the El Paso Education Initiative, Inc., D/B/A Burnham Wood Charter School v. Amex Properties, LLC

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE EL PASO EDUCATION

INITIATIVE, INC. d/b/a BURNHAM § No. 08-17-00049-CV

WOOD CHARTER SCHOOL,

§ Appeal from the

Appellant,

§ County Court at Law No. 6

v.

§ of El Paso County, Texas

AMEX PROPERTIES, LLC,

§ (TC# 2008-2370)

Appellee.

§

OPINION

Appellant, the El Paso Education Initiative, Inc. (EPEI) appeals the trial court’s denial of

its plea to the jurisdiction in which EPEI asserts that it is immune from the breach of contract suit

filed by Appellee, Amex Properties, LLC (Amex). First, EPEI asserts it is immune from suit as

the underlying contract that is a basis of the suit was not “properly executed” pursuant to the waiver

of immunity. Second, even if immunity is waived, EPEI asserts that the statutory waiver of

immunity precludes an award of consequential damages and attorney’s fees. We affirm in part

and reverse in part.

BACKGROUND

Factual Background

The breach of contract claim underlying this appeal stems from a lease agreement between

EPEI and Amex. EPEI, doing business as Burnham Wood Charter School District, operates open-

enrollment charter schools chartered by the Texas Education Agency. Vista Del Futuro Charter

School is one of the charter schools operated by the school district. In early 2008, Iris Burnham,

EPEI’s president and superintendent of schools, informed EPEI’s board of directors that EPEI was

searching for sites for the location of Vista Del Futuro Charter School.

After locating a suitable site in east El Paso, Burnham began negotiating with Silvia

Martinez Aguirre, part owner of Amex, to lease the property and construct a building for the

operation of the school.1 Working with EPEI’s board of directors, Burnham reviewed a proposal

for entering a lease with Amex and presented the board with the projected multi-year rent schedule

and budget for the charter school. The minutes from this meeting state that “Burnham asked the

Board’s permission to continue to negotiate a lease with Ms. Martinez,” which the board granted.

To construct the building EPEI desired, Amex had contracted with AbM Construction Co., who

had begun the construction process.

Burnham and Martinez signed a document titled “Lease Agreement” after a series of

negotiations, which included their respective attorneys, Jerry Wallace for EPEI and Victor Firth

for Amex.2 On either of two dates, Friday, April 25, or the following Monday, April 28, Martinez

verbally informed the charter school’s general administrator, Rebeca Perez, and its realtor, Juan

Uribe, that she had signed the written Lease Agreement. An email dated April 25 sent from

Attorney Jerry Wallace to Administrator Perez states:

The lease agreement needs to be signed by both ms. Burnham on

behalf of the charter and ms. Martinez on behalf for [sic] the property

1

The property’s location is: 1441 N. Zaragoza Rd., El Paso, Texas, 79936.

2

For a more detailed recitation of the background surrounding the formation of the “Lease Agreement,” see El Paso

Educ. Initiative, Inc. v. Amex Properties, LLC, 385 S.W.3d 701, 703–04 (Tex. App.—El Paso 2012, pet. denied).

2

owner.

Our suggesting [sic] is that you contact. ms. Martinez, inform her

that the document has been signed by ms. burnham, and ask her to come by

and execute the document. You can also inform her that we have

transmitted the document to victor firth for his review.

I’m sure that ms. Martinez will want an original executed and

notarized lease instrument, so you should either have ms. burnham and ms.

Martinez execute two leases, or simply make a copy of the lease after ms. Martinez

has signed it and her signature has been notarized. Either method will work just

fine.

Thanks,

jerry

The Lease Agreement contained a recital stating that the document was “[e]xecuted as of

17 April 2008” and included Martinez’s signature as manager of the landlord of the lease (Amex),

and Burnham’s signature as president of the tenant of the lease (EPEI). It also contained an Entire

Agreement provision which specified that “[s]ubmission of this Lease for examination does not

constitute an option for the Leased Premises and becomes effective as a Lease only upon execution

and delivery thereof by Landlord to Tenant.” In addition, the Authority of Signatories provision

of the lease stated: “Each person executing this Lease [Agreement] individually and personally

represents and warrants that he/she is duly authorized to execute and deliver the same on behalf of

the entity for which he/she is signing (whether a corporation general or limited partnership or

otherwise) and that this Lease [Agreement] is binding upon the entity in accordance with its terms.”

Contained within the Lease Agreement were also two notarized certificates of

acknowledgement. The first, a certificate acknowledging that Martinez’s signature, was signed on

April 25 by a notary public stating that Martinez, as “Manager of Amex,” appeared and

acknowledged that Martinez had executed the Lease Agreement “for the purposes and

considerations therein expressed and on behalf of” Amex. The second, a certificate acknowledging

3

that Burnham’s signature, was signed on April 24 by a notary public stating that Burnham, as

“President” of EPEI, had appeared and acknowledged that she had executed the Lease Agreement

“for the purposes and considerations therein expressed and on behalf of The El Paso Education

Initiative, Inc.”

Unaware that Burnham and Martinez had signed the Lease Agreement, Firth continued to

negotiate the terms and conditions of the agreement with Wallace until Sunday, April 27. On May

13, Wallace sent Amex notice that the charter school was unequivocally rejecting the Lease

Agreement and that it no longer desired to lease any property from Amex.

Procedural Background

Amex sued EPEI, claiming that EPEI anticipatorily breached the lease and sought actual

damages, consequential damages, and attorney’s fees. EPEI filed its first plea to the jurisdiction,

which the trial court denied as to the breach of contract claim and associated claims for

consequential damages and attorney’s fees. This Court affirmed the trial court’s denial of the plea

to the jurisdiction in a previous opinion. El Paso Educ. Initiative, Inc. v. Amex Properties, LLC,

385 S.W.3d 701 (Tex. App.—El Paso 2012, pet. denied) (EPEI I). The Texas Supreme Court

denied EPEI’s petition for review of that decision on March 29, 2013, and the case resumed in the

trial court. EPEI filed a second plea to the jurisdiction, and after Amex amended its petition, filed

its third plea to the jurisdiction. The trial court dismissed the tort claims Amex added in its

subsequent petitions but again denied the plea to the jurisdiction that challenged the breach of

contract suit, claims for consequential damages, and attorney’s fees. This second interlocutory

appeal followed.

