City of Corinth v. NUROCK DEVELOPMENT, INC.

petition to craft its to avoid the tempted CORINTH, The Nevertheless, CITY OF

mandatory venue statute. Texas, Appellant cause of action is described how the Airvantage, is not decisive. See parties L.L.C., (citing 269 S.W.3d at 258 Bracewell Fair, (Tex.App.- DEVELOPMENT, INC., Nu NUROCK writ)); 1982, no

Houston see Dist.] [1st Corporation, Ridge Rock NDG-Tower Bristol, generally 74 S.W.3d at 159 n. Ridge LLC Tower Corinth controversy Essentially, the heart Ltd., Appellees. if Thorp

Etoco’s assertion had dis- No. 2-07-422-CV. Etoco the mineral he closed to interests located, developed would have “[Etoco] Texas, Appeals Court of for the benefit of prospect [Etoco] this Fort Worth. profits realized the net that resulted there- The suit contests relators’ enti- from[.]” July develop tlement to the mineral interests County. purpose

Harris suit is right to establish that Etoco had the develop prospect its own benefit to the exclusion of relators’ interests. This depends rightful ownership

claim on the property. real

Conclusion rightful ownership When of real property prerequisite must be decided aas requested, mandatory

to the relief ven Co., governs. ue statute See Renwar Oil 776; Co., 276 S.W.2d at Madera Prod. dispute 659-60. Because this essentially the rightful ownership over County,

an interest in in Harris land sec tion requires litigated 15.011 claim be County. petition Harris for writ of conditionally granted. mandamus is the trial will are confident that court with draw its order previous and transfer the only

case. The writ will issue if the trial comply opinion. court fails to with this WRIT CONDITIONALLY GRANTED. Olson, Adkins,

Taylor, Elam, Sralla & L.L.P., Sralla, Barrett, Tim G. Daniel R. Worth, Quast, TX, Fredrick “Fritz” Fort for Appellant.

Loewinsohn, L.L.P., Flegle, Deary, & Jim L. Flegle, Farquhar, Carol E. P. Wil- Stark, Dallas, TX, liam Kelsey, Kelsey & Collister, Sr., Denton, H. Kelsey, Richard TX, Appellees. CAYCE, C.J.; LIVINGSTON,

Panel: J.; (Senior and DIXON W. HOLMAN Justice, Retired, Sitting by Assignment).

OPINION CAYCE,

JOHN Chief Justice. In this interlocutory appeal, appellant, (the City the of Corinth City), challenges the trial plea court’s denial of its to the on sovereign grounds against claims appel- asserted Inc., lees Development, NuRock NuRock Corporation, LLC, Ridge NDG-Tower (collec- Ridge and Tower Corinth Ltd. NuRock). tively, part affirm in part. reverse and dismiss in Background I.

