Texas Municipal League Joint Self-Insurance Fund, and Texas Municipal League Intergovernmental Risk Pool v. Housing Authority of City of Alice ( 2015 )

ACCEPTED
04-15-00069-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/16/2015 9:12:23 AM
KEITH HOTTLE
CLERK
NO. 04–15-00069-CV
FILED IN
In the Fourth Court of Appeals,4thSANCOURT OF APPEALS
ANTONIO, TEXAS
San Antonio, Texas 04/16/2015 9:12:23 AM
KEITH E. HOTTLE
Clerk
Texas Municipal League Joint Self-Insurance Fund a/k/a
The Texas Municipal League Intergovernmental Risk Pool
Appellant
vs.
Housing Authority of the City of Alice, Texas
Appellee
Appeal from the 79th Judicial District Court
Jim Wells County, Texas, No. 14-10-53721-CV
The Honorable David Sanchez, Presiding Judge
APPENDIX TO APPELLANT’S BRIEF
Barry Abrams
State Bar No. 00822700
Jack W. Higdon
State Bar No. 24007360
BLANK ROME LLP
700 Louisiana, Suite 4000
Houston, TX 77002-2727
(713) 228-6601
(713) 228-6605 (Fax)
ATTORNEYS FOR APPELLANT
TEXAS MUNICIPAL LEAGUE JOINT
SELF-INSURANCE FUND A/K/A THE TEXAS
MUNICIPAL LEAGUE INTERGOVERNMENTAL
RISK POOL
ORAL ARGUMENT REQUESTED
Tab A Interlocal Agreement (CR 71-76)
Tab B Property Coverage Document (CR 78-125)
Tab C Order Selecting Umpire (CR 284)
Tab D The Local Government Contract Claims Act (the “Act”) (TEX.
LOC. GOV’T CODE §§271.151, et seq.) excerpts
– Act §271.152
– Act §271.153
– Act §271.154
Tab E TEX. GOV’T CODE excerpts
– Act §791.001
– Act §791.011(a)
– Act §311.034
Respectfully submitted,
By: /s/ Barry Abrams
Barry Abrams
State Bar No. 00822700
Babrams@BlankRome.com
Jack W. Higdon
State Bar No. 24007360
Jhigdon@BlankRome.com
BLANK ROME LLP
700 Louisiana, Suite 4000
Houston, Texas 77002
(713) 228-6601
(713) 228-6605 (Fax)
ATTORNEYS FOR APPELLANT
TEXAS MUNICIPAL LEAGUE JOINT
SELF-INSURANCE FUND A/K/A THE TEXAS
MUNICIPAL LEAGUE INTERGOVERNMENTAL
RISK POOL
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was forwarded to the
following counsel of record by email and United States First Class Mail, certified,
return receipt requested, on April 16, 2015:
Via Email & Certified Mail,
RRR No. 70071490000022311663
Mr. Anthony Constant
CONSTANT LAW FIRM
One Shoreline Plaza
800 N. Shoreline Blvd, Suite 2700 South
Corpus Christi, Texas 78401
Fax: 361-887-8010
/s/ Barry Abrams
Barry Abrams
TAB “A”
71
72
73
74
75
76
TAB “B”
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
TAB “C”
284
TAB “D”
TEX. LOC. GOV’T CODE §271.152. Waiver of Immunity to Suit for Certain Claims
A local governmental entity that is authorized by statue or the constitution to enter into
a contract and that enters into a contract subject to this subchapter waives sovereign
immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject
to the terms and conditions of this subchapter.
TEX. LOC. GOV’T CODE §271.153. Limitations on Adjudication Awards
(a) Except as provided by Subsection (c), the total amount of money awarded in an
adjudication brought against a local governmental entity for breach of a contract
subject to this subchapter is limited to the following:
(1) the balance due and owed by the local governmental entity under the contract as
it may have been amended, including any amount owed as compensation for the
increased cost to perform the work as a direct result of owner-caused delays or
acceleration;
(2) the amount owed for change orders or additional work the contractor is directed
to perform by a local governmental entity in connection with the contract;
(3) reasonable and necessary attorney’s fees that are equitable and just; and
(4) interest as allowed by law, including interest as calculated under Chapter 2251,
Government Code.
(b) Damages awarded in an adjudication brought against a local governmental entity
arising under a contract subject to this subchapter may not include:
(1) consequential damages, except as expressly allowed under Subsection (a)(1);
(2) exemplary damages; or
(3) damages for unabsorbed home office overhead.
(c) Actual damages, specific performance, or injunctive relief may be granted in an
adjudication brought against a local governmental entity for breach of a contract
described by Section 271.151(2)(B) [which deals with contract for sale/delivery of
reclaimed water].
TEX. LOC. GOV’T CODE §271.154. Contractual Adjudication Procedures Enforceable
Adjudication procedures, including requirements for serving notices or engaging in
alternative dispute resolution proceedings before bringing a suit or an arbitration
proceeding, that are stated in the contract subject to this subchapter or that are established
by the local governmental entity and expressly incorporated into the contract or
incorporated by reference are enforceable except to the extent those procedures conflict
with the terms of this subchapter.
TAB “E”
TEX. GOV’T CODE §791.001. Purpose
The purpose of this chapter is to increase the efficienty and effectiveness of local
governments by authorizing them to contract, to the greatest possible extent, with one
another and with agencies of the state.
TEX. GOV’T CODE §791.011(a). Contracting Authority; Terms
(a) A local government may contract or agree with another local government or a
federally recognized Indian tribe, as listed by the United States secretary of the
interior under 25 U.S.C. Section 479a-1, whose reservation is located within the
boundaries of this state to perform governmental functions and services in accordance
with this chapter...
TEX. GOV’T CODE §311.034. Waiver of Sovereign Immunity
In order to preserve the legislature’s interest in managing state fiscal matters through
the appropriations process, a statute shall not be construed as a waiver of sovereign
immunity unless the waiver is effected by clear and unambiguous language. In a statue,
the use of “person,” as defined by Section 311.005 to include governmental entities, does
not indicate legislative intent to waive sovereign immunity unless the context of the statute
indicates no other reasonable construction. Statutory prerequisites to a suit, including the
provision of notice, are jurisdictional requirements in all suits against a governmental
entity.