                                                                             ACCEPTED
                                                                        04-15-00069-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                   4/16/2015 9:12:23 AM
                                                                          KEITH HOTTLE
                                                                                 CLERK

                NO. 04–15-00069-CV

                                                        FILED IN
                                                 4th COURT OF APPEALS
     In the Fourth Court of Appeals,              SAN ANTONIO, TEXAS
                                                 04/16/2015 9:12:23 AM
           San Antonio, Texas                        KEITH E. HOTTLE
                                                          Clerk



 Texas Municipal League Joint Self-Insurance Fund a/k/a
The Texas Municipal League Intergovernmental Risk Pool
                      Appellant
                         vs.

      Housing Authority of the City of Alice, Texas
                       Appellee


       Appeal from the 79th Judicial District Court
     Jim Wells County, Texas, No. 14-10-53721-CV
     The Honorable David Sanchez, Presiding Judge


              APPELLANT’S BRIEF


                         Barry Abrams
                         State Bar No. 00822700
                         Jack W. Higdon
                         State Bar No. 24007360
                         BLANK ROME LLP
                         700 Louisiana, Suite 4000
                         Houston, TX 77002-2727
                         (713) 228-6601
                         (713) 228-6605 (Fax)

                         ATTORNEYS FOR APPELLANT
                         TEXAS MUNICIPAL LEAGUE JOINT
                         SELF-INSURANCE FUND A/K/A THE TEXAS
                         MUNICIPAL LEAGUE INTERGOVERNMENTAL
                         RISK POOL

         ORAL ARGUMENT REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL

Appellant:          Texas Municipal League Joint Self-insurance Fund a/k/a The
                    Texas Municipal League Intergovernmental Risk Pool

Appellant Counsel: Barry Abrams
                   State Bar No. 00822700
                   Babrams@BlankRome.com
                   Jack W. Higdon
                   State Bar No. 24007360
                   Jhigdon@BlankRome.com
                   BLANK ROME LLP
                   700 Louisiana, Suite 4000
                   Houston, Texas 77002
                   (713) 228-6601
                   (713) 228-6605 (Fax)

Appellee:           Housing Authority of Alice, Texas

Appellee Counsel:   Anthony Constant
                    State Bar No. 04711000
                    afc@contantlawfirm.com
                    CONSTANT LAW FIRM
                    One Shoreline Plaza
                    800 N. Shoreline Blvd, Suite 2700 South
                    Corpus Christi, Texas 78401
                    (361) 698-8000
                    (381) 887-8010 (Fax)




                                     ii
                                           TABLE OF CONTENTS
                                                                                                                    Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
I.    STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.   ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

      1.     Because it is a governmental unit with retained governmental immunity
             from suit and liability, the Risk Pool filed a plea to the trial court’s
             jurisdiction, asserting that the trial court lacked subject matter
             jurisdiction to consider the Authority’s lawsuit for specific
             performance relief – the appointment of an umpire. The Authority
             failed to plead any waiver of the Risk Pool’s immunity to the
             Authority’s lawsuit. Did the trial court err in denying the Risk Pool’s
             plea to the jurisdiction? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

      2.     Because the Authority failed to engage in a pre-suit contractual dispute
             resolution procedure intended to resolve member objections to
             self-insurance coverage decisions, the Risk Pool also filed a plea in
             abatement seeking, in the alternative, to abate the lawsuit until the
             Authority complied with that pre-suit objection process. Did the trial
             court err in denying the Risk Pool’s plea in abatement? . . . . . . . . . . . . . 3

      3.     The trial court granted the Authority ultimate relief on a pretrial basis,
             without requiring compliance with the summary judgment procedures
             dictated by the Texas Rules of Civil Procedure. The Risk Pool
             objected. Did the trial court err in granting the Authority ultimate
             relief on a pretrial basis, without requiring compliance with the
             summary judgment procedures mandated by the Texas Rules of Civil
             Procedure? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

      A. The Risk Pool -- A Governmental Unit
         With Immunity From Suit And From Liability . . . . . . . . . . . . . . . . . . . . 4

                                                          iii
      B.    The Authority and the Interlocal Agreement. . . . . . . . . . . . . . . . . . . . . . 5

      C.    The Authority’s Self-Insurance Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . 6

      D. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

            1. The Authority’s Lawsuit Against the Risk Pool . . . . . . . . . . . . . . . . 7

            2. The Risk Pool’s Plea to the Jurisdiction Challenged the Authority’s
               Failure to Plead and Prove a Waiver of the Risk Pool’s
               Governmental Immunity from Suit and From Liability. . . . . . . . . . . 8

            3. The Risk Pool’s Plea in Abatement Challenged the Authority’s
               Failure to Comply With Contractual Pre-Suit Dispute Resolution
               Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

            4. The Risk Pool’s Verified Answer Established that The Authority
               Filed Suit Without Satisfying Conditions Precedent. . . . . . . . . . . . . 8

            5. The Trial Court Summarily Granted the Authority Final Relief On
               A Pretrial Basis, Without Any Trial Procedure. . . . . . . . . . . . . . . . 11

            6. The Authority Disregarded the Suspension of the "Order Selecting
               Umpire". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

IV. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

V. ARGUMENT & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

     A. The Trial Court Erred in Denying the Risk Pool’s Plea to the
        Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

           1. Plea To The Jurisdiction -- Standard of Review. . . . . . . . . . . . . . . 15

           2. Government Immunity from Suit -- General Principles. . . . . . . . . . 16

           3. The Risk Pool's Plea To The Jurisdiction Requires
              Dismissal of This Lawsuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


                                                        iv
            4. The Local Government Contract Claims Act Does Not
               Waive the Risk Pool's Immunity from the Authority's
               Lawsuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

      B.    The Trial Court Erred in Denying the Risk Pool’s Plea in Abatement . 22

      C.    The Trial Court Erred in Granting Ultimate Relief to the Authority on
            a Pretrial Basis, Without Requiring Compliance with Texas Procedural
            Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VI. CONCLUSION & PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

APPENDIX

        Tab A             Interlocal Agreement (CR 71-76)

        Tab B             Property Coverage Document (CR 78-125)

        Tab C             Order Selecting Umpire (CR 284)

        Tab D             The Local Government Contract Claims Act (the “Act”) (TEX.
                          LOC. GOV’T CODE §§271.151, et seq.) excerpts:

                          - Act §271.152
                          - Act §271.153
                          - Act §271.154
        Tab E             Texas Government Code excerpts:
                          - TEX. GOV'T CODE §791.001
                          - TEX. GOV'T CODE §791.011(a)
                          - TEX. GOV'T CODE §311.034




                                                           v
                                   INDEX OF AUTHORITIES
                                                                                                         Page(s)
Cases

Associated Indem. Corp. v. CAT Contracting, Inc.,
      964 S.W.2d 276 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Bland Indep. Sch. Dist. v. Blue,
      34 S.W.3d 547 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Chevron Phillips Chem. Co. LP v. Kingwood Crossroads, L.P.,
     346 S.W.3d 37 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) . . . . 25

County of Cameron v. Brown,
     80 S.W.3d 549 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

City of Houston v. Boyle,
       148 S.W.3d 171 (Tex. App.—Houston [1st Dist.] 2004, no pet.) . . . . . . . 15

City of Houston v. Jackson,
       192 S.W.3d 764 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

City of Houston v. Swinerton Builders, Inc.,
       233 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2007, no pet.) . . . . . . 18, 20

City of Mesquite v. PKG Contr., Inc.,
      263 S.W.3d 444 (Tex. App. —Dallas 2008, pet. denied) . . . . . . . . . . . . . . 22

