AFFIRM; and Opinion Filed March 5, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01447-CV
PRIMESTAR CONSTRUCTION, INC., Appellant V. CITY OF DALLAS, TEXAS, Appellee
On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-05460
MEMORANDUM OPINION Before Justices Myers, Osborne, and Nowell Opinion by Justice Osborne The trial court granted appellee City of Dallas’s plea to the jurisdiction in this suit for
breach of contract. Appellant Primestar Construction, Inc. appeals, contending that the trial court
erred because the City waived its governmental immunity by entering into the contract. Primestar
also contends that the trial court erred by failing to enter findings of fact and conclusions of law,
and by granting the City’s motion to dismiss and pleas of res judicata and collateral estoppel.
Because the City met its burden to support its contention that the trial court lacked subject-matter
jurisdiction, we affirm the trial court’s order dismissing the case.
BACKGROUND
In 2011, the City awarded Primestar a contract to renovate and expand a recreational center.
The contract provided that the work would be completed in 200 days for the total sum of $1,383,740.00. Travelers Casualty and Surety Company of America issued performance and
payment bonds for the project after entering into an indemnity agreement with Primestar. Under
the terms of the indemnity agreement, Primestar agreed to indemnify Travelers against losses
relating to Primestar’s contract with the City and gave Travelers “sole discretion” to pay or settle
claims on the bonds.
The City terminated the contract with Primestar for cause in 2013 and demanded that
Travelers complete the project. Travelers completed the project and the City paid Travelers the
remaining amounts due under the contract with Primestar. Travelers subsequently brought suit
against Primestar in federal district court seeking to recover its losses under the bonds and obtained
judgment against Primestar for $999,846. Primestar then filed this suit alleging that the City
wrongfully terminated the contract.
The City filed a plea to the jurisdiction, relying on two grounds: (1) Primestar’s lack of
standing, and (2) the City’s immunity from suit and liability. Primestar responded that the City had
waived its immunity by entering into the contract, citing section 271.152 of the local government
code. The City also filed a plea of res judicata and collateral estoppel and a motion to dismiss for
failure to file a certificate of merit. The trial court granted the plea to the jurisdiction, the pleas of
res judicata and collateral estoppel, and the motion to dismiss in an order dated October 31, 2017.
On December 15, 2017, the trial court denied Primestar’s motions to modify the judgment and for
new trial and its request for findings of fact and conclusions of law. This appeal followed.
ISSUES
Primestar raises five issues on appeal. The first four issues challenge the trial court’s ruling
on the plea to the jurisdiction. Primestar contends the trial court erred in granting the plea because
(1) the City’s immunity has been waived by statute, (2) the doctrines of res judicata and collateral
estoppel do not apply to preclude its claims against the City, (3) Primestar had standing to pursue
–2– its cause of action for breach of contract, and (4) Primestar was not required to file a certificate of
merit to pursue its claims against the City. In its fifth issue, Primestar contends the trial court erred
by not entering findings of fact and conclusions of law on Primestar’s proper request.
STANDARDS OF REVIEW
In its plea to the jurisdiction, the City (1) challenged Primestar’s standing to sue and
(2) asserted that it is immune from suit. Both standing to sue and governmental immunity are issues
of the trial court’s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443 (Tex. 1993) (standing is a component of subject-matter jurisdiction); Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004) (governmental immunity
from suit implicates trial court’s subject matter jurisdiction). Subject-matter jurisdiction is never
presumed and cannot be waived. Tex. Ass’n of Bus., 852 S.W.2d at 443–44. Whether a court has
subject-matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226.
We review the trial court’s ruling on a plea to the jurisdiction under a de novo standard of
review. Town of Fairview v. Lawler, 252 S.W.3d 853, 856 (Tex. App.—Dallas 2008, no pet.).