DISCUSSION

In this interlocutory appeal, EPEI raises three issues contending that the trial court erred in

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denying EPEI’s plea to the jurisdiction. First, it argues that the trial court erred in denying its plea

to the jurisdiction because the purported contract was not “properly executed” on behalf of EPEI.

Second, it argues that the trial court erred in denying its plea to the jurisdiction as it related to

EPEI’s claim for consequential damages flowing from the breach of contract claim. Third, it

argues that the trial court erred in denying its plea to the jurisdiction as it related to EPEI’s claim

for attorney’s fees.

Standard of Review—Plea to the Jurisdiction

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 County v. Sykes, 136 S.W.3d 635, 638 (Tex.

2004); JNC Land Co., Inc. v. City of El Paso, 479 S.W.3d 903, 907 (Tex. App.—El Paso 2015,

pet. denied). Whether a party has alleged facts that affirmatively demonstrate a trial court’s subject

matter jurisdiction is a question of law that we review de novo. Texas Department of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The burden is on the plaintiff to

affirmatively demonstrate the trial court's jurisdiction. Heckman v. Williamson County, 369

S.W.3d 137, 150 (Tex. 2012).

When a plea to the jurisdiction challenges the pleadings, we look to the pleader’s intent,

construe the pleadings liberally in favor of jurisdiction, and accept the allegations in the pleadings

as true to determine if the pleader has alleged sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction to hear the case. Heckman, 369 S.W.3d at 150; JNC Land, 479 S.W.3d at 907.

“If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one

of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.” Miranda,

133 S.W.3d at 226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a

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plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend its

pleading. Id. at 227.

When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider

the relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues

raised, even where those facts may implicate the merits of the cause of action. City of Waco v.

Kirwan, 298 S.W.3d 618, 622 (Tex. 2009); Miranda, 133 S.W.3d at 227. This standard generally

mirrors that of a summary judgment under Rule 166a(c) of the Texas Rules of Civil Procedure.

Miranda, 133 S.W.3d at 228; see also TEX. R. CIV. P. 166a. Under this standard, when reviewing

a plea in which the pleading requirement has been met, we credit as true all evidence favoring the

nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant’s favor.

Id. The movant must assert the absence of subject matter jurisdiction and present conclusive proof

that the trial court lacks subject matter jurisdiction. Id. If the movant discharges this burden, the

nonmovant must present evidence sufficient to raise a material issue of fact regarding jurisdiction,

or the plea will be sustained. Shelton v. Kalbow, 489 S.W.3d 32, 40 (Tex. App.—Houston [14th

Dist.] 2016, pet. denied) (citing Miranda, 133 S.W.3d at 228). If the evidence creates a fact

question regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact question must be resolved by the fact finder. Miranda, 133 S.W.3d at

227–28. The trial court rules on the plea to the jurisdiction as a matter of law if the relevant

jurisdictional evidence is undisputed or it fails to raise a fact question on the jurisdictional issue.

Id. at 228.

Applicable Law: Governmental Immunity

Sovereign immunity protects the State and its agencies from lawsuits for money damages.

Texas Nat. Res. Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Political

6

subdivisions of the state are entitled to such immunity—referred to by the term governmental

immunity—unless such immunity has been waived. Reata Const. Corp. v. City of Dallas, 197

S.W.3d 371, 374 (Tex. 2006); JNC Land, 479 S.W.3d at 908. Sovereign immunity encompasses

immunity from suit, which bars a suit unless the state has consented, and immunity from liability,

which protects the state from judgments even if it has consented to the suit. Reata Const. Corp.,

197 S.W.3d at 374. Immunity from suit implicates a court’s subject matter jurisdiction and is

properly asserted in a plea to the jurisdiction. Houston Belt & Terminal Ry. Co. v. City of Houston,

487 S.W.3d 154, 160 (Tex. 2016); Miranda, 133 S.W.3d at 225-26. Texas open-enrollment charter

schools are governmental entities entitled to immunity from suit to the same extent as public-

school districts. EPEI I, 385 S.W.3d at 705–06.

By entering into a contract, a governmental entity necessarily waives immunity from

liability, voluntarily binding itself like any other party to the terms of the agreement, but it does

not itself waive immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Immunity from suit may only be waived by the Legislature to protect its policymaking function.

Id. (citing IT-Davy, 74 S.W.3d at 854). To ensure that legislative control is not easily disturbed, a

waiver of immunity must be clear and unambiguous. Tooke, 197 S.W.3d at 329 n.2, 332-33 (citing

TEX. GOV’T CODE ANN. § 311.034) (“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.”). The

issue raised here is whether EPEI waived its immunity from suit pursuant to the waiver provided

by TEX. LOC. GOV’T CODE ANN. § 271.152.

Applicable Law: Chapter 271’s Waiver of Immunity

Texas Local Government Code Section 271.152 waives governmental immunity from suit

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for certain breach of contract claims stated as follows:

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. LOC. GOV’T CODE ANN. § 271.152. Under a plain reading of Section 271.152, three elements

must be established to waive the government’s immunity from suit: (1) the party against whom

the waiver is asserted must be a “local governmental entity” under Section 271.151(3); (2) the

entity must be authorized by statute or the Constitution to enter into contracts; and (3) the entity

must in fact have entered into a contract that is “subject to this subchapter,” as defined by Section

271.151(2). Id. §§ 271.151–.152; City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011);

JNC Land, 479 S.W.3d at 908. When these three elements are satisfied, the governmental entity’s

immunity is waived from suit for breach of contract and a court has subject matter jurisdiction to

“adjudicat[e] a claim for breach of the contract.” Id. § 271.152; Williams, 353 S.W.3d at 134.