City of Mission v. Cantu,
       89 S.W.3d 795 (Tex. App.—Corpus Christi 2002, no pet.) . . . . . . . . . 16, 20

Cunningham v. Parkdale Bank,
      660 S.W.2d 810 (Tex. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fed. Sign v. Tex. S. Univ.,
      951 S.W.2d 401 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Gaddy v. Harris Cnty. Juvenile Bd.,
     No. 01-88-00663-CV, 1989 Tex. App. LEXIS 319 (Tex. App.— Houston
     [1st Dist.] Feb. 23, 1989, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
                                                      vi
In re CompleteRx, Ltd.,
       366 S.W.3d 318 (Tex. App.— Tyler 2012, orig. proceeding) . . . . . . . . . . 28

Johnson v. State Farm Lloyds,
     204 S.W.3d 897 (Tex. App.—Dallas 2006), aff'd,
     290 S.W.3d 886 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Lagow v. Hamon,
     384 S.W.3d 411 (Tex. App.—Dallas 2012, no pet.) . . . . . . . . . . . . . . . . . . 22

Missouri P. R. Co. v. Cross,
     501 S.W.2d 868 (Tex. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Nixon v. Mr. Prop. Mgmt.,
      690 S.W.2d 546 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Nunn v. City of Vernon,
     No. 07-02-0486-CV, 2003 Tex. App. LEXIS 8464 (Tex. App.—Amarillo
     Sept. 30, 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Port Freeport v. RLB Contr., Inc.,
      369 S.W.3d 581 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) . . . . . 22

Reata Constr. Corp. v. City of Dallas,
      197 S.W.3d 371 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Robinson v. Univ. of Tex. Med. Branch at Galveston,
     171 S.W.3d 365 (Tex. App.—Houston [14th Dist.] 2005, no pet.) . . . 16, 20

Santa Rosa Indep. Sch. Dist. v. Rigney Const. & Dev., LLC,
      No. 13-12-00627-CV, 2013 Tex. App. LEXIS 7275,
      2013 WL 2949566 (Tex. App.—Corpus Christi
      June 13, 2013, pet. denied) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Lueck,
       290 S.W.3d 876 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


                                                      vii
Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
      852 S.W.2d 440 (Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Tex. Dep't of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17

Tex. Dep't of Transp. v. Jones,
      8 S.W.3d 636 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

Tooke v. City of Mexia,
      197 S.W.3d 325 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

Town of Flower Mound v. Rembert Enters., Inc.,
     369 S.W.3d 465 (Tex. App.—Fort Worth 2012, pet. denied) . . . . . . . . . . 18

Wichita Falls State Hosp. v. Taylor,
      106 S.W.3d 692 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Zachry Constr. Corp. v. Port of Houston Auth.,
     2014 Tex. LEXIS 768, 57 Tex. Sup. Ct. J. 1378
     (Tex. Aug. 29, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

Statutes & Rules

TEX. GOV'T CODE §22.004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. GOV'T CODE §311.034 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21

TEX. GOV'T CODE §791.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. GOV'T CODE §791.011(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. GOV'T CODE §2259.031(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. LOC. GOV'T CODE §271.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE §271.152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20, 21


                                                     viii
TEX. LOC. GOV’T CODE §271.153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 21

TEX. LOC. GOV’T CODE §271.154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21, 22

TEX. LOC. GOV’T CODE §271.155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE §271.156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE §271.157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE §271.158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE §271.159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. LOC. GOV’T CODE §271.160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. R. CIV. P. 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

TEX. R. CIV. P. 166a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27

TEX. R. CIV. P. 166a(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. R. CIV. P. 166a(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. R. CIV. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Miscellaneous Authorities

Op. Tex. Att’y Gen. No. MW-347 (May 29, 1981) . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                         ix
                                NO. 04–15-00069-CV


                    In the Fourth Court of Appeals,
                          San Antonio, Texas

               Texas Municipal League Joint Self-Insurance Fund a/k/a
              The Texas Municipal League Intergovernmental Risk Pool
                                    Appellant
                                       vs.

                     Housing Authority of the City of Alice, Texas
                                      Appellee


                      Appeal from the 79th Judicial District Court
                    Jim Wells County, Texas, No. 14-10-53721-CV
                    The Honorable David Sanchez, Presiding Judge


                              APPELLANT’S BRIEF


        Appellant, the Texas Municipal League Joint Self-insurance Fund a/k/a The

Texas Municipal League Intergovernmental Risk Pool (“Risk Pool”), respectfully

requests that the Court reverse the "Order Selecting Umpire" final judgment that

summarily: (a) denied the Risk Pool’s plea to the jurisdiction, (b) denied the Risk

Pool’s plea in abatement, and (c) granted appellee Housing Authority of Alice, Texas

(the “Authority”) final relief without following proper trial procedures.1/




1/
     Clerks Record (“CR”) 284 (Order Selecting Umpire). Copy at Appendix C (Order Selecting
     Umpire).
                                          I.
                                 STATEMENT OF THE CASE
Nature of the Case:           This dispute concerns whether the trial court had
                              jurisdiction to compel specific performance of an appraisal
                              process embodied in a “Property Coverage Document” that
                              is incorporated by reference in an “Interlocal Agreement”
                              between the Authority and the members of the Risk Pool.

Trial Court:                  79th Judicial District Court of Jim Wells County, Texas,
                              Cause No. 14-10-53721-CV; the Honorable David Sanchez
                              presiding as visiting judge.

Course of Proceedings: The Authority sued the Risk Pool, a governmental unit, to
                       compel appointment of an umpire to participate in an
                       appraisal process referenced in the “Property Coverage
                       Document.” The Authority did not sue the Risk Pool for a
                       breach of contract or to recover damages.

                              The Risk Pool filed a plea to the trial court’s jurisdiction
                              based upon its government immunity from suit, asserting
                              that the trial court lacked subject matter jurisdiction to
                              consider the Authority’s claim for specific performance
                              relief – the appointment of an umpire.2/ The Risk Pool also
                              filed a plea in abatement, seeking abatement of the action
                              until the Authority complied with a pre-suit contractual
                              dispute resolution procedure.3/ The Risk Pool objected to
                              the trial court’s procedure of granting relief to the Authority
                              without requiring it to comply with the procedural
                              requirements of the Texas rules.4/




2/
     CR 61-125 (Texas Municipal League Joint Self-Insurance Fund’s Plea to the Jurisdiction and
     Plea in Abatement).
3/
     Id.
4/
     CR 198-202 (Texas Municipal League Joint Self-Insurance Fund's Response And Objection To
     The Alice Housing Authority's “Hearing To Appoint Umpire For Insurance Appraisal”).

                                               2
Trial Court Disposition: After a single oral hearing and without requiring the
                         Authority to file a written motion or other request for relief,
                         the presiding judge signed an "Order Selecting Umpire"
                         that, among other things: (a) denied the Risk Pool’s plea to
                         the jurisdiction, (b) denied the Risk Pool’s plea in
                         abatement, and (c) appointed “Terry Shamsie” as the
                         umpire for an appraisal to occur under the Risk Pool’s
                         Property Coverage Document.5/ The "Order Selecting
                         Umpire" stated that “[t]his judgment disposes of all parties
                         and all claims and is appealable.”6/

                               The Risk Pool timely filed its Notice of Appeal, invoking
                               this Court’s appellate jurisdiction.7/

                                              II.
                                      ISSUES PRESENTED

           1. Because it is a governmental unit with retained governmental immunity
              from suit and liability, the Risk Pool filed a plea to the trial court’s
              jurisdiction, asserting that the trial court lacked subject matter
              jurisdiction to consider the Authority’s lawsuit for specific performance
              relief – the appointment of an umpire. The Authority failed to plead any
              waiver of the Risk Pool’s immunity to the Authority’s lawsuit. Did the
              trial court err in denying the Risk Pool’s plea to the jurisdiction?

