City of Houston v. Esparza progeny: Another interlocutory appeal by the City in a car wreck case goes nowhere, but back to the trial court

The City of Houston v. Lackey, NO. 01-11-00248-CV (Tex.App. – Houston [1^st Dist.] May 31, 2012) (City’s jurisdictional defense in suit brought under the Texas Tort Claims Act rejected; trial court’s denial of city’s plea to the jurisdiction affirmed)



City of Houston - City Hall

MEMORANDUM OPINION

The City of Houston brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction on the negligence claims of appellee, Rachel Lackey. [1]  In its sole issue, the City contends that, because Lackey chose to file suit against both the City and its employee, Will Reynolds, regarding the same subject matter, Lackey’s claims against the City are barred by section 101.106(b) of the Texas Tort Claims Act.[2]  We affirm.



Background

Lackey filed suit against both the City and Reynolds, alleging personal injuries sustained when the City vehicle operated by Reynolds backed into her vehicle as a result of Reynolds’ negligence while in the course and scope of his employment with the City and, as such, the City is liable under the doctrines of negligent entrustment and respondeat superior.

  

The City filed a general denial and asserted governmental immunity.  The City further asserted that it could not be held vicariously liable for acts of its agents and employees who are entitled to official immunity.  Reynolds filed a separate answer in which he generally denied Lackey’s allegations and claimed both governmental and official immunity.

    

Pursuant to the Texas Tort Claims Act,[3] the City subsequently moved to dismiss all of Lackey’s claims against Reynolds.  Lackey’s motion to “non-suit” her claims against Reynolds were granted.[4]  Thereafter, the City filed a plea to the jurisdiction, contending that because Lackey sued Reynolds, she had made an irrevocable election to proceed against Reynolds under section 101.106(b) of the Act’s election-of-remedies provision and was immediately and forever barred from any suit or recovery against the City regarding the same subject matter.[5]  The trial court denied the City’s plea to the jurisdiction and this interlocutory appeal followed.

   

Discussion

  

Standard of Review

  

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  The existence of subject-matter jurisdiction is a question of law that we review de novo.  State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681.  We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681.

  

Whether a governmental entity is immune from suit is a question of subject‑matter jurisdiction.  Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).  Determination of that issue here turns on construction of the Act’s election-of-remedies provision.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West 2011).  In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent.  Gonzalez, 82 S.W.3d at 327.  “[W]e ‘read the statute as a whole and interpret it to give effect to every part.’”  Id. (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)).  With respect to a statutory waiver of immunity, as in the Act, we interpret the waiver narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous.  Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (West Supp. 2011)).

  

Analysis

   

Relying on Garcia, the City argues that the election-of-remedies provision requires Lackey to sue either the City or its employee, and a claimant who sues both loses the opportunity to sue the City under section 101.106(b), or, in the City’s words, because Lackey “chose to file suit against [the City’s] employee, Reynolds, regarding the same subject matter, all her tort claims against [the City] were dead on arrival the moment suit was filed.”  See Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  Lackey responds arguing, inter alia, that section (b) is inapplicable to her suit.

   

During the pendency of this appeal, this Court has recently considered—and rejected—the same arguments urged by the City in City of Houston v. Esparza.  No. 01-11-00046-CV, 2011 WL 4925990, at *4 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (rejecting City’s contention that 101.106(b) bars suit against governmental unit when suit originally filed against both governmental unit and employee); see also Tex. Dep’t of Aging and Disability Servs. v. Johnson, No. 01‑11‑00526‑CV, 2012 WL 27728, at *2–3 (Tex. App.—Houston [1 Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial court did not err in denying plea to jurisdiction).  Thus, we hold that the trial court properly denied the City’s plea to the jurisdiction and we overrule the City’s sole issue.   

  

Conclusion

   

We affirm the order of the trial court.

   

                                                                      Jim Sharp

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

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[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2011) (permitting interlocutory appeals from court order that grants or denies plea to jurisdiction by governmental unit).

[2]         See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011). 

[3]         See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011). 

[4]         Although characterized as a “non-suit,” this was technically a voluntary partial dismissal of claims.  See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306–07 (Tex. App.—Houston [1st Dist.] 2008, no pet.).  Presumably because it granted Lackey’s “non-suit,” the trial court never ruled on the City’s section 101.106(e) motion.

[5]         See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b).

The City of Houston v. Guzman

More of the same: City of Houston insists on going forward with appeals on immunity issue it has already lost on in several prior cases. Here is the first of two more such tort claims cases decided by the First Court of Appeals on the last day of May:

   

The City of Houston v. Guzman 

NO. 01-11-00234-CV (Tex.App.- Houston May 31, 2012)

(denial of city's plea to the jurisdiction affirmed)

   

MEMORANDUM OPINION

 

The City of Houston brings this interlocutory appeal from the trial court’s order denying its plea to the jurisdiction on the negligence claims of appellee, Enrique Guzman.[1]  In its sole issue, the City contends that because Guzman chose to file suit against both the City and its employee, Brent Foltz, regarding the same subject matter, Guzman’s claims against the City were barred by section 101.106(b) of the Texas Tort Claims Act.[2]  We affirm.

