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SENATE CONCURRENT RESOLUTION
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WHEREAS, Maria Isabel Guerrero-McDonald and |
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Guerrero-McDonald & Associates, Incorporated, 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 specified |
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that the work should be substantially completed within 150 calendar |
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days, on December 8, 1994, and that in the event of late completion |
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Travis County would sustain and retain liquidated damages in the |
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amount of $250 for each calendar day beyond the contractually |
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required date for substantial completion of the project; |
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(3) the final completion date for the construction of the |
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building was December 29, 1994, 21 days beyond the contractually |
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required date for substantial completion; |
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(4) Travis County retained liquidated damages in the amount |
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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 Travis |
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County Commissioners Court, at which time Travis County admitted |
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that no liquidated damages were justified and that Travis County |
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was at fault for delays that had indeed damaged Pelzel & Associates, |
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the cost of which, together with the cost of proving these facts, |
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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 suit |
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against Travis County in the District Court of Travis County for |
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payment due, for the 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 to |
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Guerrero-McDonald & Associates, Incorporated; |
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(10) on November 22, 1999, the trial court signed an order |
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denying the plea to the jurisdiction and amended motion for summary |
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judgment; |
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(11) on December 16, 1999, Travis County filed a notice of |
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appeal with the Third Court of Appeals for an interlocutory appeal |
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of the trial court's decision; |
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(12) during the appeals process, the parties engaged in |
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mediation on June 1, 2000; however, no decision was reached, and the |
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parties agreed to a continuance allowing Guerrero-McDonald & |
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Associates, Incorporated, time to provide additional |
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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 the |
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Supreme Court of Texas, which was granted, briefs were filed, and |
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oral arguments were held on November 28, 2001; |
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(15) on April 30, 2002, pending the decision of the Supreme |
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Court of Texas, both parties filed a joint motion to retain case on |
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docket and objection to alternative dispute resolution with the |
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intent that, should the supreme court render in favor of Travis |
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County, the case would be abated until legislative consent was |
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obtained; |
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(16) on May 9, 2002, the Supreme Court of Texas rendered its |
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opinion, finding in favor of Travis County and reversing the Third |
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Court of Appeals' decision, its findings being made more on the |
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merits of Travis County's case than on their allegation of |
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sovereign immunity, in spite of the dissenting opinion of Justice |
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Enoch that the court continues to "keep the courthouse doors |
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locked" by allowing the county to "interpose sovereign immunity |
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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, |
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Incorporated, are granted permission to sue Travis County in the |
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manner described for a suit against the state under Chapter 107, |
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Civil Practice and 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, Incorporated, may not plead an |
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amount in excess of that amount that may be recovered with respect |
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to the contract that is the subject of this resolution in all |
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actions 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. |
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