565 S.W.3d 69
Tex. App.2017Background
- The Dallas/Fort Worth International Airport Board (the Board) is a special-purpose governmental entity created by contract between Dallas and Fort Worth with exclusive authority to operate DFW Airport.
- Board staff had delegated authority to execute contracts up to $50,000; in 2012 staff retained Vizant Technologies under a 36-month consulting agreement to reduce credit-card processing costs.
- The contract capped Vizant’s compensation at $50,000 and contained a “good faith effort” clause that staff would seek Board approval to increase the cap if needed.
- Vizant performed and claimed fees exceeding $50,000; staff requested a $330,000 limit increase, which the Board denied; the Board paid only $50,000.
- Vizant sued for breach of contract, fraudulent inducement, fraud-in-performance, promissory estoppel, and attorney’s fees; the Board filed a plea to the jurisdiction asserting governmental immunity for the tort and promissory-estoppel claims.
- The trial court denied the plea; the Board appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument (Vizant) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Whether the Board’s hiring of Vizant and performance of the contract are governmental or proprietary functions for immunity purposes | The hiring and services were discretionary and could be performed by a private party, so they are proprietary (no immunity) | Operation of the airport (including contracting to reduce processing costs) is a governmental function entitling the Board to immunity | Activity was part of airport operation — a governmental function; immunity applies to tort and contract generally |
| Whether sovereign immunity is waived for breach-of-contract claims | Contract was properly executed on the Board’s behalf; waiver under Local Gov’t Code §271.151–.153 applies | Argues contract cannot require payment beyond $50,000 and contest authorization for excess | Legislature waived immunity for breach-of-contract claims where a written contract is properly executed; waiver applies here (but recovery limited by statute) |
| Whether promissory-estoppel claim is covered by waiver | Board’s staff promised to seek approval to increase cap; Vizant relied to its detriment | Promissory-estoppel is not among the waivers in §271.152; immunity bars such claims | Promissory-estoppel claim barred by governmental immunity (no waiver) |
| Whether fraud claims (intentional torts) are barred by immunity | Fraud claims arise from the same course and should survive | Intentional torts are excluded from Tort Claims Act waiver; immunity applies | Fraud claims barred by sovereign immunity and dismissed for lack of jurisdiction |
Key Cases Cited
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for reviewing plea to jurisdiction and construing pleadings in plaintiff’s favor)
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (trial court may consider evidence when resolving jurisdictional issues)
- Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016) (distinguishing governmental vs. proprietary functions and application to immunity)
- Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cty., 449 S.W.3d 98 (Tex. 2014) (interpretation of local-government contract-waiver provisions)
- Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) (refusal to recognize waiver-by-conduct exception)
- Dallas/Fort Worth Int’l Airport Bd. v. Ass’n of Taxicab Operators, USA, 427 S.W.3d 547 (Tex. App.-Dallas 2014) (describing Board as a special-purpose governmental entity)