                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-14-00057-CV

                                     CITY OF SAN ANTONIO,
                                            Appellant

                                                   v.

                    ALAMO AIRCRAFT SUPPLY, INC., Alamo Aircraft, Ltd.,
                          Wulfe Rentals, Ltd., and Lobo GC, Ltd.,
                                        Appellees

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2013-CI-08223
                               Honorable Larry Noll, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine M. Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 13, 2014

REVERSED AND RENDERED

           In its efforts to widen Southwest 36th Street, appellant City of San Antonio filed a

condemnation suit in probate court against owners of certain adjoining properties (Appellees).

Thereafter, the parties executed a possession and use agreement (PUA) for the properties at issue.

Later, with the condemnation suit still pending, Appellees sued the City in district court for breach

of the PUA. They argued their breach of contract claim inherits the waiver of immunity from the

City’s condemnation suit. The City contended its immunity was not waived, but the trial court
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denied the City’s plea to the jurisdiction, and the City appeals. We reverse the trial court’s order

and render judgment dismissing Appellees’ suit.

                                          BACKGROUND

A.     Genesis of PUA

       In its street-widening project, the City negotiated with Appellees to purchase portions of

their properties which adjoin Southwest 36th Street. After negotiations failed, the City began

condemnation proceedings in probate court. To secure certain project funding, the City sought

and obtained the PUA. The parties do not contest the validity or content of the PUA, but they

dispute its nature. They disagree whether it is a partial settlement of the City’s condemnation suit

which extends the City’s waiver of immunity to Appellees’ breach of contract cause of action.

B.     PUA Overview

       Under the PUA, the City deposited certain funds into the court’s registry. In return, it

received immediate possession of portions of the properties subject to specified conditions. In

other terms, the parties agreed the only remaining issues to be litigated were (1) the amount of

money each landowner and tenant was due as compensation for the property taken (and associated

damages) and (2) the City’s right to take portions of their properties.

C.     Suit for Breach of PUA

       After the PUA was executed, the City entered into a separate contract with the street-

widening project’s prime contractor. According to Appellees, the prime contract did not contain

provisions protecting Appellees as required by the PUA. When the prime contractor allegedly

obstructed access to their properties, required Appellees to relocate personal property and fences

without sufficient notice, and violated other terms of the PUA, Appellees sued the City for breach

of the PUA and attorney’s fees.


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           Citing Lawson, Appellees contended their breach of contract claim was not barred because

the City waived its governmental immunity when it brought its condemnation suit 1 against them

in probate court, and their breach of contract claims inherit that waiver. See Tex. A & M Univ.-

Kingsville v. Lawson, 87 S.W.3d 518, 521 (Tex. 2002) (plurality opinion).

D.         City’s Plea to the Jurisdiction

           In its plea to the jurisdiction, the City asserted immunity from suit. It insisted the PUA’s

plain language conclusively demonstrates it does not settle the condemnation claims, Lawson does

not apply, and the City retained its immunity from Appellees’ breach of contract suit. See id. The

trial court denied the plea, and the City appeals.

                                               STANDARD OF REVIEW

           “Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and thus

is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 225–26 (Tex. 2004).

A.         Mirrors Summary Judgment Standard

           The standard of review for a plea to the jurisdiction “generally mirrors that of a [traditional]

summary judgment.” Id. at 228 (referencing TEX. R. CIV. P. 166a(c)). After the plaintiff “allege[s]

facts that affirmatively demonstrate a trial court’s subject matter jurisdiction,” id. at 226, the

governmental entity must “assert[] and support[] with evidence [the proposition] that the trial court

lacks subject matter jurisdiction,” id. at 228. If the governmental entity meets its burden, the

plaintiff must “show that there is a disputed material fact regarding the jurisdictional issue.” Id.

The court must “take as true all evidence favorable to the nonmovant [and] indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.