When a plea to the jurisdiction challenges the pleadings, we look to whether the plaintiff has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Miranda, 133
S.W.3d at 226. We liberally construe the plaintiff’s pleadings in favor of jurisdiction, and we look
to the plaintiff’s intent. Id.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues
raised. Id. at 227. This standard mirrors the summary judgment standard under rule 166a(c), Texas
Rules of Civil Procedure, and places the burden on the plaintiff to allege facts that affirmatively
demonstrate the trial court’s jurisdiction. City of Dallas v. Hughes, 344 S.W.3d 549, 553 (Tex.
App.—Dallas 2011, no pet.) (citing Miranda, 133 S.W.3d at 227–28). Once the plaintiff has done
–3– so, the City must meet the summary judgment standard of proof to support its contention that the
trial court lacks subject-matter jurisdiction. Id. The plaintiff must then show that a disputed fact
issue exists. Id. If the relevant evidence fails to raise a fact question or is undisputed on the
jurisdictional issue, we determine the plea as a matter of law. Id. (citing Miranda, 133 S.W.3d at
228).
DISCUSSION
1. Standing and statutory waiver of immunity
The City offered undisputed evidence that Primestar assigned all of its “rights, title, and
interests” 1 in the contract to Travelers, including “any and all sums due or which may hereafter
become due under any . . . contract, and all damage claims and proceeds related thereto.” In
accordance with the indemnity agreement between Travelers and Primestar, Travelers completed
the project and was paid the contract balance by the City. Citing the provisions of the indemnity
agreement, the City argued in its plea to the jurisdiction that Primestar lacked standing because it
had assigned all of its rights regarding the contract, including any cause of action for breach of
contract, to Travelers.
“The general test for standing in Texas requires that there ‘(a) shall be a real controversy
between the parties, which (b) will be actually determined by the judicial declaration sought.’”
Tex. Ass’n of Bus., 852 S.W.2d at 446 (quoting Bd. of Water Eng’rs v. City of San Antonio, 283
1 Paragraph 6 of the “General Agreement of Indemnity” between Primestar and Travelers provides in part, Remedies. In the event of a Default, Indemnitors [Primestar] assign, convey, and transfer to Company [Travelers] all of their rights, title and interests in Property, and Company shall have a right in its sole discretion to: (a) take possession of the work under any Contract and to complete said Contract, or cause, or consent to, the completion thereof; (b) immediately take possession of Indemnitors’ Property, and utilize the Property for the completion of the work under the Contracts without payment for such use; (c) assert or prosecute any right or claim in the name of any Indemnitor and to settle any such right or claim as Company sees fit . . . . Further, in the event of Default and upon demand Indemnitors shall direct that all payments, monies, and properties that are due or may become due on any Contract or contract be made payable to, and/or sent directly to, Company . . . .
“Property” is defined in the agreement as Primestar’s “rights, title, and interest . . . in: (a) any Contract or contract. . . ; [and] (b) any and all sums due or which may hereafter become due under any Contract or contract, and all damage claims and proceeds related thereto . . . .”
–4– S.W.2d 722, 724 (Tex. 1955)). As a general rule, “to have standing, unless it is conferred by statute,
a plaintiff must demonstrate that he or she possesses an interest in a conflict distinct from that of
the general public, such that the defendant’s actions have caused the plaintiff some particular
injury.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001).
The City argues that Primestar, as a terminated contractor, has no standing to assert any
claim against the City. See Harlandale Indep. Sch. Dist. v. C2M Constr., Inc., No.
04-07-00304-CV, 2007 WL 2253510, at *1 (Tex. App.—San Antonio Aug. 8, 2007, no pet.)