“Adjudicat[ing]” the claim includes bringing the contract claim to final judgment through either

court or arbitration proceedings. Id. § 271.151(1).

As we previously stated, because EPEI is an open-enrollment charter school, it is deemed

a local governmental entity for purposes of Section 271.152. Therefore, the first element required

for a waiver of immunity has been satisfied. EPEI I, 385 S.W.3d at 706; see also LTTS Charter

Sch., Inc. v. C2 Const., Inc., 358 S.W.3d 725, 742 (Tex. App.—Dallas 2011, pet. denied) (“[w]e

conclude an open-enrollment charter school is a ‘local governmental entity’ for purposes of section

271.152.”).3 Moreover, the parties do not dispute that the second requirement of Section 271.152

is satisfied; that is, EPEI is a governmental entity authorized to enter into contracts like the Lease

3

For a more thorough discussion as to why an open-enrollment charter school is a governmental unit, see El Paso

Educ. Initiative, Inc. v. Amex Properties, LLC, 385 S.W.3d 701, 706 (Tex. App.--El Paso 2012, pet. denied).

8

Agreement that is the subject of this suit. Thus, more narrowly, the parties here are disputing the

third element, whether the Lease Agreement qualifies as a “contract subject to this chapter[.]” TEX.

LOC. GOV’T CODE ANN. § 271.151.

Pursuant to Section 271.151, a “[c]ontract subject to this subchapter” is defined to mean:

[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 ANN. § 271.151(2)(A). To qualify as a contract subject to Section

271.152’s waiver of immunity, a contract must: (1) be in writing, (2) state the essential terms of

the agreement, (3) provide for goods or services, (4) to the local governmental entity, and (5) be

executed on behalf of the local governmental entity. Id.; Williams, 353 S.W.3d at 135; JNC Land,

479 S.W.3d at 908. Here, the parties raise a dispute on whether the Lease Agreement was properly

executed on behalf of EPEI.

Issue One: Proper Execution Under Section 271.151

In its first issue, EPEI argues that because the purported contract between it and Amex was

not “properly executed” within the meaning of TEX. LOC. GOV’T CODE ANN. § 271.151(2), EPEI’s

immunity was not waived and the trial court erred in denying its plea to the jurisdiction. Directing

us to EPEI’s charter and to provisions in the Texas Education Code and the Texas Administrative

Code, EPEI argues that open-enrollment charter schools are governed by a board of directors,

which in turn, are responsible for the management and operation of the charter school. EPEI

further argues that while open-enrollment charter schools may delegate contracting authority to an

individual officer, they must specify that delegation in their charter through a delegation

amendment or, alternatively, that a contract requires board approval.

Law-of-the-Case Doctrine Does Not Apply

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As a preliminary matter, we first address our prior opinion arising from this suit. Amex

points to our opinion issued during a previous interlocutory appeal to contend that we have already

decided the issue being presented by EPEI at this juncture. See EPEI I, 385 S.W.3d at 701. We

stated in the first appeal of this case that:

Because the Lease Agreement executed by Burnham and Martinez is in writing,

and because Burnham executed the Lease Agreement by signing it in her authorized

capacity on behalf of the local governmental entity, EPEI, the first and fifth

elements have been met. Because the Lease Agreement provides that Amex is

leasing pad sites and will construct buildings thereon for the charter school’s use,

the third and fourth elements requiring that the contract provide goods and services

to EPEI as a local governmental entity are met.

Id. at 706–07. After determining that “[t]he second element for establishing a contract subject to

waiver” was met, we further concluded that because “EPEI entered into a contract that is subject

to Subchapter I as defined by section 271.151(2), the Legislature has waived EPEI’s immunity to

suit for the purpose of adjudicating a breach-of-contract claim.” Id. at 708.

In our previous opinion, however, the scope of our immunity inquiry did not include

substantive analysis of whether the Lease Agreement was “properly executed” on behalf of EPEI.

Thus, we find that EPEI raises a different issue in this appeal. See Gilliam v. Santa Fe Indep. Sch.

Dist., No. 01-14-00186-CV, 2016 WL 828055, at *4 (Tex. App.—Houston [1st Dist.] Mar. 3,

2016, no pet.) (mem. op.) (“[b]ecause the District raised a new jurisdictional issue that this Court

did not consider in Gilliam I, the trial court was not constrained by the law-of-the-case doctrine

and properly considered the District’s Plea to the Jurisdiction.”). When we concluded that the

Lease Agreement satisfied the requirements of Section 271.152, we reviewed only terms of the

Lease Agreement to determine if it satisfied the “essential terms of the agreement.” See EPEI I,

385 S.W.3d 707. Importantly, we did not previously have the benefit of the additional evidence

that the parties produced after the case resumed in the trial court such as the affidavits and

10

depositions we have in the record before us now. Cf. Hudson v. Wakefield, 711 S.W.2d 628, 630

(Tex. 1986) (law-of-the-case doctrine “does not necessarily apply when either the issues or the

facts presented at successive appeals are not substantially the same” as those involved in the first

proceeding).

To the extent our prior opinion could be read as encompassing a pronouncement on

whether Amex raised an issue as to whether the Lease Agreement was properly executed on behalf

of EPEI, we observe that the law-of-the-case doctrine is not an absolute bar to reconsideration of

an issue. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). Rather, we retain

discretion to revisit the issue depending on the particular circumstances of the case, and we opt to

do so here. See id.

Statutory Text: Properly Executed on Behalf of

We now turn to the meaning of the phrase “properly executed on behalf of” as it pertains

to TEX. LOC. GOV’T CODE ANN. § 271.151(2). In construing the statute, our fundamental goal is

to ascertain and give effect to the Legislature’s intent. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d

430, 452 (Tex. 2012). To do this, we look to and rely on the plain meaning of a statute’s words as

expressing legislative intent unless a different meaning is supplied, it is apparent from the context,

or the plain meaning of the words leads to absurd or nonsensical results. Crosstex Energy Servs.,

L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389–90 (Tex. 2014). “To determine a statutory term’s

common, ordinary meaning, we typically look first to their dictionary definitions and then consider

the term’s usage in other statutes, court decisions, and similar authorities.” Texas State Bd. of

Examiners of Marriage & Family Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017).

