Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring
Opinions filed December 15, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-01040-CV


          HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant

                                            V.

             GREAT AMERICAN INSURANCE COMPANY, Appellee


                       On Appeal from the 157th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2008-19859


                    CONCURRING                      OPINION


       I agree with the disposition in the majority opinion as well as most of the analysis
contained therein. I write separately to point out a flaw in the majority’s conclusion that
Great American raised a contractual waste claim.

       The majority interprets a section of Great American’s First Amended Petition as
raising, or attempting to raise, a waste cause of action and then concludes that a portion
of that claim that is based on breach of the Handex Contract is not barred by
governmental immunity under section 271.152 of the Local Government Code. Tex.
Local Gov’t Code § 271.152. Although Great American does use the word “waste” in
the heading and the body of one section of its petition, it apparently uses that term in a
non-legal or lay sense and not to assert a common law waste claim. Compare Black’s
Law Dictionary 762 (2d pocket ed. 2001) (defining “waste” in the legal sense as meaning
“[p]ermanent harm to real property”) with The American Heritage Dictionary 1365 (2d
College ed. 1991) (defining “waste” in common usage as meaning, among other
definitions, “[t]o use, consume, or expend thoughtlessly or carelessly; squander”). A
common law cause of action for waste requires an allegation and proof of permanent
harm to real property. E.g., Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571-72
(Tex. 1981).1

        The majority is correct that a claim for waste may sound in contract; however, to
support such a claim, the contract must prohibit injury to real property that is a subject of
the contract. See R.C. Bowen Estate v. Cont’l Trailways, Inc., 256 S.W.2d 71, 72-73
(Tex. 1953). For example, in R.C. Bowen, the lease agreement between the parties
expressly incorporated a covenant requiring the tenant to use reasonable care to protect
the premises from injury. See id.

        Here, real property is not the subject of the Handex Contract. Great American
does not allege either any injury to real property or a contractual provision prohibiting it.
Great American merely complains that the District essentially squandered funds that
could have been used to pay Great American for completion of the contract. Thus,
contrary to the majority’s interpretation, Great American did not plead a cause of action
for contractual waste or any facts that could demonstrate contractual waste.

        Most of the language in the section of the Amended Petition in question appears to
be aimed at raising a tort claim, in part because it contains terms such as “duty” and
“ordinary care” which are typically used in the tort context. As the majority properly
explains, governmental immunity is not waived for these tort claims. See Tex. Local
        1
          There are also statutory causes of action for waste available in cases involving depletion of
natural resources. See, e.g., Tex. Nat. Res. Code §§ 85.046, 85.321; Discovery Operating, Inc. v. BP Am.
Prod. Co., 311 S.W.3d 140, 161-64 (Tex. App.—Eastland 2010, pet. denied).
                                                   2
Gov’t Code §§ 271.152, 271.157; Clear Lake Water Auth. v. Friendswood Dev. Co., 256
S.W.3d 735, 746 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d). The majority also
properly analyzes the immunity contentions concerning Great American’s breach of
contract and other non-tort claims. Accordingly, except for the conclusion that Great
American’s Amended Petition raised a contractual waste claim, I join the remainder of
the majority’s analysis and disposition of the case.



                                          /s/       Martha Hill Jamison
                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally. (Frost, J. majority.)




                                                3
