Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, January 16, 2015

Common-law marriage in Texas - Elements of Proof


ESSENTIAL ELEMENTS OF AN INFORMAL MARRIAGE IN TEXAS 

It's commonly called common-law marriage, but the legal term is informal marriage. As a further complication, an informal marriage can be made formal by registration, but often an informal marriage is claimed after one of the "spouses" has died, i.e. when an inheritance-dispute arises, or some related matter that is affected by spouse-status. At that time the alleged spouse is no longer available to clarify the matter; not to mention that it's too late for registration. In any event, the issue of whether a legal marriage existed often only becomes an issue once the alleged spouse is deceased, i.e. in the context of a dispute over the estate. 

In a recent case of this nature, one of the two Houston Court of Appeals recites the elements of an informal marriage and states that it is a fact question. That can make for interesting issues at trial, such as the meaning of the deceased's reference to the surviving significant-other as his "old lady". Did that mean wife, or just girl friend? The opinion does not delve into the question of whether "old lady" and "girl" (as in girl friend) can be reconciled, or are mutually exclusive. Nor does it resolve the semantic issues regarding the "old lady" appellation. It does not address whether testimony about what the dead man called his companion is hearsay either, but it does recite the elements of proof, and that's what is important for the purposes of this blawg:   


An informal or common-law marriage exists in Texas if the parties (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) there presented to others that they were married. See Tex. Fam. Code Ann. § 2.401(a)(2) (West 2006); Mills v. Mest, 94 S.W.3d 72, 73 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). The existence of an informal marriage is a fact question, and the party seeking to establish the existence of the marriage must prove the three elements by a preponderance of the evidence. Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.-Houston [14th Dist.] 1993, no pet.). An informal marriage does not exist until the concurrence of all three elements. Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).

SOURCE:  FOURTEENTH COURT OF APPEALS - No. 14-13-00816-CV - 1/8/2015  

The resolution of the conflicting evidence turned on witness credibility and the weight given to the evidence. It was within the trial judge's purview to resolve these conflicts. Small, 352 S.W.3d at 284; see, e.g., In re Estate of Walker, No. 02-08-00371-CV, 2009 WL 1996301, at *4 (Tex. App.-Fort Worth July 9, 2009, no pet.) (mem. op.). The trial court resolved the conflicting evidence by finding that [person claiming to be the wife] and the decedent had not entered into an informal marriage. After viewing all of the evidence, we cannot say the evidence supporting the trial court's findings is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, the evidence is factually sufficient to support the trial court's findings.




Wednesday, December 31, 2014

Cases cited for breach-of-contract elements in 2014


FIRST COURT OF APPEALS IN HOUSTON

The essential elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. E.g., N. & W. Ins. Co. v. Sentinel Inv. Grp., LLC, 419 S.W.3d 534, 539 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

SOURCE: FIRST COURT OF APPEALS IN HOUSTON - 01-13-00855-CV - 12/30/2014 

DALLAS COURT OF APPEALS 

The elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 838 (Tex.App.-Dallas 2014, no pet.).

ASSIGNABILITY OF CONTRACTS

Generally, all contracts are assignable. See Crim Truck & Tractor Co. v. Navistar Int'l Transp. Co., 823 S.W.2d 591, 596 (Tex. 1992); In re FH Partners, L.L.C., 335 S.W.3d 752, 761 (Tex. App.-Austin 2011, no pet.).

CORPUS CHRISTI COURT OF APPEALS

To prevail on a breach of contract action, the plaintiff must prove the following elements: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. See Keszler v. Mem'l Med. Ctr. of E. Tex., 105 S.W.3d 122, 128 (Tex. App.-Corpus Christi 2003, no pet.).

TEXARKANA COURT OF APPEALS

"The elements of a breach of contract claim are (1) the existence of a valid contract, (2) the plaintiff's performance or tendered performance, (3) the defendant's breach of the contract, and (4) damages as a result of the breach." Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 658 (Tex. App.-Dallas 2012, no pet.).




Tuesday, December 30, 2014

Conversion (2014 case law)


CONVERSION - DEFINITION AND ELEMENTS OF PROOF 

Conversion is the wrongful exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights. Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971). A plaintiff suing for conversion must prove that (1) the plaintiff owned, possessed, or had the right to immediate possession of personal property; (2) the defendant exercised dominion and control over the property in an unlawful and unauthorized manner, (3) the defendant refused plaintiff's demand for return of the property; and (4) the plaintiff suffered injury. Cluck v. Mecom, 401 S.W.3d 110, 116 (Tex. App.-Houston [14th Dist.] 2011, pet. denied); Robin Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 97 (Tex. App.-Houston [14th Dist.] 2011, no pet.).

