Affirm; Reverse and Remand and Opinion Filed March 20, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00278-CV
REBECCA AMADOR, Appellant V. THE CITY OF IRVING, TEXAS, Appellee
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02425
MEMORANDUM OPINION Before Justices Osborne, Partida-Kipness, and Pedersen, III Opinion by Justice Pedersen, III Rebecca Amador appeals an order that granted a plea to the jurisdiction in
favor of the City of Irving, Texas, the appellee, on governmental immunity grounds.
The central issue in this appeal is whether a legislative waiver of immunity applies
to Amador’s claims. We affirm in part and reverse and remand in part. I. Background
In 2016, Amador enrolled in a Housing Restoration Program (the program)
offered through the City1 and funded by a grant awarded by the United States
Department of Housing and Urban Development. The program provides loans to
low-income homeowners to refurbish their homes using City-approved contractors
under City supervision.
The responsibilities of Amador, the City, and her contractor under the
program are defined by several documents, which we will refer to collectively as
“the subject contract.” Namely, on February 23, 2016, Amador signed a copy of the
City’s Policies and Procedures (the policies) given to her by a City representative.2
The policies explain the program in detail, including the processes for selecting
contractors and the responsibilities of the homeowner, the City, and the contractor
with respect to a given restoration project. Pertinent to this case, the policies require
the City to “ensure that all work is completed at the highest quality level and [in the]
most workmanlike manner possible.”
1 Participants in the program include (i) the City’s Planning and Community Development Department, and (ii) the Housing and Human Services Board, which is authorized and appointed by the Irving City Council. In this opinion, we will refer to these entities collectively as “the City.” 2 Amador was allegedly given two versions of the policies, one dated 2010 and the other dated 2014. She claims that the underlying obligations of the City and the contractor are substantively the same in both versions. –2– On May 17, 2016, Amador signed a loan agreement with the City in the
principal amount of $50,657.00 to finance Amador’s obligation under the program.
Of this amount, $20,262.80 is non-deferred and interest bearing, resulting in 180
payments of $121.27, or a total of $21,828.92. The remaining $30,394.20 is a
deferred, non-interest bearing loan, forgiven at a rate of 1/15th per year. However,
Amador must repay this portion of the loan in full should she move out of her home
or choose to sell it.
The program utilizes a list of preferred contractors who have been vetted by
the City and have agreed to its terms, practices, and construction standards. All
preferred contractors are provided a “Work Write Up” for a given project and are
invited to bid on the project. Upon its receipt and review of the bids, the City presents
all eligible bids to the homeowner. The homeowner may then choose a contractor
from any of the eligible bids. Should the homeowner wish to utilize a contractor who
is not on the preferred contractor list, the contractor must agree to become a preferred
contractor and agree to all fees and requirements.
On May 17, 2016, Amador executed a Housing Rehabilitation Mechanic’s
Lien Contract (the HR Contract) with Javier Villagomez, the contractor that she
selected to restore her home. Villagomez immediately transferred the lien to the City,
and Amador alleges on information and belief that the City continues to hold the
lien.
–3– Amador is not satisfied with Villagomez’s restoration of her home. She claims
that he performed substandard work on the foundation, leaving the home unleveled
and causing its wood floors, walls, and doors to crack, buckle, and/or tilt off-level.
According to Amador, Villagomez also painted the home’s exterior with a dark gray
paint that is inappropriate for use on siding, particularly on siding frequently exposed
to hot weather. As a result, the siding on the east and west sides of Amador’s home
melted, resulting in a contortion and shrinkage. In sum, Amador claims that
Villagomez’s restoration work in many ways left her home in a worse condition than
it was before the supposed “repairs” were performed.
Amador alleges on information and belief that the City was aware, or should
have been aware, that Villagomez was not competent, licensed, bonded, or insured.
She also claims that she informed the City of the problems with Villagomez’s work
and that, in response, the City’s “staff . . . repeatedly told [her] that some aspects of
the work would be corrected.” Notwithstanding these assurances, the City allegedly
paid Villagomez in full and did nothing to help fix the damage.
On February 20, 2018, Amador sued the City and Villagomez. Her original
petition asserts: (i) against both defendants, claims for breach of contract and
negligence, and (ii) against the City, claims for fraudulent inducement and violations
of the Deceptive Trade Practices Act (DTPA). See TEX. BUS. & COM. CODE ANN. §§
17.41–.63. Amador sought damages and a declaratory judgment that the subject
agreements be declared void or voidable at her election. See TEX. CIV. PRAC. & REM. –4– CODE ANN. §§ 37.001–.011 (Uniform Declaratory Judgments Act). She also sought to
recover the attorney’s fees that she incurred while prosecuting her contract claim,
see id. § 38.001(8), and her DTPA claim, see BUS. & COM. § 17.50(d).
