                                                                                   ACCEPTED
                                                                               01-15-00436-CV
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                          7/15/2015 3:06:51 PM
                                                                         CHRISTOPHER PRINE
                                                                                        CLERK

                      NO. 01-15-00436-CV
            ______________________________________
                                                       FILED IN
                  IN THE COURT OF APPEALS       1st COURT OF APPEALS
                   FIRST JUDICIAL DISTRICT          HOUSTON, TEXAS
                       HOUSTON, TEXAS           7/15/2015 3:06:51 PM
                                                CHRISTOPHER A. PRINE
            ______________________________________      Clerk

        THE CITY OF FRIENDSWOOD AND KEVIN HOLLAND,
                               Appellants,
                            v.

PAUL AND CAROLYN HORN, MIKE AND LUCY STACY, PETE AND JUDY
                GARCIA AND JANICE FRANKIE
                                  Appellees.
            ______________________________________
           On Appeal from the 212th Judicial District Court
                    of Galveston County, Texas
                   Trial Court No. 14-CV-0490
           ______________________________________
          APPELLANTS THE CITYOF FRIENDSWOOD
               AND KEVIN HOLLAND’S BRIEF
           ______________________________________

                               CHAMBERLAIN, HRDLICKA, WHITE,
                                       WILLIAMS & AUGHTRY
                                    William S. Helfand
                                    State Bar No. 09388250
                                    Attorney-in-Charge
                                    Charles T. Jeremiah
                                    State Bar No. 00784338
                                    1200 Smith Street, Suite 1400
                                    Houston, Texas 77002
                                    Telephone: (713) 654-9630
                                    Telecopier: (713) 658-2553
                               ATTORNEYS FOR APPELLANTS,
                               CITY OF FRIENDSWOOD AND
                               KEVIN HOLLAND

ORAL ARGUMENT REQUESTED
                 CERTIFICATE OF INTERESTED PERSONS
      The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made so the
judges of this court may evaluate possible disqualification or recusal.

A.    Parties:

      Appellants:                     City of Friendswood
                                      Kevin Holland

      Appellees:                      Paul and Carolyn Horn
                                      Mike and Lucy Stacy
                                      Pete and Judy Garcia
                                      Janice Frankie

B.    Attorneys:

      Appellant:                      William S. Helfand
                                      Charles T. Jeremiah
                                      Chamberlain, Hrdlicka, White,
                                        Williams & Aughtry
                                      1200 Smith Street, Suite 1400
                                      Houston, Texas 77002

      Appellees:                      Aaron Pool
                                      James T. Sunosky
                                      Donato Minx Brown & Pool, PC
                                      3200 Southwest Freeway, Suite 2300
                                      Houston, Texas 77027




                                        ii
              STATEMENT REGARDING ORAL ARGUMENT
      Appellants City of Friendswood and Kevin Holland believe that oral

argument would be beneficial to the Court’s resolution of this appeal.




                                         iii
                                         TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ....................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ............................................. iii

TABLE OF CONTENTS ..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................vi

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED............................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 7

STANDARD OF REVIEW ....................................................................................... 8

ARGUMENTS AND AUTHORITIES ..................................................................... 9

I.      Appellees bear the burder to establish a waiver of immunity. ........................ 9

II.     The City is immune from Appellees’ common law tort claims .................... 11

        A.       Limited waiver of immunity under the Texas Tort Claims Act.......... 11

        B.       Appellees’ misrepresentation claim is barred by immunity................ 13

        C.       Appellees’ nuisance claim is barred .................................................... 15

III.    Appellees fail to state and cannot state a viable claim of inverse
        condemnation. ................................................................................................ 16

IV.     Appellees fail to state and cannot state a viable claim of breach of
        contract...........................................................................................................19

V.      Appellees’ request for declaratory judgment requesting an
        interpretation of the deed restrictions did not fall within a waiver of
        immunity from suit and the Court lacks jurisdiction ..................................... 20

VI.     Appellees assertion of “ultra vires” does not present a viable claim
        which overcomes governmental immunity ................................................... 23


                                                            iv
VII. Appellees have no viable claim and have not established jurisdiction
     under the Texas Open Meetings Act ............................................................. 26

VIII. Appellees’ claims against Mayor Holland are barred by derivative and
      official immunity ........................................................................................... 27

IX.      Appellees Claim for Injunctive Relief is Barred ........................................... 29

X.       District Court erred in failing to dismiss all of Appellees’ claims or,
         alternatively, individual claims...................................................................... 30

CONCLUSION ........................................................................................................30

PRAYER ..................................................................................................................30

CERTIFICATE OF SERVICE ................................................................................ 32

CERTIFICATE OF COMPLIANCE ....................................................................... 33

APPENDIX ..............................................................................................................34

         Order Denying Defendant’s Plea to the Jurisdiction and Motion to
         Dismiss................................................................................................... TAB A

         Sec. 404. Hazard Mitigation (42 U.S.C. 5170c).................................... TAB B




                                                            v
                                         TABLE OF AUTHORITIES
CASES

Alewine v. City of Houston,
   309 S.W.3d 771 (Tex.App. – Houston [14th Dist.] 2010, pet. denied) ...................................18

Ballantyne v. Champion Builders, Inc.
   144 S.W.3d 417 (Tex. 2004)....................................................................................................28

Barnes v. Mathis,
   353 S.W.3d 760 (Tex. 2011)....................................................................................................15

Benefit Realty Corp. v. City of Carrollton,
   141 S.W.3d 346 (Tex.App. – Dallas 2004, pet. denied) ..........................................................12

Berry v. Tex. Dem. Party,
   449 S.W.3d 633 (Tex.App. – Austin 2014, no pet. hist.) ........................................................25

Bird v. W.C.W.,
   868 S.W.2d 767 (Tex. 1994)....................................................................................................13

Butnaru v. Ford Motor Company,
   84 S.W.3d 198 (Tex. 2002)......................................................................................................29

City of Corinth v. Nurock Development,
    293 S.W.3d 360 (Tex.App. – Fort Worth 2009, no pet.) .........................................................22

City of Dallas v. Jennings,
    142 S.W.3d 310 (Tex. 2004)....................................................................................................16

City of Dallas v. Turley,
    316 S.W.3d 762 (Tex.App. – Dallas 2010, pet. denied) ..........................................................23

City of Dallas v. VSC, LLC,
    347 S.W.3d 231 (Tex. 2011)....................................................................................................17

City of El Paso v. Heinrich,
    284 S.W.3d 366 (Tex. 2009)........................................................................................24, 27, 29

City of Fort Worth v. Pasturek Industries,
    Inc., 48 S.W.3d 366, 372 (Tex.App. – Fort Worth 2001, no pet.) ...........................................14

City of Galveston v. State,
    217 S.W.3d 466 (Tex. 2007)................................................................................................9, 10

City of Garland v. Rivera,
    146 S.W.3d 334 (Tex. App.—Dallas 2004, no pet.) ................................................................12


                                                                vi
City of Houston v. Boyle,
    148 S.W.3d 171 (Tex. App.—Houston [1st Dist.] 2004, no pet.) .....................................11, 14

City of Houston v. Song,
    2013 WL 269036 (Tex.App. – Houston [14th Dist.] 2013).....................................................17

City of Houston v. Swinerton Builders, Inc.,
    233 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2007, no pet) ................................................10

City of Lancaster v. Chambers,
    883 S.W.2d 650 (Tex. 1994)....................................................................................................28

City of North Richland Hills v. Home Town Urban Partners, Ltd.,
    340 S.W.3d 900 (Tex.App. – Fort Worth 2011, no pet.) .........................................................22

City of Pasadena v. Thomas,
    263 S.W.3d 43 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...............................................9

City of Plano v. Homoky,
    294 S.W.3d 809 (Tex.App. – Dallas 2009, no pet.).................................................................12

City of San Antonio v. Fourth Court of Appeals,
    820 S.W.2d 762 (1991) ............................................................................................................26

Cowling v. Colligan,
   312 S.W.2d 943 (Tex. 1958)......................................................................................................7

