Opinion issued February 13, 2014




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-12-00730-CV
                             ———————————
                    MIDTOWN EDGE, L.P., AND
              MIDTOWN CONDOMINIUMS, L.L.C., Appellants
                             V.
                      THE CITY OF HOUSTON, Appellee


               On Appeal from County Civil Court at Law No. 4
                            Harris County, Texas
                       Trial Court Case No. 1003812


                           MEMORANDUM OPINION

      In this interlocutory appeal, 1 appellants, Midtown Edge, L.P., and Midtown

Condominiums, L.L.C. (collectively, “Edge”), challenge the trial court’s order

granting the plea to the jurisdiction of appellee, the City of Houston (“the City”), in

1
      TEX. CIV. PRAC. & REM CODE ANN. §.51.014(a)(8) (Vernon Supp. 2013).
Edge’s suit against the City for breach of contract, inverse condemnation,

declaratory judgment, and promissory estoppel. In four issues, Edge contends that

the trial court erred in granting the City’s plea.

      We affirm.

                                     Background

      In its petition, Edge alleges that in July 2005, it began construction of a

condominium development project (the “Project”), consisting of ninety-three

residential units, located in the Midtown area of Houston. After Edge applied to

the City for use of its wastewater line, the City responded by letter, dated August 5,

2005, stating that a new wastewater line would need to be constructed because the

existing eight-inch wastewater line in the vicinity of the Project was inadequate to

accommodate the Project’s needs. In its letter, the City listed various “methods” of

financing the new line, noting that it could pay for all or some of the costs of

design and construction, or Edge could choose to pay the costs on its own. If the

City paid any portion of the costs, a contract between the City and Edge, approved

by City Council and executed by the Mayor, would be required. The City noted

that other financing methods could be used, including one in which Edge could

“ask” the City to establish a connection charge for any other property owner

subsequently connecting to the new line. To share the cost of constructing the line,

such an owner would be required to pay a pro rata charge, which would then be

                                            2
forwarded to Edge. The City explained that upon “completion of the construction

of the line and acceptance of the project by the City, the line will be dedicated to

the City of Houston for ownership and maintenance.”

      In its October 31, 2005 letter responding to the City’s letter, Edge stated that

it was “not requesting City of Houston cost sharing participation,” it “underst[ood]

that all cost sharing participation require[d] an approved contract by city council

prior to the construction of the utility,” and it understood that “requesting such

participation may result in the delay of a building permit being issued.”

      Subsequently, the City issued a construction permit, and Edge constructed

the new line at a cost of $224,991.02. Upon completion, Edge dedicated the new

line to the City for its ownership and maintenance.

      At some point, Pierce Street Flats (the “Flats”), a new apartment complex

constructed in the vicinity of the Project, connected to the new line. In 2007, Edge

applied to the City for reimbursement of $48,664, which it alleges was the Flats’s

pro rata share of Edge’s cost to construct the new line. And Edge notified the Flats

that it was responsible for a share of the construction costs of the new line. The

City denied reimbursement, and the Flats disconnected from the new line and

connected to the older eight-inch wastewater line.

      Edge further alleges in its petition that the City’s letter concerning financing

of the new line constituted “a letter agreement,” a “valid, enforceable agreement”

                                          3
between the City and Edge. It asserts that the City breached its obligations “under

this contract” by denying Edge’s request for reimbursement after the Flats

connected to the new line. And it further alleges that the Texas Legislature has

waived the City’s governmental immunity for purposes of such a breach–of–

contract claim. 2

      Edge argues that the City, by denying reimbursement, committed an

unconstitutional “taking” because it intentionally took the new line for the benefit

of the public without compensating Edge and without Edge’s consent. Edge seeks

a judgment declaring that (1) it constructed the line “pursuant to a valid and

enforceable contract and municipal ordinance,” not only for its own benefit, but for

the benefit of the City and the public; (2) the City breached the contract by denying

reimbursement; and (3) the City violated Edge’s rights under the Texas

Constitution by taking Edge’s property without adequate compensation.

