                                                                                   ACCEPTED
                                                                              05-14-01515-CV
                                                                    FIFTH COURT OF APPEALS
                                                                             DALLAS, TEXAS
                                                                         2/16/2015 4:01:51 PM
                                                                                   LISA MATZ
                                                                                       CLERK

                         NO. 05-14-01515-CV

                                                              FILED IN
                                                       5th COURT OF APPEALS
                   IN THE COURT OF APPEALS                 DALLAS, TEXAS
                FOR THE FIFTH DISTRICT OF TEXAS        2/17/2015 8:48:00 AM
                                                             LISA MATZ
                                                               Clerk

                  TXU Energy Retail Company L.L.C.
                                                 Appellant

                                  v.

                 Fort Bend Independent School District
                                                    Appellee.


      On Appeal from the 116th District Court of Dallas County, Texas
Trial Court Cause No. DC-13-14961, the Honorable Tonya Parker Presiding


                 REPLY BRIEF FOR APPELLANT


                                Michael K. Hurst
                                 mhurst@ghjhlaw.com
                                 State Bar No. 10316310
                                A. Shonn Brown
                                 sbrown@ghjhlaw.com
                                 State Bar No. 24007164
                                John Franklin Guild
                                 jguild@ghjhlaw.com
                                 State Bar No. 24041022
                                Gruber Hurst Johansen Hail Shank LLP
                                1445 Ross Avenue, Suite 2500
                                Dallas, Texas 75202
                                Telephone No. (214) 855-6800
                                Facsimile No. (214) 855-6808

                                ATTORNEYS FOR APPELLANT
                                    TABLE OF CONTENTS


TABLE OF CONTENTS..................................................................................... ii
INDEX OF AUTHORITIES .............................................................................. iii
ARGUMENT ........................................................................................................1
    A.        Fort Bend Continues To Ignore The Fact That The Blend And
              Extend Provision Was Itself Competitively Bid. ....................................... 2

    B.        Fort Bend’s Waiver Of Immunity Could Not Be More Explicit. .......... 9
              1. TXU Did Not Waive Its Argument Based On The Express
                 Representations And Warranties Contained In The Original
                 2010 Agreement. ............................................................................12
              2. Fort Bend’s Arguments On The Merits Of TXU’s Claim are
                 Not Responsive To The Jurisdictional Question; But Even If
                 The Court Were To Consider The Merits Of TXU’S Claim,
                 Reversal Is Required. .....................................................................14
              3. TXU’s Claims Based On The Express Terms Of The Original
                 2010 Agreement Are Not “Quasi-Contractual.” ............................17
    C.        The Texas Supreme Court Has Not Completely Foreclosed The
              Possibility Of Waiver Of Governmental Immunity By Conduct,
              And This Court Has Never Directly Addressed A Situation As
              Extreme As The Facts Presented Here. ...................................................... 18
    D.        TXU Preserved Its Promissory Estoppel Claim Through Its
              Argument Relating to Waiver By Conduct. .............................................. 20
PRAYER .............................................................................................................22
CERTIFICATE OF COMPLIANCE WITH RULE 9.4.....................................22
CERTIFICATE OF SERVICE ...........................................................................23




                                                       ii
                                       INDEX OF AUTHORITIES

    Cases

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ......................... 5, 7, 14

City of Denton v. Mun. Admin. Servcs, 59 S.W.3d 764 (Tex. App.—
  Fort Worth 2001, no pet. h) ....................................................................................8

City of Freeport v. Briarwood Holdings, L.L.C., No. 01- 11-01108-CV,
  2013 WL 1136576 (Tex. App.—Houston [1st Dist.] Mar. 19,
  2013, no pet.) ........................................................................................................18

Daniels Building & Constr. v. Silsbee Indep. Sch. Dist., 990 S.W.2d 947
 (Tex. App.—Beaumont 1999, pet. dism’d) ............................................................8

Dugan v. Compass Bank, 129 S.W.3d 579 (Tex. App.—Dallas 2003, no pet.) ......13

FPL Energy, LLC v. TXU Portfolio Mgmt. Co., L.P., 426 S.W.3d 59
 (Tex. 2014) (emphasis added) ..............................................................................10

GADV, Inc. v. Beaumont Indep. Sch. Dist., Civil Act. No. 1:11-CV-187,
 2011 U.S. Dist. 60983 (E.D. Tex. 2011) ................................................................8

Gentilello v. Univ. of Texas Sw. Health Sys., 05-13-00149-CV, 2014
 WL 1225160 (Tex. App.—Dallas Mar. 24, 2014), review denied
 (Oct. 3, 2014) ........................................................................................... 18, 19, 20

Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905 (Tex. 2007) ......................11