Background

Guzman filed suit against both the City and Foltz, alleging personal injuries when the Houston Police Department patrol car driven by Sgt. Foltz ran into his vehicle.  According to Guzman, Foltz, who was driving the wrong way down a one‑way street at 1:30 a.m., ran a red light and struck a citizen’s vehicle.  His patrol car then rebounded from that collision and smashed into Harris County Deputy Sheriff Guzman’s vehicle as it was stopped at a red light.  Guzman asserts that Foltz was in the course and scope of his City employment and, as such, the City is liable under the doctrines of negligent entrustment, negligent hiring, failure to properly train, failure to properly supervise, and respondeat superior.  Foltz, who was never served and never appeared in this case, was later removed as a defendant by Guzman. 

Guzman’s employer, Harris County, filed an original petition in intervention for subrogated interests, seeking to collect for the benefits it had provided Guzman and expenses it had incurred as a self-insured worker’s compensation provider and any related damages to which Guzman was entitled to under the law, plus any property damage losses or loss of revenue sustained by the County.  Guzman subsequently filed his second amended petition, naming only the City as a defendant.

The City’s subsequent plea to the jurisdiction contended that, because Guzman initially filed suit against Foltz for damages arising from the same subject matter as his claims against the City, all his tort claims against the City were barred by section 101.106(b) of the Tort Claims Act.

The trial court denied the City’s plea to the jurisdiction, and this interlocutory appeal followed.

Discussion
   

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction to hear a case.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  The existence of subject-matter jurisdiction is a question of law that we review de novo.  State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333 S.W.3d at 681.  We may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff to allege facts affirmatively demonstrating it.  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681.

Whether a governmental entity is immune from suit is a question of subject‑matter jurisdiction.  Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).  Determination of that issue here turns on construction of the Tort Claims Act’s election-of-remedies provision.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  In construing a statute, our primary objective is to determine and give effect to the Legislature’s intent.  Gonzalez, 82 S.W.3d at 327.  “[W]e ‘read the statute as a whole and interpret it to give effect to every part.’”  Id. (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)).  With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, as the Legislature’s intent to waive immunity must be clear and unambiguous.  Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (West Supp. 2011)).

Analysis

Relying on Garcia, the City argues that the election-of-remedies provision requires Guzman to sue either the City or its employee, and a claimant who sues both loses the opportunity to sue the City under section 101.106(b).  See Garcia, 253 S.W.3d at 655; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106.  Guzman responds arguing, inter alia, that section (b) is inapplicable to his suit.

During the pendency of this appeal, this Court has recently considered—and rejected—the same arguments advanced by the City in City of Houston v. Esparza.  No. 01–11–00046–CV, 2011 WL 4925990, at *4 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (rejecting City’s contention that § 101.106(b) bars suit against governmental unit when suit originally filed against both governmental unit and employee); see also Tex. Dep’t of Aging and Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (following Esparza; holding trial court did not err in denying plea to jurisdiction).  As such, this Court’s jurisprudence dictates our holding that the trial court properly denied the City’s plea to the jurisdiction with respect to Guzman’s claims and, because the County’s claims are derivative of Guzman’s claims, properly denied the City’s plea to the jurisdiction with respect to those claims as well.  See generally City of Hous. v. Twin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) (holding employee’s failure to comply with notice requirement barred his claim against city, as well as insurer’s subrogation suit, which was derivative of employee’s and dependent upon employee’s recovery).

We overrule the City’s sole issue.

Conclusion

We affirm the order of the trial court.

                                                                      Jim Sharp

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

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[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2011) (permitting interlocutory appeals from court order that grants or denies plea to jurisdiction by governmental unit).

[2]         See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (West 2011).   
  

Another appeal in City of Houston car wreck litigation

Since it offers a nice compilation of the prior decisions on the same issue -- the city's effort to get immunity both for itself and its employee -- first the concurring opinion by Justice Brown:

City of Houston v. Vellejo 

(Tex.App.- Houston [1st Dist.] May 22, 2012)

CONCURRING OPINION

This Court has already decided the issue presented in this case: whether the Tort Claims Act’s election-of-remedies provision bars a plaintiff’s tort claims against a governmental unit when the plaintiff initially sued both the governmental unit and its employee. See City of Houston v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *5–10(Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed).[1] I would follow this Court’s controlling precedent and affirm the trial court’s denial of the city’s plea to the jurisdiction.

I therefore concur in the Court’s opinion.

Harvey Brown

Justice

FOOTNOTE:

Since its issuance, this Court has consistently followed Esparza.See, e.g.,City of Houston v. Gwinn, No. 01-11-00524-CV, 2012 WL 1068591, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no. pet. h.) (mem. op.) (following Esparza); Metro. Transit Auth. v. Light, No. 01-11-00747-CV, 2012 WL 252187, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.) (same); City of Houston v. Tsaig, No. 01-11-00432-CV, 2012 WL 170606, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.) (same); Tex. Dep’t of Aging & Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (same); City of Houston v. Marquez, No. 01-11-00493-CV, 2011 WL 6147772, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.)(mem. op.) (same); City of Houston v. McClain, No. 01-11-00194-CV, 2011 WL 6015697, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.) (same); City of Houston v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no. pet. h.) (mem. op.) (same). Several other courts of appeals have also followed Esparza. See, e.g., Tex. Tech Univ. Health Scis. Ctr. v. Villagran, No. 07-11-0257-CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no. pet. h.); Tex. Dep’t of Pub. Safety, No. 04-11-00271-CV, 2012 WL 726916, at *4–7 (Tex. App.—San Antonio March 7, 2012, no pet. h.).

