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Click here for the full text of this decision FACTS:McMahon Contracting LP entered into a contract with the city of Carrollton to perform street repairs. When a dispute arose between the parties regarding payment for certain work, McMahon sued the city for breach of contract, or in the alternative, for recovery in quantum meruit. The city filed a plea to the jurisdiction on the ground that its immunity from suit had not been waived. The trial judge denied the plea, and the city appealed. HOLDING:The court sustains the city’s sole issue and holds the trial judge erred in denying the city’s plea to the jurisdiction. The court vacates the trial court’s order and renders judgment for the city. Texas Local Government Code �51.075 is, at a minimum, ambiguous as to whether it addresses a home-rule municipality’s capacity to plead and be impleaded as an entity or is an expression of the Legislature’s intent to waive the city’s immunity from suit. In reaching the same conclusion, the court in City of Mexia v. Tooke, 115 S.W.3d 618 (Tex. App. � Waco 2003, pet. granted) relied on the four factors set forth by the supreme court in Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003), to determine whether the Legislature has clearly and unambiguously waived sovereign immunity: 1. the statute waives immunity beyond doubt; for example, whether the provision in question would be meaningless unless immunity were waived; 2. ambiguities are resolved in favor of retaining immunity; 3. if the Legislature requires the State be joined in a lawsuit in which immunity would otherwise attach, the Legislature has intentionally waived the State’s sovereign immunity; and 4. whether the statute also provides an objective limitation on the State’s potential liability. As to the first factor, �51.075 is not meaningless without waiver of immunity; the provision could speak to a city’s capacity to participate in litigation when immunity has been waived or to take action to preserve immunity. As to the second factor, the court states that it should resolve ambiguities in favor of retaining immunity. As noted in Taylor, when the Legislature intends to waive immunity, often a statute will provide “sovereign immunity to suit is waived” or use similar unambiguous language. Neither the third nor the fourth Taylor factors are implicated in �51.075. The court concludes that �51.075 does not effect a waiver of the city’s immunity “by clear and unambiguous language.” The court recognizes that several courts have held �51.075 to be an unambiguous waiver of sovereign immunity for home-rule municipalities. The Texas Supreme Court has never held that the language “plead and implead” is a clear and unambiguous waiver of immunity from suit, and the court disagrees with the conclusion of its sister courts. OPINION:Mark Whittington, J.; Morris, Whittington and James, JJ.

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