                                                                             ACCEPTED
                                                                         04-15-00302-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                   11/30/2015 7:00:18 PM
                                                                          KEITH HOTTLE
                                                                                  CLERK



            No. 04-15-00302-CV
                                        FILED IN
                                 4th COURT OF APPEALS
                                  SAN ANTONIO, TEXAS
    IN   THE TEXAS COURT OF APPEALS
                                 11/30/15 7:00:18 PM
         FOURTH COURT OF APPEALS KEITHClerk
                                          E. HOTTLE

           AT SAN ANTONIO, TEXAS


                CITY OF PEARSALL

                                          APPELLANT

                          VS.

             ROBERT M. TOBIAS, JR.

                                          APPELLEE


      Appealed from the 218th Judicial District Court
Frio County, Texas. Hon. Donna S. Rayes, Presiding Judge


         REPLY BRIEF OF APPELLANT
             CITY OF PEARSALL


                         ALBERT LÓPEZ
                         State Bar No. 12562350
                         LAW OFFICES OF ALBERT LÓPEZ
                         14310 Northbrook Drive, Suite 200
                         San Antonio, Texas 78232
                         (210) 404-1983 (Telephone)
                         (210) 404-1990 (Telecopier)
                         ATTORNEY FOR APPELLANT


          ORAL ARGUMENT REQUESTED
                                   TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iii-

REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
    I.  Reply to the Statement of Facts regarding the City drafting the
        terms of the agreement, which included terms that Appellant
        claimed in the trial court proceedings and here as illegal.. . . -1-

        II.     Reply to the Statement of Facts regarding the City
                unceremoniously terminated Appellee’s employment and the
                Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

        III.    Reply to the Statement of Facts regarding Tobias attempting to
                resolve the dispute short of litigation but the City refusing to
                discuss the matter and, further, that it refused to mediate after the
                litigation began; and the City refused to make any offer of
                settlement in this matter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

        IV.     Reply to the Statement of Facts regarding the statement that when
                Appellant realized that it could not get around the clear language
                contained in Section 3.A., it contrived the novel proposition and
                defense that the residency requirement the Appellant drafted in
                Section 10. b. of the Agreement, was ultra vires making the entire
                employment agreement null and void.. . . . . . . . . . . . . . . . . . . -2-

        V.      Reply to the Statement of Facts regarding that the trial court (J.
                Saxon) made that decision without comment about the City’s
                defenses, claims or assertions, including whether there were fact
                issues to be considered; that Judge Saxon issued the Order fully
                understanding that Tobias was “ready, willing and able to perform
                his duties under this Agreement”.. . . . . . . . . . . . . . . . . . . . . . . -2-




                                                      -i-
        VI.     Reply to the Statement of Facts that District Court Judge Reyes
                was incredulous to the Appellant’s claims and Appellee’s request
                for clarification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-

        VII. Reply to Tobias’ argument that in the lower court, the Appellee
             successfully argued that Section 271.152 of the Texas Local
             Government Code permits a declaratory judgment action against
             a municipality when it breaches a contract. Tobias also argues that
             the Declaratory Judgment action was granted under the provision
             of Section 271.152. We reply to the latter argument next. . . . -6-

        VIII. Reply to the argument that immunity had been waived even where
              the claims at issue included a declaratory judgment claim.. . -7-

        IX.     Reply to the argument that Chapter 271 of the Texas Local
                Government Code overturned Tex. Natural Res. Conservation
                Comm'n v. IT—Davy, 74 S.W.3d 849, 859-60 (Tex. 2002).. -10-

        X.      Reply to Tobias’ argument that the award of money damages and
                attorneys fees under the declaratory judgment claim are also
                available under section 271.153.. . . . . . . . . . . . . . . . . . . . . . . . -12-

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-




                                                      -ii-
                                  INDEX OF AUTHORITIES

CASES

Ben Bolt-Palito Blanco Consolidated Independent School District v. Texas
Political Subdivisions property/Casualty Joint Self-Insurance Fund, 212 S.W.
3d 320, (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
City of Houston v. Williams, 216 S.W.3d 827, 829 (Tex. 2007).. . . . . . . -11-

Lower Colo. River Auth. v. City of Boerne, 422 S.W.3d 60, 2013 (Tex. App.
San Antonio 2013, pet. filed).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-, -10-