Dallas Area Rapid Transit v. Whitley,
   104 S.W.3d 540 (Tex. 2003)......................................................................................................9

De Los Santos v. City of Robstown,
   2012 WL 6706780 (Tex.App. – Corpus Christi 2012, no pet.) .........................................21, 24

Devonshire Place Neighborhood Association v. Devonshire Place, Ltd.,
   1999 WL 82617 (Tex.App. – Houston [1st Dist.] 1999, no pet.) (unpublished) .....................22

Ethio Express Shuttle Service v. City of Houston,
   164 S.W.3d 751 (Tex.App. – Houston [14th Dist.] 2005, no pet.) ..........................................14

Federal Sign v. Texas Southern Univ.,
   951 S.W. 2d 401 (Tex. 1997).....................................................................................................9

Felts v. Harris County,
    915 S.w.2d 482 (Tex. 1996) ....................................................................................................18

Green Int'l Inc. v. State,
   877 S.W.2d 428 (Tex. App.—Austin 1994, writ dism'd) ........................................................10




                                                                 vii
Harris County, Tex. v. Cabazos,
   177 S.W.3d 105 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ...........................................15

Harris County v. Sykes,
   136 S.W.3d 635 (Tex. 2004)......................................................................................................9

Hearts Bluff Game Ranch, Inc. v. State,
   381 S.W.3d 468 (Tex. 2012)....................................................................................................17

Hoff v. Nueces County,
   153 S.W.3d 45 (Tex. 2004)........................................................................................................8

Holloway v. Dekkers,
   380 S.W.3d 315 (Tex.App. – Dallas 2012, no pet.).................................................................19

Hopkins v. Strickland,
   2013 WL 1183302 (Tex.App. – Houston [1st Dist.] 2013) (unpublished) ..............................28

K.C. Cunningham v. Tarski,
   365 S.W.3d 179 (Tex.App. – Dallas 2012, pet. denied) ..........................................................13

Laub v. Pesikoff,
   979 S.W.2d 686 (Tex.App. – Houston [1st Dist.] 1998, pet. denied)......................................13

Martinez v. Hardy,
  864 S.W.2d 767,772 (Tex. App. 1993) ....................................................................................14

Marzo Club, LLC v. Columbia Lakes Homeowner’s Ass’n,
  325 S.W.3d 791 (Tex.App. – Houston [14th Dist.] 2010, no pet.) ..........................................23

Mission Consol. Indep. Sch. Dist. v. Garcia,
   253 S.W.3d 653 (Tex. 2008)..............................................................................................11, 27

Moers v. Harris County Appraisal District,
  ___ S.W.3d ___ (Tex. App. – Houston [1st Dist.] 2015, no pet. hist.)....................................25

Mustang Special Utility District v. Providence Village,
  392 S.W.3d 311 (Tex.App. – Fort Worth 2012, no pet.) .......................................21, 22, 23, 26

Patel v. Texas Dept. of Licensing and Regulation,
   ___ S.W.3d ___ at *4 (Tex. 2015) .....................................................................................24, 25

Pilarcik v. Emmons,
    966 S.W.2d 474 (Tex. 1998)....................................................................................................23

Scott v. Prairie View A & M Univ.,
   7 S.W.3d 717 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) .........................................12




                                                               viii
Sharma v. Vinmar Int’l Ltd.,
   231 S.W.3d 405 (Tex.App. – [14th Dist.] 2007, no pet.) ........................................................29

State v. Momin Properties, Inc.,
    409 S.W.3d 1 (Tex.App. – Houston [1st Dist.] 2013 pet. denied) ...........................................18

State v. Schmidt,
    867 S.W.2d 769 (Tex. 1993)....................................................................................................18

Tex. Dep't of Criminal Justice v. Miller,
   51 S.W.3d 583, 587 (Tex. 2001)..............................................................................................12

Tex. Dep’t. of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004)......................................................................................8, 9, 12, 14

Tex. Dep't of Parks & Wildlife v. Sawyer Trust,
   354 S.W.3d 384 (Tex. 2011)....................................................................................................21

Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC,
   397 S.W.3d 162 (Tex. 2013)....................................................................................................17

Tex. Dep't of Transp. v. City of Sunset Valley,
   8 S.W. 3d 727 (Tex. App.—Austin 1999, no pet.) ..................................................................10

Tex. Natural Res. Conservation Comm’n v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002)................................................................................................21, 22

Texas Bay Cherry Hill v. City of Fort Worth,
   257 S.W.3d 379 (Tex.App. – Fort Worth 2008, no pet.) .........................................................12

Texas DOT v. Jones,
   8 S.W.3d 636 (Tex. 1999) (per curiam) ....................................................................................8

Tooke v. City of Mexia,
   197 S.W.3d 325 (Tex. 2006)....................................................................................................20

Town of Flower Mound v. Rembert Enterprises, Inc.,
   369 S.W.3d 465 (Tex. App. – Fort Worth 2012, pet. denied) ...........................................24, 25

Uptegraph v. Sandalwood Civic Club,
   312 S.W.3d 918 (Tex.App. – Houston [1st Dist.] 2010, no pet.) ............................................23

Wichita Falls State Hosp. v. Taylor,
   106 S.W.3d 692 (Tex. 2003)......................................................................................................9




                                                                ix
STATUTES

42 U.S.C. 5170c(b)(2)(B)(i).............................................................................................................2

TEX. CIV. PRAC. & REM. CODE § 37.003 ........................................................................................21

TEX. CIV. PRAC. & REM. CODE § 51.014 ..........................................................................................8

TEX. CIV. PRAC. & REM. CODE § 101.021 ................................................................................11, 14

TEX. CIV. PRAC. & REM. CODE § 101.057 ......................................................................................15

TEXAS LOCAL GOVERNMENT CODE § 271.152 .........................................................................19, 20

TEXAS LOCAL GOVERNMENT CODE § 551.142 ...............................................................................27




                                                                   x
                             STATEMENT OF THE CASE
Nature of the case:

Trial court:                     The Honorable Patricia Grady, 212th Judicial
                                 District Court of Galveston County, Texas.

Trial court’s disposition:       The trial court conducted a hearing on March 4,
                                 2015 on the City and Holland’s plea to the
                                 jurisdiction, motion to dismiss and motion to strike
                                 discovery. On April 20, 2015, the Court entered
                                 an order denying the City and Holland’s plea and
                                 motion.

                               ISSUES PRESENTED
1.    The trial court erred in denying the City’s plea to the jurisdiction and motion
      for summary judgment because the Appellees’ claims against the City are
      barred by governmental immunity.

2.    The trial court erred in denying the Kevin Holland’s plea to the jurisdiction
      and motion to dismiss because the Appellees’ claims are barred by
      derivative immunity and official immunity.




                                          1
                              STATEMENT OF FACTS
      The critical and dispositive facts presented by this appeal are undisputed.

This case arises out of the City’s acquisition of flood-prone property in the

Imperial Estates Subdivision in the City of Friendswood. Specifically, after severe

flooding from Tropical Storm Allison in June 2001, the City obtained title to

virtually all of the devastated property in the subdivision, specifically 38 of the 42

lots, more than ninety percent (90%) of the lots 1 through a Hazard Mitigation

Program administered by the Federal Emergency Management Administration

(“FEMA”).     All homeowners of the subdivision were advised of the FEMA

program and the four Appellees were the only individuals who chose not to

participate. In fact, the only remaining structures on the entirety of the subdivision

acreage for the past fourteen years are Appellees’ now re-built houses. 2

      The federal grant of the land to the City and Drainage District, like all such

grants, required the City to maintain the property as open or “green” space as

recreational space, park property or for drainage and water retention. 3 FEMA’s

purpose in requiring such use in this program is to ensure that the flood prone


1
      In addition, the Galveston County Drainage District acquired one lot.

2
      The Appellees’ residences are surrounded by unimproved property. The property the
      City acquired is adjacent to the pre-existing Friendswood city park known as 1776 Park.