Alternatively, Edge asserts a claim for promissory estoppel, alleging that the City

made a promise, upon which Edge relied to its detriment, to reimburse Edge.

Finally, Edge claims that the Flats has been unjustly enriched. 3

      In its answer, the City generally denies Edge’s allegations, and it asserts that

it is immune from suit. In its second amended plea to the jurisdiction, the City
2
      See TEX. LOC. GOV’T CODE ANN. § 271.152 (Vernon 2005).
3
      The Flats is a named defendant in the proceedings below. However, it is not
      subject to the order sustaining the City’s plea to the jurisdiction, and it is not a
      party to this appeal.
                                           4
argues that Edge’s “breach of contract claim is barred by governmental immunity

from suit” because the City’s letter, “which Edge claims is the agreement upon

which its breach of contract claim is based” is not a contract. The City asserts that

Edge’s inverse condemnation claim is barred by immunity, and it argues that there

has not been an unconstitutional “taking” because Edge consented to the City’s

ownership of the new line by dedicating it to the City without objection. Further,

the City asserts that Edge’s claims for declaratory relief and promissory estoppel

are barred by governmental immunity.

      To its plea, the City attached its letter to Edge, Edge’s letter to the City, and

the affidavit of R. Moreno, the City’s Division Manager of the Department of

Public Works and Engineering (the “Department”), Utilities Analysis Section. In

his affidavit, Moreno testified that he reviewed the City’s records and they reveal

that “since September 10, 2008, the date that Houston’s City Council . . .

approv[ed] the pro-rata reimbursement, no permit has ever been issued by [the

City] to any person located within the service area . . . to connect to the [new line]

and no money has been collected for the benefit of [Edge] from any third party.”

He noted that the City issued a permit to Black Finn Restaurant in August 2011 to

connect to a terminating manhole on the new line, but the City did not collect a

connection fee because the restaurant is “not located within the service area.”




                                          5
      The City also attached to its plea the affidavit of R. Mendez, an inspector for

the Department. Mendez testified that the Flats’s contractor had inadvertently

tapped into the new line, the City had not granted the Flats permission to tap into

the new line, the City instructed the Flats to disconnect from the line, and the Flats

complied.

      Further, the City attached to its plea the affidavit of A. Sheridan, a

Department Supervising Engineer, who testified that Edge did not file the

documents necessary to complete its application for establishment of a pro-rata

reimbursement (rate) until July 2008.4 He noted that on September 10, 2008, the

City Council established a rate for connections to the New Line.

      After a hearing, the trial court granted the City’s plea to the jurisdiction and

dismissed Edge’s claims.

                              Plea to the Jurisdiction

      A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004); Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). We review de novo a trial court’s ruling on a

jurisdictional plea. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas

Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex.

4
      Edge sought reimbursement in 2007 for the connection pertaining to the Flats.

                                          6
2006); City of Houston v. Vallejo, 371 S.W.3d 499, 501 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied).

      When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the trial court’s

jurisdiction. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex.

2004). We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent. Id. at 226. If the pleadings do not contain sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively

demonstrate incurable defects in jurisdiction, the plaintiff should be given an

opportunity to amend.        Id. at 226–27. If the pleadings affirmatively negate the

trial court’s jurisdiction, then a plea to the jurisdiction may be granted without

allowing an opportunity to amend. Id. at 227.

      If a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider the parties’ relevant evidence submitted when necessary to resolve the

jurisdictional issues raised. Id. If the evidence creates a fact question regarding

jurisdiction, a plea to the jurisdiction cannot be granted and a factfinder must

resolve the factual issue. Id. at 228. If the relevant evidence is undisputed or fails

to raise a fact issue concerning jurisdiction, the plea to the jurisdiction must be

determined as a matter of law. Id.




                                            7
      When reviewing a plea to the jurisdiction in which the pleading requirement

has been met and evidence, which implicates the merits of the case, has been

submitted to support the plea, we take as true all evidence favorable to the

nonmovant and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor. Id. at 227.

