      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00149-CV



                                   Triple BB, LLC, Appellant

                                                  v.

                            The Village of Briarcliff, Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
        NO. D-1-GN-13-001749, HONORABLE JAN SOIFER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Triple BB, LLC, appeals from an order of the district court granting the plea to the

jurisdiction filed by the Village of Briarcliff, Texas (Village). The underlying litigation concerns

Triple BB’s asserted right to keep a billboard on cliffside property owned by Malcolm Phillips in the

Village. The Village asserted in its plea to the jurisdiction that Triple BB had failed to establish a

waiver of the Village’s governmental immunity from suit. In its live pleading, Triple BB asserted

claims against the Village for a prescriptive easement, breach of contract, and inverse condemnation,

and sought declaratory relief nullifying a contract with the Village concerning the billboard. For the

reasons that follow, we will affirm the district court’s order granting the Village’s plea to

the jurisdiction.
                                         BACKGROUND

               The Village is a municipality located on the shores of Lake Travis. Over three

decades ago, the Briarcliff Marina erected a billboard attached to a cliffside property lot in

the Village:




More specifically, the billboard is located on Lot 268A, directly below Lot 268 on Briarcliff Drive.

The Village owned Lot 268A at the time of the placement and for several decades afterwards.

               In 2002, the Village entered into a contract with James and Linda Clendenin, then

owners of the Marina. Their agreement consisted of a Master Agreement, which laid out the basic

terms of the contract; an Easement Agreement; and two license agreements (collectively, the

Contract). Under the Contract, the Marina granted the Village an easement across the Marina’s land

to install and maintain a raw water line along the route of a preexisting line. The Marina also agreed

to modify the location of a separate easement granting the Marina access to a roadway. In return,

                                                  2
the Village granted “to the Marina, it successors and assigns” a license to display the billboard on

Lot 268A and agreed to repair the Marina’s parking lot at the Village’s expense.1

                Three years later, the Clendenins sold the Marina and all their interest in the Contract

to Triple BB.2 The Village subsequently conveyed Lot 268A to Richard and Shirley Flowers, the

owners of Lot 268. The deed from the Village is silent as to the billboard or the license granted in

the Contract. In 2011, the Flowers sold Lots 268 and 268A to Phillips who, in turn, demanded that

Triple BB remove the billboard.

                Triple BB filed suit against Phillips seeking a declaration of its rights under the

Contract, a permanent injunction to keep the billboard in place, and an award of attorney’s fees.

Phillips filed a motion for summary judgment arguing that the License Agreement was unenforceable

against him. Before the district court ruled on Phillips’s motion, Triple BB added the Village as a

defendant and asserted the same claims. The district court subsequently granted Phillips’s motion

for summary judgment, in effect deciding that Phillips did not have to allow Triple BB to display the

billboard. The Village then filed a plea to the jurisdiction asserting that Triple BB had failed to

establish a waiver of its governmental immunity.

                Triple BB responded by amending its pleadings to assert that it acquired a prescriptive

easement to display the billboard that is binding on Phillips. In addition, Triple BB asserted that the

Village breached the Contract by failing to convey Lot 268A subject to its license and alleged that



       1
           The Village granted a second license for a sign at a different location.
       2
         The Clendenins assigned their interest to Triple BB Marina, Ltd. The record reflects that
Triple BB, LLC, is the general partner of Triple BB Marina, Ltd. The parties do not dispute that
Triple BB, LLC, is the successor-in-interest to the Clendenins.

                                                   3
the Village therefore took its property—the land subject to the raw water line easement—without

compensation in violation of the Texas Constitution. Triple BB also sought declaratory relief based

on its alternate theory that the Contract was void for failure of consideration. The district court

granted the Village’s plea to the jurisdiction. This interlocutory appeal ensued. See Tex. Civ. Prac.

& Rem. Code § 51.014(a)(8) (conferring jurisdiction over interlocutory appeal of order granting or

denying plea to the jurisdiction filed by a governmental unit).


                                    STANDARD OF REVIEW

                Governmental immunity has two components: immunity from suit and immunity

from liability.3 Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Governmental immunity

from suit deprives a court of subject matter jurisdiction over claims against political subdivisions

of the State, including municipalities, absent legislative waiver. Id. And if the legislature elects to

waive immunity, it must do so by clear and unambiguous language.                     Nazari v. State,

___ S.W.3d ___, ___, No. 16-0549, 2018 WL 3077659, at *3 (Tex. June 22, 2018) (citing Tex.

Gov’t Code § 311.034)). Immunity from suit implicates a court’s subject matter jurisdiction, and

it is properly asserted in a plea to the jurisdiction. Harris Cty. v. Annab, 547 S.W.3d 609, 612

(Tex. 2018).




