                                                                                    ACCEPTED
                                                                                03-15-00377-CV
                                                                                        6142265
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           7/20/2015 3:57:24 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                           No. 03-15-00377-CV

                 IN THE THIRD COURT OF APPEALS           FILED IN
                                                  3rd COURT OF APPEALS
                         at AUSTIN, TEXAS             AUSTIN, TEXAS
__________________________________________________________________
                                                  7/20/2015 3:57:24 PM
                                                        JEFFREY D. KYLE
 CITY OF LEANDER, TEXAS; KENT CAGLE,            INDIVIDUALLY Clerk
                                                                AND IN
  HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF
   LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS
    OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND
       PLANNING DIRECTOR FOR THE CITY OF LEANDER

                                Appellants

                                    v.

                  PREMAS GLOBAL LEANDER I, LLC

                                 Appellee

__________________________________________________________________

    Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court,
                        Williamson County, Texas
__________________________________________________________________

                       APPELLANTS’ BRIEF
__________________________________________________________________

                                  Knight & Partners
                                  223 W. Anderson Lane, Ste. A-105
                                  Austin, Texas 78752
                                  (512) 323-5778 Telephone
                                  (512)323-5773 Facsimile
                                  ATTORNEYS FOR APPELLANT

                                  Bradford E. Bullock
                                  State Bar No. 00793423

             APPELLANTS REQUEST ORAL ARGUMENT
                   IDENTITY OF PARTIES & COUNSEL

      In order that the members of this Court may determine disqualification and
recusal under the Texas Rules of Appellate Procedure, Appellant certifies that the
following is a complete list of the parties, attorneys, and other persons with a
financial interest in the outcome of this lawsuit:

Appellant:                                   Attorneys for Appellant:

CITY OF LEANDER, TEXAS
                                             Knight & Partners
                                             Attorneys at Law
                                             Executive Office Terrace
                                             223 West Anderson Lane, Suite A-
                                             105
                                             Austin, Texas 78752
                                             (512) 323-5778 Office
                                             (512) 323-5773 Facsimile
                                             Bradford E. Bullock
                                             State Bar No. 00793423
                                             bradford@cityattorneytexas.com

KENT CAGLE                                   Knight & Partners
                                             Attorneys at Law
                                             Executive Office Terrace
                                             223 West Anderson Lane, Suite A-
                                             105
                                             Austin, Texas 78752
                                             (512) 323-5778 Office
                                             (512) 323-5773 Facsimile
                                             Bradford E. Bullock
                                             State Bar No. 00793423
                                             bradford@cityattorneytexas.com

THOMAS YANTIS                                Knight & Partners
                                             Attorneys at Law
                                             Executive Office Terrace
                                             223 West Anderson Lane, Suite A-
                                             105

                                        ii
                                     Austin, Texas 78752
                                     (512) 323-5778 Office
                                     (512) 323-5773 Facsimile
                                     Bradford E. Bullock
                                     State Bar No. 00793423
                                     bradford@cityattorneytexas.com



Appellee:                            Attorneys for Appellee:

PREMAS GLOBAL LEANDER I, LLC         Howry, Breen & Herman LLP
                                     1900 Pearl Street
                                     Austin, Texas 78705-5408
                                     (512) 474-7300 Office
                                     (512) 474-8557 Facsimile
                                     Sean E. Breen
                                     State Bar No. 00783715
                                     sbreen@howrybreen.com
                                     Randy R. Howry
                                     State Bar No. 10121690
                                     rhowry@howrybreen.com
                                     James Hatchitt
                                     State Bar No. 24072478
                                     jhatchitt@howrybreen.com




                               iii
                           TABLE OF CONTENTS

IDENTITY OF PARTIES &
COUNSEL…………………………………………........... ..................................... ii

INDEX OF
AUTHORITIES………………………………………………………....... ........... vii

JURISDICTIONAL
STATEMENT………………………………………………………....... ................ 3

STATEMENT OF THE
CASE………………………………………………………… ................................. 3

STATEMENT ON
ORAL ARGUMENT ………………………………………………….................... 4

ISSUES PRESENTED FOR
REVIEW………………………………………………. ........................................... 4

STATEMENT OF
FACTS………………………………………………………….….. ........................ 6

SUMMARY OF THE
ARGUMENT………………………………………………..................................... 9

ARGUMENT …………………………………………………..............................13

     Issue One – Appellee has not asserted a valid waiver of governmental
     immunity based on an alleged waiver by contract; therefore,
     Appellee’s pleading affirmatively negates the trial court’s jurisdiction
     over Appellants on this ground.
     …………………………………………………………………. 13

     Issue Two – Appellee has not asserted a claim for relief for which
     immunity has been waived under Texas Local Government Code §
     271.152; therefore, Appellee’s pleading affirmatively negates the trial
     court’s jurisdiction over Appellants on this ground.
     …………………………………………………………………. 18



                                        iv
     Issue Three – Appellee has not asserted a valid waiver of
     governmental immunity based on Appellants’ conduct; therefore,
     Appellee’s pleading affirmatively negates the trial court’s jurisdiction
     over Appellants on this ground.
     …………………………………………………………………. 25

     Issue Four – Appellee has not asserted a valid waiver of governmental
     immunity based on a proprietary function; therefore, Appellee’s
     pleading affirmatively negates the trial court’s jurisdiction over
     Appellants on this ground.
     …………………………………………………………………. 27

     Issue Five – Appellee has not asserted a valid waiver of governmental
     immunity based on the Uniform Declaratory Judgments Act because it
     is incidental to and redundant of a breach of contract claim and a
     claim brought pursuant to Chapter 245 of the Local Government
     Code; therefore, Appellee’s pleadings affirmatively negate the trial
     court’s jurisdiction over Appellants on this ground.
     …………………………………………………………………. 30

     Issue Six – Appellee has asserted a claim for declaratory relief and a
     writ of mandamus against Appellants the City, and Cagle and Yantis
     in their individual capacities, but such relief is only available against
     officials in their official capacities for purely ministerial acts;
     therefore, Appellee’s pleading affirmatively negates the trial court’s
     jurisdiction over Appellants the City, and Cagle and Yantis in their
     individual capacities, and all Appellants to the extent it asks them to
     perform non-ministerial acts.
     …………………………………………………………………. 33

     Issue Seven – Appellee has not asserted a valid waiver of immunity
     for an award of attorneys’ fees against Appellants because their claims
     are not cognizable under the relevant statute, or the statute itself does
     not provide for an award of attorneys’ fees; therefore, Appellants’
     pleading affirmatively negates the trial court’s jurisdiction to award
     attorneys’ fees to Appellees.
     …………………………………………………………………. 38

PRAYER …………………………………………………..................................... 40



                                        v
CERTIFICATE OF
COMPLIANCE …………………………………………………. .........................41

CERTIFICATE OF
SERVICE …………………………………………………....................................42

APPENDIX …………………………………………………. ...............................43




                               vi
                         INDEX OF AUTHORITIES

                                    CASES

Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)
……………………………………………………………………………………36

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)
……………………………………………………………………………………37

Associated Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d at
753………………………………………………………………………………..39

Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 172 (Tex. App.-Austin 2013,
no pet.) ………………………………………………………………………25, 26

Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 29
(Tex. App.-San Antonio 2006, pet. dism’d)
……………………………………………………………………………………16

Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) ……………………………………………………………..14

Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)
…………………………………………………………………………………...19

City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex. App.—Fort Worth 2007,
pet. Denied) ……………………………………………………………………..13

City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6 (Tex. 2009)
…………………………………………………………………………….31, 35, 37

City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007)
……………………………………………………………………………………20

City of Georgetown v. Lower Colorado River Auth., 413 S.W.3d 803, 812-14 (Tex.
App.-Austin 2013), reh’g overruled (Nov. 13, 2013), review dismissed (May 30,
2014) …………………………………………………………………24, 29, 30, 32




                                      vii
City of Houston v. Jackson, 192 S.W.3d 764, 773 (Tex. 2006)
……………………………………………………………………………….……39

City of Houston v. Southern Electrical Services, Inc., 273 S.W.3d 739, 744 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied)
………………………………………………………………………………….…20

City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011)
…………………………………………………………………………………….14

City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444 (Tex. App.-Dallas
2008, pet. denied) ……………………………………………………..……….…24

City of N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900,
908 (Tex. App.-Fort Worth 2011, no pet.)
………………………………………………………………………….…20, 23, 31

City of Round Rock v. Whiteaker, 241 S.W.3d 609, 628 (Tex. App.-Austin 2007,
pet denied) ………………………………………………………..………..…22, 36

City of San Antonio v Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 WL
631484, at *1, *6 (Tex. App.-San Antonio Feb. 19, 2014), review denied (May 1,
2015) (unreported case) …………………………..………………………...…33,39

