                                                                                     ACCEPTED
                                                                                 03-17-00696-CV
                                                                                       21622582
                                                                       THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                                1/4/2018 9:53 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                             No. 03-17-00696-CV

                       IN THE COURT OF APPEALS           FILED IN
                                                  3rd COURT OF APPEALS
                   FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
                               AT AUSTIN          1/4/2018 9:53:15 PM
                                                            JEFFREY D. KYLE
                                                                 Clerk
     CITY OF NEW BRAUNFELS, TEXAS, and Y.C. PARTNERS, LTD.
                    d/b/a YANTIS COMPANY,

                                                     Appellants,
                                    vs.

                         CAROWEST LAND, LTD.,

                                                     Appellee.

      On Appeal from the 22nd Judicial District of Comal County, Texas
  Cause No. C2017-0474A, Hon. Margaret G. Mirabal, Sitting by Appointment

                          BRIEF OF APPELLEE
                         CAROWEST LAND, LTD.


Jason Davis                               Thomas R. Phillips
State Bar No. 00793592                    State Bar No. 00000022
Caroline Newman Small                     Maddy R. Dwertman
State Bar No. 24056037                    State Bar No. 24092371
DAVIS & SANTOS, P.C.                      BAKER BOTTS L.L.P.
719 S. Flores St.                         98 San Jacinto Blvd., Suite 1500
San Antonio, Texas 78204                  Austin, Texas 78701
(210) 853-5882                            (512) 322-2500
(210) 200-8395 (Facsimile)                (512) 322-2501 (Facsimile)
jdavis@dslawpc.com                        tom.phillips@bakerbotts.com
csmall@dslawpc.com                        maddy.dwertman@bakerbotts.com

                         ATTORNEYS FOR APPELLEE
                  IDENTITIES OF PARTIES & COUNSEL
            In addition to counsel listed in Appellants’ Identity of Parties and

Counsel, appellate counsel for Appellee Carowest Land, Ltd. include:

      Thomas R. Phillips
      State Bar No. 00000022
      Maddy R. Dwertman
      State Bar No. 24092371
      BAKER BOTTS L.L.P.
      98 San Jacinto Blvd., Suite 1500
      Austin, Texas 78701
      (512) 322-2500
      (512) 322-2501 (Facsimile)
      tom.phillips@bakerbotts.com
      maddy.dwertman@bakerbotts.com




                                        i
                                          TABLE OF CONTENTS
Identities of Parties & Counsel .................................................................................. i
Index of Authorities ................................................................................................. iv
Statement of the Case............................................................................................. viii
Statement Regarding Oral Argument ...................................................................... ix
Issues Presented .........................................................................................................x
Statement of Facts ......................................................................................................1
Summary of the Argument.......................................................................................12
Argument..................................................................................................................16
         I.        The trial court properly denied the City’s plea to the jurisdiction
                   as to Carowest’s South Tributary Claims............................................16
                   A.       Carowest’s South Tributary Claims against the City are
                            not barred by governmental immunity......................................16
                            1.        Jurisdiction over Carowest’s South Tributary
                                      Claims exists because the City asserted an
                                      affirmative counterclaim alleging breaches of the
                                      Letter Agreement. ...........................................................17
                            2.        Jurisdiction over Carowest’s South Tributary
                                      Claims exists pursuant to Texas Local Government
                                      Code Section 271.152. ....................................................24
                   B.       Carowest’s South Tributary Claims against the City
                            implicate a justiciable controversy............................................37
                            1.        Carowest’s declaratory judgment claims are not
                                      moot. ...............................................................................37
                            2.        Carowest’s claim for attorneys’ fees is not moot. ..........39
         II.       The trial court properly denied Yantis’s plea to the jurisdiction
                   as to Carowest’s South Tributary Claims............................................42
                   A.       Jurisdiction over Carowest’s South Tributary Claims
                            against Yantis is not dependent on jurisdiction over
                            Carowest’s same claims against the City..................................42
                   B.       Carowest’s South Tributary Claims implicate a
                            justiciable controversy. .............................................................44


                                                             ii
Conclusion and Prayer .............................................................................................47
Certificate of Compliance ........................................................................................49
Certificate of Service ...............................................................................................50




                                                          iii
                                        INDEX OF AUTHORITIES

                                                                                                                  Page(s)

CASES
Allstate Ins. Co. v. Hallman,
   159 S.W.3d 640 (Tex. 2005) ........................................................................39, 40

Archer Grp., LLC v. City of Anahuac,
   472 S.W.3d 370 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ...................... 21

Bandera County v. Hollingsworth,
  419 S.W.3d 639 (Tex. App.—San Antonio 2013, no pet.) ................................ 23

Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political
  Subdivisions Prop./Cas. Joint Self-Ins. Fund,
  212 S.W.3d 320 (Tex. 2006) ........................................................................26, 27

Bexar Metro. Water Dist. v. City of Bulverde,
   156 S.W.3d 79 (Tex. App.—Austin 2004, pet. denied) ..................................... 45

Bexar Metro. Water Dist. v. City of Bulverde,
   234 S.W.3d 126 (Tex. App.—Austin 2007, no pet.) ....................................37, 39

Brooks v. Northglen Ass’n,
   141 S.W.3d 158 (Tex. 2004) .............................................................................. 44

Camarena v. Tex. Emp’t Comm’n,
  754 S.W.2d 149 (Tex. 1988) ..................................................................39, 40, 41

Chenault v. Phillips,
  914 S.W.2d 140 (Tex. 1996) .............................................................................. 31

City of Conroe v. TPProperty LLC,
   480 S.W.3d 545 (Tex. App.—Beaumont 2015, no pet.) .................................... 21

City of Dallas v. Albert,
   354 S.W.3d 368 (Tex. 2011) ..................................................................17, 18, 23

City of Houston v. Atser, L.P.,
   403 S.W.3d 354 (Tex. App.—Houston [1st Dist.] 2013, pet.
   denied)................................................................................................................. 11


                                                             iv
City of Houston v. Estate of Jones,
   388 S.W.3d 663 (Tex. 2012) ........................................................................11, 45

City of Houston v. United Water Servs.,
   201 S.W.3d 690 (Tex. 2006) .............................................................................. 17

City of McKinney v. Hank’s Restaurant Group,
   412 S.W.3d 102 (Tex. App.—Dallas 2013, no pet.) .......................................... 21

City of Midland v. Goerlitz,
   201 S.W.3d 689 (Tex. 2006) .............................................................................. 17

City of New Braunfels v. Carowest Land, Ltd.,
   --- S.W.3d ---, No. 03-16-00249-cv, 2017 WL 2857142 (Tex.
   App.—Austin, June 29, 2017 mtn. for reh’g pending) ................................passim

City of New Braunfels v. Carowest Land, Ltd.,
   432 S.W.3d 501 (Tex. App.—Austin 2014, no pet.) ...................................passim

City of Pearsall v. Tobias,
   No. 04-15-00302-CV, 2016 WL 1588400 (Tex. App.—San
   Antonio Apr. 20, 2016, no pet.) (mem. op.) ....................................................... 35

City of San Antonio ex rel. City Pub. Serv. Bd. v. Wheelabrator Air
   Pollution Control, Inc.,
   381 S.W.3d 597 (Tex. App.—San Antonio 2012, pet. denied) .......................... 35

Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl.
   Quality,
   307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.) .......................................... 29

Ghidoni v. Bexar Metro. Water Dist.,
  No. 04-07-00377-CV, 2007 WL 2481034 (Tex. App.—San
  Antonio Sept. 5, 2007, no pet.) (mem. op.) ........................................................ 35

Hendee v. Dewhurst,
  228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied) ................................... 25

Klumb v. Houston Municipal Employees Pension System,
   458 S.W.3d 1 (Tex. 2015).............................................................................31, 32




                                                      v
Lawson v. Keene,
  No. 03-13-00498-CV, 2016 WL 767772 (Tex. App.—Austin Feb.
  23, 2016, pet. denied) (mem. op.) ....................................................................... 31

Lower Colorado River Authority v. City of Boerne,
  422 S.W.3d 60 (Tex. App.—San Antonio 2013, pet. dism’d) ........................... 35

National Public Finance Guarantee Corporation v. Harris County-
  Houston Sports Authority,
  448 S.W.3d 472 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ...................... 34

Reata Construction Corp. v. City of Dallas,
  197 S.W.3d 371 (Tex. 2006) .......................................................................passim

Redburn v. Garrett,
  Case. No. 13-12-00215-CV, 2013 WL 2149699 (Tex. App.—
  Corpus Christi May 16, 2013, pet. denied) (mem. op.) ...................................... 22

Saifi v. City of Texas City,
   No. 14-13-00815-CV, 2015 WL 1843540 (Tex. App.—Houston
   [14th Dist.] Apr. 23, 2015, no pet.) ..............................................................32, 33

San Antonio River Authority v. Austin Bridge & Road, L.P.,
   No. 04-16-00535-CV, 2017 WL 3430897 (Tex. App.—San
   Antonio Aug. 9, 2017, pet. filed) (mem. op.) ...............................................34, 35

Sharyland Water Supply Corp. v. City of Alton,
   354 S.W.3d 407 (Tex. 2011) .............................................................................. 23

Sweeny Cmty. Hosp. v. Mendez,
  226 S.W.3d 584 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ...................... 18

Taylor v. State Farm Lloyds, Inc.,
   124 S.W.3d 665 (Tex. App.—Austin 2003, pet. denied) ................................... 46

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
   852 S.W.2d 440 (Tex. 1993) ..................................................................25, 30, 36

Tex. Dep’t of State Health Servs. v. Balquinta,
   429 S.W.3d 726 (Tex. App.—Austin 2014, pet. dism’d) .............................25, 36

Tex. Dept. of Transp. v. Sefzik,
   355 S.W.3d 618 (Tex. 2011) .............................................................................. 36

                                                      vi
Tex. Parks & Wildlife Dep’t v. Sawyer Trust,
   354 S.W.3d 384 (2011) ....................................................................................... 36

Texas Association of School Boards Risk Management Fund v.
   Benavides Independent School District,
   221 S.W.3d 732 (Tex. App.—San Antonio 2007, no pet.) ..........................29, 30

Texas Dep’t of Pub. Safety v. Moore,
   985 S.W.2d 149 (Tex. App.—Austin 1998, no pet.) .......................................... 46

Texas Dept. of Banking v. Mount Olivet Cemetery Ass’n,
   27 S.W.3d 276 (Tex. App.—Austin 2000, pet. denied) ..................................... 45

Texas Natural Resources Conservation Commission v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002)...........................................................................28, 32

Unauthorized Practice of Law Cmte. v. Nationwide Mut. Ins. Co.,
  155 S.W.3d 590 (Tex. App.—San Antonio 2004, pet. denied) .......................... 46

Wood v. Walker,
  279 S.W.3d 705 (Tex. App.—Amarillo 2007, no pet.) ...................................... 44

Zachry Corporation v. Port of Houston Authority,
   449 S.W.3d 98 (Tex. 2014).....................................................................30, 31, 32

Zurita v. SVH-1 Partners, Ltd.,
   No. 03-10-00650-CV, 2011 WL 6118573 (Tex. App.—Austin
   Dec. 8, 2011, pet. denied) (mem. op.) ................................................................ 39

STATUTES

TEX. CIV. PRAC. & REM. CODE ANN. § 37.003(a) .................................................... 25

TEX. LOCAL GOV’T CODE ANN. § 271.152 .......................................................passim

OTHER AUTHORITIES
BLACK’S LAW DICTIONARY (10 ed. 2014) ............................................................... 22

HOUSE COMM. ON CIVIL PRACTICES, Bill Analysis, Tex. H.B. 2039,
  79th Leg., R.S. (2005)......................................................................................... 27

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11 ed. 2003) ............................. 22

                                                        vii
                       STATEMENT OF THE CASE
Nature of      This is an interlocutory appeal of the trial district court’s denial
the Case:      of (1) a governmental unit’s plea to the jurisdiction and (2) a
               privately owned entity’s plea to the jurisdiction.

