TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00149-CV
Triple BB, LLC, Appellant
v.
The Village of Briarcliff, Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-13-001749, HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Triple BB, LLC, appeals from an order of the district court granting the plea to the
jurisdiction filed by the Village of Briarcliff, Texas (Village). The underlying litigation concerns
Triple BB’s asserted right to keep a billboard on cliffside property owned by Malcolm Phillips in the
Village. The Village asserted in its plea to the jurisdiction that Triple BB had failed to establish a
waiver of the Village’s governmental immunity from suit. In its live pleading, Triple BB asserted
claims against the Village for a prescriptive easement, breach of contract, and inverse condemnation,
and sought declaratory relief nullifying a contract with the Village concerning the billboard. For the
reasons that follow, we will affirm the district court’s order granting the Village’s plea to
the jurisdiction. BACKGROUND
The Village is a municipality located on the shores of Lake Travis. Over three
decades ago, the Briarcliff Marina erected a billboard attached to a cliffside property lot in
the Village:
More specifically, the billboard is located on Lot 268A, directly below Lot 268 on Briarcliff Drive.
The Village owned Lot 268A at the time of the placement and for several decades afterwards.
In 2002, the Village entered into a contract with James and Linda Clendenin, then
owners of the Marina. Their agreement consisted of a Master Agreement, which laid out the basic
terms of the contract; an Easement Agreement; and two license agreements (collectively, the
Contract). Under the Contract, the Marina granted the Village an easement across the Marina’s land
to install and maintain a raw water line along the route of a preexisting line. The Marina also agreed
to modify the location of a separate easement granting the Marina access to a roadway. In return,
2 the Village granted “to the Marina, it successors and assigns” a license to display the billboard on
Lot 268A and agreed to repair the Marina’s parking lot at the Village’s expense.1
Three years later, the Clendenins sold the Marina and all their interest in the Contract
to Triple BB.2 The Village subsequently conveyed Lot 268A to Richard and Shirley Flowers, the
owners of Lot 268. The deed from the Village is silent as to the billboard or the license granted in
the Contract. In 2011, the Flowers sold Lots 268 and 268A to Phillips who, in turn, demanded that
Triple BB remove the billboard.
Triple BB filed suit against Phillips seeking a declaration of its rights under the
Contract, a permanent injunction to keep the billboard in place, and an award of attorney’s fees.
Phillips filed a motion for summary judgment arguing that the License Agreement was unenforceable
against him. Before the district court ruled on Phillips’s motion, Triple BB added the Village as a
defendant and asserted the same claims. The district court subsequently granted Phillips’s motion
for summary judgment, in effect deciding that Phillips did not have to allow Triple BB to display the
billboard. The Village then filed a plea to the jurisdiction asserting that Triple BB had failed to
establish a waiver of its governmental immunity.
Triple BB responded by amending its pleadings to assert that it acquired a prescriptive
easement to display the billboard that is binding on Phillips. In addition, Triple BB asserted that the
Village breached the Contract by failing to convey Lot 268A subject to its license and alleged that
1 The Village granted a second license for a sign at a different location. 2 The Clendenins assigned their interest to Triple BB Marina, Ltd. The record reflects that Triple BB, LLC, is the general partner of Triple BB Marina, Ltd. The parties do not dispute that Triple BB, LLC, is the successor-in-interest to the Clendenins.
3 the Village therefore took its property—the land subject to the raw water line easement—without
compensation in violation of the Texas Constitution. Triple BB also sought declaratory relief based
on its alternate theory that the Contract was void for failure of consideration. The district court
granted the Village’s plea to the jurisdiction. This interlocutory appeal ensued. See Tex. Civ. Prac.
& Rem. Code § 51.014(a)(8) (conferring jurisdiction over interlocutory appeal of order granting or
denying plea to the jurisdiction filed by a governmental unit).
STANDARD OF REVIEW
Governmental immunity has two components: immunity from suit and immunity
from liability.3 Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Governmental immunity
from suit deprives a court of subject matter jurisdiction over claims against political subdivisions
of the State, including municipalities, absent legislative waiver. Id. And if the legislature elects to
waive immunity, it must do so by clear and unambiguous language. Nazari v. State,
___ S.W.3d ___, ___, No. 16-0549, 2018 WL 3077659, at *3 (Tex. June 22, 2018) (citing Tex.
Gov’t Code § 311.034)). Immunity from suit implicates a court’s subject matter jurisdiction, and
it is properly asserted in a plea to the jurisdiction. Harris Cty. v. Annab, 547 S.W.3d 609, 612
(Tex. 2018).