City of Willow Park, Texas v. E.S., 424 S.W.3d 702, 709 (Tex. app.-Fort Worth
2014), review denied (Oct. 24, 2014) ……………………………………17, 25, 27

Clear Lake City Water Auth. v. MCR Corp., 2010 Tex. App. LEXIS 2194, 30 (Tex.
App. Houston 1st Dist. Mar. 11, 2010) …………………………...………………20

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)
……………………………………………………………………………….……13

Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293 S.W.3d 839, 842
(Tex. App.-Dallas 2009, pet. denied) ……………….……………………………16

Federal Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997)
………………………………………………………………………...15, 25, 26, 27




                                      viii
Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.-Austin
2014, no pet.)………………………………………………………...………..36, 37

John G. and Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 289
(Tex. 2002) ……………………………………………………………………….39

Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex. App.—Houston [1st Dist.]
1999, no pet.) …………………………………………………………………..…19

Multi-County Water Supply Corp. v. City of Hamilton, 321 S.W.3d 905, 908 (Tex.
App.-Houston [14th Dist.] 2010, pet. denied)
………………………………………………………………………………….…32

New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.-Austin
2014, no pet.) ………………………………………………………….……..26, 28

Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex. App.-Austin 2011.
no pet.) ……………………………………………………………………………39

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006)
……………………………………………………………………………...…….15

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011)
……………………………………………………………………………………26

State v. Langley, 232 S.W.3d 363, 367 (Tex. App.-Tyler 2007, no pet.)
……………………………………………………………………………………15

State v. Oakley, 227 S.W. 3d 58, 62 (Tex. 2007)
……………………………………………………………………………………21

Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 353 (Tex. 2013)
…………………………………………………………………………….………25

Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004)
………………………………………………………………………….…13, 14, 15

Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)
……………………………………………………………………………………18



                                      ix
Texas Mun. Power Agency v. Pub. Util. Com’n, 260 S.W.3d 647, 650 (Tex. App.-
Austin 2008, no pet.)………………………………………………...……………33

Texas State Bd. of Plumbing Examiners v. Associated Plumbing-Heating-Cooling
Contractors of Texas, Inc., 31 S.W.3d 750, 753 (Tex. App.-Austin 2000, pet.
abated) …………………………………………………………………….……...33

Texas S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, 908 (Tex. App.-
Houston [1st Dist.] 2007, pet denied) …………………………….………………25

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002) ………………………………………………………………….…14, 17, 31

Tooke v. City of Mexia, 197 S.W.3d 325, 332, 346 (Tex. 2006)
………………………………………………………………….……15, 16, 21, 24

Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex. 2002)
………………………………………………………………………………15, 17

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 701 (Tex. 2003)
……………………………………………………………………………… 15, 21

                             CONSTITUTION

None

                                STATUTES

TEX. CIV. PRAC. & REM. CODE ANN. §51.014 (a) (8)
…………………………………………………………………………………..….3

TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.014 (b), (c)(2)
…………………………………………………………………………………..….4

TEX. CIV. PRAC. & REM. CODE ANN. §101.0215 (a) (29) (Vernon) (West)
…………………………………………………………………………………….29

TEX. CIV. PRAC. & REM. CODE ANN. §37.006(b) (Vernon)
…………………………………………………………………………..…….30, 31



                                      x
TEX. LOC. GOV’T CODE ANN. § 271.152 (Vernon)
……………………………………………………………………………….…9, 10

TEX. LOC. GOV’T CODE ANN. §143.015(b) (Vernon)
………………………………………………………………………………….…22

TEX. LOC. GOV’T CODE ANN. §245.006 (Vernon)
…………………………………………………………………………...……32, 38

TEX. LOC. GOV’T CODE ANN. §271.151(2)(A) (Vernon)
……………………………………………………………………………….……19

TEX. LOC. GOV’T CODE ANN. §271.151(2)(b) (West)
…………………………………………………………………………….………22

TEX. LOC. GOV’T CODE ANN. §271.152 (Vernon)
…………………………………………………………………………..….4, 18, 19

TEX. LOC. GOV’T CODE ANN. §271.153
……………………………………………………………………….…..……10, 21

TEX. LOC. GOV’T CODE ANN. §271.153(a) (Vernon)
………………………………………………………………………………….…19

TEX. LOC. GOV’T CODE ANN. §271.153(c) (Vernon)
……………………………………………………………………………..….21, 22

TEX. GOV’T CODE ANN. §311.034 (Vernon) (West)
………………………………………………………………………….…..…15, 18

TEX. GOV’T CODE ANN. §311.034 (West 2005 & Supp. 2009)
……………………………………………………………………………….……21

TEX. GOV’T CODE ANN. §311.011 (Vernon)
……………………………………………………………………………………18

TEXAS TORT CLAIMS ACT (TEX. CIV. PRAC. & REM. CODE CH. 101)
………...………………………………………………………………………28, 29




                             xi
UNIFORM DECLARATORY JUDGMENT ACT (TEX. CIV. PRAC. & REM.
CODE § 37.009)
………………………………………………………………………………….…12

                             RULES

TEX. R. APP. P. 39.1(b) ……………………………………………………….…..4

TEX. R. APP. P. 39.1(c) …………………………………………………………..4

TEX. R. APP. P. 39.1(e), 39.1(d) ………………………………………...………..4


                      OTHER AUTHORITIES

Acts 2013, 8rd Leg., ch. 1138 (H.B. 3511), §3, effective June 14,
2013………………………………………………………………………….……22




                               xii
                         No. 03-15-00377-CV
                 IN THE THIRD COURT OF APPEALS
                         at AUSTIN, TEXAS
__________________________________________________________________

 CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN
  HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF
   LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS
    OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND
       PLANNING DIRECTOR FOR THE CITY OF LEANDER

                                Appellants

                                    v.

                  PREMAS GLOBAL LEANDER I, LLC

                                 Appellee

__________________________________________________________________

    Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court,
                        Williamson County, Texas
__________________________________________________________________

                       APPELLANTS’ BRIEF
__________________________________________________________________


TO THE HONORABLE THIRD COURT OF APPEALS:

     NOW COME Appellants, the CITY OF LEANDER, TEXAS; KENT

CAGLE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CITY

MANAGER OF THE CITY OF LEANDER; AND THOMAS YANTIS,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT CITY




                                    1
MANAGER AND PLANNING DIRECTOR FOR THE CITY OF LEANDER,

and submit this appellants’ brief.




                                     2
                         JURISDICTIONAL STATEMENT

      This is a timely, accelerated appeal pursuant to Texas Rule of Appellate

Procedure 28.1 from an interlocutory order denying Appellants’ plea to the

jurisdiction.

                            STATEMENT OF THE CASE

       Appellee, a property developer, asserted claims for breach of contract
(development agreement), specific performance, declaratory judgment, an
injunction, mandamus and attorneys’ fees under various theories and statutes
against Appellants City of Leander and Kent Cagle and Thomas Yantis in their
individual and official capacities. CR:6-88.1 Appellants answered (CR:89-95) and
filed a motion to dismiss for lack of jurisdiction, asserting various fatal defects in
Appellee’s pleadings.        CR:96-162.      Following a hearing on Appellants’
jurisdictional plea, the trial court denied Appellants’ motion to dismiss for lack of
jurisdiction.2 CR:329. Appellants filed their notice of appeal (CR:332-35) in
conjunction with a motion to extend time to perfect notice with this Court.
Because this is an appeal of an interlocutory order by a governmental entity,
pursuant to Texas Civil Practice and Remedies Code § 51.014 (a)(8), which was
filed and requested for hearing before the trial court not later than the 180 th day
after Appellants filed their original answer and/or first responsive pleading 3, all


1
      The appellate record consists of a single volume of the Clerk’s record. Therefore,
      references to the Clerk’s Record shall be designated “CR:” followed by the relevant page
      number(s).
2
      At the hearing in question, the trial court also heard Appellee’s request for mandamus
      relief, which the trial court granted. CR:330-31. The mandamus order against Cagle and
      Yantis in their official capacities is not a subject of this appeal; however, Premas’
      pleadings also assert a right to mandamus relief against the City, and Cagle and Yantis in
      their individual capacities. The City and Cagle and Yantis, in their individual capacities,
      do challenge Premas’ request for mandamus relief against them and contend that this
      claim should have been dismissed against them. Appellants also note that by operation of
      TEX. CIV. PRAC. & REM. CODE § 51.014(a) (8), (b), and (c), the trial court’s mandamus
      order against Cagle and Yantis in their official capacities is stayed pending resolution of
      this appeal.
3
      Appellants’ answer was filed on February 20, 2015. CR:89. The trial court issued its
      order denying Appellants’ plea to the jurisdiction on May 22, 2015. CR:329.
                                                  3
proceedings in the trial court are stayed pending resolution of this appeal. TEX.
CIV. PRAC. & REM. CODE ANN. §§ 51.014 (b), (c)(2).


