152 does not provide for a waiver of immunity from quantum meruit
claims” before concluding the same).
In the trial court, NorthStar conceded that Chapter 271 did not extend to claims for
quantum meruit and stated its intent to voluntarily dismiss the claims. On appeal,
appellants allege that “[n]o such notice was ever filed” and ask us to dismiss the claims.
The record before us shows that, despite its stated intentions, NorthStar’s claims for
quantum meruit remain live. Accordingly, we sustain appellants’ third issue. See Vantage,
290 S.W.3d at 316–17.
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E. Opportunity to Conduct Jurisdictional Discovery
Finally, if we find any of its claims jurisdictionally infirm, NorthStar contends that
remand rather than dismissal is appropriate because it did not have a full and fair
opportunity to develop the jurisdictional record. See Miranda, 133 S.W.3d at 227 (“When
the consideration of a trial court’s subject matter jurisdiction requires the examination of
evidence, the trial court exercises its discretion in deciding whether the jurisdictional
determination should be made at a preliminary hearing or await a fuller development of
the case, mindful that this determination must be made as soon as practicable.”). Prior to
the trial court’s ruling on the plea, NorthStar attempted to depose a corporate
representative for each appellant on the narrow topic of immunity. NorthStar also served
appellants with written discovery on the question of immunity. According to NorthStar,
appellants successfully resisted those attempts at jurisdictional discovery, and the trial
court simply denied the pleas based on the record before it. NorthStar argues that without
the benefit of jurisdictional discovery, it has been placed at a disadvantage on appeal
through no fault of its own.5
Appellants do not dispute NorthStar’s account of the procedural history; instead,
they argue that “every document that is needed to determine the jurisdictional issues is
already in the record, and there are no fact questions regarding those documents.” We
agree that is true for WTRCA and MCSIP. The contract and several interlocal agreements
speak for themselves, and there is simply no suggestion that NorthStar provided WTRCA
or MCSIP with a direct benefit under the contract. Additionally, interpreting Chapter 271’s
5 NorthStar seemed to take a contradictory position in the trial court, saying at the hearing that
“[w]e don’t believe we need additional discovery after we looked at the caselaw.”
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waiver and its application to quantum meruit claims is a pure question of law for a court,
not a fact finder, to decide. See Sunstate Equip. Co. v. Hegar, 601 S.W.3d 685, 689 (Tex.
2020) (citing First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008)).
Because the pleadings and record conclusively negate the trial court’s jurisdiction over
these claims, we decline NorthStar’s request to conduct jurisdictional discovery. See
Miranda, 133 S.W.3d at 227–28.
IV. CONCLUSION
We affirm the portion of the trial court’s order as to NorthStar’s contract claims
against RPA, and we reverse and render a judgment of dismissal as to the remainder of
NorthStar’s claims.
GINA M. BENAVIDES
Justice
Delivered and filed on the
5th day of May, 2022.
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