1
    On an agreed motion, the trial court divided the City’s condemnation suit into eight suits, one for each property.

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B.      Undisputed Jurisdictional Evidence

        If the governmental entity does not challenge the sufficiency of the plaintiffs’ pleadings,

but instead challenges the jurisdictional efficacy of undisputed facts, the jurisdictional question is

one of law. Id. at 226–28. “[I]f the relevant undisputed evidence negates jurisdiction, then the

plea to the jurisdiction must be granted.” State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007)

(citing Miranda, 133 S.W.3d at 227–28).

        We review a trial court’s ruling on a plea to the jurisdiction de novo. Holland, 221 S.W.3d

at 642; Miranda, 133 S.W.3d at 228.

                                            IMMUNITY FROM SUIT

A.      Governmental Immunity, Waiver

        In a suit against it for money damages, a city may assert governmental immunity “unless

it has been waived.” Reata Const. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006); accord

Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); see City of

Carrollton v. Singer, 232 S.W.3d 790, 795 (Tex. App.—Fort Worth 2007, pet. denied) (addressing

a city’s governmental immunity).

        A city’s governmental immunity is waived if it exercises its right of eminent domain to

acquire property, see TEX. CONST. art. I, § 17 (takings clause); Holland, 221 S.W.3d at 643; Gen.

Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001), for the purpose of

“widening . . . any alley, street, or other roadway,” TEX. LOC. GOV’T CODE ANN. § 251.001(a)

(West Supp. 2014). 2




2
 A city may also waive its immunity from suit and liability by entering into certain contracts. TEX. LOC. GOV’T CODE
ANN. § 271.152 (West 2005); City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). However, Appellees do
not contend the City waived its immunity from suit merely by executing the PUA.

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B.      Elements of Taking Claim

        Generally, the elements of a taking claim are that (1) a governmental entity acted

intentionally and thereby took or damaged property (2) for a public use (3) without either

adequately compensating the owner or obtaining the owner’s consent. TEX. CONST. art. I, § 17;

City of Austin v. Whittington, 384 S.W.3d 766, 772 (Tex. 2012); Little-Tex Insulation, 39 S.W.3d

at 598. A city may exercise its right to take property through a condemnation suit. TEX. PROP.

CODE ANN. § 21.012 (West Supp. 2014); Whittington, 384 S.W.3d at 772–73.

C.      Inheriting Waiver of Immunity under Lawson

        The City does not dispute that its immunity from suit and liability is waived in its

condemnation suits. See TEX. CONST. art. I, § 17 (takings clause); Holland, 221 S.W.3d at 643.

However, it vigorously disputes Appellees’ contention that their breach of contract cause of action

inherits the condemnation suits’ waiver of immunity under Lawson. See Lawson, 87 S.W.3d at

522–23. We begin by briefly reviewing Lawson.

        1.       Texas A & M University-Kingsville v. Lawson

        Lawson was a University faculty member whose employment was terminated. Id. at 518.

Lawson sued the University for various civil claims including an alleged violation of the

Whistleblower Act. Id. at 518–19. The University filed a plea to the jurisdiction and raised

sovereign immunity. Id. at 519. The trial court sustained the plea against all of Lawson’s claims

except his Whistleblower Act 3 and constitutional claims. Id.

        Thereafter, the parties executed an agreement to settle all of Lawson’s claims. Id. Lawson

received a cash payment and promises from the University regarding how it would respond to




3
 The Whistleblower Act waives a governmental entity’s immunity “for suits alleging violations of its provisions.”
Lawson, 87 S.W.3d at 521; see TEX. GOV’T CODE ANN. § 554.0035 (West 2012) (waiver of immunity).

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inquiries about his employment history. Id. In return, Lawson released his claims and his suit was

dismissed with prejudice. Id.

       Later, after the University allegedly responded to inquiries about his employment history

differently than agreed, Lawson sued for breach of the settlement agreement. Id. The University

asserted its immunity from Lawson’s suit for breach of contract. Id.