       STATEMENT ON ORAL ARGUMENT – ORAL ARGUMENT
                       REQUESTED

      The Court should grant oral argument for the following reasons:

      a. The issues presented have not been authoritatively decided by this Court.
         See TEX. R. APP. P. 39.1(b). Appellee has asserted numerous,
         overlapping claims against Appellants, which implicate the application of
         governmental immunity in novel ways.

      b. Oral argument would allow the Court to better analyze the complex legal
         issues presented in this appeal. See TEX. R. APP. P. 39.1(c). The facts
         and legal grounds for the claims alleged in Appellee’s original petition
         compelled the trial court to analyze various aspects of governmental
         immunity in novel ways. Oral argument will assist the Court in
         understanding the interplay of the relevant claims and defenses.

      c. Oral argument would significantly aid the Court in deciding this case.
         See TEX. R. APP. P. 38.1(e), 39.1(d). Oral argument will assist the Court
         in understanding the nuanced arguments related to governmental
         immunity, which are dispositive of this appeal.

                     ISSUES PRESENTED FOR REVIEW

      Issue One – Appellee has not asserted a valid waiver of governmental

immunity based on an alleged waiver by contract; therefore, Appellee’s pleading

affirmatively negates the trial court’s jurisdiction over Appellants on this ground.

      Issue Two – Appellee has not asserted a claim for relief for which immunity

has been waived under Texas Local Government Code § 271.152; therefore,


                                          4
Appellee’s pleading affirmatively negates the trial court’s jurisdiction over

Appellants on this ground.

      Issue Three – Appellee has not asserted a valid waiver of governmental

immunity based on Appellants’ conduct; therefore, Appellee’s pleading

affirmatively negates the trial court’s jurisdiction over Appellants on this ground.

      Issue Four – Appellee has not asserted a valid waiver of governmental

immunity based on a proprietary function; therefore, Appellee’s pleading

affirmatively negates the trial court’s jurisdiction over Appellants on this ground.

      Issue Five – Appellee has not asserted a valid waiver of governmental

immunity based on the Uniform Declaratory Judgments Act because it is incidental

to and redundant of a breach of contract claim and a claim brought pursuant to

Chapter 245 of the Local Government Code; therefore, Appellee’s pleadings

affirmatively negate the trial court’s jurisdiction over Appellants on this ground.

      Issue Six – Appellee has asserted a claim for declaratory relief and a writ of

mandamus against Appellants the City, and Cagle and Yantis in their individual

capacities, but such relief is only available against officials in their official

capacities for purely ministerial acts; therefore, Appellee’s pleading affirmatively

negates the trial court’s jurisdiction over Appellants the City, and Cagle and Yantis

in their individual capacities, and all Appellants to the extent it asks them to

perform non-ministerial acts.
                                          5
      Issue Seven – Appellee has not asserted a valid waiver of immunity for an

award of attorneys’ fees against Appellants because their claims are not cognizable

under the relevant statute, or the statute itself does not provide for an award of

attorneys’ fees; therefore, Appellants’ pleading affirmatively negates the trial

court’s jurisdiction to award attorneys’ fees to Appellees.

                            STATEMENT OF FACTS

       Appellant, the City of Leander, Texas (hereinafter “City”) and Appellee

Premas Global Leander I, LLC (hereinafter “Premas”) entered into a written

agreement entitled “Development and Annexation Agreement for Global Village”

(hereinafter “Development Agreement”) with an effective date of September 2,

2010, which contemplated the planned development of slightly more than 65 acres

of property. CR:34-82. The Development Agreement is for a ten-year term

(CR:50), and it contains several deadlines by which Premas had to perform certain

acts. CR:41. Specifically, the Development Agreement provided that Premas

shall: apply for final plat approval of Phase One within 180 days of the effective

date; apply for a site development permit within three years of the effective date

(September 2, 2013); and apply for a final plat or preliminary plan within four

years of the effective date (September 2, 2014).        CR:41.   The Development

Agreement also provided that time was of the essence in the performance of the

agreement. CR:50.
                                          6
      On September 19, 2014, the City sent a notice of default to Premas,

indicating that it was in default of its obligations to apply for a site development

permit within three years and apply for a final plat or preliminary plan within four

years of the effective date. CR:84. The City advised Premas that, pursuant to the

terms of the Development Agreement (CR:46), Premas had thirty days to cure

these defaults in its obligations to perform. CR:84. On October 28, 2014, the City

sent notice to Premas that its thirty-day cure period had expired and that due to its

failure to cure by submitting the applicable applications to the City, the City

considered the Development Agreement terminated. CR: 85:86.

      Following the expiration of the 30 day cure period, Premas ultimately

attempted to submit applications for a site development permit and final or

preliminary plat on December 15, 2014 (CR:18), which the City refused to accept

or process on the grounds that the City considered the Development Agreement

terminated. CR:87-88. Thereafter, Premas filed its Original Petition, asserting

various causes of action against the City and Appellants Kent Cagle (hereinafter

“Cagle”) and Thomas Yantis (hereinafter “Yantis”) in both their official and

individual capacities. CR:6-33. Premas asserted claims for (a) breach of contract

against the City, seeking specific performance of the Development Agreement, (b)

a request for declaratory relief against the City that the Development Agreement is

valid and enforceable, (c) a writ of mandamus against all Appellants ordering them
                                         7
to accept and process Premas’ late applications, (d) an application for temporary

and permanent injunction against the City, requiring specific performance of the

Development Agreement, and in support thereof, asserted various alleged waivers

of immunity. CR:19-31.

       Appellants answered (CR:89-95) and filed a plea to the jurisdiction,

asserting that the trial court was without jurisdiction over Appellants with regard to

specific claims asserted by Premas because Premas’ pleadings affirmatively

negated the trial court’s jurisdiction. CR:96-162. Premas also requested a hearing

on its requests for mandamus relief (CR:251-311), which the trial court granted at

the same time it denied Appellants’ plea to the jurisdiction. CR:330-31. The trial

court ordered Cagle and Yantis in their official capacities to accept the applications

tendered by Premas on or about December 15, 2014, and review the applications

according the applicable law and rules in effect on September 2, 2010. CR: 330-

31.4




4
       Appellants Yantis and Cagle have accepted the tendered applications for processing and
       are not appealing the trial court’s order granting mandamus in their official capacities;
       however, Premas’ pleadings asserted mandamus against all Defendants, including the
       City and Cagle and Yantis in their individual capacities. The City and Cagle and Yantis,
       in their individual capacities, do challenge Premas’ request for mandamus relief against
       them and contend that this claim should have been dismissed against them. Appellants
       also note that by operation of Texas Civil Practice and Remedies Code §§ 51.014 (b), (c),
       the mandamus order against Cagle and Yantis in their official capacities is stayed
       pending resolution of this appeal.
                                                  8
      Thereafter, on June 18, 2015, Appellants filed their notice of interlocutory

appeal (CR:332-35) and concurrently filed a motion for extension of time to file

notice of interlocutory appeal with this Court. On June 30, 2015, the Williamson

County District Clerk filed the clerk's record with the Court. CR:336-37.

                       SUMMARY OF THE ARGUMENT

      Under the governmental immunity doctrine, in a suit against a governmental

unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging

a valid waiver of immunity. Premas failed to do so in its claims for breach of

contract, declaratory judgment, injunction, and mandamus against Appellants for a

variety of reasons.

      First, Premas asserted that the City waived immunity by virtue of a provision

in the Development Agreement that purports to waive immunity. CR:124-25. The

law is clear, however, that only the Legislature can waive governmental immunity

by clear and unambiguous language. Contractual provisions purporting to waive

immunity have been expressly rejected as valid grounds for waiver and Premas’

pleadings failed to invoke the trial court’s jurisdiction on its breach of contract

claim on this ground. The trial court committed reversible error by denying the

City’s plea on this ground.

      Second, Premas asserted that § 271.152 of the Texas Government Code

clearly and unambiguously waived the City’s immunity for its breach of contract
                                          9
claim against the City. Section 271.152 is a valid waiver of immunity for certain

contracts, and the City does not dispute that the Development Agreement is a

written contract for the provision of goods or services. However, § 271.153 also

expressly limits the remedies that are available to claimants, including a limit on

the type of money damages a claimant can seek and a strict limit on the type of

contracts for which specific performance is available. Premas has not asserted a

claim for any money damages under its breach of contract claim, but rather only

seeks specific performance of the Development Agreement. Premas’ pleadings,

however, affirmatively negate the trial court’s jurisdiction to award specific

performance for this kind of contract. Premas’ pleadings fail to invoke the trial

court’s jurisdiction on its breach of contract claim on this ground. The trial court

committed reversible error by denying the City’s plea on this ground.

