ACCEPTED
03-15-00377-CV
6142265
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/20/2015 3:57:24 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00377-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
at AUSTIN, TEXAS AUSTIN, TEXAS
__________________________________________________________________
7/20/2015 3:57:24 PM
JEFFREY D. KYLE
CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY Clerk
AND IN
HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF
LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND
PLANNING DIRECTOR FOR THE CITY OF LEANDER
Appellants
v.
PREMAS GLOBAL LEANDER I, LLC
Appellee
__________________________________________________________________
Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court,
Williamson County, Texas
__________________________________________________________________
APPELLANTS’ BRIEF
__________________________________________________________________
Knight & Partners
223 W. Anderson Lane, Ste. A-105
Austin, Texas 78752
(512) 323-5778 Telephone
(512)323-5773 Facsimile
ATTORNEYS FOR APPELLANT
Bradford E. Bullock
State Bar No. 00793423
APPELLANTS REQUEST ORAL ARGUMENT
IDENTITY OF PARTIES & COUNSEL
In order that the members of this Court may determine disqualification and
recusal under the Texas Rules of Appellate Procedure, Appellant certifies that the
following is a complete list of the parties, attorneys, and other persons with a
financial interest in the outcome of this lawsuit:
Appellant: Attorneys for Appellant:
CITY OF LEANDER, TEXAS
Knight & Partners
Attorneys at Law
Executive Office Terrace
223 West Anderson Lane, Suite A-
105
Austin, Texas 78752
(512) 323-5778 Office
(512) 323-5773 Facsimile
Bradford E. Bullock
State Bar No. 00793423
bradford@cityattorneytexas.com
KENT CAGLE Knight & Partners
Attorneys at Law
Executive Office Terrace
223 West Anderson Lane, Suite A-
105
Austin, Texas 78752
(512) 323-5778 Office
(512) 323-5773 Facsimile
Bradford E. Bullock
State Bar No. 00793423
bradford@cityattorneytexas.com
THOMAS YANTIS Knight & Partners
Attorneys at Law
Executive Office Terrace
223 West Anderson Lane, Suite A-
105
ii
Austin, Texas 78752
(512) 323-5778 Office
(512) 323-5773 Facsimile
Bradford E. Bullock
State Bar No. 00793423
bradford@cityattorneytexas.com
Appellee: Attorneys for Appellee:
PREMAS GLOBAL LEANDER I, LLC Howry, Breen & Herman LLP
1900 Pearl Street
Austin, Texas 78705-5408
(512) 474-7300 Office
(512) 474-8557 Facsimile
Sean E. Breen
State Bar No. 00783715
sbreen@howrybreen.com
Randy R. Howry
State Bar No. 10121690
rhowry@howrybreen.com
James Hatchitt
State Bar No. 24072478
jhatchitt@howrybreen.com
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES &
COUNSEL…………………………………………........... ..................................... ii
INDEX OF
AUTHORITIES………………………………………………………....... ........... vii
JURISDICTIONAL
STATEMENT………………………………………………………....... ................ 3
STATEMENT OF THE
CASE………………………………………………………… ................................. 3
STATEMENT ON
ORAL ARGUMENT ………………………………………………….................... 4
ISSUES PRESENTED FOR
REVIEW………………………………………………. ........................................... 4
STATEMENT OF
FACTS………………………………………………………….….. ........................ 6
SUMMARY OF THE
ARGUMENT………………………………………………..................................... 9
ARGUMENT …………………………………………………..............................13
Issue One – Appellee has not asserted a valid waiver of governmental
immunity based on an alleged waiver by contract; therefore,
Appellee’s pleading affirmatively negates the trial court’s jurisdiction
over Appellants on this ground.
…………………………………………………………………. 13
Issue Two – Appellee has not asserted a claim for relief for which
immunity has been waived under Texas Local Government Code §
271.152; therefore, Appellee’s pleading affirmatively negates the trial
court’s jurisdiction over Appellants on this ground.
…………………………………………………………………. 18
iv
Issue Three – Appellee has not asserted a valid waiver of
governmental immunity based on Appellants’ conduct; therefore,
Appellee’s pleading affirmatively negates the trial court’s jurisdiction
over Appellants on this ground.
…………………………………………………………………. 25
Issue Four – Appellee has not asserted a valid waiver of governmental
immunity based on a proprietary function; therefore, Appellee’s
pleading affirmatively negates the trial court’s jurisdiction over
Appellants on this ground.
…………………………………………………………………. 27
Issue Five – Appellee has not asserted a valid waiver of governmental
immunity based on the Uniform Declaratory Judgments Act because it
is incidental to and redundant of a breach of contract claim and a
claim brought pursuant to Chapter 245 of the Local Government
Code; therefore, Appellee’s pleadings affirmatively negate the trial
court’s jurisdiction over Appellants on this ground.
…………………………………………………………………. 30
Issue Six – Appellee has asserted a claim for declaratory relief and a
writ of mandamus against Appellants the City, and Cagle and Yantis
in their individual capacities, but such relief is only available against
officials in their official capacities for purely ministerial acts;
therefore, Appellee’s pleading affirmatively negates the trial court’s
jurisdiction over Appellants the City, and Cagle and Yantis in their
individual capacities, and all Appellants to the extent it asks them to
perform non-ministerial acts.
…………………………………………………………………. 33
Issue Seven – Appellee has not asserted a valid waiver of immunity
for an award of attorneys’ fees against Appellants because their claims
are not cognizable under the relevant statute, or the statute itself does
not provide for an award of attorneys’ fees; therefore, Appellants’
pleading affirmatively negates the trial court’s jurisdiction to award
attorneys’ fees to Appellees.
…………………………………………………………………. 38
PRAYER …………………………………………………..................................... 40
v
CERTIFICATE OF
COMPLIANCE …………………………………………………. .........................41
CERTIFICATE OF
SERVICE …………………………………………………....................................42
APPENDIX …………………………………………………. ...............................43
vi
INDEX OF AUTHORITIES
CASES
Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)
……………………………………………………………………………………36
Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)
……………………………………………………………………………………37
Associated Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d at
753………………………………………………………………………………..39
Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 172 (Tex. App.-Austin 2013,
no pet.) ………………………………………………………………………25, 26
Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 29
(Tex. App.-San Antonio 2006, pet. dism’d)
……………………………………………………………………………………16
Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) ……………………………………………………………..14
Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)
…………………………………………………………………………………...19
City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex. App.—Fort Worth 2007,
pet. Denied) ……………………………………………………………………..13
City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009)
…………………………………………………………………………….31, 35, 37
City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007)
……………………………………………………………………………………20
City of Georgetown v. Lower Colorado River Auth., 413 S.W.3d 803, 812-14 (Tex.
App.-Austin 2013), reh’g overruled (Nov. 13, 2013), review dismissed (May 30,
2014) …………………………………………………………………24, 29, 30, 32
vii
City of Houston v. Jackson, 192 S.W.3d 764, 773 (Tex. 2006)
……………………………………………………………………………….……39
City of Houston v. Southern Electrical Services, Inc., 273 S.W.3d 739, 744 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied)
………………………………………………………………………………….…20
City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
…………………………………………………………………………………….14
City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444 (Tex. App.-Dallas
2008, pet. denied) ……………………………………………………..……….…24
City of N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900,
908 (Tex. App.-Fort Worth 2011, no pet.)
………………………………………………………………………….…20, 23, 31
City of Round Rock v. Whiteaker, 241 S.W.3d 609, 628 (Tex. App.-Austin 2007,
pet denied) ………………………………………………………..………..…22, 36
City of San Antonio v Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 WL
631484, at *1, *6 (Tex. App.-San Antonio Feb. 19, 2014), review denied (May 1,
2015) (unreported case) …………………………..………………………...…33,39
City of Willow Park, Texas v. E.S., 424 S.W.3d 702, 709 (Tex. app.-Fort Worth
2014), review denied (Oct. 24, 2014) ……………………………………17, 25, 27
Clear Lake City Water Auth. v. MCR Corp., 2010 Tex. App. LEXIS 2194, 30 (Tex.
App. Houston 1st Dist. Mar. 11, 2010) …………………………...………………20
County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)
……………………………………………………………………………….……13
Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293 S.W.3d 839, 842
(Tex. App.-Dallas 2009, pet. denied) ……………….……………………………16
Federal Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997)
………………………………………………………………………...15, 25, 26, 27
viii
Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.-Austin
2014, no pet.)………………………………………………………...………..36, 37
John G. and Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 289
(Tex. 2002) ……………………………………………………………………….39
Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex. App.—Houston [1st Dist.]