                        Jurisdictional Limits and Ripeness

      As threshold matters, the City argues that the trial court did not err in

granting its plea to the jurisdiction because Edge’s claims exceed the jurisdictional

limits of the county court and they are not ripe for adjudication.

      Jurisdiction in statutory county courts includes “civil cases in which the

matter in controversy exceeds $500 but does not exceed $200,000, excluding

interest, statutory or punitive damages and penalties, and attorney’s fees and costs,

as alleged on the face of the petition.” TEX. GOV’T CODE ANN. § 25.0003(c)(1)

(Vernon Supp. 2013). On the face of its petition, Edge seeks reimbursement of

$48,664 and other unspecified amounts. Thus, Edge states a claim within the

jurisdictional limits of the county court.     Although Edge asserts that it paid

$224,991.02 to construct the new line, it does not seek this amount as its alleged

damages.

      The City argues that Edge’s claims are not ripe because Edge does not

“claim that the City has ever issued a permit to any third party located within the

                                          8
service area to connect to [the new line] or collected any money in accordance with

the terms” of the City Council’s approval of the pro-rata reimbursement.

      Ripeness implicates subject-matter jurisdiction and emphasizes the

requirement of a concrete injury in order to present a justiciable claim. Waco

Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Ripeness concerns

whether, at the time a lawsuit is brought, the facts have developed sufficiently such

that an injury has occurred or is likely to occur, rather than being contingent or

remote. Patterson v. Planned Parenthood of Houston and Se. Tex., Inc., 971

S.W.2d 439, 442 (Tex. 1998); City of Houston v. Norcini, 317 S.W.3d 287, 292

(Tex. App.—Houston [1st Dist.] 2009, pet. denied). To establish that a claim is

ripe based on an injury that is likely to occur, the plaintiff must demonstrate that

the injury is imminent, direct, and immediate, and not merely remote, conjectural,

or hypothetical. Gibson, 22 S.W.3d at 852. By focusing on the concreteness of

injury, the ripeness doctrine allows a court to avoid premature adjudication and

issuance of advisory opinions. Id.

      Here, it is undisputed that the Flats connected to the new line, and, in 2007,

Edge sought reimbursement, which the City declined. In its original petition, Edge

alleged that an injury had occurred because the City allowed the Flats to connect to

the new line without collecting sums owed to Edge.




                                         9
      Considering Edge’s allegations and jurisdictional evidence, taking as true all

evidence favorable to Edge and indulging every reasonable inference and resolving

any doubts in its favor, as we must, we conclude that Edge alleges that a concrete

injury has occurred. Moreover, it is undisputed that, during the pendency of this

suit, Black Finn Restaurant connected to some portion of the new line.

      Accordingly, we conclude that Edge states claims within the trial court’s

jurisdictional limits and they are ripe for adjudication.

                             Governmental Immunity

      Governmental immunity exists to protect subdivisions of the State, including

municipalities like the City, from lawsuits and liability for money damages.

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex.

2008); City of Houston v. Vallejo, 371 S.W.3d 499, 502 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied). The doctrine of governmental immunity encompasses

two distinct concepts: (1) immunity from liability, which bars enforcement of a

judgment against a governmental entity, and (2) immunity from suit, which bars

the suit altogether unless the legislature has expressly given consent. Tooke v. City

of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Breach of Contract

      In its first issue, Edge argues that the trial court erred in granting the City’s

plea to the jurisdiction on its breach-of-contract claim because the Texas

                                          10
Legislature waived the City’s immunity from such suits. See TEX. LOC. GOV’T

CODE ANN. § 271.152.

      A governmental entity waives immunity from liability when it contracts with

private citizens, but it does not waive immunity from suit. Tooke v. City of Mexia,

197 S.W.3d 325, 332 (Tex. 2006); Freedman v. Univ. of Houston, 110 S.W.3d 504,

506 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Generally, a party seeking

redress against a governmental unit for breach of contract must establish legislative

consent to sue by bringing suit under a special statute or obtaining a legislative

resolution. See Tooke, 197 S.W.3d at 332; Freedman, 110 S.W.3d at 506–07.