      Third, Premas asserted that the City waived its immunity from suit by

“misleading conduct.” CR:28. This claim is simply another iteration of Premas’

assertion that the City waived immunity by contract and is equally unavailing for

the same reasons. The trial court committed reversible error by denying the City’s

plea on this ground.

      Fourth, Premas asserted that the City was not entitled to immunity on its

breach of contract claim because the Development Agreement constituted a

proprietary, as opposed to a governmental action. The Legislature and the courts
                                        10
have previously classified contracts such as the Development Agreement as

governmental actions, particularly where, as here, the Development Agreement

addresses land-uses that extend beyond the City’s corporate limits into its

extraterritorial jurisdiction. The trial court committed reversible error by denying

the City’s plea on this ground.

      Fifth, Premas asserted a Uniform Declaratory Judgment Act (hereinafter

“UDJA”) claim against the City, seeking a declaration that the Development

Agreement is valid and enforceable, and an award of attorneys’ fees pursuant

thereto. The UDJA, however, does not waive a city’s immunity from suit for

breach of contract claims, and the trial court committed reversible error by not

granting the City’s plea on this ground. Moreover, Premas also asserted a claim

for declaratory relief pursuant to Chapter 245 of the Local Government Code.

While Chapter 245 waives a city’s immunity from suit for certain actions,

including injunctive relief, mandamus, and declarations related to “permits,” which

the Development Agreement is, Chapter 245 does not waive a city’s immunity for

an award of attorneys’ fees and a claimant cannot bootstrap a Chapter 245 claim to

a UDJA claim simply for the purpose of obtaining attorneys’ fees. The trial court

committed reversible error by not granting the City’s plea on this ground.

      Sixth, the only relief Premas seeks (aside from impermissible claims for

attorneys’ fees, which will be discussed separately) is for equitable relief
                                         11
(injunction and/or mandamus) and specific performance of a contract with the

City. Neither injunctive relief nor specific performance is available against a city

official in their individual capacities on the facts pled by Premas because such

relief would not bind the actual party to the Development Agreement – the City.

And the Texas Supreme Court has made it clear that mandamus is only available

against officials in their official capacities.     Therefore, Premas’ pleadings

affirmatively negate the trial court’s jurisdiction over Cagle and Yantis in their

individual capacities. The trial court committed reversible error by not granting

Cagle and Yantis’ plea on this ground in their individual capacities.

      Seventh, in addition to requesting a mandamus order against Cagle and

Yantis in their individual capacities, Premas’ pleadings also request a mandamus

order against the City. Again, the Texas Supreme Court has made it clear that

mandamus is only available against officials in their official capacities and Premas’

pleadings affirmatively negate the trial court’s jurisdiction over the City on this

ground. The trial court committed reversible error by not granting the City’s plea

on this ground.

      Eighth, Premas has asserted a claim for attorneys’ fees under section 37.009

of the UDJA, but because the relief that Premas seeks is redundant of the relief

afforded under Chapter 245 of the Local Government Code, Premas’ UDJA claim

is nothing more than an impermissible attempt to bootstrap an attorney fee award
                                         12
to their underlying claim. This Court has previously addressed this very issue and

found jurisdiction under the UDJA lacking for an attorneys’ fee award under

similar facts.   The trial court committed reversible error by not granting

Appellants’ plea on this ground.

                                   ARGUMENT

      Issue One – Appellee has not asserted a valid waiver of governmental
      immunity based on an alleged waiver by contract; therefore, Appellee’s
      pleading affirmatively negates the trial court’s jurisdiction over Appellants
      on this ground.

      As a preliminary matter, the rules governing a plea to the jurisdiction are

germane to the determination of this issue. A plea to the jurisdiction can challenge

either the pleadings or the existence of jurisdictional facts. Tex. Dept. of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). When a plea to the

jurisdiction challenges a plaintiff's pleadings, the question is whether plaintiff has

alleged sufficient facts to demonstrate the court's subject matter jurisdiction over

the matter. Id. Courts construe pleadings liberally in the plaintiff's favor and look

to the pleader's intent. City of Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex.

App.--Fort Worth 2007, pet. denied). When the pleadings neither allege sufficient

facts nor demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiff should be afforded the opportunity to amend. County

of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If, however, the pleadings

                                         13
affirmatively negate jurisdiction, then the plea to the jurisdiction may be granted

without leave to amend. Id.

      To prevail on the plea, the defendant must show that even if all the plaintiff's

pleaded allegations are true, an incurable jurisdictional defect remains on the face

of the pleadings that deprives the trial court of subject matter jurisdiction.

Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.--Houston [14th

Dist.] 2005, no pet.). Appellate courts review a trial court's ruling on a plea to the

jurisdiction de novo. Texas Department of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex.2004).

      Cities enjoy governmental immunity from suit for actions undertaken in

their governmental capacity, including contracting. City of Houston v. Williams,

353 S.W.3d 128, 134 (Tex. 2011). The Texas Supreme Court has clearly stated

that suits to establish a contract’s validity, enforce its performance, or establish a

governmental entity’s liability cannot proceed without legislative permission. Tex.

Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)

(suits against governmental officials seeking to establish contract's validity,

enforce performance under a contract, or impose contractual liabilities are suits

against the governmental entity and cannot be maintained without legislative

permission) (emphasis supplied).      Courts defer to the Legislature because the

decision to expend public funds for alleged contractual liability involves policy
                                         14
choices more properly made by a legislative body. Tooke v. City of Mexia, 197

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

      Governmental immunity from suit is a subject-matter jurisdiction question,

and cannot be waived or conferred by agreement, must be considered by a court

sua sponte, and may even be raised for the first time on appeal. Reata Constr.

Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006). Without subject-matter

jurisdiction, a court cannot render a valid judgment. Miranda, 133 S.W.3d at 225-

26.

      In order to proceed in a claim against a city, even under contract, a plaintiff

must plead an applicable, clear and unambiguous waiver of immunity from suit.

TEX. GOV’T CODE ANN. §311.034 (Vernon); Travis County v. Pelzel & Assocs.

Inc., 77 S.W.3d 246, 248 (Tex. 2002). It is not enough for a party to simply allege

a breach of contract claim as they would against a private party – a city’s immunity

from suit is not automatically waived merely by entering into a contract. Federal

Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997); State v. Langley, 232 S.W.3d

363, 367 (Tex.App.—Tyler 2007, no pet.). And because immunity waivers are

strictly construed in favor of the governmental entity, the Legislature’s intent to

waive immunity must be “unmistakable.” Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 701 (Tex. 2003) (courts construe ambiguities in manner that retains

State's immunity).
                                         15
      A governmental entity’s immunity from suit for breach of contract extends

to suits seeking specific performance. See Bexar Metro. Water Dist. v. Educ. &

Econ. Dev. Joint Venture, 220 S.W.3d 25, 29 (Tex. App.—San Antonio 2006, pet.

dism'd) (suit for declaratory and injunctive relief seeking to “compel performance

of or to enforce rights arising out of a contract” with governmental entity barred by

immunity).    When the only relief that a party seeks is not permitted by an

applicable immunity wavier, the governmental entity retains immunity from the

claim. See id. If a plaintiff seeks only excluded relief, then immunity is not

waived. See Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293

S.W.3d 839, 842 (Tex. App.—Dallas 2009, pet. denied), citing Tooke v. City of

Mexia, 197 S.W.3d 325, 346 (Tex.2006) (where plaintiffs' only claim was for lost

profits, which are excluded consequential damages, immunity not waived).

      Premas has asserted a breach of contract claim against the City, and in

support of this claim alleges that the City waived immunity by contractual

provision. CR:26. Premas relies on section 9.03 of the Development Agreement,

which provides that the City of Leander “waives its governmental immunity from

suit and immunity from liability as to any action brought by Premas to pursue

equitable remedies available under the Agreement.” CR:46-47. This section also

provides that the City waives any claim or defense that any provision of the

Agreement is unenforceable on the ground that it constitutes an impermissible
                                         16
delegation or impairment of the performance of the City’s governmental functions.

CR:47. The question is not so much whether the language in the Development

Agreement purports to waive the City’s immunity from suit, but rather whether

such language is enforceable.

      In construing a contractual provision that expressly purported to waive

governmental immunity, courts have held that neither a governmental entity nor its

agents can waive immunity even by signing a contract with such a provision. City

of Willow Park, Texas v. E.S., 424 S.W.3d 702, 709 (Tex. App.—Fort Worth

2014), review denied (Oct. 24, 2014) citing Texas Natural Res. Conservation

Com'n v. IT-Davy, 74 S.W.3d 849, 858 (Tex. 2002). Premas’ contentions to the

contrary are not grounded in the law. Premas’ original petition cites Travis Cnty.

v. Pelzel & Assocs, Inc., (CR:26) for the proposition that the Texas Supreme Court

has authorized waivers of immunity by contract or conduct. 77 S.W.3d 246, 248

(Tex. 2002). Premas’ reliance on Pelzel is misplaced for several reasons.