This appeal City’s arises from the al leged agreement breach of a settlement City between the and NuRock which parties the in an settled NuRock’s claims lawsuit, earlier Develop federal NuRock ment, (the Inc. v. City Corinth Federal Action).1 Action, In the Federal NuRock sought damages injunctive relief from disputes stemming from efforts NuRock’s to develop and construct an affordable housing project Ridge called Tower Co 4:04CV277, (E.D.Tex. 2004). July 1. No. 2004 WL 3358814 (the building permits issue or certificates of Apartments). rinth claimed City buildings. violated both the Federal for the occupancy apartment the Texas Fair Housing Fair Act2 and City’s request, At the the trial court rea- Housing Act3 because actions ligned parties so that NuRock was Apartments were intended regarding plaintiff City and the defendant. mi families with children and to exclude July In the trial entered a court takings also asserted a norities. NuRock NuRock, temporary injunction for which constitution,4 the Texas claim under appeal. injunction did not claim.5 as a section 1983 well required stop refusing to issue agreement, as 2005 settlement April temporary occupancy certificates of on the (the July Settlement amended grounds that the im- Ridge Tower Road provided that NuRock would Agreement), provements had not been completed. Apartments speci- to certain construct In June plea filed fications, acquire would cer- jurisdiction alleging immunity. sovereign along Ridge Tower right-of-ways tain The trial court denied the plea and this Road, specified that NuRock would make appeal followed. Road, Ridge to improvements Tower $120,000.00in place NuRock would escrow II. Standard of Review improvements, as collateral for the and ruling review the trial on a court’s City pay would NuRock the the plea jurisdiction immunity to based on $120,000.00. parties agreed to dismiss from suit under a de of novo standard began Action and NuRock the Federal In reviewing plea review.6 the denial of a Apartments. construction of the jurisdiction, the to we do not review the NuRock in in City sued state court merits of the case.7 2006, April alleging that NuRock breached Agreement failing plea jurisdiction the Settlement to When a to the the in place challenges pleadings, funds escrow. filed the we determine if City’s alleged on the the pleader alleged counterclaims based has facts that affirma Agreement, tively of the Settlement breaches demonstrate the court’s relief, seeking damages, injunctive and a the cause.8 hear We construe declaratory judgment. NuRock pleadings liberally plaintiffs asserted favor of the that, despite Agreement, the Settlement look to the If pleader’s and intent.9 interfering delaying pleadings with do and not contain sufficient facts to Apartments, particular- affirmatively construction of the demonstrate the trial court’s ly by refusing perform inspections jurisdiction, affirmatively or but do dem- Inc., (2003). Mart, §§ U.S.C. 7. See State v. Fiesta 233 S.W.3d (Tex.App.-Houston 53-54 [14th Dist.] (Vernon § Prop.Code 3. Tex. 301.021 denied) pet. (citing Bayou Chocolate 2007). Supply Water Co. & v. Tex. Natural Sand Res. Comm’n, Conservation Const, I, § 4. Tex. art. denied)). (Tex.App.-Austin (2003). § 5. 42 U.S.C. Miranda, 8. See 133 S.W.3d at 226. Dep't 6. See Tex. & v. Mi Parks Wildlife randa, (Tex.2004); Id.; Singer, 232 S.W.3d at 795. Singer, Carrollton v. denied). (Tex.App.-Fort Worth (2) (even jurisdiction, immunity liability incurable defects from if onstrate legislature given pleading sufficiency expressly issue is one of has consent suit).15 “Immunity oppor- should be afforded the from plaintiffs liability defense, an affirmative tunity pleadings to amend.10 If the affir- while immunity deprives from suit a court of matively jurisdic- subject matter negate the existence ju tion, then plea jurisdiction may a to the be risdiction.”16 plaintiffs without granted allowing The City possesses immunity from However, to amend.11 if a opportunity Although suit and from liability.17 gov plea jurisdiction challenges the exis- entity ernmental like the waives its facts, jurisdictional we tence consider liability immunity when it contracts parties relevant evidence submitted citizens, private with it does not waive its jurisdiction- necessary when to resolve from suit solely by entering into raised, trial al as the court is re- issues Rather, such a contract.18 express legisla to do.12 quired tive consent in clear unambiguous lan show guage required to that immunity Immunity III. Governmental from a breach of contract suit has been A. Settlement waived.19 issues, Texas A & M University-Kingsville

In its In first and second Lawson,20 from asserts that it plurality had of the Supreme of the NuRock’s claims for breach Settle Court Texas concluded when a Agreement, ment which settled the Feder settles a entity claim for Housing among waived, al Fair Act claim others.13 immunity which from suit has been immunity protects govern immunity Governmental from suit is also waived for a mental entities from for damages agreement.21 lawsuits breach the settlement legislative The plurality absent consent.14 doctrine The reasoned that “when gov- immunity encompasses of governmental entity ernmental is to suit exposed because (1) concepts: immunity immunity, distinct a waiver nullify two it cannot (barring suit waiver legisla by settling lawsuit unless that the claim with an suit) expressly gives agreement ture its consent to on which it cannot be sued.”22 Miranda, Dev., County 133 226-27. 10. S.W.3d at 18. See Catalina Inc. v. El Paso, (Tex.2003); 121 S.W.3d 705 Gen. Co., Id. at 227. 11. Servs. Comm’n v. Insulation Little-Tex 39 (Tex.2001). 594 12. Id. (Ver- § See 19. Tex. Gov't Code 311.034 2008); Supp. County non Travis & Pelzel §§ 42 13. See U.S.C. 3617. Assocs., Inc., (Tex.2002). 248 Univ., Sign See Fed. 14. v. Tex. S. (Tex.2002). 20. 87 S.W.3d 518 (Tex. 1997); 405 Singer, 232 S.W.3d at 795. at 21. Id. 521-22. 405; 521; Sign, Singer, See Singer, Fed. at 22. Id. at see also S.W.3d at Lawson, (stating S.W.3d at that in "the [Supreme Texas] Court of determined that a Singer, (quoting entity exposed S.W.3d at Mi that has been randa, 224). liability 133 S.W.3d at a claim for which from suit has been immunity regain waived cannot enter- 795; Singer, ing (emphasis 17. See into a that claim" see also settlement of omitted)). Sign, 951 Fed. S.W.2d at 405. second, City asserts that Lawson does not in