1999, no pet.) …………………………………………………………………..…19
Multi-County Water Supply Corp. v. City of Hamilton, 321 S.W.3d 905, 908 (Tex.
App.-Houston [14th Dist.] 2010, pet. denied)
………………………………………………………………………………….…32
New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.-Austin
2014, no pet.) ………………………………………………………….……..26, 28
Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex. App.-Austin 2011.
no pet.) ……………………………………………………………………………39
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006)
……………………………………………………………………………...…….15
Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011)
……………………………………………………………………………………26
State v. Langley, 232 S.W.3d 363, 367 (Tex. App.-Tyler 2007, no pet.)
……………………………………………………………………………………15
State v. Oakley, 227 S.W. 3d 58, 62 (Tex. 2007)
……………………………………………………………………………………21
Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013)
…………………………………………………………………………….………25
Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004)
………………………………………………………………………….…13, 14, 15
Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)
……………………………………………………………………………………18
ix
Texas Mun. Power Agency v. Pub. Util. Com’n, 260 S.W.3d 647, 650 (Tex. App.-
Austin 2008, no pet.)………………………………………………...……………33
Texas State Bd. of Plumbing Examiners v. Associated Plumbing-Heating-Cooling
Contractors of Texas, Inc., 31 S.W.3d 750, 753 (Tex. App.-Austin 2000, pet.
abated) …………………………………………………………………….……...33
Texas S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 908 (Tex. App.-
Houston [1st Dist.] 2007, pet denied) …………………………….………………25
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002) ………………………………………………………………….…14, 17, 31
Tooke v. City of Mexia, 197 S.W.3d 325, 332, 346 (Tex. 2006)
………………………………………………………………….……15, 16, 21, 24
Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex. 2002)
………………………………………………………………………………15, 17
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 701 (Tex. 2003)
……………………………………………………………………………… 15, 21
CONSTITUTION
None
STATUTES
TEX. CIV. PRAC. & REM. CODE ANN. §51.014 (a) (8)
…………………………………………………………………………………..….3
TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014 (b), (c)(2)
…………………………………………………………………………………..….4
TEX. CIV. PRAC. & REM. CODE ANN. §101.0215 (a) (29) (Vernon) (West)
…………………………………………………………………………………….29
TEX. CIV. PRAC. & REM. CODE ANN. §37.006(b) (Vernon)
…………………………………………………………………………..…….30, 31
x
TEX. LOC. GOV’T CODE ANN. § 271.152 (Vernon)
……………………………………………………………………………….…9, 10
TEX. LOC. GOV’T CODE ANN. §143.015(b) (Vernon)
………………………………………………………………………………….…22
TEX. LOC. GOV’T CODE ANN. §245.006 (Vernon)
…………………………………………………………………………...……32, 38
TEX. LOC. GOV’T CODE ANN. §271.151(2)(A) (Vernon)
……………………………………………………………………………….……19
TEX. LOC. GOV’T CODE ANN. §271.151(2)(b) (West)
…………………………………………………………………………….………22
TEX. LOC. GOV’T CODE ANN. §271.152 (Vernon)
…………………………………………………………………………..….4, 18, 19
TEX. LOC. GOV’T CODE ANN. §271.153
……………………………………………………………………….…..……10, 21
TEX. LOC. GOV’T CODE ANN. §271.153(a) (Vernon)
………………………………………………………………………………….…19
TEX. LOC. GOV’T CODE ANN. §271.153(c) (Vernon)
……………………………………………………………………………..….21, 22
TEX. GOV’T CODE ANN. §311.034 (Vernon) (West)
………………………………………………………………………….…..…15, 18
TEX. GOV’T CODE ANN. §311.034 (West 2005 & Supp. 2009)
……………………………………………………………………………….……21
TEX. GOV’T CODE ANN. §311.011 (Vernon)
……………………………………………………………………………………18
TEXAS TORT CLAIMS ACT (TEX. CIV. PRAC. & REM. CODE CH. 101)
………...………………………………………………………………………28, 29
xi
UNIFORM DECLARATORY JUDGMENT ACT (TEX. CIV. PRAC. & REM.
CODE § 37.009)
………………………………………………………………………………….…12
RULES
TEX. R. APP. P. 39.1(b) ……………………………………………………….…..4
TEX. R. APP. P. 39.1(c) …………………………………………………………..4
TEX. R. APP. P. 39.1(e), 39.1(d) ………………………………………...………..4
OTHER AUTHORITIES
Acts 2013, 8rd Leg., ch. 1138 (H.B. 3511), §3, effective June 14,
2013………………………………………………………………………….……22
xii
No. 03-15-00377-CV
IN THE THIRD COURT OF APPEALS
at AUSTIN, TEXAS
__________________________________________________________________
CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF
LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND
PLANNING DIRECTOR FOR THE CITY OF LEANDER
Appellants
v.
PREMAS GLOBAL LEANDER I, LLC
Appellee
__________________________________________________________________
Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court,
Williamson County, Texas
__________________________________________________________________
APPELLANTS’ BRIEF
__________________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COME Appellants, the CITY OF LEANDER, TEXAS; KENT
CAGLE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CITY
MANAGER OF THE CITY OF LEANDER; AND THOMAS YANTIS,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT CITY
1
MANAGER AND PLANNING DIRECTOR FOR THE CITY OF LEANDER,
and submit this appellants’ brief.
2
JURISDICTIONAL STATEMENT
This is a timely, accelerated appeal pursuant to Texas Rule of Appellate
Procedure 28.1 from an interlocutory order denying Appellants’ plea to the
jurisdiction.
STATEMENT OF THE CASE
Appellee, a property developer, asserted claims for breach of contract
(development agreement), specific performance, declaratory judgment, an
injunction, mandamus and attorneys’ fees under various theories and statutes
against Appellants City of Leander and Kent Cagle and Thomas Yantis in their
individual and official capacities. CR:6-88.1 Appellants answered (CR:89-95) and
filed a motion to dismiss for lack of jurisdiction, asserting various fatal defects in
Appellee’s pleadings. CR:96-162. Following a hearing on Appellants’
jurisdictional plea, the trial court denied Appellants’ motion to dismiss for lack of
jurisdiction.2 CR:329. Appellants filed their notice of appeal (CR:332-35) in
conjunction with a motion to extend time to perfect notice with this Court.
Because this is an appeal of an interlocutory order by a governmental entity,
pursuant to Texas Civil Practice and Remedies Code § 51.014 (a)(8), which was
filed and requested for hearing before the trial court not later than the 180 th day
after Appellants filed their original answer and/or first responsive pleading 3, all
1
The appellate record consists of a single volume of the Clerk’s record. Therefore,
references to the Clerk’s Record shall be designated “CR:” followed by the relevant page
number(s).
2
At the hearing in question, the trial court also heard Appellee’s request for mandamus
relief, which the trial court granted. CR:330-31. The mandamus order against Cagle and
Yantis in their official capacities is not a subject of this appeal; however, Premas’
pleadings also assert a right to mandamus relief against the City, and Cagle and Yantis in
their individual capacities. The City and Cagle and Yantis, in their individual capacities,
do challenge Premas’ request for mandamus relief against them and contend that this
claim should have been dismissed against them. Appellants also note that by operation of
TEX. CIV. PRAC. & REM. CODE § 51.014(a) (8), (b), and (c), the trial court’s mandamus
order against Cagle and Yantis in their official capacities is stayed pending resolution of
this appeal.
3
Appellants’ answer was filed on February 20, 2015. CR:89. The trial court issued its
order denying Appellants’ plea to the jurisdiction on May 22, 2015. CR:329.
3
proceedings in the trial court are stayed pending resolution of this appeal. TEX.
CIV. PRAC. & REM. CODE ANN. §§ 51.014 (b), (c)(2).
STATEMENT ON ORAL ARGUMENT – ORAL ARGUMENT
REQUESTED
The Court should grant oral argument for the following reasons:
a. The issues presented have not been authoritatively decided by this Court.
See TEX. R. APP. P. 39.1(b). Appellee has asserted numerous,
overlapping claims against Appellants, which implicate the application of
governmental immunity in novel ways.
b. Oral argument would allow the Court to better analyze the complex legal
issues presented in this appeal. See TEX. R. APP. P. 39.1(c). The facts
and legal grounds for the claims alleged in Appellee’s original petition
compelled the trial court to analyze various aspects of governmental
immunity in novel ways. Oral argument will assist the Court in
understanding the interplay of the relevant claims and defenses.
c. Oral argument would significantly aid the Court in deciding this case.