      First, the court specifically declined the claimants request to adopt a waiver-

by-conduct exception to immunity. Pelzel at 251-52. Second, Texas courts have

been consistent and clear in their holdings for more than 150 years that “it is the

Legislature's sole province to waive or abrogate sovereign immunity.” IT-Davy at

857 (declining to recognize waiver-by-conduct exception). Third, the Legislature’s

own statutory pronouncement belies the fallacy of Premas’ interpretation of Pelzel.
                                         17
TEX. GOV’T CODE ANN. § 311.034 (West) (“In order to preserve the legislature's

interest in managing state fiscal matters through the appropriations process, a

statute shall not be construed as a waiver of sovereign immunity unless the waiver

is effected by clear and unambiguous language.”) (emphasis supplied).

      Premas failed to invoke the trial court’s jurisdiction for a breach of contract

claim against the City based on a contractual provision purporting to waive the

City’s immunity from suit and the trial court erred in denying the City’s plea to the

jurisdiction on this ground. The City respectfully requests that the Court reverse

the trial court and render judgment on behalf of the City and dismiss Premas’

breach of contract claim on this ground.

      Issue Two – Appellee has not asserted a claim for relief for which
      immunity has been waived under Texas Local Government Code §
      271.152; therefore, Appellee’s pleading affirmatively negates the trial
      court’s jurisdiction over Appellants on this ground.

      Statutory construction is a question of law, reviewed de novo. Tex. Dep't of

Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). In construing a statute,

courts attempt to determine and to give effect to the Legislature's intent. Id.

Courts look first to the plain and common meaning of the language of the statute,

and may not construe a provision of a statute so as to render another provision

absurd or meaningless. See TEX. GOV’T CODE ANN. § 311.011 (Vernon) (words

and phrases shall be read in context and construed according to rules of grammar

                                           18
and common usage); see also Chevron Corp. v. Redmon, 745 S.W.2d 314, 316

(Tex. 1987) (“We will give effect to all the words of a statute and not treat any

statutory language as surplusage if possible.”); Mueller v. Beamalloy, Inc., 994

S.W.2d 855, 860 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (“In construing

statutes as a whole, we consider all provisions of an act and decline interpretations

that produce absurd results or render terms meaningless.”).

      Premas asserts that its claim for breach of contract is authorized by Section

271.152 of the Texas Local Government Code (CR:26), which provides a limited

waiver of governmental immunity.         TEX. LOC. GOV’T CODE ANN. §271.152

(Vernon) (immunity is waived for breach of contract claims, “subject to the terms

and conditions of this subchapter.”); TEX. LOC. GOV’T CODE ANN. §271.153(a)

(Vernon) (recoverable damages are limited). This waiver is for the limited purpose

of adjudicating a claim for breach of those contracts subject to that subchapter –

that is, properly executed contracts for “goods or services.” TEX. LOC. GOV’T

CODE ANN. §271.151(2)(A) (Vernon) (written contract stating the essential terms

of the agreement for providing goods or services to the local governmental entity

that is properly executed on behalf of the local governmental entity).


      The City does not dispute that the Development Agreement (CR:34-52)

provides for the provision of “goods or services” as contemplated by the limited


                                         19
waiver of sections 271.151 and 271.152, similar to the agreement at issue in City of

N. Richland Hills v. Home Town Urban Partners, Ltd., 340 S.W.3d 900, 908 (Tex.

App.—Fort Worth 2011, no pet.) (development agreement required developer to

construct, at developer’s cost, infrastructure improvements). Nor does the City

contend that either party failed to properly execute the contract or that it was

executed without authorization. CR:52.


      Rather, because its pleadings seek relief and recovery of damages that the

Legislature has not authorized, Premas failed to invoke the court’s jurisdiction by

alleging facts that do not support a permissible claim for relief. See Clear Lake

City Water Auth. v. MCR Corp., 2010 Tex. App. LEXIS 2194, 30 (Tex. App.

Houston 1st Dist. Mar. 11, 2010) (plaintiff satisfies section 271.153(a)(1) by

alleging facts to support its claim that there is a balance due and owing under the

contract), citing City of Houston v. Southern Electrical Services, Inc., 273 S.W.3d

739, 744 (Tex. App.--Houston [1st Dist.] 2008, pet. denied) (“Section 271.153

does not retract the privilege granted in Section 271.152 to adjudicate the claim for

breach, if a plaintiff alleges facts to support such a claim and seeks recovery

only of damages to the extent allowed.”) (emphasis supplied).


      Courts require clear immunity waivers because of the heavy presumption in

favor of immunity. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).

                                         20
So heavy is this presumption that special rules of construction apply to statutes that

are asserted to be waivers of immunity. State v. Oakley, 227 S.W.3d 58, 62 (Tex.

2007) (quoting TEX. GOV'T CODE ANN. § 311.034 (West 2005 & Supp. 2009).

That is, no statute should be construed to waive immunity unless there is no doubt

that it was the Legislature’s intent to do so. Wichita Falls State Hosp. v. Taylor,

106 S.W.3d 692, 701 (Tex. 2003) (court requires Legislature to express intent to

waive immunity “beyond doubt.”). A statement is unambiguous if it is not subject

to more than one interpretation.        Because waivers must be strictly construed,

immunity is waived only to the extent a claim falls clearly within the parameters

set forth by the Legislature. See id.

      This principle applies with equal force to a party’s request for relief. Tooke

at 346 (plaintiff’s claim for damages on garbage collection contract was not within

limitations set forth in § 271.153 causing court to conclude immunity from suit had

not been waived).       Specific performance and injunctive relief are clearly

unavailable as a remedies because the Development Agreement (CR:34-52) does

not fit within the limited waiver of immunity for specific performance and

injunction authorized by the Legislature. TEX. LOC. GOV’T CODE ANN. §271.153(c)

(Vernon) (“Actual damages, specific performance, or injunctive relief may be

granted in an adjudication brought against a local governmental entity for breach


                                           21
of a contract described by Section 271.151(2)(B).”); TEX. LOC. GOV’T CODE ANN.

271.151(2)(b) (West) (“a written contract, including a right of first refusal,

regarding the sale or delivery of not less than 1,000 acre-feet of reclaimed water by

a local governmental entity intended for industrial use.”). The Legislature added

this additional remedy for the purchase of reclaimed water in 2013. Acts 2013,

83rd Leg., ch. 1138 (H.B. 3511), § 3, effective June 14, 2013. Certainly, had the

Legislature intended to make specific performance and injunctive relief available

for all contract claims subject to this subchapter, it could have easily made that

intent clear, but when it amended the Code, it specifically limited these remedies to

only one kind of contract. TEX. LOC. GOV’T CODE ANN. §271.153(c) (Vernon).

      By contrast, when the Legislature intends to waive immunity and allow

equitable relief against a governmental entity, it has expressly said so in other

statutory immunity waivers. See, e.g., City of Round Rock v. Whiteaker, 241

S.W.3d 609, 629 (Tex. App.-Austin 2007, pet. denied) (“In such appeals, ‘[t]he

district court may grant the appropriate legal or equitable relief necessary to carry

out the purposes of this chapter,’ which ‘may include reinstatement or promotion

with back pay if an order of suspension, dismissal or demotion is set aside.’ Id. §

143.015(b).”) citing LOC. GOV’T CODE ANN. §143.015(b) (Vernon). Based on the

forgoing authority, there is only one reasonable conclusion - the Legislature has


                                         22
spoken with unmistakable clarity and specific performance and injunctive relief are

not available remedies for general “goods and services” breach of contract claims

brought under Chapter 271.

      Premas’ claim for breach of contract against the City under Chapter 271

should not be allowed to proceed because it is precluded from obtaining the relief

that it seeks under this limited immunity waiver. Forcing a governmental entity to

expend the time and resources litigating a claim where it is immune from the relief

a litigant seeks, regardless of whether the contract is one for “goods and services,”

undermines the public policy of immunity - “[s]ubjecting the government to

liability may hamper governmental functions by shifting tax resources away from

their intended purposes toward defending lawsuits and paying judgments.” IT–

Davy at 854. Therefore, the City is immune from claims for specific performance

of a contract and injunctive relief unless the Legislature waives that immunity, and

it has not done so for contracts like the Development Agreement (CR:34-52). Id.

at 855.

