Harris County Flood Control District v. Great American Insurance Compamy--Appeal from 157th District Court of Harris County
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Reversed in Part and Dismissed, Affirmed in Part and Remanded, and Majority and
Dissenting Opinions filed February 25, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-09-00571-CV
___________________
HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant
V.
GREAT AMERICAN INSURANCE COMPANY, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2008-19859
DISSENTING OPINION
I respectfully dissent, in part.
I agree with the Majority’s disposition of issue one dealing with quantum meruit.
However, I disagree with the Majority’s disposition of issue two dealing with attorney’s
fees.
We all agree that Section 271.152 of the Local Government Code waives
governmental ―immunity from suit‖ for breach of contract. See City of Houston v.
Petroleum Traders Corp., 261 S.W.3d 350, 359 (Tex. App.-Houston [14th Dist.] 2008, rule
53.7(f) motion granted). ―Breach of contract‖ is a ―cause of action‖. In contrast, a claim
for attorney’s fees is not a ―cause of action‖; rather it is a remedy arising out of a cause of
action. With regard to attorney’s fees, the only immunity issue would be whether the
governmental entity is ―immune from liability‖ for attorney’s fees. The present case only
involves issues of ―immunity from suit‖, not ―immunity from liability‖.
If a
governmental entity can be sued for breach of contract, as here, then it can be sued for
damages; the types of damages that can be recovered from the governmental entity, such as
attorney’s fees, depends on whether the entity has waived ―immunity from liability‖ for
such damages.
I agree with the reasoning of the Court, regarding claims for attorney’s fees, in State
v. Mid-South Pavers, Inc., 246 S.W. 3d 711, 729-30 (Tex. App.—Austin 2007, no pet.). I
disagree with McMahon Contracting, L.P. v. City of Carrolton, 277 S.W.3d 458, 465-66
(Tex. App. –Dallas 2009, no pet.), to the extent McMahon conflicts with Mid-South.
I would sustain appellant’s issue one, and overrule appellant’s issue two.
Accordingly, I would reverse the trial court’s denial of appellant’s Plea to the Jurisdiction
on appellee’s quantum meruit cause of action, I would affirm the trial court’s denial of
appellant’s Plea to the Jurisdiction regarding attorney’s fees, and I would remand the case
for further proceedings.
/s/
Margaret Garner Mirabal
Senior Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Mirabal.1 (Hedges, CJ.
majority.)
1
Senior Justice Margaret Garner Mirabal sitting by assignment.
2
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