SOURCE: HOUSTON COURT OF APPEAL - 14-13-00113-CV - 7/15/2014


Constructive Trust (2014 caselaw snips)


THE EQUITABLE REMEDY OF CONSTRUCTIVE TRUST 

A constructive trust is an equitable remedy created by the courts to prevent unjust enrichment. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.-San Antonio 2007, pet. denied) (internal citations omitted).

"A constructive trust is a relationship with respect to property, subjecting the person by whom the title to the property is held to an equitable duty to convey it to another, on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property." Id. (quoting Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158, 160 (1943)).

As an equitable remedy, the decision to impose a constructive trust, along with its scope and application, is within the trial court's discretion. Id.; see Carr v. Weiss, 984 S.W.2d 753, 767 (Tex. App.-Amarillo 1999, pet. denied) (suggesting a jury finding is not necessary to support imposition of a constructive trust).

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014




Monday, December 29, 2014

Suit to Quiet Title - Elements of Proof


SUIT TO QUIET TITLE REQUIREMENTS

To prevail in a suit to quiet title, a plaintiff must prove: (1) he has an interest in a specific property; (2) title to the property is affected by a claim by the defendant; and (3) the claim, although facially valid, is invalid or unenforceable. See, e.g., Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.-El Paso 2012, pet. denied); see also U.S. Nat'l Bank Ass'n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *3 (Tex. App.-Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.).

"[T]o contest a bank's foreclosure of a deed of trust, a party must, at the time of the foreclosure, either (1) be the mortgagor under the deed of trust or be in privity with the mortgagor, or (2) have an ownership interest in the property affected by the foreclosure." Ursic v. NBC Bank S. Tex., N.A., 827 S.W.2d 334, 336 (Tex. App.-Corpus Christi 1991, writ denied) (citing Goswami v. Metropolitan Sav., 751 S.W.2d 487, 489 (Tex. 1988)). And the plaintiff must recover on the strength of his own title, not on the weakness of his adversary's title. Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex. App.-Corpus Christi 2001, no pet.) (citing Alkas v. United Sav. Ass'n of Tex., Inc., 672 S.W.2d 852, 857 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.)).

He "must allege right, title or ownership in himself with sufficient certainty to enable the court to see that plaintiff has a right of ownership that will warrant judicial interference." Ellison v. Butler, 443 S.W.2d 886, 888-89 (Tex. Civ. App.-Corpus Christi 1969, no writ); see Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.-Beaumont 2000, pet. denied). The plaintiff has the burden of supplying the proof necessary to establish his superior equity and right to relief. Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 387-88 (Tex. App.-Houston [1st Dist.], pet. denied) (op. on reh'g); Ellison, 443 S.W.2d at 888-89.

SOURCE: CORPUS CHRISTI COURT OF APPEALS - Nos. 13-12-00474-CV, 13-12-00753-CV - 2/13/2014


Sunday, December 28, 2014

The One Satisfaction Rule in Texas


THE ONE SATISFACTION RULE IN TEXAS 

"The one satisfaction rule applies to prevent a plaintiff from obtaining more than one recovery for the same injury." Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991); see also Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). Under this rule, a plaintiff is entitled to one recovery for damages suffered when multiple defendants commit the same act as well as when multiple defendants commit technically different acts resulting in a single injury. Casteel, 22 S.W.3d at 390. A court can grant summary judgment based on the one satisfaction rule. See El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 363 (Tex. 1993) (per curiam).

The one satisfaction rule is grounds for granting summary judgment when (1) the one satisfaction rule applies, (2) the credit sought by the defendant entirely sets off the maximum compensatory liability claimed by the plaintiff, and (3) punitive damages are not at issue. Cohen v. Arthur Andersen, L.L.P., 106 S.W.3d 304, 309-10 (Tex. App.-Houston [1st Dist.] 2003, no pet.).

