                                   NUMBER 13-07-00484-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


LA JOYA INDEPENDENT
SCHOOL DISTRICT,                                                                            Appellant,

                                                     v.

BIO-TECH SOLUTIONS, INC.,                                                                   Appellee.


  On appeal from the 275th District Court of Hidalgo County, Texas.


                               MEMORANDUM OPINION

                    Before Justices Yañez, Rodriguez, and Garza
                      Memorandum Opinion by Justice Yañez

       In this interlocutory appeal, La Joya Independent School District (“the District”)

appeals from the trial court’s order denying its plea to the jurisdiction in a suit filed by

appellee, Bio-Tech Solutions, Inc. (“Bio-Tech”).1 In a single issue, the District contends

that the trial court erred in denying its plea to the jurisdiction. Because we conclude that

       1
           Bio-Tech asserts claim s for breach of contract, quantum m eruit, and prom issory estoppel.
the District waived its immunity by requesting affirmative relief in the trial court in the form

of filing a counterclaim against Bio-Tech and a third-party petition against Commercial

Roofing Systems (“CRS”), we affirm the trial court’s denial of the District’s plea to the

jurisdiction. However, we also hold that the District’s waiver of immunity is limited to the

damages that it affirmatively seeks in its counterclaim and third-party petition. Accordingly,

we modify the trial court’s order denying the District’s plea to the jurisdiction so that it

reflects such a limited waiver of sovereign immunity by the District, and as modified, we

affirm.

                                                 I. Background

          In June 2004, Bio-Tech was engaged in a mold-remediation project for the District

at a middle school. Later that month, severe rains and flooding caused extensive damage

to the school’s ceilings, floors, and walls, resulting in the exposure of asbestos in ceiling

and floor tiles. Bobby Garcia, president of Bio-Tech, testified that he was approached by

Ricardo Vela, Assistant Superintendent for Administration and Finance for the District, to

undertake asbestos removal and reconstruction of the building.2 Garcia testified that the

scope of the work was pursuant to an “abatement plan” that had been prepared by Health

& Safety Management, Inc. (“HSM”)3 Garcia testified that because of the emergency

nature of the work, there was no time to pursue normal bidding procedures or convene a

District board meeting. Garcia agreed that Bio-Tech would perform the work. Garcia

testified that, approximately three weeks after work on the project commenced, he



          2
              Garcia testified at an evidentiary hearing on the District’s plea to the jurisdiction on May 8, 2007.

          3
         W e note that the abatem ent plan prepared by Health & Safety Managem ent, Inc. is titled “Indoor Air
Quality Survey and Rem ediation Plan,” and is dated May 17, 2004, weeks before the rain and flood-related
dam age occurred. The plan does not m ention asbestos-related dam age or asbestos rem oval.

                                                          2
requested a letter authorizing the work. Alfredo Vela, Administrative Assistant for Budget

and Finance for the District, gave Garcia a letter dated July 21, 2004, authorizing Bio-Tech

to perform the work.

       In August 2004, Bio-Tech completed the work and submitted invoices to the District.

The District engaged the services of a consultant to review the invoices. In November

2004, the District’s board met and approved payment of one-half the invoiced amount, with

payment of the remaining half contingent on further review by the District’s consultant.

Eventually, the District refused to pay the remaining balance. On August 31, 2005, Bio-

Tech filed suit, alleging causes of action for breach of contract, quantum meruit, and

promissory estoppel.

       On October 21, 2005, the District answered, asserting: (1) that Bio-Tech’s claims

are barred by sovereign immunity and governmental immunity, and (2) a counterclaim for

overpayment, contending that the amount paid to Bio-Tech exceeded the reasonable value

of the work performed by at least $153,841.85. In January 2006, the District filed a third-

party petition against Commercial Roofing Systems, Inc. (“CRS”), the contractor that

performed roof-repair work on the school building. The District contends that CRS was

negligent in failing to make the roof watertight, which resulted in the damage to the

building. The District asserts that CRS is liable for “part or all” of any amount the District

may be adjudged to owe to Bio-Tech.