“It is an elementary rule of construction that, when possible to do so, effect must be given to every

sentence, clause, and word of a statute so that no part thereof be rendered superfluous or

11

inoperative.” City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) (citing Spence

v. Fenchler, 107 Tex. 443, 456, 180 S.W. 597, 601 (1915); see also TEX. GOV’T CODE ANN. §

311.021(2). That is, “every word in a statute is presumed to have been used for a purpose; and a

cardinal rule of statutory construction is that each sentence, clause and word is to be given effect

if reasonable and possible.” Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc. 35 S.W.3d 591,

593 (Tex. 2000).

Section 271.151(2) does not define the phrase “properly executed.” See TEX. LOC. GOV’T

CODE ANN. § 271.151(2). The common meaning of the term “properly” is “suitably, fitly, rightly,

[or] correctly[.]” Webster’s Third New International Dictionary 1818 (2002). Likewise, the

common meaning of the term “execute,” when used in the context of a legal instrument, is to

“complete[, or] perform what is required to give validity to (as by signing and perhaps sealing and

delivering)[.]” Id. at 794; see also Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323

S.W.3d 151, 157 (Tex. 2010) (per curiam) (noting “‘execute’” means “‘[t]o perform or complete

(a contract or duty) . . . [or][t]o make (a legal document) valid by signing; to bring (a legal

document) into its final, legally enforceable form’”) (quoting Black’s Law Dictionary (8th ed.

2004)). The common meaning of the phrase “on behalf of” is “in the interest of, as the

representative of, [or] for the benefit of[.]” Webster’s Third New International Dictionary 198. As

related to a contract, these terms together convey the meaning that a contract is “properly executed

on behalf of” to mean that a contract is signed by a representative in accordance with the

requirements for making it valid. See Hous. Auth. of City of Dallas v. Killingsworth, 331 S.W.3d

806, 810-11 (Tex. App.—Dallas 2011, pet. denied).

Statutory Text: Properly Executed

We note that Section 271.151(2)(A) does not state that the contract must be properly

12

executed by the local governmental entity; but instead, it requires that a written agreement be

“properly executed on behalf of the local governmental entity.” See TEX. LOC. GOV’T CODE ANN.

§ 271.151(2)(A) (emphasis added). Moreover, the statute also does not require the contract to

ultimately be binding or enforceable. See id. Based on the plain text, we construe the phrase

“properly executed” as referring to the discrete requirements or procedures which are outlined in

the relevant statutes, ordinances, charters, or other documents governing the entity and allowing it

to enter into contractual agreements. We further construe the phrase “on behalf of” to indicate that

the local governmental entity will act through its authorized representative.

Case Law: Properly Executed

In support of its contention that the contract here was not “properly executed,” EPEI cites

LTTS Charter Sch., Inc. v. C2 Const., Inc., an opinion from the Dallas court of appeals that it

contends is on point. LTTS Charter Sch., Inc. v. C2 Const., Inc., 358 S.W.3d 725, 730 (Tex.

App.—Dallas 2011, pet. denied). LTTS Charter involved a construction contractor’s claim against

LTTS, an open-enrollment charter school, based on the retention of the contractor to construct

school facilities. LTTS Charter, 358 S.W.3d at 730. LTTS’s board passed a motion authorizing

“the process of securing an appropriate facility” for a new school and specifically authorized its

administrative director to select a contractor to construct facilities and “negotiate with [the

contractor] concerning the scope of the Project.” Id. at 743. The board did not pass any other

motion relating to the project, and the court found that, in the absence of a motion passed by the

charter school’s board approving an agreement, the purported agreement was not “properly

executed” under Section 271.151 of the Texas Local Government Code. Id. at 744. The court

noted that the “record reflects there is no dispute that, in fact, no written contract was signed by

[LTTS].” Id. at 742, and thereafter distinguished City of Houston v. Clear Channel Outdoor, Inc.,

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233 S.W.3d 441, 446-47 (Tex. App.—Houston [14th Dist.] 2007, no pet.) on the lack of a motion

to the board. Id. at 744; see Vantage Sys. Design, Inc. v. Raymondville Indep. Sch. Dist., 290

S.W.3d 312, 316 (Tex. App.—Corpus Christi 2009, pet. denied) (finding that the agreement at

issue was not “properly executed” on behalf of the local governmental entity where a written

contract was never presented to the court). A crucial distinction that EPEI overlooks, however, is

that unlike LTTS, where the record did not reveal any written contract, the record here undisputedly

includes a written, signed contract by its representative.

In response, Amex relies on case law to contend that “whether or not [EPEI] has waived

[its] governmental immunity does not depend on whether the Lease [Agreement] is ultimately

binding upon [EPEI], but only whether the Lease was ‘properly executed.’” In Clear Channel

Outdoor, the City of Houston offered to purchase Clear Channel’s billboard on property destined

for a street repair project. City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441, 443

(Tex. App.—Houston [14th Dist.] 2007, no pet.). The City delivered the Purchase Agreement,

signed by a consultant to the City, “subject to City Council approval” and contingent on successful

negotiation with the property owners. Id. The City passed a motion recommending condemnation

of the property, including the billboard sign, and payment of the amount stated in the Purchase

Agreement; however, the City later withdrew its offer to purchase the billboard sign. Id. at 444.

Clear Channel sued the City for breach of contract under TEX. LOC. GOV’T CODE ANN. § 271.152,

and in response the City filed a plea to the jurisdiction, asserting the contract for the billboard sign

was not “properly executed” since it was not signed by the mayor and the controller, as required

by the City’s charter. Id. at 446.