      Cases like City of North Richland Hills v. Home Town Urban Partners, Ltd.

are distinguishable from the instant matter because in addition to a claim for

specific performance, for which the city claimed immunity, the developer had also

asserted a claim for permissible money damages, thereby invoking the trial court’s


                                         23
jurisdiction. Home Town Urban Partners, Ltd. at 910. Likewise, City of Mesquite

v. PKG Contracting, Inc., 263 S.W.3d 444 (Tex. App.—Dallas 2008, pet. denied)

is also distinguishable for the same reasons. Although the city claimed that the

contractor’s pleadings failed to invoke the trial court’s jurisdiction because its

alleged damages were not authorized by Chapter 271, the Dallas Court of Appeals

disagreed. Id. at 448. It held that it could not determine on the record before it that

the contractor’s money damage claim was excluded under the statute. Id. It

contrasted its holding with that of Tooke, noting that the supreme court was able to

determine that the claimant had only asserted a claim for lost profits, which were

clearly excluded by Chapter 271. Id.

      Premas asserts no claim for money damages owing under the Development

Agreement, but rather only a claim for specific performance and/or an injunction

compelling the City to perform (CR:26-28), the effect of which would be the same

as specific performance.     This simplifies the analysis, allowing the Court to

conclude that Premas has failed to invoke the trial court’s jurisdiction under

Chapter 271. See id. Based on the foregoing, Premas failed to invoke the trial

court’s jurisdiction and the trial court committed reversible error when it denied

the City’s plea to the jurisdiction on this ground. CR:329. The City respectfully

requests that the Court reverse the trial court and render judgment on behalf of the

City on this ground, dismissing this claim against the City.
                                          24
      Issue Three – Appellee has not asserted a valid waiver of
      governmental immunity based on Appellants’ conduct; therefore,
      Appellee’s pleading affirmatively negates the trial court’s jurisdiction
      over Appellants on this ground.

      Although the waiver-by-conduct issue has largely been addressed in

Appellants’ first issue, which Appellants incorporate herein by reference, as if

copied verbatim, Premas separately asserts that Texas law recognizes that a city

can waive immunity to suit through “misleading conduct.” CR:28.        In support of

this proposition, Premas cites Texas S. Univ. v. State St. Bank & Trust Co., 212

S.W.3d 893, 908 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) for the

proposition that the City waived its immunity by executing a contract that included

an immunity waiver provision. CR:23, 46-47.

      Premas’ circular reasoning does not support a waiver in light of clear

precedent, which provides that contractual provisions purporting to waive

immunity are invalid. See City of Willow Park, Texas v. E.S., 424 S.W.3d at 709.

Indeed, this Court’s own precedent, cited by the Fort Worth Court of Appeals,

supports the proposition that the hypothetical “waiver-by-conduct” scenarios

envisioned by Justice Hecht’s concurring opinion in Federal Sign have never been

adopted by the Texas Supreme Court. See id., (citing Tex. Adjutant Gen.'s Office

v. Ngakoue, 408 S.W.3d 350, 353 (Tex.2013) (reiterating that it is the legislature's

“sole province” to waive or abrogate sovereign immunity); and Bacon v. Tex.

                                        25
Historical Comm'n, 411 S.W.3d 161, 172 (Tex.App.-Austin 2013, no pet.)

(explaining that the contemporary rationale for governmental immunity is that the

legislature “is best suited to make the policy-laden judgments as to if and how ...

government resources should be expended”)).            Indeed, every time the Texas

Supreme Court has been given the opportunity to give life to Federal Sign’s

hypothetical waiver-by-conduct scenarios, it has soundly rejected the proposition.

Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 414 (Tex. 2011)

(rejecting invitation to recognize a waiver-by-conduct exception in a breach-of-

contract suit against a governmental entity).

      Recently, this Court discussed the waiver-by-conduct issue again and

explained that if it “has any current viability, it has lived on within the rubric not of

whether sovereign or governmental immunity has been waived, per se, but in the

threshold determination of whether immunity applies in the first place.” City of

New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 521 (Tex. App.—Austin

2014, no pet.). Carowest stands for the principle that the kind of conduct that

implicates whether immunity applies in the first place is, for example, a claim for

affirmative relief by the governmental entity that causes it to leave its sphere of

immunity and consider whether a plaintiff’s offsetting claim for monetary relief is

germane to that affirmative request for relief. Id. at 523. Carowest is instructive

for its inapplicability to the facts alleged by Premas. Premas asserts no claims for
                                           26
monetary relief and this appellate record contains no evidence that the City has

asserted an affirmative claim for relief in response. Thus, the City has not left its

“sphere of immunity” and waiver-by-conduct is not implicated. See id.

      Moreover, if the inclusion of an immunity waiver provision in a contract

were sufficient to implicate the hypothetical “waiver-by-conduct” scenario

implicated by dictum in Federal Sign, then the supreme court’s refusal to address

this issue and overturn City of Willow Park, Texas v. E.S. is somewhat

inexplicable. Instead, the supreme court denied review on October 24, 2014. City

of Willow Park, Texas v. E.S., 424 S.W.3d 702. Based on the foregoing, Premas

failed to invoke the trial court’s jurisdiction and the trial court committed

reversible error when it denied the City’s plea to the jurisdiction on this ground.

CR:329. The City respectfully requests that the Court reverse the trial court and

render judgment on behalf of the City on this ground, dismissing this claim against

the City.

      Issue Four – Appellee has not asserted a valid waiver of
      governmental immunity based on a proprietary function; therefore,
      Appellee’s pleading affirmatively negates the trial court’s jurisdiction
      over Appellants on this ground.

      Premas asserts that the City was engaging in a proprietary function by virtue

of entering into the Development Agreement; therefore, it is not entitled to assert

immunity, or so Premas contends. CR:28. This Court has addressed this issue and

                                         27
concluded that the governmental-proprietary function dichotomy applies to

contracts and that Chapter 271 of the Local Government Code does not statutorily

abrogate that distinction. See City of Georgetown v. Lower Colorado River Auth.,

413 S.W.3d 803, 812-14 (Tex. App.—Austin 2013), reh'g overruled (Nov. 13,

2013), review dismissed (May 30, 2014).         Since the dichotomy applies, the

question is whether the Development Agreement contemplates governmental or

proprietary functions.

      This Court explained the differences between governmental and proprietary

functions -   “a [city performs a] governmental function when it acts ‘as the agent

of the State in furtherance of general law for the interest of the public at large,’”

whereas a proprietary function is “‘performed by a city, in its discretion, primarily

for the benefit of those within the corporate limits of the municipality.’” Id.

(internal citations omitted).     The Court also recognized the Legislature’s

constitutional authority to classify governmental and proprietary functions, noting

that the Texas Tort Claims Act provides a non-exclusive list of functions so

defined. Id. at 809.

      More recently, this Court also applied the governmental-proprietary

distinction to a contract and had to determine whether the activities contemplated

by the contract were governmental or proprietary.        Carowest at 519-20.       In

concluding that they were governmental, this Court took note of various
                                         28
governmental functions defined by the Tort Claims Act and concluded that the

contract fit within those activities. Id. Here, the Development Agreement not only

indicates that a significant portion of the applicable property is in the City’s

extraterritorial jurisdiction, but also that the purpose of the contract is to control the

development standards of the property, including “the uniform review and

approval of plats and development permits for the Project,” and that the authority

for entering into the agreement exists under Chapters 212 and 245 of the Local

Government Code (platting and vested rights, respectively). CR:34-35.

      Among the governmental functions defined by the Tort Claims Act, the

Legislature has defined zoning, planning, and plat approval as a governmental

function.   TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (a) (29) (West).

Because the Legislature has deemed these activities governmental functions, and

because the Development Agreement was entered into for the purpose of

controlling development standards, including platting and permit review, it clearly

contemplates governmental functions only the City could perform. CR:34-35.

Moreover, because a significant portion of the property was in the City’s

extraterritorial jurisdiction, the Development Agreement could not be primarily for

the benefit of those within the corporate limits of the City. See City of Georgetown

v. Lower Colorado River Auth. at 812-14. Based on the foregoing, Premas failed

to invoke the trial court’s jurisdiction and the trial court committed reversible error
                                           29
when it denied the City’s plea to the jurisdiction on this ground. CR:329. The

City respectfully requests that the Court reverse the trial court and render judgment

on behalf of the City on this ground, dismissing this claim against the City.

      Issue Five – Appellee has not asserted a valid waiver of governmental
      immunity based on the Uniform Declaratory Judgments Act because it
      is incidental to and redundant of a breach of contract claim and a
      claim brought pursuant to Chapter 245 of the Local Government Code
      and it has; therefore, Appellee’s pleadings affirmatively negate the
      trial court’s jurisdiction over Appellants on this ground.