3
      See, Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
      5170c(b)(2)(B)(i).

                                              2
property would not be the subject of future similar catastrophic water damage and

loss.

        Roughly ten years after the City acquired the lots, on November 19, 2012,

the Appellees filed suit claiming that deed restrictions, enacted over fifty years

earlier, governed the City’s use of the lots it acquired and, more specifically that

the City was required to use its lots only for “residential purposes.” 4 Appellees

theorized they had four votes and the City one vote, and thus Appellees had

complete control over the City’s use of the property irrespective of the supremacy

of the federal acquisition and conditional grant requirement. The City filed a plea

to the jurisdiction. On the eve of the hearing on the plea, on May 9, 2013,

Appellees nonsuited their original suit.

        To be sure, the City disputed the Appellees’ contentions raised in the

original suit. City’s use of the property was and is not inconsistent with or in

violation of any deed restrictions. First, the FEMA mandated use as open or

“green” space, or park property is quite consistent with residential purposes as

defined in the deed restrictions [Supp. C.R. 13-14]. But, regardless of whether

consistent, Appellees’ theory of any potential liability of the City is baseless. As


4
        To be sure, Appellees have never specifically sought to have the City construct new
        residences on the lots, or to sell the lots for new residences, or in any other way use the
        lots for residential purposes. The City would be prohibited from doing so under the
        express terms of the federal grant.



                                                3
an undisputed owner of thirty-eight lots, the City has one vote per lot and the deed

restrictions, if they did apply, guarantee the City at least thirty-eight votes

compared to the Appellees’ four. Indeed, this is clear from the deed restrictions to

which Appellees point: “each lot shall only have one vote.” [C.R. 165 (Plaintiff’s

Second Amended Original Petition ¶ 15)] (emphasis added); Supp. C.R. 17].

      Accordingly, the City disputed and disputes any contention by Appellees

that its use was governed by, or violated, deed restrictions. However, to leave no

doubt, after posting a public agenda and conducting an open meeting in full

compliance with Texas law, the City cast its thirty-eight votes to approve a

declaration of amended deed restrictions for its lots and filed that decision in the

Galveston County Property Records on or about July 8, 2013. [C.R. 128; 138-142;

Supp. C.R. 27-30]. Notably, the recorded document expressly states that it only

applies to the thirty-eight City acquired lots, [Supp. C.R. 27-30], and it tracks the

federal requirements of open space [C.R. 28, ¶ 2-2.2].        The Declaration was

executed by Mayor Kevin Holland in due course as authorized agent for the City.

[Id; C.R. 143].

      Approximately one year later after the Declaration was filed, on May 1,

2014, Appellees filed this same lawsuit a second time; this time against the City

and Mayor Holland [C.R. 5-16]. Appellees initially made what were essentially

the same claims asserted in their first lawsuit: an action for declaratory judgment



                                         4
interpreting the deed restrictions. However, in the second suit they added a claim

of “misrepresentation” against both Mayor Holland and the City [Id]. Appellants

filed an answer, containing a motion to dismiss Appellant Holland in light of his

individual immunity from suit. [C.R. 17-20]. Appellants then filed a Plea to the

Jurisdiction, along with a renewed motion to dismiss Mayor Holland and motion to

stay discovery based on immunity [C.R. 54-67; 22-53]. The plea was set for

hearing and heard on October 16, 2014 [C.R. 70-71]. On the eve of the hearing,

Appellees filed their First Amended Petition urging new theories; conclusory,

factually unsupported allegations of violation of the Texas Open Meetings Act and

breach of contract, an allegation the Mayor had engaged in an ultra vires act, and

that the City had engaged in proprietary, not governmental functions [C.R. 100-

113].     Because these claims were just as insupportable under Texas law,

particularly in light of the City’s and the Mayor’s immunity from suit, Appellants

supplemented their plea with City records disproving any claim of an Open

Meetings Act violation as well as Appellees’ newly added claims. [C.R. 114-161].

        At the request of Appellants’ counsel, the Court reset the plea and motions

for a second hearing for November 20, 2014. Again, on the eve of the hearing,

Appellees amended in an effort to avoid the appropriate dismissal of their suit. In

their Second Amended Petition Appellees added to their montage of claims two

more new theories: nuisance and inverse condemnation [C.R. 162-179].           The



                                         5
Appellants supplemented their plea once again to address the new claims [C.R.

185-186]. The District Court heard the plea again but did not issue a ruling and,

before the judge who heard the plea ruled, a new presiding judge took the bench on

January 1, 2015. The Plea and motions were reset for a third hearing on March 4,

2015 [C.R. 187-188]. The Appellants supplemented their plea further to address

the Appellants’ immunity from the newest claims in greater detail [C.R. 189-192].

The District Court did not rule at the hearing but issued a ruling on April 20, 2015

denying the City’s plea and the Mayor’s Motion to Dismiss [C.R. 193]. 5

Appellants timely filed a notice of appeal [C.R. 199-200].

      Apparently recognizing the applicability of Appellants’ immunity from suit

and in a desperate, although not necessarily legitimate, effort to avoid dismissal

Appellees have, each time with the benefit of the Appellants’ motions to dismiss,

simply recast the same basic factual allegations into numerous different claims.

The thrust of Appellees’ contention is that their desires should dictate the City’s

use of its own property and supersedes the obligations imposed on the City by the

federal grant and the will of the City residents.

      Regardless how Appellees wish to describe, or re-describe, their claims, the

City is immune from their claims and thus the Court should have granted its plea to

the jurisdiction. Additionally, Mayor Holland is entitled to immunity and the


5
      The Court notified the parties of the Order on May 5, 2015 [C.R. 196-198].

                                             6
Court should have granted his plea to the jurisdiction and his motion to dismiss as

well. The District Court erred on both and this Court should reverse the decision

below and render judgment in favor of both the City and its Mayor.

                       SUMMARY OF THE ARGUMENT
      Even disregarding for a moment the Appellants’ immunity from suit, the

Appellees claims were, and are, devoid of legal merit, even if they were suing

private defendants. The fifty year old deed restrictions upon which Appellees rely

simply do not govern the City’s use or require the City to use the lots for

residential purposes, for numerous reasons.         Regardless of whether the deed

restrictions were ever enforced, to be sure the widespread destruction occasioned

by Tropical Storm Allison’s severe flooding of the subdivision and intervention by

FEMA in 2001 constituted an obvious change of conditions so substantial it

rendered the deed restrictions inapplicable and obsolete. 6 In addition, the deed

restrictions were effectively abandoned when more than ninety percent (90%) of

the lots were acquired by the City of Friendswood and maintained as green space

for more than a decade without objection. Irrespective, the City’s use of public

property is not subject to the control of private interests of Appellees.

      However, the simple fact is that, in not requiring the Appellees to prove a

waiver of the Appellants’ immunity from suit, the trial court erred in denying the


6
      Compare Cowling v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958).

                                           7
City’s Plea to the Jurisdiction and Mayor Holland’s Motion to Dismiss. As a

matter of law Appellees’ claims fail to overcome the City’s governmental

immunity. Appellees’ claims fail to establish the elements of any claim that

triggers a constitutional or statutory waiver of the City’s governmental immunity.

Moreover, Appellees’ claims against Mayor Holland are barred by both derivative

and official immunity. Accordingly, the trial court erred when it failed to dismiss

Appellee’s suit with prejudice for lack of jurisdiction.

                            STANDARD OF REVIEW
      This Court has jurisdiction to review an interlocutory order denying a plea to

the jurisdiction by a governmental unit, or request for dismissal based on immunity

by an officer of a political subdivision of the state. TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(5) and (8).

      The Court reviews the question of subject matter jurisdiction, a legal

question, de novo, Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004), and the

question of whether uncontroverted evidence of jurisdictional facts demonstrates

subject-matter jurisdiction is also a question of law. Tex. Dep’t. of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

      Governmental or individual “immunity from suit defeats a trial court’s

subject matter jurisdiction and thus is properly asserted in a plea to the

jurisdiction.” Texas DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam).