               The underlying case involves various claims asserted by Carowest
               Land, Ltd. (“Carowest”) against the City of New Braunfels (the
               “City”) and YC Partners, Ltd. d/b/a Yantis Company (“Yantis”),
               as well as counterclaims by the City against Carowest. The
               parties’ claims center around two municipal projects—the so-
               called South Tributary Project and North Tributary Project—for
               which Yantis was the general contractor.
               This appeal involves two declaratory judgment claims asserted by
               Carowest against the City and Yantis concerning the South
               Tributary Project (“South Tributary Claims”).           This Court
               previously affirmed the district court’s denial of the City’s plea to
               the jurisdiction as it concerns these claims. See City of New
               Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501 (Tex. App.—
               Austin 2014, no pet.) (Carowest I). After Carowest I, Carowest
               won summary judgment on liability on the two South Tributary
               Claims, CR 55-56, and these claims were severed into a separate
               action, CR 57-59. With only the issue of attorneys’ fees to be
               decided in the severed cause, the City filed another plea to the
               jurisdiction and was this time joined Yantis. CR 77-130, 131-98.
               In the renewed pleas, the City and Yantis rely on this Court’s
               2017 opinion regarding Carowest’s declaratory judgment claims
               concerning the North Tributary Project. See City of New
               Braunfels v. Carowest Land, Ltd., --- S.W.3d ---, No. 03-16-
               00249-cv, 2017 WL 2857142 (Tex. App.—Austin, June 29, 2017
               mtn. for reh’g pending) (Carowest II). This appeal is solely about
               the South Tributary Claims. Carowest II did not address the
               South Tributary Claims or their distinct jurisdictional bases.

Trial Court:   Hon. Margaret G. Mirabal, sitting by appointment in the 22nd
               Judicial District Court, Comal County, Texas

Trial Court    The district court denied both the City’s and Yantis’s pleas to the
Disposition:   jurisdiction. CR 1048, CR 1049.

                                       viii
              STATEMENT REGARDING ORAL ARGUMENT
            Appellee Carowest Land, Ltd. believes that oral argument will likely

be unnecessary because this Court has already decided the issues presented in this

appeal in Carowest I and should therefore affirm in this case as well. However, if

the Court has any questions or concerns about the issues in this case, Carowest

conditionally requests oral argument. Carowest would welcome the opportunity to

address any questions the Court may have and, if necessary, the impact of

Carowest I and Carowest II on the issues presented.




                                        ix
                ISSUES PRESENTED

                  Issues as to the City

                       ISSUE ONE
The City asserted an affirmative counterclaim against
Carowest, alleging that Carowest breached its contractual
obligation to indemnify and hold the City harmless for
certain delay claims asserted by Yantis and seeking
monetary relief.

Did the district court properly conclude that because the
City asserted an affirmative breach of contract claim
against Carowest, the City is not immune from
Carowest’s South Tributary Claims concerning the same
contract, as those declaratory judgment claims are
germane to, connected with, and properly defensive to
the City’s breach of contract claim?

                      ISSUE TWO
Carowest entered into a written contract   with the City
that both parties concede is subject to    Chapter 271,
Subchapter I (“Chapter 271”) of the        Texas Local
Government Code and the waiver of          governmental
immunity contained therein.

Does Chapter 271 waive the City’s governmental
immunity from Carowest’s South Tributary Claims
arising from that same contract?

                     ISSUE THREE
The declarations Carowest seeks against the City are
intertwined with and defensive to the City’s pending
breach of contract claim against Carowest.

Do Carowest’s South Tributary claims implicate a
justiciable controversy?



                           x
                   Issues as to Yantis

                      ISSUE FOUR
Yantis, a privately owned entity, filed its own
interlocutory appeal from the trial court’s refusal to
dismiss Carowest’s South Tributary Claims against
Yantis for lack of jurisdiction.

Is the City an indispensable party to Carowest’s South
Tributary Claims against Yantis even though the
declarations Carowest seeks against Yantis would not
prejudice any rights of the City?

                       ISSUE FIVE
Upon Yantis’s assertion of a delay claim against the City,
the City sought indemnity from Carowest pursuant to a
written contract between the City and Carowest.
Carowest, in turn, filed a declaratory judgment action
against the City and Yantis under that contract regarding
the validity of Yantis’s delay claim and Carowest’s
indemnification obligation.

Do Carowest’s South Tributary Claims implicate a
justiciable controversy?




                            xi
                           STATEMENT OF FACTS
            Carowest is a tax-paying citizen of the City of New Braunfels, which

owns the property where the Weston family resides (the “Property”).             The

Westons, through Carowest, agreed to donate a tract of land on the Property worth

approximately $1 million to the City for the South Tributary Regional Flood

Control Project (“South Tributary Project”), a multi-million-dollar drainage project

designed to channel run-off waters down a large drainage channel to the

Guadalupe River. See CR 359-60. In 2008, a dispute arose between the City and

Carowest regarding various issues related to the South Tributary Project. See CR

360-62. This dispute was initially resolved, without litigation, by a July 27, 2009

Letter Agreement between Carowest and the City (the “Letter Agreement”). See

CR 85-89. The Letter Agreement included the following essential terms, among

others:

             The City allowed Carowest to modify the location and design of
              the channel on the Property (the “Modification”).

             Carowest agreed to pay for additional engineering and construction
              costs “directly related to analyzing and implementing the
              Modification” (the “Modification Costs”). Modification Costs did
              not include “any costs the City would have incurred without the
              Modification.”

             Carowest further agreed to indemnify the City for claims brought
              against the City by Yantis, the general contractor on the South
              Tributary Project, if such claims were for a Modification Cost and
              directly attributable to the Modification.



                                         1
CR 85-86. Only the Letter Agreement’s indemnity provision is at issue in this

appeal.

The City demands that Carowest indemnify it against delay claims that Yantis
had previously released.
            On October 21, 2009, the City and Yantis executed Change Order No.

3 (the “Change Order”). CR 94. The Change Order removed from Yantis’s

contract with the City all work on the Carowest Property and awarded Yantis

additional work of equal or greater value elsewhere on the South Tributary Project.

Id. In the Change Order, Yantis agreed that the “Change Order includes any and

all costs associated with or resulting from the change(s) ordered herein, including

all impact, delays, and acceleration costs” and that “there shall be no further time

or dollar compensation as a result of this Change Order,” thereby releasing all of

its claims against the City concerning the Carowest portion of the South Tributary

Project. Id. Neither the City nor Yantis disclosed to Carowest the existence of the

Change Order when it was executed. See CR 23.

            Instead, on March 10, 2010, despite having released all of its claims

against the City concerning the Carowest portion of the South Tributary Project,

Yantis presented a $556,248 claim to the City for alleged work delays on the

Carowest Property. See CR 92-94. Over two months later, relying on the Letter

Agreement, the City referred this delay claim, including a copy of the previously

undisclosed Change Order, to Carowest and demanded that Carowest “negotiate


                                         2
with Yantis and work out a payment.” CR 90-94. Carowest denied both that it

was liable for any delays and that any alleged delays arose from the channel

Modification. See CR 364.

            On May 31, 2010, Yantis executed another release of all delay claims

in connection with its application to the City for a progress payment on the South

Tributary Project (the “Waiver”). See CR 979-80 (“For and in consideration of

$83,324.15, representing a progress payment on the above-referenced project . . .

Yantis hereby acknowledges complete satisfaction of, and waives and releases, any

and all claims of every kind against Owner, the Project and the property . . . .”).

Notwithstanding the fact that Yantis had now already twice released any claims

related to the Carowest portion of the South Tributary Project, the City made

repeated demands, by letters of May 13, 2010 and June 10, 2010, that Carowest

“negotiate with Yantis and work out a payment, if any, for delay damages.” CR

90-94, CR 95-97.

            On July 18, 2010, almost nine months after executing the Change

Order, Yantis re-submitted its delay claim to the City, this time seeking

$276,270.80 in delay damages purportedly related to the Carowest portion of the

South Tributary Project (the “Delay Claim”). See CR 99. The City notified Yantis

(copying Carowest) that it was demanding that Carowest handle the claim, see CR

98, and then referred the Delay Claim to Carowest, demanding that Carowest



                                        3
indemnify and defend the City, see CR 99-100. Carowest again denied there had

been any delays for which it was responsible. See CR 364. Following a series of

additional communications between Carowest and the City regarding the Delay

Claim, the City finally acknowledged in an October 8, 2010 letter to Yantis

(copying Carowest) that “based on the execution of change order number three,

Yantis has waived ‘any and all costs associated with or resulting from the

change(s) ordered herein, including all impact, delays, and acceleration costs.’”

CR 103 (emphasis in original). However, at no point did the City rescind its

demand that Carowest handle the bogus claim, and at no point did Yantis abandon

its Delay Claim.

Carowest seeks declarations regarding the validity of the Delay Claim and
Carowest’s alleged obligation to indemnify the City.
            In response to the City’s continued pursuit of Carowest, Carowest

filed a declaratory judgment action against both the City and Yantis on November

3, 2010, seeking declarations that: (1) Yantis had no right to damages under the

Delay Claim; and (2) the City therefore had no right to indemnification from

Carowest. See CR 5-12. Carowest subsequently amended its petition to seek

additional declarations against the City and Yantis that (1) “the October 21, 2009

Change Order released any delay claim that existed before that date,” and (2) “the

May 31, 2010 progress payment fully and finally released any delay claim that

existed before that date” (collectively, with the declaratory judgment claims filed


                                        4
on November 3, 2010, the “South Tributary Claims”). See CR 13.1 Carowest also

asserted other claims, including a breach of contract claims against the City. Id.1

              On November 29, 2010, the City filed its first Plea to the Jurisdiction,

Supp. CR 4-8, which it subsequently amended on January 27, 2011, CR 459-65.