The City and Villagomez both denied Amador’s allegations. The City’s
answer also included a plea to the jurisdiction. This plea was based on governmental
immunity, and it asserted that Amador had not met her burden to plead facts invoking
the district court’s jurisdiction.
On June 15, 2018, the district court held a hearing on the City’s plea and then
signed an order that granted the plea and dismissed the City from Amador’s suit. A
little over three months later, Villagomez filed a third-party petition against Brothers
Foundation LLC and Everardo Anguiano d/b/a/ All Electrical Services, who were
subcontractors retained by Villagomez to assist with Amador’s restoration project.
Amador also filed an amended petition, her current live petition, which added a gross
negligence claim against Villagomez.
In January 2019, Amador reached a settlement with Villagomez. She then
filed a motion to non-suit her claims against Villagomez with prejudice, and
Villagomez also sought to non-suit his third party claims without prejudice. The
district court signed orders granting the motions to non-suit. These orders rendered
the court’s June 15 order final, and Amador perfected this appeal.
–5– II. Analysis
The City’s plea to the jurisdiction urged that it is immune from Amador’s suit.
Political subdivisions of the State possess governmental immunity from suit unless
the Legislature has waived that immunity. Byrdson Servs., LLC v. Se. Tex. Reg’l
Planning Comm’n, 516 S.W.3d 483, 485 (Tex. 2016). A legislative waiver of
immunity must be undertaken “‘by clear and unambiguous language,’” and thus
“statutory waivers of immunity are to be construed narrowly.” Texas Adjutant
General’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013) (quoting TEX. GOV’T
CODE ANN. § 311.034).
One such waiver is found in section 271.152 of the Local Government Code,
which states:
A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter 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. “According to its plain terms, the statute
by clear and unambiguous language waives a governmental entity’s immunity from
suit for breach of written contract.” City of Houston v. Williams, 353 S.W.3d 128,
134 (Tex. 2011).
Amador asserts two reasons that, in her view, the district court erred in
granting the City’s plea to the jurisdiction. In her first issue, she contends that the
–6– subject contract waived the City’s governmental immunity pursuant to section
271.152. In her second issue, Amador argues that, even if the City’s immunity was
not waived, she may still seek a declaration of her prospective, as opposed to her
retrospective, contract obligations. The City disagrees with Amador’s assertions and
also asserts that it is immune from Amador’s breach of contract claim because there
is no “balance due and owed” by the City under the contract. See id. § 271.153(a)(1).
A. Standard of Review
An assertion of governmental immunity implicates a court’s subject matter
jurisdiction, and this immunity is properly asserted in a plea to the jurisdiction.
Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). In such a plea, a defendant
may challenge the plaintiff’s pleadings, the existence of jurisdictional facts, or both.
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).
1. Challenging the pleadings
The plaintiff bears the initial burden to allege facts demonstrating jurisdiction.
Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010); Texas
Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Whether a plaintiff has met this burden is a question of law that we review de novo.
Miranda, 133 S.W.3d at 226. We must construe the pleadings liberally in the
plaintiff’s favor and look to the pleader’s intent. Hayes, 327 S.W.3d at 116; Miranda,
133 S.W.3d at 226. If the pleadings affirmatively negate the existence of jurisdiction,
–7– then a plea to the jurisdiction may be granted without allowing the plaintiff an
opportunity to amend. Miranda, 133 S.W.3d at 227.
On the other hand, if the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable defects in jurisdiction, then the issue is one of pleading
sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226–
27. However, this right has its limits. “If a plaintiff has been provided a reasonable
opportunity to amend after a governmental entity files its plea to the jurisdiction, and
the plaintiff’s amended pleading still does not allege facts that would constitute a
waiver of immunity, then the trial court should dismiss the plaintiff’s action.” Harris
Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
2. Challenging the existence of jurisdictional facts
When a plea to the jurisdiction challenges the existence of jurisdictional facts,
we must consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues presented. Miranda, 133 S.W.3d at 227. Under this
scenario, the standard of review mirrors that of a traditional motion for summary
judgment. Clark, 544 S.W.3d at 771; Miranda, 133 S.W.3d at 228. In other words,
the defendant has the burden to establish that it is a governmental entity entitled to
governmental immunity. Lubbock Cty. Water Control and Improvement Dist. v.