See TEX. R. APP. P. 38.1(e), 39.1(d). Oral argument will assist the Court
in understanding the nuanced arguments related to governmental
immunity, which are dispositive of this appeal.
ISSUES PRESENTED FOR REVIEW
Issue One – Appellee has not asserted a valid waiver of governmental
immunity based on an alleged waiver by contract; therefore, Appellee’s pleading
affirmatively negates the trial court’s jurisdiction over Appellants on this ground.
Issue Two – Appellee has not asserted a claim for relief for which immunity
has been waived under Texas Local Government Code § 271.152; therefore,
4
Appellee’s pleading affirmatively negates the trial court’s jurisdiction over
Appellants on this ground.
Issue Three – Appellee has not asserted a valid waiver of governmental
immunity based on Appellants’ conduct; therefore, Appellee’s pleading
affirmatively negates the trial court’s jurisdiction over Appellants on this ground.
Issue Four – Appellee has not asserted a valid waiver of governmental
immunity based on a proprietary function; therefore, Appellee’s pleading
affirmatively negates the trial court’s jurisdiction over Appellants on this ground.
Issue Five – Appellee has not asserted a valid waiver of governmental
immunity based on the Uniform Declaratory Judgments Act because it is incidental
to and redundant of a breach of contract claim and a claim brought pursuant to
Chapter 245 of the Local Government Code; therefore, Appellee’s pleadings
affirmatively negate the trial court’s jurisdiction over Appellants on this ground.
Issue Six – Appellee has asserted a claim for declaratory relief and a writ of
mandamus against Appellants the City, and Cagle and Yantis in their individual
capacities, but such relief is only available against officials in their official
capacities for purely ministerial acts; therefore, Appellee’s pleading affirmatively
negates the trial court’s jurisdiction over Appellants the City, and Cagle and Yantis
in their individual capacities, and all Appellants to the extent it asks them to
perform non-ministerial acts.
5
Issue Seven – Appellee has not asserted a valid waiver of immunity for an
award of attorneys’ fees against Appellants because their claims are not cognizable
under the relevant statute, or the statute itself does not provide for an award of
attorneys’ fees; therefore, Appellants’ pleading affirmatively negates the trial
court’s jurisdiction to award attorneys’ fees to Appellees.
STATEMENT OF FACTS
Appellant, the City of Leander, Texas (hereinafter “City”) and Appellee
Premas Global Leander I, LLC (hereinafter “Premas”) entered into a written
agreement entitled “Development and Annexation Agreement for Global Village”
(hereinafter “Development Agreement”) with an effective date of September 2,
2010, which contemplated the planned development of slightly more than 65 acres
of property. CR:34-82. The Development Agreement is for a ten-year term
(CR:50), and it contains several deadlines by which Premas had to perform certain
acts. CR:41. Specifically, the Development Agreement provided that Premas
shall: apply for final plat approval of Phase One within 180 days of the effective
date; apply for a site development permit within three years of the effective date
(September 2, 2013); and apply for a final plat or preliminary plan within four
years of the effective date (September 2, 2014). CR:41. The Development
Agreement also provided that time was of the essence in the performance of the
agreement. CR:50.
6
On September 19, 2014, the City sent a notice of default to Premas,
indicating that it was in default of its obligations to apply for a site development
permit within three years and apply for a final plat or preliminary plan within four
years of the effective date. CR:84. The City advised Premas that, pursuant to the
terms of the Development Agreement (CR:46), Premas had thirty days to cure
these defaults in its obligations to perform. CR:84. On October 28, 2014, the City
sent notice to Premas that its thirty-day cure period had expired and that due to its
failure to cure by submitting the applicable applications to the City, the City
considered the Development Agreement terminated. CR: 85:86.
Following the expiration of the 30 day cure period, Premas ultimately
attempted to submit applications for a site development permit and final or
preliminary plat on December 15, 2014 (CR:18), which the City refused to accept
or process on the grounds that the City considered the Development Agreement
terminated. CR:87-88. Thereafter, Premas filed its Original Petition, asserting
various causes of action against the City and Appellants Kent Cagle (hereinafter
“Cagle”) and Thomas Yantis (hereinafter “Yantis”) in both their official and
individual capacities. CR:6-33. Premas asserted claims for (a) breach of contract
against the City, seeking specific performance of the Development Agreement, (b)
a request for declaratory relief against the City that the Development Agreement is
valid and enforceable, (c) a writ of mandamus against all Appellants ordering them
7
to accept and process Premas’ late applications, (d) an application for temporary
and permanent injunction against the City, requiring specific performance of the
Development Agreement, and in support thereof, asserted various alleged waivers
of immunity. CR:19-31.
Appellants answered (CR:89-95) and filed a plea to the jurisdiction,
asserting that the trial court was without jurisdiction over Appellants with regard to
specific claims asserted by Premas because Premas’ pleadings affirmatively
negated the trial court’s jurisdiction. CR:96-162. Premas also requested a hearing
on its requests for mandamus relief (CR:251-311), which the trial court granted at
the same time it denied Appellants’ plea to the jurisdiction. CR:330-31. The trial
court ordered Cagle and Yantis in their official capacities to accept the applications
tendered by Premas on or about December 15, 2014, and review the applications
according the applicable law and rules in effect on September 2, 2010. CR: 330-
31.4
4
Appellants Yantis and Cagle have accepted the tendered applications for processing and
are not appealing the trial court’s order granting mandamus in their official capacities;
however, Premas’ pleadings asserted mandamus against all Defendants, including the
City and Cagle and Yantis in their individual capacities. The City and Cagle and Yantis,
in their individual capacities, do challenge Premas’ request for mandamus relief against
them and contend that this claim should have been dismissed against them. Appellants
also note that by operation of Texas Civil Practice and Remedies Code §§ 51.014 (b), (c),
the mandamus order against Cagle and Yantis in their official capacities is stayed
pending resolution of this appeal.
8
Thereafter, on June 18, 2015, Appellants filed their notice of interlocutory
appeal (CR:332-35) and concurrently filed a motion for extension of time to file
notice of interlocutory appeal with this Court. On June 30, 2015, the Williamson
County District Clerk filed the clerk's record with the Court. CR:336-37.
SUMMARY OF THE ARGUMENT
Under the governmental immunity doctrine, in a suit against a governmental
unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging
a valid waiver of immunity. Premas failed to do so in its claims for breach of
contract, declaratory judgment, injunction, and mandamus against Appellants for a
variety of reasons.
First, Premas asserted that the City waived immunity by virtue of a provision
in the Development Agreement that purports to waive immunity. CR:124-25. The
law is clear, however, that only the Legislature can waive governmental immunity
by clear and unambiguous language. Contractual provisions purporting to waive
immunity have been expressly rejected as valid grounds for waiver and Premas’
pleadings failed to invoke the trial court’s jurisdiction on its breach of contract
claim on this ground. The trial court committed reversible error by denying the
City’s plea on this ground.
Second, Premas asserted that § 271.152 of the Texas Government Code
clearly and unambiguously waived the City’s immunity for its breach of contract
9
claim against the City. Section 271.152 is a valid waiver of immunity for certain
contracts, and the City does not dispute that the Development Agreement is a
written contract for the provision of goods or services. However, § 271.153 also
expressly limits the remedies that are available to claimants, including a limit on
the type of money damages a claimant can seek and a strict limit on the type of
contracts for which specific performance is available. Premas has not asserted a
claim for any money damages under its breach of contract claim, but rather only
seeks specific performance of the Development Agreement. Premas’ pleadings,
however, affirmatively negate the trial court’s jurisdiction to award specific
performance for this kind of contract. Premas’ pleadings fail to invoke the trial
court’s jurisdiction on its breach of contract claim on this ground. The trial court
committed reversible error by denying the City’s plea on this ground.
Third, Premas asserted that the City waived its immunity from suit by
“misleading conduct.” CR:28. This claim is simply another iteration of Premas’
assertion that the City waived immunity by contract and is equally unavailing for
the same reasons. The trial court committed reversible error by denying the City’s
plea on this ground.