           2. Because the Authority failed to engage in a pre-suit contractual dispute
              resolution procedure intended to resolve member objections to
              self-insurance coverage decisions, the Risk Pool also filed a plea in
              abatement seeking, in the alternative, to abate that lawsuit until the
              Authority complied with that pre-suit objection process. Did the trial
              court err in denying the Risk Pool’s plea in abatement?

           3. The trial court granted the Authority ultimate relief on a pretrial basis,
              without requiring compliance with the summary judgment procedures
              dictated by the Texas Rules of Civil Procedure. The Risk Pool objected.
5/
     CR 284 (Order Selecting Umpire).
6/
     Id.
7/
     CR 285-286 (Notice of Appeal).

                                               3
             Did the trial court err in granting the Authority ultimate relief on a
             pretrial basis, without requiring compliance with the summary judgment
             procedures mandated by the Texas Rules of Civil Procedure?

                                                III.
                                     STATEMENT OF FACTS

A.       The Risk Pool -- A Governmental Unit With Immunity From Suit And
         From Liability.8/

         The Legislature has expressly authorized local governmental entities to

establish self-insurance risk pools to administer the self-insurance coverage of the

member entities in order “to protect the governmental unit and its officers, employees,

and agents, from any insurable risk or hazard.”9/                Under the Texas Interlocal

Cooperation Act, local governments are empowered to contract with one another

through interlocal agreements to pool their resources and collectively self-insure

against insurable risks and hazards.10/

         The Risk Pool is one such self-insurance pool, formed pursuant to the Texas

Interlocal Cooperation Act.11/ The Risk Pool has over 2,600 political subdivisions as

its members, including airport authorities, mental health /mental retardation agencies,

cities, municipal utility districts, conservation & reclamation districts, navigation

8/
      This subsection is supported by verified pleadings at CR 61-125 (Texas Municipal League Joint
      Self-Insurance Fund’s Plea to the Jurisdiction and Plea in Abatement at pp. 2-4).
9/
      TEX. GOV’T CODE §2259.031(a).
10/
      See id; TEX. GOV’T CODE at §791.001, 791.011(a); Op. Tex. Att’y Gen. No. MW-347 (May 29,
      1981).
11/
      CR 127- 129, 135 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer at ¶¶
      3-6, verification).

                                                 4
districts, councils of government, public utility boards, downtown management &

improvement districts, river authorities, drainage districts, tax appraisal districts, fire

districts/emergency service districts, transit authorities, flood control districts, water

& irrigation districts, hospital districts, 911 districts, housing authorities and library

districts.12/

            The document that establishes the liability and property self-insurance program

is called the Liability/Property Interlocal Agreement (the “Interlocal Agreement”).13/

Under the Interlocal Agreement, the Risk Pool’s members appoint the Risk Pool staff

and its contractors as their agents to act on all matters pertaining to processing and

handling claims.14/ Under the Interlocal Agreement, the “exact detail” of the self-

insurance coverage afforded to Risk Pool members from time to time is set forth in

the “Property Coverage Document,” the “Declarations of Coverage,” and the

“Endorsements,” which are incorporated into the Interlocal Agreement.15/

B.          The Authority and the Interlocal Agreement.

            The Authority and the Risk Pool both executed the Interlocal Agreement in

May 1994.16/ Under the Interlocal Agreement, the term of the agreement between the


12/
      Id.
13/
      Appendix A (Interlocal Agreement).
14/
      Appendix A (Interlocal Agreement ¶11).
15/
      Appendix A (Interlocal Agreement ¶¶ 1(f), 3); Appendix B (Property Coverage Document).
16/
      Appendix A (Interlocal Agreement at p.6).

                                                  5
Risk Pool and the Authority “shall be continuous commencing 12:01 a.m. on the date

designated in this Agreement [May 13, 1994] until terminated as provided below [in

the Interlocal Agreement].”17/

C.       The Authority’s Self-Insurance Claim.

         In May 2014, the Authority reported that it had sustained damage to certain of

its scheduled properties during a May 27, 2014 wind and hail storm.18/ Promptly

thereafter, the Risk Pool began assessing the Authority’s potential loss and retained

an outside independent adjuster who inspected approximately 128 Authority

buildings.19/ After the Authority’s properties were inspected by the Risk Pool’s

adjuster, the Risk Pool delivered payment to the Authority in the amount of

$429,143.72, representing payment of the full Actual Cash Value, less an applicable

$1,000 deductible.20/

         Under the Property Coverage Document, the Authority was required to “render

a signed and sworn proof of loss . . . within 60 days, stating the place, time, and cause

of the loss damage or expense, the interest of the Member and of all others, the value




17/
      Appendix A (Interlocal Agreement at ¶ 5).
18/
      CR 8-9, 48-53 (Application for the Appointment of an Umpire at ¶¶ 3-4, Exh B, Exh C); CR
      129-130 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer at ¶¶ 7-12).
19/
      CR 129-130 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer at ¶¶ 7-12).
20/
      Id.; CR 51-53 (Application for the Appointment of an Umpire at Exh C)

                                                  6
of the property involved in the loss and the amount of loss, damage or expense.”21/ As

of July 26, 2014, which was 60 days after the Authority’s alleged May 27, 2014 loss,

the Authority had not submitted a sworn proof of loss to support any claim for

additional self-insurance benefits.22/

         On August 29, 2014, the Authority’s litigation counsel submitted a document

titled "Sworn Statement in Proof of Loss," claiming a loss in the amount of "at least

$3.5 million."23/

         Three business days later, on September 3, 2014, and before the Risk Pool had

responded to the untimely "Sworn Statement in Proof of Loss" for "at least $3.5

million," the Authority’s litigation counsel sent a demand to the Risk Pool purporting

to invoke the "Appraisal" process contained in the Property Coverage Document.24/

D.       Course of Proceedings.

         1.     The Authority’s Lawsuit Against the Risk Pool.

         The Authority filed its plaintiff’s original petition on October 1, 2014.25/ That

original petition was styled as an “Application for the Appointment of an Umpire” and


21/
      Appendix B (Property Coverage Document at p. 4, GENERAL CONDITIONS, ¶IV(D), PROOF
      OF LOSS).
22/
      CR 131-133, 135 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer at ¶¶
      15-16, Verification).
23/
      CR 8-9, 48-53 (Application for the Appointment of an Umpire at ¶¶ 3-4, Exh B, Exh C)
24/
      Id.; CR 129-130 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer at ¶¶
      7-12).
25/
      CR 8-47 (Application for the Appointment of an Umpire).

                                                7
it sued only for the appointment of an appraisal umpire, purportedly pursuant to the

terms of the Property Coverage Document.26/ It did not sue for breach of contract or

for damages.

            2.    The Risk Pool’s Plea to the Jurisdiction Challenged the Authority’s
                  Failure to Plead and Prove a Waiver of the Risk Pool’s
                  Governmental Immunity from Suit and From Liability.

            On October 31, 2014, the Risk Pool filed a plea to the trial court’s jurisdiction,

asserting that the trial court lacked subject matter jurisdiction to consider the

Authority’s lawsuit to compel the appointment of an umpire.27/

            3.    The Risk Pool’s Plea in Abatement Challenged the Authority’s
                  Failure to Comply With Contractual Pre-Suit Dispute Resolution
                  Procedures.