The is inherent ‘[i]t plead- sovereignty here because NuRock has not nature of not apply to be amenable in any in this action state law claim the to the suit of an ed individual without ”26 underlying Federal Action for which im- consent.’ Under Eleventh Amend- ment, The munity agencies was waived.23 reasons State of Texas and its to are holding Lawson is limited immune from claims on federal based law, immunity by Legisla- waivers of the Texas whether brought federal or state law, court, ture under state and that because absent either a clear indication a claim in the Congress NuRock did assert Fed- United States that it intends immunity which the abrogate immunity eral Action for afforded to law, waived under state there is no basis states under the Eleventh Amendment to Constitution,27 finding a waiver of from the federal or a waiver of the Federal immunity by Legislature.28 settlement of Action.24 the Texas City’s argument is based on Eleventh immunity, Amendment however, concepts of federalism that are embod does not municipalities. extend to ied in the Eleventh Amendment Supreme] “[T]he [United States Court has United States consistently Constitution.25 Su refused to construe the [Elev preme of the Court United States has Amendment to protection enth] afford pre political stated that the Eleventh Amendment subdivisions such as counties and “first, supposes municipalities, two ideas: that each State though even such entities ”29 sovereign entity is a in our system; federal exercise a ‘slice of power.’ state Ac Amendment); 23. The also contends because Law- tion five of Fourteenth Univ. of plurality opinion, binding Henera, son is a it is not Tex. at El Paso v. we should not follow it. Whether the filed) ("Fed (Tex.App.-El Paso not, already correct or this court has elected eral have courts over federal plurality. Singer, to follow the Lawson See or state law claims a state or state 232 S.W.3d at 800. agency unless Eleventh Amendment expressly has been waived the state or City only 24. The asserts that the state statute abrogated by Congress pursuant proper to arguably immunity that could have waived its authority.”) (citing constitutional in the Federal Action was the Texas Fair Hoff (Tex. Act, County, Nueces Housing but that the does not actual- Act 2004)). ly immunity. Prop.Code waive See Tex. (Vernon 2007). §§ 301.001-.171 Because of disposition City’s our of the first and second See, e.g., Sys. Koseoglu, 28. Tex.A & M Univ. issues, we need not and do not address this (Tex.2007) (holding Tex.R.App. assertion. See P. 47.1. immunity that because state has not waived money damages against federal claim Const, 25. U.S. amend. XI. § based on implicated Lawson is not Maine, 706, 729, 26. Alden v. 527 U.S. agreement claim that state official breached 2240, 2254, (1999) S.Ct. 144 L.Ed.2d 636 claim). settling § 1983 Louisiana, 1, 13, (quoting Hans v. 134 U.S. 504, 506, (1890)). S.Ct. 33 L.Ed. 842 Estates, Country 29. Reg'l Lake Inc. v. Tahoe 391, 401, Planning Agency, 440 U.S. 99 S.Ct. See, e.g., Idaho v. Coeur d'Alene Tribe of 1171, 1177, (1979); 59 L.Ed.2d 401 see also Idaho, 261, 279, 521 U.S. 117 S.Ct. 529, County Luning, Lincoln 133 U.S. (1997) (explaining 138 L.Ed.2d 438 363, 363, (con- (1890) 10 S.Ct. 33 L.Ed. 766 damages state is not immune from claim for cluding immunity that Eleventh Amendment Congress under Title VII federal because can States, abrogate only immunity Eleventh extends to not to Amendment counties or exercising powers municipal corporations). when remedial under sec I, notwithstanding compensable taking the fact under article cordingly, sec- tion 17 of the Texas constitution.33 may enjoy immunity from Feder- the State claims, City Act Housing al Fair has It undisputed is that the Tower Ridge from such claims.30 part Road construction was of the consid- NuRock voluntarily promised eration to Therefore, City because the has no im- provide the context of the Settlement munity Fair against NuRock’s Federal Thus, Agreement. City accepted claims, and, City Housing Act because improvements NuRock made to the road a claim for breach of is not immune from NuRock, under color of contract with its agreement settling claim for which it pursuant and not powers its of eminent immunity, City has no we hold that the is, therefore, City domain. The not sub- not immune from NuRock’s claim for I, ject liability under article section 17 of the Settlement Agreement.31 breach of the Texas constitution.34 City’s overrule the first and second contends, however, that be- issues. cause the breached the Settlement improvements before the were B. Inverse Condemnation made, the agreement longer was no en- issue, In its third ar forceable, and, therefore, re- gues that the trial court did not have quirements improvements that the be com- jurisdiction exaction-type over NuRock’s But, pleted illegal taking. constitute an inverse condemnation claim because Nu- City’s alleged breach the agreement agreed Rock to make improvements is immaterial to whether the had the Ridge Tower Road which are the basis requisite intent improvements to take the takings claim. The concedes that agreement when the was executed.35 it does not have from a valid City’s alleged may While breach have But, takings govern claim.32 when the excused NuRock from the im- making ment entity’s taking pursuant to color- provements,36it does alter the fact that contract it rights, improvements agreed able does not constitute were to well be- Rose, 356, 376-77, Comm’n, 30. See Howlett v. U.S. See Gen. Servs. 39 S.W.3d at 598. 2430, 2443, (1990) 110 S.Ct. 110 L.Ed.2d 332 (holding sovereign immunity that state law Holland, 33. See State v. defense is not available to school board in Const, (Tex.2007); I, § see Tex. art. brought § 1983 action in state court that oth erwise has when such defense Holland, 34. See State v. 221 S.W.3d at 644. brought would not be available if action were court); Volpe, in federal see also Keith v. 858 (holding at 643 wheth- See id. that focus is 467, Cir.1988) (9th (citing F.2d 482 U.S. v. "requisite er the state has the intent” to take Parma, 562, (6th 661 F.2d 572 Cir. public property for use when the contract is 1981), denied, 926, cert. 102 456 U.S. S.Ct. formed). 1972, (1982)); People Helpers, 72 L.Ed.2d 441 Richmond, F.Supp. Inc. v. 789 Mustang Pipeline Pipeline (E.D.Va.1992) 36. See Co. v. Driver ("[Mjunicipalities ‘per 734 are Co., (Tex.2004) ("It 134 196 is a S.W.3d sons’ who can be sued under the [federal] Act.”). Housing Fair principle fundamental of contract law that party when one to a contract commits a mate- Koseoglu, (sug- 31. See 233 at S.W.3d 838-39 contract, party is rial breach of that the other gesting that breach of settlement claim based discharged perform- or excused from further agreement settling on federal claim for which ance.”). implicate was waived would Law- ). son alleged party breach occurred.37 We tal units in which a fore the seeks declara- tion clarify rights third to a statute or sustain the issue. under