Fourth, Premas asserted that the City was not entitled to immunity on its
breach of contract claim because the Development Agreement constituted a
proprietary, as opposed to a governmental action. The Legislature and the courts
10
have previously classified contracts such as the Development Agreement as
governmental actions, particularly where, as here, the Development Agreement
addresses land-uses that extend beyond the City’s corporate limits into its
extraterritorial jurisdiction. The trial court committed reversible error by denying
the City’s plea on this ground.
Fifth, Premas asserted a Uniform Declaratory Judgment Act (hereinafter
“UDJA”) claim against the City, seeking a declaration that the Development
Agreement is valid and enforceable, and an award of attorneys’ fees pursuant
thereto. The UDJA, however, does not waive a city’s immunity from suit for
breach of contract claims, and the trial court committed reversible error by not
granting the City’s plea on this ground. Moreover, Premas also asserted a claim
for declaratory relief pursuant to Chapter 245 of the Local Government Code.
While Chapter 245 waives a city’s immunity from suit for certain actions,
including injunctive relief, mandamus, and declarations related to “permits,” which
the Development Agreement is, Chapter 245 does not waive a city’s immunity for
an award of attorneys’ fees and a claimant cannot bootstrap a Chapter 245 claim to
a UDJA claim simply for the purpose of obtaining attorneys’ fees. The trial court
committed reversible error by not granting the City’s plea on this ground.
Sixth, the only relief Premas seeks (aside from impermissible claims for
attorneys’ fees, which will be discussed separately) is for equitable relief
11
(injunction and/or mandamus) and specific performance of a contract with the
City. Neither injunctive relief nor specific performance is available against a city
official in their individual capacities on the facts pled by Premas because such
relief would not bind the actual party to the Development Agreement – the City.
And the Texas Supreme Court has made it clear that mandamus is only available
against officials in their official capacities. Therefore, Premas’ pleadings
affirmatively negate the trial court’s jurisdiction over Cagle and Yantis in their
individual capacities. The trial court committed reversible error by not granting
Cagle and Yantis’ plea on this ground in their individual capacities.
Seventh, in addition to requesting a mandamus order against Cagle and
Yantis in their individual capacities, Premas’ pleadings also request a mandamus
order against the City. Again, the Texas Supreme Court has made it clear that
mandamus is only available against officials in their official capacities and Premas’
pleadings affirmatively negate the trial court’s jurisdiction over the City on this
ground. The trial court committed reversible error by not granting the City’s plea
on this ground.
Eighth, Premas has asserted a claim for attorneys’ fees under section 37.009
of the UDJA, but because the relief that Premas seeks is redundant of the relief
afforded under Chapter 245 of the Local Government Code, Premas’ UDJA claim
is nothing more than an impermissible attempt to bootstrap an attorney fee award
12
to their underlying claim. This Court has previously addressed this very issue and
found jurisdiction under the UDJA lacking for an attorneys’ fee award under
similar facts. The trial court committed reversible error by not granting
Appellants’ plea on this ground.
ARGUMENT
Issue One – Appellee has not asserted a valid waiver of governmental
immunity based on an alleged waiver by contract; therefore, Appellee’s
pleading affirmatively negates the trial court’s jurisdiction over Appellants
on this ground.
As a preliminary matter, the rules governing a plea to the jurisdiction are
germane to the determination of this issue. A plea to the jurisdiction can challenge
either the pleadings or the existence of jurisdictional facts. Tex. Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). When a plea to the
jurisdiction challenges a plaintiff's pleadings, the question is whether plaintiff has
alleged sufficient facts to demonstrate the court's subject matter jurisdiction over
the matter. Id. Courts construe pleadings liberally in the plaintiff's favor and look
to the pleader's intent. City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex.
App.--Fort Worth 2007, pet. denied). When the pleadings neither allege sufficient
facts nor demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend. County
of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If, however, the pleadings
13
affirmatively negate jurisdiction, then the plea to the jurisdiction may be granted
without leave to amend. Id.
To prevail on the plea, the defendant must show that even if all the plaintiff's
pleaded allegations are true, an incurable jurisdictional defect remains on the face
of the pleadings that deprives the trial court of subject matter jurisdiction.
Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.--Houston [14th
Dist.] 2005, no pet.). Appellate courts review a trial court's ruling on a plea to the
jurisdiction de novo. Texas Department of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex.2004).
Cities enjoy governmental immunity from suit for actions undertaken in
their governmental capacity, including contracting. City of Houston v. Williams,
353 S.W.3d 128, 134 (Tex. 2011). The Texas Supreme Court has clearly stated
that suits to establish a contract’s validity, enforce its performance, or establish a
governmental entity’s liability cannot proceed without legislative permission. Tex.
Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)
(suits against governmental officials seeking to establish contract's validity,
enforce performance under a contract, or impose contractual liabilities are suits
against the governmental entity and cannot be maintained without legislative
permission) (emphasis supplied). Courts defer to the Legislature because the
decision to expend public funds for alleged contractual liability involves policy
14
choices more properly made by a legislative body. Tooke v. City of Mexia, 197
S.W.3d 325, 332 (Tex. 2006).
Governmental immunity from suit is a subject-matter jurisdiction question,
and cannot be waived or conferred by agreement, must be considered by a court
sua sponte, and may even be raised for the first time on appeal. Reata Constr.
Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006). Without subject-matter
jurisdiction, a court cannot render a valid judgment. Miranda, 133 S.W.3d at 225-
26.
In order to proceed in a claim against a city, even under contract, a plaintiff
must plead an applicable, clear and unambiguous waiver of immunity from suit.
TEX. GOV’T CODE ANN. §311.034 (Vernon); Travis County v. Pelzel & Assocs.
Inc., 77 S.W.3d 246, 248 (Tex. 2002). It is not enough for a party to simply allege
a breach of contract claim as they would against a private party – a city’s immunity
from suit is not automatically waived merely by entering into a contract. Federal
Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997); State v. Langley, 232 S.W.3d
363, 367 (Tex.App.—Tyler 2007, no pet.). And because immunity waivers are
strictly construed in favor of the governmental entity, the Legislature’s intent to
waive immunity must be “unmistakable.” Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 701 (Tex. 2003) (courts construe ambiguities in manner that retains
State's immunity).
15
A governmental entity’s immunity from suit for breach of contract extends
to suits seeking specific performance. See Bexar Metro. Water Dist. v. Educ. &
Econ. Dev. Joint Venture, 220 S.W.3d 25, 29 (Tex. App.—San Antonio 2006, pet.
dism'd) (suit for declaratory and injunctive relief seeking to “compel performance
of or to enforce rights arising out of a contract” with governmental entity barred by
immunity). When the only relief that a party seeks is not permitted by an
applicable immunity wavier, the governmental entity retains immunity from the
claim. See id. If a plaintiff seeks only excluded relief, then immunity is not
waived. See Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293
S.W.3d 839, 842 (Tex. App.—Dallas 2009, pet. denied), citing Tooke v. City of
Mexia, 197 S.W.3d 325, 346 (Tex.2006) (where plaintiffs' only claim was for lost
profits, which are excluded consequential damages, immunity not waived).
Premas has asserted a breach of contract claim against the City, and in
support of this claim alleges that the City waived immunity by contractual
provision. CR:26. Premas relies on section 9.03 of the Development Agreement,
which provides that the City of Leander “waives its governmental immunity from
suit and immunity from liability as to any action brought by Premas to pursue
equitable remedies available under the Agreement.” CR:46-47. This section also
provides that the City waives any claim or defense that any provision of the
Agreement is unenforceable on the ground that it constitutes an impermissible
16
delegation or impairment of the performance of the City’s governmental functions.
CR:47. The question is not so much whether the language in the Development
Agreement purports to waive the City’s immunity from suit, but rather whether
such language is enforceable.
In construing a contractual provision that expressly purported to waive
governmental immunity, courts have held that neither a governmental entity nor its
agents can waive immunity even by signing a contract with such a provision. City
of Willow Park, Texas v. E.S., 424 S.W.3d 702, 709 (Tex. App.—Fort Worth
2014), review denied (Oct. 24, 2014) citing Texas Natural Res. Conservation
Com'n v. IT-Davy, 74 S.W.3d 849, 858 (Tex. 2002). Premas’ contentions to the
contrary are not grounded in the law. Premas’ original petition cites Travis Cnty.
v. Pelzel & Assocs, Inc., (CR:26) for the proposition that the Texas Supreme Court
has authorized waivers of immunity by contract or conduct. 77 S.W.3d 246, 248
(Tex. 2002). Premas’ reliance on Pelzel is misplaced for several reasons.