            Subject to its plea to the jurisdiction, the Risk Pool also filed a plea in

abatement seeking, in the alternative, to abate that lawsuit until the Authority had

complied with the Interlocal Agreement’s pre-suit process for resolving member

objections to self-insurance coverage decisions.28/

            4.    The Risk Pool’s Verified Answer Established that The Authority
                  Filed Suit Without Satisfying Conditions Precedent.

            Subject to both its plea to the jurisdiction and plea in abatement, the Risk Pool

answered the Authority’s lawsuit with verified denials establishing the Authority’s

26/
      Id.
27/
      CR 61-125 (Texas Municipal League Joint Self-Insurance Fund’s Plea to the Jurisdiction and
      Plea in Abatement).
28/
      Id.

                                                8
failure to satisfy various conditions precedent to filing suit against, or recovering relief

from, the Risk Pool under the Interlocal Agreement and Property Coverage

Document.29/ Those verified denials, which the Authority neither addressed nor

challenged in the trial court, established that the Authority had failed to provide

multiple required notices and failed to satisfy multiple conditions precedent:30/

      (a) The Authority failed timely to submit a sworn proof of loss within 60 days
          after the loss;31/

      (b) The Authority failed to establish that the claimed losses were caused solely
          by covered perils and are not excluded under the terms of the Property
          Coverage Document;

      (c) The Authority failed timely to submit a sworn proof of loss complying with
          the requirements under the Property Coverage Document stating the total
          loss claimed;

      (d) The Authority failed timely to object or to notify the Pool that it did not
          agree with the self-insurance amounts received by the Authority;

      (e) The Authority failed to initiate the Board of Trustees objection process
          required under the Interlocal Agreement, to the extent it objected to the
          amount of self-insurance proceeds that should be paid for its loss;32/


29/
      CR 126-191 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer).
30/
      The Risk Pool’s verified denials corresponding to each of the following items are found at CR
      131-135 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer at ¶¶ 15-16,
      Verification).
31/
      Appendix B (Property Coverage Document at GENERAL CONDITIONS, ¶IV(D), PROOF OF
      LOSS (“It shall be necessary for the Member to render a signed and sworn proof of loss to the
      Fund [Risk Pool] or its appointed representative, within 60 days, stating the place, time, and
      cause of the loss, damage, or expense, the interest of the Member and of all others, the value of
      the property involved in the loss, and the amount of loss, damage or expense.” )).
32/
      Appendix A (Interlocal Agreement at ¶11 (“The Board shall hear the objections of the Pool
      Member at its next regularly scheduled meeting and its decision will be final and binding on all
      parties.”)).

                                                   9
      (f) The Authority failed to provide the timely and adequate notice of loss of its
          claims or of any additional claims, as required under the Property Coverage
          Document;33/

      (g) The Authority failed to satisfy or comply with the Property Coverage
          Document’s “no action” clause;34/

      (h) The Authority failed to satisfy or comply with the Property Coverage
          Document’s requirement that the Authority assist and cooperate with the
          Risk Pool;35/ and

      (i) The Authority failed to provide timely and adequate notice of any
          additional claimed loss as required under the Property Coverage
          Document.36/

         In short, the appraisal provision in the Property Coverage Document on which

the Authority’s “Application for Appointment of an Umpire” was based, can only be

triggered after the Authority has timely submitted a sworn proof of loss and a later

disagreement arises between the Authority and the Risk Pool regarding the amount of

the loss stated in a timely sworn proof of loss. Because the Authority did not comply

with the condition precedent of filing a timely sworn proof of loss, among others, the

Risk Pool’s position below was that the Authority had no right to compel specific



33/
      Appendix B (Property Coverage Document at GENERAL CONDITIONS, ¶IV(A), NOTICE OF
      LOSS).
34/
      Appendix B (Property Coverage Document at GENERAL CONDITIONS, ¶IV(I), SUIT
      AGAINST THE FUND (“No suit or action on this [Property Coverage Document] for the
      recovery of any claim shall be sustainable in any court of law or equity unless [the Authority]
      shall have fully complied with all the requirements of this Agreement.”)).
35/
      Appendix B (Property Coverage Document at GENERAL CONDITIONS, ¶IV(B),
      ASSISTANCE AND COOPERATION OF THE FUND MEMBER).
36/
      Appendix B (Property Coverage Document at GENERAL CONDITIONS, ¶IV(A), NOTICE OF
      LOSS).

                                                  10
performance of an appraisal under the Property Coverage Document.37/

         5.     The Trial Court Summarily Granted the Authority Final Relief On
                A Pretrial Basis, Without Any Trial Procedure.

         The Authority never filed a written motion in the trial court.38/ A review of the

Clerk’s Record confirms that the only documents that the Authority filed in the trial

court were (a) an original petition that was styled as an “Application for the

Appointment of an Umpire,” and (b) a proposed order granting all of the relief

requested in its original petition.39/

         Notwithstanding the failure by the Authority to file any written motion, in early

November 2014 the Risk Pool received a “notice of setting” indicating that the trial

court had set an oral “Hearing to Appoint Umpire for Insurance Appraisal.”40/

         In late November 2014, after trial court notices indicated that the court would

consider granting ultimate relief to the Authority on a pretrial basis, without requiring

it to comply with Texas procedural law for obtaining pretrial relief, the Risk Pool filed

a written objection to that proposed procedure.41/

         When the “Hearing to Appoint Umpire for Insurance Appraisal” ultimately

37/
      CR 126-191 (Texas Municipal League Joint Self-Insurance Fund’s Original Answer).
38/
      See, generally, CR 1-296
39/
      See id. See, e.g., CR 8-47 (Application for the Appointment of an Umpire) and CR 276
      (Authority’s proposed “Order Selecting Umpire”).
40/
      Supplemental Clerks Record (“Suppl CR”) Suppl CR at 6; CR at 194, 207-209.
41/
      CR 198-202 (Texas Municipal League Joint Self-Insurance Fund's Response And Objection To
      The Alice Housing Authority's “Hearing To Appoint Umpire For Insurance Appraisal”).

                                              11
took place on December 12, 2014 before visiting Judge David Sanchez, the Authority

offered previously-undisclosed live testimony and exhibits, and the Risk Pool repeated

its earlier-filed objections to the Authority’s failure to comply with summary

judgment procedures and to the admission of that untimely and incompetent

evidence.42/ At the same hearing, the visiting judge also considered the Risk Pool’s

plea to the jurisdiction and plea in abatement.43/ Judge Sanchez did not rule from the

bench.

         In January 2015, Judge Sanchez signed the Authority’s form order, which was

titled "Order Selecting Umpire."44/ The "Order Selecting Umpire": (a) denied the Risk

Pool’s plea to the jurisdiction, (b) denied the Risk Pool’s plea in abatement, (c)

appointed “Terry Shamsie” as the umpire for an appraisal to occur under the Risk

Pool’s Property Coverage Document, and (d) concluded that “[t]his judgment disposes

of all parties and all claims and is appealable.”45/

         The Risk Pool timely filed its Notice of Appeal,46/ which properly invoked this

Court’s appellate jurisdiction and suspended the "Order Selecting Umpire."



42/
      RR 7:24 - 8:20; 9:10-22; 22:25 - 23:11; 40:22 - 43:14.
43/
      CR at 194, 207-209 (hearing notices); see, generally, RR 1-75.
44/
      Compare CR 276 (Authority’s proposed “Order Selecting Umpire”), with CR 284 (“Order
      Selecting Umpire”). The trial court signed the authority’s proposed order, without amendment.
45/
      CR 284 (“Order Selecting Umpire”).
46/
      CR 285-286 (Notice of Appeal).