       3
         Sovereign immunity and governmental immunity are related common-law doctrines which
protect the government from suit. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018).
“Sovereign immunity protects the state and its various divisions, such as agencies and boards, from
suit and liability, whereas governmental immunity provides similar protection to the political
subdivisions of the state, such as counties, cities, and school districts.” Travis Cent. Appraisal Dist.
v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011). Even though governmental immunity applies here,
we cite to several authorities involving sovereign immunity.

                                                   4
               Whether a court possesses subject matter jurisdiction is a question of law that we

review de novo. Id. We begin our analysis by examining the plaintiff’s live pleadings to determine

if it alleges facts which affirmatively demonstrate subject matter jurisdiction. Alamo Heights Indep.

Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We construe the plaintiff’s pleadings

liberally, take all factual allegations as true, and look to the plaintiff’s intent. Houston Belt

& Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). We may also consider

evidence relevant to jurisdiction and must do so when necessary to resolve the jurisdictional issue.

Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012).


                                           DISCUSSION

               Triple BB asserts in a single issue that the district court erred in granting the plea to

the jurisdiction because governmental immunity does not protect the Village from its claims.


Proprietary or Governmental Function

               We briefly pause to address Triple BB’s argument—raised for the first time in a reply

brief—that immunity does not apply at all because the Village acted in a proprietary capacity when

it executed the Contract. Governmental immunity applies to municipalities such as the Village

“when performing ‘governmental’ as opposed to ‘proprietary’ functions.” City of Austin v. Utility

Assocs., 517 S.W.3d 300, 307 (Tex. App.—Austin 2017, pet. denied). The Texas Supreme Court

recently decided that in determining whether immunity applies, we defer to the legislature’s

definition of specific activities as governmental or proprietary in the Tort Claims Act. Wasson

Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 439 (Tex. 2016); see Tex. Civ. Prac. & Rem.



                                                  5
Code § 101.0215. Relying on the legislature’s designation of “the operation and maintenance of a

public utility” as a proprietary function, Triple BB argues that immunity does not apply because the

Village entered the Contract to upgrade the capabilities of its water treatment facility. See Tex. Civ.

Prac. & Rem. Code § 101.0215(b)(1). We disagree because section 101.0215(a) specifically defines

the provision of “water and sewer service” as a governmental function. Id. § 101.0215(a)(32). The

Master Agreement recites that the Village “desires to make certain improvements to its water intake

and treatment facilities” by acquiring an easement for the raw water line due to population increases.

We conclude that the Village acted in a governmental capacity.


Prescriptive Easement

               Triple BB asserts that its claim of a prescriptive easement over Lot 268A does not

implicate the Village’s immunity because it “does not involve state action.” As a general rule, when

the government “is made a party defendant to a suit for land,” immunity bars the suit absent

legislative consent. See Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex.

2011) (quoting State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961)). Even though Phillips now owns

Lot 268A, Triple BB alleges that it obtained a prescriptive easement when the Village still owned

it. “An easement ‘is a nonpossessory interest [in land] that authorizes its holder to use the property

for only particular purposes.’” Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018) (quoting

Marcus Cable Assocs., v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)). By granting an easement, a

landowner “relinquish[es] a portion of the right to exclude” others from its land. Marcus Cable

Assocs., 90 S.W.3d at 700. Triple BB’s claim that it gained the right to use the Village’s land to

display the billboard is, in substance, a “suit for land” that is barred by governmental immunity.

                                                  6
See City of Dallas v. Turley, 316 S.W.3d 762, 773 (Tex. App.—Dallas 2010, pet. denied) (barring,

on governmental-immunity grounds, UDJA action against City to establish that City had abandoned

certain easements); State v. Beeson, 232 S.W.3d 265, 271-72 (Tex. App.—Eastland 2007, pet.

dism’d) (barring, on sovereign immunity grounds, UDJA action against State to establish easement

in real property).


Breach of Contract

                Next, Triple BB asserts that Section 271.152 waives the Village’s immunity from suit

for its breach-of-contract claim.4 In the alternative, Triple BB asserts that the Contract is a settlement

agreement and that Texas A & M University—Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002)

(plurality op.), precludes the Village from claiming immunity from suit for breach.


Section 271.152

                Section 271.152 of the Local Government Code provides a “limited waiver of

immunity for local governmental entities that enter into certain contracts.” Sharyland Water Supply

Corp. v. City of Alton, 354 S.W.3d 407, 412 (Tex. 2011). Specifically, a local governmental entity

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 § 271.152. The statute defines a “contract subject to this




        4
            “A governmental entity that enters into a contract ‘necessarily waives immunity from
liability, voluntarily binding itself like any other party to the terms of agreement, but it does not
waive immunity from suit.’” Zachry Const. Corp. v. Port of Hous. Auth. of Harris Cty.,
449 S.W.3d 98, 121 (Tex. 2014) (quoting Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)).

