              NUMBERS 13-12-00579-CV & 13-12-00622-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG

MALCOLM G. DYER,                                                                            Appellant,

                                                     v.

HIDALGO COUNTY, TEXAS,                                                                        Appellee.


                        On appeal from the 398th District Court
                              of Hidalgo County, Texas.


                                MEMORANDUM OPINION
                   Before Justices Rodriguez, Garza, and Perkes
                     Memorandum Opinion by Justice Perkes
        Appellant Malcolm G. Dyer (“Dyer”) appeals two trial court orders granting appellee

Hidalgo County’s pleas to the jurisdiction. The trial court’s first order granted the County’s

second plea to the jurisdiction which challenged Dyer’s breach-of-contract claim.1 The


        1
          In appellate cause 13-12-00622-CV, Dyer appeals the trial court’s August 31, 2012 order granting
the County’s second plea to the jurisdiction (concerning Dyer’s breach-of-contract claim). In appellate cause
second order granted the County’s third plea to the jurisdiction which challenged Dyer’s

fraud and conspiracy claims. We affirm the trial court’s orders granting the County’s pleas

to the jurisdiction.

                                             I. BACKGROUND

        As set forth in Hidalgo County v. Dyer, 358 S.W.3d 698, 703 (Tex. App.—Corpus

Christi 2011, no pet.) (“Dyer I”), the underlying facts are as follows. In May 2006, the

County filed a condemnation action in county court to acquire fee title to approximately 1.48

acres of land Dyer owned in Hidalgo County, Texas.2 The County sought the land for

purposes of expanding Jackson Road in Hidalgo County.3 On or about April 1, 2007, the

Texas Department of Transportation and the County entered and took possession of Dyer’s

property. According to Dyer, the Department and the County started storing equipment on

his land, destroyed access to one parcel of his land without ever restoring it, and diminished

his income from mining soil on his land.

        In Dyer I, this Court held that the County’s first plea to the jurisdiction should have

been granted, and rendered judgment dismissing all of Dyer’s claims with prejudice, except

for his inverse-condemnation claim. The inverse-condemnation claim was not before us

because it was not jurisdictionally challenged in the trial court. See Dyer I, 358 S.W.3d at


13-12-00579-CV, Dyer appeals the trial court’s September 6, 2012 order granting the County’s third plea to the
jurisdiction (concerning Dyer’s fraud and conspiracy claims). The two appeals arise from the same trial
proceeding and have been consolidated on appeal. Although there is a different record in each appeal, in the
interest of judicial economy, we will address appellant’s claims in a single opinion.

        2
         The County’s condemnation action was trial court cause CCD-1484-E in County Court at Law
Number Five, Hidalgo County, Texas.
        3
           As set forth in Dyer I, by agreement, the County was responsible for initiating and implementing
condemnation proceedings for acquisition of Dyer’s property, and the Texas Department of Transportation was
to reimburse the County for the cost of acquiring the right-of-way.

                                                      2
711.   Accordingly, we rendered judgment dismissing Dyer’s respective claims under:

(1) article 1, section 19 of the Texas Constitution; (2) title 42, section 1983 of the United

States Code; and (3) the Texas Private Real Property Rights Preservation Act (chapter 2007

of the Texas Government Code) (“PRPRPA”); and (4) the respective claims for trespass,

declaratory judgment, and attorney’s fees. Id. at 704–11.

       Dyer filed an amended petition in the trial court, alleging that a settlement agreement

had been reached with the County, but that the County breached the settlement agreement

by prosecuting its appeal in Dyer I. Dyer further amended his petition to add claims of fraud

and conspiracy, alleging that the County engaged in fraud and civil conspiracy by its failure

to honor the alleged settlement agreement.

       A copy of an unsigned Rule 114 agreement dated July 28, 2010, is attached to the

amended petition. It is undisputed that an attorney for the County, Rex Leach, drafted the

proposed Rule 11 agreement which purported to settle the litigation and that it was

addressed to Dyer’s trial counsel, James William (“J.W.”) Dyer, for signature and return.5

During the hearing on the plea to the jurisdiction, J.W. Dyer testified that he received the

Rule 11 letter “and because it had been accepted, [he] saw no need to sign it and file it with

the Court.” He expected the County “would honor the agreement” even if the Rule 11

agreement was not signed and filed as part of the record. The County, however, denies

ever reaching a final enforceable settlement agreement.