regulation, Declaratory for which the Declaratory Injunctive Relief C. and Judgments provides Act a waiver of immu- nity, in which request and suits for issue, In its fourth asserts declaratory relief is no more than a recast- the trial court should have dismissed Nu- ing money damages, of a claim for for declaratory injunc- for Rock’s claims which provide the Act does not a waiver of tive relief. immunity.41 Declaratory Relief NuRock asserts that it seeking Declaratory The Uniform declaratory relief to construe a legislative ju Judgments Act38 does extend the act attempts categorize to courts; it only provides risdiction of Texas Agreement the Settlement as the equiva which a procedure by may trial court lent of a statute or municipal ordinance. within already cases court’s “decid[e] [the] disagree. The Settlement Agreement, Thus, a jurisdiction.”39 declaratory judg however, contract, is a not a statute. Stat only ment claim can be maintained where utes or ordinances legislative enacted justiciable controversy there is a between designed bodies are to address ques broad parties rights as their and status public policy tions of promulgate actually would res declaration laws that subject govern those olve.40 power ment’s must follow in future cond Supreme of Texas distin- Court has uct.42 The Settlement clearly Instead, guished against governmen- between suits lacks these characteristics. it me- declaratory judgment challenging agen 37. NuRock that Town contends Flower state Estates, Ltd., Mound v. cy’s compulsory construction of school at Stafford (Tex.2004), compels a different result be- law), tendance with Tex.Natural Res. Conser Supreme permitted cause the Texas Court IT-Davy, vation Comm'n v. developer takings in that maintain a case to (Tex.2002) (plurality op.) (holding though developer cause of action even plaintiff court lacked where "voluntarily” completed roadway im- sought agency declaration that state breached provements and transferred them to the town. contract, "only claim ... was such Contrary reading Stafford, to NuRock's attempt have the trial court decide its however, developer's construction of the breach-of-contract claim which [for improvements voluntary, in that case was not waived]”); was not see also de Miño v. Sheri but, instead, protest made under was "at ev- dan, (Tex.App.-Houston ery level in the Town.” administrative Id. pet.) (concluding [1st Dist.] re quest declaratory "merely relief recast[J and, [plaintiff's] Tex. Civ. 38. See Prac. & Rem.Code Ann. defamation claims” there (Vernon 2008). fore, §§ 37.001-011 proper scope "not within die of an relief”). declaratory action for Phillips, 39. Chenault v. (Tex. Morales, 1996) (quoting State v. Rylander, 42. See Macias v. (Tex. 1994)); see Tex. also 1999, ("Gener (Tex.App.-Austin pet.) 833 no §§ & Civ. Prac. Rem.Code Ann. 37.001-011. ally, agency legis an administrative in acts a capacity ques lative when it addresses broad 40. See Tex. Ass'n v. Tex. Air Bus. Control of Bd., 440, (Tex. 1993). public policy promulgates 852 S.W.2d 446 tions of rules application part for future ‘to all or some of Compare Agency Leeper, 41. Tex. Educ. v. 893 ”). subject power.' those to its 432, 1994) (Tex. (holding S.W.2d 446 that jurisdiction plaintiff sought court had where