      When governmental immunity applies, governmental entities cannot be sued

without legislative consent, “and then only in the manner indicated by that

consent.” City of Georgetown v. Lower Colorado River Auth. at 808 (internal

citation omitted). Although a governmental entity necessarily waives immunity

from liability when it enters a contract, unless the governmental entity’s immunity

from suit has been waived for the breach of contract claim, the suit may not

proceed.    Id.   Premas asserts that the Uniform Declaratory Judgment Act

(“UDJA”) waives the City’s immunity for a declaration that the Development

Agreement is in effect. CR:20-21. The UDJA is also the statutory basis of

Premas’ claim for attorneys’ fees. CR:21. Premas’ reliance on the UDJA as a

waiver of the City’s immunity is misplaced.

      The Uniform Declaratory Judgment Act (“UDJA”) provides a limited waiver

of a governmental entity’s immunity from suit. TEX. CIV. PRAC. & REM.CODE

                                         30
ANN. § 37.006(b) (Vernon); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 6

(Tex.2009). This waiver is limited to declarations construing an ordinance or a

statute. Heinrich, 284 S.W.3d at 373 n. 6. The UDJA does not, however, waive a

city’s immunity from suit by permitting a party to recast a breach of contract claim

as a declaratory judgment. Home Town Urban Partners, Ltd., 340 S.W.3d at 911

(“A party may not seek a declaratory judgment ‘only in an attempt to have the trial

court decide its breach-of-contract claim.’”) (internal citation omitted). Premas

seeks the following declarations (among others): that the Development Agreement

is valid and enforceable; that Premas has performed its obligations under the

Agreement and is not in breach; that the City is in breach of the Agreement; and an

order compelling the City to specifically perform its obligations under the

Development Agreement. CR:20-21.

      Compare that to Premas’ breach of contract allegations where Premas

alleges: that the Development Agreement requires the City to accept development

applications; that Premas is not in breach of the Development Agreement; that the

City is in breach of the Agreement; and temporary and permanent injunctive relief

in the form of an order for the City to specifically perform its obligations under the

Development Agreement. CR:19-20.

      There is “but one route to the courthouse” for a breach of contract claim

against a governmental entity in a breach of contract claim (IT-Davy at 860), and
                                         31
that route is a clear and unambiguous waiver of immunity, “and then only in the

manner indicated by that consent.” City of Georgetown v. Lower Colorado River

Auth. at 808 (internal citation omitted). In its previous issues, Appellants have

shown that Premas has failed to assert a valid waiver of immunity for Premas’

berach of contract claim. Likewise, the UDJA also fails to waive the City’s

immunity under the facts pled in Premas’ original petition, and Premas cannot

recast its breach of contract claim as a declaratory judgment. See id. Because

Premas’ UDJA claim is asking for a declaration of rights not under a municipal

ordinance, but rather a contract, Premas failed to invoke the trial court’s

jurisdiction under the UDJA. See Multi-County Water Supply Corp. v. City of

Hamilton, 321 S.W.3d 905, 908 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied) (pleadings contain no request to construe a statute or ordinance; therefore,

jurisdiction under UDJA lacking).

      Premas’ UDJA claim is also incidental to and redundant of its claim against

Cagle and Yantis in their official capacities brought under Chapter 245 of the

Local Government Code (CR:29) for injunctive relief, mandamus and/or a

declaration related to a “permit.” TEX. LOC. GOV'T CODE ANN. § 245.006 (a)

(West) (“This chapter may be enforced only through mandamus or declaratory or

injunctive relief.”). This Court has on multiple occasions concluded that where a

claim under the UDJA is redundant or duplicative of another claim that will
                                        32
“resolve the exact issues at hand,” jurisdiction under the UDJA will not lie. See,

e.g., Texas Mun. Power Agency v. Pub. Util. Com'n, 260 S.W.3d 647, 650 (Tex.

App.—Austin 2008, no pet.); Texas State Bd. of Plumbing Examiners v. Associated

Plumbing-Heating-Cooling Contractors of Texas, Inc., 31 S.W.3d 750, 753 (Tex.

App.—Austin 2000, pet. abated) (when specific statutory scheme addresses

controversy, UDJA does not apply because such relief would be redundant). In an

unreported case, the San Antonio Court of Appeals, citing this Court’s decision in

Texas State Bd. of Plumbing Examiners v. Associated Plumbing-Heating-Cooling

Contractors of Texas, Inc., applied this principle to a Chapter 245 claim. See City

of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014 WL

631484, at *1 (Tex. App.—San Antonio Feb. 19, 2014), review denied (May 1,

2015) (unreported case). Based on the foregoing, Premas failed to invoke the trial

court’s jurisdiction and the trial court committed reversible error when it denied

the City’s plea to the jurisdiction on this ground. CR:329. The City respectfully

requests that the Court reverse the trial court and render judgment on behalf of the

City on this ground, dismissing this claim against the City.

      Issue Six – Appellee has asserted a claim for declaratory relief5 and a
      writ of mandamus against Appellants the City, and Cagle and Yantis
5
      This is distinct from Premas’ claim under the UDJA, which cannot proceed as discussed
      in Appellants’ Issue Five. Premas has also asserted a waiver of immunity under Chapter
      245 of the Local Government Code. CR:29. Construing Premas’ pleadings (very)
      liberally, because § 245.006 provides that the only relief available under this waiver is for
      injunctive relief, mandamus and a declaratory judgment, for purposes of this appeal, out
                                              33
      in their individual capacities, but such relief is only available against
      officials in their official capacities for purely ministerial acts;
      therefore, Appellee’s pleading affirmatively negates the trial court’s
      jurisdiction over Appellants the City, and Cagle and Yantis in their
      individual capacities, and all Appellants to the extent it asks them to
      perform non-ministerial acts.

       Premas has sued a governmental entity, and governmental officials in both

their official and individual capacities, and seeks declaratory relief against the City

and a writ of mandamus against all Appellants. CR:21-23. That is, Premas has

asserted that government officials have failed to perform what it contends is a

purely ministerial duty – review (and approval) of land-use applications that

Premas contends enjoy Local Government Code Chapter 245 vesting protections.

CR:30-31. At the same time that the trial court denied Appellants’ plea to the

jurisdiction (CR:329), the trial court also issued an order granting a writ of

mandamus, compelling Cagle and Yantis in their official capacities to accept and

review (but not approve) applications tendered by Premas on or about December

15, 2014. CR:330-31.

      Appellants do not challenge the order granting a writ of mandamus as it

applies to Cagle and Yantis in their official capacities in this appeal because it did


      of an abundance of caution, Appellants will assume, without conceding, that Premas has
      asserted a claim for declaratory relief against the City under Chapter 245 because its
      prayer does not limit the request for a declaration to one issued pursuant to the UDJA
      (CR:30). TEX. LOC. GOV’T CODE ANN. § 245.006 (West). Therefore, Appellants will
      address the jurisdictional defect this issue raises if Premas’ pleading is so construed.
      CR:29-30.
                                                 34
not order them to engage in a non-ministerial act.6 CR:330-31. Premas’ pleadings,

however, go beyond that and still ask the trial court to order them to approve

applications submitted pursuant to the Development Agreement. CR:23. For the

purposes of this appeal, Appellants, the City and Cagle and Yantis in their

individual capacities, challenge the trial court’s denial of their plea to the

jurisdiction on the ground that it did not have jurisdiction over the City or Cagle

and Yantis in their individual capacities for Premas’ request a declaratory

judgment or a writ of mandamus, and for the approval of non-ministerial acts.

CR:21-23.

      In Heinrich, the Texas Supreme Court clarified that in suits for a declaratory

judgment that a statute is not being followed (e.g. Chapter 245 protections),

governmental entities themselves, as opposed to officers in their official capacities,

remain immune from suit. Heinrich at 372. A suit against a government official in

his official capacity imposes liability on the governmental entity, but cannot be

brought against the entity itself. Id. Therefore, to the extent that Premas’ request

for declaratory relief is asserted under Chapter 245 of the Local Government Code

(CR:30), the City is not a proper party and the trial court committed reversible

error by denying its plea to the jurisdiction on this ground. Id. Likewise, to the
6
      Because this is an interlocutory appeal under Civil Practice & Remedies Code § 51.014
      (a) (8), all proceedings, including the trial court’s order granting the writ of mandamus
      (CR:330-31), are stayed in the trial court pending resolution of this appeal. TEX. CIV.
      PRAC. & REM. CODE ANN. §§ 51.014 (b), (c) (West).
                                                 35
extent that Premas’ request for declaratory relief is asserted under Chapter 245

against Cagle and Yantis in their individual capacities, they are not proper parties

either and the trial court committed reversible error by denying their plea to the

jurisdiction on this ground. Id. at 373 n.7, citing Alden v. Maine, 527 U.S. 706,

757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (Judgments against state officials in

their individual capacities will not bind the state).

