Fourth Court holds notice provisions in a contract cannot be addressed in a plea to the jurisdiction since they can be waived.

City of San Antonio v. Casey Industrial, Inc. 04-14-00429-CV (Tex. App. – San Antonio, January 27, 2016)

This is an immunity in contract case where the Fourth Court of Appeals first issued an opinion in July of 2015 upholding the City’s immunity but then, on its own, while a request for en banc review was pending,  withdrew its own opinion and issued this one holding Casey Industrial, Inc. (“Casey”) properly articulated jurisdiction. The summary of the original opinion can be found here. There are multiple opinions involving these parties.

CPS Energy (a division of the City) contracted with Casey and Wheelabrator Air Pollution Control, Inc., to add pollution control systems to one of CPS Energy’s coal-fired power stations. After some disputes between the parties, Casey sued CPS Energy for breach of contract and quantum meruit.  Casey sought to recover additional costs it alleged it incurred as a result of Wheelabrator’s failure to meet its obligations. The main crux of this part of the case centers on the ability to seek damages “due and owed. ..” under the contract.   While the court’s original opinion held there was no waiver of immunity, this opinion analyzed the notice provision under the contract for claims. The court held that since the notice provision can be waived, it becomes more like an affirmative defense which cannot be determined on a plea to the jurisdiction. Justice Alvarez, who dissented in the withdrawn opinion, concurred in this opinion (found here), but wrote separately to emphasis Casey presented evidence to at least create a fact issue as to whether or not additional work was ordered to be performed, thereby triggering certain provisions of the contract for payment.

If you would like to read this opinion click here. Panel: Chief Justice Marion, Justice Alvarez, and Justice Pulliam.  Opinion by Chief Justice Marion.  The attorneys listed for CPS are Annalyn Garrett Smith and Judith Reed Blakeway.  The attorneys listed for Casey are Nissa M. Dunn, John Claiborne Howell, and Samuel V. Houston, III.