       On August 11, 2006, the District filed its plea to the jurisdiction. The trial court held

an evidentiary hearing on May 8, 2007. On June 13, 2007, the trial court denied the plea

to the jurisdiction, finding that questions of material fact existed as to (1) “[t]he existence

of a written, valid contract executed by an authorized person” between the District and Bio-


                                               3
Tech and (2) whether the District “waived immunity by its conduct under the extraordinary

factual circumstances existing in this cause.”

                           II. Standard of Review and Applicable Law

        Sovereign immunity, encompassing both immunity from suit and immunity from

liability, protects political subdivisions of this state from lawsuits for money damages;

sovereign immunity from suit deprives a trial court of subject matter jurisdiction.4 Absent

an express waiver of its sovereign immunity, the State is generally immune from suit.5 As

a general rule, courts have deferred to the legislature to waive sovereign immunity.6 A plea

questioning the trial court’s jurisdiction raises a question of law that we review de novo.7

        The plaintiff has the burden to allege facts affirmatively demonstrating that the trial

court has subject matter jurisdiction.8 We take as true the facts pleaded in the plaintiff's

petition in determining whether those facts support jurisdiction in the trial court, and we

may review the entire record to determine if there is jurisdiction.9 Indeed, a court deciding

a plea to the jurisdiction is not required to look solely to the pleadings, but may also

consider evidence, and must do so when necessary to resolve the jurisdictional issues

raised.10 When necessary, we will consider relevant evidence submitted by the parties to


        4
          Tex. Dep’t of Transp. v. Crockett, 257 S.W .3d 412, 414 (Tex. App.–Corpus Christi 2008, pet. denied)
(citing Reata Constr. Corp. v. City of Dallas (Reata II), 197 S.W .3d 371, 374 (Tex. 2006)).

        5
            State v. Holland, 221 S.W .3d 639, 643 (Tex. 2007); Crockett, 257 S.W .3d at 414.

        6
            Crockett, 257 S.W .3d at 414.

        7
            Holland, 221 S.W .3d at 642; Crockett, 257 S.W .3d at 414.

        8
            Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W .2d 440, 446 (Tex. 1993).

        9
            Id.

        10
          Bland Indep. Sch. Dist. v. Blue, 34 S.W .3d 547, 555 (Tex. 2000); see County of Cameron v. Brown,
80 S.W .3d 549, 555 (Tex. 2002).

                                                       4
resolve the jurisdictional dispute if the plea to the jurisdiction implicates the merits of the

plaintiff’s cause of action and relevant evidence is submitted by the parties.11 The

reviewing court, however, should confine itself to the evidence relevant to the jurisdictional

issue.12

           We take as true all evidence favorable to the non-movant and indulge every

reasonable inference and resolve any doubts in the non-movant's favor.13 If the evidence

creates a fact question regarding the jurisdictional issue, then the trial court cannot grant

the plea to the jurisdiction, and the fact question will be resolved by the fact finder.14 If the

relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue,

however, the trial court rules on the plea to the jurisdiction as a matter of law.15

           A party may not challenge conclusions of law for factual sufficiency, but we may

review conclusions of law to determine their correctness based upon the facts.16 We will

uphold a conclusion of law if the judgment can be supported on any legal theory supported

by the evidence.17 We review conclusions of law de novo,18 and we will not reverse them




           11
                Tex. Dep’t of Parks & W ildlife v. Miranda, 133 S.W .3d 217, 226 (Tex. 2004) (citing Bland, 34 S.W .3d
at 555).

