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Click here for the full text of this decision FACTS:The Alamo College Community District (ACCD) contracted with Browning Construction Co. to build a new campus. Browning sued ACCD for breach of contract after disagreements over delay arose. A jury decided that even though the contract had a no-damages-for-delay clause, Browning was still entitled to over $3 million in damages. ACCD raises the following issues on appeal: (1) Does sovereign immunity protect ACCD from suit? Does sovereign immunity protect ACCD from tort liability? (2) Did ACCD have a duty to Browning for design errors? (3) Was it proper for the trial court to instruct the jury that the architects were agents of ACCD? (4) Was it error for the trial court to permit the jury to assess damages for Browning’s liability to its subcontractors? (5) Does jury question 5 submit an offensive theory of estoppel, and if so, was it error for the trial court to submit it? (6) Was it error for the trial court to omit from jury question 1 an instruction on the specific contractual provisions at issue? Does jury question 1(b) violate Casteel? (7) Did the trial court submit an improper measure of damages? (8) Was there legally and factually sufficient evidence of causation to support a finding of damages for delay? (9) Was there legally and factually sufficient evidence of consideration to support the jury’s finding that ACCD and Browning agreed to modify the contract? (10) Was there legally and factually sufficient evidence of design error? (11) Did the trial court abuse its discretion in denying ACCD’s motion for new trial? (12) Was there legally and factually sufficient evidence to support the jury’s finding that ACCD waived its right to rely on the no-damages-for-delay clause as a defense to Browning’s claims? (13) Was there legally and factually sufficient evidence to support the jury’s finding that ACCD breached the contract? (14) Was there legally and factually sufficient evidence to support the jury’s finding of overhead cost damages? HOLDING:Affirmed. As has already been held in Alamo Community College District v. Obayashi Corp., 980 S.W.2d 745 (Tex.App. � San Antonio 1998, pet. denied), ACCD, as a junior college community district organized under Education Code ch. 130, is on the same legal footing as independent school districts and is not immune from suit. That case relied on Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970), which found a legislative waiver of immunity when the statute governing school districts allowed the governmental entity to “sue and be sued.” The Dallas Court of Appeals has interpreted recent Supreme Court case law to mean that independent school districts are immune from suit, but the court insists that until the Supreme Court overrules Missouri Pacific, it will stick with its own decision in Alamo. Though not immune from suit, the court acknowledges that ACCD could still be immune from liability. But, immunity from liability would follow if Browning was asserting a fraud claim, but no, as it has a contract claim. Addressing the second issue, on design errors, the court determines that the contract does indicate that ACCD was to be responsible for design errors. It was proper for the trial court to instruct the jury that the architects were agents of ACCD, the court rules in the third issue. Browning properly pleaded the issue, and six provisions of the contract itself provide that the architects are authorized to act on behalf of ACCD. The architects were agents as a matter of law. On the fourth issue, the court allows the extension of liability as a pass-through claim “[b]ecause federal law and a significant number of other jurisdictions recognize pass-through claims, because equity requires it, and because pass-through claims are not inconsistent with Texas law[.]“ The trial court’s jury instruction on estoppel was not in error. Browning was asserting estoppel to defend against ACCD’s no-damages-for-delay clause and the jury instruction is not an offensive theory of estoppel. On the sixth issue, the court rules that the trial court did not violate Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000), which prohibits a single broad-form liability question incorporating multiple theories of liability when it makes it impossible to determine whether the jury based its verdict on an improperly submitted invalid theory. The theories submitted in this case, including one for failure to provide complete and accurate drawings, are all valid. The court’s method given to the jury to calculate damages which allowed for the inclusion “additional home office overhead costs incurred by Browning to perform its work on the Project” was proper, the court rules in the seventh issue. There was legally and factually sufficient evidence of causation to support a finding of damages for delay consideration and to support the jury’s finding that ACCD and Browning agreed to modify the contract. ACCD waived its right to raise the design error question. In the 11th issue, it was not an abuse of discretion to deny ACCD’s motion for new trial, and ACCD did not explain how a new trial court have resulted in a more favorable ruling. ACCD waived its 12th issue, and in the final two issues, the court rules the evidence was factually and legally sufficient to support the jury’s finding on breach of contract. On cross-appeal, Browning argues the trial court should have ordered a judgment notwithstanding the verdict on its Prompt Pay Act claim, which the jury rejected, but the court finds the jury instruction was proper, as was the jury’s finding. OPINION:Angelini, J.; Stone, Green and Angelini, JJ.

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