SOURCE: HOUSTON COURT OF APPELAS – FIRST DISTRICT - 01-11-00133-CV– 5/22/12

CASE STYLE: The City of Houston v. Blanca A. Vellejo and Anjel Flores

City of Houston car wreck litigation - Another unnecessary appeal from a PI suit under the Tort Claims Act

Since it offers a  nice compilation of the prior decisions on the same issue -- the city's effort to get immunity both for itself and its employee -- first the concurring opinion by Justice Brown:

City of Houston v.  Vellejo  

(Tex.App.- Houston [1st Dist.] May 22, 2012)

 

CONCURRING OPINION

  

This Court has already decided the issue presented in this case: whether the Tort Claims Act’s election-of-remedies provision bars a plaintiff’s tort claims against a governmental unit when the plaintiff initially sued both the governmental unit and its employee. See City of Houston v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *5–10(Tex. App.—Houston [1stDist.] Oct. 7, 2011, pet. filed).[1] I would follow this Court’s controlling precedent and affirm the trial court’s denial of the city’s plea to the jurisdiction.

I therefore concur in the Court’s opinion.

                                                                    Harvey Brown

                                                                   Justice

FOOTNOTE:

Since its issuance, this Court has consistently followed Esparza.See, e.g.,City of Houston v. Gwinn, No. 01-11-00524-CV, 2012 WL 1068591, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no. pet. h.) (mem. op.) (following Esparza); Metro. Transit Auth. v. Light, No. 01-11-00747-CV, 2012 WL 252187, at *1–2 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.) (same); City of Houston v. Tsaig, No. 01-11-00432-CV, 2012 WL 170606, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.) (same); Tex. Dep’t of Aging & Disability Servs. v. Johnson, No. 01-11-00526-CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.) (same); City of Houston v. Marquez, No. 01-11-00493-CV, 2011 WL 6147772, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.)(mem. op.) (same); City of Houston v. McClain, No. 01-11-00194-CV, 2011 WL 6015697, at *2–3 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.) (same); City of Houston v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no. pet. h.) (mem. op.) (same). Several other courts of appeals have also followed Esparza. See, e.g., Tex. Tech Univ. Health Scis. Ctr. v. Villagran, No. 07-11-0257-CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no. pet. h.); Tex. Dep’t of Pub. Safety, No. 04-11-00271-CV, 2012 WL 726916, at *4–7 (Tex. App.—San Antonio March 7, 2012, no pet. h.).

SOURCE: HOUSTON COURT OF APPELAS – FIRST DISTRICT - 01-11-00133-CV – 5/22/12 

CASE STYLE: The City of Houston v. Blanca A. Vellejo and Anjel Flores

City Hall

PANEL OPINION BY JUSTICE JENNINGS

In this interlocutory appeal,[1] appellant, the City of Houston (the “City”), challenges the trial court’s order denying its plea to the jurisdiction on the tort claims made against it by appellees, Blanca Vallejo and Anjel Flores (collectively, “Vallejo”). In its sole issue, the City contends that the trial court erred in denying its plea to the jurisdiction in which the City asserted that, by filing suit against both it and its employee regarding the same subject matter, Vallejois “immediately and forever barred from any suit or recovery against [the City] regarding the same subject matter.”[2]

We affirm.

Background

 In her original petition, Vallejo alleges that she sustained personal injuries when the car in which she was traveling was struck by another car owned by the City and driven by Joshua Anderson, a City employee.  Vallejo further alleges that Anderson was operating the car in a negligent manner by failing to keep a proper lookout, driving at an excessive rate of speed, and failing to timely brake.  Vallejo asserts that Anderson is an agent or employee of the City and, as such, the City is liable under the doctrine of respondeat superior. Vallejo further asserts that the City negligently entrusted the car to Anderson and that the City’s car experienced “brake failure” at the time of the accident.

In its answer, the City generally denies Vallejo’s allegations and asserts that it is entitled to governmental immunity from Vallejo’s claims under the Texas Tort Claims Act.[3]In his separate answer, Anderson also generally denies Vallejo’s allegations and invokes the “exceptions from and limitations on liability” set forth in the Tort Claims Act. Vallejo subsequently non-suited her claims against Anderson, and the trial court signed an Order on Partial Non-Suit, dismissing without prejudice Vallejo’s claims against Anderson. 

Shortly thereafter, the City filed its plea to the jurisdiction, arguing that because Vallejo had simultaneously brought suit against both it and Anderson, Vallejois“ immediately and forever barred from any suit or recovery against [the City] regarding the same subject-matter.”[4] The City also contends that even though Vallejo non-suited her claims against Anderson, any suit against him is “forever bar[red].”[5]

The trial court denied the City’s plea. 

Standard of Review

We review de novo a trial court’s ruling on a jurisdictional plea.  See Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 927 (Tex. 2007). When reviewing a trial court’s ruling on a challenge to its jurisdiction, we consider the plaintiff’s pleadings and factual assertions, as well as any evidence in the record that is relevant to the jurisdictional issue.  City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). We construe pleadings liberally in favor of the plaintiffs, look to the pleader’s intent, and determine whether the pleader has alleged facts affirmatively demonstrating the court’s jurisdiction.  Id.  Allegations found in pleadings may affirmatively demonstrate or negate the court’s jurisdiction.  City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). 

We review the trial court’s interpretation of a statute de novo. Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).  In construing statutes, our primary objective is to give effect to the legislature’s intent as expressed in the language of the statute.  Id.; see also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005) (“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.”).  If the words of a statute are clear and unambiguous, we apply them according to their plain and common meaning.[6]Galbraith Eng’g Consultants, Inc., 290 S.W.3d at 867; City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008).