                                          8
The complainant has the burden to plead facts affirmatively showing the trial court

has subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife, 133 S.W.3d at 226.

A plea to the jurisdiction seeks dismissal of a case for lack of subject matter

jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

                     ARGUMENTS AND AUTHORITIES

I.    Appellees bear the burder to establish a waiver of immunity.
      Immunity from suit bars an action against a governmental entity unless the

State has expressly consented to the suit. See Federal Sign v. Texas Southern

Univ., 951 S.W. 2d 401, 405 (Tex. 1997). “It is settled in Texas that for the

Legislature to waive…immunity, a statute or resolution must contain a clear and

unambiguous expression of the Legislature's waiver of immunity.” Wichita Falls

State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). For suits brought against

governmental entities, the plaintiffs must affirmatively demonstrate that sovereign

immunity has been waived. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

540, 542 (Tex. 2003).      Accordingly, the City of Friendswood, like all other

governmental units in Texas, is entitled to a presumption that Plaintiffs’ claims are

barred by governmental immunity. See Dallas Area Rapid Transit v. Whitley, 104

S.W.3d 540, 542 (Tex. 2003); City of Pasadena v. Thomas, 263 S.W.3d 43, 45

(Tex. App.—Houston [1st Dist.] 2006, no pet.). The Texas Supreme Court has

characterized this as a “heavy presumption.” City of Galveston v. State, 217



                                         9
S.W.3d 466, 469 (Tex. 2007). Thus, in a plea to jurisdiction, it is not the

defendant's burden to present evidence to support waiver; it is the plaintiff's burden

to plead facts demonstrating waiver of immunity. Id.; See also Green Int'l Inc. v.

State, 877 S.W.2d 428, 437 (Tex. App.—Austin 1994, writ dism'd).

      Because a governmental unit is protected from suit by governmental
      immunity, pleadings in a suit against a governmental unit must
      affirmatively demonstrate, either by reference to a statute or express
      legislative permission that the Legislature consented to the suit.

      City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 10 (Tex. App.—

Houston [1st Dist.] 2007, no pet). It is beyond reasonable argument that immunity

is, as a matter of law, presumed unless it a plaintiff disproves it and a court that

denies a claim of immunity must expressly identify a specific legislative enactment

that clearly and unequivocally demonstrates a clear legislative intent to waive the

City’s immunity under the specific facts, and for the specific causes of action,

alleged. Id.

       Therefore, a court may not consider the merits of a plaintiff's substantive

claims, no matter how arguably compelling, until the plaintiff alleges facts

establishing waiver of immunity and, thus, that the court has subject-matter

jurisdiction to decide the controversy. Tex. Dep't of Transp. v. City of Sunset

Valley, 8 S.W. 3d 727, 730 (Tex. App.—Austin 1999, no pet.).




                                         10
II.   The City is immune from Appellees’ common law tort claims

      A.    Limited waiver of immunity under the Texas Tort Claims Act
      Appellees sued the City and Mayor Holland for two common law torts –

misrepresentation and nuisance.    The Texas Tort Claims Act (“TTCA”) “is the

only, albeit limited, avenue for common-law recovery against the government.”

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).

The TTCA does not create a cause of action against governmental units but only

establishes a limited waiver of governmental immunity, in narrowly defined

circumstances. City of Houston v. Boyle, 148 S.W.3d 171, 179 (Tex. App.—

Houston [1st Dist.] 2004, no pet.) (citing City of Tyler v. Lykes, 962 S.W.2d 489,

494 (Tex. 1997)). Put another way, unless immunity is waived by the TTCA, the

governmental unit remains immune from suit. Boyle, 148 S.W.3d at 179.

      Unless an express waiver applies, the TTCA bars claims based upon a City’s

governmental functions. There can be no question here but that Appellees’ claims

relate only to governmental functions. The TTCA expressly defines municipal

functions exercised in the interest of the general public, such as those involved

here including “parks,” recreational, flood control, and “zoning, planning and plat

approval” are governmental functions of the City covered by the TTCA. TEX. CIV.

PRAC. & REM. CODE §§ 101.0215(9), (11), (13), (19), (23), (29), (30) and (32).

Moreover, the “[a]cquisition of land for a public purpose is a governmental



                                        11
function,” Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346, 349

(Tex.App.—Dallas 2004, pet. denied), and redevelopment of the land, and use for

park or recreational purposes are likewise governmental functions. Cf., Texas Bay

Cherry Hill v. City of Fort Worth, 257 S.W.3d 379 (Tex.App.—Fort Worth 2008,

no pet.) and City of Plano v. Homoky, 294 S.W.3d 809, 815 (Tex.App.—Dallas

2009, no pet.).

      The waiver is narrow. For a governmental unit to be subject to suit for a

waiver of immunity under the TTCA, (1) the claim must arise under one of the

three specific areas of liability listed in section 101.021; and (2) the claim must not

fall within an exception to the waiver of sovereign immunity. See City of Garland

v. Rivera, 146 S.W.3d 334, 338 (Tex. App.—Dallas 2004, no pet.) and Scott v.

Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.—Houston [1st Dist.]

1999, pet. denied). Appellees’ claims fail both prongs here. The TTCA provides a

limited waiver of governmental immunity and allows suits to be brought against

governmental entities in a few, narrowly defined circumstances. Texas Dept. of

Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).             Governmental

immunity is waived under the TTCA in only three areas – none of which are

implicated here – (i) use of publicly owned automobiles, (ii) premises defects, and

(iii) injuries arising out of conditions or uses of certain property. See, Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). Unless the



                                          12
common law tort claims fall within this waiver of governmental immunity

established by the Texas Legislature, they are barred.

      B.     Appellees’ misrepresentation claim is barred by immunity

      The elements of misrepresentation are (1) the representation is made by a

defendant in the course of his business, or in a transaction in which he has a

pecuniary interest; (2) the defendant supplies ‘false information’ for the guidance

of others in their business; (3) the defendant did not exercise reasonable care or

competence in obtaining or communicating the information; and (4) the plaintiff

suffers pecuniary loss by justifiably relying on the representation. K.C.

Cunningham v. Tarski, 365 S.W.3d 179, 186-87 (Tex.App.—Dallas 2012, pet.

denied). Appellees misrepresentation claim surely doesn’t meet these elements.

The claim purports to rest on the assertion in April 2013 in the City’s plea in the

first lawsuit averring that no action had been taken with respect to the property

rendering Appellees’ claims unripe [See, C.R. 168-69 (Plaintiff’s Second

Amended Petition, ¶ 21)]. 7

      First and foremost, a statement in a judicial proceeding enjoys privilege and

cannot support a misrepresentation claim. 8 Perhaps more glaringly undermining


7
      In addition to other dispositive grounds.

8
      See, e.g., Bird v. W.C.W., 868 S.W.2d 767, 771-72 (Tex. 1994); Laub v. Pesikoff, 979
      S.W.2d 686, 691-92 (Tex.App.—Houston [1st Dist.] 1998, pet. denied).



                                              13
the claim, the April 2013 filing occurred months before the City Council Meeting

and filing of the declaration of amended deed restrictions – and thus was quite

obviously accurate. While Appellees’ claim of misrepresentation, devoid of the

basic elements of a legally cognizable misrepresentation claim, appears to be

frivolous on its face, any claim for misrepresentation is plainly barred by

governmental immunity.

      Appellees here never alleged any of their claims arise out of (i) the use of a

publicly owned automobile, (ii) a premises defect, or (iii) an injury arising out of a

condition or use of certain property. Miranda, 133 S.W.3d at 225; TEX. CIV. PRAC.