Church & Akin, L.L.C., 442 S.W.3d 297, 305 (Tex. 2014). If it satisfies that burden,
the burden then shifts to the plaintiff to establish, or at least to raise a fact issue on, –8– a waiver of immunity. Id. In determining whether a material fact issue exists, we
must take as true all evidence favorable to the plaintiff, indulging every reasonable
inference and resolving any doubts in the plaintiff’s favor. Clark, 544 S.W.3d at 771;
Miranda, 133, S.W.3d at 228. However, our analysis cannot disregard evidence
necessary to show context, and we cannot disregard evidence and inferences
unfavorable to the non-movant if reasonable jurors could not. Clark, 544 S.W.3d at
771.
When the evidence of jurisdictional facts is undisputed, our determination of
whether such evidence establishes a trial court’s jurisdiction is a question of law that
we review de novo. Miranda, 133 S.W.3d at 226. In some cases, disputed evidence
of jurisdictional facts that also implicate the merits of the case may require resolution
by the finder of fact. Id.
3. Application
Here, the City’s plea challenged the sufficiency of Amador’s petition to
invoke the district court’s jurisdiction. Accordingly, we must determine whether
Amador met her pleading burden to establish a legislative waiver of governmental
immunity. As discussed below, Amador met this burden with respect to her breach
of contract claim, but she did not meet this burden as to her other claims.
The City also offered exhibits in support of its plea, including a copy of the
HR Contract and copy of the transfer of lien. Although the City’s initial burden was
only to establish that it is a governmental entity entitled to governmental immunity, –9– see Church & Akin, L.L.C., 442 S.W.3d at 305, the foregoing exhibits demonstrate
a legislative waiver of immunity with respect to Amador’s breach of contract claim,
as explained below.
B. Breach of Contract Claim
1. Goods or services
Section 271.152 applies to “a contract subject to this subchapter,” LOC. GOV’T
§ 271.152, which the statute elsewhere defines as including “a 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,” id. § 271.151(2)(A). Amador’s first issue contends that the
subject contract meets the foregoing definition, and thus, the City’s immunity has
been waived. The City does not dispute that the contract “stat[ed] the essential terms
of the agreement” and “[was] properly executed on behalf of the [City].’ Id. Thus,
the central issue that we must determine is whether the contract was an “agreement
for providing goods or services to the [City].” Id.
The term “service” in Chapter 271 “includes generally any act performed for
the benefit of another under some arrangement or agreement whereby such act was
to have been performed.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320
S.W.3d 829, 839 (Tex. 2010). “The services provided need not be the primary
purpose of the agreement.” Id. However, Chapter 271 does not extend to “‘contracts
in which the benefit that the local governmental entity would receive is an indirect, –10– attenuated one.’” Id. (quoting Berkman v. City of Keene, 311 S.W.3d 523, 527 (Tex.
App.—Waco 2009, pet. denied)).
a. Amador’s arguments
Amador notes that the City owns an interest in her property in the form of the
lien transferred by Villagomez. See Sec. State Bank & Tr. v. Bexar Cty., 397 S.W.3d
715, 721 (Tex. App.—San Antonio 2012, pet. denied) (“A lienholder possesses a
legally protected property interest.”).3 Moreover, in the event of a default by
Amador, the lien gives the City authority to sell the property at auction and receive
a commission. Based on these facts, in Amador’s view, the City directly benefitted
from the services that Villagomez performed on the property pursuant to the
contract. Under this reasoning, when Villagomez performed services on Amador’s
home, those services were provided to both Amador and the City.
Amador claims that the City’s direct benefit is further enhanced by its receipt
of interest on a portion of the loan’s principal amount, cf. Schoffstall v. City of
Corpus Christi, No. 13-13-00531-CV, 2014 WL 4249801, at *5 (Tex. App.—
Corpus Christi–Edinburg Aug. 25, 2014, no pet.) (mem. op.) (concluding that “zero
interest” loan agreement did not involve provision of goods or services directly to
3 See also John Deloach Enters., Inc. v. Telhio Credit Union, Inc., 582 S.W.3d 590, 596 (Tex. App.— San Antonio 2019, no pet.) (“[A] first lienholder generally has sufficient interest in the property to sue a third party for conversion.”); State Bank of Omaha v. Means, 746 S.W.2d 269, 272 (Tex. App.—Texarkana 1988, writ denied) (“A mortgage is a substantial property interest that is entitled to the constitutional protection of due process.”); cf. Flag-Redfern Oil Co. v. Humble Expl. Co., 744 S.W.2d 6, 8 (Tex. 1987) (“The mortgagor retains the legal title and the mortgagee holds the equitable title.”). –11– city), and by the fact that the City’s lien was protected by the insurance that the
contract required Amador to obtain on the property.