       The court rejected the University’s argument. Id. at 521. It held the State “may not . . .

claim immunity from a suit brought to enforce a settlement agreement reached to dispose of a

claim” for which the State’s immunity had been waived. Id. at 522–23. In effect, Lawson allows

a breach of settlement agreement cause of action to inherit the immunity waiver of the claim the

agreement settled. See id.; Singer, 232 S.W.3d at 796.

       Having reviewed Lawson, we turn to the PUA. We examine its terms to see if it settled a

taking claim—a claim from which a breach of contract cause of action could inherit a waiver of

the City’s immunity. See Lawson, 87 S.W.3d at 522–23.

       2.      Possession and Use Agreement Terms

       The PUA includes a number of terms that impose requirements on the City and Appellees,

but we focus on terms that might settle a taking claim. The following excerpts describe the PUA’s

effects on the condemnation suits.

       WHEREAS, Owners and Tenant and the City recognize and acknowledge that
       Owners’[] and Tenant’s consent to the entry across, over, upon and under the
       Property and possession of the Property by the City shall not be construed as a
       waiver of rights of Owners for (i) just compensation for the Property acquired, for
       compensation for damages, if any, to the remainder of the real property owned by
       Owners that may result from the City’s use or acquisition of the Property taken and
       relocation costs or (ii) to challenge the right to take or possess the Property
       following the Special Commissioners’ hearing; and

       WHEREAS, Owners and Tenant recognize and acknowledge the City’s right to
       seek to acquire the Property by negotiation and/or by condemnation for the
       purposes stated herein, and that the City acknowledges that this Agreement shall


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       not alter or affect any other rights, claims, causes of action or defenses not covered
       herein that any party may assert; and

       WHEREAS, this consent to the entry and possession, being at the request of the
       City, is being given for the benefit of the City and the general public, with the issues
       of total compensation due to Owners and Tenant for the taking of the Property, as
       well as the right to condemn, to be resolved in the future.
       ...

       [T]he grant herein made shall not prejudice, in any way, Owner’s right to (i)
       receive full and just compensation for the Property acquired, damages to the
       remainder of Owners’ property, damages to the Tenant and relocation costs and
       expenses in accordance with the Uniform Relocation Act of the Owners and Tenant
       and / or (ii) seek disallowance of the condemnation.

Possession and Use Agreement (emphasis added).

       3.      Effect of PUA’s Terms

       In considering the PUA and its terms, we note the City argues the PUA is unambiguous,

and Appellees did not argue otherwise. Having reviewed the PUA, we agree the PUA terms at

issue here “can be given a certain or definite legal meaning or interpretation,” and thus they are

not ambiguous. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (contract construction).

Therefore, we construe the PUA as a matter of law. See id. We now address the arguments the

parties make about the effect of the agreement.

               a.     Parties’ Arguments

       The City argues the PUA does not settle any aspect of their condemnation suits.

       Appellees contend “the PUA arose in the context of a condemnation case, and partially

settled or resolved issues in that condemnation case by,” inter alia, allowing the City to take

possession of the properties before the condemnation proceedings had concluded. They insist

Lawson does not require a complete settlement of a parent claim in order for the child breach of

contract cause of action to inherit the parent claim’s waiver of immunity. Cf. Lawson, 87 S.W.3d




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at 522–23 (addressing waiver of immunity in “a suit brought to enforce a settlement agreement

reached to dispose of a claim” for which the governmental entity’s immunity was waived).

               b.      Terms Addressing Taking Claim Elements

       We consider whether the PUA settled or disposed of a claim for which the City’s immunity

was waived—i.e., the City’s taking of portions of their properties.