Election of Remedies

In its sole issue, the City argues that the trial court erred in denying its plea to the jurisdiction because, by filing suit against both it and its employee regarding the same subject matter, Vallejo is “immediately and forever barred from any suit or recovery against [the City] regarding the same subject matter.”SeeTex. Civ. Prac. & Rem. Code Ann. § 101.106(b) (Vernon 2011).

Governmental immunity exists to protect subdivisions of the State, including municipalities like the City, from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).  We interpret statutory waivers of governmental immunity narrowly, as the legislature’s intent to waive immunity must be clear and unambiguous.  Id.; seeTex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2011).

The Texas Tort Claims Act provides a limited waiver of governmental immunity for certain suits against governmental entities.  SeeTex. Civ. Prac. & Rem. Code §§ 101.021, 101.023, 101.025 (Vernon 2011).  And it generally waives governmental immunity to the extent that liability arises from the “use of a motor-driven vehicle or motor-driven equipment” or from “a condition or use of tangible personal or real property.”  Id. § 101.021.   

The City does not dispute that section 101.021 generally waives its immunity for negligence claims like those brought by Vallejo for damages resulting from a car collision allegedly caused by a City employee.  Rather, the City argues that a plaintiff like Vallejo who simultaneously pleads claims against both the City and its employee regarding the same subject matter is barred from obtaining relief against either the City or its employee.   

Section 101.106, entitled “Election of Remedies,” provides, in full,

(a)     The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b)     The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

(c)      The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d)     A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(e)      If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

(f)      If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

 

Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (emphasis added).

 

The City’s argument concerning the operation of the election-of-remedies provision is based upon language contained in the Texas Supreme Court’s opinion in Mission Consolidated Independent School District v. Garcia, wherein the court sought to “determine the scope of the Tort Claims Act’s election-of-remedies provision.”[7]  253 S.W.3d 653, 655 (Tex. 2008).  In Garcia, three school-district employees whose employment was terminated by the district sued for violations of the Texas Commission on Human Rights Act (“TCHRA”)[8] and for common-law intentional infliction of emotional distress.  Id. at 654–55.  The employees also sued the superintendent of the district for common-law claims of defamation, fraud, and negligent misrepresentation.  Id.  The district, citing section 101.106(b), filed a plea to the jurisdiction, arguing that the employees’ decision to sue both the district and its superintendent barred recovery against the district.  Id. at 655.  The trial court denied the district’s plea, and the court of appeals affirmed, reasoning that section 101.106 did not apply to the employees’ claims.  Id.  The court of appeals interpreted subsection (a) of section 101.106 “to only apply when [a] governmental unit alone is sued, subsection (b) to only apply when the employee alone is sued, and subsection (e) to apply when both are sued simultaneously.”  Id. at 657–58.  The court of appeals also interpreted subsection (e)’s reference to suits “filed under this chapter” to mean that section 101.106 applied only to suits for which the Tort Claims Act waived immunity.  Id. at 658.

 

The supreme court “disagree[d] with the court of appeals’ narrow interpretation,” and it discussed the potential application of both subsections (b) and (e) to the suit.  Id.  In regard to subsection (e),[9] the court concluded that because the Tort Claims Act is the “only, . . . limited[] avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be under the Tort Claims Act for purposes of section 101.106.”[10]Id. at 659 (citation omitted).  The court stated that if the district had filed, pursuant to subsection (e), a motion to dismiss the claims against the superintendent, he would have been entitled to dismissal of the employees’ suit against him.[11]Id.  The court also stated that “if the [district] had obtained [the superintendent’s] dismissal from the suit under subsection (e), all of [the employees’] tort claims against [the district] would [also have been] barred because . . . all tort theories of recovery alleged against a governmental unit are presumed to be “under the [Tort Claims Act].”[12]Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e)).  In regard to the employees’ TCHRA claims against the district, the court explained that these discrimination claims did not constitute a “suit filed under this chapter” and “would not come within subsection (e)’s purview because the Tort Claims Act expressly provides that the remedies it authorizes ‘are in addition to any other legal remedies.’” Id. (citing Tex. Civ. Prac. & Rem. Code Ann.§ 101.003). 

 

The supreme court then turned to consider subsection (b), which the district argued operated to bar the employees’ “entire suit,” including the TCHRA claims, “because [the superintendent] was sued as well, which is all that subsection (b) requires.”  Id.  The court agreed that, “to the extent subsection (b) applies, it bars any suit against the governmental unit regarding the same subject matter, not just suits for which the Tort Claims Act waives immunity or those that allege common-law claims.”  Id.  The court then noted that, unlike subsections (a), (c), (e), and (f), subsection (b) does not contain the limiting phrase “under this chapter,” and, “by subsection (b)’s literal terms, it applies to ‘any suit’ brought against the governmental unit, provided the other subsection (b) requirements are met.”  Id. at 559–60.  Noting that subsection (b) expressly operates to bar suit or recovery against a governmental unit “unless the governmental unit consents,” the court concluded that because the legislature consented to suit under the TCHRA, the TCHRA claims would survive the application of subsection (b), provided the plaintiff met the procedures outlined in that statute.  Id.  

In summarizing its holding concerning the scope of section 101.106, the supreme court stated,

We hold that the Tort Claims Act’s election-of-remedies provision applies to bar Garcia’s common-law claims against the ISD, but does not bar her TCHRA claims.

 Id. at 660.