SOURCE: FOURTEENTH COURT OF APPEALS HOUSTON - No. 14-13-00113-CV - 7/15/2014

PUNITIVE DAMAGES ARE A DIFFERENT MATTER 

"The `one satisfaction rule' is usually inapplicable to punitive damage awards because punitive damages do not concern compensation; they are, instead, intended to punish the wrongdoer and to deter future similar acts." Universal Servs. Co. v. Ung, 882 S.W.2d 460, 467 (Tex. App.-Houston [14th Dist.] 1994), rev'd on other grounds, 904 S.W.2d 638 (Tex. 1995); see Casteel, 22 S.W.3d at 391 ("A nonsettling defendant cannot receive credit for settlement amounts representing punitive damages."); Ratner v. Sioux Natural Gas Corp., 719 F.2d 801, 804 (5th Cir. 1983) ("The purpose of the [one satisfaction] rule is to ensure that a plaintiff receives no more than full compensation for his loss. A plaintiff awarded punitive damages has been given the right to receive more than `one satisfaction.'" (citations omitted)). Punitive damage calculations are based on the award of compensatory damages, not the amount actually recovered. See Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (West 2008); Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 458 (Tex. App.-El Paso 2006, no pet.). Consequently, a plaintiff would be entitled to recover punitive damages based on an award of compensatory damages even though his ability to recover compensatory damages is entirely offset by a credit based on the one satisfaction rule. See Gilcrease, 211 S.W.3d at 458-59.

Saturday, December 27, 2014

Standing as consumer under the DTPA


WHO MAY SUE UNDER THE DECEPTIVE TRADE PRACTICES ACT? 

To have standing to sue under the DTPA, a party must be a consumer. TEX. BUS. & COM. CODE ANN. § 17.50(a). To be a consumer under the DTPA, a party must show that he sought or acquired goods or services by purchase or lease. Id. § 17.45(4) (defining "consumer"). And he must show that the goods or services purchased or leased form the basis of the complaint. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex. 1987); Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex. 1985).

The purpose of making misrepresentations actionable under the DTPA "is `to ensure that descriptions of goods or services offered for sale are accurate.'" Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 480 (Tex. 1995) (quoting Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980)). The DTPA does not require the consumer to be the person who actually purchased or leased the services. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) ("Privity of contract with a defendant is not required for the plaintiff to be a consumer."); Kennedy, 689 S.W.2d at 892-93 (DTPA's language does not require "that the consumer must himself be the one who purchases or leases" the goods or services).

SOURCE: DALLAS COURT OF APPEALS - 05-12-01607-CV - 5/5/2014

McLeod does not cite authority for his argument that Gyr cannot establish standing to sue because he received the money he used to acquire McLeod's services from other people and did not personally lose "a dollar." Gyr testified, however, that he acquired McLeod's legal services for the purpose of filing an N-400 application to become a naturalized United States citizen, and his complaint arises from false representations made in connection with the purchase of those services. Regardless of the source of the funds or Gyr's obligation to repay them, Gyr is a consumer under the DTPA and has standing to sue McLeod. See Kennedy, 689 S.W.2d at 892-93; Bus. Staffing, Inc. v. Viesca, 394 S.W.3d 733, 742-43 (Tex. App.-San Antonio 2012, no pet.).  

Friday, December 26, 2014

When must attorney's fees be segregated?


FEE SEGREGATION REQUIREMENT

Where a party seeks attorney's fees in a case where some claims permit the recovery of fees and others do not, the party must segregate and exclude the fees for services related to the claims for which fees are not recoverable unless the discrete legal services advanced both the recoverable claim and the unrecoverable claim. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006).

GENERAL RULE AND EXCEPTION TO RULE

The general rule is that a party seeking to recover attorney's fees in a suit involving multiple claims or parties has a duty to segregate the fees owed. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex. 1991). A recognized exception to the duty to segregate arises when the attorney's fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their "prosecution or defense entails proof or denial of essentially the same facts." Id. at 11 (quoting Flint & Assocs. v. Intercont'l Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.-Dallas 1987, writ denied)). When the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are intertwined to the point of being inseparable, the party suing for attorney's fees may recover the entire amount covering all claims. See id. at 11-12.

CASES:

Amerada Hess Corp. v. Wood Group Prod. Tech., 30 S.W.3d 5, 14 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (remanding where no evidence presented to support exception to duty to segregate)

Oadra v. Stegall, 871 S.W.2d 882, 888 (Tex. App.-Houston [14th Dist.] 1994, no writ) ("We have reviewed the entire record and after such review conclude that the attorney's fees in this case were not capable of segregation. The testimony in the record supports the finding that the issues and parties in this case were so intertwined that they were inseparable.").

SOURCE: FOURTEENTH COURT OF APPEALS - Nos. 14-13-00086-CV, 14-13-00088-CV - 5/15/2014


Wednesday, December 24, 2014

Causation and Foreseeability in legal malpractice action


Causation — Foreseeability

The causation element of a professional negligence claim is met when a jury is presented with pleading and proof that establishes a direct causal link between the actions of the attorney, the injury suffered, and the damages awarded. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex. 1995).

