589 S.W.3d 204
Tex. App.2019Background
- HCC owned vacant property on Lumpkin Road; HV BTW, LP (Partnership) owned adjacent property and sought an easement across HCC’s lot in 2013.
- The parties executed an Easement Acquisition Agreement with an attached Access Easement and Right of Way Agreement; HCC’s acting chancellor Renee Byas signed and HCC’s general counsel approved as to form.
- Consideration: the Partnership agreed to construct parking facilities on HCC’s property (Partnership performed substantial work, leaving paving and striping unfinished).
- CenterPoint Energy required HCC’s signed “Consent to Encroach” to permit paving; HCC refused unless the arrangement was a license rather than an easement.
- The Partnership sued for breach of contract, specific performance, declaratory relief (easement), and fees; HCC filed a plea to the jurisdiction and the Partnership moved for summary judgment.
- Trial court granted final summary judgment for the Partnership, ordered HCC to file the recorded Access Easement, declared an easement, and awarded attorney’s fees; HCC appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether governmental immunity is waived under Tex. Loc. Gov’t Code ch. 271 so the suit proceeds | Chapter 271 waives immunity because the Easement Agreement is a written contract for services (construction of parking) properly executed on behalf of HCC | HCC claims immunity; contends the agreement is not for services and/or was not properly executed so immunity remains | Waiver applies at this stage: court concludes the agreement is within chapter 271’s scope and fact issues remain on essential terms and execution; plea to jurisdiction denial was proper |
| Whether the Easement Agreement is a contract for services (triggering chapter 271) | Construction of parking facilities is a service benefiting HCC and thus falls within chapter 271 waiver | HCC: easement is an interest in land, not a services contract; no direct benefit to HCC | Held for Partnership: construction of parking as consideration is a service to HCC and falls within chapter 271 |
| Whether the contract states the essential terms (definiteness) required by chapter 271 | Agreement identifies parties, subject, consideration (parking); exhibit contains legal description; substantial performance removes uncertainty | HCC: lacks essential terms (legal description of easement, time, price, scope) rendering it unenforceable | Court: genuine fact issues exist (due to Partnership’s substantial performance and HCC’s acquiescence); essential-term sufficiency is for factfinder on remand |
| Whether the Easement Agreement was properly executed on behalf of HCC (authority to bind HCC) | Byas had apparent/actual authority: historical practice and later board policies delegating authority to chancellor support that chancellors executed easements | HCC: Byas lacked authority in 2013; board approval required for such transactions; later policies do not retroactively validate the 2013 signature | Summary judgment reversed on this ground: Partnership failed to conclusively prove Byas had authority in 2013; execution/authority is a fact issue for trial |
Key Cases Cited
- Lubbock County Water Control & Improvement District v. Church & Akin, L.L.C., 442 S.W.3d 297 (Tex. 2014) (distinguishes waiver of immunity from liability vs. immunity from suit)
- Kirby Lake Development, Ltd. v. Clear Lake City Water Authority, 320 S.W.3d 829 (Tex. 2010) (broad interpretation of “services” under chapter 271)
- City of Houston v. Williams, 353 S.W.3d 128 (Tex. 2011) (identifying essential terms for chapter 271 contracts)
- Hays Street Bridge Restoration Group v. City of San Antonio, 570 S.W.3d 697 (Tex. 2019) (specific performance not foreclosed by chapter 271 waiver)
- Clear Lake City Water Authority v. Friendswood Development Co., 256 S.W.3d 735 (Tex. App.—Houston [14th Dist.] 2008) (construction of facilities can constitute services to a governmental entity)
- City of Houston v. Clear Channel Outdoor, Inc., 233 S.W.3d 441 (Tex. App.—Houston [14th Dist.] 2007) (focus on whether contract was executed on behalf of the governmental entity)