REVERSE and RENDER and Opinion Filed August 13, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01273-CV
TEXAS DEPARTMENT OF TRANSPORTATION, Appellant V. PRIMARY MEDIA GROUP, INC., Appellee
On Appeal from the 439th Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-21-1352
MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Goldstein The Texas Department of Transportation (TXDOT or Department) appeals
the trial court’s order denying TXDOT’s motion to dismiss for lack of jurisdiction.
In a single issue, TXDOT argues that, because Primary Media failed to establish a
waiver of sovereign immunity, the trial court should have dismissed the case for
want of jurisdiction. We reverse the trial court’s judgment and render judgment
dismissing Primary Media’s claims for want of jurisdiction. PRIMARY MEDIA’S SECOND AMENDED PETITION
In September 2021, Primary Media filed its original petition asserting breach
of contract claims against TXDOT in connection with Primary Media’s execution of
certain quitclaim deeds and applications to relocate four impacted outdoor
advertising signage. After the filing of TXDOT’s motion to dismiss for lack of
jurisdiction, but prior to the hearing, Primary Media amended its petition twice, the
Second Amended Petition being the live pleading at the time of the hearing (herein
“the petition”). The facts set forth in this section are taken directly from Primary
Media’s petition.
Primary Media is an owner and operator of off-premise, outdoor advertising
signs commonly known as billboards throughout Texas, frequently located adjacent
to interstate highways and major thoroughfares. TXDOT, responsible for widening
and improving state highways, is also the agency charged with regulating and
permitting commercial signs located on the interstate and primary systems.
The petition outlined TXDOT’s treatment of billboards in eminent domain
proceedings as follows:
When acquiring property on which a billboard is located to accommodate a public improvement project, the State treats sign owners differently than other property owners. Acting through the Department, prior to the commencement of formal condemnation proceedings, the State makes an offer to a billboard owner equal to the appraised value of a sign, less a nominal retention value, in exchange for the sign owner’s agreement to remove the impacted billboard.
–2– A billboard owner that chooses to settle with the Department is required, prior to the Special Commissioners’ hearing, to agree upon a value for the impacted sign (ordinarily through a memorandum of agreement or similar exchange of correspondence) and quitclaim its interest in the subject sign to the State of Texas through a nonnegotiable, standard form quitclaim deed prepared and provided by the Department. TxDOT’s standard memoranda of agreement typically include the following form language:
It is important to confirm this agreement in order to avoid any possible misunderstanding as to the details of the purchase or the process by which the Texas Department of Transportation (TxDOT) will make payment. The payment of [the purchase price] as herein agreed will constitute full payment to be made by TxDOT for the property to be conveyed to the State. The consideration recited herein represents a settlement and compromise by all parties as to the value of the property herein conveyed in order to avoid formal eminent domain proceeding and the added expense of litigation.
(emphasis added). The memoranda go on to describe a sign owner’s eligibility for an impacted sign credit:
Under certain circumstances, Rule 21.192 of Title 43 of the Texas Administrative Code allows the owner of a billboard structure to apply for a relocation permit if it is legally erected and maintained and will be within the highway right of way as a result of a highway construction project.
Executing a quitclaim deed and retaining the billboard structure does not guarantee that a relocation permit will be issued. In addition to executing the quitclaim deed and retaining the billboard structure, the owner of the billboard structure must follow and meet the current relocation permitting guidelines found in 43 TAC 21.192, et seq.
The payment of the amount herein stated and the terms provided constitute the only promises, consideration and
–3– conditions of this purchase; and no other promises, consideration and conditions have been signified or implied, save and except the mutual benefits to be derived by you and TxDOT from the signing of this agreement.
The Department’s standard form quitclaim deed provides that the billboard owner will remove the impacted sign after receiving a notice to vacate from the Department. By submitting to this process, a billboard owner waives its right to go through formal condemnation proceedings to obtain an award of just compensation for the loss of the billboard, and waives its right to recover any relocation assistance benefits for the cost to relocate the retained structure.
The State’s settlement procedure for billboards displaced by highway projects is explained in a Department-issued policy titled, “Amended Guidance for Impacted Off-Premise Billboards Affected by Highway Transportation Projects” (the “Guidance”). The Guidance provides that a billboard owner that retains the structure through this settlement process will be eligible for an impacted sign credit under 43 Tex. Admin. Code § 21.192. The same procedure is likewise included in a Department-issued memorandum titled, “Impacted Commercial Signs: What to Expect When Your Sign is Impacted by a TxDOT Construction Project.”