(mem. op.). In Harlandale, the parties entered into a contract for the construction of an elementary
school. Id. The contract required C2M, the contractor, to obtain a performance bond. Id. To obtain
the bond, C2M was required to enter into an indemnity agreement with an insurance company and
its affiliates as sureties. Id. The school district (“HISD”) terminated C2M, and the sureties
undertook the completion of the project in accordance with the bond. Id. C2M subsequently filed
suit against HISD for breach of contract. Id. HISD filed a plea to the jurisdiction on the ground
that C2M lacked standing because it had assigned its claim against HISD to the sureties. Id. The
trial court denied HISD’s plea to the jurisdiction, but the court of appeals reversed, explaining that
“because C2M’s claims against HISD were assigned to the Sureties under the unambiguous terms
of the indemnity agreement, C2M lacks standing in the underlying lawsuit.” Id. at *2. Concluding
that the trial court should have granted HISD’s plea to the jurisdiction, the court of appeals
dismissed C2M’s claims against HISD. Id. at *3.
As in Harlandale, Primestar assigned its “rights, title and interest” in its contract with the
City to Travelers. See id. at *2 & n.2 (C2M assigned “[a]ll the rights of the Contractor in, and
growing in any manner out of, all contracts referred to in the Bonds”). Consequently, we conclude
that Primestar lacked standing to sue the City. See id. at *2.
–5– Primestar responds that it reserved its rights against the City, citing (1) a July 31, 2013,
letter from Travelers to the City regarding its investigation of the project, and (2) a paragraph from
an agreement between Travelers and the City quoted in a September 29, 2017 email.2 Primestar
did not rely on either of these items in its response to the City’s plea to the jurisdiction. After the
trial court heard the City’s plea, Primestar filed a “supplemental response” attaching the second
item without any argument that it was newly-discovered or otherwise admissible. The trial court
subsequently signed the order denying the City’s plea, and Primestar filed a motion for new trial,
to which it attached the July 13, 2013 letter. At the hearing on the motion for new trial, the City
objected to the proffer of the letter as untimely. The record does not reflect that Primestar made
any proffer of the email. Neither item was admitted into evidence. See, e.g., Mitchell v. Bank of
America, N.A., 156 S.W.3d 622, 629 (Tex. App.—Dallas 2004, pet. denied) (showing required by
party seeking new trial on the ground of newly-discovered evidence).
Citing the documents, Primestar argues on appeal that the City had “actual notice” of
Primestar’s reservation of rights “and breached its affirmative duty to so inform the trial court.”
But the City’s plea to the jurisdiction was based on Primestar’s transfer of all of its rights under
the contract to Travelers. Primestar did not reserve any rights in its indemnity agreement with
Travelers. Even if the letter and email had been admitted into evidence and considered by the trial
court, they did not raise a fact issue on Primestar’s standing to sue to enforce contractual rights
that Primestar had transferred to Travelers.
Primestar also argues that it has standing because the City’s immunity is waived by statute.
Governmental immunity protects political subdivisions of the State, including cities, from suit and
liability. Hughes, 344 S.W.3d at 553. Immunity from suit deprives a court of subject matter
jurisdiction. Id. Under the Local Government Contract Claims Act, however, when a local
2 We note that in the only copy of the email in the record, portions of the text of the paragraph are missing or incomplete.
–6– government entity such as the City enters into “a contract subject to this subchapter,” it “waives
sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract,
subject to the terms and conditions of this subchapter.” TEX. LOC. GOV’T CODE ANN. § 271.152;
see generally id. §§ 271.151–.160 (“Adjudication of Claims Arising Under Written Contracts with
Local Government Entities”) (the “Act”); see also Zachry Constr. Corp. v. Port of Houston Auth.
of Harris Cnty., 449 S.W.3d 98, 106–08 (Tex. 2014) (quoting and discussing Act’s terms).