                                                    7
subchapter” as “a written contract stating the essential terms of the agreement for providing goods

or services to the local governmental entity.” Id. § 271.151(2)(A).

               Triple BB argues that the grant of an easement alone qualifies as a contract for

service. Chapter 271 does not define the term “service,” but the Texas Supreme Court has explained

that it “is broad enough to encompass a wide array of activities.” Kirby Lake Dev., Ltd. v. Clear

Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010). In common usage, the term “includes

generally any act performed for the benefit of another under some arrangement or agreement

whereby such act was to have been performed.” Id. (quoting Van Zandt v. Fort Worth Press,

359 S.W.2d 893, 895 (Tex. 1962)). Chapter 271 does not extend to contracts in which the

government receives an indirect or attenuated benefit. Id. For that reason, Chapter 271 does not

apply unless the governmental entity has a right under a contract to receive a service. Lubbock Cty.

Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 303 (Tex. 2014).

               Triple BB argues that the easement qualifies as a service because the Village has the

contractual right to make use of Triple BB’s land to the Village’s benefit. “However, we cannot read

the meaning of ‘services’ so broadly that the requirement is read completely out of the statute.” West

Travis Cty. Pub. Util. Agency v. Travis Cty. Mun. Util. Dist. No. 12, 537 S.W.3d 549, 555 (Tex.

App.—Austin 2017, pet. filed). By conveying an easement, the Clendenins granted the Village a

legal right to use their land in a certain way. See Marcus Cable Assocs., 90 S.W.3d at 700. They

made no promise to perform an act. On these facts, Chapter 271 does not apply to waive the




                                                  8
Village’s immunity.5 See Water Expl. Co. v. Bexar Metro. Water Dist., 345 S.W.3d 492, 501-03

(Tex. App.—San Antonio 2011, no pet.) (concluding that section 271.152 did not apply to

real-property lease when the lessee’s agreement to perform certain acts was entirely contingent); City

of San Antonio v. Reed S. Lehman Grain, Ltd., No. 04-04-00930-CV, 2007 WL 752197, at *2 n.2

(Tex. App.—San Antonio Mar. 14, 2007, pet. denied) (mem. op.) (holding section 271.152

inapplicable to easement contract because it “conveyed only an interest in real property to the City

and is not an agreement for providing goods and services”).


Settlement Agreement

               Triple BB alternatively characterizes the Contract as an agreement to settle a claim

against the Village. Triple BB relies heavily on Lawson arguing that the Contract’s status precludes

the Village from asserting immunity.

               In Lawson, a plurality of the Texas Supreme Court decided that when a governmental

unit “agrees to settle a lawsuit from which it is not immune,” it cannot “claim immunity from suit

for breach of the settlement agreement.” 87 S.W.3d at 518.6 The Village responds that Lawson does



       5
          Triple BB also asserted what it characterized as a separate claim for attorney’s fees under
section 271.153 of the Local Government Code. Triple BB argues on appeal that section 271.153
provides a separate waiver of immunity. Section 271.153 addresses the damages available in a
breach-of-contract action including “reasonable and necessary attorney’s fees that are equitable and
just.” Tex. Loc. Gov’t Code § 271.153(a)(3). Section 271.152 incorporates section 271.153’s
limitations on recovery, but section 271.153 does not provide its own waiver of immunity.
See Zachry Const. Corp., 449 S.W.3d at 109. The district court did not err in granting the Village’s
plea to the jurisdiction on Triple BB’s claim for attorney’s fees.
       6
          Lawson was a plurality opinion but “subsequent Texas Supreme Court holdings have
followed it.” Hughes v. Tom Green Cty., No. 03-16-00132-CV, 2017 WL 1534203, at *3 n.7 (Tex.
App.—Austin Apr. 20, 2017, pet. granted) (mem. op.).

                                                  9
not apply because there is no indication that the Contract settled a claim against the Village. Triple

BB points to the affidavit of Thomas Maione, Triple BB’s owner, who averred that the Contract was

“the result of the settlement of a dispute between the Clendenins, the Marina and the Village.”

Maione never specified the nature of the claim that was allegedly settled or provided any further

details. Moreover, the Contract itself does not reflect the settlement of a claim against the Village.

