City of Corinth v. NUROCK DEVELOPMENT, INC.

TERRIE LIVINGSTON, Justice,

concurring.

I concur in the result reached by the majority, but I write separately to clarify and express disagreement with some of the statements contained in the majority opinion and to emphasize that the majority’s holding does not affect the precedent established by a previous opinion from our court, City of Carrollton v. Singer. 232 S.W.3d 790, 800 (Tex.App.-Fort Worth 2007, pet. denied) (following Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 522-23 (Tex.2002) (holding that when a governmental entity is exposed to suit because of a waiver of immunity, it cannot settle that suit and subsequently deny waiver of immunity for enforcement thereof)).

Chapter 271 of the local government code

The majority opinion acknowledges that governmental entities like Corinth waive immunity from liability when they enter into contracts with private citizens. Majority op. at 365. And discussing a city’s immunity from suit, the majority observes that governmental entities do not automatically waive immunity from suit simply by entering into contracts. Id.; see Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003).

However, under chapter 271 of the local government code, when a party provides goods or services to a local government, the local government waives immunity from suit as well for the purpose of adjudicating a claim for breach of the contract if the contract is properly authorized and executed. See Tex. Loc. Gov’t Code Ann. §§ 271.151-.152 (Vernon 2005);1 Singer, 232 S.W.3d at 795 n. 4. The majority failed to note this statutory exception in its broad statement regarding lack of immunity from suit in breach of contract claims. While NuRock did not explicitly rely on chapter 271 as a basis for its argument about Corinth’s waived immunity, several courts, including our supreme court, are remanding cases where chapter 271 likely applies.

For example, the Dallas Court of Appeals remanded two different cities’ firefighters’ cases against Grand Prairie and Dallas, respectively, to allow the trial court an opportunity to determine whether sections 271.151-.160 might apply. See Bell v. City of Grand Prairie, 221 S.W.3d 317, 323 n. 4 (Tex.App.-Dallas 2007, no pet.) (op. on reh’g); City of Dallas v. Albert, 214 S.W.3d 631, 636-37 (Tex.App.-Dallas 2006, pet. granted) (op. on reh’g); see also City of Houston v. Clear Channel Outdoor, Inc., 197 S.W.3d 386, 386-87 (Tex.2006) (holding that remand is proper to give the *372proponent of waiver of immunity an opportunity to argue that chapter 271 applies because it applies retroactively); McMahon Contracting, L.P. v. City of Carrollton, 197 S.W.3d 387 (Tex.2006) (same).

I recognize that the cited cases were in the appellate process when the revisions to chapter 271 took place, as opposed to this case, which was not even filed until after its effective date. However, we should not ignore the posture of this case when filed: Corinth was the original plaintiff for the very breach of contract action — breach of the Settlement Agreement — it now seeks to avoid. Corinth first filed suit in April 2006. At the time NuRock filed its answer, Corinth had not challenged jurisdiction. And by the time Corinth first asserted its plea to the jurisdiction, in June 2007, all pleadings were on file and discovery was complete.

Furthermore, the issue regarding the applicability of chapter 271 was before the trial court regardless. Corinth raised its applicability in its plea to the jurisdiction, in its seconded amended answer, and in its alternative motion for summary judgment. In fact, Corinth alternatively asserted that section 271.153(b) could apply, which could serve to protect Corinth from some of the damages it claimed would be excluded by the chapter itself. See Tex. Local Gov’t Code Ann. § 271.153(b) (Vernon 2005) (excluding consequential and exemplary damages from recovery under chapter 271). On this record, we can not tell whether the trial court applied this statute when it denied Corinth’s plea to the jurisdiction.

The majority opinion only concedes lack of immunity on one theoiy: that the underlying suit was based upon breaches of the Federal Fair Housing Act wherein a state’s immunity from suit is maintained but a city’s immunity from suit is not. Majority op. at 367. In affirming the trial court’s judgment denying Corinth’s plea to the jurisdiction, I would also instruct the trial court to determine the applicability of this statute on waiver of immunity from suit. See Tex. Loc. Gov’t Code Ann. §§ 271.151-.160.

The effect of the dismissal of Corinth’s affirmative claims

NuRock also cited Reata Construction Corporation v. City of Dallas (“Reata II”) to argue that Corinth waived its immunity against NuRock’s claim for a breach of the settlement agreement by asserting its own monetary claim for a breach of that agreement. 197 S.W.3d 371, 376-77 (Tex.2006). Corinth responded by stating that it has withdrawn all of its claims for affirmative relief and that the reasoning of Reata II, which allows private parties to assert otherwise immunity-barred claims as offsets against a governmental entity’s recovery, cannot therefore apply. Id. at 377. Although the majority did not discuss the effect of Reata II, I disagree with the notion that a governmental entity may totally regain immunity that it has lost through filing affirmative claims by simply dismissing or nonsuiting those claims much later in the litigation; such a process would allow the entity to participate in litigation without any risk of loss and flies in the face of the supreme court’s procedural rules and related case law. See Tex.R. Civ. P. 162 (stating a dismissal shall not prejudice the right of an adverse party regarding a pending claim for relief or the right of the trial court to tax costs); Reynolds v. Murphy, 266 S.W.3d 141, 145 (Tex.App.-Fort Worth 2008, pet. denied); see also Joachim, v. Travelers Ins. Co., 279 S.W.3d 812, 815 (Tex.App.-Amarillo 2008, pet. filed). But see City of Dallas v. Albert, 214 S.W.3d 631, 636 (Tex.App.-Dallas 2006, pet. granted (op. on reh’g) (holding that “the City’s now withdrawn counterclaims cannot form the basis of the trial *373court’s jurisdiction”); cf. City of Dallas v. Saucedo-Falls, 172 S.W.3d 703, 708 (Tex.App.-Dallas 2005), rev’d, 218 S.W.3d 79 (Tex.2007).