       In this suit’s context, the elements of a taking claim are (1) the City exercised its powers

of eminent domain to take Appellees’ property (2) for a public use (3) without adequate

compensation or Appellees’ consent. See TEX. CONST. art. I, § 17; Whittington, 384 S.W.3d at

772. The parties do not dispute that Appellees did not consent to the taking, the City acted

intentionally and took portions of their properties, and the taking was for a public use. Thus, we

examine the PUA to see if it settled either of the two remaining aspects of a taking claim: the right

to take the property, or the amount of adequate compensation.

               c.      Express Disclaimer of Settlement

       The PUA’s plain language is dispositive.          It expressly leaves “the issues of total

compensation due to Owners and Tenant for the taking of the Property, as well as the right to

condemn, to be resolved in the future.” It adds that the agreement “shall not prejudice, in any way,

Owner’s right to (i) receive full and just compensation for the Property acquired . . . or (ii) seek

disallowance of the condemnation.”

       These provisions, and the other excerpts provided above, are clear and unambiguous. They

expressly disavow that the PUA settles either the amount of adequate compensation or the City’s

right to take the properties. Considering these express terms, we conclude that, unlike Lawson’s

agreement that settled his Whistleblower claim, the PUA does not settle or dispose of any claim




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for which the City’s immunity was waived. 4 See Lawson, 87 S.W.3d at 522–23. Thus, Appellees’

breach of contract cause of action does not inherit the taking claim’s waiver of immunity. 5 See id.

         Because the City’s immunity to Appellees’ breach of contract cause of action was not

waived under Lawson, the trial court was required to grant the City’s plea absent some other waiver

of the City’s immunity. See Holland, 221 S.W.3d at 643 (citing Miranda, 133 S.W.3d at 227–28)

(“[I]f the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must

be granted.”).

D. Waiver of Immunity by Statute

         In its plea to the jurisdiction the City contended its immunity was not waived by statute.

See TEX. LOC. GOV’T CODE ANN. §§ 271.151–160 (West 2005 & Supp. 2013). It attached a copy

of the PUA and cited City of San Antonio v. Reed S. Lehman Grain, Ltd., No. 04-04-00930-CV,

2007 WL 752197 (Tex. App.—San Antonio 2007, pet. denied) (mem. op. on reh’g) for the

proposition that any conveyance of an interest in real property was not a contract for goods or

services.

         In response to the City’s ground and evidence, Appellees did not (1) argue that the City’s

immunity to their breach of contract suit was waived by statute or (2) provide summary judgment

evidence. See TEX. LOC. GOV’T CODE ANN. § 271.152 (waiving a city’s immunity from suit for

entering into a contract for goods or services); Holland, 221 S.W.3d at 643.

         We conclude Appellees failed to raise a genuine issue of material fact on a waiver of

immunity by statute for the City’s alleged breach of the PUA. See Miranda, 133 S.W.3d at 228.


4
  Appellees invite us to extend Lawson to a partial settlement agreement, but we do not reach that question. Here, the
PUA does not conclusively dispose of any essential element of a taking claim.
5
  Appellees also rely on City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App.—Fort Worth 2007, pet. denied). For
purposes of this appeal, it is no different than Lawson. Like Lawson, the Singer agreement fully settled a claim which
the Singers could have made, and for which the City’s immunity would have been waived. Id. at 799. Singer held
the Singers’ suit to enforce the agreement inherited the waiver. Id. at 799–800. Here, the PUA does not settle a claim
for which immunity was waived, and neither Lawson nor Singer applies.

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                                            CONCLUSION

       The City of San Antonio’s immunity from suit and liability was waived in its condemnation

suits against Appellees’ properties. However, the PUA did not settle the taking claim, and thus

Lawson does not convey the taking claim’s waiver of the City’s immunity to Appellees’ breach of

contract cause of action. Because Appellees’ did not assert any other basis for waiver of immunity,

the trial court erred by denying the City’s plea to the jurisdiction.

       Without reaching the merits of Appellees’ breach of the PUA claims, we reverse the trial

court’s order and render judgment dismissing Appellees’ suit with prejudice to refiling a breach of

the PUA suit in district court.


                                                    Patricia O. Alvarez, Justice




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