369 act specific specif- City’s approval morializes a to resolve a of of occupancy certificates ic, and, dispute specific par- between for the is Apartments ripe isolated not there- fore, It no or that the jurisdiction ties. establishes rule law all trial court had no to the public grant members of must adhere to in the relief. NuRock contends that Thus, future the City conduct.43 Settlement because the failed challenge to Nu- injunctive involves the construction of a Rock’s request for relief its contract, interpretation plea the a plea not of stat- to supplemental jurisdic- tion, City ute. seek cannot relief from that request in this appeal.46 disagree. sought declaratory NuRock relief that it materially did not breach Settlement Ripeness implicates subject Agreement or otherwise meet fail to jurisdiction.47 matter obligat This court is obligations City. per- This is a not subject ed to jurisdiction, consider matter of Declaratory Judgments missible use even when it was not raised in the trial Consequently, Act.44 or court asserted either on party app Declaratory not waived to NuRock’s eal.48 Judgments Act claim.45 ripe A case is when facts have Injunctive Relief developed sufficiently an injury has sought permanent also occurred to likely or is occur.49 A case is injunctive City. Specifi ripe relief if injury contingent or rem it cally, City asked that be possibility ordered ote.50 The of future arbitrary arbitrarily cease and capricious desist from and and concerning “[t]o conduct capriciously applying Apartments the ordinances and is too remote to support a variances therefrom of the claim for permanent injunction. Co Accord injunc- rinth.” The contends that the we ingly, request conclude that NuRock’s sought and, tive relief NuRock regarding permanent ripe for a injunction is not See, Mayhew Montemayor, e.g., Sunnyvale, 43. See ins. v. Beacon Nat’L Co. Town of 260, 922, (Tex.1998), denied, (Tex.App.-Austin 268-69 964 S.W.2d rt. ce pet.) (holding declaratory judgment U.S. 119 S.Ct. 143 L.Ed.2d (1999). action not available insurer because series of letters and draft consent decree are not a purposes authorizing "rule” for of statute de- Bus., 48. See Tex.Ass’n 852 S.W.2d at 445- claratory judgment agency action to construe 46; Gibson, Indep. see also Waco Sch. Dist. v. Macias, rules); ("In at 833 deter- (Tex.2000) (holding mining agency whether an administrative jurisdictional grounds plea not raised in acting legislative judicial capacity, in a or we can raised for time be first on imple- ask whether the administrative action interlocutory appeal); Dominguez see also public policy only ments broad or concerns Worth, 02-06-00196-CV, Fort No. affected.”). parties immediately (Tex.App.-Fort 2008 WL at *3 & n. 16 6, 2008, denied) (mem. op.) Worth Mar. 855-56; IT-Davy, (considering immunity argument at See de raised for Miño, interlocutory appeal noting 176 S.W.3d at 368. time first “[gjenerally, challenge subject mat- time”). jurisdiction may any ter be raised IT-Davy, 45. See 74 S.W.3d at 855-56. 49. Patterson v. Planned Parenthood Hous VSC,LLC, 46. See Dallas Tex., Inc., ton & Se. grant- (Tex.App.-Dallas (Tex. 1998). reh'g) ed)(op (holding appellate on court interlocutory jurisdiction only has to consider plea jurisdiction). issues that were to raised Id. to