       4
           See TEX. R. CIV. P. 11.
       5
           J.W. Dyer unexpectedly passed away on June 29, 2013, during the pendency of this appeal.
                                                   3
        The County filed a plea to the jurisdiction asserting immunity with respect to Dyer’s

claim for breach of the alleged settlement agreement. The County also filed a plea to the

jurisdiction with respect to Dyer’s fraud and conspiracy claims.                      Both pleas to the

jurisdiction were granted6 and these interlocutory appeals ensued.7

                                             II. ISSUES PRESENTED

        Dyer presents the following five issues for review:

        1. Did the County waive immunity for Dyer’s breach of contract claim by entering into
           a settlement agreement that included settlement for an underlying claim for which
           immunity was waived?

        2. Did the County demonstrate an incurable defect in Dyer’s pleadings?

        3. Did the County prove that there was no issue of disputed material fact to be
           determined by a trier of fact on the existence of the settlement contract?

        4. Is Dyer entitled to attorney’s fees on his breach of contract claim for the County’s
           alleged breach of the settlement agreement?

        5. Was Dyer’s PRPRPA claim filed in county court dismissed in Dyer I?

                                           III. STANDARD OF REVIEW

        To render a binding judgment, a court must have both subject-matter jurisdiction over

the controversy and personal jurisdiction over the parties. Spir Star AG v. Kimich, 310

S.W.3d 868, 871 (Tex. 2010). A plaintiff bears the burden of alleging facts that affirmatively

demonstrate the trial court's jurisdiction. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864,

        6
           The County also filed a motion for summary judgment with respect to Dyer’s inverse-condemnation
claim that was not previously ruled upon in Dyer I. The trial court granted the motion. The summary
judgment is not part of the instant appeals.
        7
            This Court has jurisdiction to hear an interlocutory appeal from an order granting a governmental
unit’s plea to the jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008); see also id.
§ 101.001 (West 2005) (defining “governmental unit” so as to include the County); Tex. A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007); Hidalgo County v. Gonzalez, 128 S.W.3d 788, 791 (Tex.
App.—Corpus Christi 2004, no pet.).

                                                      4
867 (Tex. 2002); State of Tex. Parks & Wildlife Dept. v. Morris, 129 S.W.3d 804, 807 (Tex.

App.—Corpus Christi 2004, no pet.).

       A plea to the jurisdiction is a dilatory plea; its purpose is to defeat a cause of action

without regard to whether the claims asserted have merit. Dyer I, 358 S.W.3d at 703. In

deciding a plea to the jurisdiction, a court may not weigh the merits of the causes of action,

but must consider only the plaintiff’s pleadings and any evidence in the record pertinent to

the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002);

City of Laredo v. Nuno, 94 S.W.3d 786, 788 (Tex. App.—San Antonio 2002, no pet.).

       An order denying a plea to the jurisdiction based on governmental immunity is

reviewed de novo. See, e.g., Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

228 (Tex. 2004). If a plea to the jurisdiction challenges the pleadings, the reviewing court

must construe the pleadings liberally in favor of the plaintiff. Id. at 226. If the plea to the

jurisdiction challenges the existence of jurisdictional facts, the trial court may consider

relevant evidence submitted by the parties. Id. at 227. A court must take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. Id. at 228. If the evidence creates a fact question

regarding jurisdiction, the trial court cannot grant the plea, and the fact issue must be

resolved by the fact-finder. Id. at 227–28.

       If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction, the

plaintiff should be afforded the opportunity to amend its pleadings.            Id. at 226–27.

However, a plea to the jurisdiction may be granted without allowing the plaintiff to amend the


                                               5
pleading if the pleading affirmatively negates the existence of jurisdiction.     Brown, 80

S.W.3d at 555; Ramirez, 74 S.W.3d at 867.

