Schriver v. Texas Department of Transportation

TERRIE LIVINGSTON, Justice,

concurring.

I concur with the majority’s conclusion that as a matter of law, the parties to this *852case did not enter any contract, and the precedents of the supreme court and our court related to agreements settling immunity-waived claims do not therefore apply. See Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 522-23 (Tex.2002); City of Carrollton v. Singer, 232 S.W.3d 790, 799-800 (Tex.App.-Fort Worth 2007, pet. denied).1 However, I write separately to expand upon some of the statements made by the majority in reaching its decision and to opine that if the parties in this case had entered into a valid contract, TxDOT’s immunity would be waived under Singer.

The majority states that immunity from suit is not waived solely by a government entity’s entering into a contract with a private citizen. Majority op. at 849. While that legal principle may be true in some circumstances, it is not true in others. The majority acknowledges that immunity can be waived by entering a contract where the government is not immune from the claim that the contract settles. See Lawson, 87 S.W.3d at 522-23; Singer, 232 S.W.3d at 799-800. Furthermore, a condition precedent to eminent domain proceedings — governmental attempts to settle — was occurring at the time of the completed settlement (in Singer) and at the time the parties were exchanging conflicting settlement proposals (in this case).2 See Singer, 232 S.W.3d at 797 (describing that “a genuine effort to purchase the land by agreement between the parties, and the failure to do so, is a condition precedent to instituting eminent domain proceedings”); see also Tex. Prop.Code Ann. § 21.012(b)(4) (Vernon Supp. 2008) (dictating that a condemnation petition may be filed only after the government’s failure to reach an agreement with a landowner). Thus, I reiterate that had the parties to this suit completed their statutorily required settlement negotiations and properly formed a contract, thus avoiding TxDOT’s liability in an eminent domain proceeding for which immunity is waived, TxDOT would have no immunity for a breach of that contract, just as the City of Carrollton had no immunity for a suit claiming a breach of its agreement in Singer.

Having expressed these concerns about the majority’s opinion, I respectfully concur but otherwise join in its opinion and judgment.

. Citing Lawson, the Trust has argued that we cannot consider the validity of the parties' contract in making our decision in this case. In Lawson, the supreme court stated that it would not consider whether a settlement agreement was void because of the posture of that case, in which no evidence or argument on the validity of the agreement had been offered in the trial court. Lawson, 87 S.W.3d at 523. Here, the parties provided evidence in the trial court of their written communications with each other, and they argued about the completion of their contract negotiations. Also, there is an obvious difference between consideration in an interlocutory appeal of whether an undisputedly completed agreement is void for reasons unrelated to the agreement’s formation, as was the issue in Lawson, and whether there is even an agreement to begin with that could be subject to Lawson's analysis, as is the case here. See id.

. Here, Halff Associates, TxDOT's agent in the condemnation process, sent the Trust a letter stating that its property was “required for the construction” of State Highway 121. Halff Associates described its letter as a "stage of the purchase process” and then referenced eminent domain proceedings. In a later letter, Halff Associates recognized that it was attempting to acquire a right-of-way "under the threat of condemnation."