Parties cannot contract to reinstate immunity waived under Chapter 271 of Local Government Code

City of Willow Park, Texas v. E.S. & C.M., Inc, 02-13-00272-CV (Tex. App. – Fort Worth, February 6, 2014)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a breach of contract case where the Fort Worth Court of Appeals reversed in part and affirmed in part.

E.S. & C.M, Inc. is an engineering firm which contracted with the City for services (feasibility reports on water development) and asserted the contract obligated the City to pay approximately $1.1M in installments which the City failed to do.  The City asserted it had pending lawsuits against it and could not fund the project as anticipated because the Texas Water Development Board would not fund the treatment plant while lawsuits existed. E.S. & C.M. brought breach of contract and quantum meruit claims. The City countersued alleging E.S. & C.M. falsely represented they could obtain funding.  The City filed a plea to the jurisdiction which the trial court denied.

The Fort Worth Court of Appeals held that regardless of the fact the contract expressly states the parties agree the City does not waive any immunity, Tex. Loc. Gov’t Code Ann. § 271.152 does and the contract cannot override the waiver.  As to the issue of attorney’s fees, while §271.153 currently allows for such fees, it did not in 2008 when the contract was executed.  The issue of attorney’s fees is jurisdictional so the plea should have been granted as to such fees. Finally, regardless of Chapter 271, the City retains immunity from all quantum meruit claims so the plea should have been granted as to those claims.

If you would like to read this opinion click here. Panel: LIVINGSTON, C.J.; DAUPHINOT and WALKER. Opinion by Chief Justice Livingston. The attorney listed for the City is David L. Pratt, II. The attorney listed for E.C. & C.M. is John R. DeVoss.