In Dimmit Cnty. Mem'l Hosp. v. CPM Med., LLC, No. 04-11-00710-CV, 2012 WL 1431366 (Tex. App.--San Antonio April 25, 2012, no pet. h.), the hospital-defendant contended on appeal that, contrary to its pleadings in the trial court, it was not a local governmental entity and thus, the Legislature had waived the hospital's immunity.
The court declined to consider the hospital's argument that the statutory waiver of immunity for contract claims did not apply to it, noting that considering that issue in the interlocutory appeal "would deprive the plaintiff of the opportunity to respond with evidence controverting the claim that the Hospital is not a local governmental entity."
Thus, the court concluded that the issue was "better addressed by the trial court."