Nat’l Public Finance Guarantee Corp. v. Harris County- Houston Sports
Authority, 448 S.W. 3d, 472, 484, (Tex. App. Houston [1st Dist.] 2014, no
pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-, -18-, -9-,-11-

Tex. Natural Res. Conservation Comm'n v. IT—Davy, 74 S.W.3d 849, 859-60
(Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Zachry Constr. Corp. v. Port of Houston Auth., 449 S.W.3d 98, 107 (Tex.
2014). 449 S.W.3d 98, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-


STATUTE

Tex. Loc. Gov't Code §271.152. . . . . . . . . . . . . . . . . . . . . . . . . . -4-, -5-,-6--11-

Tex. Loc. Gov't Code §271.153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

Tex. Loc. Gov't Code §271.155... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-, -5-

Tex. Gov’t Code §551.043... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-




                                                        -iii-
                             REPLY ARGUMENT



TO THE HONORABLE FOURTH COURT OF APPEALS:

      NOW COMES Appellant City of Pearsall and submits its reply argument.

I.    Reply to the Statement of Facts regarding the City drafting the
      terms of the agreement, which included terms that Appellant
      claimed in the trial court proceedings and here as illegal.

      To the extent that the statement implies that the City and the individual

Defendants unilaterally drafted the terms of the contract, there is no evidence

to support such assertion.

II.   Reply to the Statement of Facts regarding the City
      unceremoniously terminated Appellee’s employment and the
      Agreement.

      There was nothing abrupt or hasty about the Plaintiff’s termination. The

dismissal was a City Council meeting agenda item, CR 000039, presumably

posted at least 72 hours before the meeting. See Tex. Gov’t Code §551.043.

According to the minutes of the meeting, Tobias requested that the item be

discussed in open session. Id. A lengthy discussion took place in which several

members of the Council brought up instances where they considered that

Tobias had failed or was found lacking in the performance of his duties as City




                                      -1-
Manager. Id. During the meeting, Tobias answered questions and defended

his actions or lack of action. Id.

III. Reply to the Statement of Facts regarding Tobias attempting
     to resolve the dispute short of litigation but the City refusing
     to discuss the matter and, further, that it refused to mediate
     after the litigation began; and the City refused to make any
     offer of settlement in this matter.

None of these statements are supported by the record.

IV.   Reply to the Statement of Facts regarding the statement that
      when Appellant realized that it could not get around the clear
      language contained in Section 3.A., it contrived the novel
      proposition and defense that the residency requirement the
      Appellant drafted in Section 10. b. of the Agreement, was
      ultra vires making the entire employment agreement null and
      void.

      While the City raised the defense that the residency requirement in

Section 10. b. of the Agreement was ultra vires making the entire employment

agreement null and void, the remaining statements are argumentative and not

supported by the record.

V.    Reply to the Statement of Facts regarding that the trial court
      (J. Saxon) made that decision without comment about the
      City’s defenses, claims or assertions, including whether there
      were fact issues to be considered; that Judge Saxon issued the
      Order fully understanding that Tobias was “ready, willing and
      able to perform his duties under this Agreement”.

      The trial court merely granted a declaratory judgment against the City

awarding money damages. While it is correct that the trial court made that

                                     -2-
decision without comment about the City of Pearsall’s defenses, claims or

assertions, it also was silent about Tobias’ being “ready, willing and able to

perform his duties under this Agreement”. RR Vol 1, pp. 3-21. In fact, in the

October 23, 2014 hearing, Tobias never raised that issue with the trial court.

During that hearing, the crux of Tobias’ argument in support of the request for

declaration of rights went to the City’s defensive issues, i.e., that the

employment contract was not ultra vires and, if it was, it was severable. Id.

These were the only two issues before the trial court on which Tobias sought

declaratory judgment.1 Judge David A. Ezra also acknowledged the true

nature of Tobias’ declaratory judgment action. In denying Tobias motion for

declaratory judgment as moot, Judge Ezra also found that “claim turns on

whether the contract provision conferring Plaintiff a severance upon

termination was made ultra vires, in violation of the City of Pearsall's Charter,

and; if so, whether the illegal provision can be severed from the contract or

whether the contract is invalidated as a whole.” CR 000091.

       Tobias offered no evidence of his performance under the contract during

the October 23rd and December 2, 2014 hearings and did not argue in favor



       1
         This is consistent with Tobias pleading where the only issue pled in relation to the
declaratory judgment action was that “Section 11. D. severs the alleged ultra vires/illegal
provision from the rest of the legal agreement.” CR 000069.