Under section 271.152 of the Act, the waiver of immunity is “subject to the terms and
conditions of this subchapter.” TEX. LOC. GOV’T CODE § 271.152; Zachry, 449 S.W.3d at 108. The
“terms and conditions” are found in the Act’s other nine sections, see Zachry, 449 S.W.3d at 106,
including section 271.153, “Limitations on Adjudication Awards,” providing in part:
(a) . . . [T]he total amount of money awarded in an adjudication brought against a local governmental entity for breach of a contract subject to this subchapter is limited to the following:
(1) the balance due and owed by the local governmental entity under the contract as it may have been amended, including any amount owed as compensation for the increased cost to perform the work as a direct result of owner-caused delays or acceleration;
(2) the amount owed for change orders or additional work the contractor is directed to perform by a local governmental entity in connection with the contract;
(3) reasonable and necessary attorney’s fees that are equitable and just; and
(4) interest as allowed by law, including interest as calculated under Chapter 2251, Government Code.
(b) Damages awarded in an adjudication brought against a local governmental entity arising under a contract subject to this subchapter may not include:
(1) consequential damages, except as expressly allowed under Subsection (a)(1);
(2) exemplary damages; or
(3) damages for unabsorbed home office overhead.
–7– TEX. LOC. GOV’T CODE ANN. § 271.153(a), (b). In Zachry, the court explained that immunity is
not waived when a plaintiff seeks “only damages not recoverable under section 271.153.” Zachry,
449 S.W.3d at 109.
The court in Zachry explained that the purpose of section 271.153 “‘is to limit the amount
due by a governmental agency on a contract once liability has been established, not to foreclose
the determination of whether liability exists.’” Id. at 109 (quoting Kirby Lake Dev., Ltd. v. Clear
Lake City Water Auth., 320 S.W.3d 829, 840 (Tex. 2010)). Consequently, the waiver does not
depend on “ultimate liability.” Id. at 109. But the waiver “does require a showing of a substantial
claim that meets the Act’s conditions.” Id. The court explained, “[b]y ‘substantial’ claim we mean
. . . that the claimant must plead facts with some evidentiary support that constitute a claim for
which immunity is waived, not that the claimant will prevail.” Id. at 110.
Here, Primestar did not “plead facts with some evidentiary support” to “constitute a claim
for which immunity is waived.” See id. As we have discussed, Primestar did not raise a fact issue
that it had reserved rights in its indemnity agreement with Travelers, nor did Primestar challenge
the City’s proof that the City paid to Travelers all remaining sums due under the contract. In
support of its plea to the jurisdiction, the City attached Primestar’s responses to discovery requests
seeking more specific information about the damages claimed by Primestar. In its responses,
Primestar did not specify the amount and method of calculating the damages it claimed other than
to refer to the allegation in its petition that it sought “monetary relief of more than $1,000,000”
and to state that “[t]he contract signed by the parties details the method of calculating damages.”
We conclude that Primestar did not raise a fact issue that it had standing to assert a claim for which
the City’s immunity was waived under section 271.153. See Harlandale, 2007 WL 2253510, at
*2, 3.
–8– Because Primestar lacked standing and did not plead a claim for which the City’s immunity
was waived, the trial court did not err by dismissing Primestar’s suit for lack of jurisdiction. We
decide Primestar’s first and third issues against it.3
3. Findings and Conclusions
In its fifth issue, Primestar contends the trial court erred by not entering findings of fact
and conclusions of law when Primestar properly requested them. Primestar argues that because the
trial court “considered evidence and testimony when ruling on the Plea to the Jurisdiction,”
findings of fact “are both necessary and helpful for meaningful appellate review.” Primestar
concludes that the trial court abused its discretion by failing to enter findings and conclusions.
Under rule of civil procedure 296, in any case tried in district court without a jury, a party
may request the court to state in writing its findings of fact and conclusions of law. TEX. R. CIV. P.