           12
                Bland, 34 S.W .3d at 555.

           13
                Miranda, 133 S.W .3d at 228.

           14
                Id. at 227-28; Bland, 34 S.W .3d at 555.

           15
                Miranda, 133 S.W .3d at 227-28; Bland, 34 S.W .3d at 555.

           16
                Citizens Nat’l Bank v. City of Rhome, 201 S.W .3d 254, 256 (Tex. App.–Fort W orth 2006, no pet.).

           17
           BMC Software Belg., N.V. v. Marchand, 83 S.W .3d 789, 794 (Tex. 2002); Tex. Dept. of Public
Safety v. Stockton, 53 S.W .3d 421, 423 (Tex. App.–San Antonio 2001, pet. denied).

           18
                State v. Heal, 917 S.W .2d 6, 9 (Tex. 1996).

                                                            5
unless they are erroneous as a matter of law.19

        The Texas Local Government Code waives a local government’s immunity from suit

for certain contractual claims. Section 271.152 provides that:

        [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.[20]

The statute defines a “contract subject to this subchapter” as “a written contract stating the

essential terms of the agreement for providing goods or services to the local governmental

entity that is properly executed on behalf of the local governmental entity.”21

        When sovereign immunity is implicated and a governmental entity seeks affirmative

relief, it waives immunity from suit for any claim that is “germane to, connected with, and

properly defensive to the [governmental entity’s] claims, to the extent [the private entity]’s

claims offset those asserted by the [governmental entity].”22 As the supreme court has

explained,

        To qualify as a claim for affirmative relief, a defensive pleading must allege
        that the defendant has a cause of action, independent of the plaintiff’s claim,
        on which he could recover benefits, compensation or relief, even though the
        plaintiff may abandon his cause of action or fail to establish it.23

A governmental entity’s counterclaim seeking damages constitutes a waiver of “immunity


        19
             Stockton, 53 S.W .3d at 423.

        20
         T    EX .   L O C . G O V ’T C OD E A N N . § 271.152 (Vernon 2005).

        21
             Id. § 271.151(2) (Vernon 2005).

        22
             Powell v. Tex. Dep’t of Criminal Justice, 251 S.W .3d 783, 791 (Tex. App.–Corpus Christi 2008, pet.
filed) (citing Sweeny Cmty. Hosp. v. Mendez, 226 S.W .3d 584, 589 (Tex. App.–Houston [1st Dist.] 2007, no
pet.)).

        23
          DeQuire v. City of Dallas, 192 S.W .3d 663, 666 (Tex. App.–Dallas 2006), rev’d on other grounds,
249 S.W .3d 428 (Tex. 2008) (quoting BHP Petroleum Co., Inc. v. Millard, 800 S.W .2d 838, 841 (Tex. 1990)).

                                                               6
from suit for claims germane to, connected with, and properly defensive to its counterclaim

to the extent” the opposing party’s claims act as an offset to the governmental entity’s

recovery.24 The supreme court has implied that the term “properly defensive” is not

intended to “restrict jurisdiction for the type of claim raised, but, rather, to restrict jurisdiction

over the amount of a claim for damages against the governmental entity to the amount that

the government actually recovers.”25               There is no substantive difference between a

decision by the governmental entity to file an original suit and its decision to file a

counterclaim.26

                                              III. Discussion

        In its live petition, Bio-Tech asserts that the District waived its sovereign immunity:

(1) by entering into a written contract in compliance with sections 271.151 and 271.152 of

the local government code; (2) through its conduct in ratifying the contract; and (3) by filing

a counterclaim for overpayment that is germane to and connected with Bio-Tech’s claim.

We begin by addressing Bio-Tech’s breach of contract claim.

                                         A. Breach of Contract

        Bio-Tech argues that the trial court did not err in denying the District’s plea to the

jurisdiction because section 271.152 of the local government code waives governmental

immunity for breach of contract claims and “[a]t a minimum, . . . a fact issue exists as to the

existence of a contract” with the District. According to Bio-Tech, the July 21, 2004

authorization letter from Alfredo Vela and the HSM remediation plan, taken together,


        24
            City of Dallas v. Bargman, 207 S.W .3d 926, 931 (Tex. App.–Dallas 2006, no pet.) (citing City of
Irving v. Inform Constr., Inc., 201 S.W .3d 693, 694 (Tex. 2006) (per curiam )).

