Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lower Valley Water District v. Danny Sander Construction, Inc.

Court of Appeals of Texas, Eighth District, El Paso

July 10, 2019

LOWER VALLEY WATER DISTRICT, Appellant,
v.
DANNY SANDER CONSTRUCTION, INC., Appellee.

          Appeal from the 448th District Court of El Paso County, Texas (TC# 2017-DCV2643)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         In this interlocutory appeal, Lower Valley Water District appeals the trial court's denial of its plea to the jurisdiction. In its sole issue on appeal, the District contends the trial court lacks subject matter jurisdiction over the Appellee's breach of contract claim to the extent the claim is based on an amendment to the contract that was never incorporated into the contract. We affirm.

         BACKGROUND

         This case arises from a denial of a plea to the jurisdiction filed by a local government entity in a suit against it for breach of contract. Lower Valley Water District ("LVWD") provides water, wastewater, and solid waste services to residents in the southeastern portion of El Paso County, Texas.[1] In 2014, LVWD solicited bids from contractors for the construction of water lines and other improvements for a construction project located in the town of Clint, Texas and surrounding areas.

         Danny Sander Construction, Inc. was the successful bidder on the project. Danny Sander and LVWD entered into a written contract for the improvements in August 2015. The contract generally required Danny Sander to complete all work as specified or indicated in the "Contract Documents" by furnishing all labor, materials, transportation, and services for the construction of water lines and other improvements and related activities. Danny Sander was to be paid $1, 948, 745.00 for the project improvements. The contract provided that it could be amended by a change order or a "Work Change Directive." The contract also provided that LVWD could terminate the contract for convenience and that Danny Sander would be paid for work and expenses sustained prior to the termination.

         Danny Sander commenced work on the project in January 2016. A change order was proposed in May 2016 in which the water line under construction would be extended from Clint to Fenter Road at a cost of $110, 170.00. This first change order, Change Order 1, was presented to the LVWD Board, which approved the change order contingent upon release of funds from the Texas Water Development Board. A second change order for $11, 929.58 was presented to the LVWD Board, Change Order 2, which the Board also approved contingent upon release of funds.

         Funds for Change Order 2 were approved by the Texas Water Development Board and Danny Sander completed the improvements contemplated by that order in September 2016. Funds for Change Order 1, however, were not approved. On February 2, 2017, LVWD sent an email to Danny Sander notifying it that, due to problems acquiring a right of entry to the site and problems encountered in a probate-court proceeding, they would be shutting down the project. On March 6, 2017, Danny Sander sent LVWD a summary of expenses incurred from September 2016 through February 2017, totaling $163, 418.45. The expenses were based on labor, equipment, and overhead loss. LVWD refused Danny Sander's request that it pay the invoiced expenses.

         Danny Sander filed suit in August 2017, asserting breach of contract for the unpaid expenses of $163, 418.45. He also asserted a claim for withholding of retainage for the project in the amount of $17, 808.70. LVWD filed a plea to the jurisdiction, asserting it had not waived governmental immunity for the $163, 418.45 in expenses because they were completely based on Change Order 1, which was never incorporated into the contract. Danny Sander filed a response to the plea, asserting it was not seeking to recover any amounts for work performed in connection with Change Order 1 and acknowledging it had not performed any work related to Change Order 1; rather, it asserted it was seeking damages for LVWD's failure to pay $17, 808.70 for work performed under the contract and Change Order 2, and $163, 418.45 in reasonable expenses incurred during a delay caused by LVWD before the project was terminated. The trial court denied LVWD's plea to the jurisdiction. This appeal followed.

         DISCUSSION

         In its sole issue, LVWD contends that it did not waive immunity regarding delays or expenses caused by denial of funding for Change Order 1 because the change order was never incorporated into the contract. It therefore contends the trial court lacks subject matter jurisdiction over Danny Sander's claim for $163, 418.45. But LVWD does not challenge the trial court's jurisdiction concerning the alleged breach of contract damages of $17, 808.70.

         Standard of Review

         A plea to the jurisdiction is a dilatory plea by which a party challenges the court's authority to determine the subject matter of the action. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). The purpose of a plea to the jurisdiction is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). While the claims may form the context in which the plea to the jurisdiction is raised, the plea should be decided without delving into the merits of the case. Id. Whether a party has alleged facts affirmatively demonstrating a trial court's subject matter jurisdiction is a question of law, and we therefore review the trial court's ruling on a plea to the jurisdiction de novo. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). Likewise, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.