Wheelabrator Air Pollution Control, Inc. v. City of San Antonio (Opinion)
Annotate this CasePlaintiff entered into an agreement with Defendant, a municipality, to install pollution control equipment at a power plant. Plaintiff fully performed the agreement, but Defendant withheld the retainage from Plaintiff. Consequently, Plaintiff filed a breach of contract action against Defendant and requested reasonable and necessary attorney’s fees, costs, and interest. Defendant filed a plea to the jurisdiction seeking dismissal of Plaintiff’s claims for attorney’s fees for lack of jurisdiction, arguing that attorney’s fees were outside the scope of statutorily-waived immunity as Tex. Local Gov’t Code 271.152 was written at the time of the agreement. In response, Plaintiff argued that Defendant had no immunity from suit because it was performing a proprietary function in its dealings with Plaintiff. The trial court granted Defendant’s plea to the jurisdiction and dismissed Plaintiff’s claims for attorney’s fees. The court of appeals affirmed. The Supreme Court reversed, holding (1) Defendant was performing a proprietary function and, therefore, was not immune from suit based on governmental immunity; and (2) a claim for attorney’s fees arising from those proprietary actions does not implicate governmental immunity.
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