Affirming the trial court’s denial to the plea, the Houston court of appeals observed that

another provision of the City’s charter provided that the motion to condemn was “in full force and

14

effect” since the motion was the final step needed to complete the contract between the parties,

and therefore satisfying the requirements of Section 271.151(2). Id. at 446–47; see also City of

Dallas v. Arredondo, 415 S.W.3d 327, 349–50 (Tex. App.—Dallas 2013, pet. denied) (concluding

that the trial court properly denied the city’s plea to the jurisdiction where firefighters, employed

by the city, presented a factual issue as to a “properly executed” unilateral contract under Section

271.152 where the “contract” was a city ordinance was ambiguous, approved by the city attorney,

but not signed by the city manager). The court noted that the “City’s contention that the signatures

of the mayor and the city controller are required arguably conflates the issue of whether the

contract is binding under the charter—a question that goes to the merits of the case—with the issue

of whether it was properly executed on the City’s behalf.” Clear Channel Outdoor, Inc., 233

S.W.3d at 446. The court further noted “that Section 271.152 does not require that the contract at

issue be properly executed by the governmental entity; rather, the requirements of the statute are

satisfied if the contract was properly executed on behalf of the entity.” Id. Clear Channel is

factually distinguishable from this case since the contract at issue in Clear Channel was signed by

a consultant to the City and the City Council there passed a motion recommending that the City be

authorized to condemn the billboard. Id. at 443. In the present case, however, the contract is

signed by Burnham, an EPEI board member and superintendent of schools.

We find more persuasive guidance from the Killingsworth line of cases. There,

Killingsworth sued the Housing Authority of the City of Dallas (DHA) for breach of a written

CEO employment contract under Section 271.152 of the Texas Local Government Code. Hous.

Auth. of City of Dallas v. Killingsworth, 331 S.W.3d 806, 808 (Tex. App.—Dallas 2011, pet.

denied) (Killingsworth I); Killingsworth v. Hous. Auth. of City of Dallas, 447 S.W.3d 480, 490

(Tex. App.—Dallas 2014, pet. denied) (Killingsworth II). In Killingsworth, the contract at issue

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had been signed by the chairman of the DHA board—who had authority to sign pursuant to the

DHA’s bylaws—and the board’s vote in executive session authorizing the contract were publicly

admitted in the meeting minutes. Killingsworth I, 331 S.W.3d at 808. In its first plea to the

jurisdiction, DHA argued that the board never approved the employment contract, and therefore,

the contract was not properly executed, and if it was approved as Killingsworth alleged, it would

be in violation of the Texas Open Meetings Act and still would not be properly executed. Id. at

809; see also TEX. GOV’T CODE ANN. §§ 551.001–.056. The trial court denied DHA’s plea to the

jurisdiction. Id. Reviewing the phrase “properly executed,” the Dallas court of appeals first turned

to the plain and common meaning of these words. Id. at 811. The court analyzed the meaning of

the phrase as used in the Local Government Code and determined that based on the language of

the statute, the focus of the statute is whether the DHA had the authority to enter into the contract.

Id. at 811–12. The court construed the phrase as referring to the requirements or procedures

outlined in the relevant statutes, ordinances, or other documents that give the DHA the authority

to enter into a contract. Id. at 812. Reviewing the jurisdictional evidence in the first appeal, the

court determined that:

The evidence before us—the by-laws granting the commissioners power to employ

a CEO and the chairman the authority to sign contracts, the board minutes

confirming [the chairman] had the board’s permission to effectuate a CEO contract

and the references to a decision related to the CEO position, as well as the

chairman’s signature and delivery of an employment contract to Killingsworth—is

more than a scintilla of evidence to show the contract was “properly executed” on

behalf of the DHA. Thus, indulging every reasonable inference and resolving any

doubts in Killingsworth’s favor, we conclude Killingsworth raised a jurisdictional

fact question as to whether the contract was properly executed. Id. at 814.

The trial court granted a summary judgment motion in favor of DHA, and on the case’s

second appeal, the Dallas court of appeals turned to the contract language to determine whether

Section 271.152’s requirements were satisfied. Killingsworth II, 447 S.W.3d at 488. The court

16

determined that the language of the contract stated, “that its terms [were] nonbinding unless it is

signed by the DHA Board Chairman and approved by the DHA Board.” Id. Applying principles

of contract interpretation, the court found that the purported contract required subsequent approval

by the Board, reasoning:

We read this sentence as a signal that something else has to happen after the

agreement is presented to Killingsworth before the parties are bound by this

agreement, namely [the chairman] has to sign the agreement and the Board has to

approve it. And because we presume the parties intended these conditions to have

some effect, we cannot interpret the agreement in the manner suggested by

Killingsworth—as not requiring Board approval after it was presented to him—

without rendering this sentence meaningless. Id.

Here, Amex relies only on Killingsworth I; however, we find guidance from both

Killingsworth I and II. In Killingsworth I, the court relied on the local governmental entity’s by-

laws, board minutes, the CEO’s signature, and delivery of the contract, to find there was more than

a scintilla of evidence demonstrating the contract was properly executed on behalf of the local

governmental entity. Killingsworth I, 331 S.W.3d at 814. In Killingsworth II, the court turned to

the language of the contract to determine that a valid contract did not exist. Killingsworth II, 447

S.W.3d at 491. Notably, the court distinguished the procedural and factual posture to find that the

law-of-the-case doctrine was inapplicable. Id. at 490–91. The court reasoned that in Killingworth

I, it did not review the purported agreement itself nor deposition testimony of DHA’s board

members suggesting that Killingsworth was aware that the agreement required the ratification of

the board. Id. at 491.