In re Hays Cnty. Sheriff’s Dep’t, No. 03-12-00343-CV, 2012 WL 6554815
  (Tex. App.—Austin Dec. 12, 2012) (orig. proceeding) (mem. op.)
  (Pemberton J., concurring) ...................................................................................18

Kaufman County v. Combs, 393 S.W.3d 336 (Tex. App.—Dallas 2012,
 pet. denied) ...........................................................................................................19

La Marque Indep. Sch. Dist. v. Healthy Res. Enterp., Inc., 357 S.W.3d 761
  (Tex. App.—Houston [14th Dist.] 2011, no pet. h) ...............................................5



                                                            iii
Mitsuba Texas, Inc. v. Brownsville Indep. Sch. Dist., Cause No. 05-97-01271-CV,
 2000 WL 122348 (Tex. App.—Dallas 2000, no pet. h) .........................................8

Richmond Printing v. Port of Houston Auth., 996 S.W.2d 220 (Tex. App.—
  Houston [14th Dist.] 1999, no pet. h) ...............................................................7, 10

Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) ................................14

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407
  (Tex. 2011) .................................................................................................... 18, 19

Texas S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893
  (Tex. App.—Houston [1st Dist.] 2007, pet. denied) ............................................19

United States v. Walker, Civ. Act. No. 1:11-CR-67, 2011 WL 6181468
 (E.D. Tex. 2011) .....................................................................................................7

Walker v. Cotter Properties, Inc., 181 S.W.3d 895 (Tex. App.—Dallas 2006,
 no pet.) ..................................................................................................................17


    Statutes

TEX. EDUC. CODE ANN § 44.0351(c) .........................................................................3

TEX. EDUC. CODE ANN § 44.0352 ..............................................................................3

TEX. EDUC. CODE ANN. § 44.031(b)(9) ......................................................................3

TEX. R. APP. P. 33.1(a)(1) ........................................................................................13




                                                             iv
                                  ARGUMENT
      Rather than attempting to explain why governmental immunity should bar

TXU’s claims for $3,169,046.38 resulting from Fort Bend’s choice to disregard its

contractual obligations under the undisputed facts and circumstances in this case,

Fort Bend simply ignores the case-specific facts at hand and focuses on broad

generalizations. The facts at hand are: (1) Fort Bend competitively procured an

electricity contract through a request for proposal that expressly requested blend

and extend availability and received multiple competing bids proposing blend and

extend availability, meaning that the competitive bidding statute was satisfied; and

(2) even if the 2011 Contract Extension implementing the blend and extend

provision in the original 2010 Agreement were void (it is not), Fort Bend

unambiguously assumed liability for damages caused to TXU by Fort Bend’s

avoidance of the 2011 Contract Extension and expressly waived governmental

immunity in a written contract that everyone agrees was competitively bid, i.e. the

original 2010 Agreement.

      Notably, Fort Bend does not directly address either of these facts in the body

of its brief, instead relegating both issues to non-substantive footnotes. Fort Bend

spends the majority of its brief discussing general standards that are not contested

and cases involving contracts that did not involve any competitive bidding process.




                                         1
Fort Bend’s avoidance of the contested issues on appeal is telling—it has no

substantive response.

A.    Fort Bend Continues To Ignore The Fact That The Blend And Extend
      Provision Was Itself Competitively Bid.

      Fort Bend’s request for governmental immunity relies entirely on its

argument that the 2011 Contract Extension is void. According to Fort Bend, the

2011 Contract Extension is void because it was not subject to a second separate

and independent competitive bidding process following the competitive bidding

process resulting in the original 2010 Agreement. Appellee’s Br. at 14-19. But

nowhere does Fort Bend cite authority for its argument that the 2010 competitive

bidding process was insufficient under the facts in this case.

      It is undisputed that in May 2010, Fort Bend issued a request for

qualifications seeking competitive bids for the supply of electricity. (Appx. 2(A-

2), CR 391-410)      Fort Bend stated “each company will be evaluated on the

following criteria…Blend and extend availability….” (Appx. 2(A-2) at 6, CR 396)

TXU, like all the other top bidders, included a sample blend and extend provision

in its proposal, as requested by Fort Bend. (Appx. 2(A) ¶ 5, CR 364; RR 58:24-

59:17; Appx. 2(A-2) at 6, CR 396; Appx. 2(A-4), CR 412) The 2011 Contract

Extension was simply the implementation of the parties’ intent when they included

blend and extend availability in the original 2010 Agreement, which was exercised




                                          2
during the period set forth in the request for qualification. (Appx. 2(A) ¶ 9, CR

364; Appx. 2(A-5), CR 413)

      In an effort to avoid discussing the undisputed fact that the blend and extend

provision was competitively bid, Fort Bend falsely suggests that it is TXU that

seeks to ignore the factors Fort Bend disclosed to potential competitors.