The district court denied the City’s plea to the jurisdiction on March 17, 2011. CR

467-68. The City then perfected an appeal of the order denying its plea, CR 470-

78, but subsequently filed a motion to dismiss its own appeal, CR 480-81, which

was granted by this Court, CR 483-85.

The City asserts affirmative counterclaims against Carowest.
              After moving to dismiss its own appeal, the City returned to district

court and asserted various counterclaims, alleging that Carowest had materially

breached the Letter Agreement, including its indemnification provision, and related

contracts and seeking, among other relief, monetary damages in excess of

$843,000. See CR 833-38. The City’s breach of contract counterclaim, which

remains pending in Cause No. C2010-1519D (the “2010 Cause”), specifically

alleges, among other things, that:

              Carowest breached the Letter Agreement by refusing to
              indemnify and hold the City harmless for Yantis’s delay
              claim. Carowest further breached Sections 2 and 3 of the

1
       On January 2, 2018, Carowest and Yantis filed a joint request to supplement the Clerk’s
Record with items previously designated by the parties. Because the Clerk’s Record contains
only the first page of Carowest’s Second Amended Petition, Carowest has cited to that page. A
complete copy of Carowest’s Second Amended Petition is attached hereto as Exhibit 1.


                                              5
              Letter Agreement by filing suit against the City in
              connection with the delay claim, causing the City to
              suffer harm, including attorneys’ fees and costs. Such
              breaches were material. The City has incurred, and is
              entitled to recover, damages as a result of Carowest’s
              breaches of the Letter Agreement.

CR 49 (emphasis added). Notably, the City’s statement of facts on appeal makes

no mention of its pending breach of contract claim against Carowest, even though

the City took the position in opposing Carowest’s motion to sever the South

Tributary Claims that its counterclaim is “interwoven with” and “implicate[s] the

exact same provision of the exact same contract” as the South Tributary Claims.2

Supp. CR 249-50.

In 2011, Carowest amended its pleading to assert the North Tributary Claims
based on the City’s violations of the Texas Open Meetings Act and competitive
bidding statutes.
              In addition to the South Tributary Project, the City planned another

similar drainage project to channel run-off waters to the Guadalupe River (the

“North Tributary Project”). See CR 25. Yantis was one of several contractors to

submit bids when the City initiated a public bidding process for the North

Tributary Project in March 2011. See CR 206-07. Although Yantis’s total base

bid was not the lowest bid received for that project, the City used an alternate




2
       Although the City shamelessly characterizes Carowest’s claims that remain pending in
the 2010 Cause as “frivolous,” City Br. at 9 n.3, its recitation of facts never mentions its own
pending counterclaims over the same contract.


                                               6
method for tabulating the bids and recommended that Yantis be awarded the

contract. See CR 25, CR 207.

              The New Braunfels City Council met on May 9, 2011 to decide

whether and whom to award the $5 million North Tributary construction contract.

See CR 206. Just hours before the meeting, Yantis offered to release its Delay

Claim related to the South Tributary Project, which it had already twice released,3

but only if the City Council awarded Yantis the North Tributary contract that very

evening. Id. The City accepted Yantis’s offer, and they executed a “Rule 11

Agreement” pursuant to which Yantis again purportedly released the Delay Claim

in a direct quid pro quo exchange for the award of the contract that night.4 Id. The

Rule 11 Agreement was not disclosed to the public or other bidders prior to or at

the City Council meeting. See CR 207. Instead, it was discussed in an improperly

noticed, closed, executive session, after which Yantis was awarded the North

Tributary contract. See CR 206-07. Only after it had awarded the North Tributary

contract to Yantis did the City notify Carowest and the public of the covert Rule 11

Agreement. See CR 207.



3
       Despite these prior releases, Yantis continued to pursue its Delay Claim.
4
       The Rule 11 Agreement provides that: Yantis will agree “to fully release the City of New
Braunfels from Yantis’ asserted delay claim on the South Tributary Project if, after all proper
and legal process is completed, Yantis is awarded the North Tributary Contract . . . at the New
Braunfels City Council meeting scheduled for this evening.” CR 206. It further provides: “If the
contract is not awarded to Yantis this evening, this offer is hereby withdrawn.” Id.


                                               7
             Based on the City’s conduct in connection with awarding the contract

for the North Tributary Project to Yantis, Carowest promptly amended its

pleadings in July 2011 to assert, among other claims, declaratory judgment claims

seeking declarations that (1) the City violated the Texas Open Meetings Act

(“TOMA”) and (2) the North Tributary contract between the City and Yantis was

void because it was awarded in violation of competitive bidding requirements in

the Texas Local Government Code and the Texas Penal Code (collectively, the

“North Tributary Claims”). See CR 13.1

In 2014, this Court held that the district court had jurisdiction over all of
Carowest’s declaratory judgment claims.
             On September 1, 2011, the City filed another plea to the jurisdiction.

CR 487-502. The district court again denied the City’s plea, CR 504-05, and the

City again appealed, CR 507-09. On April 30, 2014, this Court issued its opinion

in that first interlocutory appeal. See City of New Braunfels v. Carowest Land,

Ltd., 432 S.W.3d 501 (Tex. App.—Austin 2014, no pet.) (Carowest I). Holding

that the City’s immunity was waived as to all of Carowest’s declaratory judgment

claims, including the South Tributary Claims at issue in this appeal, the Court

affirmed the district court’s denial of the City’s plea to the jurisdiction. Id. at 530-

35.

             With respect to Carowest’s South Tributary Claims at issue here, this

Court held that jurisdiction existed “by virtue of the waiver of immunity in Local


                                           8
Government Code chapter 271, [subsection] I and the limited jurisdiction that

arises by virtue of the City’s claim for monetary relief.” Id. at 534 (footnote

omitted). This Court also rejected the City’s argument that the claims in this case

were moot. Id. at 534-35.

In 2017, this Court wrongly held that the district court lacked jurisdiction over
Carowest’s North Tributary Claims.
              In accordance with this Court’s decision and direct guidance in

Carowest I, which acknowledged jurisdiction over these claims, Carowest’s North

Tributary Claims were severed by agreement into a new cause so that the threshold

question regarding the legality of awarding the North Tributary Contract to Yantis

could be determined. See Supp. CR 292-94. Following a trial on the merits, the

jury returned a unanimous verdict for Carowest, and the district court rendered

judgment consistent with that verdict. See CR 137-59. The City and Yantis each

appealed. On June 29, 2017, this Court issued its opinion, reversing itself as to the

North Tributary Claims and holding that governmental immunity barred

Carowest’s North Tributary Claims because neither TOMA nor the competitive

bidding statutes at issue waived sovereign immunity for declaratory relief.5 See

City of New Braunfels v. Carowest Land, Ltd., --- S.W.3d ---, No. 03-16-00249-


5
        Although not controlling here, the Carowest II opinion was, in Carowest’s view, wrongly
decided. Carowest explained its reasoning for that view in its Motion for Panel Rehearing and
Motion for Reconsideration En Banc, both filed on August 29, 2017, which remain pending
before the Court.


                                              9
CV, 2017 WL 2857142 (Tex. App.—Austin June 29, 2017, mtn. for reh’g

pending) (Carowest II).

             In Carowest II, the Court did not revisit or reconsider its prior

determination in Carowest I that the City had waived immunity for Carowest’s

South Tributary Claims at issue here.

Carowest’s South Tributary Claims have separate and distinct jurisdictional
bases from the North Tributary Claims.

             Meanwhile, while Carowest II was still pending, the trial court

granted Carowest partial summary judgment on the South Tributary Claims. See

CR 55-56. The Court then granted Carowest’s motion to sever these claims into a

separate action so that they could become final while the remaining claims

between the parties in the 2010 cause proceeded, see CR 57-59, leaving only the

issue of Carowest’s attorneys’ fees to be decided.

             Before that judgment became final, this Court issued its Carowest II

opinion. Relying on Carowest II, both the City and Yantis filed pleas to the

jurisdiction, see CR 77-130, CR 131-98, even though all of the City’s prior pleas as

they relate to Carowest’s South Tributary Claims have been denied and such denial

was already affirmed by this Court in Carowest I. See CR 436-37, Supp. CR 89,

Supp. CR 102. The City now asserts that the “exact same jurisdictional defect as

found in Carowest II applies to Carowest’s UDJA claims in this 2017 cause,” City

Br. at 11 (emphasis added). But in fact, Carowest has asserted two jurisdictional


                                         10
bases for the South Tributary Claims in this case, both of which are distinct from

the jurisdictional bases over the North Tributary Claims addressed in Carowest II:

(1) the City’s assertion of affirmative counterclaims against Carowest, and (2) the

statutory waiver of immunity contained in Chapter 271 of the Texas Local

Government Code. See CR 435-86.

               The district court properly denied both the City’s and Yantis’s pleas.

CR 1048, CR 1049.6 Pursuant to this Court’s analysis in Carowest I, the denial of

the City’s plea to the jurisdiction should be affirmed.7


6
       In the underlying litigation, three experienced judges (Hon. Charles Ramsay, Hon. Paul
Davis, and Hon. Margaret Mirabal) denied each of the City’s multiple pleas to the jurisdiction.
        Additionally, as it concerns Carowest’s South Tributary Claims, the grounds for
dismissal that the City asserts in its renewed plea to the jurisdiction are substantively the same as
those asserted in its earlier pleas. Because the City’s renewed plea is, in essence, a motion to
reconsider its earlier plea, Carowest respectfully suggests that this Court lacks jurisdiction to
consider the merits of the City’s interlocutory appeal. See City of Houston v. Estate of Jones,
388 S.W.3d 663, 667 (Tex. 2012) (holding that when a governmental entity, like the City, files a
plea to the jurisdiction or other procedural vehicle raising the same grounds as it did in a plea to
the jurisdiction previously denied by the trial court, the renewed plea is “substantively a motion
to reconsider the denial of [the original] plea” and that “[t]he court of appeals [does] not have
jurisdiction to consider any part of the merits of the interlocutory appeal” unless new facts or law
justify reconsideration); see also City of Houston v. Atser, L.P., 403 S.W.3d 354, 359 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) (holding that because the City failed to file a notice
of interlocutory appeal within twenty days of the trial court’s order denying the City’s original
plea to the jurisdiction, the court of appeals lacked jurisdiction to consider the merits of the
City’s interlocutory appeal of an order denying the City’s motion for summary judgment, which
raised the same immunity arguments).
        If this Court were to conclude that the City has presented new law sufficient to justify
reconsideration of its Chapter 271 argument, then at the very least the City’s appeal should be
dismissed insofar as it alleges that Carowest’s South Tributary Claims are barred by
governmental immunity even though the City elected to assert affirmative claims for relief. The
City presents no new facts or law that justify this Court’s reconsideration of its prior holding that
jurisdiction over Carowest’s South Tributary Claims is proper under Reata Construction Corp. v.
City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006) and its progeny.