Analysis

We now consider whether the purported contract between EPEI and Amex was “properly

executed” within the meaning of Section 271.151(2)(A). EPEI challenges the existence of Amex’s

jurisdictional facts and argues the evidence controverts Amex’s factual allegations that the Lease

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Agreement was “properly executed.” Specifically, EPEI directs us to sections in the Texas

Administrative Code to argue that the EPEI board did not pass a delegation amendment to its

charter, which would have to be approved by the Commissioner of Education, to bind the charter

school to the Lease Agreement. 19 TEX. ADMIN. CODE § 100.1101(c) (“[a]n open-enrollment

charter must specify the powers or duties of the governing body of the charter holder that the

governing body may delegate to an officer . . . or any other person.”). We believe that this

argument conflates the issue of whether the contract is binding under the law applicable to the

charter school—a question that goes to the merits of the case—with the issue of whether it was

“properly executed” on EPEI’s behalf.4

In response, Amex directs us to the provisions in the Lease Agreement that Burnham and

Martinez signed, including the certificates of acknowledgement, the email sent from Wallace to

Perez, and two other provisions in EPEI’s charter to argue that Burnham properly executed the

Lease Agreement on behalf of EPEI. The first charter provision Amex directs us to is titled

“Indebtedness of Charter,” which states:

Charterholder shall not incur a debt, secure an obligation, extend credit, or

otherwise make use of the credit or assets of the charter school for any purpose

other than operation of the charter school[.]

The second charter provision is titled Charter School Facility, and states:

Charterholder shall have and maintain throughout the term of the charter a lease

agreement, title or other legal instrument granting to Charterholder the right to

occupy and use one or more facilities suitable for use as the charter school facilities

described by the charter. During any period of dormancy granted by the Board,

this requirement may be waived by the Board.

In short, the jurisdictional evidence before us relevant to the issue of proper execution

4

EPEI does not argue that Burnham lacked actual or apparent authority to sign the Lease Agreement.

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consists of (1) the Lease Agreement; (2) the charter and charter amendments of the charter school;

(3) a series of emails sent between parties on both sides around April and May of 2008; (4) the

EPEI board minutes from the January 28, April 1, and May 28, 2008 meetings; (5) a deposition of

Silvia Martinez; (6) an affidavit from Iris Burnham; and (7) an affidavit from Jerry Wallace.

EPEI’s charter contains Burnham’s signature and a provision stating that the charter holder,

Burnham Wood Charter Schools, “represents that the person signing this contract has been

properly delegated authority to do so.” In addition, the charter contains a provision allowing EPEI

to incur financial obligations for operations of the charter school and another provision requiring,

with an exception not relevant here, that it maintain a lease during the charter school’s term.

By its terms, the Lease Agreement does not contain language requiring board approval for

the contract to become effective; it only requires the signature of Iris Burnham, President of EPEI.

It states that the person “executing” the Lease Agreement “personally represents and warrants that

[she] is duly authorized . . . and that this Lease [Agreement] is binding upon the entity in

accordance with its terms.” Additionally, the Lease Agreement states that it “becomes effective

as a Lease only upon execution and delivery thereof by Landlord to Tenant.” The certificate of

acknowledgement is acknowledged and states that “Iris Burnham, known to me [as] President of

The El Paso Education Initiative, Inc., a Texas corporation, and the person whose name is

subscribed to the foregoing Lease Agreement, and who acknowledged to me that she executed the

instrument for the purposes and considerations therein expressed and on behalf of The El Paso

Education Initiative, Inc.” (emphasis added).

In her affidavit, Burnham does not deny that she signed the lease. Instead, she states that

she did not believe that the negotiations with Amex and the school district had resulted in final

agreed-upon lease terms. Burnham avers she did not present any lease with Amex Properties to

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the Board of Directors for board approval. In his affidavit, Wallace states that no “individual,”

including himself and Burnham, “had the legal authority to bind” EPEI to a lease of real property

and further states that it was his belief that the negotiations with Amex were unsuccessful.

Wallace’s email to Perez, however, suggested that Burnham and Martinez were to sign the Lease

Agreement on behalf of EPEI and Amex. The board minutes at the April 1 meeting state that

“Burnham asked the Board’s permission to continue to negotiate a lease with Ms. Martinez,”

which the board approved, whereas the May 28 minutes state that the negotiations with Martinez

where “unsuccessful.” Lastly, the parties do not allege that Amex, as landlord, did not “execute

and deliver” the lease to EPEI, the last step in satisfaction of the Lease Agreement’s terms to

effectuate the contract.

In sum, viewed in the light most favorable to Amex (as we must), the record shows that (1)

EPEI’s charter authorizes contracts, such as a lease; (2) the board’s minutes purport to indicate

that Burnham had at least some authority to enter into the Lease Agreement and that the board

members were aware of Burnham’s discussions with Amex; and (3) Amex delivered the Lease

Agreement to EPEI in satisfaction of the contract’s terms to finalize the agreement. Given the

jurisdictional evidence presented by the parties, we conclude that the resolution of whether the

Lease Agreement was “properly executed on behalf of” EPEI is an issue for the fact finder on

remand, that EPEI did not satisfy its burden in negating the trial court’s jurisdiction over the case,

and that the trial court correctly denied EPEI’s plea to the jurisdiction.

Thus, we conclude that EPEI’s first issue is overruled.

Issue Two: Consequential Damages under Chapter 271

In its second issue, EPEI argues that even if the Lease Agreement satisfies the fifth

requirement that the contract be properly executed on behalf of EPEI within Section 271.152, the

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trial court erred to the extent it denied the plea as to Amex’s claim for consequential damages.

Applicable Law: Chapter 271 & Consequential Damages

Section 271.152 provides a limited waiver of immunity, and Section 271.153 places limits

on recoverable damages when immunity from suit is waived. TEX. LOC. GOV’T CODE ANN. §§

271.152–.153. Specifically, Section 271.152 provides that the limited waiver of immunity is

subject to certain “terms and conditions.” See id.; Lubbock County Water Control & Imp. Dist. v.

Church & Akin, L.L.C., 442 S.W.3d 297, 301 (Tex. 2014). One of the “terms and conditions” is

found in Section 271.153 of the Local Government Code, which sets out the types of damages

available to a party in an action pursuant to Section 271.152. See TEX. LOC. GOV’T CODE ANN. §

271.153; Zachry Const. Corp. v. Port of Houston Auth. of Harris Cty., 449 S.W.3d 98, 106 (Tex.

2014). For Section 271.152’s waiver of immunity to apply, a party must claim damages within

the limitations set out in Section 271.153 since “[Chapter 271] does not waive immunity from suit

on a claim for damages not recoverable under Section 271.153.” Id. at 110–11.