Appellee’s Br. at 18. But only Fort Bend ignores its explicit request for “blend and

extend availability” in its request for qualifications. Indeed, rather than addressing

the issue, Fort Bend boldly, and without citation to any authority, claims in a

footnote that “[i]t is immaterial that the District requested blend and extend

availability” in its request for qualifications. Appellee’s Br. at 19, n.8; (Appx.

2(A-2) at 6, CR 396)

      This simply cannot be so. As Fort Bend itself asserts, the specifications

published by Fort Bend, including the specification for blend and extend

availability, provided a list “that interested bidders can tailor their bids to.”

Appellee’s Br. at 18. Not only did Fort Bend give everyone an equal footing to

compete for a blended and extended duration beyond the original term, but once it

did, Fort Bend was required by the Texas Education Code to consider the

availability of a blend and extend provision in ranking the proposals. See TEX.

EDUC. CODE ANN. § 44.031(b)(9) (“district shall consider: …(9) any other relevant

factors specifically listed in the request for bids or proposals.”); see also id. §



                                          3
44.0351(c) (directing school districts to consider other factors in selection criteria

beyond pricing when using a competitive bid); § 44.0352 (directing school districts

to consider other factors in the selection criteria beyond pricing when using

competitive sealed proposals).

      Fort Bend’s unbelievable claim that TXU’s competitors were unaware that

the 2010 competitive bidding process might result in a contract with blend and

extend availability is entirely unsupported by the record. See Appellee’s Br. at 18-

19. Not only did TXU offer blend and extend availability during the bidding

process, as directed by Fort Bend, but so did the second and third rated bidders.

(See RR 58:24-59:17; Appx. 2(A-2) at 6, CR 396; Appx. 2(A-4), CR 412 (noting

that “[t]he top three [bidders] provided adequate provision per the district

RFQ….”) It is undisputed that there was in fact competition for the contract,

including for a blended and extended term. The first time anyone disputed the

validity of the competitively bid blend and extend provision was after energy

prices dropped and Fort Bend decided to shop for a better deal. (See Appx. 2(A) at

¶ 23, CR 367).

      Indeed, the only record citation to support Fort Bend’s claim that other

bidders were misled by Fort Bend’s request for qualification is to the self-serving

hearsay statement of one of Fort Bend’s employees that some unidentified

competitors asked in 2012 when the next competitive bidding period for electricity



                                          4
would begin.1 See id.       At best, Fort Bend’s proffered evidence suggests that

competitors were inquiring as to whether Fort Bend had exercised the blend and

extend provision it requested of all bidders in 2010. Not only does the evidence

not support the inference that Fort Bend attributes to it, but at least two of those

very same competitors had themselves proposed blend and extend provisions,

meaning that there is at least fact question precluding the grant of summary

judgment and Fort Bend’s plea to the jurisdiction. See Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 555 (Tex. 2000) (“If a fact issue exists, the Court should

deny the plea.”); La Marque Indep. Sch. Dist. v. Healthy Res. Enterp., Inc., 357

S.W.3d 761, 763 (Tex. App.—Houston [14th Dist.] 2011, no pet. h).

       Fort Bend also mischaracterizes TXU’s theory of this case by suggesting

that TXU has argued that any contract may be extended for any period of time after

it is originally awarded, a characterization that is premised on Fort Bend’s

assertion that the criteria it listed in the request for qualification is immaterial. See

Appellee’s Br. at 19 (“The upshot of TXU’s argument is that once a school district

competitively bids a contract, the parties are free to ‘blend and extend’ the contract

in perpetuity without ever engaging in further competitive bidding.”) and n.8 (“It is


   1
      Fort Bend falsely asserts that “[t]he evidence is undisputed that … TXU’s competitors
believed that they would be able to compete to provide FBISD’s electricity services after the
expiration of the two year period.” Appellee’s Br. at 18-19. This assertion by Fort Bend is in
fact disputed, and as discussed above, the evidence cited by Fort Bend does not even begin to
support the premise, let alone conclusively establish the fact asserted.



                                              5
immaterial that the District requested blend and extend availability” in the request

for qualification during competitive bidding.). TXU has never made such an

extreme argument.

      Instead, TXU’s argument is much narrower. The question is whether the

2010 competitive bidding process, which expressly stated that blend and extend

availability was requested, put all bidders on notice that the contract that would be

awarded might contain a blend and extend provision. Because it did provide such

notice, all potential competitors were on the same footing to offer Fort Bend the

flexibility it desired. Blend and extend was exercised during the term of the

contract specifically contemplated by the request for qualification. There is no

suggestion that anyone believes that such a contract could be blended in

“perpetuity.”