                                                 12
      6.     The Authority Disregarded the Suspension of the "Order Selecting
             Umpire".

      Disregarding this pending appeal and the resulting suspension of the "Order

Selecting Umpire," the Authority recently disclosed that it has conducted an ex parte

appraisal proceeding with the umpire appointed in the "Order Selecting Umpire." The

Authority has also filed a new, second lawsuit in the 79th District Court of Jim Wells

County, seeking the entry of a judgment based upon its ex parte appraisal award

against the Risk Pool.

      Ancillary to this appeal, the Risk Pool responded by filing a petition for writ

of injunction with this Court at No. 04-15-00201-CV, In re Texas Municipal League

Joint Self-Insurance Fund a/k/a The Texas Municipal League Intergovernmental Risk

Pool, in the Fourth Court of Appeals, Texas. On April 10, 2015, the Court denied the

Risk Pool’s petition. The Court has not yet issued its opinion. The Risk Pool renews

its request that this Court enjoin the Authority from taking actions based upon the

“Order Selecting Umpire” that is the subject of this appeal.

                                     IV.
                             SUMMARY OF ARGUMENT

      The Authority sued the Risk Pool to compel specific performance of an

appraisal process contained in the "Property Coverage Document" that is incorporated

by reference into the Interlocal Agreement. But the Risk Pool is a governmental unit

with retained governmental immunity from suit and immunity from liability from such

                                         13
claims. The Authority's suit therefore should be dismissed due to the lack of subject

matter jurisdiction, because:

   • The Authority's pleadings do not contain any allegations which, if true,
     would affirmatively demonstrate any waiver of the Risk Pool's immunity
     from suit, a prerequisite for the court to have subject-matter jurisdiction over
     the Authority's claim.

   • Any amendment of the Authority's pleadings would be futile because, as a
     matter of law, the Risk Pool's governmental immunity from suit is not
     waived for a claim seeking specific performance of a contractual provision
     against the Risk Pool.

       Additionally, the Interlocal Agreement contains a pre-suit contractual dispute

resolution procedure intended to resolve objections its members may have to Risk

Pool self-insurance coverage decisions. It is undisputed that the Authority has not

complied with that procedure. The pre-suit objection procedure in the Interlocal

Agreement is a condition precedent to any suit against the Risk Pool and the

Authority’s failure to comply with that procedure requires that, if the Authority’s

lawsuit is not dismissed, it must at least be abated.

       Finally, and in the alternative, the trial court granted the Authority ultimate

relief on a pretrial basis, without requiring it to comply with the summary judgment

procedures dictated by the Texas Rules of Civil Procedure. Because the Texas Rules

of Civil Procedure have the same force and effect as statute, the trial court’s grant of

ultimate relief in disregard of those protective procedural rules was error and an abuse

of the trial court’s discretion.

                                          14
                                           V.
                                  ARGUMENT & AUTHORITIES

A.       The Trial Court Erred in Denying the Risk Pool’s Plea to the Jurisdiction.

         1.      Plea To The Jurisdiction -- Standard of Review.

         A district court must have jurisdiction over the subject matter of a lawsuit

before it may address its merits. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 442-44 (Tex. 1993). The plaintiff has the burden to plead and prove the

existence of subject matter jurisdiction.47/

         A plea to the jurisdiction contests a district court’s authority to decide all or

some of the issues in a case. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). In deciding a plea to the jurisdiction, the court is not required to look

solely to the pleadings but may consider evidence and must do so when necessary to

resolve the jurisdictional issues raised. Id. at 555; Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226-227 (Tex. 2004). Whether a trial court possesses

subject matter jurisdiction is a question of law that is evaluated on appeal under a de

novo standard of review. Miranda, 133 S.W.3d at 226.

         As a threshold matter, a plaintiff’s petition must allege facts which, if true,

demonstrate the existence of subject-matter jurisdiction. Tex. Ass’n of Bus., 852


47/
      See City of Houston v. Boyle, 148 S.W.3d 171, 176 (Tex. App.—Houston [1st Dist.] 2004, no
      pet.) (“burden is on the plaintiff to establish subject-matter jurisdiction by showing that the
      entity has waived immunity from suit”).

                                                  15
S.W.2d at 446. Where, as here, a plaintiff seeks to bring suit within a waiver of

governmental immunity from suit, its pleading must: (1) allege legislative consent to

such suit, either by reference to a statute waiving immunity or express legislative

permission; and (2) plead facts which fall within the scope of the waiver relied on.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (“The party suing the

governmental entity must establish the state’s consent, which may be alleged either

by reference to a statute or to express legislative permission.”).48/

          2.      Government Immunity from Suit -- General Principles.

          Government immunity protects government entities from suits absent legislative

consent. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997); Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003); Reata Constr. Corp.

v. City of Dallas, 197 S.W.3d 371, 374-75 (Tex. 2006). Because a waiver of

governmental immunity “may hamper governmental functions by requiring tax

resources to be used for defending lawsuits and paying judgments rather than using

those resources for their intended purposes,” the Texas Supreme Court has held that



48/
      See also Robinson v. Univ. of Tex. Med. Branch at Galveston, 171 S.W.3d 365, 369 (Tex.
      App.—Houston [14th Dist.] 2005, no pet.) (“[Plaintiff Robinson] further failed to plead or prove
      that the legislature consented to suit in the form of a statute or resolution. As a result, Robinson’s
      contract claim must fail”); City of Mission v. Cantu, 89 S.W.3d 795, 801-02 (Tex. App.—Corpus
      Christi 2002, no pet.) (“[T]he mere invocation of the [Tort Claims] Act in a petition does not in
      itself waive sovereign immunity and confer jurisdiction on the trial court. Rather, the claim
      raised must fall within the specific scope of the waiver of immunity provided by the Act and so
      affirmatively demonstrate the trial court’s jurisdiction to hear the case.”).

                                                     16
any such waiver must be “clearly and unambiguously stated.” Reata, 197 S.W.3d at

375.49/

          3.     The Risk Pool’s Plea To The Jurisdiction Requires the Dismissal of
                 This Lawsuit.

          The Risk Pool contested the sufficiency of the Authority’s jurisdictional

allegations, because there were none,50/ and it submitted evidence below that disproves

conclusively the possibility of any allegations upon which jurisdiction might be based

to pursue a specific performance claim. Where, as is true here, “the plaintiffs’ factual

allegations are challenged with supporting evidence necessary to consideration of the

plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine issue

of material fact to overcome the challenge to the trial court’s subject matter

jurisdiction.” Miranda, 133 S.W.3d at 227.

          The Authority’s lawsuit asserts a single claim for specific performance to

enforce its interpretation of an appraisal provision in the Property Coverage

Document. The trial below should have granted and this Court should grant the Risk

Pool’s jurisdictional plea to the Authority’s lawsuit, because: (1) the Authority’s

pleadings contain no allegations which, if true, would affirmatively demonstrate that
49/
      See TEX. GOV’T CODE §311.034 (“In order to preserve the legislature's interest in managing state
      fiscal matters through the appropriations process, a statute shall not be construed as a waiver of
      sovereign immunity unless the waiver is effected by clear and unambiguous language . . .”).
      Statutes waiving governmental immunity are therefore “strictly construed,” City of Houston v.
      Jackson, 192 S.W.3d 764, 770 (2006), and Texas courts “generally resolve ambiguities by
      retaining immunity.” Wichita Falls State Hosp., 106 S.W.3d at 697.
50/
      CR 8-47 (Application for the Appointment of an Umpire).