        25
             Sweeny, 226 S.W .3d at 593-94 (citing Reata II, 197 S.W .3d at 377 n.3).

        26
             Muenster Hosp. Dist. v. Carter, 216 S.W .3d 500, 505 n.4 (Tex. App.–Fort W orth 2007, no pet.).

                                                       7
“constitute a written contract as that term is used in [s]ection 271.151 of the Local

Government Code.”27 Bio-Tech argues that “contracts may consist of multiple documents.”

In its plea to the jurisdiction, the District argued that “[t]here is no written contract that was

ratified by [the District’s] board of trustees.” As noted, the trial court found there was a

question of material fact as to “[t]he existence of a written, valid contract executed by an

authorized person as between [the District and Bio-Tech].”

         We agree with the District. Bio-Tech relies on Courage Co. v. Chemshare Corp.28

as support for its argument that “contracts may consist of multiple documents.” We find

Bio-Tech’s reliance on Courage Co. to be misplaced. Courage Co. did not involve a

waiver-of-immunity issue.29 In a recent case involving an alleged contract and waiver of

immunity pursuant to section 271.152, this Court rejected the argument that Bio-Tech

urges us to accept here.30 As we noted, under sections 271.151 and 271.152, “for a

contract to waive governmental immunity, it must be written and properly executed.”31

Here, we conclude that the July 21, 2004 authorization letter from Alfredo Vela and the

HSM remediation plan do not constitute a “written contract stating the essential terms of

the agreement” within the meaning of sections 271.151 and 271.152 of the local


         27
              See T EX . L O C . G O V ’T C OD E A N N . § 271.152.

         28
              See Courage Co. v. Chemshare Corp., 93 S.W .3d 323, 333 (Tex. App.–Houston [14th Dist.] 2002,
no pet.).

         29
              Id. at 326-29.

       30
          See Vantage Sys. Design v. Raymondville Indep. Sch. Dist., No. 13-08-311-CV, 2009 Tex. App.
LEXIS 2472, at *8 (Tex. App.–Corpus C hristi April 9, 2009, no pet. h.) (rejecting applicability of “m ultiple
docum ent standard” to waiver of sovereign im m unity by governm ental entity).

         31
           See id. Section 271.151(2) provides: “Contract subject to this subchapter” m eans a written contract
stating the essential term s of the agreem ent for providing goods or services, to the local governm ental entity
that is properly executed on behalf of the local governm ental entity.” T EX . L O C . G O V ’T C OD E A N N . § 271.151(2)
(Vernon 2005).

                                                                 8
government code.32 Accordingly, we hold that no question of material fact exists regarding

the existence of a written valid contract in compliance with sections 271.151 and 271.152

between the District and Bio-Tech.33

                                          B. Waiver by Conduct

        Bio-Tech also contends that the District waived its sovereign immunity by its

conduct. Specifically, Bio-Tech alleged in its petition that the District “also waived its

sovereign immunity through its conduct in ratifying the contract, since the work which was

performed was authorized under the contract.” In its brief, Bio-Tech argues that “[t]he

extraordinary factual circumstances in the case at bar constitute a waiver by conduct

exception to [the District’s] claimed immunity.” The trial court found that “a question of

material fact exists with respect to whether [the District] waived immunity by its conduct

under the extraordinary factual circumstances existing in this cause.”

        The supreme court has declined to apply a waiver-by-conduct exception,34 and this




        32
           W e note that it is undisputed that neither the July 21, 2004 letter nor the H SM rem ediation plan
m ention a price for the proposed construction. It is also undisputed that the HSM rem ediation plan was not
prepared by Bio-Tech and was prepared prior to the occurrence of the water-related dam age at issue.