      And there is no dispute that the bidders and Fort Bend understood what

“blend and extend” would mean in the context of an agreement to supply

electricity. The term “blend and extend” was so commonly understood in the

electricity industry that Fort Bend knew to request “[b]lend and extend arability” in

its request for qualification, and all the top bidders were able to offer such

availability based solely on the four words “[b]lend and extend availability” in the

request for qualifications. (Appx. 2(A-2) at p.6, CR 192; RR 58:24-59:17; Appx.

2(A-2) at 6, CR 396; Appx. 2(A-4), CR 412)



                                         6
      To avoid addressing the undisputed facts discussed above, Fort Bend

misrepresents TXU’s position in a second way by asserting that the issue raised by

TXU is whether the 2011 Contract Extension is technically a distinct contract from

the original 2010 Agreement for any purpose, and then responding to that

argument. See Appellee’s Br. at 14-17. But the question is not whether the 2011

Contract Extension is a distinct contract for any purpose; the relevant question is

whether the 2010 competitive bidding process provided competitors notice and

opportunity to bid for the blended and extended term. It is undisputed not only that

competitors had such notice, but that the top competitors directly competed on the

blend and extend provision itself.

      The cases cited by Fort Bend are off-point, distinguishable, and in many

instances help TXU. While they address the validity of “entering into” an original

contract awarded to a bidder, they provide no guidance for “extending” a contract

that was competitively bid with public notice of the potential for extension. Many

of Fort Bend’s cases concern contracts that are void ab initio because they were

never competitively bid. See Richmond Printing v. Port of Houston Auth., 996

S.W.2d 220, 222 (Tex. App.—Houston [14th Dist.] 1999, no pet. h) (never a

written contract and the Port Authority notified vendor of deficiency immediately

after receiving the good and services); United States v. Walker, Civ. Act. No. 1:11-

CR-67, 2011 WL 6181468, at *3-*4 (E.D. Tex. 2011) (contractor may have claim



                                         7
for work performed in violation of competitive bidding statute and accepted by

school district)); Mitsuba Texas, Inc. v. Brownsville Indep. Sch. Dist., Cause No.

05-97-01271-CV, 2000 WL 122348, at *4-*5 (Tex. App.—Dallas 2000, no pet. h)

(affirming summary judgment on breach of contract claim where there was no

contract approved by board of trustees or competitive bidding but reversing as to

quantum meruit and promissory estoppel claims because “A void contract can be

enforceable with a school district as an implied contract for the reasonable value of

the benefits received”); City of Denton v. Mun. Admin. Servcs, 59 S.W.3d 764, 772

(Tex. App.—Fort Worth 2001, no pet. h) (reversing and remanded for trial on

implied contract/quantum meruit despite holding that contract was void for

containing an illegal contingency fee arrangement between a City and an auditor).

      Fort Bend’s other cases address a contract that is void because the

competitive bidding process leading to the execution of the contract was not

followed. See Daniels Building & Constr. v. Silsbee Indep. Sch. Dist., 990 S.W.2d

947, 949 (Tex. App.—Beaumont 1999, pet. dism’d) (contract void ab initio

because ISD did not follow requirement for publishing the deadline to submit a

sealed bid); GADV, Inc. v. Beaumont Indep. Sch. Dist., Civil Act. No. 1:11-CV-

187, 2011 U.S. Dist. 60983 at * 15 (E.D. Tex. 2011) (non-chosen bidder could

enjoin work project where district did not follow competitive bidding in awarding

a contract to another bidder that was void ab initio, and the selected vendor could



                                         8
sue the district for the value of work performed). None of the cases cited by Fort

Bend is instructive on the discreet issue of whether the parties to a competitively

bid contract can exercise a competitively bid provision for extension.

         Fort Bend’s unwillingness to address the specific issues raised in this appeal

is telling. While the issue is novel,2 there is nothing in the competitive bidding

statute or any of the authorities cited by Fort Bend that supports its position that a

competitively-bid, industry-standard, blend and extend provision violates either the

language or the spirit of the Texas Education Code. For that reason, the court

should be reversed and this case should be remanded with instructions that Fort

Bend is not entitled to sovereign immunity.

B.       Fort Bend’s Waiver Of Immunity Could Not Be More Explicit.

         Even if the 2011 Contract Extension were void, the trial court should be

reversed and TXU should be permitted to pursue its claims because Fort Bend

waived governmental immunity and agreed to be liable for damages caused by the

avoidance of the 2011 Contract Extension in the original 2010 Agreement, which

everyone agrees is a valid and enforceable contract that continued to apply and

formed “an integral part of the Agreement” after blended and extended. (See

Appx. 2(A-8) at Sec. V, CR 423).

     2
      TXU concedes there is no authority directly considering the validity of a contract term that
allows for extension when the original bidding process expressly discloses the district’s desire
for such flexibility.