First, the court specifically declined the claimants request to adopt a waiver-
by-conduct exception to immunity. Pelzel at 251-52. Second, Texas courts have
been consistent and clear in their holdings for more than 150 years that “it is the
Legislature's sole province to waive or abrogate sovereign immunity.” IT-Davy at
857 (declining to recognize waiver-by-conduct exception). Third, the Legislature’s
own statutory pronouncement belies the fallacy of Premas’ interpretation of Pelzel.
17
TEX. GOV’T CODE ANN. § 311.034 (West) (“In order to preserve the legislature's
interest in managing state fiscal matters through the appropriations process, a
statute shall not be construed as a waiver of sovereign immunity unless the waiver
is effected by clear and unambiguous language.”) (emphasis supplied).
Premas failed to invoke the trial court’s jurisdiction for a breach of contract
claim against the City based on a contractual provision purporting to waive the
City’s immunity from suit and the trial court erred in denying the City’s plea to the
jurisdiction on this ground. The City respectfully requests that the Court reverse
the trial court and render judgment on behalf of the City and dismiss Premas’
breach of contract claim on this ground.
Issue Two – Appellee has not asserted a claim for relief for which
immunity has been waived under Texas Local Government Code §
271.152; therefore, Appellee’s pleading affirmatively negates the trial
court’s jurisdiction over Appellants on this ground.
Statutory construction is a question of law, reviewed de novo. Tex. Dep't of
Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). In construing a statute,
courts attempt to determine and to give effect to the Legislature's intent. Id.
Courts look first to the plain and common meaning of the language of the statute,
and may not construe a provision of a statute so as to render another provision
absurd or meaningless. See TEX. GOV’T CODE ANN. § 311.011 (Vernon) (words
and phrases shall be read in context and construed according to rules of grammar
18
and common usage); see also Chevron Corp. v. Redmon, 745 S.W.2d 314, 316
(Tex. 1987) (“We will give effect to all the words of a statute and not treat any
statutory language as surplusage if possible.”); Mueller v. Beamalloy, Inc., 994
S.W.2d 855, 860 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (“In construing
statutes as a whole, we consider all provisions of an act and decline interpretations
that produce absurd results or render terms meaningless.”).
Premas asserts that its claim for breach of contract is authorized by Section
271.152 of the Texas Local Government Code (CR:26), which provides a limited
waiver of governmental immunity. TEX. LOC. GOV’T CODE ANN. §271.152
(Vernon) (immunity is waived for breach of contract claims, “subject to the terms
and conditions of this subchapter.”); TEX. LOC. GOV’T CODE ANN. §271.153(a)
(Vernon) (recoverable damages are limited). This waiver is for the limited purpose
of adjudicating a claim for breach of those contracts subject to that subchapter –
that is, properly executed contracts for “goods or services.” TEX. LOC. GOV’T
CODE ANN. §271.151(2)(A) (Vernon) (written contract stating the essential terms
of the agreement for providing goods or services to the local governmental entity
that is properly executed on behalf of the local governmental entity).
The City does not dispute that the Development Agreement (CR:34-52)
provides for the provision of “goods or services” as contemplated by the limited
19
waiver of sections 271.151 and 271.152, similar to the agreement at issue in City of
N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900, 908 (Tex.
App.—Fort Worth 2011, no pet.) (development agreement required developer to
construct, at developer’s cost, infrastructure improvements). Nor does the City
contend that either party failed to properly execute the contract or that it was
executed without authorization. CR:52.
Rather, because its pleadings seek relief and recovery of damages that the
Legislature has not authorized, Premas failed to invoke the court’s jurisdiction by
alleging facts that do not support a permissible claim for relief. See Clear Lake
City Water Auth. v. MCR Corp., 2010 Tex. App. LEXIS 2194, 30 (Tex. App.
Houston 1st Dist. Mar. 11, 2010) (plaintiff satisfies section 271.153(a)(1) by
alleging facts to support its claim that there is a balance due and owing under the
contract), citing City of Houston v. Southern Electrical Services, Inc., 273 S.W.3d
739, 744 (Tex. App.--Houston [1st Dist.] 2008, pet. denied) (“Section 271.153
does not retract the privilege granted in Section 271.152 to adjudicate the claim for
breach, if a plaintiff alleges facts to support such a claim and seeks recovery
only of damages to the extent allowed.”) (emphasis supplied).
Courts require clear immunity waivers because of the heavy presumption in
favor of immunity. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).
20
So heavy is this presumption that special rules of construction apply to statutes that
are asserted to be waivers of immunity. State v. Oakley, 227 S.W.3d 58, 62 (Tex.
2007) (quoting TEX. GOV'T CODE ANN. § 311.034 (West 2005 & Supp. 2009).
That is, no statute should be construed to waive immunity unless there is no doubt
that it was the Legislature’s intent to do so. Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692, 701 (Tex. 2003) (court requires Legislature to express intent to
waive immunity “beyond doubt.”). A statement is unambiguous if it is not subject
to more than one interpretation. Because waivers must be strictly construed,
immunity is waived only to the extent a claim falls clearly within the parameters
set forth by the Legislature. See id.
This principle applies with equal force to a party’s request for relief. Tooke
at 346 (plaintiff’s claim for damages on garbage collection contract was not within
limitations set forth in § 271.153 causing court to conclude immunity from suit had
not been waived). Specific performance and injunctive relief are clearly
unavailable as a remedies because the Development Agreement (CR:34-52) does
not fit within the limited waiver of immunity for specific performance and
injunction authorized by the Legislature. TEX. LOC. GOV’T CODE ANN. §271.153(c)
(Vernon) (“Actual damages, specific performance, or injunctive relief may be
granted in an adjudication brought against a local governmental entity for breach
21
of a contract described by Section 271.151(2)(B).”); TEX. LOC. GOV’T CODE ANN.
271.151(2)(b) (West) (“a written contract, including a right of first refusal,
regarding the sale or delivery of not less than 1,000 acre-feet of reclaimed water by
a local governmental entity intended for industrial use.”). The Legislature added
this additional remedy for the purchase of reclaimed water in 2013. Acts 2013,
83rd Leg., ch. 1138 (H.B. 3511), § 3, effective June 14, 2013. Certainly, had the
Legislature intended to make specific performance and injunctive relief available
for all contract claims subject to this subchapter, it could have easily made that
intent clear, but when it amended the Code, it specifically limited these remedies to
only one kind of contract. TEX. LOC. GOV’T CODE ANN. §271.153(c) (Vernon).
By contrast, when the Legislature intends to waive immunity and allow
equitable relief against a governmental entity, it has expressly said so in other
statutory immunity waivers. See, e.g., City of Round Rock v. Whiteaker, 241
S.W.3d 609, 629 (Tex. App.-Austin 2007, pet. denied) (“In such appeals, ‘[t]he
district court may grant the appropriate legal or equitable relief necessary to carry
out the purposes of this chapter,’ which ‘may include reinstatement or promotion
with back pay if an order of suspension, dismissal or demotion is set aside.’ Id. §
143.015(b).”) citing LOC. GOV’T CODE ANN. §143.015(b) (Vernon). Based on the
forgoing authority, there is only one reasonable conclusion - the Legislature has
22
spoken with unmistakable clarity and specific performance and injunctive relief are
not available remedies for general “goods and services” breach of contract claims
brought under Chapter 271.
Premas’ claim for breach of contract against the City under Chapter 271
should not be allowed to proceed because it is precluded from obtaining the relief
that it seeks under this limited immunity waiver. Forcing a governmental entity to
expend the time and resources litigating a claim where it is immune from the relief
a litigant seeks, regardless of whether the contract is one for “goods and services,”
undermines the public policy of immunity - “[s]ubjecting the government to
liability may hamper governmental functions by shifting tax resources away from
their intended purposes toward defending lawsuits and paying judgments.” IT–
Davy at 854. Therefore, the City is immune from claims for specific performance
of a contract and injunctive relief unless the Legislature waives that immunity, and
it has not done so for contracts like the Development Agreement (CR:34-52). Id.
at 855.