On these facts, Lawson does not prevent the Village from claiming immunity. See City of San Saba

v. Higginbotham, No. 03-17-00408-CV, 2018 WL 2016463, at *2 (Tex. App.—Austin May 1, 2018,

no pet.) (mem. op.) (reiterating that Lawson “only applies when the government is sued for breaching

a settlement agreement when the government was not immune from the underlying claim”); Texas

Dep’t of Health v. Neal, No. 03-09-00574-CV, 2011 WL 1744966, at *4 (Tex. App.—Austin

May 6, 2011, pet. denied) (mem. op.) (declining to extend Lawson to cases where the government

“settled a claim that, at that point in time, had no adjudicative value in our court system” (quoting

Donna Indep. Sch. Dist. v. Gracia, 286 S.W.3d 392, 395 (Tex. App.—Corpus Christi 2008,

no pet.))).


Declaratory Relief

               Triple BB’s fourth argument is that the Uniform Declaratory Judgments Act (UDJA)

itself waives immunity for its claim that the Contract is void.

               The UDJA permits parties interested in a contract to have determined any question

of validity arising under the contract. Tex. Civ. Prac. & Rem. Code § 37.004(a). However, except

for a narrow waiver of immunity for claims challenging the validity of ordinances or statutes the

UDJA generally does not enlarge a court’s jurisdiction. Ex parte Springsteen, 506 S.W.3d 789, 799

                                                 10
(Tex. App.—Austin 2016, pet. denied). Rather, the UDJA is “merely a procedural device for

deciding cases already within a court’s jurisdiction.” Sawyer Tr., 354 S.W.3d at 388. As a

consequence, sovereign immunity will bar an otherwise-proper UDJA claim if it would have the

effect of establishing an entitlement to relief against the government for which the legislature has

not waived immunity. Id.; City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007).

               Triple BB seeks to nullify the Contract with the Village, but governmental entities

“generally are immune from UDJA claims seeking to void contracts.” City of New Braunfels

v. Carowest Land, Ltd., 549 S.W.3d 163, 171 (Tex. App.—Austin 2017, no pet. h.); see Utility

Assocs., 517 S.W.3d at 312 (explaining rationale for governmental immunity in context of claims

to nullify or establish validity of a contract that a governmental unit has already executed). We have

already held that Triple BB has not established an independent waiver of immunity for its other

claims based on the Contract. On these facts, Triple BB’s claim that the Contract is void is barred

by governmental immunity. See Carowest Land, 549 S.W.3d at 171; Utility Assocs., 517 S.W.3d

at 312.


Takings Claim

               Triple BB’s final assertion is that the district court erred because governmental

immunity does not apply to its inverse condemnation claim. The Texas Constitution provides that

no “property shall be taken, damaged, or destroyed for or applied to public use without adequate

compensation being made.” Tex. Const. art I, § 17(a). This provision applies to an inverse

condemnation claim, “in which a property owner alleges that the government has usurped the use

and value of his or her property, even if it has not completely appropriated title.” Kirby Lake,

                                                 11
320 S.W.3d at 844. Governmental immunity does not shield the Village from a properly pled

takings claim. City of Houston v. Carlson, 451 S.W.3d 828, 830 (Tex. 2014). Conversely, if a

plaintiff “cannot establish a viable takings claim,” the government retains immunity, and the court

lacks jurisdiction over the dispute. Texas Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC,

397 S.W.3d 162, 166 (Tex. 2013). The Village argues that the district court did not err because

Triple BB failed to allege a viable claim.

               To plead a viable inverse condemnation claim, “a plaintiff must allege an intentional

government act that resulted in the uncompensated taking of private property” for public use.

Carlson, 451 S.W.3d at 831. A taking “cannot be established by proof of mere negligent conduct

by the government.” Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016).

In the context of an inverse condemnation claim, “the requisite intent is present when a governmental

entity knows that a specific act is causing identifiable harm or knows that the harm is substantially

certain to result.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). Triple

BB’s claim is predicated upon the Village’s alleged oversight in failing to convey Lot 268A subject

to Triple BB’s license. Triple BB’s factual allegations, taken as true, do not include an intentional

act by the Village which resulted in the taking of Triple BB’s land. See Kerr, 499 S.W.3d at 799;

Gragg, 151 S.W.3d at 554. Because Triple BB failed to allege a viable takings claim, the Village

retains immunity from suit. See A.P.I. Pipe & Supply, 397 S.W.3d at 166.


                                         CONCLUSION

               Governmental immunity “shield[s] the public from the costs and consequences of

improvident actions of their governments.” Tooke, 197 S.W.3d at 332. “But with this benefit

                                                 12
comes a significant cost . . . sovereign immunity places the burden of shouldering those ‘costs and

consequences’ on injured individuals.” Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 121

(Tex. 2015). Even though we must conclude that the Village is immune from Triple BB’s suit, we

acknowledge the impact of our holding today. We affirm the district court’s order granting the

Village’s plea to the jurisdiction.



                                               _________________________________________
                                               Cindy Olson Bourland, Justice

Before Justices Puryear, Field, and Bourland

Affirmed

Filed: August 15, 2018




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