b. The City’s response
The City counters that it was only a conduit for the federal funds used to
rehabilitate Amador’s home. Under this logic, Amador, not the City, directly
benefitted from Villagomez’s goods and services, and the City received merely an
indirect, attenuated benefit.
c. Sister court cases
The City cites two sister court cases to support its position that section 271.152 does not
apply here.
In East Houston Estate Apartments, L.L.C. v. City of Houston, a city loaned
federal and private funds to a property owner to rehabilitate an apartment complex
within the city. 294 S.W.3d 723, 726, 736–37 (Tex. App.—Houston [1st Dist.] 2009,
no pet.). While the city might benefit in a general way from refurbished apartments
and low-income housing, our sister court concluded that nothing in the contract
obligated the property owner to provide any municipal service directly to the city.
Id. at 736. Rather, the city was simply a conduit of federal funds and a facilitator of
the project. Id.
In San Antonio Housing Authority v. Serento Apartments, LLC, an apartment
complex owner and the San Antonio Housing Authority (SAHA) entered into a
written federal Housing Assistance Program contract under the Section 8 Moderate
–12– Rehabilitation Program, which provides rental assistance for low-income families.
478 S.W.3d 820, 822 (Tex. App.—San Antonio 2015, no pet.). Under this program,
SAHA would refer to Serento eligible families from a waiting list, and Serento
would screen and select from those eligible families. Id. The selected family and
Serento would then enter into a separate apartment lease contract. Id. SAHA would
pay a sliding scale portion of the family’s monthly rent directly to Serento. Id.
Serento asserted that the foregoing contract “provid[ed] a service providing
and operating low-income housing so that SAHA d[id] not have to build more
housing courts.” See id. at 825. Our sister court disagreed. The court applied the
reasoning from East Houston and concluded that SAHA was merely the conduit of
federal funds and did not directly benefit from the services provided by Serento. Id.
at 826. Under this circumstance, Serento did not meet its burden of showing that
SAHA had waived its governmental immunity under section 271.152. Id.
The City asserts that the foregoing cases support its position that the subject
contract provided the City with only an indirect benefit. In contrast, Amador argues
that these cases are distinguishable. According to Amador, they “did not consider
whether repairs to property in which the governmental entity held a valid legal
interest constituted a service to the [entity], particularly where the entity enjoyed the
right to collect interest or foreclose on the property” and the right to “require[ ] that
insurance be maintained on the property to protect the [entity’s] interests.”
–13– The City also acknowledges City of El Paso v. High Ridge Construction, Inc.,
442 S.W.3d 660 (Tex. App.—El Paso 2014, pet. denied). In that case, the City of El
Paso entered into a contract with High Ridge to provide weatherization services “on
behalf of the City”—including the installation of emergency-efficient appliances—
in qualified low-income residential properties. Id. at 663–64, 669. Our sister court held
that High Ridge’s services did not provide a direct benefit to the City, and therefore, section
271.152 did not apply. Id. at 669–70. This did not end the court’s inquiry, however, because the
weatherization contract also required High Ridge to provide a one-year warranty to the client and
to the City for the work completed and to indemnify and defend the City from any claims arising
from High Ridge’s activities under the contract. Id. at 670. The warranty and indemnity term
provided a direct benefit to the City that qualified as the provision of services under section
271.152. Id. (citing Kirby Lake, 320 S.W.3d at 839 (agreement between residential developers and
city water control and improvement district authority entailed the provision of goods or services
under Section 271.152 where developers agreed to construct, develop, lease, and bear all risk of
loss or damage to water and sewer facilities)).
In the City’s view, City of El Paso is distinguishable because, unlike in this
case, the High Ridge contract expressly stated that its services were provided “on
behalf of the City.” Id. at 669. Amador replies that the foregoing contract language
was not the basis of the court’s decision and that requiring such language for section
271.152 to apply would contravene the rule that “[t]he services provided . . . need
not be the primary purpose of the agreement.” Kirby Lake, 320 S.W.3d at 839.