      The Local Government Code provides that,

      [a] local governmental entity that is authorized by statute or the
      constitution to enter into a contract and 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 ANN. § 271.152; City of Houston v. Williams, 353 S.W.3d

128, 134 (Tex. 2011) (“[Section 271.152] by clear and unambiguous language

waives a governmental entity’s immunity from suit for breach of written

contract.”).

      The parties do not dispute that the City is a governmental entity authorized

to enter into contracts. See Williams, 353 S.W.3d at 135 (determining that City of

Houston is “a local governmental entity . . . that is authorized by statute or the

                                         11
constitution to enter into a contract”). The parties dispute whether they entered

into “a contract subject to this subchapter.” See TEX. LOC. GOV’T CODE ANN.

§.271.152. A “[c]ontract subject to this subchapter” is (1) a written contract, (2)

stating the essential terms of the agreement, (3) for providing goods or services, (4)

to the local governmental entity, (5) that is properly executed on behalf of the local

governmental entity. TEX. LOC. GOV’T CODE ANN. § 271.151(2) (Vernon 2005).

      Edge argues that the following documents, taken together, constitute a

contract under section 271.151(2):

      1. The City’s August 5, 2005 letter to Edge
      2. Edge’s October 29, 2005 letter to the City’s Permit Office
      3. Edge’s October 31, 2005 letter to the City
      4. The City’s April 30, 2008 certificate of final completion
      5. Houston City Council Motion 2008-0698, establishing a pro rata
         reimbursement rate for the new line
      6. City of Houston Ordinances, sections 47–168 through 47–170

See id. “A court may determine, as a matter of law, that multiple documents

comprise a written contract.” Williams, 353 S.W.3d at 137. “When an ordinance

evidences a contract, and is sought to be enforced as one,” it is construed as any

other contract. Id. Documents and ordinances may be read together as a single

agreement. Id.

      We first consider whether the cited documents and ordinances comprise “a

written contract.” TEX. LOC. GOV’T CODE ANN. § 271.151(2). Parties form a


                                         12
binding contract when the following elements are present: (1) an offer, (2) an

acceptance in strict compliance with the terms of the offer, (3) a meeting of the

minds, (4) each party’s consent to the terms, and (5) execution and delivery of the

contract with the intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I.

Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied). “‘Meeting of the minds’ describes the mutual understanding and assent to

the agreement regarding the subject matter and the essential terms of the contract.”

Potcinske v. McDonald Prop. Invs., 245 S.W.3d 526, 529–30 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). No particular words are required to create a

contract. Williams, 353 S.W.3d at 137. To be enforceable, however, a contract

must be sufficiently certain to enable a court to determine the rights and

responsibilities of the parties. T.O. Stanley Boot Co. v. Bank of El Paso, 847

S.W.2d 218, 221 (Tex. 1992).

      Edge argues that the City’s August 5, 2005 letter constitutes an offer. To

prove a valid offer, a party must show (1) the offeror intended to make an offer; (2)

the terms of the offer were clear and definite; and (3) the offeror communicated the

essential terms of the offer to the offeree. Paciwest v. Warner Alan Props., LLC,

266 S.W.3d 559, 569 (Tex. App.—Fort Worth 2008, pet. denied) (citation

omitted).




