M.T.D. Environmental, L.L.P. v. City of Midland

*612RICK STRANGE, Justice,

concurring.

I join the court’s judgment but write separately to clarify what I see as the effect of Tex. Gov’t Code Ann. § 2251.004 (Vernon 2008). This provision prohibits waiving “any right or remedy granted by this chapter.” I would, therefore, begin by asking what right or remedy does Chapter 2251 grant to MTD? The court correctly holds that the City demonstrated that a dispute existed and, therefore, that Sub-chapter B does not apply. Because the contract was completed, Subchapter D is also inapplicable. Subchapter A does not purport to provide any right or remedy. Thus, if MTD has a right or remedy that cannot be waived, it must come from Sub-chapter C.

Subchapter C consists of two provisions: Section 2251.042 and Section 2251.043. Section 2251.042(a) requires governmental entities to provide vendors notice of any error in their invoice. MTD contends that the City failed to demonstrate its compliance with this provision. If MTD did not receive the notice to which it was entitled, this provision would not authorize the monetary damages MTD is seeking with this suit. Section 2251.042(a), therefore, does not make MTD’s waiver unenforceable.

The remaining provisions do provide potential monetary relief. Section 2251.042(b) allows vendors to recover interest if a dispute is resolved in their favor. If the dispute is resolved in the governmental entity’s favor, the vendor is entitled to payment on a corrected invoice. Section 2251.042(c). Section 2251.043 allows the prevailing party in a formal administrative or judicial action to recover its attorney’s fees from the losing party. Because vendors have a right to monetary relief when a dispute is resolved in their favor or the right to timely payment when a corrected invoice is submitted, I believe that Section 2251.004 bars blanket waivers of interest or attorney’s fees.

This does not mean that the City has necessarily waived its immunity from suit. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex.2006) (governmental immunity includes both immunity from suit and immunity from liability). To ensure legislative control over this immunity, courts have recognized that any waiver must be “clear and unambiguous.” McMahon Contracting v. City of Carrollton, 277 S.W.3d 458, 464 (Tex.App.-Dallas 2009, pet. denied).

There is no clear and unambiguous provision within the Prompt Payment Act waiving governmental immunity. See id. at 465. Sections 2251.042(b), (c) and 2251.043 provide remedies following the resolution of a dispute, but each would apply equally well to other types of dispute resolution, such as arbitration. Thus, while I believe that Section 2251.004 prohibits blanket waivers of interest on past-due invoices and attorney’s fees to prevailing parties, I do not believe that Chapter 2251 constitutes a waiver of a municipality’s immunity from suit or that it creates an independent cause of action. Because the majority reasons otherwise by holding that Subchapter C gives MTD the right to resolve its dispute in court, I respectfully submit this concurrence.