                                                   17
the Risk Pool’s immunity from suit has been waived, and that the Court has subject-

matter jurisdiction over the Authority’s claims;51/ and (2) any amendment of the

Authority’s pleadings would be futile because, as a matter of law, the Risk Pool’s

governmental immunity from suit cannot be waived for a claim seeking specific

performance of a contractual provision.52/

         Due to these incurable jurisdictional defects, the Authority’s lawsuit, which

sues only for a court-ordered appointment of an appraisal umpire, should be dismissed

for want of jurisdiction.53/
51/
      CR 8-47 (Application for the Appointment of an Umpire).
52/
      Cf. Town of Flower Mound v. Rembert Enters., Inc., 369 S.W.3d 465, 475 (Tex. App.—Fort
      Worth 2012, pet. denied) (“In contrast, declaratory-judgment suits against state officials seeking
      to establish a contract's validity, to enforce performance under a contract, or to impose
      contractual liabilities are suits against the State," and "cannot be maintained without legislative
      permission.”). Although nowhere invoked by the Authority in its pleadings, TEX. LOC. GOV’T
      CODE § 271.152 only waives governmental immunity for a breach of contract cause of action
      that seeks to recover the specified types of damages listed in § 271.153 of that statute. See,
      generally, Zachry Constr. Corp. v. Port of Houston Auth., 2014 Tex. LEXIS 768, *25, 57 Tex.
      Sup. Ct. J. 1378 (Aug. 29, 2014) ("We conclude that the Act does not waive immunity from suit
      on a claim for damages not recoverable under Section 271.153."); City of Houston v. Swinerton
      Builders, Inc., 233 S.W.3d 4, 12 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“In reading a
      statute, we give effect not only to the terms used, but the terms that the legislature chose not to
      use in construing a statute. [ ] The statute limits the waiver by stating that the entity ‘waives
      sovereign immunity to suit for the purpose of adjudicating the claim for breach of the contract.’
      TEX. LOC. GOV'T CODE ANN. § 271.152. It lists no other claims, either in law or in equity.
      The plain language of the statute limits the waiver to the contract cause of action.”); Tooke v.
      City of Mexia, 197 S.W.3d 325, 346 (Tex. 2006) (“As previously stated, the [plaintiffs] do not
      claim damages within [TEX. LOC GOV’T CODE §271.153's] limitations. Their only claim is for
      lost profits, which are consequential damages excluded from recovery under the statute. [ ]
      Consequently, we conclude that the City's immunity from suit on the Tookes' claim has not been
      waived.”). The contract claim that the Authority has asserted does not seek the recovery of one
      of the remedies permitted by TEX. LOC. GOV’T CODE § 271.153, as matter of law.
53/
      See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) ("When a plaintiff fails to
      plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate
                                                                                      (continued...)

                                                   18
         4.      The Local Government Contract Claims Act Does Not Waive the
                 Risk Pool’s Immunity from the Authority’s Lawsuit.

         During the December 12, 2014 “Hearing to Appoint Umpire for Insurance

Appraisal,” the Authority orally argued, for the first time, that the Risk Pool’s

immunity from the Authority’s lawsuit is somehow waived by §271.154 of the Local

Government Contract Claims Act (the “Act”).54/

         The Act is found at TEX. LOC. GOV’T CODE §§271.151-160. Section 271.154

of the Act states:

         TEX. LOCAL GOV'T CODE § 271.154. Contractual Adjudication
         Procedures Enforceable – Adjudication procedures, including
         requirements for serving notices or engaging in alternative dispute
         resolution proceedings before bringing a suit or an arbitration
         proceeding, that are stated in the contract subject to this subchapter or
         that are established by the local governmental entity and expressly
         incorporated into the contract or incorporated by reference are
         enforceable except to the extent those procedures conflict with the terms
         of this subchapter. (emphasis added)

The Authority orally argued that Section 271.154 waived the Risk Pool’s immunity

from the Authority’s lawsuit. That argument is incorrect.

         First, the Authority’s pleadings do not refer to either the Act or to Section

271.154 and assert that any waiver of the Risk Pool’s immunity exists. For that

53/
      (...continued)
      incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should
      be afforded the opportunity to amend. [ ] On the other hand, if the pleadings affirmatively
      negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without
      allowing the plaintiff an opportunity to amend."(citations omitted)).
54/
      See, e.g., RR 16:8-11.

                                                    19
matter, the Authority’s pleadings do not even mention the Risk Pool’s governmental

immunity. The Authority’s failure to plead (or even mention) any would-be waiver

of the Risk Pool’s immunity is fatal to the Authority’s lawsuit.55/ Further, the "Order

Selecting Umpire" final judgment is erroneously unsupported by the pleadings. 56/

          Second, the Act expressly states that it “waives sovereign immunity to suit for

the purpose of adjudicating a claim for breach of the contract . . .” TEX. LOC.

GOV’T CODE § 271.152. Because the Authority has not sued the Risk Pool asserting

a breach of contract claim, nothing in the Act, including Section 271.154, results in

any waiver of the Risk Pool’s immunity to suit.57/

55/
      In a per curiam opinion, the Texas Supreme Court has stated that, “[t]he party suing the
      governmental entity must establish the state's consent, which may be alleged either by reference
      to a statute or to express legislative permission.” Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636,
      638 (Tex. 1999) (per curiam) (emphasis added). Consistent with this clear pronouncement, the
      Texas Supreme Court has required plaintiffs to plead satisfaction of the elements of statutes
      giving rise to would-be waivers of immunity. See, e.g., State v. Lueck, 290 S.W.3d 876, 884
      (Tex. 2009) (finding that elements of Whistleblower Act "must be included within the pleadings"
      so that the court can determine whether the plaintiff has sufficiently alleged a violation that falls
      within the Whistleblower Act's waiver of immunity). Cf. Robinson v. Univ. of Tex. Med. Branch
      at Galveston, 171 S.W.3d 365, 369 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“[Plaintiff
      Robinson] further failed to plead or prove that the legislature consented to suit in the form of a
      statute or resolution. As a result, Robinson’s contract claim must fail”); City of Mission v. Cantu,
      89 S.W.3d 795, 801-02 (Tex. App.—Corpus Christi 2002, no pet.) (“[T]he mere invocation of
      the [Tort Claims] Act in a petition does not in itself waive sovereign immunity and confer
      jurisdiction on the trial court. Rather, the claim raised must fall within the specific scope of the
      waiver of immunity provided by the Act and so affirmatively demonstrate the trial court’s
      jurisdiction to hear the case.”).
56/
      See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) ("Further, a judgment
      must be supported by the pleadings and, if not so supported, it is erroneous. [ ] Thus, a party may
      not be granted relief in the absence of pleadings to support that relief."); TEX. R. CIV. P. 301.
57/
      City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 12 (Tex. App.—Houston [1st Dist.]
      2007, no pet.) (“In reading a statute, we give effect not only to the terms used, but the terms that
      the legislature chose not to use in construing a statute. [ ] The statute limits the waiver by stating
                                                                                              (continued...)

                                                     20
          Third, Section 271.154 expressly states that its provisions are unenforceable to

the extent that they conflict with the other terms of the Act. The Texas Supreme Court

recently confirmed that the Act only waives governmental immunity for a breach of

contract claim that seeks one of the specified remedies authorized in Section 271.153

of the Act.58/ Because the relief the Authority’s seeks – the judicial appointment of

an umpire– is not one of the remedies authorized by Section 271.153 of the Act, the

Act does not waive the Risk Pool’s governmental immunity – and Section 271.154

does not effect any such waiver.