                                                -3-
of his “willing and able” argument. RR Vol 1, pp. 3-21; RR Vol. 2, pp. 1-9. The

only evidence before the trial court on this issue was the City’s uncontroverted

affidavit of Mayor Davina Rodriguez that conclusively showed that Tobias

failed to perform the agreement to the degree that his failure was an

anticipatory breach of the agreement, which authorized the City to terminate

the agreement. CR 000044-46.2 Therefore, the trial court could not have

issued its order with the “understanding” that Tobias was “ready, willing and

able to perform his duties under this Agreement” when Tobias did not present

any evidence or argument to support that contention.                         Both, Tobias’

arguments in support of the declaratory judgment action and the Court’s

December 2, 2014 order, ignored the performance issues raised by the City.3

       Even if the trial court reached the issue whether Tobias was “ready,

willing and able to perform his duties under this Agreement,” as Tobias now

speculates, the resolution of that issue involved a purely factual dispute not

related to the issues raised in the declaratory judgment action, i.e, the ultra



       2
        This evidence was incorporated to the City’s response to the motion for declaratory
judgment by reference. CR 000099.
       3
           Later in his Brief, Tobias contend that section 271.152 waived immunity for
declaratory judgment. However, the City’s defenses under the contract are not waived. See
Section 271.155 (“This subchapter does not waive a defense or a limitation on damages available
to a party to a contract, other than a bar against suit based on sovereign immunity.”); Zachry
Constr. Corp. v. Port of Houston Auth., 449 S.W.3d 98, 107 (Tex. 2014).

                                              -4-
vires and severability defenses. As we noted in the City’s Brief, the resolution

of this factual dispute was beyond the scope of a declaratory judgment action.

Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mt. Ranch, Inc.,

2014 Tex. App. LEXIS 13417 (Tex. App. San Antonio Dec. 17, 2014)(citing Hill

v. Heritage Resources, 964 S.W.2d 89, 140 (Tex. App. El Paso 1997, no pet.)(“

If a factual dispute is the only issue to be resolved, a declaratory judgment is

not the proper remedy.”).

      Under the Court’s order on cross motions for summary judgment on the

breach of the contract claim, those fact issues remained in dispute. Hence, at

the time the declaratory judgment was signed the breach of contract claim

remained unadjudicated.

VI.   Reply to the Statement of Facts that District Court Judge
      Reyes was incredulous to the Appellant’s claims and
      Appellee’s request for clarification.

      Judge Rayes did not express any opinions about the merits of the

parties’ respective positions:

      THE COURT: I don't think there's anything to clarify either. But,
      procedurally speaking, what needs to happen is within your
      Motion to Clarify you've asked -- you have indicated that you wish
      to nonsuit the individual Defendants, if you will present me with
      an order of nonsuit as to those Defendants, I will sign it. And then,
      procedurally speaking, that makes this a final order and do what
      you need to do. RR Vol 1 (Escamilla) at p. 16.
      THE COURT: That's why I'm not redeciding it. Id.

                                       -5-
      THE COURT: I'm not redeciding anything. There needs to be finality–
      Id.
      THE COURT: Well, [Judge Saxon’s order] awards relief. It awards relief
      of money, damages, it address attorney's fees -- and it addresses costs
      of court and it denies all other relief, so without -- mean, I don't know
      what her intent was, but it appears from looking at this, to me, that this
      would be a final -- that this would dispose of all claims, and once the
      other parties are nonsuited. Id. At p. 20.

VII. Reply to Tobias’ argument that in the lower court, the
     Appellee successfully argued that Section 271.152 of the Texas
     Local Government Code permits a declaratory judgment
     action against a municipality when it breaches a contract.
     Tobias also argues that the Declaratory Judgment action was
     granted under the provision of Section 271.152. We reply to
     the latter argument next.

      As noted, the only arguments on which Tobias relied on in the October

23, 2014 hearing to support his request for a declaration of rights were the

ultra vires defense and the severability of the illegal provision. None of his

arguments addressed the adjudication of the breach of contract claim

pursuant to section 271.152, as Tobias now claims. The same is correct as to

the December 2, 2014 hearing. Before the December 2, 2014 Order was

signed, Tobias did not assert a section 271.152 claim or otherwise respond to

the City’s objections to the declaratory judgment action on the basis of lack of

jurisdiction.