296. “The purpose of Rule 296 is to give a party a right to findings of fact and conclusions of law
finally adjudicated after a conventional trial on the merits before the court.” IKB Indus. (Nigeria)
Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). A “trial” is a hearing in which the court
hears and receives evidence. F-Star Socorro, L.P. v. El Paso Cent. Appraisal Dist., 324 S.W.3d
172, 175 (Tex. App.—El Paso 2010, no pet.). In other cases, “findings and conclusions are proper,
but a party is not entitled to them.” IKB Indus., 938 S.W.2d at 442. Although findings of fact and
conclusions of law can be entered after a ruling on a jurisdictional plea if there has been an
evidentiary hearing, a party cannot compel their preparation. Goldberg v. Comm’n for Lawyer
Discipline, 265 S.W.3d 568, 578 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
Primestar argues that it has been harmed by the trial court’s failure to enter findings and
conclusions because it “has to guess the reasons for the trial court’s decision and has been
3 We have concluded the trial court properly dismissed the case for lack of jurisdiction because Primestar lacked standing. Having reached this conclusion, we need not address Primestar’s second and fourth issues regarding the applicability of res judicata and collateral estoppel principles and the necessity of a certificate of merit. See TEX. R. APP. P. 47.1 (opinion need only address issues “necessary to final disposition of the appeal”); Shih v. Tamisiea, 306 S.W.3d 939, 945 n.8 (Tex. App.—Dallas 2010, no pet.).
–9– prevented from properly presenting its case to this Court concerning the appeal.” See Larry F.
Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied)
(general rule is that appellant has been harmed by trial court’s failure to make findings and
conclusions after proper request “if, under the circumstances of the case, he has to guess at the
reason the trial court ruled against him”). A trial court’s refusal to make findings and conclusions
upon proper request is presumed reversible error unless the record affirmatively shows that the
requesting party suffered no harm. R.H. v. Smith, 339 S.W.3d 756, 766 (Tex. App.—Dallas 2011,
no pet.). As we explained in Larry F. Smith, Inc.,
The purpose of requesting the trial court to make written findings of fact and conclusions of law is to “narrow the bases of the judgment to only a portion of [the multiple] claims and defenses, thereby reducing the number of contentions that the appellant must raise on appeal.” 6 McDonald & Carlson, TEXAS CIVIL PRACTICE 2d § 18:3 (1998). Absent a narrowing of the bases for the trial court’s judgment, an appellant is forced to broaden his appeal to attack all possible findings the trial court conceivably could have made.
Larry F. Smith, Inc., 110 S.W.3d at 614. But Primestar “has not pointed out, and we do not see,
how the trial court’s failure to make findings and conclusions caused [Primestar] to guess at the
basis for the court’s ruling or prevented [it] from properly presenting [its] case to this Court.” R.H.,
339 S.W.3d at 766.
In a de novo review of a plea to the jurisdiction, an appellate court “must exercise its own
judgment to determine each issue, and so cannot consider findings and conclusions even if they
are included in the record.” F-Star Socorro, L.P., 324 S.W.3d at 175. “[R]egardless of the trial
court’s subjective basis for its decision, a party challenging a ruling on a plea [to the jurisdiction]
must address all independent grounds, and demonstrate that none support the court’s decision.” Id.
Here, as we have discussed, Primestar’s lack of standing was an independent ground supporting
the trial court’s decision. In our de novo review, we have considered Primestar’s arguments and
the record relevant to this issue and concluded that no fact issue exists as to the trial court’s
–10– jurisdiction. Accordingly, we conclude the appellate record affirmatively shows that Primestar did
not suffer any injury by reason of the trial court’s failure to make findings and conclusions. See
R.H., 339 S.W.3d at 766. We decide Primestar’s fifth issue against it.
CONCLUSION
We affirm the trial court’s order dismissing the case for want of jurisdiction.
/Leslie Osborne/ LESLIE OSBORNE JUSTICE
171447F.P05
–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
PRIMESTAR CONSTRUCTION, INC., On Appeal from the 192nd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. DC-17-05460. No. 05-17-01447-CV V. Opinion delivered by Justice Osborne; Justices Myers and Nowell participating. CITY OF DALLAS, TEXAS, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee City of Dallas, Texas recover its costs of this appeal from appellant Primestar Construction, Inc.
Judgment entered this 5th day of March, 2019.
–12–