Under Section 271.153(a)(1), the “amount of money awarded . . . for breach of a contract”

includes “the balance due and owed . . . under the contract” as amended, “including any amount

owed as compensation for the increased cost to perform the work as a direct result of owner-caused

delays[.]” See TEX. LOC. GOV’T CODE ANN. § 271.153(a)(1); Zachry, 449 S.W.3d at 106. Section

271.153(b)(1) precludes recovery of consequential damages, “except as expressly allowed under

Subsection (a)(1).” See TEX. LOC. GOV’T CODE ANN. § 271.153(b)(1); Zachry, 449 S.W.3d at 106.

Analysis: Chapter 271 & Consequential Damages

In its live pleadings, Amex alleges that it executed a contract with AbM Construction Co.

(AbM) for construction of phase one under the Lease Agreement. Amex alleges that it materially

altered its position under the contract with AbM by ceasing construction because of EPEI’s breach

21

of the Lease Agreement and claims it is entitled to recover “consequential damages flowing from

[EPEI]’s actions that affect Amex’s contract with AbM[.]”

In response, EPEI contends that the consequential damages claimed by Amex are precluded

under Section 271.153(b). Specifically, EPEI argues that any “consequential damages” Amex may

have incurred in connection with the AbM contract are not “the balance due and owed” under the

Lease Agreement and are not “increased cost to perform the work as a direct result of owner-

caused delays or acceleration[.]” See TEX. LOC. GOV’T ANN. § 271.153(a)(1).

Amex recognizes that consequential damages beyond those stated in Chapter 271 are not

recoverable but contends that whether Amex’s specific claims for damages are “direct” or

“consequential” must be determined by the trial court after an analysis of the contract, the parties’

expectancy, and the bargain between them. Alternatively, Amex points to the provisions in the

Lease Agreement contemplating these damages to argue that immunity was waived for these types

of damages as they are direct damages.

We disagree with Amex to the extent it contends that we may not determine, at this stage

of the proceedings, if the damages Amex pleaded preclude a finding of whether immunity was

waived. The Local Governmental Code Contract Claims Act “waives immunity for contract

claims that meet certain conditions: the existence of a specific type of contract, a demand for

certain kinds of damages, a state forum, etc.” and “Section 271.152 uses Section 271.153 to further

define to what extent immunity has been waived.” Zachry, 449 S.W.3d at 109–10. The waiver

under Chapter 271 “does not depend on the outcome” or “ultimate liability,” but “it does require a

showing of a substantial claim that meets the Act’s conditions.” Id. at 109. “Substantial” in this

context means that the “claimant must plead facts with some evidentiary support that constitute a

claim for which immunity is waived,” and does “not [require a showing] that the claimant will

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prevail.” Id. at 110. We conclude that Amex satisfied its burden.

The complained of damages are the costs that arose from Amex’s contract with AbM,

which were a result of EPEI’s alleged breach of the Lease Agreement. Amex directs us to the

relevant portions of the Lease Agreement it believes addresses these damages. These sections are:

3.01. Commencement Date and Obligation to Pay Rent. . . . Tenant shall pay any

and all costs and expenses incurred by Landlord which result from any Tenant

Delay, including, without limitation, any and all costs and expenses attributable to

increases in the cost of labor or materials. A ‘Tenant Delay’ means any delay that

Landlord may encounter in the performance of Landlord’s obligations under the

Lease because of any act or omission directly attributable to Tenant or its agents,

affiliates or contractors, . . .;

8.01.2. Plan Changes. . . . (b)Tenant shall pay directly to Landlord’s contractor the

net reasonable additional third-party costs of the Work resulting from the

Changes.”;

22.01. Default by Tenant. Upon the occurrence of any of the following events,

Tenant shall be deemed to be in default under the terms of this Lease. . . . (b) Tenant

violates any requirements or covenants of this Lease[.] (emphasis added);

22.02. Landlord’s Remedies. Upon the occurrence of any of the events set forth

in Section 22.01 . . . (c) Landlord may collect by suit or otherwise, without reletting

the Leased Premises, each installment of rent or other sum as it becomes due

hereunder, or enforce, by suit or otherwise, any other covenant or obligation which

is required to be performed by Tenant. Landlord may also elect to cure any default

on behalf of Tenant and, in such event, Tenant shall immediately reimburse

Landlord for the costs so incurred. (emphasis added).

The Texas Supreme Court in Zachry held that Chapter 271 “waives immunity for a contract claim

for delay damages not expressly provided for in the contract.” Zachry, 449 S.W.3d at 114

(emphasis added). The Court explained that the phrase the “balance due and owed under the

contract” means “the amount of damages for breach of contract payable and unpaid.” Id. at 111

(internal ellipsis omitted). Likewise, the Court stated that “[n]othing in the [Act] suggests that

recoverable damages must be stated in the contract.” Id. at 112.

EPEI directs us to a Texas Supreme Court opinion to argue that EPEI retains its immunity

23

with regard to these damages; however, EPEI’s reliance is misplaced. In Sharyland, the contractor,

the Sharyland Water Supply Corporation, sought to recover its “increased cost to perform” its

contractual duty under a Water Supply Agreement with the City of Alton to repair and maintain a

water system. Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 409, 412 (Tex.

2011). The City of Alton had contracted with several third parties to build a sanitary sewer system

which the third parties installed near the water system Sharyland contracted to repair and maintain.

Id. at 410. Alleging that Sharyland suffered significant injury because Alton’s sanitary sewer

system was negligently installed in violation of state regulations and industry standards, Sharyland

sued the City of Alton alleging it had breached the Water Supply Agreement. Id. Sharyland also

sued the third-party contractors for negligence and breach of contract, contending Sharyland was

a third-party beneficiary of the agreement with the City of Alton. Id. at 410-11. Affirming the

decision of the Corpus Christi court of appeals, the Texas Supreme Court found that, under a plain

reading of the statute, Sharyland could not recover against the City of Alton the costs to repair its

system, as they were not a “balance due and owed” under the contract, they were not the direct

result of owner-caused delays or acceleration, and were the amount owed for change order or

additional work the contractor was directed to perform by the local governmental entity in

connection with the contract. Id. at 412–13 (quotation marks omitted); see also TEX. LOC. GOV’T

CODE ANN. § 271.153.