                                                9
      The original Agreement, which was executed in 2010, contained the blend

and extend provision sought in Fort Bend’s request for qualifications and included

in TXU’s proposal. (Appx. 2(A-1) at Trans. Conf. § IV, CR 381) The Original

2010 Agreement also contained representations and warranties that Fort Bend was

authorized to enter into the Agreement, and that the Agreement was a “valid and

binding obligation of [Fort Bend], enforceable against it in accordance with its

terms.” (Appx. 2(A-1) at Base Contract § 12.9, CR 373) Fort Bend represented to

TXU that it “is authorized by statute or the constitution to enter into each

Agreement ….” (Appx. 2(A-1) at Addendum § XII, CR 377) Fort Bend also

agreed that if it “uses its inherent powers as a governmental entity … to

circumvent the intent or terms and provisions of the Agreement, [Fort Bend] shall

be responsible for the contract damages caused by such action.” (Appx. 2(A-1) at

Addendum § VII, CR 376)

      As a result, Fort Bend’s reliance on Richmond Printing v. Port of Houston

Auth., 996 S.W.2d 220 (Tex. App.—Houston [14th Dist.] 1999, no pet.) and other

cases holding that someone contracting with a school district has an independent

responsibility to ensure compliance with competitive bidding laws is misplaced.

“Freedom of contract allows parties to bargain for mutually agreeable terms and

allocate risks as they see fit.” FPL Energy, LLC v. TXU Portfolio Mgmt. Co., L.P.,

426 S.W.3d 59, 65 (Tex. 2014) (emphasis added) (quoting Gym-N-I Playgrounds,



                                       10
Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007)).          Fort Bend unequivocally

assumed any risk that the implementation of the blend and extend provision would

later be found to be invalid and agreed to pay TXU any resulting damages. (Appx.

2(A-1) at Addendum § VII, CR 376)              And Fort Bend’s own legal counsel

concluded that the blend and extend provision and the 2011 Contract Extension

were valid. (See, e.g., Appx. 2(A-5), CR 413)

      Notably, Fort Bend appears to concede that the Original 2010 Agreement

was a valid and enforceable agreement that satisfied the requirements of Section

44.031 of the Texas Education Code, and thus, satisfied the Legislature’s waiver of

governmental immunity under Section 271.152 of the Texas Local Government

Code. See, e.g., Appellee’s Brief at 13 (“Because the 2011 contract is void….”),

Appellee’s Brief at 14-16 (arguing that the 2011 agreement is invalid because,

according to Fort Bend, it is a separate agreement from the 2010 agreement). In a

footnote, Fort Bend claims that TXU waived this argument. Appellee’s Br. at 19,

n.9. Fort Bend also asserts that it did not breach the original 2010 Agreement and

TXU did not suffer any damages as the result of Fort Bend’s breach. Id. Finally,

Fort Bend suggests that enforcing the express terms of the 2010 Agreement

somehow results in “quasi-contractual liability on the District,” despite the fact that

such claims are premised on the express terms of the 2010 Agreement. Id. All

these arguments lack any merit.



                                          11
      1.      TXU Did Not Waive Its Argument Based On The Express
              Representations And Warranties Contained In The Original 2010
              Agreement.

      Fort Bend’s first response to the undeniable conclusion that it waived

governmental immunity and is liable to TXU pursuant to the original 2010

Agreement is to argue that the issue was waived. Appellee’s Br. at 19, n.9. But

the issue was directly presented to the trial court.

      In TXU’s response to the plea to jurisdiction, which was incorporated into

its response to the motion for summary judgment, TXU argued:

            “The Supply of Electricity Contract [citing to the original 2010

              Agreement] contained representations and warranties that [Fort Bend]

              was authorized to enter into it, and that it is a ‘valid and binding

              obligation of [Fort Bend], enforceable against it in accordance with its

              terms.’” (Appx. 2 at 6, CR 337)

            “As part of the Supply of Electricity Contract [citing to the original

              2010 Agreement], [Fort Bend] represented in writing that it ‘is

              authorized by statute or the constitution to enter into each Agreement .

              . . .’” Id.

            “[Fort Bend] represented and warranted to that it was authorized to

              enter into the Supply of Electricity Contract, and that ‘each

              Agreement is a valid and binding obligation of [Fort Bend],


                                           12
            enforceable against it in accordance with its terms.’ [citing to the

            original 2010 Agreement] … It also represented and warranted that it

            ‘is authorized by statute or the constitution enter into each Agreement

            . . . .’… Finally, the parties agreed that [Fort Bend] could not use the

            competitive bidding laws as a sword to ‘circumvent the intent or terms

            and provisions of the Agreement[.]’” Id. at 18, CR 349.