                                                11
                          SUMMARY OF THE ARGUMENT
                In Carowest I, this Court affirmed the district court’s denial of the

City’s plea to the jurisdiction on the South Tributary Claims—the only two

declaratory judgment claims at issue in this case.                      Although this Court

subsequently held in Carowest II that different declaratory judgment claims—the

North Tributary Claims—asserted by Carowest against the City are barred by

governmental immunity, the Court did not reconsider its prior determination in

Carowest I that the South Tributary Claims are not barred by immunity. Indeed,

the Court had no reason to revisit its prior holding in Carowest I because the

jurisdictional bases for the South Tributary Claims and the North Tributary Claims

are distinct. As this Court held in Carowest I, the district court has jurisdiction

over the South Tributary Claims by virtue of the City having asserted affirmative

claims for relief against Carowest and by virtue of the statutory waiver of

immunity in Chapter 271 of the Texas Local Government Code. Carowest I, 432

S.W.3d at 534-35. The district court thus properly denied the City’s plea to the

jurisdiction.

                Under settled law, a governmental entity does not enjoy immunity

from suit for offsetting claims against it that are “germane to, connected with, and


7
        Carowest has filed a motion to dismiss Yantis’s appeal for lack of jurisdiction. If this
Court declines to dismiss Yantis’s appeal, it should affirm the district court’s denial of Yantis’s
plea to the jurisdiction.


                                                12
properly defensive to” affirmative claims asserted by the entity.              Reata

Construction Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006). The City

has asserted affirmative counterclaims against Carowest, including a pending claim

that Carowest breached the same provision of the same contract on which

Carowest’s South Tributary Claims are based. Having elected to seek affirmative

relief against Carowest, the City cannot now claim immunity from the South

Tributary Claims.

             Even if this Court were to conclude that the City’s assertion of

affirmative claims for relief did not abrogate its immunity, jurisdiction still exists

over the South Tributary Claims because Chapter 271 independently waives the

City’s immunity. Section 271.152 of the Texas Local Government Code provides

that “[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.” TEX. LOCAL GOV’T CODE ANN. § 271.152

(emphasis added). It is fundamental that the Uniform Declaratory Judgments Act

(“UDJA”) provides a remedy where subject matter jurisdiction already exists.

Here, the underlying subject matter of Carowest’s declaratory judgment claims—a

contract that the City concedes is subject to Section 271.152—falls squarely within

Chapter 271’s waiver of immunity. Because the Legislature waived immunity as

to Carowest’s breach of contract claims, it also waived immunity as to Carowest’s



                                         13
declaratory judgment claims based on the same contract. The City’s contrary

contention that Chapter 271 does not “expressly waive” immunity for declaratory

relief is both inconsistent with the principle that declaratory relief is “procedural”

in nature and conflicts with Texas Supreme Court authority. Consequently, this

Court must affirm the district court’s denial of the City’s plea to the jurisdiction.

             This Court has also already rejected the City’s argument that the

district court lacks jurisdiction over Carowest’s South Tributary Claims based on

the doctrine of mootness. The City has asserted a breach of contract claim against

Carowest alleging that Carowest breached the Letter Agreement’s indemnification

provision. Even accepting as true the City’s and Yantis’s assertion that the Delay

Claim was released, at the latest, in 2011, such release does not moot the South

Tributary Claims.     The declarations Carowest seeks regarding the validity of

Yantis’s Delay Claim and the timing of its release bear on Carowest’s past

compliance with the Letter Agreement. Because the City’s breach of contract

claim against Carowest remains pending in the 2010 Cause, Carowest’s South

Tributary Claims continue to implicate a live and justiciable controversy.

Additionally, even if this Court were to conclude that Carowest’s South Tributary

Claims are moot, Carowest’s claim for attorneys’ fees presents a live and

justiciable controversy over which the district court has jurisdiction.




                                          14
             As it concerns Yantis’s appeal, Carowest has filed a motion to dismiss

for lack of jurisdiction because no statute authorizes the interlocutory appeal of an

order denying a plea to the jurisdiction by a privately owned entity. If, however,

this Court declines to dismiss Yantis’s appeal, it should affirm the district court’s

denial of Yantis’s plea to the jurisdiction. First, the City is not an indispensable

party to Carowest’s declaratory judgment claims against Yantis because the South

Tributary Claims do not seek to void any contract to which the City is a party, as

Yantis erroneously asserts.     Second, the South Tributary Claims implicate a

justiciable controversy. All that is required for a court to proceed on a declaratory

judgment action is a threat of imminent litigation or likely injury. When Carowest

filed the South Tributary Claims, the disagreement between the City and Carowest

regarding the scope and application of the Letter Agreement’s indemnification

provision had, at the very least, manifested the ripening seeds of a controversy, if

not matured into an actual controversy.        Yantis’s claim that the controversy

remained hypothetical lacks any merit in light of the fact that the City has filed an

affirmative counterclaim against Carowest alleging that Carowest breached the

Letter Agreement’s indemnification provision.

             For the foregoing reasons, this Court should affirm the district court’s

denial of both the City’s and Yantis’s jurisdictional pleas.




                                          15
                                   ARGUMENT

I.    The trial court properly denied the City’s plea to the jurisdiction as to
      Carowest’s South Tributary Claims.

      A.     Carowest’s South Tributary Claims against the City are not
             barred by governmental immunity.
             The City’s assertion that “the exact same jurisdictional defect as found

in Carowest II applies to Carowest’s UDJA claims” in this case is patently

incorrect.   City Br. at 11.     The Court in Carowest II did not address the

jurisdictional basis for either of the two declaratory judgment claims here. Instead,

this Court concluded that jurisdiction was lacking over the North Tributary Claims

because neither TOMA nor the competitive bidding statutes at issue expressly

waived governmental immunity for declaratory relief. See Carowest II, 2017 WL

2857142, at *4-6. Here, by contrast, jurisdiction over the South Tributary Claims

exists because: (1) the City asserted counterclaims for affirmative relief against

Carowest, and (2) Chapter 271 of the Texas Local Government Code waives

immunity for declaratory judgment claims arising from contracts subject to that

chapter. The distinct jurisdictional bases for the South Tributary Claims were not

even considered by the Court in Carowest II, which concerned only the North

Tributary Claims.    This case, in fact, is governed by the Court’s opinion in

Carowest I, which affirmed the denial of the City’s plea to the jurisdiction as to the

very same South Tributary Claims at issue here because, as the Court held, (1) the

City left its “sphere of immunity from suit” by asserting claims for affirmative

                                         16
relief against Carowest, and (2) the claims fall “within the district court’s

jurisdiction to adjudicate by virtue of the waiver of immunity in Local Government

Code chapter 271, [subchapter] I.” Carowest I, 432 S.W.3d at 523, 534-35.

               1.      Jurisdiction over Carowest’s South Tributary Claims exists
                       because the City asserted an affirmative counterclaim
                       alleging breaches of the Letter Agreement.

               Under settled law, a governmental entity cannot seek affirmative relief

on one hand and claim immunity from related claims by that party against it on the

other. In City of Dallas v. Albert, the Supreme Court explained that the City could

not claim immunity because it had filed a counterclaim and could not “reinstate”

its immunity by a subsequent nonsuit. 354 S.W.3d 368, 375-77 (Tex. 2011).

Albert thus clarified and reaffirmed the Supreme Court’s prior holding in Reata,8

that a governmental entity does not enjoy immunity from suit for claims against it

that are “germane to, connected with, and properly defensive to” affirmative claims




8
        Although the Reata rule has at times been described as creating a limited waiver of
sovereign immunity, the Supreme Court has characterized the Reata rule as a situation in which
immunity simply does not exist, rather than a situation in which immunity is waived. See, e.g.,
Albert, 354 S.W.3d at 374 (“Although litigation actions of governmental entities underlay our
decisions in Reata and similar cases, we did not hold that those actions effected waivers of
immunity; rather, they were factors considered in defining the contours of immunity.”); City of
Midland v. Goerlitz, 201 S.W.3d 689, 690 (Tex. 2006) (remanding to give plaintiff an
“opportunity to argue . . . that the City’s immunity from suit either does not exist pursuant to our
decision in Reata or that it has been waived by [Chapter 271]”); City of Houston v. United Water
Servs., 201 S.W.3d 690, 691 (Tex. 2006) (same).


                                                17
asserted by the entity, to the extent the claims against the entity offset the entity’s

claims.9 Albert, 354 S.W.3d at 374-75.

              As Justice Brister explained in his concurring opinion in Reata:

“[W]hen the government brings its own affirmative claims, it has obviously

concluded that the distraction and expense of litigation is worthwhile in that

particular case.”      Reata Constr. Corp, 197 S.W.3d at 382-83 (Brister, J.,

concurring); see also Albert, 354 S.W.3d at 377 (“[A]fter governmental entities

decide to litigate, they are bound to participate in the litigation process as an

ordinary litigant.”). Such is the case here. The City, rather than standing on its

initial plea to the jurisdiction, chose to invoke the jurisdiction of the district court

and, therefore, is not immune from Carowest’s claims concerning the same

contract.

              The following chronology of pleadings in this case demonstrates that

the trial court’s denial of the City’s plea to the jurisdiction as to Carowest’s South

Tributary Claims was proper under Reata and Albert:

               November 3, 2010 – Carowest files Original Petition for
                Declaratory Relief, CR 5-12;

               November 29, 2010 – City files Original Answer and Plea to
                Jurisdiction, Supp. CR 4-8;

9
        Courts have acknowledged that the Reata rule extends to both contract and tort claims.
See, e.g., Sweeny Cmty. Hosp. v. Mendez, 226 S.W.3d 584, 592–93 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (by filing affirmative counterclaims, state hospital waived immunity for
counterclaims for tortious interference, defamation, and other torts).


                                             18
              January 11, 2011 – Carowest files First Amended Petition against
               City adding breach of contract claims, Supp. CR 15-24;

              March 17, 2011 – Court denies City’s Plea to the Jurisdiction,
               Supp. CR 89;

              June 16, 2011 – After dismissing its own appeal, City files its
               Original Counterclaim asserting claims for breach of contract,
               declaratory relief, and specific performance and seeking to enforce
               the same Letter Agreement that forms the basis of Carowest’s
               declaratory judgment claims, CR 833-930;

              August 5, 2016 – Court grants partial summary judgment on
               Carowest’s two declaratory judgment claims at issue in this case,
               CR 55-56; and

              March 21, 2017 – Court severs these declaratory judgment claims
               into the instant case, Supp. CR 292-94.

             As reflected in the above timeline, in June 2011, relying on the Letter

Agreement, the City chose to go on the offensive and filed affirmative claims,

including a breach of contract claim, seeking monetary relief against Carowest.