therefore, Act include juris- that trial court lacked Construction request. We sustain the over that entities.55 diction City’s fourth issue. . legislature In of the definition light in the “person” the word Code given has Attorney’s Fees D. Act, legisla- that the fact Construction issue, that its fifth asserts In to use the word “individual” ture chose attorney’s to fees NuRock is not entitled 38.001, “per- instead of the word section declaratory judgment or under either its son,” clear intent to legislative indicates a breach of the Settlement government entities those exclude Because we conclude agree. claims. attorney’s may be against whom fees re- declaratory judgment claim that NuRock’s Moreover, the statute. covered under dismissed, there is basis for must be municipali- legislature expressly exempted pursuant fees to the NuRock to recover under sec- being “corporation” ties from Declaratory Act.51 Judgments incongruous tion It would be to 38.001.56 NuRock, however, it asserts that nonetheless, legislature, conclude that may attorney’s recover fees under section municipalities include implicitly meant to 38.001(8) of the Texas Civil Practice Accordingly, under term “individual.” provides This section Remedies Code.52 38.001(8) does we hold that section person may recover reasonable “[a] recovery attorney’s fees authorize fees attorney’s from individual or cor City. fifth for ... ... if the claim is an oral poration issue is sustained. contract.”53 NuRock asserts or written individual” pur is “an for Conclusion 38.001(8). We disagree. of section poses not immune from NuRock’s defined in “Individual” is not section Agree- breach of the Settlement claims for or in Act. 38.001 the Code Construction court, therefore, properly The trial ment. International Dictio- Webster’s Third New City’s plea as “a denied nary single defines “individual” mean erred, The trial court how- to this claim. being contrasted with a social human as ever, “Person,” by denying City’s plea or on the group institution.”54 hand, claim, for takings requests de- broadly in the NuRock’s other defined Code Assets, New OAIC L.L.C. v. 54. Webster's Third International Dictio 51. See Commercial L.P., (2002). nary Stonegate Village, denied)' (holding (Tex.App.-Dallas 311.005(2) party standing bring § where lacked Gov’t Code Ann. See Tex. action, 2005) (" declaratory (Vernon judgment party corpora- could not ’Person’ includes Declaratory tion, attorney’s government governmen- under organization, recover fees or trust, Act); Judgments Waldroff, Cytogenix, agency, Inc. v. or tal subdivision business es- association, trust, (Tex.App.-Houston tate, partnership, any [1st denied) (holding party legal entity."). Dist.] other may attorney’s not recover fees under Declar- atory Judgments 5.904(a) where claim declara- Act § Gov’t Ann. 56. See Tex. Loc. Code claim). tory relief mirrored breach of contract (Vernon 2008) ("A may not municipality be corporation a state statute under considered governing corporations 52. See Tex. Prac. & Rem.Code the statute ex- Civ. unless 38.001(8) (Vernon 2008). § municipality application to a ex- tends its 'municipal corporation,’ press term use of the 'town,' ”). ‘village.’ ‘city,’ /¿.(emphasis 'municipality,' or supplied).

371 relief, claratory injunctive suit, and and at- from immunity for majority observes torney’s Accordingly, that governmental fees. we affirm that do entities not automat- part denying of the trial court’s order ically waive immunity from suit simply by City’s plea Id.; Nu- to the as to entering into contracts. see Catalina Dev., Agreement. Rock’s breach of Settlement v. Paso, Inc. County El of 704, (Tex.2003). of part denying reverse that the order S.W.3d City’s plea takings to NuRock’s as However, under chapter 271 of the local claim, requests declaratory injunc- code, government party provides when a relief, fees, attorney’s tive and for goods government, or services to a local dismiss those claims. government the local immunity waives from suit well for the of purpose adjudi- LIVINGSTON, J., a concurring filed cating a claim for breach of the contract if opinion. properly contract is authorized and LIVINGSTON, Justice, TERRIE executed. See Tex. Loc. Gov’t Code Ann. concurring. (Vernon §§ 2005);1 271.151-.152 Singer, majority 795 n. 4. The failed concur in

I the result reached to note this statutory exception in its majority, separately clarify but I write broad statement lack regarding of immuni- express disagreement with some of ty from suit breach of contract claims. majority statements contained While NuRock did explicitly rely on opinion majori- and to emphasize chapter 271 as a argument basis for its ty’s holding precedent does not affect the about Corinth’s immunity, waived several by previous opinion established our from courts, court, including our supreme are court, City Singer. Carrollton of remanding chapter cases where 271 likely 790, (Tex.App.-Fort Worth applies. 2007, denied) (following Tex. A & M Lawson, Univ.-Kingsville v. 87 S.W.3d example, For the Dallas Court of Ap 518, (Tex.2002) (holding 522-23 that when peals remanded two different cities’ fire entity a governmental exposed to suit fighters’ cases Grand Prairie and of of immunity, because a waiver it cannot Dallas, respectively, to allow the trial court subsequently deny settle suit and an opportunity to determine whether sec