Amador also notes that the court’s holding in City of El Paso rested on the warranty
–14– and indemnification term, id. at 670, and she urges that a similar term is present in this case.
Thus, Amador views City of El Paso as supporting her position that section 271.152 applies here.
d. Analysis
Amador’s petition alleges that the subject contract provides a service to the
City in the form of (i) the lien assigned by Villagomez, and (ii) the obligation
undertaken by Amador to pay interest on her loan from the City. Stated another way,
Villagomez’s service of repairing Amador’s home was also a service to the City by
virtue of its property interest in the home. Moreover, Amador’s payment of interest
to the City provided it with a direct benefit. See Kirby Lake Dev., Ltd., 320 S.W.3d
at 839. The City cannot be considered a mere conduit of federal funds because it is
also earning interest on these funds. The foregoing allegations were sufficient to
invoke the district court’s jurisdiction pursuant to section 271.152.
In addition, the City’s evidence established that section 271.152 applies to this
case. Specifically, the HR Contract contains an indemnity term under which
Villagomez agreed to indemnify, release, and hold the City harmless from all claims
for injury or death to any person, or for damage to any property, arising out of, or in
connection with, Villagomez’s activities related to the contract. This term, as well
as the terms referenced above, provided the City with a direct benefit. Kirby Lake,
320 S.W.3d at 839; City of El Paso, 442 S.W.3d at 670. Accordingly, the subject
contract was an agreement for providing services to the City. See LOC. GOV’T
§§ 271.151(2)(A), 271.152.
–15– 2. Balance Due and Owed
Section 271.152 is “subject to the terms and conditions of this subchapter,”
LOC. GOV’T § 271.152, and such “terms and conditions” incorporate the limitations
set forth in section 271.153, id. § 271.153; Zachry Constr. Corp. v. Port of Houston
Auth. of Harris Cty., 449 S.W.3d 98, 108–109 (Tex. 2014). Thus, section 271.152’s
waiver of immunity from suit does not extend to claims for damages not recoverable
under section 271.153. Zachry, 449 S.W.3d at 110.
Based on the foregoing, the City invokes section 271.153 as an additional
ground to support the district court’s grant of its jurisdictional plea. Under this
section:
[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 . . . (1) the balance due and owed by the local governmental entity under the contract.
LOC. GOV’T § 271.153.
A “balance due and owed” is “simply the amount of damages for breach of
contract payable and unpaid.” Zachry, 449 S.W.3d at 111. “Direct damages for
breach—the necessary and usual result of the defendant’s wrongful act—certainly
qualify.” Id. (citation and internal quotation marks omitted)); see also Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997) (“Direct
damages compensate . . . for the loss that is conclusively presumed to have been
foreseen by the defendant from his wrongful act.”). Such damages need not be set
–16– out in the contract to be “due and owed.” Zachry, 449 S.W.3d at 113. In contrast,
consequential damages—“damages that result naturally, but not necessarily, from
the defendant’s wrongful acts”4—are not recoverable barring an exception not
applicable here. LOC. GOV’T § 271.153(b)(1); Zachry, 449 S.W.3d at 112, 114 &
n.71.5
The City asserts that Amador has not alleged a balance due and owed. We
disagree. Amador alleges that the contract obligated the City to “ensure that all work
performed is completed in the highest quality and most workmanlike manner.” Her
petition claims that the repairs performed by Villagomez were incomplete and
“utterly deficient.” Moreover, according to Amador’s allegations, the City “fail[ed]
to ensure that necessary warranty work was completed” and made no effort to
remedy Villagomez’s poor workmanship. The unfinished work purportedly includes
(i) an unleveled foundation that will cost $7,725 to repair, (ii) a master bathroom
still in disrepair, and (iii) several items that need to be replaced, such as the windows
and the carpet in the master bedroom. In addition, the improper work purportedly
includes (i) siding that suffered $18,482 in damage, and (ii) several incorrectly
4 See Zachry, 449 S.W.3d at 114 n.71 (quoting Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894, 901 (Tex. 2011)). 5 Section 271.153(b)(1) prohibits recovery of consequential damages “except as expressly allowed under Subsection (a)(1).” Id. Subsection (a)(1), in turn, defines the “balance due and owed” to include “any amount owed as compensation for the increased cost to perform the work as a direct result of owner-caused delays or acceleration.” Id. § 271.153(a)(1). This case does not involve such delays or acceleration. –17– installed items, such as light switches wired in an unsafe manner and vinyl flooring
that was not properly glued down. Amador seeks damages to remedy these defects.