Cases like City of North Richland Hills v. Home Town Urban Partners, Ltd.
are distinguishable from the instant matter because in addition to a claim for
specific performance, for which the city claimed immunity, the developer had also
asserted a claim for permissible money damages, thereby invoking the trial court’s
23
jurisdiction. Home Town Urban Partners, Ltd. at 910. Likewise, City of Mesquite
v. PKG Contracting, Inc., 263 S.W.3d 444 (Tex. App.—Dallas 2008, pet. denied)
is also distinguishable for the same reasons. Although the city claimed that the
contractor’s pleadings failed to invoke the trial court’s jurisdiction because its
alleged damages were not authorized by Chapter 271, the Dallas Court of Appeals
disagreed. Id. at 448. It held that it could not determine on the record before it that
the contractor’s money damage claim was excluded under the statute. Id. It
contrasted its holding with that of Tooke, noting that the supreme court was able to
determine that the claimant had only asserted a claim for lost profits, which were
clearly excluded by Chapter 271. Id.
Premas asserts no claim for money damages owing under the Development
Agreement, but rather only a claim for specific performance and/or an injunction
compelling the City to perform (CR:26-28), the effect of which would be the same
as specific performance. This simplifies the analysis, allowing the Court to
conclude that Premas has failed to invoke the trial court’s jurisdiction under
Chapter 271. See id. Based on the foregoing, Premas failed to invoke the trial
court’s jurisdiction and the trial court committed reversible error when it denied
the City’s plea to the jurisdiction on this ground. CR:329. The City respectfully
requests that the Court reverse the trial court and render judgment on behalf of the
City on this ground, dismissing this claim against the City.
24
Issue Three – Appellee has not asserted a valid waiver of
governmental immunity based on Appellants’ conduct; therefore,
Appellee’s pleading affirmatively negates the trial court’s jurisdiction
over Appellants on this ground.
Although the waiver-by-conduct issue has largely been addressed in
Appellants’ first issue, which Appellants incorporate herein by reference, as if
copied verbatim, Premas separately asserts that Texas law recognizes that a city
can waive immunity to suit through “misleading conduct.” CR:28. In support of
this proposition, Premas cites Texas S. Univ. v. State St. Bank & Trust Co., 212
S.W.3d 893, 908 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) for the
proposition that the City waived its immunity by executing a contract that included
an immunity waiver provision. CR:23, 46-47.
Premas’ circular reasoning does not support a waiver in light of clear
precedent, which provides that contractual provisions purporting to waive
immunity are invalid. See City of Willow Park, Texas v. E.S., 424 S.W.3d at 709.
Indeed, this Court’s own precedent, cited by the Fort Worth Court of Appeals,
supports the proposition that the hypothetical “waiver-by-conduct” scenarios
envisioned by Justice Hecht’s concurring opinion in Federal Sign have never been
adopted by the Texas Supreme Court. See id., (citing Tex. Adjutant Gen.'s Office
v. Ngakoue, 408 S.W.3d 350, 353 (Tex.2013) (reiterating that it is the legislature's
“sole province” to waive or abrogate sovereign immunity); and Bacon v. Tex.
25
Historical Comm'n, 411 S.W.3d 161, 172 (Tex.App.-Austin 2013, no pet.)
(explaining that the contemporary rationale for governmental immunity is that the
legislature “is best suited to make the policy-laden judgments as to if and how ...
government resources should be expended”)). Indeed, every time the Texas
Supreme Court has been given the opportunity to give life to Federal Sign’s
hypothetical waiver-by-conduct scenarios, it has soundly rejected the proposition.
Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011)
(rejecting invitation to recognize a waiver-by-conduct exception in a breach-of-
contract suit against a governmental entity).
Recently, this Court discussed the waiver-by-conduct issue again and
explained that if it “has any current viability, it has lived on within the rubric not of
whether sovereign or governmental immunity has been waived, per se, but in the
threshold determination of whether immunity applies in the first place.” City of
New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.—Austin
2014, no pet.). Carowest stands for the principle that the kind of conduct that
implicates whether immunity applies in the first place is, for example, a claim for
affirmative relief by the governmental entity that causes it to leave its sphere of
immunity and consider whether a plaintiff’s offsetting claim for monetary relief is
germane to that affirmative request for relief. Id. at 523. Carowest is instructive
for its inapplicability to the facts alleged by Premas. Premas asserts no claims for
26
monetary relief and this appellate record contains no evidence that the City has
asserted an affirmative claim for relief in response. Thus, the City has not left its
“sphere of immunity” and waiver-by-conduct is not implicated. See id.
Moreover, if the inclusion of an immunity waiver provision in a contract
were sufficient to implicate the hypothetical “waiver-by-conduct” scenario
implicated by dictum in Federal Sign, then the supreme court’s refusal to address
this issue and overturn City of Willow Park, Texas v. E.S. is somewhat
inexplicable. Instead, the supreme court denied review on October 24, 2014. City
of Willow Park, Texas v. E.S., 424 S.W.3d 702. Based on the foregoing, Premas
failed to invoke the trial court’s jurisdiction and the trial court committed
reversible error when it denied the City’s plea to the jurisdiction on this ground.
CR:329. The City respectfully requests that the Court reverse the trial court and
render judgment on behalf of the City on this ground, dismissing this claim against
the City.
Issue Four – Appellee has not asserted a valid waiver of
governmental immunity based on a proprietary function; therefore,
Appellee’s pleading affirmatively negates the trial court’s jurisdiction
over Appellants on this ground.
Premas asserts that the City was engaging in a proprietary function by virtue
of entering into the Development Agreement; therefore, it is not entitled to assert
immunity, or so Premas contends. CR:28. This Court has addressed this issue and
27
concluded that the governmental-proprietary function dichotomy applies to
contracts and that Chapter 271 of the Local Government Code does not statutorily
abrogate that distinction. See City of Georgetown v. Lower Colorado River Auth.,
413 S.W.3d 803, 812-14 (Tex. App.—Austin 2013), reh'g overruled (Nov. 13,
2013), review dismissed (May 30, 2014). Since the dichotomy applies, the
question is whether the Development Agreement contemplates governmental or
proprietary functions.
This Court explained the differences between governmental and proprietary
functions - “a [city performs a] governmental function when it acts ‘as the agent
of the State in furtherance of general law for the interest of the public at large,’”
whereas a proprietary function is “‘performed by a city, in its discretion, primarily
for the benefit of those within the corporate limits of the municipality.’” Id.
(internal citations omitted). The Court also recognized the Legislature’s
constitutional authority to classify governmental and proprietary functions, noting
that the Texas Tort Claims Act provides a non-exclusive list of functions so
defined. Id. at 809.
More recently, this Court also applied the governmental-proprietary
distinction to a contract and had to determine whether the activities contemplated
by the contract were governmental or proprietary. Carowest at 519-20. In
concluding that they were governmental, this Court took note of various
28
governmental functions defined by the Tort Claims Act and concluded that the
contract fit within those activities. Id. Here, the Development Agreement not only
indicates that a significant portion of the applicable property is in the City’s
extraterritorial jurisdiction, but also that the purpose of the contract is to control the
development standards of the property, including “the uniform review and
approval of plats and development permits for the Project,” and that the authority
for entering into the agreement exists under Chapters 212 and 245 of the Local
Government Code (platting and vested rights, respectively). CR:34-35.
Among the governmental functions defined by the Tort Claims Act, the
Legislature has defined zoning, planning, and plat approval as a governmental
function. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (a) (29) (West).
Because the Legislature has deemed these activities governmental functions, and
because the Development Agreement was entered into for the purpose of
controlling development standards, including platting and permit review, it clearly
contemplates governmental functions only the City could perform. CR:34-35.
Moreover, because a significant portion of the property was in the City’s
extraterritorial jurisdiction, the Development Agreement could not be primarily for
the benefit of those within the corporate limits of the City. See City of Georgetown
v. Lower Colorado River Auth. at 812-14. Based on the foregoing, Premas failed
to invoke the trial court’s jurisdiction and the trial court committed reversible error
29
when it denied the City’s plea to the jurisdiction on this ground. CR:329. The
City respectfully requests that the Court reverse the trial court and render judgment
on behalf of the City on this ground, dismissing this claim against the City.
Issue Five – Appellee has not asserted a valid waiver of governmental
immunity based on the Uniform Declaratory Judgments Act because it
is incidental to and redundant of a breach of contract claim and a
claim brought pursuant to Chapter 245 of the Local Government Code
and it has; therefore, Appellee’s pleadings affirmatively negate the
trial court’s jurisdiction over Appellants on this ground.