          Fourth, sovereign immunity from suit may be waived only by "clear and

unambiguous" statutory language.59/ Section 271.154 of the Act contains no express

waiver of immunity, much less any "clear and unambiguous" waiver of immunity.

          Fifth, the Authority has not cited any legal precedent stating that Section

271.154 results in any waiver of immunity.60/ To the contrary, the various legal


57/
      (...continued)
      that the entity ‘waives sovereign immunity to suit for the purpose of adjudicating the claim for
      breach of the contract.’ TEX. LOC. GOV'T CODE ANN. § 271.152. It lists no other claims,
      either in law or in equity. The plain language of the statute limits the waiver to the contract cause
      of action.”)
58/
      Zachry Constr. Corp. v. Port of Houston Auth., 2014 Tex. LEXIS 768, *25, 57 Tex. Sup. Ct. J.
      1378 (Aug. 29, 2014) ("We conclude that the Act does not waive immunity from suit on a claim
      for damages not recoverable under Section 271.153.").
59/
      Tooke v. City of Mexia, 197 S.W.3d 325, 332-3 (Tex. 2006); see TEX. GOV'T CODE § 311.034
      ("In order to preserve the legislature's interest in managing state fiscal matters through the
      appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless
      the waiver is effected by clear and unambiguous language.").
60/
      The Zachary Constr case did not analyze Section 271.154 and did not find that Section 271.154
      is capable of waiving governmental immunity. See Zachry Constr, 2014 Tex. LEXIS 768.

                                                    21
authorities which have discussed Section 271.154 have “reached the same conclusion

that section 271.154 does not have jurisdictional effect.”61/

B.          The Trial Court Erred in Denying the Risk Pool’s Plea in Abatement.

            An appellate court reviews a trial court's action in granting or denying a plea

in abatement under an abuse of discretion standard.62/ A trial court abuses its

discretion when it acts in an unreasonable and arbitrary manner, or without reference

to any guiding rules or principles.63/

            The Interlocal Agreement contains a pre-suit contractual dispute resolution

procedure intended to resolve objections its members may have to Risk Pool self-

insurance coverage decisions:


            “The Fund agrees to handle all . . . property claims . . . covered under
            this Agreement . . . . All decisions on individual cases shall be made by
            the Fund through the Fund staff and the Contractors . . . . However, any
            Pool Member shall have the right in any case to consult with the Fund on
            any decision made by the Fund staff or Contractors. The Board shall
            hear the objections of the Pool Member at its next regularly
            scheduled meeting and its decision will be final and binding on all
            parties.”64/



61/
      Santa Rosa Indep. Sch. Dist. v. Rigney Const. & Dev., LLC, Cause No. 13-12-00627-CV, 2013
      Tex. App. LEXIS 7275, *12-15, 2013 WL 2949566, at *5 (Tex. App.--Corpus Christi June 13,
      2013, pet. denied) (mem. op.) (citing Port Freeport v. RLB Contr., Inc., 369 S.W.3d 581,
      589-592 (Tex. App.--Houston [1st Dist.] 2012, pet. denied) and City of Mesquite v. PKG Contr.,
      Inc., 263 S.W.3d 444, 447-448 (Tex. App.--Dallas 2008, pet. denied)).
62/
      Lagow v. Hamon, 384 S.W.3d 411, 418 (Tex. App.--Dallas 2012, no pet.).
63/
      Id.
64/
      Appendix A (Interlocal Agreement at ¶11).

                                                  22
         It is undisputed that the Authority did not submit any objection to the Risk Pool

Board regarding the amount of the self-insurance benefits payable to the Authority

under the Interlocal Agreement.65/

         The pre-suit objection procedure in the Interlocal Agreement is a condition

precedent to suit and the Authority’s failure to comply with that procedure requires

that, if this suit were not dismissed, it must be abated. See, e.g, Nunn v. City of

Vernon, No. 07-02-0486-CV, 2003 Tex. App. LEXIS 8464, *4-*7 (Tex. App.--

Amarillo Sept. 30, 2003, no pet.) (plaintiff’s failure to submit claim dispute to city

insurance fund’s trustees rendered suit subject to abatement). In light of the

Authority’s failure to satisfy this condition precedent in the Interlocal Agreement,

even if the Authority’s suit were not dismissed, its claims must be abated until the

Authority has complied with the objection process contained in the Interlocal

Agreement.

         In the trial court, the Authority did not respond to the Risk Pool’s plea in

abatement. Nevertheless, the trial court denied the Risk Pool’s unopposed plea in

abatement without explanation. Because that denial was unreasonable, arbitrary, and

without reference to any guiding rules or principles, it was an abuse of discretion and

reversible error.

65/
      And, in any event, the Authority’s failure in this regard was established below by the Risk Pool’s
      verified pleadings. See CR 131-135 (Texas Municipal League Joint Self-Insurance Fund’s
      Original Answer at ¶¶ 15-16, Verification).

                                                   23
C.    The Trial Court Erred in Granting Ultimate Relief to the Authority on a
      Pretrial Basis, Without Requiring Compliance with Texas Procedural Law.

      TEX. R. CIV. P. 166a is the procedural rule that controls when a party moves

for a pretrial judgment to recover “upon all or any part” of a claim. Id. Here, without

filing a motion for summary judgment or, for that matter, filing any motion at all, the

Authority set and the trial court conducted a “Hearing to Appoint Umpire for

Insurance Appraisal.” After that hearing, the trial court granted the ultimate relief the

Authority sought in its Application – the appointment of an appraisal umpire.

      Texas law does not permit the Authority, as movant, to deprive the Risk Pool

of the procedural protections to which it is entitled under Rule 166a when responding

to a motion that seeks a dispositive pretrial ruling. Specifically, under Rule 166a:

  1. The movant is required to file a written motion stating the specific grounds
     for relief (TEX. R. CIV. P. 166a(c)). Here, the Authority filed no written
     motion to support its claim for pretrial judgment.

  2. The movant must file and serve its written motion at least 21 days before the
     day of its summary judgment hearing (TEX. R. CIV. P. 166a(c)). Here, the
     Authority did not file and serve a written motion at all, much less serve one
     at least 21 days before the “Hearing to Appoint Umpire for Insurance
     Appraisal.”

  3. The movant must file and serve sworn affidavits and other competent
     summary judgment evidence at least 21 days before its summary judgment
     hearing (TEX. R. CIV. P. 166a(c), (f)). Here, the Authority had not filed and
     served any competent summary judgment evidence more than 21 days before
     the “Hearing to Appoint Umpire for Insurance Appraisal.”

  4. The movant may not offer live testimony at the summary judgment hearing
     TEX. R. CIV. P. 166a(c) (“No oral testimony shall be received at the

                                           24
    hearing.”) Here, the Authority offered and the trial court admitted, over the
    Risk Pool’s objection, previously undisclosed exhibits and the live testimony
    of the Authority’s own counsel at the “Hearing to Appoint Umpire for
    Insurance Appraisal.”