The foregoing harms directly and necessarily resulted from the City’s breach
of the contract. See Zachry, 449 S.W.3d at 111. As such, Amador has alleged a
“balance due and owed.” See LOC. GOV’T § 271.153.
Accordingly, we reverse the district court’s order granting the City’s plea to
the jurisdiction insofar as that order dismissed Amador’s breach of contract claim.
C. Non-Contract Claims
Amador does not cite any legislative waiver of immunity regarding her
fraudulent inducement6 or DTPA claims,7 nor does she argue that the legislative
waiver of immunity for negligence claims8 applies here. See also LOC. GOV’T §
271.157 (providing that subchapter I of Chapter 271 does not waive immunity for
negligent or intentional torts).
She instead urges that, because section 271.152 waived immunity with respect
to her breach of contract claim, the district court need not separately determine
6 Cf. CIV. PRAC. & REM. § 101.057(2) (providing that Tort Claims Act does not apply to a claim arising out of an intentional tort). 7 Cf. City of Wylie v. Taylor, 362 S.W.3d 855, 864–65 (Tex. App.—Dallas 2012, no pet.) (“After analyzing [Business and Commerce Code section 17.45(3)], we conclude the Legislature has not therein expressed a clear and unambiguous waiver of governmental immunity.” (citation and internal quotation marks omitted)); Kojo Wih Nkansah v. Univ. of Tex. at Arlington, No. 02-10-00322-CV, 2011 WL 4916355, at *4 (Tex. App.—Fort Worth Oct. 13, 2011, pet. denied) (mem. op.) (“The DTPA does not clearly and unambiguously provide for a waiver of immunity from suit for governmental units.”). 8 See CIV. PRAC. & REM. § 101.021 (waiving immunity in a negligence suit if the action involves (i) property damage, personal injury, or death arising from the operation or use of a motor vehicle, or (ii) personal injury or death caused by a condition or use of tangible personal or real property). –18– whether it has subject-matter jurisdiction over her non-contract claims. See Harris
Cty. Flood Control Dist. v. PG & E Tex. Pipeline, L.P., 35 S.W.3d 772, 773 (Tex.
App.—Houston [1st Dist.] 2000, pet. dism’d w.o.j.) (“When the trial court has
jurisdiction over any claim against a governmental entity, the court should deny that
entity’s plea to the jurisdiction.”), abrogated on other grounds by City of Houston v.
Northwood Mun. Util. Dist. No. 1, 74 S.W.3d 183, 184–85 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (per curiam); Blum v. Restland of Dallas, Inc., 971 S.W.2d 546,
549 (Tex. App.—Dallas 1997, pet. denied) (because trial court had jurisdiction over
at least part of case, overruling cross-point that asserted such court erred in denying
plea to jurisdiction). More recently, the Texas Supreme Court held that “[a] trial
court is not required to deny an otherwise meritorious plea to the jurisdiction . . .
based on a jurisdictional challenge concerning some claims because the trial court
has jurisdiction over other claims.” Thomas v. Long, 207 S.W.3d 334, 339 (Tex.
2006); see also id. at 338 (“[I]t is proper for a trial court to dismiss claims over which
it does not have subject matter jurisdiction but retain claims in the same case over
which it has jurisdiction.”).9
Amador interprets the phrase “not required” in Long to mean that a trial court
may, in its discretion, deny a plea to the jurisdiction as to one claim based on the fact
that it has jurisdiction over another claim. Since Long, however, the Supreme Court
9 The Long court also disapproved of the First Court of Appeals’ decision in PG & E to the extent PG & E had held otherwise. See id. at 339. –19– has made clear that “a plaintiff must demonstrate that the court has jurisdiction over
. . . each of his claims; the court must dismiss those claims (and only those claims)
over which it lacks jurisdiction.” Heckman v. Williamson Cty., 369 S.W.3d 137,
152–53 (Tex. 2012); see also id. at 153 (“[T]he court must assess standing plaintiff
by plaintiff, claim by claim.”). Accordingly, we reject Amador’s interpretation of
Long.
In short, Amador’s petition affirmatively establishes that the City is immune
with respect to her fraudulent inducement, DTPA, and negligence claims. Thus, she
need not be allowed an opportunity to amend her petition with respect to these
claims. Miranda, 133 S.W.3d at 227. We affirm the district court’s order granting
the City’s plea to the jurisdiction insofar as that order dismissed these non-contract
claims.