          33
             W e note that as alternative theories of recovery, Bio-Tech pleaded claim s for quantum m eruit and
prom issory estoppel. In its brief, Bio-Tech states that its “alternative pleading of quantum m eruit in the instant
case does not assert or even suggest that such a claim constitutes a waiver under Local Governm ent Code
section 271.152.” Rather, the alternative pleading “is prem ised on the unlikely event the trier of fact
determ ines that no written contract exists however; [sic] La Joya waived im m unity by its conduct . . . .”
Sim ilarly, Bio-Tech notes that its alternative claim of prom issory estoppel “does not assert or even suggest”
a waiver under section 271.152, but is also “prem ised on the unlikely event the trier of fact determ ines that
no written contract exists however; [sic] La Joya waived im m unity by its conduct . . . .” As these argum ents
address the m erits of Bio-Tech’s claim s and do not address jurisdictional facts, we do not address them . See
T EX . R. A PP . P. 47.1; Bland, 34 S.W .3d at 555.

        34
          See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W .3d 835, 840 (Tex. 2007) (“[The plaintiff] advances
a waiver-by-conduct argum ent . . . but we have consistently rejected that position and held that ‘the State does
not waive its im m unity from a breach-of-contract action by accepting the benefits of a contract.’”) (quoting
Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W .3d 591, 598 (Tex. 2001)).

                                                         9
Court, relying on supreme court precedent, has declined to find such an exception.35 We

again decline to apply a waiver-by-conduct exception in this case. We do not believe that

an equitable basis for such a waiver exists under the facts in this case. We hold that no

fact question exists as to whether the District waived its immunity from suit by its conduct.

                                 C. Waiver by Filing Counterclaim

        In its petition, Bio-Tech also asserts that the District waived its sovereign immunity

by filing a counterclaim for overpayment. At the evidentiary hearing on the District’s plea

to the jurisdiction, Bio-Tech argued that the District waived its immunity from suit by

seeking affirmative relief in the form of its counterclaim and its third-party petition against

CRS. We agree.

        As this Court has noted, “[w]hen sovereign immunity is implicated, however, and a

governmental entity seeks affirmative relief, it waives immunity from suit for any claim that

is ‘germane to, connected with, and properly defensive to the [governmental entity’s]

claims, to the extent [the private entity]’s claims offset those asserted by the [governmental

entity].’”36 The supreme court in Reata restricted the waiver to only those claims that have

a nexus with the governmental entity’s claim.37 The term “germane” has been defined as

“closely akin,” “being at once relevant and appropriate,” “closely or significantly related,”

“relevant,” and “pertinent.”38


        35
          See City of Alton v. Sharyland W ater Supply Corp., No. 13-06-038-CV, 2009 Tex. App. LEXIS 749,
at *15 (Tex. App.–Corpus Christi Feb. 5, 2009, pet. filed) (op. on reh’g) (declining to create a waiver-by-
conduct exception); Patterson v.Gulf Marine Inst. of Tech., No. 13-06-067, 2008 Tex. App. LEXIS 1462, at
*25-26 (Tex. App.–Corpus Christi Feb. 28, 2008, pet. denied) (m em . op.).

        36
             Powell, 251 S.W .3d at 791.

        37
             Crockett, 257 S.W .3d at 414-15 (citing Reata II, 197 S.W .3d at 377).

        38
             Id. at 415 (citing Sweeny, 226 S.W .3d at 592).

                                                       10
        Here, Bio-Tech initiated suit to recover for breach of contract. Bio-Tech claims that

it has not been paid the balance due for the work it performed pursuant to the alleged

contract with the District. The District filed a counterclaim, asserting that the amount it paid

to Bio-Tech was at least $153,841.85 more than the reasonable value of the work Bio-Tech

performed on the building. The parties’ claims arise from the same transaction. Moreover,

based on the parties’ pleadings, Bio-Tech’s claim that it has not been paid the balance due

for the work it performed is “germane to” and “connected with” the District’s claim that it

overpaid for that work.