  

Based upon the above language in Garcia, governmental units, like the City, have argued that section 101.106 creates a “harsh” fatal-filing rule that immunizes both the governmental unit and its employee when a plaintiff, who has an otherwise valid immunity-waived tort claim, files suit against both.  Courts of appeals, in addressing these arguments, have endeavored to interpret the plain language of section 101.106 in a manner that is both consistent with our supreme court’s precedent and does not lead to absurd results.  See City of Houston v. Esparza, No. 01-11-00046-CV, 2011 WL 4925990, at *5–10 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed); see alsoAmadi v. City of Houston, No. 14-10-01216-CV, 2011 WL 5099184, at *4–8 (Tex. App.—Houston [14th Dist.] Oct. 27, 2011, pet. filed); Barnum v. Ngakoue, No. 03-09-00086-CV, 2011 WL 1642179, at *11 (Tex. App.—Austin Apr. 29, 2011, pet. filed); City of N. Richland Hills v. Friend, 337 S.W.3d 387, 392–93 (Tex. App.—Fort Worth 2011, pet. granted).

 

The City’s argument for a harsh fatal-filing rule is not entirely without merit considering certain language in the Garcia opinion.  However, in addition to the language in Garcia that favors the City’s argument, which we have detailed above, there is also language suggesting that the supreme court did not intend to interpret section 101.106 in such a way as to create a fatal-filing trap that would bar plaintiffs like Vallejo from court entirely.  For example, in discussing the general purposes of the election-of-remedies provision, the court stated that the “election scheme is intended to protect governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer.”  Id. at 657 (emphasis added).  More significantly, the court stated,

 

Under the Tort Claims Act’s election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, id. § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).

 

Id. (emphasis added).  In this passage, the court expressly recognized that a plaintiff, like Vallejo, who simultaneously files suit against a governmental unit and its employee for common law tort claims for which immunity has been waived under the Tort Claims Act is not left without any remedy merely as the result of the simultaneous filing.  See id.  This is the only reasonable interpretation of the election-of-remedies provision in the Tort Claims Act because it is actually in accord with the plain language used by the legislature:

(e)      If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (emphasis added).

 

Presented with the conflicting language in Garcia, we follow the precedent of our Court in Esparza, which is in accord with the plain language used by the legislature in section 101.106(e).  Accordingly, we hold that subsection (b) does not bar Vallejo from pursuing her common law tort claims against the City.  See id. § 101.106(b), (e);Esparza, 2011 WL 4925990, at *10.  We further hold that the trial court did not err in denying the City’s plea to the jurisdiction.[13]

 

We overrule the City’s sole issue.   

 

Conclusion

 

We affirm the order of the trial court.

                                                                    Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, concurring.

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FOOTNOTES:

Freeport port authority's lack-of -jurisdiction defense in suit by contractor in payment dispute properly denied, CoA says

 
Port Freeport f/k/a Brazos River Harbor Navigation District v. RLB Contracting Inc., No. 01-11-00778-CV (Tex.App.- Houston [1st Dist.] April 26, 2012)(denial of governmental entity's plea to the jurisdiction based on alleged immunity from suit affirmed)
 

OPINION

[BY JUSTICE EVELYN KEYES]

  
Appellant, Port Freeport f/k/a Brazos River Harbor Navigation District (“Port Freeport”) challenges the trial court’s denial of its plea to the jurisdiction. It its sole issue, Port Freeport argues that the claim of appellee, RLB Contracting Inc. (“RLB”), for breach of contract does not fall within the scope of the waiver of governmental immunity in Texas Local Government Code section 271.152.[1]We affirm.
 
Background
 
Port Freeport and RLB entered into a construction contract for RLB to provide excavating, hauling, and compacting services for Port Freeport’s Velasco Terminal Site Civil Project (“the Project”). This contract was comprised of over one hundred pages. The specific agreement between Port Freeport and RLB provided that RLB, as the Contractor,
  
shall complete all Work as specified or indicated in the Contract Documents. The Work . . . generally consists of mechanical excavation to specified grades in upland areas and to EL (-) 12-ft from the channel area, placement and compaction of excavated material to specified grades in the backlands area; and installation of scour protection revetment, footbridge, protective dolphins, mooring points, building pad, access road, and utilities required to support the barge fleeting area as shown in the drawings for the VELASCO TERMINAL SITE CIVIL PROJECT.
  
It further provided that Goldston Engineering, Inc., the Project designer, was the “Engineer” for purposes of the contract documents.
 
Relevant to this appeal, the contract between RLB and Port Freeport also provided a “contract price” of $6,938,000 and stated,
 
The above total price includes the cost of the unit rate items listed below. In the unit rates, the Bidder [RLB] shall provide an all-in rate for adjusting the price of a work item should the quantity be adjusted as a result of a change in the scope of work, or the actual quantity differ from the quantity stipulated as a basis of the bid. If the Bidder notes any variances from the estimated quantities, he shall use the stipulated estimated quantities for his Base Bid and shall advise the Owner of such variances.
 
The contract then provided a “unit rate” of $7 per cubic yard for the “excavation, transport, placement and compaction of fill material in designated areas on site.” It provided a quantity of 365,000 cubic yards to be excavated at a total price of $2,555,000. The contract also established payment procedures; provided Contractor representations that RLB was “familiar with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions” and had “reviewed and checked all information and data shown or indicated on the Contract Documents,” among other things; and incorporated other general documents into the agreement between the parties, including the “General Conditions of the Construction Contract.”
 