When governmental immunity applies, governmental entities cannot be sued
without legislative consent, “and then only in the manner indicated by that
consent.” City of Georgetown v. Lower Colorado River Auth. at 808 (internal
citation omitted). Although a governmental entity necessarily waives immunity
from liability when it enters a contract, unless the governmental entity’s immunity
from suit has been waived for the breach of contract claim, the suit may not
proceed. Id. Premas asserts that the Uniform Declaratory Judgment Act
(“UDJA”) waives the City’s immunity for a declaration that the Development
Agreement is in effect. CR:20-21. The UDJA is also the statutory basis of
Premas’ claim for attorneys’ fees. CR:21. Premas’ reliance on the UDJA as a
waiver of the City’s immunity is misplaced.
The Uniform Declaratory Judgment Act (“UDJA”) provides a limited waiver
of a governmental entity’s immunity from suit. TEX. CIV. PRAC. & REM.CODE
30
ANN. § 37.006(b) (Vernon); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6
(Tex.2009). This waiver is limited to declarations construing an ordinance or a
statute. Heinrich, 284 S.W.3d at 373 n. 6. The UDJA does not, however, waive a
city’s immunity from suit by permitting a party to recast a breach of contract claim
as a declaratory judgment. Home Town Urban Partners, Ltd., 340 S.W.3d at 911
(“A party may not seek a declaratory judgment ‘only in an attempt to have the trial
court decide its breach-of-contract claim.’”) (internal citation omitted). Premas
seeks the following declarations (among others): that the Development Agreement
is valid and enforceable; that Premas has performed its obligations under the
Agreement and is not in breach; that the City is in breach of the Agreement; and an
order compelling the City to specifically perform its obligations under the
Development Agreement. CR:20-21.
Compare that to Premas’ breach of contract allegations where Premas
alleges: that the Development Agreement requires the City to accept development
applications; that Premas is not in breach of the Development Agreement; that the
City is in breach of the Agreement; and temporary and permanent injunctive relief
in the form of an order for the City to specifically perform its obligations under the
Development Agreement. CR:19-20.
There is “but one route to the courthouse” for a breach of contract claim
against a governmental entity in a breach of contract claim (IT-Davy at 860), and
31
that route is a clear and unambiguous waiver of immunity, “and then only in the
manner indicated by that consent.” City of Georgetown v. Lower Colorado River
Auth. at 808 (internal citation omitted). In its previous issues, Appellants have
shown that Premas has failed to assert a valid waiver of immunity for Premas’
berach of contract claim. Likewise, the UDJA also fails to waive the City’s
immunity under the facts pled in Premas’ original petition, and Premas cannot
recast its breach of contract claim as a declaratory judgment. See id. Because
Premas’ UDJA claim is asking for a declaration of rights not under a municipal
ordinance, but rather a contract, Premas failed to invoke the trial court’s
jurisdiction under the UDJA. See Multi-County Water Supply Corp. v. City of
Hamilton, 321 S.W.3d 905, 908 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (pleadings contain no request to construe a statute or ordinance; therefore,
jurisdiction under UDJA lacking).
Premas’ UDJA claim is also incidental to and redundant of its claim against
Cagle and Yantis in their official capacities brought under Chapter 245 of the
Local Government Code (CR:29) for injunctive relief, mandamus and/or a
declaration related to a “permit.” TEX. LOC. GOV'T CODE ANN. § 245.006 (a)
(West) (“This chapter may be enforced only through mandamus or declaratory or
injunctive relief.”). This Court has on multiple occasions concluded that where a
claim under the UDJA is redundant or duplicative of another claim that will
32
“resolve the exact issues at hand,” jurisdiction under the UDJA will not lie. See,
e.g., Texas Mun. Power Agency v. Pub. Util. Com'n, 260 S.W.3d 647, 650 (Tex.
App.—Austin 2008, no pet.); Texas State Bd. of Plumbing Examiners v. Associated
Plumbing-Heating-Cooling Contractors of Texas, Inc., 31 S.W.3d 750, 753 (Tex.
App.—Austin 2000, pet. abated) (when specific statutory scheme addresses
controversy, UDJA does not apply because such relief would be redundant). In an
unreported case, the San Antonio Court of Appeals, citing this Court’s decision in
Texas State Bd. of Plumbing Examiners v. Associated Plumbing-Heating-Cooling
Contractors of Texas, Inc., applied this principle to a Chapter 245 claim. See City
of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 WL
631484, at *1 (Tex. App.—San Antonio Feb. 19, 2014), review denied (May 1,
2015) (unreported case). Based on the foregoing, Premas failed to invoke the trial
court’s jurisdiction and the trial court committed reversible error when it denied
the City’s plea to the jurisdiction on this ground. CR:329. The City respectfully
requests that the Court reverse the trial court and render judgment on behalf of the
City on this ground, dismissing this claim against the City.
Issue Six – Appellee has asserted a claim for declaratory relief5 and a
writ of mandamus against Appellants the City, and Cagle and Yantis
5
This is distinct from Premas’ claim under the UDJA, which cannot proceed as discussed
in Appellants’ Issue Five. Premas has also asserted a waiver of immunity under Chapter
245 of the Local Government Code. CR:29. Construing Premas’ pleadings (very)
liberally, because § 245.006 provides that the only relief available under this waiver is for
injunctive relief, mandamus and a declaratory judgment, for purposes of this appeal, out
33
in their individual capacities, but such relief is only available against
officials in their official capacities for purely ministerial acts;
therefore, Appellee’s pleading affirmatively negates the trial court’s
jurisdiction over Appellants the City, and Cagle and Yantis in their
individual capacities, and all Appellants to the extent it asks them to
perform non-ministerial acts.
Premas has sued a governmental entity, and governmental officials in both
their official and individual capacities, and seeks declaratory relief against the City
and a writ of mandamus against all Appellants. CR:21-23. That is, Premas has
asserted that government officials have failed to perform what it contends is a
purely ministerial duty – review (and approval) of land-use applications that
Premas contends enjoy Local Government Code Chapter 245 vesting protections.
CR:30-31. At the same time that the trial court denied Appellants’ plea to the
jurisdiction (CR:329), the trial court also issued an order granting a writ of
mandamus, compelling Cagle and Yantis in their official capacities to accept and
review (but not approve) applications tendered by Premas on or about December
15, 2014. CR:330-31.
Appellants do not challenge the order granting a writ of mandamus as it
applies to Cagle and Yantis in their official capacities in this appeal because it did
of an abundance of caution, Appellants will assume, without conceding, that Premas has
asserted a claim for declaratory relief against the City under Chapter 245 because its
prayer does not limit the request for a declaration to one issued pursuant to the UDJA
(CR:30). TEX. LOC. GOV’T CODE ANN. § 245.006 (West). Therefore, Appellants will
address the jurisdictional defect this issue raises if Premas’ pleading is so construed.
CR:29-30.
34
not order them to engage in a non-ministerial act.6 CR:330-31. Premas’ pleadings,
however, go beyond that and still ask the trial court to order them to approve
applications submitted pursuant to the Development Agreement. CR:23. For the
purposes of this appeal, Appellants, the City and Cagle and Yantis in their
individual capacities, challenge the trial court’s denial of their plea to the
jurisdiction on the ground that it did not have jurisdiction over the City or Cagle
and Yantis in their individual capacities for Premas’ request a declaratory
judgment or a writ of mandamus, and for the approval of non-ministerial acts.
CR:21-23.
In Heinrich, the Texas Supreme Court clarified that in suits for a declaratory
judgment that a statute is not being followed (e.g. Chapter 245 protections),
governmental entities themselves, as opposed to officers in their official capacities,
remain immune from suit. Heinrich at 372. A suit against a government official in
his official capacity imposes liability on the governmental entity, but cannot be
brought against the entity itself. Id. Therefore, to the extent that Premas’ request
for declaratory relief is asserted under Chapter 245 of the Local Government Code
(CR:30), the City is not a proper party and the trial court committed reversible
error by denying its plea to the jurisdiction on this ground. Id. Likewise, to the
6
Because this is an interlocutory appeal under Civil Practice & Remedies Code § 51.014
(a) (8), all proceedings, including the trial court’s order granting the writ of mandamus
(CR:330-31), are stayed in the trial court pending resolution of this appeal. TEX. CIV.
PRAC. & REM. CODE ANN. §§ 51.014 (b), (c) (West).