      On Appeal, most of Tobias arguments are grounded on the proposition

that that the trial court granted the declaratory judgment under the authority

                                      -6-
of section 271.152. Tobias, however, fails to point to any portion of the record

in support of that proposition. Further, as noted, the December 2, 2014 Order

does not a adjudicate the pending breach of contract claim. The Order is silent

as to the breach of contract claim and denies all relief not specifically granted

which includes the breach of contract claim.

        Contrary to Tobias’ argument, the record shows that Tobias raised

section 271.152 on February 20, 2015, in his Motion for Hearing to Clarify

Order Granting Declaratory Judgment. CR 000225; 000233. The fact that

for the first time Tobias attempted in that motion to incorporate the pending

breach of contract claim into the declaratory judgment order further confirms

the nature of the December 2, 2014 declaratory judgment order as a money

judgment on a stand-alone declaratory judgment action.

VIII.        Reply to the argument that immunity had been waived
             even where the claims at issue included a declaratory
             judgment claim.

        In support of this argument Tobias relies on Ben Bolt-Palito Blanco

Consolidated Independent School District v. Texas Political Subdivisions

property/Casualty Joint Self-Insurance Fund, 212 S.W. 3d 320, (Tex. 2006)

and Nat’l Public Finance Guarantee Corp. v. Harris County- Houston Sports

Authority, 448 S.W. 3d, 472, 484, (Tex. App. Houston [1st Dist.] 2014 no



                                       -7-
pet.). The facts of these cases are distinguishable. First, these cases did not

involve a dispute over the facts pertaining to the validity of breach of contract

claim. Second, the declaratory judgment actions in these cases did not seek,

and the courts did not award, a money judgment. In Ben Bolt, the plaintiff

filed suit seeking a declaration that its loss was a covered occurrence under the

insurance agreement's terms. Id. at 133. The Supreme Court held that section

271.152 waived immunity from the Plaintiff’s claim arising out of the insurance

agreement. Id. at 327-28. The Supreme Court did not hold that immunity for

the underlying claim seeking a declaratory judgment was waived. Id. Instead,

the Court remanded the case to the trial court for further proceedings. Id.

      Nat’l Public Finance Guarantee Corp. v. Harris County- Houston

Sports Authority does not stand for the proposition that section 271.152

waives immunity for Tobias’ declaratory judgment action. In Harris County,

National did not plead a breach of contract claim which clearly distinguishes

the facts from this case. Based on the language of section 271.152 (“A local

governmental entity that is authorized by statute or the constitution to enter

into a contract and that enters into a contract subject to this subchapter

waives sovereign immunity to suit for the purpose of adjudicating a claim for

breach of the contract, subject to the terms and conditions of this



                                       -8-
subchapter.”), the court of appeals dismissed National’s declaratory judgment

action holding that section 271.152 does not waive immunity of a

governmental entity that is not alleged to have breached a contract. Id. at 484.

In further support of its decision to dismiss the declaratory judgment action,

the court of appeals relied on this Court’s opinion in Lower Colo. River Auth.

v. City of Boerne, 422 S.W.3d 60, 2013 (Tex. App. San Antonio 2013, pet.

filed). In City of Boerne, this Court found that the plaintiff’s declaratory

judgment claim was essentially duplicative of its breach of contract claim. Id.

at 67. This Court further found that immunity for a declaratory judgment

under those circumstances was not waived and reversed the denial of a plea

to the jurisdiction. Id. The court of appeals in Harris County, applying City

of Boerne, reasoned that if immunity is not waived when the declaratory

judgment action duplicates the breach of contract claim, then immunity is also

not waived when a breach of contract claim under section 271.152 has not been

asserted. Harris County, 448 S.W. 3d 484. Harris County did not hold that

immunity is waived for a declaratory judgment claim that is essentially a

mirror-image of a breach of contract claim. To the contrary, the court of

appeals relied on City of Boerne’s holding which contradicts Tobias’ argument

on the very point that Tobias’ declaratory judgment action “is not ‘for the



                                      -9-
purpose of adjudicating a claim for breach of contract,’ and thus does not fall

within section 271.152's waiver of immunity.” City of Boerne, 422 S.W.3d 67.

In his Brief, Tobias concedes that the breach of contract claim was “still before

the trial court when it awarded the declaratory judgment” and that the breach

of contract claim was not specifically dismissed by the trial court in any of its

orders. Tobias’ Brief at p. 9. The facts here are analogous to City of Boerne.