D. Declaratory Judgment Claim
Amador’s petition also requested a declaration that the subject contract “be
declared void or voidable at her election due to the City fraudulently inducing her
into the contract.” See CIV. PRAC. & REM. §§ 37.001–.011 (Uniform Declaratory
Judgments Act). Amador’s purpose in asserting this claim is to relieve her from the
obligation of making prospective loan payments. Her second issue urges that the
City is not immune from her Uniform Declaratory Judgments Act (UDJA) claim
even it is immune from her breach of contract claim.
–20– As an initial matter, Amador’s UDJA claim, which seeks to void the contract,
appears inconsistent with her claim for damages resulting from the City’s breach of
the contract. See Sharifi v. Steen Automotive, LLC, 370 S.W.3d 126, 149 (Tex.
App.—Dallas 2012, no pet.) (“Remedies are inconsistent when one of the remedies
results from affirming the transaction and the other results from disaffirming the
transaction.”). However, Amador may simultaneously pursue both claims at this
stage of the litigation. Cf. id. (“A party is entitled to sue and seek damages on
alternative theories but is not entitled to recover on both theories.” (citation and
internal quotation marks omitted)). Accordingly, our determination that the district
court possesses jurisdiction over Amador’s breach of contract claim does not moot
our consideration of whether the court also has jurisdiction over her UDJA claim.
See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion
that . . . addresses every issue raised and necessary to final disposition of the
appeal.”).
Amador contends that “[p]rivate parties may seek declaratory relief against
state officials who allegedly act without legal or statutory authority,” Texas Nat. Res.
Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (plurality op.),
and that “[a] party can maintain a suit to determine its rights without legislative
permission,” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997),
superseded by statute on other grounds as stated in Gen. Servs. Comm’n v. Little–
Tex Insulation Co., 39 S.W.3d 591, 593 (Tex. 2001); see also City of Seagoville v. –21– Lytle, 227 S.W.3d 401, 410 (Tex. App.—Dallas 2007, no pet.) (“Texas courts
distinguish suits to determine a party’s right against a governmental unit from a suit
seeking damages.”).10
More recently, the Texas Supreme Court examined the intersection of the
foregoing principles with the doctrine of governmental immunity, holding that such
immunity (i) bars suits for retrospective money relief but (ii) does not preclude
prospective injunctive remedies in official capacity suits against government actors
who violate statutory or constitutional provisions. City of El Paso v. Heinrich, 284
S.W.3d 366, 368–69 (Tex. 2009).11 To fall within the “ultra vires” exception set forth
in (ii) above, a suit “cannot be brought against the state, which retains its immunity,
but must be brought against the state actors in their official capacity.” Heinrich, 284
S.W.3d at 373; see also Southwestern Bell Telephone, L.P. v. Emmett, 459 S.W.3d
578, 587 (Tex. 2015) (“For the ultra vires exception to immunity to apply, it must
be proved that the state actor either failed to perform a ministerial task or acted
10 In Lytle, we also said that “[a] declaratory judgment action against the government seeking a declaration of a party’s rights and status under a statute is not barred by governmental immunity.” Id. This statement was subsequently contradicted by the Texas Supreme Court’s decision in City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex. 2009), which we discuss below. See also City of McKinney v. Hank’s Restaurant Grp., L.P., 412 S.W.3d 102, 111–112 (Tex. App.—Dallas 2013, no pet.) (discussing such contradiction). 11 See also Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 393 (Tex. 2011) (“In Heinrich, the Court affirmed the rule that suits for declaratory or injunctive relief against a state official to compel compliance with statutory or constitutional provisions are not suits against the State.”); Hank’s Restaurant Grp., 412 S.W.3d at 112 (“[I]mmunity does not bar a suit for prospective injunctive relief against government actors in their official capacity for violating the law.”). –22– without legal authority.”). Since Amador’s claims are brought against the City, not
its officials in their official capacity, the ultra vires exception does not apply.
Amador also relies on Labrado v. County of El Paso, which declined to apply
governmental immunity to a declaratory judgment action that sought to void
contracts made in violation of Texas competitive bidding laws. See 132 S.W.3d 581,
593–94 (Tex. App.—El Paso 2004, no pet.) (noting that requests for declaratory relief
“[were] not merely disguised attempts to confer jurisdiction over a breach-of-
contract claim”). Unlike in this case, Labrado involved a statute that expressly
waived governmental immunity to enjoin performance of a contract made in
violation of the foregoing laws. See id. (citing LOC. GOV’T. §§ 262.027(a), 262.033).