5. The movant has the burden to adduce competent summary judgment
   evidence “showing that there is no genuine issue of material fact and that it
   is entitled to judgment as a matter of law" (Nixon v. Mr. Property
   Management, 690 S.W.2d 546, 548 (Tex. 1985)). Here, there was no
   competent summary judgment evidence before the Court that conclusively
   proved the essential elements of the Authority’s specific performance claim:

    a. A party seeking specific performance must plead and prove that the
       defendant breached the contract. Chevron Phillips Chem. Co. LP v.
       Kingwood Crossroads, L.P., 346 S.W.3d 37, 57-58 (Tex. App.--Houston
       [14th Dist.] 2011, pet. denied). Here, the Authority submitted no
       competent summary judgment evidence that conclusively proved this
       essential element of its specific performance claim.

    b. A party seeking specific performance must plead and prove compliance
       with the contract including tender of performance. Id. Here, the
       Authority had no pleadings to support this element of a specific
       performance claim and it failed to meet its burden to submit competent
       summary judgment evidence to conclusively establish this essential
       element of such a claim.

    c. A party seeking specific performance must plead and prove it was ready,
       willing, and able to perform at relevant times. Id. Here, the Authority
       had no pleadings to support this element and it failed to meet its burden to
       submit competent summary judgment evidence to conclusively establish
       this essential element of its specific performance claim.

    d. A party seeking specific performance must plead and prove that it satisfied
       all conditions precedent. Associated Indem. Corp. v. CAT Contracting,
       Inc., 964 S.W.2d 276, 283 (Tex. 1998) ("A condition precedent is an event
       that must happen or be performed before a right can accrue to enforce an
       obligation."). Here, the Authority had no pleadings to support this element
       and it failed to meet its burden to submit competent summary judgment


                                       25
              evidence to conclusively establish this essential element of its specific
              performance claim.

      6. The non-movant is entitled to the presumption that all “evidence favorable to
         the non-movant will be taken as true,” and ”[e]very reasonable inference must
         be indulged in favor of the non-movant and any doubts resolved in its favor.”
         (Nixon, 690 S.W.2d at 548-49). Here, the only evidence properly before the
         trial court was the Risk Pool’s verified denials, asserting that the Authority has
         not satisfied conditions precedent, has not complied with the contract’s terms,
         and has not provided the requisite notice and proofs of loss.66/ Because this
         evidence favorable to the Risk Pool must be taken as true, the Authority could
         not prove and did not conclusively prove these essential elements of its specific
         performance claim, as a matter of law.

          The Risk Pool objected, both in writing67/ and at the “Hearing to Appoint

Umpire for Insurance Appraisal,”68/ to the Authority’s multiple failures to comply

with the requirements of Rule 166a. The Risk Pool requested that the trial court deny

any relief which the Authority requested, based upon the fact that the requested

hearing was in reality a misnamed and procedurally infirm motion for summary

judgment. The Risk Pool also directed the trial court to controlling precedent on this

very issue. See, e.g., Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n.1 (Tex.

App.—Dallas 2006), aff'd, 290 S.W.3d 886 (Tex. 2009) (construing a "Motion to

Compel Appraisal" as a motion for summary judgment, citing TEX. R. CIV. P. 71. and



66/
      CR 126-191(The Texas Municipal League Joint Self-insurance Fund's Original Answer at ¶¶
      15-16 and p. 10 (verification).)
67/
      CR 198-202 (Texas Municipal League Joint Self-Insurance Fund's Response And Objection To
      The Alice Housing Authority's “Hearing To Appoint Umpire For Insurance Appraisal”).
68/
      RR 7:24 - 8:20; 9:10-22; 22:25 - 23:11; 40:22 - 43:14.

                                                 26
noting that, “we look to the substance of a pleading to determine its nature, not merely

the title given to it.”).69/

         The Legislature has vested the Texas Supreme Court with exclusive rulemaking

authority over the practice and procedure in civil actions,70/ and that Court has made

following observations about the force and effect of the Texas Rules of Civil

Procedure:

         The Texas Rules of Civil Procedure have the same force and effect as
         statutes. They are to be given a liberal construction to the end of
         accomplishing their objective "to obtain a just, fair, equitable and
         impartial adjudication of the rights of litigants under established
         principles of substantive law . . . but they are not to be ignored by
         agreements of courts and counsel to operate contrary thereto and in
         violation thereof. Especially is this true when such agreements lead to
         unfair and harmful results to either or both litigants as in this case...

Missouri P. R. Co. v. Cross, 501 S.W.2d 868, 872-873 (Tex. 1973) (internal citations

omitted, emphasis added). Notwithstanding this guiding principle of Texas law, the

trial court granted ultimate relief to the Authority on a pretrial basis, without requiring


69/
      See also Gaddy v. Harris County Juvenile Bd., Cause No. 01-88-00663-CV, 1989 Tex. App.
      LEXIS 319, *4-*5 (Tex. App.--Houston [1st Dist.] Feb. 23, 1989, no writ) (“Under the
      misnomer of pleading rule, we could construe appellees' motion to dismiss as a motion for
      summary judgment. TEX. R. CIV. P. 71. Appellees, however, have not complied with the
      requirements for maintaining a summary judgment. Appellees did not file any sworn affidavits
      or other summary judgment proof. Without summary judgment proof, appellees could not
      establish that there was no genuine issue of fact and that they were entitled to judgment as matter
      of law. Further, TEX. R. CIV. P. 166a requires parties to file a summary judgment motion and
      give notice to opposing counsel at least 21 days before a hearing. Here, appellees filed their
      motion to dismiss on May 5, 1987, and the trial court dismissed the suit and entered a
      take-nothing judgment on May 23, 1987, a period of only 18 days.”).
70/
      See TEX. GOV'T CODE §22.004,

                                                   27
the Authority to comply with the Texas Rules of Civil Procedure cited above. This

error should be corrected and reversed by this Court. See id.; see also In re

CompleteRx, Ltd., 366 S.W.3d 318, 324-325 (Tex. App.--Tyler 2012, orig.

proceeding) (“For this court to relax the mandates of the rule would be tantamount to

amending established rules of procedure. [ ] This rulemaking power is invested solely

in the Supreme Court of Texas. [ ] Accordingly, we hold the trial court clearly abused

its discretion when it granted Good Shepherd's motion for modification of [TEX. R.

CIV. P. proscribed] time limits.”).

                                       VI.
                               CONCLUSION & PRAYER

       Appellant Texas Municipal League Joint Self-insurance Fund a/k/a The Texas

Municipal League Intergovernmental Risk Pool requests that this Court reverse the

trial court’s "Order Selecting Umpire" and dismiss the Authority’s action or,

alternatively, abate it, in the manner requested in the Risk Pool’s Plea to the

Jurisdiction and Plea in Abatement, and grant the Risk Pool such other and further

relief, whether legal or equitable, to which it may show itself to be justly and equitably

entitled.




                                           28
Respectfully submitted,

By: /s/ Barry Abrams
    Barry Abrams
    State Bar No. 00822700
    Babrams@BlankRome.com
    Jack W. Higdon
    State Bar No. 24007360
    Jhigdon@BlankRome.com
    BLANK ROME LLP
    700 Louisiana, Suite 4000
    Houston, Texas 77002
    (713) 228-6601
    (713) 228-6605 (Fax)

ATTORNEYS FOR APPELLANT
T EXAS M UNICIPAL L EAGUE J OINT
SELF-INSURANCE FUND A/K/A THE TEXAS
MUNICIPAL LEAGUE INTERGOVERNMENTAL
RISK POOL




 29
                           CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this brief complies with the
type-volume restrictions of TEX. R. APP. P. 9.4(e), (i)(2)(B). Exclusive of the portions
exempted by Rule 9.4(i)(1), this brief contains 7,110 words.

                                               /s/ Barry Abrams
                                               Barry Abrams




                             CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing was forwarded to the
following counsel of record by email and United States First Class Mail, certified,
return receipt requested, on April 16, 2015:

      Via Email & Certified Mail,
      RRR No. 70071490000022311663
      Mr. Anthony Constant
      CONSTANT LAW FIRM
      One Shoreline Plaza
      800 N. Shoreline Blvd, Suite 2700 South
      Corpus Christi, Texas 78401
      Fax: 361-887-8010


                                        /s/ Barry Abrams
                                        Barry Abrams




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