The Department’s regulations applicable to the issuance of impacted sign credits are found in 43 Tex. Admin. Code §§ 21.192, .193, & .195. These sections provide sign owners the ability to relocate a billboard displaced by a highway project using certain relaxed relocation criteria. For example, a relocated sign need only be adjacent to one business, instead of the two businesses required for ordinary new-build signs. 43 Tex. Admin. Code § 21.193(c); cf. 43 Tex. Admin. Code § 21.179(a)(1). Additionally, the various spacing requirements for relocated signs are relaxed, as compared to the spacing requirements for new-build signs. 43 Tex. Admin. Code §21.193(b); cf. 43 Tex. Admin. Code § 21.187. Today, most of the available locations for the construction of new signs have been utilized. As such, a relocation permit that entitles the holder to relax the ordinary regulations for new- build signs is a valuable, private right, which is made all the more valuable due to TxDOT’s required waiver of condemnation rights necessary for the sign owner to receive the TxDOT relocation permit.
–4– After agreeing on a reduced value for an impacted sign (through the execution of a memorandum of agreement or exchange of correspondence with TxDOT) and signing a quitclaim deed, an impacted sign owner will receive a notice to vacate, which specifies the required removal date, and informs the sign owner of the following: “Failure to remove the retained improvements will also result in the loss of eligibility for a relocation permit for the outdoor advertising sign.” After receiving the notice to vacate from the Department, a sign owner is required to remove a sign by the deadline included in the notice. The sign owner is then required to submit TxDOT’s Impacted Sign Credit Application form in order to receive an impacted sign credit.
The Parcel 23 Sign
The petition alleged that Primary Media owned a sign adjacent to IH-35 in
Gainesville, Texas, which was located on property designated by the State as Parcel
23 and removed to accommodate a State road-widening project (the “Parcel 23
Sign”). The Parcel 23 Sign was permitted by the City of Gainesville, a “certified
city” with the authority to control commercial signs in its jurisdiction. Under the
Texas Administrative Code, a certified city has the authority to regulate billboards
within its corporate limits, and billboard owners that receive a permit from a certified
city to construct a billboard do not have to obtain a permit from TXDOT. 43 Tex.
Admin. Code § 21.200. Once TXDOT gave Primary Media notice that the Parcel
23 Sign would have to be removed, Primary Media negotiated a settlement with
TXDOT, signed a memorandum of agreement, executed a quitclaim deed, timely
removed the sign, and documented the removal of the sign on TXDOT’s Impacted
Sign Credit Application.
–5– After Primary Media removed the Parcel 23 Sign, it applied for and obtained
a permit from the City of Gainesville to construct a sign on the remainder of the
impacted property, asserting that the site remained conforming as a new build site.
Because Gainesville is a certified city, Primary Media did not have to apply for a
TXDOT permit or utilize a TXDOT impacted sign credit. Primary Media did apply
for a permit to construct a sign near Caddo Mills, Texas. TXDOT rejected the
application pursuant to 43 Texas Administrative Code section 21.192. In a letter,
TXDOT stated the following:
The application you submitted on December 30, 2020 was unable to be processed for the following reason(s). Based on the information provided by the City of Gainesville, the sign has already been relocated approximately thirty feet from where it was originally located. The purpose of the impacted sign credit is to provide an incentive to the sign owner when their sign is impacted by a highway construction project. In this case, the sign was able to move to a new location in accordance with the city of Gainesville ordinances. Therefore, the permit is not eligible for use in relocating an impacted sign and this application must be rejected.
Primary Media appealed, but TXDOT “summarily concluded that Primary
Media was ineligible for receipt of an impacted sign credit because it was able to
build a sign on the remainder of Parcel 23.”
The Parcel 48 Sign
Primary Media owned a sign located near Forney, Texas, designated as the
Parcel 48 Sign, and TXDOT required that Primary Media remove the sign in July
2021. Primary Media followed TXDOT-mandated procedure for the removal of
impacted signs so that it could remain eligible for a relocation credit: Primary Media –6– settled with the State on the value of the structure through the execution of a standard
form Quitclaim Deed, timely removed the impacted structure prior to the date
included in TXDOT’s Notice to Vacate and submitted all required documentation to
the Department with an Impacted Sign Credit Application. On July 29, 2021,
TXDOT notified Primary Media that its Impacted Sign Credit Application was
rejected as follows:
According to 43 TAC § 21.192(a), a commercial sign that has been timely removed from a department construction project may be relocated. The notice to vacate stated that the property was to be vacated on July 12, 2021. However, photos from July 22, 2021 provided by TXDOT staff showed that the sign was taken down, but the sign parts were still at the acquired property. The pipe is cut at ground level and capped, leaving pipe and footings intact.