The General Conditions, in relevant part, contained articles addressing “differing subsurface or physical conditions,” procedures for changes in the work and for providing notice of claims and disputes under the contract, methods for determining cost of the work, allowances, and unit price of the work, and methods for changing the contract price and contract times. Specifically, article 4.03 of the General Conditions provided:
  
4.03 Differing Subsurface or Physical Conditions
  
A. Notice: If Contractor believes that any subsurface or physical condition at or contiguous to the Site that is uncovered or revealed either:
  
1. is of such a nature as to establish that any “technical data” on which Contractor is entitled to rely . . . is materially inaccurate; or
2. is of such a nature as to require a change in the Contract Documents; or
3. differs materially from that shown or indicated in the Contract Documents; or
4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents;
  
then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency . . .), notify Owner and Engineer in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so.
Article 4.03 went on to provide that the Engineer would review the condition and determine the necessity of any further action and would advise the Owner, Port Freeport, in writing. It further provided that “[t]he Contract Price or the Contract Times, or both, will be equitably adjusted to the extent that the existence of such differing subsurface or physical condition causes an increase or decrease in Contractor’s cost of, or time required for, performance of the Work,” subject to certain conditions.
 
Article 10.05(A) provided the procedure for addressing “Claims and Disputes”:[2]
 
A. Notice: Written notice stating the general nature of each Claim, dispute, or other matter shall be delivered by the Contractor to Engineer and the Owner promptly (but in no event later than 30 days) after the start of the event giving rise thereto. Notice of the amount or extent of the Claim, dispute or other matter with supporting data shall be delivered to the Engineer and the Owner within 60 days after the start of such event. . . . A Claim for an adjustment in Contract Price shall be prepared in accordance with the provision of Paragraph 12.01 B. A Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of Paragraph 12.02 B. Each Claim shall be accompanied by Contractor’s written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event.
 
Article 10.05 further provided that the Engineer would render a formal decision in writing which, if approved by the Owner, would be “final and binding” on the parties unless one of them provided to the other a written notice of intent to appeal the decision. Article 10.05(F) provided: “No claim for an adjustment in Contract Price or Contract Time will be valid if not submitted in accordance with this Paragraph 10.05.”
 
Article 11.03 addressed “Unit Price Work” and provided:

A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement.

B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Engineer. . . .
 
C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and profit for each separately identified item.
  
D. Owner or Contractor may make a Claim for an adjustment in the Contract Price in accordance with Paragraph 10.05 if:

1. the quantity of any item of Unit Price Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and
2. there is no corresponding adjustment with respect to any other item of Work; and
3. Contractor believes that Contractor is entitled to an increase in Contract Price as a result of having incurred additional expense or Owner believes that Owner is entitled to a decrease in Contract Price and the parties are unable to agree as to the amount of any such increase or decrease.

Article 12.01 provided that any change to the Contract Price must be made by a written Change Order and any Claim for an adjustment “shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of article 10.05. Article 12.01(B) provided:

The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Price will be determined as follows:
  
1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 11.03). . . .
Article 12.02 addressed changes of Contract Time, which also required a change order. Article 12.02(B) provided, “Any adjustment of the Contract Times covered by a Change Order or any Claim for an adjustment in the Contract Time will be determined in accordance with the provisions of this Article 12.”
   
A dispute over various aspects of the contract’s performance resulted in RLB filing suit against Port Freeport, alleging multiple causes of action for breach of contract, including the claim that Port Freeport
has not fully compensated [RLB] in accordance with the terms of the Contract, and has materially breached the Contract by interfering with [RLB’s] performance of the Contract, failing to execute change orders in accordance with the Contract, changing the scope of Plaintiff’s work under the Contract but failing to compensate Plaintiff for the additional delays, costs and expenses resulting from the changes in Plaintiff’s scope of work, failing to adjust the Contract amount and time in accordance with the terms of the Contract, withholding Liquidated Damages due under the Contract, and failing to pay Plaintiff in accordance with the terms of the Contract.
 
RLB alleged that the contract provided for extension of the time to complete performance under certain circumstances and that it “provided for price adjustments for changes in the scope of work and other events.” It alleged that it “encountered a number of issues which complicated and delayed its performance, and caused [it] to incur additional and unforeseen expenses and costs.” RLB contended that one such complication was that
 
[t]he material excavated by [it] was significantly wetter and more silty than the parties anticipated. This resulted in the need to treat more material with lime than the parties originally anticipated in order to effectively dry it, decreased productivity, extended the time to complete the Project, and substantially increased Plaintiff’s costs. Plaintiff was required to excavate, haul, lime and compact a material and significant additional amount of this wetter than anticipated fill material not anticipated under the Contract and not contemplated in the Contract unit prices. Defendant refused to appropriately adjust the Contract price and failed to fully compensate Plaintiff for this additional work, or extend the contract time for this additional work. Plaintiff is entitled to a Contract price increase of $436,120 plus an additional amount for fuel escalation during the extended performance period. . . .
  