                                           IV. ANALYSIS

A. ALLEGED BREACH OF SETTLEMENT AGREEMENT

       By his third issue, Dyer argues a fact issue exists regarding whether there is an

enforceable settlement agreement between Dyer and the County.             In its plea to the

jurisdiction, the County argued that the purported settlement agreement was indivisible as to

immunity-barred claims and Dyer’s inverse-condemnation claim, and thus, it was not

enforceable. At the hearing on the plea to the jurisdiction, the County also argued that Dyer

had the burden of showing an enforceable settlement agreement, and that Dyer did not meet

its burden with the unsigned Rule 11 agreement which Dyer alleged and attached to his

petition.

       In Miranda, the plaintiff pleaded a gross-negligence claim. Miranda, 133 S.W.3d at

232. The Texas Supreme Court opined that the evidence adduced on the Department’s

plea to the jurisdiction showed, as a matter of law, that the Department was not grossly

negligent. Id. The Supreme Court held that there was no fact issue and that the trial court

lacked subject-matter jurisdiction over the gross-negligence claim.       Id.   The Supreme

Court summarized its holding as follows:

       We conclude that the evidence in the record establishes that the Department
       was not grossly negligent and that the Mirandas have failed to raise a fact
       question regarding the Department's alleged gross negligence.               The
       Mirandas fall short of satisfying the requirements for the Legislature's limited
       grant of a waiver of sovereign immunity from suit under the applicable statutes.
       Therefore, the trial court lacked subject matter jurisdiction.

Id.

                                              6
       Dyer pleaded a breach-of-contract claim against the County for its alleged breach of a

settlement agreement. The evidence, however, shows that there is not an enforceable

settlement agreement between the parties. As a result, the trial court correctly granted the

County’s plea to the jurisdiction on Dyer’s breach-of-contract claim. See id.

       Rule 11 of the Texas Rules of Civil Procedure provides that “no agreement between

attorneys or parties touching any suit pending will be enforced unless it be in writing, signed

and filed with the papers as part of the record, or unless it be made in open court and

entered of record.” TEX. R. CIV. P. 11. Rule 11 applies to settlement agreements. See

Kennedy v. Hyde, 682 S.W.2d 525, 530 (Tex. 1984); Roeglin v. Daves, 83 S.W.3d 326,

331–32 (Tex. App.—Austin 2002, pet. denied); see also Lumbreras v. Rocha, No.

13–06–429–CV, 2008 WL 4096415, at *3 (Tex. App.—Corpus Christi Aug. 29, 2008, no

pet.) (mem. op.) (concluding “[t]he parties’ [settlement] agreement, if any, did not comply

with rule 11 and was not enforceable”).

       Dyer’s alleged breach-of-contract claim is premised on an unsigned, unfiled Rule 11

agreement, which is unenforceable, as a matter of law. See Hyde, 682 S.W.2d at 530;

Daves, 83 S.W.3d at 331–32. At the hearing on the plea to the jurisdiction, Dyer’s counsel

unequivocally testified that he never signed the proposed Rule 11 agreement the County’s

attorney sent to him. Dyer’s counsel also testified that the Rule 11 agreement was not filed

with the trial court as part of the record. On this record, there is no fact issue regarding

whether Dyer and the County reached an enforceable settlement agreement.

       Dyer relies on the Texas Supreme Court’s plurality opinion in Texas A&M

University-Kingsville v. Lawson to argue that the County’s immunity from suit for breach of


                                              7
contract does not turn on the validity of the underlying settlement agreement. See 87

S.W.3d 518, 518 (Tex. 2002). In Lawson, a plurality of the Court held that if a government

entity agrees to settle a lawsuit from which it is not immune, it cannot claim immunity for

breach of the settlement agreement. Id. In Lawson, sovereign immunity barred all of the

plaintiff’s claims, with the exception of a whistleblower claim. Id. at 519. The parties

settled. Id. Later, the plaintiff brought a second lawsuit, claiming the university breached

the settlement agreement by allegedly failing to misstate Lawson’s former position with the

University to prospective employers.       Id.   The University took an interlocutory appeal

asserting immunity. Id. A plurality of the supreme court held that “having waived immunity

from suit in the Whistleblower Act, the State may not now claim immunity from a suit brought

to enforce a settlement agreement reached to dispose of a claim brought under the Act.”

