Opinion
NO. 02-15-00017-CV
03-31-2016
CITY OF COLLEYVILLE AND CITY OF KELLER APPELLANTS v. MICHAEL S. NEWMAN APPELLEE
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 2014-005143-3 CONCURRING MEMORANDUM OPINION
While I agree with the majority opinion's conclusion that the trial court erred by denying the plea to the jurisdiction filed by appellants City of Colleyville and City of Keller (the Cities), I write separately to emphasize the basis of this holding: Newman did not satisfy his burden to allege that the Cities waived immunity from suit by failing to specifically plead for allowable damages under the limited waiver of immunity provided in the Local Government Contract Claims Act (the Act). See Tex. Loc. Gov. Code Ann. §§ 271.151-.160 (West 2005 & Supp. 2015).
Newman had the burden to plead facts showing that the Cities waived immunity and that the trial court, therefore, had subject-matter jurisdiction over his breach-of-contract claim. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Weir Bros., Inc. v. Longview Econ. Dev. Corp., 373 S.W.3d 841, 847 (Tex. App.—Dallas 2012, no pet.). As the majority opinion recognizes, for the trial court to have jurisdiction, Newman must have affirmatively pleaded for the types of damages authorized by section 271.153 because such allowable damages are a necessary component of the limited waiver of immunity from suit provided by the Act. See Tex. Loc. Gov't Code Ann. § 271.153; Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cty., 449 S.W.3d 98, 109-10 (Tex. 2014).
In response to the Cities' plea to the jurisdiction, Newman amended his petition and broadly pleaded for additional compensation and benefits not provided for in his contract with the Cities based on the IRS's determination that he was an employee of the Cities and not an independent contractor. Newman's factual allegations do not in any manner plead for damages authorized by section 271.153: the "balance due and owed" by the Cities under the contract, the amount owed for change orders or additional work requested by the Cities in connection with the contract, attorney's fees, or allowable interest. See Tex. Loc. Gov't Code Ann. § 271.153(a). Newman's pleaded damages—which are in addition to the compensation agreed to by the parties in their contract—are consequential damages not included in the Act's limited waiver of immunity from suit. See Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 413 (Tex. 2011) ("The kind of damages sought by Sharyland were not those provided for or contemplated in the [contract] and are not a 'balance due and owed' under that contract."); Tooke v. City of Mexia, 197 S.W.3d 325, 346 (Tex. 2006) (holding lost profits from additional work "are consequential damages excluded from recovery under [section 271.153]"). Therefore, Newman's amended petition failed to meet his pleading burden to allege a waiver of the Cities' asserted immunity encompassed by the Act and "affirmatively negate[d] the existence of jurisdiction." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). As a result, the trial court erred by denying the Cities' plea to the jurisdiction.
With these additional comments, I concur in the majority opinion.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE MEIER, J., joins. DELIVERED: March 31, 2016
See Tex. R. App. P. 47.4.