See CR 833-930. Once the City did so, the district court also acquired jurisdiction

over Carowest’s claims that are “germane to, connected with, and properly

defensive to the City’s claims, to the extent [Carowest’s] claims offset those

asserted by the City.” Reata Constr. Corp., 197 S.W.3d at 373. Carowest’s South

Tributary Claims are clearly “germane to and connected with” the City’s breach of

contract counterclaim—they are based on the same provision of the Letter

Agreement.     Carowest’s claims are also properly defensive to the City’s

counterclaim because judicial declarations that Yantis’s Delay Claim was released


                                        19
in October 2009 or May 2010 and that Carowest therefore never had any obligation

to indemnify the City would rebut, at least in part, the City’s claim that “Carowest

breached the Letter Agreement by refusing to indemnify and hold the City

harmless for Yantis’s delay claim.” CR 49.

            In its brief, the City does not deny that it has asserted affirmative

counterclaims against Carowest, see CR 55-64, or that its counterclaims remain

pending in the 2010 Cause from which the South Tributary Claims at issue here

were severed. Moreover, in opposing Carowest’s motion to sever, the City both

affirmed that it “has asserted counterclaims,” including a breach of contract claim

that “clearly implicates Yantis’s Delay Claim,” CR 933. The City further stated:

            The claims Carowest seeks to have severed and the
            City’s pending breach of contract counterclaim implicate
            the exact same provision of the exact same contract. . . .
            [quoting Letter Agreement § 3]. Because Carowest’s
            claims relating to the Delay Claim and the City’s
            counterclaim relating to the Delay claim are interwoven,
            severance should not be granted.

CR. 934. In other word, the City essentially conceded that Carowest’s South

Tributary Claims are germane to, connected with, and properly defensive to the

City’s breach of contract counterclaim. The City nonetheless asserts that it is

immune from the South Tributary Claims because “[d]eclaratory relief, by its

nature, does not and cannot operate as an offset.” City Br. at 22. The terseness of

the City’s argument on this point is revealing.      It cites only one unreviewed



                                        20
decision, City of McKinney v. Hank’s Restaurant Group, 412 S.W.3d 102, 116

(Tex. App.—Dallas 2013, no pet.), to support its position. Other than Hank’s,

Carowest has found no case expressly limiting the Reata rule to monetary claims,

and the City offers no compelling or even plausible reason why a “properly

defensive” declaratory judgment claim, such as those asserted by Carowest, could

not be said to “offset” the City’s breach of contract claim.

             Indeed, multiple cases have held that that a governmental entity that

asserts claims for affirmative relief is not immune from related declaratory

judgment claims under Reata. See, e.g., City of Conroe v. TPProperty LLC, 480

S.W.3d 545, 569 (Tex. App.—Beaumont 2015, no pet.) (“Most of the declarations

[plaintiff] seeks would have the effect of establishing the parties’ rights and

liabilities under the agreements. We have held the very issues these declarations

seek to affirm are within the trial court’s jurisdiction to adjudicate by virtue of the

City’s limited waiver of immunity arising from the City’s counterclaims seeking

monetary relief.”); Archer Grp., LLC v. City of Anahuac, 472 S.W.3d 370, 377-78

(Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that governmental entities

were not immune from counterclaims against the entities, including claim for

declaratory relief, because counterclaims “were germane to, connected with, and

properly defensive to” the entities’ affirmative claims for relief); Carowest I, 432

S.W.3d at 523, 534 (noting that “the City has left its ‘sphere of immunity from



                                          21
suit’” by seeking affirmative relief, and thus rejecting the “City’s attempt to raise

governmental immunity as a jurisdictional bar to Carowest’s declaratory claim

founded on the same subject matter”); Redburn v. Garrett, No. 13-12-00215-CV,

2013 WL 2149699, at *10 (Tex. App.—Corpus Christi May 16, 2013, pet. denied)

(mem. op.) (“We conclude that appellant’s claim for a declaratory judgment that

the City ‘does not have an easement or other legal authority to enter [appellant’s]

property’ is sufficiently connected to the City’s claim that the City has an easement

encumbering appellant’s property. If it were established, appellant’s claim would

defeat the City’s claim and vice versa. Therefore, the trial court has jurisdiction to

hear appellant’s claim for declaratory judgment.”).

               The holdings in these cases also comport with the plain meaning of

“offset,” which is “something that serves to counterbalance or to compensate for

something else.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11 ed. 2003);

see also BLACK’S LAW DICTIONARY (10 ed. 2014) (“Something (such as an amount

or claim) that balances or compensates for something else”). So too are these cases

consistent with the policy rationale underlying the judicial abrogation of immunity

announced in Reata.10 Here, the City invoked the district court’s jurisdiction to



10
        In Reata, Justice Brister explained the Court’s rationale for limiting a governmental
entity’s abrogation of immunity to “offsetting” claims as follows: “By filing suit on a claim, a
government consents to have the courts decide its entitlement to a particular sum of money, but
no more.” Reata Constr. Corp., 197 S.W.3d at 383 (Brister, J., concurring). Albert reiterates
that the limitation is intended to preclude a litigant from asserting claims against a governmental

                                                22
decide the City’s entitlement to damages for Carowest’s alleged breach of the

Letter Agreement’s indemnification provision. Because Carowest’s related

declaratory judgment claims do not seek any affirmative monetary relief from the

City, much less monetary relief in excess of the amount of damages claimed by the

City, the district court also acquired jurisdiction over Carowest’s South Tributary

Claims. As the court in Bandera County v. Hollingsworth cogently explained:

              In Reata, the court noted that the considerations
              underlying immunity from suit were not adversely
              implicated by its holding. By choosing to engage in
              litigation to assert its own affirmative claims for
              monetary damages, the entity has presumably made a
              decision to expend resources to pay litigation
              costs. Because the opposing party’s claims can operate
              only as an offset to reduce the government’s recovery,
              the fiscal planning of the entity should not be disrupted. .
              . . Similarly, in this case, “we see no ill befalling the
              governmental entity or hampering of its governmental
              functions” by allowing [plaintiffs] to assert a . . . bare
              declaratory judgment claim [that] does not seek monetary
              relief and does not seek to affect the County's
              policymaking functions. . . . We hold the County is not
              immune from that claim and the trial court did not err in
              denying the plea to the jurisdiction with respect to that
              claim.

419 S.W.3d 639, 644-45 (Tex. App.—San Antonio 2013, no pet.) (internal

citations omitted); cf. Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d

407, 413-14 (Tex. 2011) (assuming that declaratory judgment counterclaim


entity that are “for amounts over and above the amount that would offset the [entity’s] claim.”
Albert, 354 S.W.3d at 374.


                                              23
asserted by governmental entity, absent an accompanying claim for monetary

damages, would fall within Reata’s offset holding and thereby abrogate

governmental immunity).

             Because Carowest has established that jurisdiction exists over its

South Tributary Claims under Reata and its progeny, no separate statutory waiver

of immunity is required. This Court should therefore affirm the trial court’s denial

of the City’s plea to the jurisdiction.

             2.     Jurisdiction over Carowest’s South Tributary Claims exists
                    pursuant to Texas Local Government Code Section 271.152.
             Even if this Court were to conclude that jurisdiction is lacking over

Carowest’s South Tributary Claims notwithstanding the City’s assertion of

affirmative claims for relief under the same contract, the trial court would still have

had jurisdiction because Chapter 271 independently waives the City’s immunity

from Carowest’s claims.

             Section 271.152 of the Texas Local Government Code (“Section

217.152”) provides that “[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.” TEX. LOCAL GOV’T

CODE ANN. § 271.152 (emphasis added).              In its prior briefing, the City

acknowledged that it “agreed to be bound by the provisions of Chapter 271 of the

Local Government Code concerning the July 27, 2009 Letter Agreement between


                                          24
the City and Carowest.” CR 809. Moreover, the City does not contend here that

the Letter Agreement falls outside the scope of Chapter 271. Instead, the City

argues that Chapter 271 waives immunity only for “a claim for breach of contract”

seeking monetary damages, not for a declaratory judgment claim, even if such

claim arises from a contract subject to Section 271.152. See City Br. at 16-22.

This argument misconstrues the fundamental nature of declaratory relief.

                The UDJA neither confers new substantive rights upon parties nor

augments a court’s subject matter jurisdiction; it is rather “a procedural device for

deciding cases already within a court’s jurisdiction.” See, e.g., Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); Hendee v. Dewhurst,

228 S.W.3d 354, 379 n.31 (Tex. App.—Austin 2007, pet. denied) (UDJA

“provide[s] a remedy where subject matter jurisdiction otherwise exists”); TEX.

CIV. PRAC. & REM. CODE ANN. § 37.003(a) (“A court of record within its

jurisdiction has power to declare rights, status, and other legal relations whether or

not further relief is or could be claimed.”) (emphasis added). Thus, governmental

immunity does not bar a declaratory judgment action where the legislature has

waived immunity as to the underlying “subject matter of the claim.” Tex. Dep’t of

State Health Servs. v. Balquinta, 429 S.W.3d 726, 746 (Tex. App.—Austin 2014,

pet. dism’d).




                                         25
               The “procedural” as opposed to “substantive” nature of declaratory

relief is critically important. Here, the underlying subject matter of Carowest’s

declaratory judgment claims—the Letter Agreement that the City acknowledges is

subject to Section 271.152—falls squarely within the statute’s waiver of

governmental immunity.          Because the Legislature waived immunity as to

Carowest’s breach of contract claims, it also waived immunity as to Carowest’s

declaratory judgment claims based on the same contract. As discussed below, this

result is consistent with both the language and purpose of Chapter 271, as well as

Texas Supreme Court jurisprudence.

               Chapter 271 waives a local governmental entity’s immunity for cases

“adjudicating a claim for breach of the contract.” TEX. LOCAL GOV’T CODE §

271.152. The plain text of the statute does not exclude declaratory relief from the

scope of its waiver. Moreover, the Supreme Court has concluded that Chapter 271

waives immunity from suit for a declaratory judgment action that seeks to construe

a contract that would otherwise fit within the statute—i.e., a “contract subject to

this subchapter.” See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex.

Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 326-28

(Tex. 2006).

               In Ben Bolt, a school district sued a political subdivision’s joint self-

insurance fund after the fund denied the school district’s claim for water damage.



                                           26
Id. at 322-23. The school district brought a declaratory judgment action against the

fund seeking only a declaration that the water damage was a covered loss; the

district did not plead for contract damages. Id. The Court rejected the fund’s

claim that it was immune from suit, concluding that any such immunity was

waived pursuant to Section 271.152. Id. at 328 (Section 271.152 “waives the

Fund’s immunity from Ben Bolt’s claim arising out of the insurance agreement

between the parties.”) (emphasis added). In reaching this conclusion, the Court

looked to the legislative history of Chapter 271 and explained that “the Legislature

intended to loosen the immunity bar so ‘that all local governmental entities that

have been given or are given the statutory authority to enter into contracts shall not

be immune from suits arising from those contracts.’” Id. at 327 (quoting HOUSE

COMM.      ON   CIVIL PRACTICES, Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S.