The Parcel 16 Sign
Primary Media removed a sign located in Gainesville, Texas, adjacent to I-35,
on property designated by TXDOT as Parcel 16 (the “Parcel 16 Sign”) in order to
accommodate TXDOT’s highway improvements. Primary Media executed a
Quitclaim Deed, timely removed the Parcel 16 Sign in response to TXDOT’s Notice
to Vacate, and properly documented the removal. Similar to the Parcel 23 Sign,
Primary Media was able to construct a new sign on the remainder of Parcel 16
because the property remained a conforming location under Gainesville’s sign
regulations. Primary Media properly submitted an Impacted Sign Credit Application
for the Parcel 16 Sign on August 12, 2021. On August 23, 2021, TXDOT sent a
letter to Primary Media in which TXDOT rejected the Application for reasons
–7– similar to those stated in the TXDOT’s letters rejecting Primary Media’s Impacted
Sign Credit Applications for Parcels 23 and 48.
The Parcel 60 Sign
Primary Media removed a sign located in Royse City, Texas, adjacent to I-30,
on property designated by the State as Parcel 60 (the “Parcel 60 Sign”) in order to
accommodate the State’s highway improvements. Primary Media executed a
Quitclaim Deed, timely removed the Parcel 60 Sign in response to TXDOT’s Notice
to Vacate, and properly documented the removal. On September 13, 2021, TXDOT
mailed Primary Media a letter, in which TXDOT informed Primary Media that its
Impacted Sign Credit Application was rejected. In its letter, TXDOT explained:
The notice to vacate stated that the property was to be vacated on May 5th, 2021, with an extension granted until August 31st, 2021. However, photos provided by Primary Media staff showed that the sign was taken down, but the sign parts were still at the acquired property. The pipe is cut at ground level and capped, leaving pipe and footings intact. Therefore, the sign is not eligible for an impacted sign credit.
Primary Media’s Breach of Contract Claim
Based on its rendition of the facts, Primary Media asserted claims of breach
of contract in connection with each of the signs. Generally, Primary Media claimed
it settled with TXDOT by executing quitclaim deeds in lieu of exercising its rights
to just compensation in eminent domain. Primary Media claimed the quitclaim
deeds required Primary Media to remove and retain the subject structures in order to
–8– retain eligibility for relocation permits1 and that, in exchange for its compliance with
the deeds’ removal requirements, Primary Media was entitled2 to the issuance of
relocation permits. In compliance with the terms of the deeds and Department
regulations, Primary Media asserts it timely removed the subject signs, incurred the
expense of such removal efforts, agreed to a one-percent reduction in compensation
for the subject signs, and submitted all TXDOT-mandated paperwork. Thus, avers
Primary Media, TXDOT breached its obligation to issue Primary Media the
requested relocation permits upon the timely removal of the subject signs.
Specifically, Primary Media claimed TXDOT breached its obligation owed to
Primary Media under the quitclaim deed for the Parcel 23 Sign when it rejected
Primary Media’s impacted sign credit application, and Primary Media did not waive
its right to an impacted sign credit. As to the Parcel 48 Sign, Primary Media asserted
that TXDOT breached its obligations under the quitclaim deed when it rejected
Primary Media’s impacted sign credit application because TXDOT regulations do
not require the removal of the subsurface components of an impacted sign structure
but only the removal of the “sign” itself. Primary Media complained TXDOT
breached its obligations under the applicable quitclaim deeds when it rejected
1 We note that the quitclaim deeds actually make no reference to relocation permits; they only refer to Primary Media’s removal and retention of the signs. 2 Primary Media’s contention that it was “entitled” to relocation permits would become a central issue in the case, both in the trial court and on appeal. Again, however, the quitclaim deeds do not mention relocation or relocation permits or contain the word “entitled” or its variants. –9– Primary Media’s impacted sign credit applications in connection with the Parcel 16
Sign and Parcel 60 Sign “for the same reasons.”