We find at least two notable differences between Sharyland and this case. First, as pointed

out by Amex, the Lease Agreement perceivably includes at least some of the costs Amex alleges

with regard to the AbM agreement. Second, EPEI did not contract with AbM in the same manner

that the City of Alton contracted with third parties; rather, AbM contracted with Amex. As alleged

by Amex, the Lease Agreement may in fact encompass costs associated with the AbM agreement.

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A review of a different Texas Supreme Court decision will help to further illustrate these

distinctions.

In Kirby, developers sued an area water authority for reimbursement of part of their costs

of building water and sewer facilities, which the authority had agreed to pay out of a pool of voter-

approved bonds. Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 833–34

(Tex. 2010). While the bonds had not been approved, the developers claimed that the Water

Authority breached the contract by campaigning against approval, thereby obviating the

authority’s reimbursement obligation. Id. at 834 (re 2006 bond election); see also Kirby Lake

Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 5 (Tex. App.—Houston [14th Dist.]

2008) (“Kirby III ”), aff’d, 320 S.W.3d 829, 843–44 (Tex. 2010). The Water Authority contended

that nothing was “due and owed” under Section 271.153(a)(1), in part, because its obligation to

reimburse the developers had not been triggered as no bonds had been approved. Id. at 839–40.

It was this reason for which the Water Authority argued that immunity was not waived. Id. Stated

differently, the Water Authority argued that because there was no liability, there were no

recoverable damages and, therefore, no waiver of immunity. But the premise of no liability was

itself disputed, and if the Water Authority had breached the contract by opposing bond approval,

then the developers claimed only the reimbursement under the contract as damages. These

damages, the Court held, were “due and owed” under Section 271.153(a)(1). Id. Explaining, the

Court stated, “[t]he purpose of section 271.153 is to limit the amount due by a governmental

agency on a contract once liability has been established, not to foreclose the determination of

whether liability exists.” Id. at 840 (emphasis added).

Based on the limited record before us and viewing the language of the Lease Agreement in

the light most favorable to Amex, the Lease Agreement appears to provide for at least some of the

25

damages pertaining to the agreement with AbM. EPEI agreed to “pay directly to” Amex’s

“contractor the net reasonable additional third-party costs[.]” The Lease Agreement provides that

EPEI will reimburse Amex when Amex “cure[s] any default on behalf of” EPEI, defining

“default,” in part, as a violation of any requirement or covenant of the Lease Agreement. EPEI

also agreed to “pay any and all costs and expenses” attributable to EPEI’s delays. In her

deposition, Martinez explained that construction pursuant to the lease negotiations commenced

before the parties signed the Lease Agreement. The record before us also includes two invoices

from AbM: one dated May 1, 2008, for an amount due of $265,542.47 and one dated May 25,

2008, for an amount due of $362,562.47. Thus, viewed in the light most favorable to Amex, we

find that Amex alleged recoverable damages and produced some evidence to establish it incurred

damages that fit within the contract at issue as well as “under the contract” as provided in Section

271.153.

We understand EPEI to argue that immunity is not waived for the damages Amex alleges

with regard to AbM. But, as in Kirby, the “no liability” argument is itself disputed as the parties

need to first establish that a contract was properly formed under Section 271.152.5 If EPEI is

found to have breached the Lease Agreement, then a claim of reimbursement under the contract

may be “due and owed” under Section 271.153(a)(1) and therefore constitute recoverable

damages. This presents a fact issue as to whether the damages claimed by Amex are direct or

consequential, and the trial court did not err in denying Amex’s plea to the jurisdiction on the issue

of consequential damages flowing from Amex’s breach of contract claim.

EPEI’s second issue is overruled.

5

The parties here argue over the formation of a contract under the Local Government Code, not whether EPEI did

indeed breach the Lease Agreement.

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Issue Three: Attorney’s Fees

In its live pleadings, Amex alleges that it is entitled to attorney’s fees. On appeal, EPEI

contends that the attorney’s fees claimed by Amex are precluded under the pre-2009 version of

TEX. LOC. GOV’T CODE ANN. § 271.153(b), which prevented recovery of attorney’s fees. In its

brief, Amex concedes that, under TEX. LOC. GOV’T CODE ANN. § 271.153(b) applicable at the time

the Lease was executed, Amex is not entitled to recover attorney’s fees. Our investigation of this

statute and its legislative history yields the same result: attorney’s fees related to contractual suits

for agreements executed prior to the 2009 amendment of Section 271.153(b) are not recoverable

because the amendment did not apply retroactively to those contracts. See Act of May 31, 2009,

81st Leg., R.S., ch. 1266, § 8, 2009 TEX. GEN. LAWS 4006, 4007; Sharyland, 354 S.W.3d at 412

n.5.

Here, the parties do not dispute that the alleged contract between EPEI and Amex was

entered into in 2008, or prior to the 2009 amendment of Section 271.153(b). Since the 2009

amendment does not apply retroactively to contracts dated beforehand, and the pre-2009 version

of Section 271.153(b) did not allow for recovery of attorney’s fees, Amex is precluded from

recovering attorney’s fees related to its contract with EPEI.

EPEI’s third issue is sustained.

CONCLUSION

Having overruled EPEI’s first and second issues, we affirm the trial court’s order denying

EPEI’s plea to the jurisdiction as to Amex’s breach of contract claim and its claim for

consequential damages. Having sustained EPEI’s third issue, we reverse the trial court’s order

denying EPEI’s plea to the jurisdiction as to Amex’s claim for attorney’s fees and render judgment

granting the plea to the jurisdiction as to Amex’s claim for attorney’s fees.

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GINA M. PALAFOX, Justice

October 31, 2018

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

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