RLB alleged that Port Freeport “is amenable to suit for breach of contract pursuant to a waiver of immunity set forth in Texas Local Government Code § 271.152 in that [Port Freeport] executed a written contract stating the essential terms of the agreement for providing goods and services to a local governmental entity that was properly executed on behalf of the local governmental entity.” RLB also alleged that “[a]ll conditions precedent to this action, recovery under the Contract, and recovery for the claims asserted in this case have occurred, been performed or are waived, excused, and/or [Port Freeport] is estopped to assert them.” Specifically, RLB alleged that it “gave proper notice in accordance with the Contract of its claims under the Contract including without limitation, written notices on January 28, 2008, May 2, 2008, May 8, 2008, June 17, 2008, June 30, 2008, July 9, 2008, July 10, 2008, September 5, 2008, September 10, 2008, and October 20, 2008. These notices were supplemented by additional oral notices and discussions.” It further pled that any additional requirements that it give notice have “been waived by [Port Freeport], [Port Freeport] is estopped to assert such requirement, [Port Freeport] is precluded from asserting such a requirement by reason of its prior material breach of the Contract, and/or the notice provisions in the contract are void under Texas Civil Practice and Remedies Code section 16.071.” RLB sought total damages in the amount of $1,329,750.
  
Port Freeport filed a plea to the jurisdiction challenging the trial court’s jurisdiction to hear RLB’s claims. It argued that “RLB failed to meet the adjudication procedures requirements of the contract, including notice and alternative dispute resolution.”[3] Specifically, it argued that “[i]f RLB believed that the conditions of the worksite were materially different than anticipated, then the Contract Documents provided that RLB had to (i) provide Port Freeport with written notice and, (ii) stop performing any further work until Port Freeport’s engineers could assess the issue” in compliance with article 4.03 of the General Conditions. Port Freeport argued that because RLB failed to comply with the contractual, mandatory pre-suit adjudication procedure, its immunity from suit was not waived.
  
The trial court denied the plea to the jurisdiction, and this appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2011) (allowing interlocutory appeal of grant or denial of plea to jurisdiction by governmental unit).

Plea to the Jurisdiction

In its sole issue, Port Freeport argues that the trial court erred in denying its plea to the jurisdiction.

A. Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). The existence of subject matter jurisdiction is a question of law. State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). Therefore, we review the trial court’s ruling on a plea to the jurisdiction de novo. Id.
    
The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446. When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder; however, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Id. at 227–28. In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). In conducting our review, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228.
  
B. Waiver of Immunity [Statutory immunity waiver applicable to local governmental units]

[omitted]

C. Analysis

The parties do not dispute that Port Freeport is a local governmental entity empowered to enter into contracts as contemplated by section 271.152. See Williams, 353 S.W.3d at 134–35; see also Tex. Loc. Gov’t Code Ann. § 271.151(3) (providing that “‘[l]ocal governmental entity’ means a political subdivision of this state,” including “special-purpose district or authority” such as “navigation district”). Nor do the parties dispute that the nature of the contract between them was a written contract for “goods or services” provided to a local governmental entity as contemplated by section 271.151. See Williams, 353 S.W.3d at 135; see also Tex. Loc. Gov’t Code Ann. § 271.151(2) (defining “contract subject to this subchapter”);.
Port Freeport argues that RLB’s claim for an “equitable adjustment” of the unit price for the excavation work does not fall within section 271.152’s waiver of immunity from suit because: (1) the contract does not state the essential terms of the agreement between the parties on this claim; (2) RLB’s claim is properly characterized as an equitable claim, rather than as a breach of contract claim, and does not fall within that waiver; and (3) RLB did not comply with contractual pre-suit procedures, and thus RLB did not satisfy the “terms and conditions” of the subchapter because it did not comply with section 271.154.
  
1. Does the contract provide the essential terms?
  
Port Freeport argues that, because RLB did not comply with the provisions of article 4.03 regarding changed site conditions and “did not await a written change work directive from the Port before excavating the materials it now claims were wetter and siltier[,] . . . [t]here is no written contract between these parties for RLB to remove what it now claims to be materially different materials for the materially different price it now seeks.” It further argues that RLB’s claim for an “equitable adjustment” is not based on a written contract that states an essential price term.
  
The “essential terms” of an agreement include, among other things, “the time of performance, the price to be paid, . . . and the service to be rendered.” Id. at 138–39 (quoting Kirby Lake Dev. Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010)). “Contracts should be examined on a case-by-case basis to determine which terms are material or essential.” Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 74 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)). A contract is legally binding “if its terms are sufficiently definite to enable a court to understand the parties’ obligations.” Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000).
  
The contract at issue here provides the time for performance and the service to be rendered. It also provides the total contract price, and it lists a “unit rate” and estimated quantity for the “excavation, transport, placement and compaction of fill material in designated areas on site” as comprising an estimated $2,555,000 of the total contract cost. Thus, the contract provides the essential terms of time of performance, the price to be paid, and the service to be rendered. See id. Furthermore, article 11.03 of the contract addresses the final calculation of payment due for “Unit Price Work,” including the method by which the parties may seek an adjustment of the contract price.
 
The contract between Port Freeport and RLB provides:
 
In the unit rates, the Bidder [RLB] shall provide an all-in rate for adjusting the price of a work item should the quantity be adjusted as a result of a change in the scope of work, or the actual quantity differ from the quantity stipulated as a basis of the bid. If the Bidder notes any variances from the estimated quantities, he shall use the stipulated estimated quantities for his Base Bid and shall advise the Owner of such variances.
Articles 4.03, 10.05, and 12.01 also address methods for making claims for changes in the contract price, and other portions of the agreement refer to circumstances and procedures for obtaining change orders on the scope and time of work to be performed. Therefore, the contract contains the essential provisions for resolving RLB’s allegations regarding its compensation under the contract. See id.; T.O. Stanley Boot Co., 847 S.W.2d at 221; Parker Drilling Co., 316 S.W.3d at 74.
  
