San Antonio is taking WM to Court.

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CITY OF SAN ANTONIO v. WHEELABRATOR AIR POLLUTION CONTROL, INC.
No. 04-11-00821-CV.
Court of Appeals of Texas, Fourth District, San Antonio.

Delivered and Filed: August 1, 2012.

OPINION
PHYLIS J. SPEEDLIN, Justice.

The City of San Antonio, acting by and through CPS Energy1 (hereinafter “CPS”), appeals the trial court’s denial of its plea to the jurisdiction in this lawsuit by Wheelabrator Air Pollution Control, Inc. in which it asserts a breach of contract claim and, alternatively, a quasi-contractual quantum meruit claim to recover a 10% contract retainage withheld by CPS. This interlocutory appeal raises a question of first impression—whether the governmental/proprietary distinction employed in the Texas Tort Claims Act applies in a contractual or quasi-contractual setting to determine whether a municipality is immune from suit. We hold that the governmental/proprietary distinction does not apply, and conclude CPS is immune from suit on the quantum meruit claim. Accordingly, we reverse the trial court’s order denying CPS’s plea to the jurisdiction, render judgment dismissing Wheelabrator’s quantum meruit claim for want of jurisdiction, and remand the cause to the trial court for further proceedings.

CONCLUSION
Because the Legislature’s limited waiver of governmental immunity from suit in Chapter 271 does not include quantum meruit claims, and the proprietary/governmental distinction from the TTCA does not apply in this contractual or quasi-contractual context, CPS is immune from suit on Wheelabrator’s quantum meruit claim. In addition, the circumstances do not support a waiver of immunity by conduct. Therefore, the trial court erred in denying CPS’s plea to the jurisdiction as to the quantum meruit claim. Accordingly, we reverse the trial court’s order denying CPS’s plea to the jurisdiction and render judgment that Wheelabrator’s quantum meruit claim is dismissed for want of jurisdiction. We remand the cause to the trial court for further proceedings consistent with this opinion.

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