& REM. CODE ANN. § 101.021. Appellees’ misrepresentation claim does not arise

out of the use of a publicly owned vehicle, a premises defect, or a condition or use

of property, even under their broadest reading [C.R. 173]. Therefore, “the general

rule of immunity controls.”     Boyle, 148 S.W.3d at 180 (citing Miranda, 133

S.W.3d at 226–28). Accordingly, Appellees failed to affirmatively demonstrate any

waiver of the City’s immunity under the TTCA. See Martinez v. Hardy, 864

S.W.2d 767,772 (Tex. App. 1993). This Court’s own precedent is quite clear on the

issue. See Ethio Express Shuttle Service v. City of Houston, 164 S.W.3d 751, 757-

58 (Tex.App.—Houston [14th Dist.] 2005, no pet.) (misrepresentation claim did not

fall within waiver of immunity and was thus barred); see also, City of Fort Worth




                                         14
v. Pasturek Industries, Inc., 48 S.W.3d 366, 372 (Tex.App.—Fort Worth 2001, no

pet.) (same).

      Further, to the extent, if any, Appellees claim intentional misrepresentation,

the claim is further barred because the TTCA expressly states that it does not

waive immunity for claims arising out of intentional torts. TEX. CIV. PRAC. & REM.

CODE ANN. § 101.057(2); Harris County, Tex. v. Cabazos, 177 S.W.3d 105, 109

(Tex. App.—Houston [1st Dist.] 2005, no pet.).            Accordingly, Appellees’

misrepresentation claim must be dismissed as it not only fails to fall within a

waiver of immunity, it is specifically excluded from the waiver set forth in the

Texas Tort Claims Act.        Accordingly, the Court has no jurisdiction over the

misrepresentation claim against the City, and the claim must be dismissed. Mayor

Holland’s official immunity and derivative immunity under 101.106 further bar

any such claim against him as discussed below.

      C.        Appellees’ nuisance claim is barred

      In their Second Amended Petition, Appellees added a tort claim against the

City for nuisance, purportedly based on the increase in traffic on nearby streets or

City owned lots [C.R. 174-176]. Texas law generally defines a nuisance as “a

condition that substantially interferes with the use and enjoyment of land by

causing unreasonable discomfort or annoyance to persons of ordinary

sensibilities.” Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011). However, the



                                          15
Texas Supreme Court has made clear that a claim of “nuisance” simply doesn’t

overcome a governmental entity’s immunity from tort claims. City of Dallas v.

Jennings, 142 S.W.3d 310, 313-16 (Tex. 2004). Rather, a plaintiff must establish

that the circumstances are sufficient to constitute an inverse condemnation, and

pursue liability under a constitutional takings theory. Id.

       To be sure, Appellants here failed to identify any specific harm to their

persons or property by any action of Appellants of the nature actionable as a

nuisance. Even if they did, Appellees’ nuisance claim is barred by governmental

immunity. Again, the claim of nuisance is premised on Appellees’ contention that

the subdivision will have increased pedestrian and vehicular traffic in the

neighborhood which they speculate might interfere with their peaceful use and

enjoyment of their property [C.R. 174-176].        None of the allegations include

claimed use of motor driven equipment or other facts which would even arguably

present a waiver of tort immunity under the TTCA. Thus, Appellees’ nuisance

claim is barred by immunity. Cf., Jennings.

III.   Appellees fail to state and cannot state a viable claim of inverse
       condemnation.

       Perhaps recognizing the effect of immunity on their common law claims,

after reading the City’s briefing, Appellees added a claim of inverse condemnation

for the first time in their Second Amended Petition [C.R. 174-76]. However, “[t]o

properly assert an inverse condemnation claim against a governmental entity, a


                                          16
party must plead that the governmental entity intentionally performed an act in the

exercise of its lawful authority that resulted in the taking, damaging or destruction

of the party’s property for public use.” City of Houston v. Song, 2013 WL 269036

(Tex.App.—Houston [14th Dist.] 2013), citing, Gen Servs. Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). “Determining whether a taking

has occurred [in an inverse condemnation suit] is a question of law.” Hearts Bluff

Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012).

      Immunity can be waived for a claim of inverse condemnation. However,

Texas law is clear that, if, as here, Appellees have not stated a viable inverse

condemnation claim, the City retains its immunity from any such claim(s). See,

City of Dallas v. VSC, LLC, 347 S.W.3d 231, 250 (Tex. 2011); Tex. Dept. of

Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013); Heart’s

Bluff, at 476. Merely asserting an inverse condemnation theory, as Appellants did

in their most recent petition, does not circumvent the City’s governmental

immunity.

      There is no authority for the proposition advanced by Appellants that the

City, by maintaining its own property as green or open space, has condemned or

taken their adjacent property. In essence, Appellees complain the City is using its

own property for public use and Appellees prefer to have their four lots and the

City’s thirty-eight lots left to Appellees’ own exclusive use and enjoyment. While



                                         17
there are no allegations which would even approach the degree of a constitutional

taking presented in this case, Texas Courts have made clear that, even where public

works introduce increased traffic and noise to a community, such works do not

constitute a compensable taking. See Felts v. Harris County, 915 S.w.2d 482 (Tex.

1996) (substantial increase in noise from constructed highway not taking); Alewine

v. City of Houston, 309 S.W.3d 771, 779 (Tex.App.—Houston [14th Dist.] 2010,

pet. denied), citing, City of Austin v. Travis County Landfill Co., 73 S.W.3d 234,

244 (Tex. 2002) (increased noise from nearby airport overflights not taking “absent

a showing by individual homeowners that their houses are no longer usable for

residential purposes”); State v. Momin Properties, Inc., 409 S.W.3d 1 (Tex.App.—

Houston [1st Dist.] 2013 pet. denied) (overpass diverted traffic). The Texas

Supreme Court has made clear that “an abutting property owner does not have a

vested interest in the traffic that passes in front of his property.” State v. Schmidt,

867 S.W.2d 769, 774 (Tex. 1993). The Appellees allegations in this case, even if

true, fall far short of establishing any basis to assert their property was taken,

damaged or destroyed for public use. See, Little Tex, supra.

      Here, there could be no viable taking arising out of the City’s use of its own

property, and surely by its maintenance of its own property as green space. While

Appellees may find it undesirable to have members of the public on the the City’s

park property, this hardly constitutes a constitutional taking, damaging or



                                          18
destruction of their property. As such, Appellees stated no viable claim of inverse

condemnation, they failed to demonstrate that their claims would overcome

immunity and failed to establish the trial court’s jurisdiction. The trial court erred

and the claim should have been dismissed. This Court should reverse and render

dismissal in favor of Appellants.

IV.   Appellees fail to state and cannot state a viable claim of breach of
      contract.
      Appellees asserted a breach of contract claim in their First and Second

Amended Petitions [C.R. 100-112; 162-178].         A claim for breach of contract

requires proof of; (1) the existence of a valid contract; (2) performance or tendered

performance by the plaintiff; (3) breach of the contract by the defendant; and (4)

damages sustained by the plaintiff as a result of that breach. Holloway v. Dekkers,

380 S.W.3d 315, 324 (Tex.App.—Dallas 2012, no pet.).

      Again, a governmental entity such as the City is entitled to governmental

immunity except to the extent, if any, such immunity has been expressly waived by

the Texas Legislature. Any waiver of immunity for breach of contract is governed

by Section 271.152 of the Texas Local Government Code, which provides,

      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.




                                         19
TEX. LOCAL GOV’T CODE § 271.152 (emphasis added); See also, Tooke v. City of

Mexia, 197 S.W.3d 325 (Tex. 2006). “‘Contract subject to this subchapter’ means

a written contract stating the essential terms of the agreement for providing goods

or services to the local government entity…” Id., § 271.152(2) (emphasis added).

      Quite simply, there were never allegations in this case that related to a

contract for the provision of “goods or services” and Appellees have neither recited

the existence of or shown a written contract for either. Therefore, § 271.152 does

not provide for a waiver of immunity and there is no other statutory basis for

waiver of immunity based upon a claim of breach of contract. Accordingly, the

trial court erred in failing to dismiss Appellees’ breach of contract claim for want

of jurisdiction.