3 Sovereign immunity and governmental immunity are related common-law doctrines which protect the government from suit. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018). “Sovereign immunity protects the state and its various divisions, such as agencies and boards, from suit and liability, whereas governmental immunity provides similar protection to the political subdivisions of the state, such as counties, cities, and school districts.” Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011). Even though governmental immunity applies here, we cite to several authorities involving sovereign immunity.
4 Whether a court possesses subject matter jurisdiction is a question of law that we
review de novo. Id. We begin our analysis by examining the plaintiff’s live pleadings to determine
if it alleges facts which affirmatively demonstrate subject matter jurisdiction. Alamo Heights Indep.
Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We construe the plaintiff’s pleadings
liberally, take all factual allegations as true, and look to the plaintiff’s intent. Houston Belt
& Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). We may also consider
evidence relevant to jurisdiction and must do so when necessary to resolve the jurisdictional issue.
Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012).
DISCUSSION
Triple BB asserts in a single issue that the district court erred in granting the plea to
the jurisdiction because governmental immunity does not protect the Village from its claims.
Proprietary or Governmental Function
We briefly pause to address Triple BB’s argument—raised for the first time in a reply
brief—that immunity does not apply at all because the Village acted in a proprietary capacity when
it executed the Contract. Governmental immunity applies to municipalities such as the Village
“when performing ‘governmental’ as opposed to ‘proprietary’ functions.” City of Austin v. Utility
Assocs., 517 S.W.3d 300, 307 (Tex. App.—Austin 2017, pet. denied). The Texas Supreme Court
recently decided that in determining whether immunity applies, we defer to the legislature’s
definition of specific activities as governmental or proprietary in the Tort Claims Act. Wasson
Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 439 (Tex. 2016); see Tex. Civ. Prac. & Rem.
5 Code § 101.0215. Relying on the legislature’s designation of “the operation and maintenance of a
public utility” as a proprietary function, Triple BB argues that immunity does not apply because the
Village entered the Contract to upgrade the capabilities of its water treatment facility. See Tex. Civ.
Prac. & Rem. Code § 101.0215(b)(1). We disagree because section 101.0215(a) specifically defines
the provision of “water and sewer service” as a governmental function. Id. § 101.0215(a)(32). The
Master Agreement recites that the Village “desires to make certain improvements to its water intake
and treatment facilities” by acquiring an easement for the raw water line due to population increases.
We conclude that the Village acted in a governmental capacity.
Prescriptive Easement
Triple BB asserts that its claim of a prescriptive easement over Lot 268A does not
implicate the Village’s immunity because it “does not involve state action.” As a general rule, when
the government “is made a party defendant to a suit for land,” immunity bars the suit absent
legislative consent. See Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex.
2011) (quoting State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961)). Even though Phillips now owns
Lot 268A, Triple BB alleges that it obtained a prescriptive easement when the Village still owned
it. “An easement ‘is a nonpossessory interest [in land] that authorizes its holder to use the property
for only particular purposes.’” Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018) (quoting
Marcus Cable Assocs., v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)). By granting an easement, a
landowner “relinquish[es] a portion of the right to exclude” others from its land. Marcus Cable
Assocs., 90 S.W.3d at 700. Triple BB’s claim that it gained the right to use the Village’s land to
display the billboard is, in substance, a “suit for land” that is barred by governmental immunity.
6 See City of Dallas v. Turley, 316 S.W.3d 762, 773 (Tex. App.—Dallas 2010, pet. denied) (barring,
on governmental-immunity grounds, UDJA action against City to establish that City had abandoned
certain easements); State v. Beeson, 232 S.W.3d 265, 271-72 (Tex. App.—Eastland 2007, pet.
dism’d) (barring, on sovereign immunity grounds, UDJA action against State to establish easement
in real property).
Breach of Contract
Next, Triple BB asserts that Section 271.152 waives the Village’s immunity from suit
for its breach-of-contract claim.4 In the alternative, Triple BB asserts that the Contract is a settlement
agreement and that Texas A & M University—Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002)
(plurality op.), precludes the Village from claiming immunity from suit for breach.
Section 271.152
Section 271.152 of the Local Government Code provides a “limited waiver of
immunity for local governmental entities that enter into certain contracts.” Sharyland Water Supply
Corp. v. City of Alton, 354 S.W.3d 407, 412 (Tex. 2011). Specifically, a local governmental entity
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 § 271.152. The statute defines a “contract subject to this
4 “A governmental entity that enters into a contract ‘necessarily waives immunity from liability, voluntarily binding itself like any other party to the terms of agreement, but it does not waive immunity from suit.’” Zachry Const. Corp. v. Port of Hous. Auth. of Harris Cty., 449 S.W.3d 98, 121 (Tex. 2014) (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)).