Except for the resolution of disputed issues of fact, the declaratory judgment

action mirrors the breach of contract issues that was pending and litigated by

way of cross motions for summary judgment. Further, this Court’s dismissal

of Tobias’ declaratory judgment action would leave the pending and

unadjudicated breach of contract claim, for which immunity has been waived,

for trial. City of Boerne, 422 S.W.3d 67. Tobias’ own arguments demonstrate

that the trial court erred in granting a declaratory judgment which sole

purpose was, in the guise of a declaration of rights, to award money damages.

IX. Reply to the argument that Chapter 271 of the Texas Local
    Government Code overturned Tex. Natural Res. Conservation
    Comm'n v. IT—Davy, 74 S.W.3d 849, 859-60 (Tex. 2002).

      Tobias failed to cite any case law, and we have found none, for the

proposition that Chapter 271 overruled IT—Davy. Chapter 271 is silent about

whether a contract claim for which immunity has been waived can be litigated



                                      -10-
and adjudicated by way of a request for a declaration of rights that does not

adjudicate a contract claim, as Tobias has pursued here. See § 271.152 (“A

local governmental entity that is authorized by statute or the constitution to

enter into a contract and that enters into a contract subject to this subchapter

waives sovereign immunity to suit for the purpose of adjudicating a

claim for breach of the contract, subject to the terms and conditions of

this subchapter.” ). (emphasis supplied); see Harris County, 448 S.W.3d 472,

Any ambiguity about whether immunity was been waived must be resolved in

favor of retaining immunity. Id. IT-Davy held that if the sole purpose of such

a declaration is to obtain a money judgment, immunity is not waived.

IT-Davy, 74 S.W.3d at 860. IT-Davy has not been overruled. See City of

Houston v. Williams, 216 S.W.3d 827, 829 (Tex. 2007)(“... in every suit

against a governmental entity for money damages, a court must first

determine the parties' contract or statutory rights; if the sole purpose of such

a declaration is to obtain a money judgment, immunity is not waived.). As we

have noted above, Tobias’ request for a declaration of rights regarding the

application of the ultra vires theory and severability of contract provisions did

not seek to adjudicate the breach of contract claim. The December 2, 2014




                                      -11-
Order evidences that the sole purpose of the request for declaration of rights

was to obtain a money judgment.

X.    Reply to Tobias’ argument that the award of money damages
      and attorneys fees under the declaratory judgment claim are
      also available under section 271.153.

      Tobias’ argument only underscores the sole purpose of the declaratory

judgment action of obtaining a money judgment. Regarding the claim for

attorneys’ fees and costs, neither the pleadings nor the arguments in support

of a declaratory judgment that led to the December 2, 2014 order requested

attorney’s fees and costs pursuant to Section 271.153. On the face of the

December 2, 2014 order, fees and costs were awarded pursuant to the Texas

Declaratory Judgment Act for which immunity has not been waived.

                               CONCLUSION

      For the foregoing reasons, the City of Pearsall respectfully requests that

this Court reverse the trial court’s orders and remand the case for further

proceedings. Appellant also prays the Court grant it any other relief to which

it may be entitled.




                                      -12-
                                 Respectfully Submitted,

                                 LAW OFFICES OF ALBERT LÓPEZ
                                 14310 Northbrook Dr., Suite 200
                                 San Antonio, Texas 78232
                                 Telephone: (210) 404-1983
                                 Fax: (210) 404-1990

                                 By: /s/ Albert López
                                 ALBERT LÓPEZ
                                 State Bar No. 12562350
                                 alopezoffice@gmail.com
                                 ATTORNEY FOR DEFENDANT
                                 CITY OF PEARSALL


                    CERTIFICATE OF SERVICE

      I hereby certify that on November 30, 2015, I served a copy of the
foregoing according the rules of appellate procedure upon Reid E. Meyers,
Attorney at Law, 11118 Wurzbach Rd., San Antonio, TX 78230.

                                 /s/ Albert López
                                 Albert López




                                  -13-
                   CERTIFICATE OF COMPLIANCE

     This brief complies with the work volume limitation because this brief
contains 2,757, excluding the parts of the brief exempted.

       This brief complies with the typeface requirements because this brief
has been prepared in a proportionally spaced typeface using Wordperfect X7
in 14 point Georgia.


/s/ Albert López
Albert López




                                    -14-