(2005)).

                As in Ben Bolt, Carowest’s South Tributary Claims against the City

arise out of a contract that is subject to Section 271.152. Indeed, the City admits

that much. Through its declaratory judgment claims, Carowest seeks to adjudicate

the City’s allegation that Carowest breached its obligation under the Letter

Agreement to indemnify and hold the City harmless. Those claims, just like a

breach of contract claim, come within the scope of Chapter 271’s waiver.

Furthermore, Carowest has asserted claims against the City alleging multiple



                                         27
breaches of the City’s contractual obligations under the Letter Agreement, which

remain pending in the 2010 Cause. See CR 15-44. Hence, Carowest is seeking

declaratory relief as a defense against the City’s breach of contract counterclaim

and in connection with Carowest’s own breach of contract claim,11 not a mere

declaration of rights in order to extract attorneys’ fees from the City, as the City

repeatedly avers.12 See City Br. at 1-2, 20.

               The City’s arguments that Chapter 271 does not waive immunity for

declaratory relief lack merit.           First, the City cites Texas Natural Resources

Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855-56 (Tex. 2002), for the

proposition that suits “against the government seeking to establish a contract’s

validity, or to enforce performance under a contract, or to impose contractual

liabilities, are barred by immunity because such suits attempt to control state

action.” City Br. at 15. Although the UDJA admittedly does not alter this rule, the

City ignores the effect of Chapter 271’s enactment in 2005 (after IT-Davy was

11
       That Carowest’s South Tributary Claims in this suit were severed, for efficiency, into a
separate action following a grant of partial summary judgment in Carowest’s favor does nothing
to change this fact.
12
        Omitting the critical fact that the City initiated this dispute by seeking indemnification for
Yantis’s purported delay claim from Carowest, the City maintains that the Legislature did not
design Chapter 271 to “allow a company that disputes the terms of its contract with a
municipality to file a lawsuit merely to get a declaration of its rights under the contract, when the
company has suffered no harm from the contract dispute, and then seek recovery from the
municipality in the form of attorneys’ fees.” City Br. at 2. Even assuming the City were correct,
which it is not, this argument implicates only the waiver of the City’s immunity under Chapter
271, not the separate and independent abrogation of the City’s immunity by virtue of the City’s
asserting an affirmative counterclaim against Carowest for breach of the Letter Agreement. See
supra at Section I.A.1.


                                                 28
decided). IT-Davy proscribed the use of declaratory judgments to bring a breach of

contract claim through the back door at a time when such claims were prohibited

because jurisdiction was lacking for the underlying claims. See, e.g., Creedmoor-

Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 515

(Tex. App.—Austin 2010, no pet.) (asserting that a declaratory judgment claim is

“barred by sovereign immunity if the remedy would have the effect of establishing

a right to relief against the [s]tate that implicates sovereign immunity and for

which immunity has not been waived.”) (emphasis added). Chapter 271’s broad

waiver now permits breach of contract claims to come through the front door.

Thus, for claims arising from contracts subject to Chapter 271, there is no longer

any concern that litigants could plead declaratory judgment claims in an attempt to

obtain contract relief not otherwise available. As the court explained in Texas

Association of School Boards Risk Management Fund v. Benavides Independent

School District:

             If we had held that immunity from suit had not been
             waived with respect to the contractual claims, then the
             Fund would have been correct—the School District could
             not have circumvented immunity by characterizing their
             dispute as a declaratory-judgment claim. However,
             because we have held that immunity from suit has been
             waived, the School District’s declaratory-judgment
             action is not barred by the holding in IT-Davy.




                                        29
221 S.W.3d 732, 740 (Tex. App.—San Antonio 2007, no pet.). The same is true

here. Because Chapter 271 waives immunity for Carowest’s contractual claims,

the holding in IT-Davy does not prohibit Carowest’s declaratory judgment claims.

             Second, the City asserts that Ben Bolt is inapposite because the

Supreme Court simply assumed that declaratory relief was available under Chapter

271 without specifically addressing the question of whether Chapter 271 waives

immunity for declaratory judgment claims. See City Br. at 21. But, in reaching its

judgment, Ben Bolt just applied the well-settled principle that the UDJA is a

procedural device for deciding cases that already come within a court’s

jurisdiction. See, e.g., Tex. Ass’n of Bus., 852 S.W.2d at 444, and its progeny.

             Third, contrary to the City’s contention, the Supreme Court has not

“answered the specific immunity question presented here,” thereby sub silentio

overruling this Court’s ruling in Carowest I. See City Br. at 16-17 (referencing

Zachry Corporation v. Port of Houston Authority, 449 S.W.3d 98, 105 (Tex.

2014)). In Zachry, the Court construed Chapter 271 and concluded that it “does

not waive immunity from suit on a claim for damages not recoverable under

Section 271.153,” which places limits on damages awards for breach of a contract

subject to Chapter 271. Zachry Constr. Corp., 449 S.W.3d at 110. As the City

admits, “claims for declaratory relief were not at issue in Zachry.” See City Br. at

16. The Court therefore did not opine on whether immunity is waived under



                                         30
Section 271.152 as it concerns claims for declaratory relief.               Nor did the Court

announce that it was departing from, much less overruling, its prior decision in Ben

Bolt13 or otherwise modifying the established principle that a trial court may award

relief under the UDJA when “deciding cases already within [its] jurisdiction.”

Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996).14                    In fact, the word

“declaratory” appears nowhere in Zachry.

               Even after deciding Zachry, the Texas Supreme Court has signaled

that Chapter 271’s waiver encompasses claims for declaratory relief. In Klumb v.

Houston Municipal Employees Pension System, Petitioners and the City of

Houston sought declaratory and injunctive relief, alleging, among other things, that

the pension board acted ultra vires by delegating decision-making authority to a

committee in violation of a contractual meet-and-confer agreement between the

Pension System and the City of Houston. 458 S.W.3d 1, 12 (Tex. 2015). The

Court held that this declaratory judgment claim was barred by governmental

immunity, pointing to an analytically identical sovereign immunity holding that

“declaratory-judgment suits against state officials seeking to establish a contract’s

13
        Zachry contains a lengthy footnote expressing the Court’s disapproval of certain cases “to
the extent they are contrary.” Zachry Constr. Corp., 449 S.W.3d at 110 n.54. Ben Bolt is not
among the cases listed.
14
        Where an intervening Supreme Court opinion, like Zachry, is not clearly on point, this
Court remains bound by prior on-point Supreme Court precedent. See Lawson v. Keene, No. 03-
13-00498-CV, 2016 WL 767772, at *4 (Tex. App.—Austin Feb. 23, 2016, pet. denied) (mem.
op.). Hence, Carowest’s reliance on cases predating and not squarely overruled by Zachry is
proper.


                                               31
validity, to enforce performance under a contract, or to impose contractual

liabilities are suits against the State. . . . Consequently, such suits cannot be

maintained without legislative permission.” Id. at 12 (quoting IT–Davy, 74 S.W.3d

at 855-56). Concluding that “[n]o waiver of immunity is alleged or supported on

the record” for petitioner’s declaratory judgment claim, the Court further noted:

             Although the Legislature has waived a local
             governmental entity’s sovereign immunity to suit for
             contracts for goods or services, the waiver does not apply
             here because the meet-and-confer agreement is not a
             contract for goods or services.

Id. at 12 & n.7 (citing Zachry Constr. Corp., 449 S.W.3d at 106). Certainly the

Court would not have cited Zachry if Chapter 271’s waiver of immunity cannot

extend to claims for declaratory relief arising from a contract subject to that

chapter.

             Unable to marshal any on-point authority from the Texas Supreme

Court or this Court expressly stating that Chapter 271 does not waive immunity for

declaratory relief, the City looks instead to decisions from other courts of appeals.

See City Br. at 18-19. But three of the five cases the City cites do not support its

blanket contention that “Chapter 271 does not waive immunity for UDJA claims.”

Id. at 18. In Saifi v. City of Texas City, the trial court granted the city’s plea to the

jurisdiction on all of plaintiff’s claims, including breach of contract and declaratory

judgment claims. No. 14-13-00815-CV, 2015 WL 1843540, at *2 (Tex. App.—



                                           32
Houston [14th Dist.] Apr. 23, 2015, no pet.). On appeal, the Fourteenth Court of

Appeals concluded that plaintiff had failed to plead sufficient facts affirmatively

demonstrating the existence of a contract subject to Chapter 271 and remanded to

give plaintiff an opportunity to amend his pleadings in this regard. Id. at *6. With

respect to plaintiff’s claim for declaratory relief, the court did not hold that

declaratory relief is unavailable under Chapter 271. Instead, the Court reasoned as

follows:

             Because [plaintiff’s] requested [declaratory] relief may
             be sought in connection with his breach of contract claim
             if he establishes on remand that the City’s immunity is
             waived under Local Government Code section 271.152 . .
             . we conclude it is unnecessary to reach this issue.
             However, to the extent [plaintiff] contends that he may
             separately seek declarations that he is not in breach of the
             [contract] and is entitled to reinstatement, the UDJA does
             not waive the City’s immunity for the requested relief.

Id. at *9 (emphasis added). Hence, the court announced it was declining to reach

the very issue the City claims Saifi supports. Additionally, the court acknowledged

that plaintiff could seek the declaratory relief requested so long as he could

establish a waiver of immunity under Chapter 271 for his breach of contract claim,

and then reiterated the settled principle, which Carowest recognizes, that the UDJA

does not itself give rise to jurisdiction absent a separate waiver of immunity for the

underlying cause of action. Because Carowest does not assert that the UDJA

confers jurisdiction over its declaratory judgment claims, Saifi is inapposite. If



                                         33
anything, Saifi’s comment that plaintiff could seek the requested declaratory relief

if it were determined that Chapter 271 applied underscores the propriety of the

district court’s order denying the City’s plea to the jurisdiction here.

             Similarly, in National Public Finance Guarantee Corporation v.

Harris County-Houston Sports Authority, plaintiff brought a breach of contract

action against the county sports authority and sought declaratory relief against both

the sports authority and the convention corporation, which served as stadium

landlord. 448 S.W.3d 472, 476 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

The First Court of Appeals held that the sports authority had waived immunity

under Chapter 1371 of the Government Code, and thus never addressed whether

the authority had waived immunity under Chapter 271. Id. at 479-82. With

respect to the convention corporation, a separate defendant against whom plaintiff

did not allege any breach of contract, the court narrowly held that Chapter 271

does not “waive[] immunity of a governmental entity that is not alleged to have

breached a contract.” Id. at 484. Because both Carowest and the City allege that

the other has committed multiple breaches of the Letter Agreement, which they

admit is subject to Chapter 271, National Public Finance is also distinguishable.