Id. at 523. In explaining its decision, the Lawson plurality noted that its ruling did not turn on

whether the alleged provision in the underlying settlement agreement—requiring the

University to misstate Lawson’s former position to prospective employers—was void. Id.

       Dyer’s reliance on Lawson is misplaced for at least two reasons. First, as a plurality

opinion, Lawson has no precedential value. See Univ. of Tex. Med. Branch v. York, 871

S.W.2d 175, 177 (Tex. 1994) (explaining plurality opinions are “not authority for

determination of other cases, either in [the supreme court] or lower courts”). Second,

Lawson is factually distinguishable because the plurality explained that it could not

determine the validity of the settlement agreement in the case’s then-current procedural

posture—“[n]o evidence or argument on the validity of the agreement was offered in the trial

court” and the issue remained for further determination on remand. Lawson, 87 S.W.3d at


                                                 8
523. In the instant case, however, the record shows that the settlement agreement is

unenforceable, as a matter of law. See Miranda, 133 S.W.3d at 232.

        We overrule Dyer’s third issue on appeal. In light of our disposition of Dyer’s third

issue, we need not reach the merits of Dyer’s first, second, and fourth issues on appeal.8

See TEX. R. APP. P. 47.1.

B. DYER’S PRPRPA CLAIM

        By his fifth issue, Dyer challenges the trial court’s order granting the County’s third

plea to the jurisdiction, which pertains to Dyer’s fraud and conspiracy claims. Dyer states in

his brief, however, that he “does not contest the Order . . . to the extent it asserts immunity to

Dyer’s fraud and conspiracy claims . . . .” Rather, Dyer again complains on appeal about

the claim that he brought under PRPRPA. Most specifically, he disputes the following

statement in the County’s third plea to the jurisdiction: “Plaintiff’s cause of action pursuant

to . . . [PRPRPA] fails because the plaintiff did not file his lawsuit within 180 days from the

date that he knew or should have known of the defendant’s action.” Dyer appears to be

arguing that the PRPRPA claim that he earlier filed in county court, prior to the claims

consolidation in district court, survived this Court’s decision in Dyer I.

        Dyer’s fifth issue lacks merit because this Court fully addressed Dyer’s PRPRPA

claim in Dyer I. In Dyer I we acknowledged that Dyer’s claims that were filed in county court

        8
           By his first through fourth issues, collectively, Dyer challenges the trial court’s rulings regarding the
County’s alleged breach of the settlement agreement. By his first issue, Dyer argues the trial court erred by
granting the County’s plea to the jurisdiction on his breach-of-contract claim. He contends the County waived
immunity for Dyer’s breach of contract claim by entering into a settlement agreement that included settlement
for an underlying claim for which immunity was waived—namely, Dyer’s inverse-condemnation claim. By his
second issue, Dyer argues the County did not demonstrate an incurable defect in Dyer’s pleadings. By his
fourth issue, Dyer argues he is permitted to seek attorney’s fees associated with his breach-of-contract claim
under Texas Civil Practice and Remedies Code section 38.001. See TEX. CIV. PRAC. & REM. CODE ANN. §
38.001 (West 2008).

                                                         9
were consolidated with his district-court claims upon their transfer to the district court. Dyer

I, 358 S.W.3d at 702 n.5.9 We thereafter addressed Dyer’s PRPRPA claim against the

County (then pending in the district court), holding the trial court lacked jurisdiction over the

PRPRPA claim because Dyer failed to timely assert the claim in district court. See id. at

707–08. In Dyer I, we reversed and rendered judgment dismissing Dyer’s PRPRPA claim

against the County with prejudice. As such, Dyer’s PRPRPA claim did not survive in this

litigation—notwithstanding his new argument that it is a divisible claim that was not allegedly

not addressed in Dyer I. See id. at 711. We overrule Dyer’s fifth issue on appeal.

                                                  V. CONCLUSION

        We affirm the trial court’s respective August 31, 2012 and September 6, 2012 orders

granting the County’s pleas to the jurisdiction.


                                                             Gregory T. Perkes
                                                             Justice


Delivered and filed the
4th day of October, 2013.




        9
         Both the County’s filing of its motion to dismiss and the order thereon, which were at issue in Dyer I,
occurred after the consolidation of the claims in the District Court.
                                                      10