                                         13
      The City, through its letter, informed Edge that a new wastewater line

extension was necessary, and it directed Edge to have its engineer determine “if the

sanitary sewer extension is feasible and ensure that the sanitary sewer extension

will comply with all City of Houston Specifications and Standards.” The City

noted that if the sewer extension was feasible, “there [were] five (5) options

available” for [Edge’s] proposed construction:

      (1) [Edge] may have the line designed and constructed at [its]
          expense, with or without the participation of nearby property
          owners. If this method is chosen, [Edge] can ask that the City
          establish a connection charge for this sewer, whereby any
          property owner making a connection to the line would be
          required to pay a pro rata share of the cost of constructing the
          line; the pro rata share would be based on the area of the property
          fronting the privately funded sewer.
      (2) [Edge] may enter into an agreement with the City whereby
          [Edge] will pay one hundred percent (100%) of the cost to design
          the line and the City will assume thirty percent (30%) of the
          construction expenses. . . . Changes to Chapter 47 of the Code of
          Ordinances . . . allow the City to establish a connection charge
          for this sewer, whereby any property owner making connection
          to the line would be required to pay a pro-rata share of the
          developer’s portion of the cost of constructing the line . . . .
      (3) [Edge] may enter into an agreement with the City whereby the
          City will pay 100% of the design cost of the line and 70% of
          construction costs . . . .
      (4) [Edge] may enter into an agreement with the City whereby
          [Edge] will pay one hundred percent (100%) of the cost to design
          the line and the City will assume fifty percent (50%) of the
          construction expenses [with pro-rata reimbursement available].
      (5) [Edge’s] request will be placed in a program along with other
          similar projects. The City will install the required sanitary sewer


                                        14
           line when funds become available. There are no immediate plans
           to construct this line.

The City also noted that if it was to participate in the construction of the line, “a

contract between the City and the developer must be approved by Council and

executed by the Mayor.”

      The City left open a number of contingencies. It directed Edge to have its

engineer determine “if the sanitary sewer extension [was] feasible,” and it

informed Edge that, if feasible, there were “methods” available for financing the

project. (Emphasis added.) Edge then had to choose among the various methods.

Thus, the terms of any purported offer were not clear and definite. See Paciwest,

266 S.W.3d at 569. The fact that some of the financing methods required that “a

contract between the City and the developer . . . be approved by Council and

executed by the Mayor” demonstrates that the City did not intend to create a

binding agreement through its August, 5, 2005 letter. In addition, the City noted in

its letter that “the owner can ask that the City establish a connection charge for this

sewer.” Thus, the City did not promise to establish such a connection charge.

      The City also referenced Chapter 47 of the City’s Code of Ordinances.

Section 47-164, “Construction by Developers under Developer Contract,” states

that “the City may share in the expense of construction” and provides for the cost-

sharing methods listed in the letter. See HOUSTON, TEX., CODE        OF   ORDINANCES

§.47-164 (2010). Section 47-168 provides specific procedures for a developer to
                                          15
apply to the City for pro-rata reimbursement. Id. § 47–168 (2000). Section 47-170

states, “For a period of 15 years after acceptance by the department of the

completed off-site main, the permittee shall be entitled to reimbursement for

connections from the proceeds of the pro-rata charges established herein.” Id.

§.47-170 (1996). Section 47-170 also provides a semi-annual payment structure.

Id.

        Although section 47-170 states, “the permittee shall be entitled to

reimbursement,” section 47-168 shows that there is an application process that

must be undertaken prior to being entitled to reimbursement.            Id. § 47-168

(emphasis added). Thus, in its letter, the City could not have promised that Edge

would receive pro-rata reimbursement as there was yet an application process that

Edge was required to undertake after the line was constructed and approved by the

City.

        Further, section 47-167 provides, in pertinent part, that “[i]t is intended by

these provisions merely to furnish to the permittee a means of reimbursing himself

from other private persons similarly situated . . . and not in any manner to obligate

the city to pay or cause to be paid any sum of money on account thereof or to vest

in any persons constructing such main any private right against the city of the

public use.” Id. §.47-167 (1996). Thus, the City expressly disclaimed any intent to

be bound.

                                          16
      Moreover, nothing in Edge’s certificate of completion or the City Council’s

approval of a pro-rata reimbursement rate evidences an intent to be bound to make

payment.