V.    Appellees’ request for declaratory judgment requesting an
      interpretation of the deed restrictions did not fall within a waiver of
      immunity from suit and the Court lacks jurisdiction
      Appellees also requested a declaratory judgment interpreting the deed

restrictions, specifically that the City was entitled to fewer votes than the Appellees

collectively and, in their most recent petition, that the Court declare that the City’s

Declaration of Amended Deed Restrictions to be void as contrary to the Imperial

Estates’ deed restrictions [C.R. 171-72].       Appellees reference and rely upon

Section 37 of the Texas Civil Practice & Remedies Code, the Texas Uniform

Declaratory Judgments Act (“UDJA”). The UDJA generally provides that a “[a]



                                          20
court of record within its jurisdiction has power to declare rights, status, and other

legal relations…” Tex.Civ.Prac. & Rem. Code 37.003(a). However, and essential

here is the well-settled legal proposition that “immunity will bar an otherwise

proper UDJA claim that has the effect of establishing a right to relief against the

State for which the legislature has not waived immunity.” Mustang Special Utility

District v. Providence Village, 392 S.W.3d 311, 315-16 (Tex.App.—Fort Worth

2012, no pet.), citing, Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d

384, 388 (Tex. 2011).

      Appellees’ claim for declaratory relief does not fall within a waiver of

governmental immunity. “The law is clear that the UDJA waives governmental

immunity only for (1) claims challenging the validity of an ordinance or statute and

(2) ultra vires claims against state officials who allegedly act without legal or

statutory authority or who fail to perform a purely ministerial act.” Id, citing City

of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 & n. 6 (Tex. 2009). See also Tex.

Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). 9

      Notably, immunity is not waived where, as here, a party seeks to have the

Court construe or interpret the terms of a contract, rather than a statute or


9
      Even in the case of “an ultra vires action, the governmental entity [itself]
      remains immune from suit” De Los Santos v. City of Robstown, 2012 WL
      6706780 (Tex.App.—Corpus Christi 2012, no pet.), citing, City of El Paso v.
      Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).


                                         21
ordinance.    City of Corinth v. Nurock Development, 293 S.W.3d 360, 369

(Tex.App.—Fort Worth 2009, no pet.) (emphasis added), citing to IT-Davy, 74

S.W.3d at 855-56; Mustang, at 316. 10 See also, City of North Richland Hills v.

Home Town Urban Partners, Ltd., 340 S.W.3d 900, 911 (Tex.App.—Fort Worth

2011, no pet.). Governmental immunity bars requests for declaratory relief against

a governmental entity (1) that constitute a suit to recover money damages or (2)

that seek to establish a contract’s validity, to enforce performance, or to impose

contractual liabilities – actions that effectively control state action as such efforts

interfere with the separation of governmental powers. Mustang, at 316.

      Texas law precludes Appellees’ request for declaratory relief because, “deed

restrictions are a contract between the property owner and the neighborhood

association.” Devonshire Place Neighborhood Association v. Devonshire Place,

Ltd., 1999 WL 82617 at *4 (Tex.App.—Houston [1st Dist.] 1999, no pet.)

(unpublished), citing, Tien Tao Ass’n, Inc. v. Kingsbridge Park Community Ass’n,

Inc., 953 S.W.2d 525, 532-33 (Tex.App. – Houston [1st Dist.] 1997, no writ)

(“deed restrictions comprise a contract between the homeowner and neighborhood

association”). Accordingly, Texas law subjects deed restrictions to the general


10
      The Court in Nurock explained that “[s]tatutes or ordinances enacted by
      legislative bodies are designed to address broad questions of public policy
      and to promulgate laws that those subject to the government’s power must
      follow in future conduct” and are thus distinguishable from a contractual
      dispute between specific parties. Id, at 368-69.

                                          22
rules of contract construction. Marzo Club, LLC v. Columbia Lakes Homeowner’s

Ass’n, 325 S.W.3d 791, 798 (Tex.App.—Houston [14th Dist.] 2010, no pet.);

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Uptegraph v. Sandalwood

Civic Club, 312 S.W.3d 918, 925 (Tex.App.—Houston [1st Dist.] 2010, no pet.).

      As Appellees seek interpretation and a declaration of their rights under a

contract with their co-owner – the City - rather than interpretation of a statute or

ordinance, there is no waiver of immunity for any claim against the City under the

UDJA. See, Mustang at 316; See also City of Dallas v. Turley, 316 S.W.3d 762,

768-69 (Tex.App.—Dallas 2010, pet. denied) (landowners who sought clarification

of their rights but who did not challenge the validity of an ordinance or statute

failed to establish waiver of immunity).

      At bottom, Appellees’ declaratory judgment action is as barred by

governmental immunity as their common law and breach of contract claims and

the claim should have been dismissed for lack of jurisdiction. This Court should

reverse and render dismissal in favor of Appellants.

VI.   Appellees assertion of “ultra vires” does not present a viable claim
      which overcomes governmental immunity

      For the first time in their First Amended Petition, and again with th benefit

of the City’s briefing which demonstrated the baseless nature of their prior claims,

Appellees asserted a bald allegation that the Mayor’s actions in executing the

Declaration of Amended Deed Restrictions after a City Council vote were ultra


                                           23
vires [C.R. 110]. This assertion is not only as unavailing as Appellees’ other

claims, it suggests Appellees misunderstand this legal concept.

      The ultra vires exception to immunity for a legislative act encompasses suits

to require state officials to comply with statutory or constitutional provisions.

These suits attempt to “reassert the control of the State.” City of El Paso v.

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Notably, regardless of whether an

individual’s immunity may be affected by a proper assertion of a claim of an

individual’s alleged ultra vires act, a governmental entity is immune from an

ultra vires claim. See, e.g., De Los Santos v. City of Robstown, 2012 WL 6706780

(Tex.App. – Corpus Christi, no pet.), citing, Heinrich, at 372. Patel v. Texas Dept.

of Licensing and Regulation, ___ S.W.3d ___, 2015 WL3982687 at *4 (Tex.

2015). The ultra vires exception only applies to official capacity claims brought

against governmental officials who have failed to comply with ministerial statutory

or constitutional duties. Town of Flower Mound v. Rembert Enterprises, Inc., 369

S.W.3d 465, 476 (Tex. App.—Fort Worth 2012, pet. denied).

      Appellees’ assertion that the Mayor had no authority to sign the Declaration

was, and is, contrary to law. The City of Friendswood, Texas’ Charter, Article III,

Section 3.05 sets out the Mayor’s duties and authority. It provides in part as

follows:

      The Mayor shall see that all resolutions of the City Council are
      faithfully obeyed and enforced. He/she shall, when authorized by the

                                        24
      City council, sign all official documents, such as ordinances,
      resolutions, conveyances, grant agreements, official plats, contracts
      and bonds…H/she shall perform such other duties consistent with this
      Charter or as may be authorized or directed by City Council.

FRIENDSWOOD, TEXAS CHARTER § 3.05 [C.R. 143].          Further, “[t]o fall within [the]

ultra vires exception, a suit must not complain of a government officer’s exercise

of discretion, but rather must allege and ultimately prove that the officer acted

without legal authority or failed to perform a purely ministerial act.” Berry v. Tex.

Dem. Party, 449 S.W.3d 633, 643-44 (Tex.App.—Austin 2014, no pet. hist.).

Patel at *4. “‘Complaints that the official ‘reached an incorrect or wrong result

when exercising its delegated authority’ is not sufficient to state an ultra vires

claim of exceeding statutory authority.”       Moers v. Harris County Appraisal

District, ___ S.W.3d ___, 2015WL3981735 (Tex. App.—Houston [1st Dist.] 2015,

no pet. hist.). Moreover, the official capacity ultra vires exception is quite limited

and does not apply in an action to “establish a contract’s validity, to enforce

performance under a contract, or to impose contractual liabilities.” See, Town of

Flower Mound at 476.

