78R13676 PJR-F
By: Hartnett H.C.R. No. 223
CONCURRENT RESOLUTION
WHEREAS, Maria Isabel Guerrero-McDonald and
Guerrero-McDonald & Associates, Inc., allege that:
(1) on March 22, 1994, subsequent to the submittal and
acceptance of a bid, Pelzel & Associates entered into a contractual
agreement with Travis County for the construction of the Travis
County Precinct One Office Building in Austin, Texas;
(2) the terms for the construction of the building
specified that the work should be substantially completed within
150 calendar days, on December 8, 1994, and that in the event of
late completion Travis County would sustain and retain liquidated
damages in the amount of $250 for each calendar day beyond the
contractually required date for substantial completion of the
project;
(3) the final completion date for the construction of
the building was December 29, 1994, twenty-one days beyond the
contractually required date for substantial completion;
(4) Travis County retained liquidated damages in the
amount of $5,500, and Pelzel & Associates was required to prove at a
significant expense that the actions of Travis County caused the
delayed completion date;
(5) Pelzel & Associates presented its claim to the
Travis County Commissioners Court, at which time Travis County
admitted that no liquidated damages were justified and that Travis
County was at fault for delays that had indeed damaged Pelzel &
Associates, the cost of which, together with the cost of proving
these facts, totals over $100,000;
(6) Travis County offered to relinquish its claim for
liquidated damages only, but threatened to claim sovereign immunity
if Pelzel & Associates demanded additional damages;
(7) a final offer to resolve the matter was made by the
Pelzel & Associates attorney on April 25, 1995, for approximately
one-third of the total damages, but Travis County did not respond to
this offer;
(8) on October 3, 1995, Pelzel & Associates brought
suit against Travis County in the District Court of Travis County
for payment due, for cost of proving its case, and for interest to
date, and Travis County denied all allegations, seeking summary
judgment regarding sovereign immunity from suit and the dismissal
of Pelzel & Associates' cause, premised on lack of jurisdiction and
based on immunity from suit rather than on the merits of the case;
(9) in June 1999, Pelzel & Associates changed its name
to Guerrero-McDonald & Associates, Inc.;
(10) on November 22, 1999, the trial court signed an
order denying the plea to the jurisdiction and amended motion for
summary judgment;
(11) on December 16, 1999, Travis County filed a
notice of appeal with the Third Court of Appeals for an
interlocutory appeal of the trial court's decision;
(12) during the appeals process, the parties engaged
in mediation on June 1, 2000; however, no decision was reached, and
the parties agreed to a continuance allowing Guerrero-McDonald &
Associates, Inc., time to provide additional documentation;
(13) on October 19, 2000, the Third Court of Appeals
affirmed the order of the trial court, and subsequently denied a
motion for rehearing requested by Travis County on November 30,
2000;
(14) Travis County filed a petition for review with
the Supreme Court of Texas, which was granted, briefs were filed,
and oral arguments were held on November 28, 2001;
(15) on April 30, 2002, pending the decision of the
Supreme Court of Texas, both parties filed a joint motion to retain
case on docket and objection to ADR with the intent that, should the
supreme court render in favor of Travis County, the case would be
abated until legislative consent was obtained;
(16) on May 9, 2002, the Supreme Court of Texas
rendered its opinion, finding in favor of Travis County and
reversing the Third Court of Appeals' decision, its findings being
made more on the merits of Travis County's case than on their
allegation of sovereign immunity, in spite of the dissenting
opinion of Justice Enoch that the Court continues to "keep the
courthouse doors locked" by allowing the county to "interpose
sovereign immunity from suit"; now, therefore, be it
RESOLVED by the Legislature of the State of Texas, That Maria
Isabel Guerrero-McDonald and Guerrero-McDonald & Associates, Inc.,
are granted permission to sue Travis County in the manner described
for a suit against the state under Chapter 107, Civil Practice and
Remedies Code; and, be it further
RESOLVED, That the suit authorized by this resolution shall
be brought in Travis County; and, be it further
RESOLVED, That the total of all damages awarded in the suit
authorized by this resolution, including any court costs, and any
prejudgment interest awarded under law, may not exceed $3 million
plus the amount of any attorney's fees authorized to be awarded
under law, and that Maria Isabel Guerrero-McDonald and
Guerrero-McDonald & Associates, Inc., may not plead an amount in
excess of that amount that may be recovered with respect to the
contract that is the subject of this resolution in all actions
brought with respect to that contract; and, be it further
RESOLVED, That the county judge of Travis County be served
process.