        With regard to whether Bio-Tech’s claim is “properly defensive to” the District’s

claim, the supreme court implied that the term “properly defensive” was not intended to

“restrict jurisdiction for the type of claim raised, but, rather, to restrict jurisdiction over the

amount of a claim for damages against the governmental entity to the amount that the

government actually recovers.”39 Thus, the court has jurisdiction over Bio-Tech’s claim

insofar as it is not in excess of the District’s counterclaim for overpayment. In other words,

the District continues to have immunity from suit for any monetary relief exceeding the

amount necessary to offset its overpayment claim.40

        The District asserted in its third-party petition that if it is adjudged to owe Bio-Tech

any amount, CRS is liable for part or all of that amount. The District’s claim against CRS

is that CRS’s negligence in repairing the roof of the building resulted in the water damage.

To establish CRS’s negligence, the District must establish a duty, a breach of that duty,


        39
             See Sweeny, 226 S.W .3d at 593-94 (citing Reata II, 197 S.W .3d at 377 n.3).

        40
            See Muenster, 216 S.W .3d at 501 (holding waiver of im m unity is lim ited to the dam ages that the
governm ental entity affirm atively seeks); see also City of Irving, 201 S.W .3d at 694 (“[T]he City retains
im m unity from suit . . . to the extent [the private party’s] dam ages exceed am ounts offsetting the City’s
m onetary recovery, absent legislative waiver of that im m unity.”) (citing Reata II, 197 S.W .3d at 371).

                                                      11
and damages proximately caused by the breach.41 In its third-party petition, the District

pleaded:

         As a result of [CRS’s] negligen[ce,] . . . [the District] incurred costs for repairs
         to [the building]. Thus, [CRS] is liable to pay to [the District], part or all of the
         amount of money which [the District] may be adjudged to pay to [Bio-Tech]
         in its claim filed against [the District] in this lawsuit. . . . [T]he amount of
         money which [CRS] may be liable to pay to [the District], as damages for its
         negligence, is a common fact question in both claims [Bio-Tech’s and the
         District’s third-party petition], as it may determine the amount of money which
         [the District] may be adjudged to pay to [Bio-Tech], if any, in this lawsuit.

We conclude that Bio-Tech’s claim against the District—that it has not been paid the

balance due for the work it performed—is “germane to, connected with, and properly

defensive to” the District’s third-party petition against CRS.42

                                              IV. Conclusion

         We affirm the trial court’s denial of the District’s plea to the jurisdiction. However,

we hold that: (1) no question of material fact exists as to the existence of a written valid

contract in compliance with sections 271.151 and 271.152 of the local government code

between the District and Bio-Tech; and (2) no question of material fact exists as to whether

the District waived immunity by its conduct. We also hold that the District’s waiver of

immunity is limited to the damages it affirmatively seeks in its counterclaim and its third-

party petition. Accordingly, we modify the trial court’s order denying the District’s plea to

the jurisdiction so that it reflects such a limited waiver of sovereign immunity by the District,




         41
              See Kroger Co. v. Ellwood, 197 S.W .3d 793, 794 (Tex. 2006).

         42
            See Sweeny, 226 S.W .3d at 592 (“W e view Reata II as having two dim ensions of analysis: first,
the party’s claim m ust be sufficiently related to the governm ental unit’s affirm ative claim for relief, and second,
the party’s am ount of a claim for dam ages against the governm ental entity is restricted to the am ount that the
governm ental entity will actually recover.”).

                                                         12
and as modified, affirm.43




                                                          LINDA REYNA YAÑEZ,
                                                          Justice

Memorandum Opinion delivered and
filed this the 23rd day of April, 2009.




        43
          See Muenster, 216 S.W .3d at 501; City of Angleton v. USFilter Oper. Servs., Inc., 201 S.W .3d 677,
678 (Tex. 2006) (reversing court of appeals’s judgm ent that governm ental entity’s counterclaim operated as
com plete waiver of im m unity).

                                                    13