Thus, the issue was presented to the trial court and may be properly considered on

the merits by this Court. See TEX. R. APP. P. 33.1(a)(1) (noting that a party need

only state the grounds for the ruling “with sufficient specificity to make the trial

court aware of the complaint”); Dugan v. Compass Bank, 129 S.W.3d 579, 582

(Tex. App.—Dallas 2003, no pet.) (holding that issue was preserved where “trial

court had an opportunity to consider and rule on Appellants' claim, and the

appellee has had the opportunity to oppose Appellants' request”).

      Indeed, there is very little else to say about the claim as Fort Bend appears to

agree that the original 2010 Agreement is a valid and enforceable agreement,

which is all is necessary to invoke the trial court’s jurisdiction.        See, e.g.,

Appellee’s Brief at 13 (“Because the 2011 contract is void….”), Appellee’s Brief

at 14-16 (arguing that the 2011 agreement is invalid because, according to Fort

Bend, it is a separate agreement from the 2010 agreement). The remainder of Fort




                                         13
Bend’s arguments goes to the merits and does not raise a jurisdictional issue, as

discussed below.

       2.      Fort Bend’s Arguments On The Merits Of TXU’s Claim are Not
               Responsive To The Jurisdictional Question; But Even If The
               Court Were To Consider The Merits Of TXU’S Claim, Reversal
               Is Required.

       Fort Bend also argues the original 2010 Agreement was fully performed and

that TXU suffered no damages from Fort Bend’s alleged breach. Appellee’s Br. at

19, n.9. But these arguments go only to the merits and were not addressed by Fort

Bend’s Plea to the Jurisdiction or Motion for Summary Judgment. Thus, reversal

of the partial summary judgment and grant of the plea to the jurisdiction for a

determination of the merits is required.3 See Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000) (“A plea to the jurisdiction is a dilatory plea, the

purpose of which is to defeat a cause of action without regard to whether the

claims asserted have merit. The claims may form the context in which a dilatory

plea is raised, but the plea should be decided without delving into the merits of the

case.”); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (“A

motion for summary judgment must itself expressly present the grounds upon

which it is made, and must stand or fall on these grounds alone.”).


   3
     Alternatively, if the issue was not presented by TXU such that it can be considered by this
Court, then it also could not have been the subject of the trial court’s partial summary judgment
and grant of the plea to the jurisdiction and is currently at issue in the claim presented in TXU’s
Second Amended Petition. (CR at 531, 538), see also Appellee’s Br. at 19, n.9.



                                                14
      But even if the Court were to reach those issues, reversal would clearly be

required because there is no dispute that Fort Bend breached is representations and

warranties to TXU in the original 2010 Agreement, and there is no dispute that

TXU suffered damages as a result.

      The Original 2010 Agreement contained representations and warranties that

Fort Bend was authorized to enter into the Agreement (including the blend and

extend provision), and that the Agreement (including the blend and extend

provision) was a “valid and binding obligation of [Fort Bend], enforceable against

it in accordance with its terms.” (Appx. 2(A-1) at Base Contract § 12.9, CR 373)

Fort Bend represented to TXU that it “is authorized by statute or the constitution to

enter into each Agreement,” including the blend and extend provision. (Appx.

2(A-1) at Addendum § XII, CR 377) Fort Bend also agreed that if it “uses its

inherent powers as a governmental entity … to circumvent the intent or terms and

provisions of the Agreement [including the blend and extend provision], [Fort

Bend] shall be responsible for the contract damages caused by such action.”

(Appx. 2(A-1) at Addendum § VII, CR 376) Moreover, it is undisputed that the

parties’ intent was that Fort Bend would have the ability to exercise the blend and

extend provision in the original 2010 Agreement, and that the 2011 Contract

Extension was the implementation of the parties’ intent. (Appx. 2(A) ¶ 9, CR 364;

Appx. 2(A-5), CR 413) Thus, by invoking governmental immunity and seeking to



                                         15
avoid the 2011 Contract Extension, Fort Bend breached its warranty in the original

2010 Agreement.

      TXU suffered substantial out of pocket damages as a result of Fort Bend’s

Breach. As a result of the 2011 Contract Extension, TXU purchased electricity

from the marketplace necessary to satisfy the term of the Agreement as blended

and extended. (Appx. 2(A) ¶ 18, CR 366) TXU then performed its obligations

under the Agreement as blended and extended, including providing Fort Bend

electricity at the low fixed rate stated in the Contract Extension rather than the

higher standard list price that Fort Bend would otherwise be obligated to pay TXU

starting on May 31, 2012 under the original Agreement. (See Appx. 2(A) ¶¶ 19-

20, CR 366; Appx. 2(A-1) Base Contract § 4.3, CR 369) TXU also provided Fort

Bend the benefit of funds from its own proprietary program focused on

implementing sustainable solutions covering the entire term of the Agreement as

blended and extended. (CR 539 at ¶ 29)