        Premas’ pleadings suffer from the same defects as it relates to its claim for a

writ of mandamus against these Appellants. CR:21-23. While Local Government

Code Chapter 245 clearly and unambiguously waives governmental immunity for

claims that a permit enjoys vested rights, Chapter 245 does not purport to change

the underlying requirements necessary to obtain mandamus relief. Mandamus may

lie to compel a government official to perform a clearly mandatory, ministerial

statutory duty without implicating governmental immunity. City of Round Rock v.

Whiteaker, 241 S.W.3d 609, 628 (Tex. App.—Austin 2007, pet. denied) (party

may bring suit to remedy statutory violation or prevent its occurrence; such suit is

not against State requiring legislative or statutory authorization); Janek v.

Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.—Austin 2014,

no pet.) (mandamus will issue to compel a public official to perform ministerial

act).   Thus, Premas’ claim for mandamus against “all Defendants” is clearly

defective and the trial court was without jurisdiction over the City or Cagle and
                                           36
Yantis in their individual capacities and should have granted their plea to the

jurisdiction on this ground. Janek at 101, citing Heinrich at 372.

      Finally, to the extent that Premas’ pleadings ask the trial court to issue a writ

of mandamus to Cagle and Yantis in their official capacities to approve future

permit applications, such a request clearly goes beyond the permissible scope of

mandamus unless such approval is a purely ministerial act. Anderson v. City of

Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (writ of mandamus will not issue

to compel public official to perform act involving exercise of discretion).      First,

assuming Premas’ allegation that it has not breached the Development Agreement

is true, as the Court must, Premas’ pleadings fail to allege facts showing that the

approval of a particular application involves the exercise of no discretion. Id.

Second, the Development Agreement provides that the project “may be approved

and constructed in one or more phases.” CR:37. It also provides that in the event

of Premas’ failure to obtain staff approval on an application, Premas can appeal

that decision to the City Council and that such disputes will be resolved by

amendments to the Development Agreement. CR:43. It also contemplates that the

Agreement shall serve as “guidance” for the review and approval of additional

approvals in the future. CR:43. Nothing in the Development Agreement permits

Premas to submit applications that do not comply with the applicable ordinances

and rules in effect at the time the Development Agreement was executed. CR:34-
                                          37
52. Therefore, Premas’ pleading fails to invoke the trial court’s jurisdiction to the

extent it seeks a writ of mandamus for the approval of undefined “applications for

preliminary plats, final plats, and site development permits,” (CR:22) in the

absence of specific allegations that approval of a particular application involves no

discretion. Id.

      For these reasons, Premas failed to invoke the trial court’s jurisdiction and

the trial court committed reversible error when it denied Appellants’ plea to the

jurisdiction on these grounds. CR:329. Appellants respectfully request that the

Court reverse the trial court and render judgment on behalf of Appellants on these

grounds, dismissing these claims against the Appellants.

      Issue Seven – Appellee has not asserted a valid waiver of immunity for an
      award of attorneys’ fees against Appellants because their claims are not
      cognizable under the relevant statute, or the statute itself does not provide
      for an award of attorneys’ fees; therefore, Appellants’ pleading affirmatively
      negates the trial court’s jurisdiction to award attorneys’ fees to Appellees.

      Premas’ claim for attorney’s fees under the UDJA should have been

dismissed by the trial court for lack of jurisdiction. While Chapter 245 of the

Local Government Code recognizes a developer’s vested right to develop under the

land use regulations then in effect at the time the first permit application was filed,

it provides that the chapter may only be enforced through “mandamus or

declaratory or injunctive relief.”     TEX. LOC. GOV’T CODE ANN. § 245.006

(Vernon). It does not provide for an award of attorneys’ fees and because waivers
                                          38
of immunity are strictly construed, such a waiver cannot be read into Chapter 245.

See, City of Houston v. Jackson, 192 S.W.3d 764, 773 (Tex. 2006). Premas’ claim,

if any, arises solely under Chapter 245, which waives governmental immunity

under a very narrow set of circumstances and expressly sets forth the available

relief, which does not include a waiver of immunity for attorney’s fees.

      The San Antonio Court of Appeals, relying on opinions of the Texas

Supreme Court and the Austin Court of Appeals, recently concluded that when the

recovery of attorneys’ fees against a governmental entity is incidental to and

redundant of the relief provided by Chapter 245, a claim for attorneys’ fees under

the UDJA should be dismissed when it is used solely as a vehicle to recover fees.

See City of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-00623-CV, 2014

WL 631484, at *6 (Tex. App.—San Antonio Feb. 19, 2014, pet. filed) (unreported

case), citing John G. and Marie Stella Kenedy Mem. Found. v. Dewhurst, 90

S.W.3d 268, 289 (Tex.2002), and Associated Plumbing–Heating–Cooling

Contractors of Tex., Inc., 31 S.W.3d at 753. This Court has reiterated that premise

more recently. Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 445 (Tex.

App.—Austin 2011, no pet.). Moreover, because the UDJA only waives a city’s

immunity for the declaration of rights related to statutes and ordinances, Premas’

claim is for a declaration of rights as to a contract. CR:6-33. Therefore, the City’s

immunity for a claim for attorneys’ fees is not waived by the UDJA under the facts
                                         39
pled by Premas. See City of San Antonio v. Rogers Shavano Ranch, Ltd., 04-13-

00623-CV, 2014 WL 631484, at *6.

      Next, out of an abundance of caution, although Premas does not assert a

claim for attorneys’ fees under Chapter 271 in its pleadings (CR:6-33), it does

assert Chapter 271 as an applicable waiver of the City’s immunity for the

Development Agreement. Appellants adopt and incorporate the argument and

authority discussed in Issue Two as if copied verbatim herein, which showed why

Chapter 271 is not a valid waiver of immunity under the facts as pled by Premas.

If Premas’ pleadings, liberally construed, can be read to assert a claim for

attorneys’ fees under Chapter 271, the pleadings fail to vest the trial court with

jurisdiction because Premas has not asserted a viable claim for relief for which

immunity has been waived. Because Chapter 271 is not a valid waiver of the

City’s immunity, Premas cannot rely on it as a waiver of the City’s immunity on

attorneys’ fees.

                                     PRAYER

      Based on the foregoing, Appellants pray that the Court reverse the trial

court’s order denying Appellants plea to the jurisdiction and render judgment on

behalf of Appellants on the grounds set forth in this appeal.




                                         40
                                             Respectfully submitted,

                                             Knight & Partners
                                             223 W. Anderson, Ln., Suite A-105
                                             Austin, Texas 78752
                                             512-323-5778 Telephone
                                             512-323-5773 Facsimile

                                             /s/ Bradford E. Bullock
                                             Bradford E. Bullock
                                             State Bar No. 00793423
                                             bradford@cityattorneytexas.com



                     CERTIFICATE OF COMPLIANCE

       In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the
Appellant’s Brief contains 9,209 words, which does not include the caption,
identity of parties and counsel, statement regarding oral argument, table contents,
index of authorities, statement of issues presented, signature, proof of service,
certificate of compliance, and appendix.

                                                         /s/ Bradford E. Bullock
                                                         Bradford E. Bullock




                                        41
                        CERTIFICATE OF SERVICE

      I certify that a copy of Appellant’s Brief was served on Appellees through
counsel of record in accordance with the Texas Rules of Appellate Procedure as
indicated below on the 20th day of July 2015, addressed to:

Howry, Breen & Herman LLP                              via Email
1900 Pear Street
Austin, Texas 78705-5408
(512) 474-7300 Office
(512) 474-8557 Facsimile
Sean E. Breen
State Bar No. 0078715
sbreen@howrybreen.com
Randy R. Howry
State Bar No. 10121690
rhowry@howrybreen.com
James Hatchitt
State Bar No. 24072478
jhatchitt@howrybreen.com


                                                       /s/ Bradford E. Bullock
                                                       Bradford E. Bullock




                                       42
                         No. 03-15-00377-CV
                 IN THE THIRD COURT OF APPEALS
                         at AUSTIN, TEXAS
__________________________________________________________________

 CITY OF LEANDER, TEXAS; KENT CAGLE, INDIVIDUALLY AND IN
  HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY OF
   LEANDER; AND THOMAS YANTIS, INDIVIDUALLY AND IN HIS
    OFFICIAL CAPACITY AS ASSISTANT CITY MANAGER AND
       PLANNING DIRECTOR FOR THE CITY OF LEANDER

                                Appellants

                                    v.

                  PREMAS GLOBAL LEANDER I, LLC

                                 Appellee

__________________________________________________________________

    Cause No. 15-0088-C277; Appeal from the 277th Judicial District Court,
                        Williamson County, Texas
__________________________________________________________________

                     APPELLANTS’ APPENDIX
__________________________________________________________________




                                    43
                  APPENDIX TABLE OF CONTENTS

ORDER DENYING DEFENDANTS’ PLEA TO THE
JURISDICTION…………………………………………........... ........................... 45




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