                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00408-CV


TOWN OF FLOWER MOUND,                                         APPELLANTS
TEXAS, HARLAN JEFFERSON,                                    AND APPELLEES
TOWN MANAGER AND CHARLES
SPRINGER, ASSISTANT TOWN
MANAGER/CHIEF FINANCIAL
OFFICER

                                     V.

REMBERT ENTERPRISES, INC.                                        APPELLEE
                                                            AND APPELLANT


                                    ----------

             FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                    ----------

                        OPINION ON REHEARING
                                    ----------

                                I. Introduction

      After considering Appellants‘ motion for rehearing, we deny the motion but

withdraw our prior opinion and judgment of December 8, 2011, and substitute the

following.
      In this interlocutory appeal, Appellants Town of Flower Mound, Texas; Harlan

Jefferson, Town Manager; and Charles Springer, Assistant Town Manager/Chief

Financial Officer (collectively, Appellants) challenge the trial court‘s partial denial of

their plea to the jurisdiction in the lawsuit filed against them by Appellee Rembert

Enterprises, Inc. (Rembert).1 Appellants contend in five issues that governmental

immunity protects it from Rembert‘s declaratory judgment, breach of contract, and

attorney‘s fee claims and that Jefferson and Springer have derivative immunity. In

its cross appeal, Rembert argues that the trial court erred by partially granting

Appellants‘ plea to the jurisdiction against Rembert‘s inverse condemnation claim.

We affirm in part and reverse in part.

                                    II. Background

      Rembert is the developer of a residential subdivision in Flower Mound (the

Property). When Rembert applied to Flower Mound for approval of its development

permits, Flower Mound required Rembert to construct Auburn Drive on the property

and other land Rembert did not initially own as a condition of approval. Rembert

and Flower Mound thereafter entered into three separate development agreements,

and Rembert constructed Auburn Drive as set forth in those agreements. Flower

Mound paid Rembert fifty percent of the Auburn Drive construction cost, but

Rembert alleges in its third amended petition that the August 4, 2008 Development

Agreement (the Agreement) required Flower Mound to reimburse Rembert the full

      1
        See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2011)
(permitting interlocutory appeal from an order granting or denying a plea to the
jurisdiction filed by a governmental unit).


                                            2
cost of constructing Auburn Drive through a combination of impact fee credits and

direct reimbursement.      Rembert alleges that Flower Mound‘s failure to fully

reimburse the Auburn Drive construction costs is a breach of the Agreement or,

alternatively, constitutes a compensable taking. Rembert further seeks judicial

declarations (1) that the Impact Fee Act,2 the Agreement, and Flower Mound‘s

ordinances required Flower Mound to ―reimburse Rembert for 100% of the cost to

construct Auburn Drive‖ and (2) that Flower Mound, Jefferson, and Springer ―had a

ministerial obligation to forward the sums owed to [Rembert], and their refusal to do

so was unauthorized and illegal.‖

      Appellants answered Rembert‘s petition and filed a plea to the jurisdiction

that they amended on two occasions. The trial court conducted an evidentiary

hearing on Appellants‘ second amended plea to the jurisdiction and granted the

plea in part. Appellants appeal the trial court‘s partial denial of their plea to the

jurisdiction, and Rembert appeals the trial court‘s partial grant of Appellants‘ plea.

                               III. Standard of Review

      Whether the trial court had subject matter jurisdiction is a question of law that

we review de novo.       Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74

S.W.3d 849, 855 (Tex. 2002).        A plea to the jurisdiction is a dilatory plea that

challenges the trial court‘s subject matter jurisdiction. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause of action without


      2
      See Tex. Loc. Gov‘t Code Ann. §§ 395.001–.021 (West 2008), .022 (West
Supp. 2011); .024–.079 (West 2008), .081 (West Supp. 2011).


                                           3
regard to whether the claims asserted have merit. Id. Although the claims may

form the context in which a plea to the jurisdiction is raised, the plea should be

decided without delving into the merits of the case. Id.

      ―[S]overeign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued[,] unless

the state consents to suit.‖3 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 224 (Tex. 2004).       In Texas, sovereign immunity has two components:

immunity from liability and immunity from suit. Tooke, 197 S.W.3d at 332; Miranda,

133 S.W.3d at 224. Immunity from liability ―bars enforcement of a judgment against

a governmental entity‖ and is an affirmative defense. Tooke, 197 S.W.3d at 332;

Miranda, 133 S.W.3d at 224. Immunity from suit, on the other hand, ―bars suit

against the [governmental] entity altogether‖ because it ―deprives a court of subject

matter jurisdiction.‖ Tooke, 197 S.W.3d at 332; Miranda, 133 S.W.3d at 224. This

appeal involves immunity from suit.

      When a governmental entity such as Flower Mound enters into a contract, it

waives immunity from liability but does not waive immunity from suit unless the

legislature has clearly and unambiguously waived the governmental entity‘s

immunity from suit. Tooke, 197 S.W.3d at 332–33. To invoke the trial court‘s

subject matter jurisdiction over a claim arising out of a governmental entity‘s

      3
       Courts often use the terms interchangeably, but governmental, rather than
sovereign, immunity is at issue in this case. See Tooke v. City of Mexia, 197
S.W.3d 325, 329 n.11 (Tex. 2006) (distinguishing the State‘s sovereign immunity
from the governmental immunity enjoyed by political subdivisions of the State such
as counties, cities, and school districts).