             Third, the court in San Antonio River Authority v. Austin Bridge &

Road, L.P., like the Supreme Court in Zachry, analyzed whether monetary

damages claimed by plaintiffs were recoverable under Section 271.153 such that



                                          34
immunity had been waived under Section 271.152. No. 04-16-00535-CV, 2017

WL 3430897, at *8 (Tex. App.—San Antonio Aug. 9, 2017, pet. filed) (mem. op.).

The court did not specifically opine on the scope of Chapter 271’s waiver of

immunity insofar as it concerns declaratory judgment claims.

               Although the remaining two cases cited by the City—Lower Colorado

River Authority v. City of Boerne, 422 S.W.3d 60, 66-67 (Tex. App.—San Antonio

2013, pet. dism’d), and City of Pearsall v. Tobias, No. 04-15-00302-CV, 2016 WL

1588400, at *2 (Tex. App.—San Antonio Apr. 20, 2016, no pet.) (mem. op.)—

hold that Chapter 271 simply does not waive immunity for declaratory relief, see

City Br. at 18-19, two decisions from one court authored by the same justice

cannot outweigh contrary Supreme Court authority or this Court’s own authority in

Carowest I.       Hence, the City’s assertion that its Chapter 271 argument is

“consistent with Texas case law” is an overstatement. See City Br. at 18.15




15
        In analyzing the scope of section 271.152’s waiver of immunity and concluding that it
does not extend to declaratory judgment claims, Lower Colorado River Authority relied on cases
holding that section 271.152 does not waive immunity “in the absence of a properly pleaded
breach of contract claim.” 422 S.W.3d at 67 (citing City of San Antonio ex rel. City Pub. Serv.
Bd. v. Wheelabrator Air Pollution Control, Inc., 381 S.W.3d 597 (Tex. App.—San Antonio
2012, pet. denied) (no waiver of immunity under Section 271.152 for quantum meruit claim) and
Ghidoni v. Bexar Metro. Water Dist., No. 04-07-00377-CV, 2007 WL 2481034, at *1-2 (Tex.
App.—San Antonio Sept. 5, 2007, no pet.) (mem. op.) (no waiver of immunity under Section
271.152 for fraud claims)). Because the plaintiff in Lower Colorado River Authority pled that
the city breached a contract subject to Chapter 271, the case is not only distinguishable from the
authorities on which it relies, but wrongly decided. So too was City of Pearsall, which relied on
Lower Colorado River Authority, wrongly decided.


                                               35
            Next, the City maintains that where a plaintiff asserts a declaratory

judgment claim against a municipality in reliance on a statute other than the UDJA,

such statute must expressly provide that it is waiving immunity for declaratory

relief. See City Br. at 19 (citing Tex. Dept. of Transp. v. Sefzik, 355 S.W.3d 618,

622 (Tex. 2011)). But the authority the City cites does not support its argument on

this point. In Sefzik, the Texas Supreme Court explained as follows:

            As we have consistently stated, the UDJA does not
            enlarge the trial court’s jurisdiction but is “merely a
            procedural device for deciding cases already within a
            court’s jurisdiction.” Tex. Parks & Wildlife Dep’t v.
            Sawyer Trust, 354 S.W.3d 384, 388 (2011) (quoting Tex.
            Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
            444 (Tex. 1993)). Accordingly, the underlying action, if
            against the state or its political subdivisions, must be one
            for which immunity has expressly been waived.

Sefzik, 355 S.W.3d at 621-22 (emphasis added); see also Tex. Dep’t of State

Health Servs., 429 S.W.3d at 746 (“[A] UDJA declaratory claim asserted directly

against a state agency or official . . . will ordinarily be barred by sovereign

immunity, thereby divesting the trial court of jurisdiction, unless the Legislature

has waived immunity as to the subject matter of the claim.”) (emphasis added). In

other words, Texas law permits declaratory relief where there is an express waiver

of immunity for the underlying action or subject matter of the claim. Pursuant to a

straightforward application of this principle, when the Legislature waived

immunity for breach of contract actions under Chapter 271, it also waived



                                        36
immunity for declaratory judgment actions arising from contracts subject to

Chapter 271. That is precisely Carowest’s argument here.

             Because Carowest has established that Chapter 271 waives immunity

for its South Tributary Claims against the City, the district court’s denial of the

City’s plea to the jurisdiction should be affirmed on this independent and

alternative basis.

      B.     Carowest’s South Tributary Claims against the City implicate a
             justiciable controversy.
             The City contends that even if the City has waived immunity,

Carowest’s South Tributary Claims are now moot in light of the Rule 11

Agreement’s purported release of Yantis’s Delay Claim. See City Br. 23-29. This

argument is without merit, and was properly rejected in Carowest I. But even if

the declaratory relief sought by Carowest were moot, Carowest’s claim for

attorneys’ fees would remain a live controversy over which the Court has subject

matter jurisdiction.

             1.        Carowest’s declaratory judgment claims are not moot.

             “A case becomes moot when: (1) it appears that one seeks to obtain a

judgment on some controversy, when in reality none exists; or (2) when one seeks

a judgment on some matter which, when rendered for any reason, cannot have any

practical legal effect on a then-existing controversy.” Bexar Metro. Water Dist. v.

City of Bulverde, 234 S.W.3d 126, 131 (Tex. App.—Austin 2007, no pet.). In


                                          37
Carowest I, this Court rejected the City’s mootness argument, explaining that

“even if the release [in the Rule 11 Agreement] is assumed to resolve the delay

claim prospectively from the date of its execution, the validity of the delay claim

would still remain a live and justiciable issue to the extent it bears upon the parties’

past compliance with the Letter Agreement’s indemnification provisions.”

Carowest I, 432 S.W.3d at 535.          Thus, Carowest’s South Tributary Claims

continue to implicate a justiciable controversy notwithstanding this Court’s

subsequent dismissal in Carowest II of separate declaratory judgment claims

seeking to void the Rule 11 Agreement.16

             The City has asserted an affirmative claim against Carowest, alleging

that Carowest breached the Letter Agreement by “refusing to hold harmless and

indemnify the City against Yantis’s delay claim.” CR 49-50. This claim clearly

concerns    Carowest’s     “past   compliance      with   the    Letter   Agreement’s

indemnification provisions.” Carowest I, 432 S.W.3d at 535. The City’s assertion

that “[t]here is no existing dispute that is dependent on the delay claim being valid

or invalid in the time period from October 21, 2009, to May 11, 2011,” City Br. at

27, is simply untrue. The City argues that it does “not make any difference” today

whether Yantis released its delay claim “in October 2009 or May 2010, as opposed

to May 2011.” See City Br. at 25-26. But the City’s contention that the triggering
16
      As previously noted, Carowest’s Motion for Panel Rehearing and Motion for
Reconsideration En Banc, filed in Carowest II, remain pending before the Court.


                                          38
of Carowest’s indemnification obligations is unrelated to the validity of Yantis’s

Delay Claim remains a disputed issue.          It is Carowest’s position that the

declarations it seeks regarding the validity of Yantis’s Delay Claim and the timing

of its release would rebut the City’s pending counterclaim that Carowest breached

its obligations to indemnify and hold the City harmless. Because Carowest’s South

Tributary Claims will have a “practical legal effect on a then-existing

controversy,” Bexar Metro. Water Dist., 234 S.W.3d at 131, this Court should

decline to reverse the trial court’s order denying the City’s plea to the jurisdiction

based on the doctrine of mootness.

             2.    Carowest’s claim for attorneys’ fees is not moot.
             Even if this Court were to conclude that Carowest’s South Tributary

claims are moot, Carowest’s claim for attorneys’ fees remains a live, justiciable

controversy over which the district court has subject matter jurisdiction. See, e.g.,

Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005); Camarena v. Tex.

Emp’t Comm’n, 754 S.W.2d 149, 150 (Tex. 1988); see also Zurita v. SVH-1

Partners, Ltd., No. 03-10-00650-CV, 2011 WL 6118573, at *8 (Tex. App.—

Austin Dec. 8, 2011, pet. denied) (mem. op.) (affirming trial court’s award of

attorneys’ fees where declaratory judgment claims were dismissed as moot and

noting that the UDJA “does not require a judgment on the merits of the dispute as a

prerequisite to a fee award”).



                                         39
            In Hallman, landowners sued Hallman for property damages resulting

from Hallman’s nearby mining activities. 159 S.W.3d at 641. Hallman requested

indemnity from his insurance carrier, Allstate, which provided a defense under a

reservation of rights and then filed a declaratory judgment suit to determine

coverage. Id. Hallman filed counterclaims, and both parties sought attorneys’

fees. Id. The parties filed cross-motions for summary judgment, and the trial court

entered judgment in favor of Allstate. Id. at 642. The court of appeals reversed,

rendered judgment for Hallman, and remanded for further proceedings on

attorneys’ fees. Id. While on appeal to the Texas Supreme Court, the underlying

case by the landowners against Hallman settled, and Allstate did not seek

reimbursement for its defense. Id. In light of these facts, the Court sua sponte

considered whether the declaratory judgment claim regarding coverage was moot.

Id. at 643. The Court concluded that even though the underlying lawsuit had been

settled, “Hallman’s remaining interest in obtaining attorney’s fees ‘breathes life’

into this appeal and prevents it from being moot.” Id. at 643 (emphasis added).

            Similarly, in Camarena v. Texas Employment Commission, the Texas

Supreme Court held that a dispute over of attorneys’ fees remains a live

controversy even after a substantive claim for relief becomes moot. In Camarena,

farm workers sued the Texas Employment Commission seeking to have a statutory

agricultural exemption to unemployment benefits declared unconstitutional. 754



                                        40
S.W.2d 149, 150 (Tex. 1988). While the suit was pending, the Texas legislature

amended the statute to provide the farm workers with unemployment benefits. Id.

Addressing whether the amendment rendered the suit moot, the Texas Supreme

Court explained:

             Clearly, a controversy exists between the farm workers
             and the [Texas Employment Commission]. The “live”
             issue in controversy is whether or not the farm workers
             have a legally cognizable interest in recovering their
             attorney’s fees and costs. The fact that the Legislature
             wisely undertook action to bring the farm workers within
             the scope of [the Texas Unemployment Compensation
             Act] does not moot or void the workers’ interest in
             obtaining attorneys fees and costs for the successful
             disposition of their claim. . . . Due to the existence of the
             “live” issue of attorney’s fees and costs, we hold that the
             suit was not moot.
Id. at 151 (emphasis added).

             Although the City focuses on the propriety of remand on the issue of

its own claim for attorneys’ fees, it also apparently agrees that if jurisdiction is

lacking over Carowest’s declaratory judgment claims, “the only remaining

question [would be] whether any party should be awarded attorneys’ fees and

costs.”   City Br. at 28-29 (emphasis added).         Therefore, even if this Court

concludes that the district court lacks jurisdiction over Carowest’s South Tributary

Claims, it should remand the case so that the district court can resolve both parties’

claims for attorneys’ fees.




                                          41
II.   The trial court properly denied Yantis’s plea to the jurisdiction as to
      Carowest’s South Tributary Claims.