TXDOT’S PLEA TO THE JURISDICTION, SPECIAL EXCEPTIONS, GENERAL DENIAL, AND AFIRMATIVE DEFENSES
In October 2021, TXDOT filed a responsive pleading asserting that the trial
court lacked jurisdiction over Primary Media’s suit because TXDOT’s sovereign
immunity had not been waived. TXDOT also specially excepted to Primary Media’s
petition because it did not allege a valid waiver of sovereign immunity or Primary
Media’s obtaining legislative consent to file suit against TXDOT. Finally, TXDOT
generally denied Primary Media’s allegations and, as an affirmative defense,
asserted it was immune from suit and liability under the theory of sovereign
immunity.
TXDOT’S MOTION TO DISMISS FOR LACK OF JURISDICTION
In May 2022, TXDOT filed its motion to dismiss for lack of jurisdiction. As
the factual background for its motion, TXDOT alleged Primary Media executed a
quitclaim deed for each of the subject properties. In the deeds, the parties agreed
that Primary Media could remove and retain possession of and title to the
commercial sign structures located on the properties if they were removed from the
described tracts of land by the dates set forth in notices to vacate. In consideration
for the quitclaim deeds, Primary Media was paid $218,252 for the deed to Parcel 16,
$89,400 for the deed to Parcel 23, $82,569 for the deed to Parcel 48, and $110,150
–10– for the deed to Parcel 60. TXDOT correctly reflects the record that the quitclaim
deeds did not make any promises concerning relocation permits and did not even
mention relocation or relocation permits. According to TXDOT, Primary Media’s
impacted sign credit applications were denied either because the signs had already
been relocated in accordance with municipal ordinances pursuant to 43 Texas
Administrative Code section 21.195 or because all sign parts were not timely
removed. TXDOT argued it did not waive immunity from suit by contracting with
a private party, citing Texas Natural Resource Conservation Commission v. IT-
Davy, 74 S.W.3d 849, 854, 858 (Tex. 2002). TXDOT asserted Primary Media could
not raise a material issue of fact regarding the existence of promises to issue
relocation permits that may have been violated because the quitclaim deeds do not
contain such promises. Accordingly, TXDOT argued, Primary Media had not raised
a material fact issue as to whether contracts were breached, sovereign immunity was
not waived, and Primary Media’s claims should have been dismissed for want of
jurisdiction.
THE TRIAL COURT’S ORDER
On November 2, 2022, the trial court signed an order denying TXDOT’s
motion to dismiss for lack of jurisdiction. The order provided in its entirety:
In considering the [TXDOT’]s Motion to Dismiss for Lack of Jurisdiction, the Court has reviewed the motion, response, all supplements of each, other evidence on file, and the pleadings. The Parties stipulated that all the signs in [Primary Media’s] Petition are from settlements in lieu of condemnation proceedings.
–11– [TXDOT] takes the position that there is no agreement or guarantee because the parties’ signed agreement states “Executing a quitclaim deed and retaining the billboard structure does not guarantee that a relocation permit will be issued.” However, the very next sentence states “In addition to executing the quitclaim deed and retaining the billboard structure, the owner must follow and meet the current relocation permitting guidelines found in 43 TAC 21.192, et seq.” The signed agreement also provides for reasons the Plaintiff would not be eligible for a relocation permit.
[TXDOT] also claims there could never be a breach of contract claim based on the failure to issue a relocation permit because issuance of a permit is a governmental function, not a contract. Yet [TXDOT’s] Amended Guidance for Impacted Off-Premise Billboards Affected by Highway Transportation Projects dated June 9, 2016, provides procedures to be followed with specific reference to language in the deed, which, is derived from the agreement reached in lieu of condemnation.
Further, [TXDOT’s] rejection letters lay out provisions in the agreements and/or deeds that allegedly were not complied with by [Primary Media].
The Court finds that [TXDOT’s] Motion to Dismiss for Lack of Jurisdiction is hereby DENIED.
This appeal followed.
ANALYSIS
In a single issue, TXDOT argues that, because Primary Media failed to
establish a waiver of sovereign immunity, the trial court should have dismissed the
case for want of jurisdiction.
Standard of Review
We review an order denying a plea to the jurisdiction de novo. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004); City of McKinney
–12– v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 109 (Tex. App.—Dallas 2013, no pet.).
