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Click here for the full text of this decision FACTS:On Dec. 1, 1999, the Trinity River Authority of Texas (TRA) and Boyer Inc. entered into a contract for work on TRA’s Lake Livingston Dam improvements project. Before the work was completed, TRA and Boyer executed a change order for additional work to be done by Boyer. In June 2003, Boyer provided TRA with a revised estimate, adding $1,611,848.85 to the estimate that it previously submitted. TRA did not take action on the revised estimate and subsequently terminated the contract. In January 2004, TRA instructed Boyer to demobilize and provide a final cost accounting. Boyer submitted a balance due of $624,051. TRA disputed Boyer’s calculations, which included actual field costs and a 15 percent mark-up. After the parties failed to resolve their disagreement, Boyer filed suit. TRA filed a plea to the jurisdiction and a summary judgment motion on its plea to the jurisdiction. TRA asserted in its motion that Boyer had already been paid according to the terms of the change order. According to TRA, although Boyer claimed that TRA was not immune from suit because Boyer’s cause of action was a suit on a written contract, in this case Boyer sought additional profits, which are consequential damages. TRA argued that under the Texas Local Government Code, consequential damages are not recoverable by a plaintiff suing on a written contract. Thus, TRA argued that it had immunity from suit. TRA also asserted no-evidence grounds for summary judgment, arguing that there is no evidence that the dispute was not a bona fide dispute; thus, the Prompt Payment Act did not apply. In addition, TRA asserted that there was no evidence that Boyer gave appropriate notice or followed the procedures required under the Prompt Payment Act. In its response to TRA’s motion for summary judgment, Boyer maintained that the contract, as amended by the change order, provided for Boyer to be paid the 15 percent mark-up. Boyer asserted that the trial court had jurisdiction under Texas Local Government Code �271.151-.160 and claimed that those provisions authorized damages for a balance due under a contract, “as it may have been amended, including any compensation for the increased cost to perform the work as a direct result of owner-caused delays.” Boyer claimed that the 15 percent mark-up included “increased costs to perform,” as the mark-up included significant overhead costs, not just profits. The trial court granted summary judgment for TRA and dismissed Boyer’s claims with prejudice for lack of subject matter jurisdiction. HOLDING:Reversed and remanded. In its first issue, Boyer argued that it properly pleaded and provided sufficient summary judgment evidence to support the existence of a contract and a claim for breach of that contract. Therefore, Boyer argued that under Texas Local Government Code �271.151-.160, TRA lacked sovereign immunity. Sovereign immunity, the court stated, is waived only by clear and unambiguous language. Texas Local Government Code �271.152 states: “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.” Section 271.153 limits damages available under the subchapter to the balance due under the contract and amounts due for owner-caused delays or acceleration, the amount owed for change orders or additional work, and interest. This section goes on to state that “[d]amages awarded in an adjudication brought against a local governmental entity arising under a contract subject to this subchapter may not include . . . consequential damages.” The court found that the statutes retroactively applied to Boyer’s claim, because the parties did not assert any clear and unambiguous waiver of sovereign immunity prior to Sept. 1, 2005. In this case, the court found that Boyer sought not consequential damages, but an amount it claimed that TRA contracted to pay for work Boyer performed. Accordingly, the court held that hold that under ��271.152 and .153, the trial court erred by granting summary judgment and dismissing the case for lack of jurisdiction. Whether Boyer is correct that the contract, as modified by the change order, required TRA to pay the damages sought by Boyer is a question for the trial court and one we need not reach. The court also held that trial court erred if it based its summary judgment on TRA’s argument that under the water code, TRA had immunity from Boyer’s suit. The water code has no relevance to a determination of immunity, the court stated. OPINION:Dauphinot, J.; Livingston, Dauphinot and Walker, JJ.

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