      The out of pocket damages to TXU resulting from Fort Bend’s breach of the

Agreement were $3,169,046.38, which includes the out of pocket losses resulting

from having purchased electricity to perform the entire contract and cash paid

directly to Fort Bend under a rebate program premised on Fort Bend’s performance

of the entire term of the Agreement, as blended and extended. (See CR 530-31;

Appx. 2(A) ¶¶ 18-20, CR 366; Appx. 2(A-11), CR 437-438) Fort Bend has not



                                         16
even attempted to argue, let alone explain, how these damages are not the direct

result of Fort Bend’s breach.

      3.     TXU’s Claims Based On The Express Terms Of The Original
             2010 Agreement Are Not “Quasi-Contractual.”

      Finally, Fort Bend makes the assertion that enforcement of the express terms

of a written contract would “impose quasi-contractual liability.” No explanation is

given for this baseless argument, which literally asserts that claim for breach of the

express terms of an actual, written, and enforceable contract somehow is

something other than a true contract claim. To be clear, this Court has already

drawn the line between contract claims and quasi-contract claims, and TXU’s

claim for breach contract clearly is a true contract claim because it is premised on

the language of a written and executed instrument, not some implied theory of law.

See Walker v. Cotter Properties, Inc., 181 S.W.3d 895, 900 (Tex. App.—Dallas

2006, no pet.) (“A contract implied in law, or a quasi-contract, is distinguishable

from a true contract because a quasi-contract is a legal fiction, an obligation

imposed by law regardless of any actual agreement between the parties.”).

      Because TXU’s claim is premised on an actual, written contract that the

parties do not dispute was competitively bid, it is not a quasi-contractual claim.




                                          17
C.    The Texas Supreme Court Has Not Completely Foreclosed The
      Possibility Of Waiver Of Governmental Immunity By Conduct, And
      This Court Has Never Directly Addressed A Situation As Extreme As
      The Facts Presented Here.

      Fort Bend asserts that the Texas Supreme Court and this Court have held

that a governmental entity cannot waive governmental immunity by conduct

regardless of how egregious or extreme its conduct has been, citing Sharyland

Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011) and an

unpublished memorandum opinion of this Court, Gentilello v. Univ. of Texas Sw.

Health Sys., 05-13-00149-CV, 2014 WL 1225160, at *3 (Tex. App.—Dallas Mar.

24, 2014), review denied (Oct. 3, 2014). Appellee’s Br. at 20-21.

      To begin, other courts of appeals have suggested that Sharyland did not

definitively reject waiver-by-conduct under all circumstances.        See City of

Freeport v. Briarwood Holdings, L.L.C., No. 01- 11-01108-CV, 2013 WL

1136576 at *3-*4 (Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.) (mem.

op.) (noting that the Court would not address the waiver by conduct theory because

the governmental entity claiming immunity was not the same entity that had

assured the plaintiff that the contract would be valid and enforceable); In re Hays

Cnty. Sheriff’s Dep’t, No. 03-12-00343-CV, 2012 WL 6554815 (Tex. App.—

Austin Dec. 12, 2012) (orig. proceeding) (mem. op.) (Pemberton J., concurring)

(“it remains that the supreme court, even while questioning the waiver-by-conduct

concept, has nonetheless continued to hold open the possibility raised in Federal


                                        18
Sign that some set of facts not yet seen could constitute governmental conduct that

the high court deems to waive immunity.”). Even after Sharyland was decided,

this Court continued to hold that “there may be rare situations involving

‘extraordinary factual circumstances’ where courts might recognize a waiver of

immunity by conduct….” Kaufman County v. Combs, 393 S.W.3d 336, 345 (Tex.

App.—Dallas 2012, pet. denied).

      Moreover, this Court’s unpublished opinion in Gentilello is distinguishable

because UT Southwestern, a state entity, expressly reserved its defense of

sovereign immunity in the settlement that was the subject of the lawsuit.

Gentilello, 2014 WL 1225160, at *3. This Court rejected the plaintiff’s waiver

argument because “we conclude the language in the settlement agreement is not a

clear and unambiguous waiver of sovereign immunity in this case….” Id. That is

in direct contrast to the facts of this case and the authority cited by TXU.