A plea to the jurisdiction can challenge the sufficiency of the claimant’s pleadings
or the existence of necessary jurisdictional facts. Miranda, 133 S.W.3d at 226–28;
Hank’s Rest. Grp., 412 S.W.3d at 109. Here, TXDOT asserted that Primary Media
failed to demonstrate that the allegations in its petition fell within the trial court’s
jurisdiction. As the claimant, Primary Media bears the burden of pleading facts that
affirmatively demonstrate that governmental immunity has been waived and that the
court has subject-matter jurisdiction. Hank’s Rest. Grp., 412 S.W.3d at 109; see City
of Dallas v. Turley, 316 S.W.3d 762, 767 (Tex. App.—Dallas 2010, pet. denied).
We construe the pleadings in the claimant’s favor and look to the pleader’s intent.
Miranda, 133 S.W.3d at 226. If the pleadings do not contain enough facts to
demonstrate the propriety of jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the claimant should be afforded the opportunity to
amend. Id. at 226–27. This opportunity shall be given after a court determines that
the pleadings are insufficient. Lazarides v. Farris, 367 S.W.3d 788, 803–04 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). But if the pleadings affirmatively negate
the existence of jurisdiction, the plea may be granted without giving the claimant an
opportunity to amend. Miranda, 133 S.W.3d at 227.
Governmental immunity is a common-law doctrine. City of Dallas v. Albert,
354 S.W.3d 368, 373 (Tex. 2011). It applies to political subdivisions of the State,
while the immunity of the State itself is referred to as sovereign immunity. Id. at
–13– 372 n.2. “When performing governmental functions, political subdivisions derive
governmental immunity from the state's sovereign immunity.” City of Houston v.
Williams, 353 S.W.3d 128, 134 (Tex. 2011) (footnote omitted). Governmental
immunity comprises both immunity from liability and immunity from suit. Albert,
354 S.W.3d at 373. “Immunity from liability protects entities from judgment while
immunity from suit deprives courts of jurisdiction over suits against entities unless
the Legislature has expressly consented . . . .” Id. Thus, the legislature can waive a
political subdivision’s governmental immunity. See id. at 374 (“[W]aivers of
sovereign immunity or consent to sue governmental entities must generally be found
in actions of the Legislature.”).
Governmental immunity is not unlimited. Generally, a claim falls within the
scope of governmental immunity if the claimant seeks either to control government
action or to subject the governmental entity to liability. Hank’s Rest. Grp., 412
S.W.3d at 111. But “a governmental entity does not have immunity from suit for
monetary claims against it that are ‘germane to, connected with, and properly
defensive to’ affirmative claims made by the entity, to the extent the claims against
the entity offset the entity’s claims.” Albert, 354 S.W.3d at 372 (quoting Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 378 (Tex. 2006)). Also, “suits for
injunctive relief may be maintained against governmental entities to remedy
violations of the Texas Constitution.” City of Elsa v. M.A.L., 226 S.W.3d 390, 392
(Tex. 2007) (per curiam) (internal quotation and citation omitted). Nevertheless, the
–14– State does not waive immunity from suit simply by contracting with a private party.
Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002).
Without specific identification of promissory language in the record, Primary
Media has argued TXDOT promised that Primary Media was entitled to relocation
permits under the terms of the quitclaim deeds. However, none of the quitclaim
deeds or other documents contain such a promise. The quitclaim deeds themselves
made no mention of relocation permits. The initial offer letters with respect to each
property set forth procedures for applying for relocation permits but expressly stated
that “[e]xecuting the quitclaim deed and retaining the billboard structure does not
guarantee that you will get a relocation permit.” The final offer letters related to
parcels 48 and 60 stated that, “[a]s outlined in the State’s initial offer letter,” Primary
Media would be eligible for a relocation permit only if it quitclaimed its billboard
structure to the State, retained that structure, and then applied for a relocation permit.
Memoranda of agreement related to parcels 16 and 23 provided, in keeping with the
initial offer letters, that executing a quitclaim deed and retaining the billboard
structure “does not guarantee that a relocation permit will be issued.” A November
2020 Rule 11 agreement between the State and Primary Media regarding a
settlement in lieu of condemnation on parcels “60/60E and 61” stated that Primary
Media “maintains its eligibility for relocation permits under Texas Department of
Transportation’s regulations” provided that Primary Media remained in compliance
with all other provisions of the agreement and TXDOT regulations. The notices to
–15– vacate associated with each parcel provided that the failure to remove the retained
improvements would result in “the loss of eligibility for a relocation permit for the
outdoor advertising sign.”