      Appellees did not premise their claim on any alleged non-performance of

any identified statutory or constitutional ministerial duties by Appellant Holland

and executing legal documents, including those decided by the City Council, on

behalf of the City is hardly outside this mayor’s authority and, therefore, not, as a

simple matter of clear law, an ultra vires act. While Appellees claimed in their

                                         25
Second Amended Petition that Mayor Holland took action without notice or a vote,

that assertion was directly disproven by the evidence filed by Appellants, including

the agenda and minutes [C.R. 116-130; 138-142]. Indeed, when the City filed

documentation confirming the agenda and minutes relating to the City’s contested

action, Appellees not only failed to controvert it, they told the trial court they

conceded the point.

VII. Appellees have no viable claim and have not established jurisdiction
     under the Texas Open Meetings Act
      Appellees further sought a declaratory judgment that Appellants’ actions

were in violation of the Texas Open Meetings Act premised, again, on the

contention – demonstrated false by the City’s public records [C.R. 116-130; 138-

142]- that there was no notice or discussion of the actions reflected in the

Declaration of Amended Deed Restrictions.

      The Texas Open Meetings Act prescribes notice and disclosure requirements

for governmental meetings. See, City of San Antonio v. Fourth Court of Appeals,

820 S.W.2d 762 (1991). Appellees’ claim is asserted “pursuant to Chapter 37 of

the Texas Civil Practice and Remedies Code,” the Texas Declaratory Judgments

Act [C.R. 172]. As set forth above, governmental immunity is not waived under

the Declaratory Judgments Act except in very limited circumstances, which do not

include an alleged violation of the Open Meetings Act. See, Mustang Special

Utility District. Rather, the Act’s enforcement mechanism is set forth in the Act


                                        26
itself. 11   Appellees request for declaratory relief related to the Texas Open

Meetings Act is barred by immunity because it is not within the narrow exceptions

to immunity under the Declaratory Judgments Act. See, e.g., Heinrich.

        After Appellees asserted an Open Meetings Act claim, however bare,

Appellants affirmatively disproved it by supplying the July 2013 City Council

Minutes [C.R. 128] and, thereafter, the Agenda timely posted in advance of that

meeting [C.R. 139, No. 14]. After the City produced these, Appellees conceded

there was no violation of the Texas Open Meetings Act, but neither the Appellees

nor the Court dismissed the claim.          The trial court erred in failing to grant

Appellants’ plea to the jurisdiction on the Texas Open Meeting Act claim.

VIII. Appellees’ claims against Mayor Holland are barred by derivative and
      official immunity
        Appellees’ have not alleged any act by Mayor Holland other than executing

the Declaration of Amended Deed Restrictions as Mayor. Along with its Answer,

the Appellant City of Friendswood moved the Court to dismiss all claims against

Mayor Holland, based on his derivative immunity under Texas Tort Claims Act §

101.106(e). See also, Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657 (Tex.

2008). Specifically, TTCA § 101.106(e) provides that “[i]f a suit is filed under this

chapter against both a governmental unit and any of its employees, the employees

shall immediately be dismissed on the filing of a motion by the governmental

11
        See, Texas Government Code § 551.142(b).

                                            27
unit.” Hopkins v. Strickland, 2013 WL 1183302 (Tex.App.—Houston [1st Dist.]

2013) (unpublished) (affirming dismissal of claims against mayor for defamation

and malicious prosecution, under § 101.106). The trial court erred in denying the

request to dismiss claims against Appellant Holland.

      In addition, the ultra vires claim against Holland, necessarily against him in

his official capacity only, must be dismissed because it fails to overcome the

governmental immunity which applies, as discussed above.

      Finally, official immunity bars any claim against Holland based upon the

pleadings and uncontroverted evidence before the Court. Common law official

immunity protects public officials from suit arising from performance of their (1)

discretionary duties (2) performed in good faith; and (3) within the scope of their

authority. Ballantyne v. Champion Builders, Inc. 144 S.W.3d 417, 423 (Tex.

2004). “An action is considered discretionary if it involves personal deliberation,

decision, and judgment.” City of Lancaster v. Chambers, 883 S.W.2d 650, 654

(Tex. 1994). To determine good faith, courts apply an objective standard, “what a

reasonable [person] could have believed.”         Ballantyne, 144 S.W.3d at 426.

Specifically whether a reasonable person, possessing the same information he had

at the time, could have believed his conduct was lawful. Chambers, at 656. An act

is within the scope of an official’s authority if they are discharging the duties

generally assigned to them. Ballantyne, at 424.



                                        28
      The pleadings and evidence demonstrate Mayor Holland acted within the

scope of his authority, in his discretionary capacity, and in good faith [C.R. 128,

139 ¶ 13, 143]. While the Mayor did absolutely nothing which would give rise to a

legal claim against him, even if he did, § 101.106(e) and official immunity protect

him from suit and deprived the trial court of jurisdiction. The trial court erred in

denying Mayor Holland’s motion to dismiss and plea to the jurisdiction on claims

asserted against him.

IX.   Appellees Claim for Injunctive Relief is Barred
      Appellees included in their Petition a request for an injunction against any

development by the City of its lots. To be entitled to injunctive relief, a party must

show a probable right to relief and success on the merits, imminent harm, and an

irreparable injury with no remedy at law. See, Butnaru v. Ford Motor Company,

84 S.W.3d 198, 204 (Tex. 2002); Sharma v. Vinmar Int’l Ltd., 231 S.W.3d 405,

419 (Tex.App.—Houston [14th Dist.] 2007, no pet.). The Court appropriately

denied Appellees request for a Temporary Restraining Order [C.R. 21]. Injunctive

relief is appropriate in narrow circumstances under the ultra vires exception,

discussed above. See, Heinrich, supra. Appellees failed to identify any waiver

from a claim for injunctive relief here. Thus, the Appellees’ immunity barring any

claim extends to any request for injunctive relief. The Court should reverse the

denial of Appellants’ plea and render dismissal in favor of Appellants.



                                         29
X.    District Court erred in failing to dismiss all of Appellees’ claims or,
      alternatively, individual claims
      Any one of these grounds constituted a basis for dismissal in light of the lack

of jurisdiction the District Court had over this case. The Court erred by denying

the City’s plea to the jurisdiction on Appellee’s Counterclaim.

                                   CONCLUSION
      Appellees have asserted numerous causes of action in an obvious and ever-

expanding attempt to thwart dismissal of claims from which both the City and

Mayor clearly are immune. While the claims themselves wholly lack merit, they

are barred by the direct application of immunity, or by Appellees’ failure to state

viable claims which would overcome that immunity. Appellees failed to show as

waiver of immunity on any of their claims and no waiver exists. Accordingly, the

trial court lacks jurisdiction and should have granted the plea to the jurisdiction and

motion to dismiss, in whole or at least in part. This Court should reverse and

render judgment in favor of both the City and Mayor Holland and dismissing all of

Appellees’ claims with prejudice.

                                      PRAYER
      Appellants, the City of Friendswood, Texas and Kevin Holland pray this

Court reverse the trial court’s denial of its Plea to the Jurisdiction and Motion to

Dismiss, and render judgment that Appellees’ suit be dismissed with prejudice for

lack of subject matter jurisdiction and for all other relief to which they are entitled.


                                           30
                          Respectfully submitted,

                          /s/ William S. Helfand
                          William S. Helfand
                          Attorney-in-Charge
                          SBOT No. 09388250
                          bill.helfand@chamberlainlaw.com
                          Charles T. Jeremiah
                          SBOT No. 00784338
                          Charles.jeremiah@chamberlainlaw.com
                          ATTORNEYS FOR APPELLANTS

OF COUNSEL:

CHAMBERLAIN, HRDLICKA, WHITE,
      WILLIAMS & AUGHTRY
1200 Smith Street, Suite 1400
Houston, Texas 77002-4401
(713) 654-9630
(713) 658-2553 (Fax)




                           31
                         CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of Appellant’s Brief has been
served via CM/ECF System and/or by CD and certified mail, return receipt
requested, on this 15th day of July, 2015 to:

        Aaron Pool
        James T. Sunosky
        Donato Minx Brown & Pool, PC
        3200 Southwest Freeway, Suite 2300
        Houston, Texas 77027


                                     /s/William S. Helfand
1947904.2
003856..000356




                                       32
                     CERTIFICATE OF COMPLIANCE
             I certify that this brief complies with the typeface and word-count
requirements set forth in the Texas Rules of Appellate Procedure. This brief has
been prepared, using Microsoft Word, in 14-point Times New Roman font for the
text and 12-point Times New Roman font for any footnotes. This Motion contains
7,146 words, as determined by the word count feature of the word processing
program used to prepare this document, excluding those portions of the notice
exempted by TEX. R. APP. P. 9.4(i)(1).


