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