In its response to TXDOT’s motion to dismiss, Primary Media asserted that,
if it had not settled with TXDOT and executed the quitclaim deeds and other
agreements, it would have been entitled to adequate compensation in eminent
domain. Primary Media quoted Trant v. Brazos Valley Solid Waste Management
Agency, Inc., 478 S.W.3d 53, 62 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied) for the proposition that “[w]hen a governmental entity is exposed to suit—
such as through a claim seeking compensation for a governmental taking—because
of a waiver or lack of immunity, it cannot nullify that waiver or lack of immunity by
settling the claim with an agreement on which it cannot be sued.” See also Texas A
& M Univ.–Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex. 2002). Primary Media
argued that “[a]n agreement to convey property to a governmental authority for a
public purpose has the same effect as a formal condemnation proceeding,” quoting
City of Carrollton v. Singer, 232 S.W.3d 790, 798 (Tex. App.—Fort Worth 2007,
pet. denied). Based on these authorities, Primary Media asserted that courts have
held on several occasions that governmental entities are not entitled to immunity
from suit in actions for breach of settlement agreements reached in lieu of eminent
domain proceedings. See id. at 800.
–16– Trant is instructive to our analysis. In Trant, the Trants entered into an option
contract with the cities of Bryan and College Station, pursuant to which the cities
obtained the right to purchase approximately 382 acres of land in Grimes County
from the Trants. Trant, 478 S.W.3d at 56. The option contract stated: “[the cities]
contemplate using the Property as a . . . Landfill.” Id. The cities subsequently
purchased the property, and the parties executed a general warranty deed, which
incorporated the “Terms, Conditions, and Representations” in the option contract.
Id. at 56–57. The cities and the Trants also signed an easement agreement for access
granting the Trants non-exclusive access to their land adjacent to the property. Id.
at 57.
The cities formed the agency, a governmental entity that operated a landfill
on the property. Id. In 2014, the Trants learned that the cities had decided to put a
firing range on a portion of the property near their land. Id. The Trants sent a letter
to the cities and the agency, contending that the property could be used only as a
landfill. Id. Counsel for the agency responded by letter that while the option contract
contemplated an intended use of the property as a landfill, the contract did not restrict
the cities’ use of the property to such purpose. Id.
The Trants filed suit against the agency, bringing claims including a breach
of contract claim. Id. The agency filed a plea to the jurisdiction, asking the trial
court to dismiss the suit on the basis that governmental immunity barred the Trants’
–17– claims. Id. The Trants argued that the general warranty deed included a restrictive
use covenant allowing the land to be used only as a landfill. Id. at 60.
The Trant court determined the Trants failed to raise a material issue of fact
as to the agency’s violation of a restrictive use covenant in the general warranty deed
or option contract because those documents did not include a restrictive use covenant
providing that the cities agreed to use the property as a landfill, only language
reflecting how the cities anticipated using the property. Id. (emphasis in original).
The court addressed the Trants’ argument that the purported unauthorized use of the
easement and the property for purposes other than as a landfill constituted an
unconstitutional taking of the property and rejected this argument because the
agency was not required to use the property as a landfill. Id. at 61–62.
The court next addressed the Trants’ contention that their sale of land to the
cities was tantamount to a formal condemnation proceeding that was settled by the
Trants’ agreement to sell the property, the purpose of their lawsuit was to enforce
the parties’ settlement agreement, and the agency was not immune from such suits.
Id. at 62. The Trant court stated that, when a governmental entity is exposed to
suit—such as through a claim seeking compensation for a governmental taking—
because of a waiver or lack of immunity, it cannot nullify that waiver or lack of
immunity by settling the claim with an agreement on which it cannot be sued. Id.
(citing Lawson, 87 S.W.3d at 521). To illustrate, the court went on to state that the
Fort Worth Court of Appeals held that a city did not have governmental immunity
–18– for a breach of contract claim involving the breach of an agreement in settlement of
a condemnation claim because the governmental entity would not have had
immunity from the underlying takings claim. Id. (citing Singer, 232 S.W.3d at 799–
800). The court noted that, in holding that the City was not immune from suit, the
Singer court observed in the absence of the settlement agreement, “the [plaintiffs]
would have [had] a claim against the City for adequate compensation for the City’s
[taking] of their property . . . for which the City would not be immune.” Id. at 62–
63 (citing Singer, 232 S.W.3d at 800). Ultimately, the Trant court concluded it need
not decide whether the Option Contract was, as alleged by the Trants, a settlement
of a condemnation claim because the Trants had not raised a material issue of fact
regarding whether the contract was breached. Id. at 63.