                                    /s/ William S. Helfand




                                      33
APPENDIX




   34
TAB A
                                                                                1'-CV-Ml8
                                                                                DCORDPJ
                                                                                ~ ~ ...... Jurlldlclllll
                                                                                1832332


                                                                               · 11111111111111111111111
                                      NO. 14-CV-0490

PAUL and CAROLYN HORN, MIKE                    §
and LUCY STACY, PETE and JUDY                  .§
GARCIA, and JANICE FRANKIE                      §
                                                §
vs.                                             §
                                                §
THE CITY OF FRIENDSWOOD AND                     §
MAYOR KEVIN M. HOLLAND                         §             212tn JUDICIAL     DISTRICT


        ORDER DENYING DEFENDANT'S PLEA TO THE JURISDICTION AND
                          MOTION TO DISMISS

       BE IT REMEMBERED, on this day came on            to be heard Defendants' Plea to the
Jurisdiction and Motion to .Dismiss in the above cause. and the Court having considered

same, with the arguments of counsel, finds that said Motion shah in all things be DENIED.

It is therefore accordingly,

       ORDERED, ADJUDGED and DECREE, Defendants' Pfea to the Jurisdlction and

Motion to Dismiss shall in all things be DENIED. It is further,

       ORDERED, ADJUDGED and DECREED, Defendanfs Motion to Strike Discovery

or Alternatively Stay Discovery shall in all things be DENIED.



       SIGNED this the _aD_ day of_~--
                                   ·--~·-~-=--------· 2015




                                                                                            193
                                             12
                        \
TAB B
              this subsection will have on the availabil ity of other forms of assistance
              under this Act.

          (6) Definitions - For purposes of this section

                 (A) Department of Defense - The term "Department of Defense" has the
                     meaning the term "department" has under section I 01 of title 10.
                 (B) Emergency work - The term "emergency work" includes clearance
                     and removal of debris and wreckage and temporary restoration of
                     essential public facilit ies and services.

Sec. 404. Hazard Mitigation (42 U.S.C. 5170c)*

   (a) In General - The President may contribute up to 75 percent of the cost of hazard
       mitigation measures which the President has determined are cost-effective and
       which substantially reduce the risk of future damage, hardship, loss, or suffering in
       any area affected by a major disaster. Such measures shall be identified following
       the evaluation of natural hazards under section 5165 of this title and shall be
       subject to approval by the President. Subject to section 5165 of th is title , the total
       of contributions under this section for a major disaster shall not exceed 15 percent
       for amounts not more than $2,000,000,000, I 0 percent for amounts of more than
       $2,000,000,000 and not more than $I 0,000,000,000, and 7.5 percent on amounts of
       more than $10,000,000,000 and not more than $35,333,000,000 of the estimated
       aggregate amount of grants to be made (less any associated administrative costs)
       under this Act with respect to the major disaster.

   (b) Property acquisition and relocation assistance -

          (I) General authority - In providing hazard m1t1gation assistance under this
              section in connection with flooding , the Director of the Federal Emergency
              Management Agency may provide property acquisition and relocation
              assistance for projects that meet the requirements of paragraph (2).

          (2) Terms and conditions - An acquisition or relocation project shall be eligible
              to receive assistance pursuant to paragraph (I) only if

                 (A) the applicant for the assistance is otherwise eligible to receive
                     assistance under the hazard mitigation grant program established
                     under subsection (a); and
                 (B) on or after December 3, 1993, the applicant for the assistance enters
                     into an agreement with the Director that provides assurances that -
                         (i) any property acquired, accepted, or from which a structure
                             will be removed pursuant to the project will be dedicated and
                             maintained in perpetuity for a use that is compatible with
                             open space, recreational, or wetlands management practices;




                                             29
                      (ii) no new structure will be erected on property acquired,
                           accepted or from which a structure was removed under the
                           acquisition or relocation program other than--
                               (I) a public facility that is open on all sides and
                                    functionally related to a designated open space;
                               (II) a rest room; or
                               (JIT) a structure that the Director approves in writing
                                    before the commencement of the construction of the
                                    structure; and
                      (iii)after receipt of the assistance, with respect to any property
                           acquired, accepted or from which a structure was removed
                           under the acquisition or relocation program--
                               (l) no subsequent application for additional disaster
                                    assistance for any purpose will be made by the
                                    recipient to any Federal entity; and
                               (II) no assistance referred to in subclause (I) will be
                                    provided to the applicant by any Federal source.

       (3) Statutory construction - Nothing in this subsection is intended to alter or
           otherwise affect an agreement for an acquisition or relocation project
           carried out pursuant to this section that was in effect on the day before
           December 3, 1993.

(c) Program Administration by States -

       (1) In general - A State desiring to administer the hazard m1t1gation grant
           program established by this section wi th respect to hazard mitigation
           assistance in the State may submit to the President an application for the
           delegation of the authority to administer the program.

       (2) Criteria - The President, in consultation and coordination with States and
           local governments, shall establish criteria for the approval of applications
           submitted under paragraph (1). The criteria shall include, at a minimum -

             (A) the demonstrated ability of the State to manage the grant program
                 under this section;
             (B) there being in effect an approved mitigation plan under section 5165
                 of this title; and
             (C) a demonstrated commitment to mitigation activities.

       (3) Approval - The President shall approve an application submitted under
           paragraph ( l) that meets the criteria established under paragraph (2).

       (4) Withdrawal of approval - If, after approving an application of a State
           submitted under paragraph (I), the President determines that the State is not
           administering the hazard mitigation grant program established by this




                                         30
              section in a manner satisfactory to the President, the President shall
              withdraw the approval.

          (5) Audits - The President shall provide for periodic audits of the hazard
              mitigation grant programs administered by States under this subsection.

Sec. 405. Federal Facilities (42 U.S.C. 5171)

   (a) Repair, reconstruction, restoration or replacement of United States facilities - The
       President may authorize any Federal agency to repair, reconstruct, restore, or
       replace any facility owned by the United States and under the jurisdiction of such
       agency which is damaged or destroyed by any major disaster if he determines that
       such repair, reconstruction, restoration, or replacement is of such importance and
       urgency that it cannot reasonably be deferred pending the enactment of specific
       authorizing legislation or the making of an appropriation for such purposes, or the
       obtaining of congressional committee approval.

   (b) Availability of funds appropriated to agency for repair, reconstruction, restoration,
       or replacement of agency facilities - In order to carry out the provisions of this
       section, such repair, reconstruction, restoration, or replacement may be begun
       notwithstanding a lack or an insufficiency of funds appropriated for such purpose,
       where such lack or insufficiency can be remedied by the transfer, in accordance
       with law, of funds appropriated to that agency for another purpose.

   (c) Steps for mitigation of hazards - In implementing this section, Federal agencies
       shall evaluate the natural hazards to which these facilities are exposed and shall
       take appropriate action to mitigate such hazards, including safe land-use and
       construction practices, in accordance with standards prescribed by the President.

Sec. 406. Repair, Restoration, and Replacement of Damaged Facilities (42
u.s.c. 5172)*
   (a) Contributions -

          ( 1) In general -The President may make contributions -

                (A) to a State or local government for the repair, restoration,
                    reconstruction, or replacement of a public facility damaged or
                    destroyed by a major disaster and for associated expenses incurred
                    by the government; and
                (B) subject to paragraph (3), to a person that owns or operates a private
                    nonprofit facility damaged or destroyed by a major disaster for the
                    repair, restoration, reconstruction, or replacement of the facility and
                    for associated expenses incurred by the person.




                                            31