      “A promise, acceptance of which will form a contract, is a manifestation of

intention to act or refrain from acting in a specified way, so made as to justify a

promisee in understanding that a commitment has been made.” Williams, 353

S.W.3d at 138. The documents referred to by Edge, whether read singularly or in

conjunction with one another, do not show that the City intended to be bound to a

specific course of action. Because they do not constitute an offer, Edge’s October

31, 2005 letter cannot operate as an acceptance. And, thus, no contract was

formed.

      We conclude that the requirements of section 271.151 were not met and the

waiver of governmental immunity under section 271.152 does not apply.

Accordingly, we hold that the trial court did not err in granting the City’s plea to

the jurisdiction on Edge’s claim for breach of contract.

      We overrule Edge’s first issue.

Declaratory Judgment

      In its third issue, Edge argues that because it “established the City’s waiver

of immunity from suit under Section 271.152,” the trial court also has jurisdiction

“to entertain Edge’s request for a declaratory judgment.”

                                         17
      The Uniform Declaratory Judgment Act (“DJA”) is a “remedial statute

designed ‘to settle and to afford relief from uncertainty and insecurity with respect

to rights, status, and other legal relations.’” Tex. Natural Res. Conservation

Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (quoting TEX. CIV. PRAC. &

REM. CODE § 37.002(b)).           A declaratory-judgment suit made against a

governmental unit by a plaintiff seeking to establish a contract’s validity, enforce

performance under a contract, or impose contractual liabilities, cannot be

maintained without legislative permission. See id. at 855–56. Private parties

cannot circumvent immunity from suit by characterizing a suit for money damages,

such as a contract dispute, as a declaratory-judgment claim. See id. at 856.

      In its petition, Edge seeks a declaration that

      [Edge], pursuant to a valid and enforceable contract and municipal
      ordinances, constructed the new line not only for its benefit, but for
      the benefit of [the City] and the public, and that [the City] has
      breached this contract by denying [Edge’s] request for reimbursement
      of a pro-rata share of its construction expenses, and [the City] has
      violated [Edge’s] rights under the Constitution of the State of Texas
      by taking [Edge’s] personal property without adequate compensation.

      Thus, as the City argues, Edge seeks a declaratory judgment in an attempt to

have a determination made on its breach-of-contract claim. See id. at 860. Having

held that Edge did not establish a waiver of immunity on its breach-of-contract

claim, its request for declaratory relief cannot be maintained. See id. Accordingly,




                                          18
we hold that the trial court did not err in granting the City’s plea to the jurisdiction

on Edge’s declaratory-judgment claim.

      Accordingly, we overrule Edge’s third issue.

Inverse Condemnation

      In its second issue, Edge argues that “the trial court erred in granting the

City’s plea to the jurisdiction because Edge established a valid takings claim.”

Edge asserts that it “was required to build a new wastewater line, which provides a

benefit for the City’s public use and expansion,” and “the City exacted a benefit

from Edge and should be required to compensate Edge for the same.” See Town of

Flower Mound v. Stafford Estates, L.P., 71 S.W.3d 18, 30 (Tex. App.—Fort Worth

2002) (“Flower Mound I”), aff’d, 135 S.W.3d 620 (Tex. 2004) (“Flower Mound

II”) and Sefzik v. City of McKinney, 198 S.W.3d 884, 895 (Tex. App.—Dallas

2006, no pet.).

      The Texas Constitution prohibits the State from taking private land for

public use as follows:

      No person’s property shall be taken, damaged or destroyed for, or
      applied to public use, without adequate compensation being made,
      unless by the consent of such person.

TEX. CONST. art. I, § 17.        A distinct category of takings occurs when the

government conditions the approval of permits “on an exaction from the approval-

seeking landowner.” Flower Mound I, 71 S.W.3d at 30. Any requirement that a


                                          19
developer provide or do something as a condition to receiving municipal approval

is an exaction. Flower Mound II, 135 S.W.3d at 625.