In addition, at the time of the Labrado decision, governmental immunity was
generally considered waived with respect to UDJA claims. See 132 S.W.3d at 592
(noting that appellee had acknowledged same). Since Labrado, the Texas Supreme
Court has made clear that the UDJA does not contain a general waiver of
governmental immunity, Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d
384, 388 (Tex. 2011), though the statute does provide a limited waiver in particular
cases, such as suits that challenge the validity of an ordinance or statute, Town of
Shady Shores v. Swanson, 590 S.W.3d 544, 552–53 (Tex. 2019); Texas Dept. of
Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011); Heinrich, 284 S.W.3d at 373
n.6 (citing CIV. PRAC. & REM. § 37.006(b)).
–23– In response to Amador’s argument, the City notes that “governmental entities
. . . generally are immune from UDJA claims seeking to void contracts.” City of New
Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163, 171 (Tex. App.—Austin 2017,
pet. denied); accord Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ., 472 S.W.3d
426, 431–32 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); Mustang Special
Util. Dist. v. Providence Vill., 392 S.W.3d 311, 316–17 (Tex. App.—Fort Worth
2012, no pet.); see also City of Austin v. Util. Assocs., Inc., 517 S.W.3d 300, 312
(Tex. App.—Austin 2017, pet. denied) (“The Texas Supreme Court has historically
regarded these immunity principles as also barring suits to cancel or nullify a
contract made for the benefit of the state.” (citing W.D. Haden Co. v. Dodgen, 158
Tex. 74, 308 S.W.2d 838, 841 (1958))). Based on these authorities, and construing
Amador’s pleadings liberally in her favor, see Hayes, 327 S.W.3d at 116, we
conclude that she has not alleged a UDJA claim for which governmental immunity
has been waived.
We next consider whether Amador should be given an opportunity to amend
her petition. See Miranda, 133 S.W.3d at 226–27. As explained previously, the UDJA
waives immunity in particular cases, see Sefzik, 355 S.W.3d at 622, and immunity also
does not apply to declaratory or injunctive remedies in official capacity suits against
government actors who violate statutory or constitutional provisions, see Sawyer Tr.,
354 S.W.3d at 393; Heinrich, 284 S.W.3d at 368–69. Amador’s UDJA claim, as
currently pled, does not foreclose the possibility that she could amend her petition –24– to cure the jurisdictional defect with respect to this claim. However, the City’s
jurisdictional plea has already notified Amador that her request for declaratory relief
did not “pierce” the City’s governmental immunity. Amador’s amended petition,
filed several months later, alleged no additional facts to support a waiver of
immunity with respect to her UDJA claim. Accordingly, the district court acted
appropriately in dismissing this claim. See Sykes, 136 S.W.3d at 639.
We affirm the district court’s order granting the City’s plea to the jurisdiction
insofar as it dismissed Amador’s UDJA claim.
III. Conclusion
We affirm the district court’s order granting the City’s plea to the jurisdiction
and dismissing Amador’s claims for negligence, fraudulent inducement, and DTPA.
We likewise affirm the district court’s order granting the City’s plea to the
jurisdiction and dismissing Amador’s claim under the UDJA.
We reverse the district court’s order granting the City’s plea to the jurisdiction
and dismissing Amador’s claims for breach of contract and related attorney’s fees.
See LOC. GOV’T § 271.153(a)(3) (allowing for “reasonable and necessary attorney’s
fees that are equitable and just” in a breach of contract claim). We remand these
claims for further proceedings consistent with this opinion.
/Bill Pedersen, III// BILL PEDERSEN, III 190278f.p05 JUSTICE
–25– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
REBECCA AMADOR, Appellant On Appeal from the 14th Judicial District Court, Dallas County, Texas No. 05-19-00278-CV V. Trial Court Cause No. DC-18-02425. Opinion delivered by Justice THE CITY OF IRVING, TEXAS, Pedersen, III. Justices Osborne and Appellee Partida-Kipness participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s judgment granting appellee’s plea to the jurisdiction with respect to (i) appellant’s breach of contract claim, and (ii) appellant’s claim for attorney’s fees related to her breach of contract claim. In all other respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this Court’s opinion.
Judgment entered this 20th day of March 2020.
–26–