      Instead, like the governmental entity in Texas S. Univ. v. State St. Bank &

Trust Co., 212 S.W.3d 893, 908 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied), Fort Bend waived immunity through its conduct because it “lured [TXU

into the original 2010 Agreement and 2011 Extension] with false promises that the

contract would be valid and enforceable.”           The Original 2010 Agreement

contained representations and warranties that Fort Bend was authorized to enter

into the Agreement, and that the Agreement was a “valid and binding obligation of



                                          19
[Fort Bend], enforceable against it in accordance with its terms.” (Appx. 2(A-1) at

Base Contract § 12.9, CR 373) Fort Bend represented to TXU that it “is authorized

by statute or the constitution to enter into each Agreement ….” (Appx. 2(A-1) at

Addendum § XII, CR 377) Fort Bend also agreed that if it “uses its inherent

powers as a governmental entity … to circumvent the intent or terms and

provisions of the Agreement, [Fort Bend] shall be responsible for the contract

damages caused by such action.” (Appx. 2(A-1) at Addendum § VII, CR 376)

And Fort Bend told TXU that Fort Bend’s own legal counsel concluded that the

blend and extend provision and the 2011 Contract Extension were valid. (See, e.g.,

Appx. 2(A-5), CR 413)

      Nonetheless, this Court did state in Gentilello that “[w]e decline to establish

a waiver-by-conduct exception to sovereign immunity for any cause of action,

whether based on a breach of contract or not.” Gentilello, 2014 WL 1225160, at

*4. To the extent that this holding in Gentilello bars all theories of waiver of

governmental immunity through conduct, the holding in Gentilello is in conflict

with other courts of appeals in Texas and TXU wishes to preserve its argument for

consideration en banc or through a petition for review to the Texas Supreme Court.

D.    TXU Preserved Its Promissory Estoppel Claim Through Its Argument
      Relating to Waiver By Conduct.

      Fort Bend also asserts that TXU waived reversal relating to TXU’s

promissory estoppel claim by failing to discuss the claim for promissory estoppel


                                         20
separate and apart from its discussion of Fort Bend’s waiver of governmental

immunity by conduct. See Appellee’s Br. at 21-22. However, TXU expressly

asserted that “Fort Bend Waived Governmental Immunity by its Conduct in

Accepting Performance of the Agreement and Expressly Representing and

Warrantying the Agreement’s Enforceability.”         TXU extensively briefed the

representations made by Fort Bend relating to the enforceability of the Agreement

and TXU’s reliance thereon.        See Appellant’s Br. at 17-20.     This is TXU’s

promissory estoppel claim, and the terminology used by TXU simply referred to

the issue in the narrow context of a waiver of governmental immunity, which is all

that is at issue in this appeal.

       TXU agrees that its promissory estoppel claim rises or falls based on its

waiver by conduct argument, as discussed above. But TXU’s waiver by conduct

argument should result in the reversal of the trial court’s partial summary judgment

and plea to the jurisdiction relating to TXU’s claim for promissory estoppel, as

fully brief by TXU in its Appellant’s Brief at pages 17 to 20, and in this Reply.




                                         21
                                    PRAYER
      TXU respectfully prays that this Court reverse the trial court’s order granting

Fort Bend’s Plea to the Jurisdiction and Motion for Summary Judgment, remand

for further proceedings on TXU’s claims, and for such other relief to which it may

be entitled.

                                      Respectfully submitted,


                                        John Franklin Guild
                                      Michael K. Hurst
                                       mhurst@ghjhlaw.com
                                       State Bar No. 10316310
                                      A. Shonn Brown
                                       sbrown@ghjhlaw.com
                                       State Bar No. 24007164
                                      John Franklin Guild
                                       jguild@ghjhlaw.com
                                       State Bar No. 24041022
                                      Gruber Hurst Johansen Hail Shank LLP
                                      1445 Ross Avenue, Suite 2500
                                      Dallas, Texas 75202
                                      Telephone No. (214) 855-6800
                                      Facsimile No. (214) 855-6808

                                      ATTORNEYS FOR APPELLANT


               CERTIFICATE OF COMPLIANCE WITH RULE 9.4
      I, John Franklin Guild, attorney for Petitioners certify that this document
was generated by a computer using Microsoft Word 2010 which indicates that the
word count of this document is 5083 per TEX. R. APP. P. 9.4 (i).


                                        John Franklin Guild
                                      John Franklin Guild

                                         22
                         CERTIFICATE OF SERVICE
       The undersigned certifies that on this 16th day of February, 2015, a true and
correct copy of the foregoing document has been sent by electronic service and by
First Class Mail to the following counsel of record:

            ROGERS, MORRIS & GROVER, L.L.P.
            Richard A. Morris
             State Bar No. 14497750
            Jonathan G. Brush
             State Bar No. 24045576
            Stephanie E. Maher
             State Bar No. 24074637
            5718 Westhaimer Rd.
            Suite 1200
            Houston, TX 77057
            Telephone No. (713) 960-6037


                                        /s/ John Franklin Guild
                                      John Franklin Guild




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