The Trant court observed that the Trants alleged only that “the Option
Contract specifically limited the taking of each tract of property for ‘the
construction, operation, and maintenance of a solid waste facility and landfill’” and
“[s]ince all takings and transfer set forth herein were made pursuant to condemnation
or the threat of condemnation, [the agency] has waived its right to sovereign or
governmental immunity.” Id. As the court had already explained, the contract
contained no such limitation. Id. Accordingly, the Trants did not allege an
unconstitutional taking for which the agency would not be immune as a basis for the
trial court’s jurisdiction. Id. (citing Singer, 232 S.W.3d at 800); see also Kaufman
Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied)
–19– (“Although governmental immunity does not shield a governmental entity from a
valid takings claim, it does apply when a plaintiff does not allege a valid takings
claim.”). Because the court concluded the agency was immune from suit under the
circumstances of that case, the court affirmed the trial court’s judgment granting the
agency’s plea to the jurisdiction and dismissing the case for want of jurisdiction. Id.
at 65.
Similarly, here the quitclaim deeds did not mention relocation or relocation
permits, and the other documents associated with the State’s acquisition of the four
parcels acknowledged the possibility of Primary Media obtaining relocation permits
but either expressly stated TXDOT did not guarantee that Primary Media would get
a relocation permit or merely indicated that Primary Media would be eligible for a
relocation permit under certain circumstances. Because none of the deeds or other
documents indicate that TXDOT was contractually obligated to issue Primary Media
relocation permits, we conclude Primary Media has not raised a material issue of
fact regarding whether the contracts were breached3 and we need not, therefore,
decide whether the quitclaim deeds and other documents constituted a settlement of
a condemnation claim. See id. at 63. Accordingly, Primary Media did not allege an
unconstitutional taking for which the agency would not be immune as a basis for the
3 To the extent Primary Media relies on representations made by “TXDOT’s agent” to show that the parties agreement included an agreement that Primary Media would be allowed to relocate its signs, we reject this argument. The parol evidence rule bars consideration of evidence that contradicts, varies, or adds to the terms of an unambiguous written agreement. Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 483 (Tex. 2019). –20– trial court’s jurisdiction. See id. Thus, on this record, we conclude the trial court
erred in denying TXDOT’s motion to dismiss for lack of jurisdiction.
To the extent Primary Media complains of TXDOT’s application of its
regulations concerning relocation permits to the parcels at issue, again, on this
record, the trial court similarly lacked jurisdiction over those claims as well. See
Lamar Advantage Outdoor Co., L.P. v. Texas Dep’t of Transportation, No. 14-20-
00362-CV, 2022 WL 1498213, at *9 (Tex. App.—Houston [14th Dist.] May 12,
2022, no pet.) (mem. op.) (Government Code Section 2001.0038 does not confer
jurisdiction over the courts to determine whether an agency has complied with a rule
or how a rule should be applied) (citing LMV-AL Ventures, LLC v. Texas Dep’t of
Aging & Disability Servs., 520 S.W.3d 113, 124–25 (Tex. App.—Austin 2017, pet.
denied)). We sustain TXDOT’s single issue.
We reverse the trial court’s judgment and render judgment dismissing Primary
Media’s claims for want of jurisdiction.
/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN 221273F.P05 JUSTICE
–21– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TEXAS DEPARTMENT OF On Appeal from the 439th Judicial TRANSPORTATION, Appellant District Court, Rockwall County, Texas No. 05-22-01273-CV V. Trial Court Cause No. 1-21-1352. Opinion delivered by Justice PRIMARY MEDIA GROUP, INC., Goldstein. Justices Garcia and Miskel Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:
Primary Media Group, Inc.’s claims are DISMISSED for lack of jurisdiction.
It is ORDERED that appellant TEXAS DEPARTMENT OF TRANSPORTATION recover its costs of this appeal from appellee PRIMARY MEDIA GROUP, INC.
Judgment entered August 13, 2024.
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