7 subchapter” as “a written contract stating the essential terms of the agreement for providing goods
or services to the local governmental entity.” Id. § 271.151(2)(A).
Triple BB argues that the grant of an easement alone qualifies as a contract for
service. Chapter 271 does not define the term “service,” but the Texas Supreme Court has explained
that it “is broad enough to encompass a wide array of activities.” Kirby Lake Dev., Ltd. v. Clear
Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010). In common usage, the term “includes
generally any act performed for the benefit of another under some arrangement or agreement
whereby such act was to have been performed.” Id. (quoting Van Zandt v. Fort Worth Press,
359 S.W.2d 893, 895 (Tex. 1962)). Chapter 271 does not extend to contracts in which the
government receives an indirect or attenuated benefit. Id. For that reason, Chapter 271 does not
apply unless the governmental entity has a right under a contract to receive a service. Lubbock Cty.
Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 303 (Tex. 2014).
Triple BB argues that the easement qualifies as a service because the Village has the
contractual right to make use of Triple BB’s land to the Village’s benefit. “However, we cannot read
the meaning of ‘services’ so broadly that the requirement is read completely out of the statute.” West
Travis Cty. Pub. Util. Agency v. Travis Cty. Mun. Util. Dist. No. 12, 537 S.W.3d 549, 555 (Tex.
App.—Austin 2017, pet. filed). By conveying an easement, the Clendenins granted the Village a
legal right to use their land in a certain way. See Marcus Cable Assocs., 90 S.W.3d at 700. They
made no promise to perform an act. On these facts, Chapter 271 does not apply to waive the
8 Village’s immunity.5 See Water Expl. Co. v. Bexar Metro. Water Dist., 345 S.W.3d 492, 501-03
(Tex. App.—San Antonio 2011, no pet.) (concluding that section 271.152 did not apply to
real-property lease when the lessee’s agreement to perform certain acts was entirely contingent); City
of San Antonio v. Reed S. Lehman Grain, Ltd., No. 04-04-00930-CV, 2007 WL 752197, at *2 n.2
(Tex. App.—San Antonio Mar. 14, 2007, pet. denied) (mem. op.) (holding section 271.152
inapplicable to easement contract because it “conveyed only an interest in real property to the City
and is not an agreement for providing goods and services”).
Settlement Agreement
Triple BB alternatively characterizes the Contract as an agreement to settle a claim
against the Village. Triple BB relies heavily on Lawson arguing that the Contract’s status precludes
the Village from asserting immunity.
In Lawson, a plurality of the Texas Supreme Court decided that when a governmental
unit “agrees to settle a lawsuit from which it is not immune,” it cannot “claim immunity from suit
for breach of the settlement agreement.” 87 S.W.3d at 518.6 The Village responds that Lawson does
5 Triple BB also asserted what it characterized as a separate claim for attorney’s fees under section 271.153 of the Local Government Code. Triple BB argues on appeal that section 271.153 provides a separate waiver of immunity. Section 271.153 addresses the damages available in a breach-of-contract action including “reasonable and necessary attorney’s fees that are equitable and just.” Tex. Loc. Gov’t Code § 271.153(a)(3). Section 271.152 incorporates section 271.153’s limitations on recovery, but section 271.153 does not provide its own waiver of immunity. See Zachry Const. Corp., 449 S.W.3d at 109. The district court did not err in granting the Village’s plea to the jurisdiction on Triple BB’s claim for attorney’s fees. 6 Lawson was a plurality opinion but “subsequent Texas Supreme Court holdings have followed it.” Hughes v. Tom Green Cty., No. 03-16-00132-CV, 2017 WL 1534203, at *3 n.7 (Tex. App.—Austin Apr. 20, 2017, pet. granted) (mem. op.).
9 not apply because there is no indication that the Contract settled a claim against the Village. Triple
BB points to the affidavit of Thomas Maione, Triple BB’s owner, who averred that the Contract was
“the result of the settlement of a dispute between the Clendenins, the Marina and the Village.”
Maione never specified the nature of the claim that was allegedly settled or provided any further
details. Moreover, the Contract itself does not reflect the settlement of a claim against the Village.