Proximate cause consists of two elements — cause in fact and foreseeability — neither of which can be established by mere conjecture, guess, or speculation. Akin, Gump, 299 S.W.3d at 122; Doe, 907 S.W.2d at 477. Cause in fact is established by proof that the negligent act or omission was a substantial factor in bringing about the injury and without which the harm would not have occurred. Akin, Gump, 299 S.W.3d at 122; Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

The test for foreseeability is whether "the actor, as a person of ordinary intelligence, should have anticipated the dangers that [his] negligent conduct created for others." Byrd, 891 S.W.2d at 701 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985)). Generally, a third party's criminal conduct is a superseding cause which relieves the negligent actor from liability. Byrd, 891 S.W.2d at 701; Nixon, 690 S.W.2d at 550. However, the actor's negligence will not be excused where the criminal conduct is a foreseeable result of the actor's negligence. Byrd, 891 S.W.2d at 701; Nixon, 690 S.W.2d at 550.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014

Tuesday, December 23, 2014

Statute of limitations and attorney malpractice: special tolling rule


LEGAL MALPRACTICE CLAIMS ARE GOVERNED BY A TWO YEAR LIMITATIONS PERIOD, BUT WHEN DOES THAT START TO RUN? 

A two-year statute of limitations governs legal malpractice claims. TEX.CIV. PRAC. & REM. CODE ANN. § 16.003 (West Supp. 2014); Willis v. Maverick,760 S.W.2d 642, 644 (Tex. 1988). The statute of limitations begins to run when the claim accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. A legal malpractice claim accrues when the client sustains a legal injury or, in cases
governed by the discovery rule, when the client discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of the claim. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. 1991); Nowak v. Pellis, 248 S.W.3d 736, 739 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

EQUITABLE TOLLING EXTENSION

However, in Hughes, the Texas Supreme Court established an equitable tolling rule for the statute of limitations in legal malpractice cases: “[W]hen an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted.” 821 S.W.2d at 157.

SOURCE: FIRST COURT OF APPEALS - 01-13-00962-CV - 12/23/2014  

Who may bring legal malpractice claim?


ATTORNEY-CLIENT RELATIONSHIP REQUIRED TO SUE FOR LEGAL MALPRACTICE

A legal malpractice claim is dependent on the existence of an attorney-client relationship. Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996) (attorney owes a duty of care only to his client, and privity rule requires this relationship as a predicate for legal malpractice claim); Gamboa v. Shaw, 959 S.W.2d 662, 664-65 (Tex. App.-San Antonio 1997, no pet.); see Swank v. Cunningham, 258 S.W.3d 647, 666 (Tex. App.-Eastland 2008, pet. denied) (applying privity rule).

Therefore, we must first determine whether an attorney-client relationship existed between Sloan and Gonzalez/the Law Office.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014

The existence of an attorney-client relationship gives rise to a duty on the attorney's part to act with ordinary care, in other words, in a manner consistent with the standard of care expected to be exercised by a reasonably prudent attorney. Cosgrove, 774 S.W.2d at 664. An attorney must use "the utmost good faith in dealings with the client" and "reasonable care in rendering professional services to the client." Byrd, 891 S.W.2d at 700; see also Meyer v. Cathey, 167 S.W.3d 327, 330-31 (Tex. 2005) (per curiam) (in a formal relationship such as an attorney-client relationship a fiduciary duty arises as a matter of law). See TEX. DISCIPLINARY R. PROF'L CONDUCT §§ 1.01-8.05, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G, App. A, art. X (West 2013 & Supp. 2014) (rules defining attorney's responsibilities within an attorney-client relationship). An attorney's failure to exercise "that degree of care, skill, and diligence that a lawyer of ordinary skill and knowledge commonly possesses and exercises" gives rise to a legal malpractice or professional negligence claim.[6] Cosgrove, 774 S.W.2d at 664-65 (complaints about an attorney's care, skill, or diligence in representing a client implicate this duty of ordinary care and sound in negligence).

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014

The Texas rule against fracturing a negligence claim prevents legal malpractice plaintiffs from dividing a claim that sounds only in negligence into other claims in order to benefit from a longer limitations period, the availability of treble damages, or "other tactical advantages." Riverwalk, 391 S.W.3d at 236; Beck, 284 S.W.3d at 427; see Deutsch v. Hoover, Bax & Slovacek, 97 S.W.3d 179, 189 (Tex. App.-Houston [14th Dist.] 2002, no pet.). When the real issue is whether the professional exercised that degree of care, skill and diligence that professionals of ordinary skill and knowledge commonly possess and exercise, then the complaint may not be "fractured" into separate claims for negligence, breach of fiduciary duty, fraud, breach of contract, or DTPA. Beck, 284 S.W.3d at 426-27; Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.-Fort Worth 2002, pet. denied).

