Harris County Flood Control District v. Great American Insurance Co.

359 S.W.3d 736, 2011 Tex. App. LEXIS 9826, 2011 WL 6287969
CourtCourt of Appeals of Texas
DecidedDecember 15, 2011
Docket14-10-01040-CV
StatusPublished
Cited by9 cases

This text of 359 S.W.3d 736 (Harris County Flood Control District v. Great American Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris County Flood Control District v. Great American Insurance Co., 359 S.W.3d 736, 2011 Tex. App. LEXIS 9826, 2011 WL 6287969 (Tex. Ct. App. 2011).

Opinions

OPINION

KEM THOMPSON FROST, Justice.

A county flood control district brings this interlocutory appeal from the trial court’s denial of its plea to the jurisdiction in a suit brought by a performance-bond surety. We conclude that the Texas Legislature has waived the district’s immunity from suit as to (1) the surety’s claim for [739]*739breach of a purchase order and (2) the surety’s claims for equitable subrogation and waste based upon breach of the performance-bond principal’s contract. Because governmental immunity bars the equitable-subrogation and waste claims that are not based upon breach of this contract, the trial court erred in denying the district’s plea to the jurisdiction as to these claims. Accordingly, we affirm in part and reverse and remand in part.

I. Factual and Procedural Background

A. Allegations in Great American’s Live Pleading

Appellee/plaintiff Great American Insurance Company brought suit against appellant/defendant Harris County Flood Control District (“District”). The District filed a plea to the jurisdiction challenging the trial court’s jurisdiction over Great American’s quantum-meruit claim and its request for attorney’s fees. The trial court denied this plea. In a prior interlocutory appeal, this court concluded that the Legislature had not waived the District’s governmental immunity from suit as to these matters. See Harris Cnty. Flood Control Dist. v. Great Am. Ins. Co., 309 S.W.3d 614, 617-18 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Accordingly, this court reversed and rendered judgment dismissing Great American’s quantum-meruit claim and attorney’s fees request for lack of jurisdiction. See id. This court did not rule on any of Great American’s other claims. See id.

On remand, Great American filed an amended petition. In the remainder of this section, we set forth the allegations and claims asserted by Great American in this amended pleading.

The District is a conservation and reclamation district that the Texas Legislature created by statute in 1937, acting under article XVI, section 59 of the Texas Constitution. The Texas Legislature has waived the District’s immunity from suit under section 271.152 of the Texas Local Government Code. Handex Construction Services entered into a contract with the District (“Handex Contract”) to construct certain channel conveyance and basin improvements in Harris County (“Project”). Han-dex began work on the Project in July 2002. As a result of change orders, the contract price for the Handex Contract was eventually increased to $5,277,298.14.

Great American, as surety for the Project under Chapter 2253 of the Texas Government Code, issued a performance bond (“Performance Bond”), which provided that if Handex abandoned the Project or otherwise failed to comply with the conditions of the Handex Contract, then Great American had the right to assume control of and complete the Handex Contract.

All work completed and materials furnished under the Handex Contract were to be measured by the Project engineer (“Engineer”), whose decisions were final. At the beginning of each month, the Engineer was required to estimate the amount of work performed during the preceding month as well as the value of the work at the unit prices set forth in the Handex Contract. From this amount, five percent would be withheld as retainage and ninety-five percent would be paid to the contractor as interim monthly payments. Handex submitted a series of pay applications to the District each month. The Engineer approved all of these applications, and the District paid Handex $4,397,640.31 in interim payments.

Handex encountered financial difficulties and Handex’s subcontractors and suppliers made numerous claims on the payment bond issued by Great American. Great American asked the District not to make any further contract payments to Handex without the written consent of Great American and to issue the balance of the [740]*740contract funds jointly to Handex and Great American. Great American made this request under its subrogation rights as surety under the payment and performance bonds. Despite this request, the District continued to issue payments directly to Handex, engaging in conduct that allegedly was “deliberate waste of the contract proceeds.” Handex filed for bankruptcy in November 2005, but for a number of months thereafter Handex continued to work on the Project and to receive additional payments from the District, contrary to Great American’s request. In March 2006, Handex rejected the Handex Contract in the bankruptcy proceeding.

The following month, the District issued a purchase order to Great American that conveyed the Handex Contract to Great American (“Purchase Order”). The Purchase Order is a written contract between the District and Great American. As Great American began work on the Project, it became apparent that the remaining unpaid balance on the Handex Contract was insufficient to complete the Project. Due to apparent negligence on the part of the Engineer, Handex’s pay applications had been approved and paid even though the quantities being excavated were grossly overstated. When Great American took over the Project, large quantities remained to be excavated, yet there was an insufficient amount remaining in the Handex Contract balance to pay for the work needed to complete the Project.

The District paid all of Handex’s payment applications without proper measurement of the amount excavated, resulting in the overpayment of Handex. In doing so, the District allegedly breached the Handex Contract. In the alternative, more soil and dirt was required to be excavated than originally had been estimated by the District, requiring extra work by Great American. Accordingly, Great American is entitled to compensation for extra work in completing the work under the Purchase Order and the Handex Contract.

In May 2007, the District issued a certificate of substantial completion, evidencing that Great American had completed its obligations under the Purchase Order and Performance Bond. Representatives of the District inspected Great American’s work and declared it to be substantially complete in accordance with the Handex Contract. The certificate was a release of Great American’s obligation to complete any remaining work. The District did not issue any payment or change order providing compensation to Great American for the work it performed in achieving substantial completion of the Project. The District made only one interim payment to Great American after it took over the Project pursuant to the Purchase Order. The District has not paid any of the other pay applications by Great American.

In January 2008, in accordance with the Handex Contract and the Purchase Order, Great American submitted to the District an application for final payment for $721,478.89, the amount that allegedly was due and owing based upon the amount of work performed and the value of that work at the unit prices established by the Han-dex Contract. Although Great American performed or substantially performed the Handex Contract pursuant to the Purchase Order, the District has refused to pay the amount due and owing to Great American under the Purchase Order, the Handex Contract, and the Performance Bond.

B. The Surety’s Claims

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359 S.W.3d 736, 2011 Tex. App. LEXIS 9826, 2011 WL 6287969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-county-flood-control-district-v-great-american-insurance-co-texapp-2011.