We observe that Port Freeport’s argument on appeal relates to only one of RLB’s breach of contract claims in the suit below. Port Freeport does not challenge on appeal the trial court’s determination that it has jurisdiction to hear RLB’s claims relating to its other allegations regarding failure to pay and adjustments to the contract time, as asserted in RLB’s petition. Thus, it is undisputed that the contract falls within the provisions of chapter 271 for some of RLB’s claims. See City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444, 447 (Tex. App.—Dallas 2008, pet. denied) (“Once the trial court determines whether the contract falls within the provisions of section 271.152, it need not parse further the pleadings or the contract to determine whether the legislature has waived immunity for breach of contract claims.”).
  
We further observe that RLB’s pleadings do not refer to the provisions of article 4.03 and that the facts and causes of action alleged in its pleadings could apply to several of the contract’s provisions, including those in article 11.03. See Williams, 353 S.W.3d at 141 (holding that reviewing court is to construe pleadings liberally in favor of plaintiff and look to pleader’s intent in determining whether jurisdiction is proper).
We conclude that the contract contains all terms essential to resolution of RLB’s breach of contract claims.

2. Is RLB’s claim properly characterized as an equitable claim?

Port Freeport also argues that RLB’s claim is essentially a claim for equitable relief rather than a claim for breach of contract and that equitable claims do not fall within the waiver provided by section 271.152.
“In determining whether jurisdiction is proper, we look to the pleadings, ‘construing them liberally in favor of the plaintiffs and looking to the pleader’s intent.’” Id. (quoting City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009)). RLB’s pleadings allege only claims for breach of contract and make no reference to any “equitable adjustment.” See id. (stating, “the City’s argument fails because the Firefighters’ claim is, overall, one for breach of contract” in determining that Firefighters’ claims that “could depend on a showing that certain parts of the City of Houston Code of Ordinances violated state law” were included within scope of section 271.152’s waiver, and observing that “[r]elevant statutes can form a part of an employment contract”). Thus, Port Freeport mischaracterizes RLB’s pleadings. The actual language of RLB’s pleadings express an intent to allege only a breach of contract cause of action.
 
We conclude that RLB has pled a breach of contract claim, not a claim in equity, and, thus, its claims fall within the scope of section 271.152.

3. Does section 271.154 prevent waiver of immunity to suit?

Finally, Port Freeport argues that RLB’s failure to comply with the procedures for addressing changes in site conditions under article 4.03 of the contract constitutes a failure to comply with contractual “adjudication procedures” under section 271.154. It argues that such a failure means that its immunity from suit is not waived for this claim.
  
In Kirby Lake Development, Ltd., the Texas Supreme Court addressed the question of whether an agreement fell outside section 271.152’s waiver of immunity because the plaintiff failed to plead for damages allowed by section 271.153. 320 S.W.3d at 839–40 (citing section 271.153’s provision limiting “[t]he total amount of money awarded in an adjudication brought against a local governmental entity for breach of contract” to “the balance due and owed by the local governmental entity under the contract”). The water authority argued that there was no “balance due and owed,” and thus its immunity from suit was not waived. Id. The supreme court held, “The 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.
 
The Dallas Court of Appeals considered an argument essentially identical to Port Freeport’s argument under section 271.154 in PKG Contracting, in which the City argued that “there is no waiver of immunity because PKG failed to comply with notice provisions in the contract for delay and extra work performed.” 263 S.W.3d at 447. The court reasoned:
 
Section 271.154 provides that if the parties agree to a particular procedure for adjudication of claims on the contract, that procedure will be enforced “except to the extent those procedures conflict with the terms” of section 271.151–.160. However, failure to give a contractual notice or to follow a contract procedure does not mean the suit is not for the purpose of adjudicating a claim for breach of a contract as defined by section 271.151(2). Whether PKG complied with the notice provisions of the contract may be an affirmative defense to the merits of the suit, but it would not deprive the trial court of subject matter jurisdiction.
Id. at 447–48 (internal citations omitted) (quoting Tex. Local Gov’t Code Ann. § 271.154).
Likewise, we read nothing in the plain language of section 271.154 to support Port Freeport’s argument that its immunity is not waived for this claim because RLB allegedly failed to comply with contractual notice procedures. Section 271.154 provides that such procedures are enforceable, but it does not provide that compliance with them is a prerequisite to invoking the waiver in section 271.152. See Tex. Local Gov’t Code Ann. § 271.154; PKG Contracting, 263 S.W.3d at 447–48; see also Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768–69 (Tex. 2000) (stating that in construing statute, courts should look to plain meaning of words used in statute).
   
We conclude that section 271.154 does not prevent the application of section 271.152’s waiver provision under the facts of this case.
  
Thus, we conclude that the trial court did not err in denying Port Freeport’s plea to the jurisdiction. We overrule Port Freeport’s sole issue.
  
Conclusion
 
We affirm the order of the trial court denying Port Freeport’s plea to the jurisdiction.
 
Evelyn V. Keyes
 
Justice
  
Panel consists of Justices Keyes, Bland, and Sharp.
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[1] See Tex. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005) (waiving governmental immunity from suit for certain types of contracts).
[2] The contract defines “Claim” as “A demand or assertion by Owner or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief sought by Contractor with respect to the terms of the Contract. . . .”
[3] Port Freeport also moved for traditional and no evidence summary judgment, which was denied by the trial court. The only ruling before this Court on interlocutory appeal is the trial court’s denial of the plea to the jurisdiction.