      In Flower Mound I, as a condition of plat approval, the town of Flower

Mound required a landowner to rebuild a road abutting his property at his own

expense in accord with a town ordinance. See Flower Mound II, 135 S.W.3d at

623. The landowner sought an exemption from the ordinance and objected to the

requirement “at every administrative level.” Id. at 624. The town approved the

landowner’s plat and the landowner rebuilt the road and transferred the

improvement to the town. Id. After the town refused to reimburse the landowner

for its proportionate share of the expenses, he sued the town. Id. The town argued

that the landowner had waived his takings claim by failing to sue before the town

approved the plat and by accepting the benefit received in exchange for the

exaction, namely, approval of its plat. Flower Mound I, 71 S.W.3d at 27. On

appeal, the court of appeals rejected the town’s waiver argument, emphasizing that

the landowner “did unsuccessfully object to the [road] improvements condition at

every administrative level within the Town.” Id. at 28. The Texas Supreme Court

likewise rejected the municipality’s argument, noting that the landowner had

objected at every opportunity. Flower Mound II, 135 S.W.3d at 630.

      Here, unlike in the Flower Mound cases, Edge alleges in its petition that it

chose to construct the new line at its own expense. Edge attached to its petition the

                                         20
City’s August 5, 2005 letter in which the City informed Edge that, upon

completion, the new wastewater line was to be dedicated to the City “for

ownership and maintenance.” Edge does not allege that it objected at any stage.

By choosing to construct the new line at its own expense and adopting without

objection the City’s requirements, Edge consented to those requirements. See TEX.

CONST. art. I, § 17 (prohibiting taking without compensation or consent).

      When, as here, a plaintiff fails to assert facts that constitute a taking,

dismissal of the claim for want of jurisdiction is appropriate. See Gen. Servs.

Comm’n v. Little–Tex Insulation, Co., 39 S.W.3d 591, 599 (Tex. 2001) (dismissing

inverse-condemnation claim for want of jurisdiction because allegations did not

state takings claim). Accordingly, we hold that the trial court did not err in

granting the City’s plea to the jurisdiction on Edge’s inverse-condemnation, or

“takings,” claim.

      We overrule Edge’s second issue.

Promissory Estoppel

      In its fourth issue, Edge argues that its “promissory estoppel claim is not

barred by immunity” because the City promised Edge reimbursement for

subsequent connections to the new line, Edge relied on this promise when it

constructed the new line at its own expense, and the City “broke its promise” when




                                         21
the Flats connected to the new line and “continues to do so in the case of the Black

Finn Restaurant.”

          Absent a clear and unambiguous legislative waiver, the City is immune from

suit in the performance of its governmental functions. Tooke, 297 S.W.3d at 469.

In its plea to the jurisdiction, the City argues that Edge did not plead a legislative

waiver of the City’s immunity from its claim for promissory estoppel and none

exists.

          In its response to the City’s plea, Edge asserts that an exception applies.

Specifically, a municipality may be estopped “where justice requires the

application of estoppel and there is no interference with the exercise of its

government functions.” See Maguire Oil Co. v. City of Houston, 69 S.W.3d 350,

366 (Tex. App.—Texarkana 2002, pet. denied). Edge argues that this case presents

such an exception because the City’s failure to honor its promise to reimburse

Edge “constitutes a grave injustice.” Edge did not address in its response below

the matter of interference with the exercise of governmental functions.

          The exception is available “only in exceptional cases where the

circumstances clearly demand its application to prevent manifest injustice.” City

of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 774 (Tex. 2006). In City

of White Settlement, the court stated that it had “applied the exception in only one

circumstance,” namely, where there was evidence that city officials had

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affirmatively misled the parties seeking to estop the city and the misleading

statements resulted in the permanent loss of the parties’ claims. Id. at 775.

      We conclude that Edge does not present an exceptional case in which justice

requires estoppel. Accordingly, we hold that the trial court did not err in granting

the City’s plea to the jurisdiction on Edge’s promissory-estoppel claim.

      We overrule Edge’s fourth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Higley, and Brown.




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