On these facts, Lawson does not prevent the Village from claiming immunity. See City of San Saba
v. Higginbotham, No. 03-17-00408-CV, 2018 WL 2016463, at *2 (Tex. App.—Austin May 1, 2018,
no pet.) (mem. op.) (reiterating that Lawson “only applies when the government is sued for breaching
a settlement agreement when the government was not immune from the underlying claim”); Texas
Dep’t of Health v. Neal, No. 03-09-00574-CV, 2011 WL 1744966, at *4 (Tex. App.—Austin
May 6, 2011, pet. denied) (mem. op.) (declining to extend Lawson to cases where the government
“settled a claim that, at that point in time, had no adjudicative value in our court system” (quoting
Donna Indep. Sch. Dist. v. Gracia, 286 S.W.3d 392, 395 (Tex. App.—Corpus Christi 2008,
no pet.))).
Declaratory Relief
Triple BB’s fourth argument is that the Uniform Declaratory Judgments Act (UDJA)
itself waives immunity for its claim that the Contract is void.
The UDJA permits parties interested in a contract to have determined any question
of validity arising under the contract. Tex. Civ. Prac. & Rem. Code § 37.004(a). However, except
for a narrow waiver of immunity for claims challenging the validity of ordinances or statutes the
UDJA generally does not enlarge a court’s jurisdiction. Ex parte Springsteen, 506 S.W.3d 789, 799
10 (Tex. App.—Austin 2016, pet. denied). Rather, the UDJA is “merely a procedural device for
deciding cases already within a court’s jurisdiction.” Sawyer Tr., 354 S.W.3d at 388. As a
consequence, sovereign immunity will bar an otherwise-proper UDJA claim if it would have the
effect of establishing an entitlement to relief against the government for which the legislature has
not waived immunity. Id.; City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007).
Triple BB seeks to nullify the Contract with the Village, but 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, no pet. h.); see Utility
Assocs., 517 S.W.3d at 312 (explaining rationale for governmental immunity in context of claims
to nullify or establish validity of a contract that a governmental unit has already executed). We have
already held that Triple BB has not established an independent waiver of immunity for its other
claims based on the Contract. On these facts, Triple BB’s claim that the Contract is void is barred
by governmental immunity. See Carowest Land, 549 S.W.3d at 171; Utility Assocs., 517 S.W.3d
at 312.
Takings Claim
Triple BB’s final assertion is that the district court erred because governmental
immunity does not apply to its inverse condemnation claim. The Texas Constitution provides that
no “property shall be taken, damaged, or destroyed for or applied to public use without adequate
compensation being made.” Tex. Const. art I, § 17(a). This provision applies to an inverse
condemnation claim, “in which a property owner alleges that the government has usurped the use
and value of his or her property, even if it has not completely appropriated title.” Kirby Lake,
11 320 S.W.3d at 844. Governmental immunity does not shield the Village from a properly pled
takings claim. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014). Conversely, if a
plaintiff “cannot establish a viable takings claim,” the government retains immunity, and the court
lacks jurisdiction over the dispute. Texas Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC,
397 S.W.3d 162, 166 (Tex. 2013). The Village argues that the district court did not err because
Triple BB failed to allege a viable claim.
To plead a viable inverse condemnation claim, “a plaintiff must allege an intentional
government act that resulted in the uncompensated taking of private property” for public use.
Carlson, 451 S.W.3d at 831. A taking “cannot be established by proof of mere negligent conduct
by the government.” Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016).
In the context of an inverse condemnation claim, “the requisite intent is present when a governmental
entity knows that a specific act is causing identifiable harm or knows that the harm is substantially
certain to result.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). Triple
BB’s claim is predicated upon the Village’s alleged oversight in failing to convey Lot 268A subject
to Triple BB’s license. Triple BB’s factual allegations, taken as true, do not include an intentional
act by the Village which resulted in the taking of Triple BB’s land. See Kerr, 499 S.W.3d at 799;
Gragg, 151 S.W.3d at 554. Because Triple BB failed to allege a viable takings claim, the Village
retains immunity from suit. See A.P.I. Pipe & Supply, 397 S.W.3d at 166.
CONCLUSION
Governmental immunity “shield[s] the public from the costs and consequences of
improvident actions of their governments.” Tooke, 197 S.W.3d at 332. “But with this benefit
12 comes a significant cost . . . sovereign immunity places the burden of shouldering those ‘costs and
consequences’ on injured individuals.” Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121
(Tex. 2015). Even though we must conclude that the Village is immune from Triple BB’s suit, we
acknowledge the impact of our holding today. We affirm the district court’s order granting the
Village’s plea to the jurisdiction.
_________________________________________ Cindy Olson Bourland, Justice
Before Justices Puryear, Field, and Bourland
Affirmed
Filed: August 15, 2018