566 S.W.3d 385
Tex. App.2018Background
- A billboard was installed decades ago on Lot 268A in the Village of Briarcliff; the Village owned Lot 268A when the sign was placed.
- In 2002 the Village and the Marina owners (Clendenins) executed a Master Agreement, Easement Agreement, and two license agreements: the Village granted the Marina (and successors/assigns) a license to display the billboard on Lot 268A and received an easement/right to install a raw water line.
- The Clendenins later assigned their interest to Triple BB; the Village subsequently conveyed Lot 268A to third parties without mentioning the billboard license; Phillips later acquired the lots and demanded removal of the sign.
- Triple BB sued Phillips and later added the Village, alleging breach of contract, prescriptive easement, inverse condemnation (takings), and seeking a declaratory judgment voiding the Contract; Phillips obtained summary judgment; the Village filed a plea to the jurisdiction asserting governmental immunity.
- The district court granted the Village’s plea to the jurisdiction; on appeal the court considered whether governmental immunity barred Triple BB’s claims or the claims fell within a waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Village acted in a proprietary (not governmental) capacity when it entered the Contract | The Contract involved improving water facilities and granting a license; operation/maintenance of a public utility is proprietary under TTCA | The Contract as a whole concerned water intake/treatment and raw water lines—part of providing water service, an enumerated governmental function | Village acted in governmental capacity when entering the Contract; immunity applies |
| Whether Local Gov’t Code § 271.152 waives immunity for Triple BB’s breach-of-contract claim | The easement and associated duties constitute a contract for services within § 271.152 so waiver applies | The easement conveyed a property interest, not a promise to perform services; Chapter 271 requires the government receive a contractual right to a service | § 271.152 does not apply; no waiver because easement/license are not contracts for services |
| Whether Triple BB has a prescriptive easement that can be adjudicated against the Village | Triple BB argues it acquired a prescriptive easement while Village owned Lot 268A and thus the claim does not implicate state immunity | Suits to establish rights in land against a governmental owner are barred absent waiver | Claim to establish an easement in land is effectively a "suit for land" and is barred by governmental immunity |
| Whether Triple BB pleaded a viable inverse condemnation (takings) claim | Triple BB contends the Village’s failure to convey Lot 268A subject to the license amounted to a taking of its property rights | The Village contends Triple BB failed to allege an intentional governmental act causing an uncompensated taking; mere oversight/negligence is insufficient | Triple BB failed to allege the requisite intentional act or substantial certainty of harm; takings claim not viable, immunity remains |
| Whether UDJA supplies waiver so court can void the Contract | Triple BB seeks declaratory relief that the Contract is void, arguing UDJA allows adjudication | UDJA is procedural and does not expand jurisdiction where sovereign/governmental immunity bars the claim | UDJA does not waive immunity here; claim to void contract is barred |
Key Cases Cited
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (distinguishes immunity from suit and from liability; framework for governmental immunity)
- Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016) (discusses governmental vs. proprietary functions in contract context)
- Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) (function classification focuses on capacity when contract was entered)
- Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829 (Tex. 2010) (interpretation of "services" under Chapter 271)
- City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014) (governmental immunity does not bar a properly pleaded takings claim)
- Texas Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162 (Tex. 2013) (if plaintiff cannot establish viable takings claim, immunity remains)
- Zachry Constr. Corp. v. Port of Houston Auth., 449 S.W.3d 98 (Tex. 2014) (contracting with government waives liability but not necessarily immunity from suit)
- Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697 (Tex. 2002) (describes easement as conveyance of a property interest)