The rule against fracturing does not, however, preclude a client from asserting causes of action other than negligence against an attorney if those other claims are supported by the facts. Riverwalk, 391 S.W.3d at 236; Murphy, 241 S.W.3d at 695; Deutsch, 97 S.W.3d at 189; see also Beck, 284 S.W.3d at 427-28 (noting the fracturing rule does not necessarily bar the simultaneous assertion of negligence and non-negligence claims that are predicated on some "common or overlapping facts"); Deutsch, 97 S.W.3d at 190. However, the client must do more than "merely reassert the same claim for legal malpractice under an alternative label." Beck, 284 S.W.3d at 427 (quoting Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App.-Houston [14th Dist.] 2008, no pet.)). If the "gist" of the complaint is that the attorney did not exercise the degree of care, skill, or diligence that attorneys of ordinary skill and knowledge commonly possess and exercise, then the complaint should be pursued as a negligence claim rather than as some other claim. Riverwalk, 391 S.W.3d at 236; Beck, 284 S.W.3d at 427-28; Deutsch, 97 S.W.3d at 189-90. Claims regarding the quality of the lawyer's representation of the client are professional negligence claims. Murphy, 241 S.W.3d at 696-97; Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274-75 (Tex. App.-Austin 2002, pet. denied) (if the ultimate issue is whether there has been a breach of duty leading to damages, then the claim constitutes a negligence claim).

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00239-CV - 8/29/2014

Monday, December 22, 2014

Governmental immunity from suit and statutory exception for some contract claims against local government entities


GOVERNMENTAL IMMUNITY AND LIMITED WAIVER UNDER THE LOCAL GOVERNMENT CODE 

Governmental immunity has two components: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit is a bar to the suit in its entirety. Id. When a governmental entity enters into a contract, it waives immunity from liability; however, that waiver of liability does not establish waiver of immunity from suit. For there to be waiver of immunity from suit, the Legislature must specifically provide for the waiver. See Tooke, 197 S.W.3d at 332-33 (requiring clear and unambiguous language for waiver of governmental immunity).

Texas Local Government Code Section 271.152, entitled "Waiver of Immunity to Suit for Certain Claims," provides:

A local governmental entity that is authorized by statute 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. Local Gov't Code § 271.152 (West 2005) (Emphasis added).

Section 271.151 defines "governmental entity" as "a political subdivision of this State . . . including a . . . public school district." Tex. Local Gov't Code § 271.151(3) (West 2005); see also Witchita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003); Gatesco Q.M., Ltd. v. City of Houston, 333 S.W.3d 338, 348 n.7 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

Section 271.151(2) defines "contract subject to this subchapter" as:
a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity."
Tex. Loc. Gov't Code § 271.151(2) (West 2005) (Emphasis added).
Section 271.153, entitled "Limitation on Adjudication Awards," provides the total amount of money awarded in a breach-of-contract action brought against a governmental entity is limited to "the balance due and owed by the local governmental entity under the contract . . . ." Tex. Loc. Gov't Code § 271.153(a) (West 2005) (Emphasis added). Thus, the party seeking to establish waiver must allege a local governmental entity is involved, the entity entered into a contract subject to the subchapter, and the adjudication involves the breach of that contract.

SOURCE: FOURTEENTH COURT OF APPEALS - 14-13-00882-CV - 11/6/2014

WAIVER OF GOVERNMENTAL IMMUNITY UNDER SECTION 271.152

TEX. LOC. GOV'T CODE ANN. § 271.152 (West, Westlaw through 2013 3d C.S.).

Under section 271.152 of the Texas Local Government Code, "A local governmental entity that is authorized by statute 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 . . . ." Id. "`Contract subject to this subchapter' means a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity." Id. § 271.151(2) (West, Westlaw through 2013 3d C.S.). "Local governmental entity" includes public school districts such as BISD. Id. § 271.151(3)(B). By entering into a written contract stating the essential terms of an agreement to provide insurance services, a government entity waives its immunity from suit. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex. 2006).

SOURCE: CORPUS CHRISTI COURT OF APPEALS - No. 13-11-00270-CV - 4/30/2014