No waiver of immunity exists for lost profits under §271.152 says 13th Court of Appeals
La Joya Indep. School Dist. v. Alberto Trevino et al., 13-17-00333-CV (Tex. App. – Corpus Christi, February 14, 2019)
This is a breach of contract case where the 13th Court of Appeals reversed the denial of the school district’s plea to the jurisdiction and dismissed the case.
Pursuant to a written agreement between Trevino (an insurance agent/consultant) and LISD, Trevino would provide various services in connection with La Joya LISD’s provision of health care benefits to its employees. After LISD terminated the contract, Trevino filed suit alleging that L ISD terminated it without good cause and without providing an opportunity to cure. LISD filed a plea to the jurisdiction, which was denied. LISD appealed.
The court first noted that Trevino’s argument the contract was proprietary is inapplicable because the proprietary/governmental dichotomy only applies to municipalities. Next, for a Tex. Loc. Gov’t Code §271.152 waiver of immunity to apply, a party must claim damages within the limitations of the chapter (i.e. balance due and owed). Trevino did not sue for non-payment of work actually performed, but for the benefit of the bargain in terms of lost profits. Trevino sought recovery of the fees and commissions he would have earned for future services rendered had the contract continued through the end of its term. Such damages are not permitted under §271.152 and no waiver of immunity therefore exists. Finally, Trevino amended his petition twice prior to the hearing on the plea, so had a reasonable opportunity to amend and correct any jurisdictional defects. No further opportunity is required.
If you would like to read this opinion click here. Panel consists of Justice Benavides, Longoria, and Justice Hinojosa. Justice Hinojosa delivered the opinion of the court. The docket page with attorney information is found here.