waiver of immunity for enforcement there- tions might apply. 271.151-.160 See Bell of)). Prairie, 317, Grand 221 S.W.3d of Chapter government 271 of local 2007, 323 n. 4 (Tex.App.-Dallas pet.) code (op. reh’g); Albert, on City Dallas v. of majority 631, opinion acknowledges 2006, 636-37 (Tex.App.-Dallas like entities Corinth waive pet. granted) (op. on see reh’g); also liability they Outdoor, when enter Houston Clear Channel Inc., 386, (Tex.2006) into contracts with Ma- private citizens. 386-87 jority op. at discussing city’s 365. And (holding that remand proper give 2005) 23, 2005, R.S., The waiver May for a claim Leg., under 79th [Act chapter applies retroactively to contracts § ch. 2005 Tex. Gen. Laws executed before the effective date of stat- 1549]; Mexia, Tooke v. ute, September sovereign immunity if (Tex.2006); Boyer, Trinity Inc. v. respect had not been with claim waived Tex., (Tex. River Auth. before date. See Tex. Loc. Gov't Code filed). App.-Fort Worth (Vernon §§ historical 271.152-.154 note the I would also instruct jurisdiction, the oppor immunity of of waiver

proponent of applicability the applies court to determine chapter trial argue that tunity to immunity McMa from retroactively); on waiver of this statute applies it because Carroll Contracting, L.P. See Tex. Loc. Gov’t Code suit. hon of (same). (Tex.2006) ton, 197 S.W.3d 387 §§ 271.151-.160. in cases were that the cited recognize I dismissal of Corinth’s effect of the revisions to when the process appellate the affirmative claims to this opposed place, 271 took chapter cited Reata Construction NuRock also after filed until case, not even which was II”) (“Reata Dallas Corporation However, should not we date. its effective of immunity waived its argue that Corinth when filed: this case posture the of ignore the claim for a breach of for the NuRock’s plaintiff against original was Corinth own by asserting its agreement action—breach of of contract settlement very breach agree now seeks of that monetary claim for a breach the Settlement —it (Tex.2006). April in first filed suit ment. 197 S.W.3d to avoid. Corinth its an- time NuRock filed that it has by stating At the responded Corinth challenged jurisdic- swer, had not affirmative Corinth all of its claims for withdrawn first assert- II, the time Corinth tion. And of Reata reasoning and that the relief in June jurisdiction, to the plea its ed oth parties to assert private allows which discovery on file and were pleadings all as offsets immunity-barred claims erwise complete. recovery, entity’s governmental a 377. Al apply. Id. at cannot therefore Furthermore, regarding the the issue discuss the majority did not though 271 was before the chapter of applicability II, with disagree I of Reata effect raised its regardless. Corinth trial court entity may to notion that a jurisdiction, plea in its applicability it has lost answer, tally regain amended in its seconded by simply affirmative summary judgment. claims through filing motion alternative claims fact, alternatively nonsuiting asserted those dismissing In Corinth or 271.153(b) could apply, could which a litigation; process section in the such much later of from some protect entity participate serve Corinth would allow be excluded it claimed would damages loss and flies any risk of litigation without Gov’t See Tex. Local chapter itself. proce supreme court’s in the face of 2005) (ex- (Vernon 271.153(b) §Ann. Code law. See rules and related case dural dam- consequential exemplary cluding (stating a dismissal shall P. 162 Tex.R. Civ. 271). On recovery chapter under ages party right of an adverse prejudice the record, can not tell whether we this claim for relief or pending regarding it statute when applied this trial court costs); Reyn to tax right of the trial court jurisdiction. plea to denied Corinth’s (Tex. 141, 145 Murphy, olds denied); see App.-Fort Worth lack only concedes majority opinion Joachim, Co., 279 Ins. v. Travelers also theoiy: that the un- immunity on one of (Tex.App.-Amarillo upon based breaches derlying suit was filed). Dallas v. Al But see Act wherein a Housing Fair the Federal bert, (Tex.App.-Dallas maintained from suit is state’s reh’g) (holding (op. on pet. granted not. immunity from suit is city’s but counter “the now withdrawn affirming the trial at 367. In Majority op. trial of the form the basis claims cannot plea to judgment denying Corinth’s court’s jurisdiction”); imminent, court’s Dallas v. prevention nonspeculative cf. (Tex. Saucedo-Falls, future conduct is indeed a valid purpose 2005), rev’d, App.-Dallas an injunction, ripeness only requires a (Tex.2007). an showing injury that is likely to occur. See Patterson Planned Parenthood reasons, I agree For these with the ma- of Tex., Inc., 439, Houston & Se. jority’s disposition of first Corinth’s and (Tex.1998); 442 Democracy Coal. v. them, by second but I overruling issues of Austin, 282, (Tex.App. 296 disagree with the upon limited basis which pet.). -Austin no that disposition was reached. continuing validity Singer of our Preceding request NuRock’s in its