             If this Court declines to dismiss Yantis’s appeal for lack of

jurisdiction for the reasons set forth in Carowest’s Motion to Dismiss, filed on

January 4, 2018, the Court should affirm the trial court’s denial of Yantis’s plea to

the jurisdiction.

             To the extent this Court concludes that the district court’s jurisdiction

over Carowest’s South Tributary Claims against Yantis depends on its jurisdiction

over Carowest’s claims against the City, the district court’s order denying Yantis’s

plea to the jurisdiction should be affirmed for the same reasons, set forth in Section

I, that the order denying the City’s plea should be affirmed.

      A.     Jurisdiction over Carowest’s South Tributary Claims against
             Yantis is not dependent on jurisdiction over Carowest’s same
             claims against the City.
             Relying on this Court’s opinion in Carowest II, Yantis argues that, if

this Court concludes that the City is immune from Carowest’s declaratory

judgment claims, the district court also lacks jurisdiction over Carowest’s claims

against Yantis because “the City is an indispensable party to Carowest’s claims

regarding ‘the validity and legality of the North Tributary Contract.’” Yantis Br.

at 4-5 (quoting Carowest II) (emphasis added). Yantis’s invocation of the North

Tributary Contract, and its related argument that permitting Carowest to seek a




                                         42
declaration that the contract is illegal would create an end-run around the City’s

governmental immunity, is both factually and legally wrong.

            First, none of the South Tributary Claims asserted by Carowest in this

action allege that “the North Tributary Contract is void because it was awarded as

part of a secret deal where Yantis released its delay claims against the City,” as

Yantis asserts. See Yantis Br. at 4. The North Tributary Claims were at issue in

Carowest II. Carowest’s separate and distinct South Tributary Claims in this case

seek the following declarations concerning Yantis: (1) “Yantis has no right to

damages under the Delay Claim”; (2) “the October 21, 2009 Change Order

released any delay claim that existed before that date”; and (3) “the May 31, 2010

progress payment fully and finally released any delay claim that existed before that

date.” CR 32. These declarations are wholly unrelated to the North Tributary

Claims.

            Second, this Court’s conclusion in Carowest II that the City was an

indispensable party to Carowest’s North Tributary Claims against Yantis because

the declarations concerned the “validity and legality” of a contract to which the

City was a party has no application here. In this case, Carowest only seeks

declarations that Yantis has no right to damages under the Delay Claim because it

had released the claim—not that the North Tributary Contract (or any other

contract) between the City and Yantis is void. These declarations would not have



                                        43
the effect of “voiding a municipal contract” and thereby “destroy[ing] the effect of

the [City’s] immunity,” as Yantis asserts.             See Yantis Br. at 5.        Instead, the

declarations Carowest seeks against Yantis would result in a final and complete

adjudication of the dispute without prejudicing the rights of or imposing any

liability on the City. See, e.g., Wood v. Walker, 279 S.W.3d 705, 713 (Tex. App.—

Amarillo 2007, no pet.) (holding that dismissal of County in declaratory judgment

action did not preclude the trial court from rendering complete relief between the

remaining parties); see also Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex.

2004) (explaining that subject matter jurisdiction is rarely implicated by the failure

to join a party in a declaratory judgment action). Because the City is not an

indispensable party to Carowest’s South Tributary Claims against Yantis,

jurisdiction over these claims against Yantis exists independently of jurisdiction

over Carowest’s claims against the City.

       B.      Carowest’s South Tributary Claims implicate a justiciable
               controversy.
               Yantis further maintains that Carowest’s claim seeking a declaration

that Yantis “has no right to damages under the delay claim” fails to present a

justiciable controversy because the City’s indemnity claim against Carowest never

matured. See Yantis Br. 5-9. This contention should be summarily rejected.17

17
       Yantis did not raise a justiciability argument in its plea to the jurisdiction. See CR 131-
98. When it raised the argument for the first time in its reply, Yantis properly noted that Judge
Davis had previously ruled against Yantis, on cross motions for summary judgment, regarding

                                               44
Whether Yantis’s demand letters triggered Carowest’s indemnity obligations under

the Letter Agreement, such that Carowest had a duty to negotiate or adjudicate

Yantis’s Delay Claim, lies at the heart of an ongoing controversy between

Carowest and the City. In fact, Yantis admits that its position on this point

diverges from that of the City, which maintains that Carowest’s obligation to

indemnify and hold the City harmless arose when Yantis asserted its Delay Claim,

and did not turn on a third-party first determining the claim’s validity. See Yantis

Br. at 8.      Thus, the declarations Carowest seeks relating to its indemnity

obligations do not concern a merely hypothetical controversy.

               Furthermore,      “[d]eclaratory-judgment        actions     are   intended     to

determine the rights of parties when a controversy has arisen, before any wrong

has actually been committed, and are preventative in nature.” Bexar Metro. Water

Dist. v. City of Bulverde, 156 S.W.3d 79, 88 (Tex. App.—Austin 2004, pet.

denied). All that is required for a court to proceed on a declaratory judgment

action is a threat of imminent litigation or likely injury. See, e.g., Texas Dept. of

Banking v. Mount Olivet Cemetery Ass’n, 27 S.W.3d 276, 282-83 (Tex. App.—

the justiciability of the indemnification claims. See CR 1031. However, Yantis does not
acknowledge the prior summary judgment ruling anywhere in its brief to this Court. Because the
justiciability issue was previously decided in Carowest’s favor, it is not a proper subject for
review here. Therefore, if this Court concludes that Yantis is entitled to bring an interlocutory
appeal of its jurisdictional plea, this Court should dismiss Yantis’s justiciability argument. See
Estate of Jones, 388 S.W.3d at 665-67 (holding that appellate court lacked jurisdiction to
consider interlocutory appeal of City’s plea to the jurisdiction because the trial court had
implicitly denied City’s the plea by granting partial summary judgment on the issue of liability
and City did not timely appeal that interlocutory order).

                                               45
Austin 2000, pet. denied) (explaining that “ripeness does not require an actual

injury,” but only the “ripening seeds of a controversy”); Texas Dep’t of Pub. Safety

v. Moore, 985 S.W.2d 149, 153-54 (Tex. App.—Austin 1998, no pet.) (same);

Unauthorized Practice of Law Comm. v. Nationwide Mut. Ins. Co., 155 S.W.3d

590, 595 (Tex. App.—San Antonio 2004, pet. denied) (same). As this Court has

explained:

             A justiciable controversy need not be a fully ripened
             cause of action. However, the fact situation must
             manifest the ripening seeds of a controversy . . . even
             though the differences between the parties as to their
             legal rights have not reached the state of an actual
             controversy. In other words, there must either be a
             pending cause of action between the parties or such a
             clear indication of the extent of the parties’ differences
             that a court may presume one is imminent.

Taylor v. State Farm Lloyds, Inc., 124 S.W.3d 665, 669 (Tex. App.—Austin 2003,

pet. denied) (internal citations and quotations omitted).

             In this case, the City made repeated demands that Carowest negotiate

or adjudicate Yantis’s Delay Claim prior to its submission to a third-party

mediator to resolve any dispute regarding its validity.      Carowest consistently

denied that it had any obligation to defend or indemnify the City against a bogus

Delay Claim that Yantis had already released. This disagreement between the City

and Carowest manifested an actual controversy between the parties or, at the very

least, the “ripening seeds of a controversy.” Taylor, 124 S.W.3d at 669. When



                                          46
Carowest filed the South Tributary Claims against the City and Yantis, it did so in

response to a threat of imminent litigation.       The threat of litigation, in fact,

subsequently developed into an actual claim by the City that Carowest breached

the Letter Agreement, including Carowest’s obligation to indemnify and hold the

City harmless from certain claims. Yantis’s argument that “Carowest’s UDJA

action relating to indemnity never matured into a justiciable controversy,” Yantis

Br. at 9, should therefore be rejected.

                          CONCLUSION AND PRAYER
             For the foregoing reasons, the district court’s denial of the City’s plea

to the jurisdiction should be affirmed. If this Court does not dismiss Yantis’s

appeal for want of jurisdiction, the denial of Yantis’s plea to the jurisdiction should

also be affirmed. Carowest respectfully prays that this court affirm the district

court’s orders and remand the case to the district court for further proceedings.




                                          47
Respectfully submitted,

BAKER BOTTS L.L.P.

By: /s/ Thomas R. Phillips
   Thomas R. Phillips
   State Bar No. 00000022
   Maddy R. Dwertman
   State Bar No. 24092371
   98 San Jacinto Blvd., Suite 1500
   Austin, Texas 78701
   (512) 322-2500
   (512) 322-2501 (Facsimile)
   tom.phillips@bakerbotts.com
   maddy.dwertman@bakerbotts.com

DAVIS & SANTOS, P.C.
   Jason Davis
   State Bar No. 00793592
   Caroline Newman Small
   State Bar No. 24056037
   719 Flores St.
   San Antonio, Texas 78204
   (210) 853-5882
   (210) 200-8395 (Facsimile)
   jdavis@dslawpc.com
   csmall@dslawpc.com

ATTORNEYS FOR APPELLEE




 48
                      CERTIFICATE OF COMPLIANCE
             In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
hereby certify that this brief contains 11,903 words, excluding the parts of the brief
exempted by Rule 9.4(i)(1).

                                              /s/ Maddy R. Dwertman
                                              Maddy R. Dwertman




                                         49
                        CERTIFICATE OF SERVICE
             I certify that on January 4, 2018, a true and correct copy of the
foregoing was served via the Court’s Electronic Filing System on the following
counsel of record:

G. Alan Waldrop                      Lawrence Morales, II
Ryan D. V. Greene                    Chuck Shipman
TERRILL & WALDROP                    THE MORALES FIRM, P.C.
810 West 10th Street                 6243 W. IH 10, Suite 132
Austin, Texas 78701                  San Antonio, Texas 78201
awaldrop@terrillwaldrop.com          lawrence@themoralesfirm.com
rgreene@terrillwaldrop.com           cshipman@themoralesfirm.com

Valeria M. Acevedo                   Lamont A. Jefferson
J. Frank Onion, III                  Emma Cano
CITY OF NEW BRAUNFELS, TEXAS         JEFFERSON CANO
CITY ATTORNEY’S OFFICE               112 East Pecan St., Suite 1650
424 S. Castell Ave.                  San Antonio, Texas 78205
New Braunfels, Texas 78130           ljefferson@jeffersoncano.com
vacavedo@nbtexas.org                 ecano@jeffersoncano.com
fonion@nbtexas.org
                                     Attorneys for Appellant
Attorneys for Appellant              YC Partners, Ltd., d/b/a Yantis Company
City of New Braunfels, Texas

                                    /s/ Thomas R. Phillips
                                    Thomas R. Phillips




                                     50
                               INDEX TO APPENDIX



Exhibit 1   Plaintiff Carowest Land, Ltd.’s Second Amended Petition




                                           1
EXHIBIT 1




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