In Boyer, Inc. v. Trinity River Authority, ____ S.W.3d ____,2008 WL 163560 (Tex. App.—Ft. Worth Jan. 17, 2008, no. pet. h.), the Trinity River Authority ("TRA") demobilized its contractor on a project. Under the most recent change order between the parties, the contractor was entitled to recover its actual field costs with a 15% markup. When the TRA declined to pay the contractor for the markup under the terms of the written change order, the contractor sued. At trial, the TRA argued that the same provisions of the Texas Local Government Code &nb sp;§ 271.153(a) that waived sovereign immunity to allow a suit to be brought on the written contract did not also allow the contractor to seek recovery of any consequential damages, including the contractor’s lost profits. The trial court agreed and granted summary judgment in favor of the TRA.

      The Fort Worth appeals court held that while the TRA was correct that the statute generally does not allow recovery of consequential damages, the damages could be recovered if they are part of "the balance due and owed by the local governmental entity under the contract as it may have been amended, including any amount owed as compensation for the increased cost to perform the work as a direct result of owner-caused delays or acceleration." The court held that the contractor could recover the "lost profit" consequential damages, not because they are "consequential damages" but because under the Code provision it was the measure of damages that the contractor would have received had the TRA not breached the written contract. The court held that the contractor therefore "seeks direct damages, not consequential damages" and is not barred by the Code prohibitions.