opinion pleading that Corinth and its representa- tives be enjoined arbitrarily and ca- notes, majority governmental

As the a priciously applying Corinth’s ordinances may entity waive by from suit variances, and NuRock alleged that its entering breaching and an agreement that construction and leasing apartments of its settles a claim for which the did not entity had already delayed because, been in sum- Lawson, immunity. have 87 at S.W.3d (1) mary, arbitrarily Corinth and canceled 518, 522-23; majority see For op. at 365. (2) perform inspections, refused to Corinth instance, when a governmental entity en permits refused to issue and of certificates into a contract ters under the threat of and occupancy for reasons not contemplated by in lieu proceedings, of condemnation for and in parties’ agree- contravention entity which does immunity, not have (3) ment settling case, their federal entity does not have for a Corinth refused to meet with NuRock’s breach that Singer, contract. representatives about issues Nu- related to agree S.W.3d at 798-800. I with the ma Rock’s construction. And to a expression contrary jority’s its resolution Co brief, reply statement in Corinth’s third issue that rinth’s en plead did “immediate tity’s irreparable inju- act under rights colorable contract ry” based on Corinth’s taking allegedly wrongful alone cannot be a and that immuni situation, ty applies such a I continued interference in but note NuRock’s devel- opment inverse project. circumstance —where entity enters contract with a threat of a I believe that pleading, NuRock’s when taking colorable not immu maintain —does liberally as required by construed our nity for a breach of a contract that re review, provided standard of the trial court 367; solves the threat. See at majority op. with a sufficient basis to an determine that Holland, (Tex. State v. likely injury to occur similar future 2007); Singer, 232 S.W.3d at 800. Corinth, conduct I and would hold ripeness of NuRock’s claim for in- allegations comprise type whether the junctive relief of harm would in- entitle NuRock to junctive I concerns the Nu-

Finally, agree cannot relief merits of majority with the claim, not the ripeness claim Rock’s of the claim. injunctive NuRock’s for relief is adjudication. Hays County Hays not See ripe majority op. County for See Water- (Tex. Planning P’ship, at 369-70. The majority holds that “possibility App.-Austin pet.); Bay arbitrary capri future no Tex. cf. Hill, Worth, concerning Cherry cious conduct L.P. v. Apartments Fort support is too remote to for a a claim 394 (Tex.App.-Fort Worth permanent injunction.” But pet.) (concluding Id. no that a claim an eminent domain injunction City of because the ripe was not

action stated that it would expressly Fort Worth authority); domain not exercise its eminent City Mansfield, Coble pet.) (Tex.App.-Fort Worth taking claim was (holding regulatory that a City of had ripe because the Mansfield ordinance apply not acted to at issue However, I property). because specific majority’s decision to dis believe claim appellees’ injunctive relief miss inde supported by against Corinth in its ground argued Corinth pendent (related proper brief injunctive relief defendant for when not involve constitutional injunction does violations), majority’s with the I concur

disposition overruling that claim. See M.A.L., Elsa of (Tex.2007); Sharyland Alton Supply Corp., Water filed) (Tex.App.-Corpus Christi reh’g); Meroney City Colley (op. on ville, (Tex.App.-Fort judgm’t granted, Worth vacated w.r.m.). stated, only I

For reasons concur judgment dispo- with the majority’s sition of this appeal.

In the Interest of S.L.M. and

W.G.M., Minor Children.

No. 05-08-01277-CV. Texas, Appeals Court of Dallas. July Minshew, Norris, Angela D. Robert W. &

Kennedy Campbell, & Minshew Sher- man, TX, Appellant.

Case Details

Case Name: City of Corinth v. NUROCK DEVELOPMENT, INC.

Court Name: Court of Appeals of Texas

Date Published: Jul 30, 2009

Citation: 293 S.W.3d 360

Docket Number: 2-07-422-CV

Court Abbreviation: Tex. App.