35
extent that Premas’ request for declaratory relief is asserted under Chapter 245
against Cagle and Yantis in their individual capacities, they are not proper parties
either and the trial court committed reversible error by denying their plea to the
jurisdiction on this ground. Id. at 373 n.7, citing Alden v. Maine, 527 U.S. 706,
757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (Judgments against state officials in
their individual capacities will not bind the state).
Premas’ pleadings suffer from the same defects as it relates to its claim for a
writ of mandamus against these Appellants. CR:21-23. While Local Government
Code Chapter 245 clearly and unambiguously waives governmental immunity for
claims that a permit enjoys vested rights, Chapter 245 does not purport to change
the underlying requirements necessary to obtain mandamus relief. Mandamus may
lie to compel a government official to perform a clearly mandatory, ministerial
statutory duty without implicating governmental immunity. City of Round Rock v.
Whiteaker, 241 S.W.3d 609, 628 (Tex. App.—Austin 2007, pet. denied) (party
may bring suit to remedy statutory violation or prevent its occurrence; such suit is
not against State requiring legislative or statutory authorization); Janek v.
Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.—Austin 2014,
no pet.) (mandamus will issue to compel a public official to perform ministerial
act). Thus, Premas’ claim for mandamus against “all Defendants” is clearly
defective and the trial court was without jurisdiction over the City or Cagle and
36
Yantis in their individual capacities and should have granted their plea to the
jurisdiction on this ground. Janek at 101, citing Heinrich at 372.
Finally, to the extent that Premas’ pleadings ask the trial court to issue a writ
of mandamus to Cagle and Yantis in their official capacities to approve future
permit applications, such a request clearly goes beyond the permissible scope of
mandamus unless such approval is a purely ministerial act. Anderson v. City of
Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (writ of mandamus will not issue
to compel public official to perform act involving exercise of discretion). First,
assuming Premas’ allegation that it has not breached the Development Agreement
is true, as the Court must, Premas’ pleadings fail to allege facts showing that the
approval of a particular application involves the exercise of no discretion. Id.
Second, the Development Agreement provides that the project “may be approved
and constructed in one or more phases.” CR:37. It also provides that in the event
of Premas’ failure to obtain staff approval on an application, Premas can appeal
that decision to the City Council and that such disputes will be resolved by
amendments to the Development Agreement. CR:43. It also contemplates that the
Agreement shall serve as “guidance” for the review and approval of additional
approvals in the future. CR:43. Nothing in the Development Agreement permits
Premas to submit applications that do not comply with the applicable ordinances
and rules in effect at the time the Development Agreement was executed. CR:34-
37
52. Therefore, Premas’ pleading fails to invoke the trial court’s jurisdiction to the
extent it seeks a writ of mandamus for the approval of undefined “applications for
preliminary plats, final plats, and site development permits,” (CR:22) in the
absence of specific allegations that approval of a particular application involves no
discretion. Id.
For these reasons, Premas failed to invoke the trial court’s jurisdiction and
the trial court committed reversible error when it denied Appellants’ plea to the
jurisdiction on these grounds. CR:329. Appellants respectfully request that the
Court reverse the trial court and render judgment on behalf of Appellants on these
grounds, dismissing these claims against the Appellants.
Issue Seven – Appellee has not asserted a valid waiver of immunity for an
award of attorneys’ fees against Appellants because their claims are not
cognizable under the relevant statute, or the statute itself does not provide
for an award of attorneys’ fees; therefore, Appellants’ pleading affirmatively
negates the trial court’s jurisdiction to award attorneys’ fees to Appellees.
Premas’ claim for attorney’s fees under the UDJA should have been
dismissed by the trial court for lack of jurisdiction. While Chapter 245 of the
Local Government Code recognizes a developer’s vested right to develop under the
land use regulations then in effect at the time the first permit application was filed,
it provides that the chapter may only be enforced through “mandamus or
declaratory or injunctive relief.” TEX. LOC. GOV’T CODE ANN. § 245.006
(Vernon). It does not provide for an award of attorneys’ fees and because waivers
38
of immunity are strictly construed, such a waiver cannot be read into Chapter 245.
See, City of Houston v. Jackson, 192 S.W.3d 764, 773 (Tex. 2006). Premas’ claim,
if any, arises solely under Chapter 245, which waives governmental immunity
under a very narrow set of circumstances and expressly sets forth the available
relief, which does not include a waiver of immunity for attorney’s fees.
The San Antonio Court of Appeals, relying on opinions of the Texas
Supreme Court and the Austin Court of Appeals, recently concluded that when the
recovery of attorneys’ fees against a governmental entity is incidental to and
redundant of the relief provided by Chapter 245, a claim for attorneys’ fees under
the UDJA should be dismissed when it is used solely as a vehicle to recover fees.
See City of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014
WL 631484, at *6 (Tex. App.—San Antonio Feb. 19, 2014, pet. filed) (unreported
case), citing John G. and Marie Stella Kenedy Mem. Found. v. Dewhurst, 90
S.W.3d 268, 289 (Tex.2002), and Associated Plumbing–Heating–Cooling
Contractors of Tex., Inc., 31 S.W.3d at 753. This Court has reiterated that premise
more recently. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex.
App.—Austin 2011, no pet.). Moreover, because the UDJA only waives a city’s
immunity for the declaration of rights related to statutes and ordinances, Premas’
claim is for a declaration of rights as to a contract. CR:6-33. Therefore, the City’s
immunity for a claim for attorneys’ fees is not waived by the UDJA under the facts
39
pled by Premas. See City of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-
00623-CV, 2014 WL 631484, at *6.
Next, out of an abundance of caution, although Premas does not assert a
claim for attorneys’ fees under Chapter 271 in its pleadings (CR:6-33), it does
assert Chapter 271 as an applicable waiver of the City’s immunity for the
Development Agreement. Appellants adopt and incorporate the argument and
authority discussed in Issue Two as if copied verbatim herein, which showed why
Chapter 271 is not a valid waiver of immunity under the facts as pled by Premas.
If Premas’ pleadings, liberally construed, can be read to assert a claim for
attorneys’ fees under Chapter 271, the pleadings fail to vest the trial court with
jurisdiction because Premas has not asserted a viable claim for relief for which
immunity has been waived. Because Chapter 271 is not a valid waiver of the
City’s immunity, Premas cannot rely on it as a waiver of the City’s immunity on
attorneys’ fees.
PRAYER
Based on the foregoing, Appellants pray that the Court reverse the trial
court’s order denying Appellants plea to the jurisdiction and render judgment on
behalf of Appellants on the grounds set forth in this appeal.
40
Respectfully submitted,
Knight & Partners
223 W. Anderson, Ln., Suite A-105
Austin, Texas 78752
512-323-5778 Telephone
512-323-5773 Facsimile
/s/ Bradford E. Bullock
Bradford E. Bullock
State Bar No. 00793423
bradford@cityattorneytexas.com
CERTIFICATE OF COMPLIANCE
In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the
Appellant’s Brief contains 9,209 words, which does not include the caption,
identity of parties and counsel, statement regarding oral argument, table contents,
index of authorities, statement of issues presented, signature, proof of service,
certificate of compliance, and appendix.
/s/ Bradford E. Bullock
Bradford E. Bullock
41
CERTIFICATE OF SERVICE
I certify that a copy of Appellant’s Brief was served on Appellees through
counsel of record in accordance with the Texas Rules of Appellate Procedure as
indicated below on the 20th day of July 2015, addressed to:
Howry, Breen & Herman LLP via Email
1900 Pear Street
Austin, Texas 78705-5408
(512) 474-7300 Office
(512) 474-8557 Facsimile
Sean E. Breen
State Bar No. 0078715
sbreen@howrybreen.com
Randy R. Howry
State Bar No. 10121690
rhowry@howrybreen.com
James Hatchitt
State Bar No. 24072478
jhatchitt@howrybreen.com
/s/ Bradford E. Bullock
Bradford E. Bullock
42
No. 03-15-00377-CV
IN THE THIRD COURT OF APPEALS
at AUSTIN, TEXAS
__________________________________________________________________
CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF
LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND
PLANNING DIRECTOR FOR THE CITY OF LEANDER
Appellants
v.
PREMAS GLOBAL LEANDER I, LLC
Appellee
__________________________________________________________________
Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court,
Williamson County, Texas
__________________________________________________________________
APPELLANTS’ APPENDIX
__________________________________________________________________
43
APPENDIX TABLE OF CONTENTS
ORDER DENYING DEFENDANTS’ PLEA TO THE
JURISDICTION…………………………………………........... ........................... 45
44