For these reasons, I agree with the majority’s disposition of Corinth’s first and second issues by overruling them, but I disagree with the limited basis upon which that disposition was reached.

The continuing validity of our Singer opinion

As the majority notes, a governmental entity may waive immunity from suit by entering and breaching an agreement that settles a claim for which the entity did not have immunity. Lawson, 87 S.W.3d at 518, 522-23; see majority op. at 365. For instance, when a governmental entity enters into a contract under the threat of and in lieu of condemnation proceedings, for which the entity does not have immunity, the entity does not have immunity for a breach of that contract. Singer, 232 S.W.3d at 798-800. I agree with the majority’s expression in its resolution of Corinth’s third issue that a governmental entity’s act under colorable contract rights alone cannot be a taking and that immunity applies in such a situation, but I note that the inverse circumstance — where the entity enters a contract with a threat of a colorable taking — does not maintain immunity for a breach of a contract that resolves the threat. See majority op. at 367; State v. Holland, 221 S.W.3d 639, 644 (Tex.2007); Singer, 232 S.W.3d at 800.

The ripeness of NuRock’s claim for in-junctive relief

Finally, I cannot agree with the majority that NuRock’s claim for injunctive relief is not ripe for adjudication. See majority op. at 369-70. The majority holds that the “possibility of future arbitrary and capricious conduct concerning the Apartments is too remote to support a claim for a permanent injunction.” Id. at 369. But the prevention of imminent, nonspeculative future conduct is indeed a valid purpose of an injunction, and ripeness only requires a showing that an injury is likely to occur. See Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex.1998); Democracy Coal. v. City of Austin, 141 S.W.3d 282, 296 (Tex.App.-Austin 2004, no pet.).

Preceding NuRock’s request in its pleading that Corinth and its representatives be enjoined from arbitrarily and capriciously applying Corinth’s ordinances and variances, NuRock alleged that its construction and leasing of its apartments had already been delayed because, in summary, (1) Corinth arbitrarily canceled and refused to perform inspections, (2) Corinth refused to issue permits and certificates of occupancy for reasons not contemplated by and in contravention to the parties’ agreement settling their federal case, and (3) Corinth refused to meet with NuRock’s representatives about issues related to Nu-Rock’s construction. And contrary to a statement in Corinth’s reply brief, NuRock did plead “immediate and irreparable injury” based on Corinth’s allegedly wrongful continued interference in NuRock’s development project.

I believe that NuRock’s pleading, when construed liberally as required by our standard of review, provided the trial court with a sufficient basis to determine that an injury was likely to occur by similar future conduct by Corinth, and I would hold that whether the allegations comprise the type of harm that would entitle NuRock to in-junctive relief concerns the merits of Nu-Rock’s claim, not the ripeness of the claim. See Hays County v. Hays County Water-Planning P’ship, 69 S.W.3d 253, 260 (Tex.App.-Austin 2002, no pet.); cf. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 394 (Tex.App.-Fort Worth 2008, no pet.) (concluding that a claim for *374an injunction against an eminent domain action was not ripe because the City of Fort Worth expressly stated that it would not exercise its eminent domain authority); Coble v. City of Mansfield, 134 S.W.3d 449, 458 (Tex.App.-Fort Worth 2004, no pet.) (holding that a regulatory taking claim was not ripe because the City of Mansfield had not acted to apply its ordinance at issue to specific property). However, because I believe that the majority’s decision to dismiss appellees’ injunctive relief claim against Corinth is supported by an independent ground argued by Corinth in its brief (related to the proper governmental defendant for injunctive relief when the injunction does not involve constitutional violations), I concur with the majority’s disposition overruling that claim. See City of Elsa v. M.A.L., 226 S.W.3d 390, 391-92 (Tex.2007); City of Alton v. Sharyland Water Supply Corp., 277 S.W.3d 132, 156 (Tex.App.-Corpus Christi 2009, pet. filed) (op. on reh’g); Meroney v. City of Colleyville, 200 S.W.3d 707, 711 (Tex.App.-Fort Worth 2006, pet. granted, judgm’t vacated w.r.m.).

For the reasons stated, I concur only with the majority’s judgment and its disposition of this appeal.

. The waiver of immunity for a claim under chapter 271 applies retroactively to contracts executed before the effective date of the statute, September 1, 2005, if sovereign immunity had not been waived with respect to the claim before that date. See Tex. Loc. Gov't Code Ann. §§ 271.152-.154 historical note (Vernon 2005) [Act of May 23, 2005, 79th Leg., R.S., ch. 604, § 2, 2005 Tex. Gen. Laws 1548, 1549]; Tooke v. City of Mexia, 197 S.W.3d 325, 344-45 (Tex.2006); Boyer, Inc. v. Trinity River Auth. of Tex., 279 S.W.3d 354, 358 (Tex. App.-Fort Worth 2008, pet. filed).