                                          4
contractual obligations, the plaintiff must allege a valid waiver of immunity from suit

and plead sufficient facts demonstrating the trial court‘s jurisdiction. Miranda, 133

S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). We construe the pleadings liberally in favor of the plaintiff, look to the

pleader‘s intent, and accept the pleadings‘ factual allegations as true. Miranda, 133

S.W.3d at 226. If, as in this case, a plea to the jurisdiction challenges the existence

of jurisdictional facts, we consider relevant evidence submitted by the parties that is

necessary to resolve the jurisdictional issues. Id. at 227; see also Bland, 34 S.W.3d

at 555 (stating that ―[t]he court should, of course, confine itself to the evidence

relevant to the jurisdictional issue‖). We take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts in

the nonmovant‘s favor. Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 805

(Tex. App.—Fort Worth 2008, no pet.) (citing Miranda, 133 S.W.3d at 228). If the

evidence creates a fact question regarding jurisdiction, the trial court must deny the

plea to the jurisdiction and leave its resolution to the factfinder.    Miranda, 133

S.W.3d at 227–28. But if the evidence is undisputed or fails to raise a fact question

on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a

matter of law. Id. at 228.

                              IV. Breach of Contract

      Appellants contend in their third issue that the trial court does not have

subject matter jurisdiction over Rembert‘s breach of contract claim because the




                                          5
Agreement does not involve the provision of goods and services as required for a

waiver of immunity under local government code chapter 271.

      Section 271.152 of the local government code states:

      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.

Tex. Loc. Gov‘t. Code Ann. § 271.152 (West 2005). A ―[c]ontract subject to this

subchapter‖ is defined, in relevant part, as ―a written contract stating the essential

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

entity.‖ Id. § 271.151(2) (West 2005).

      Appellants argue that, even though Rembert used goods and services to

construct Auburn Drive, the Agreement is not a contract for ―goods or services‖

because it is ultimately a contract for the conveyance of improved real property. 4

But the Agreement involved more than the conveyance of improved real property,

and this distinction is illustrated by two supreme court opinions concerning the

provision of goods or services to a municipality by contract. See Kirby Lake Dev.,

Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829 (Tex. 2010); Ben Bolt-Palito



      4
        See, e.g., Brown Water Marine Serv., Inc. v. Aransas Cnty. Navigation Dist.
No. 1, No. 13-07-00055-CV, 2008 WL 1822727, at *2 n.1 (Tex. App.—Corpus
Christi Apr. 24, 2008, pet. denied) (mem. op.) (holding lease of property not goods
or services); Somerset Indep. Sch. Dist. v. Casias, No. 04-07-00829-CV, 2008 WL
1805533, at *3 (Tex. App.—San Antonio Apr. 23, 2008, pet. denied) (mem. op.)
(holding contract was one for the conveyance of land even though the seller was
required to perform environmental cleanup as a condition of closing).


                                          6
Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdiv. Prop./Cas. Joint Self-Ins.

Fund, 212 S.W.3d 320 (Tex. 2006).

      In Ben Bolt, ninety-two governmental entities formed an insurance fund to

provide casualty insurance to fund participants. See 212 S.W.3d at 322. Fund

members elected a governing board, and a board subcommittee resolved self-

insurance claim disputes. See id. at 327. The Fund argued that its immunity from

suit was not waived by local government code section 271.152 because no goods

or services were provided to the Fund under the insurance contract with a member

entity. See id. Disagreeing, the supreme court held that the Fund‘s immunity from

suit was waived because the members provided services to the Fund in that the

members elected the governing board whose subcommittee resolved claim

disputes. See id. Thus, in Ben Bolt, even though the service provided to the Fund

was not the primary purpose of the contract, the members‘ provision of claim

dispute services was sufficient to fall within the waiver of immunity under local

government code section 271.152. See id. at 327–28.

      In Kirby Lake, several developers entered into agreements with the Clear

Lake Water Authority. 320 S.W.3d at 832. The development agreements required

the developers to build water and sewer facilities and lease the facilities to the

Water Authority free of charge. Id. The court of appeals held that the developers‘

―agreement to hire third parties to construct the Facilities and to build the streets,

roads, and bridges‖ was ―sufficient to constitute the provision of services to the

[Water] Authority.‖ Clear Lake City Water Auth. v. Friendswood Dev. Co., Ltd., 256



                                          7
S.W.3d 735, 751 (Tex. App.—Houston [14th Dist.] 2008, pet. dism‘d) (op. on reh‘g).

Affirming and holding that the Water Authority‘s immunity from suit was waived by

section 271.152, the supreme court stated:

             We agree with the court of appeals that the Agreements entail
      services provided directly to the [Water] Authority. The Developers
      contracted to construct, develop, lease, and bear all risk of loss or
      damage to the facilities, obligations far more concrete than those at
      issue in Ben Bolt. We therefore hold that the Agreements contemplate
      the provision of services under the statute.

Kirby Lake, 320 S.W.3d at 839 (internal citation omitted).

      In this case, the Agreement required Rembert to ―construct Auburn Drive . . .

together with all related appurtenances in addition to all other facilities necessary to

serve the Property,‖ to ―acquire in fee simple all rights-of-way necessary for the

Right-Turn Lane,‖ to ―design and construct the Right-Turn Lane in accordance with

[Flower Mound]‘s engineering standards,‖ and to ―work with TxDOT and [Flower

Mound] to determine the proper location and alignment of the Right-Turn Lane.‖

Clearly, the Agreement required Rembert to provide services to Flower Mound in

the manner, at least, of constructing Auburn Drive; designing and constructing the

Right-Turn Lane; and working with TxDOT concerning the location, alignment,

design, and construction of the Right-Turn Lane. See id. at 839–40; Ben Bolt, 212

S.W.3d at 327–28; City of N. Richland Hills v. Home Town Urban Partners, Ltd.,

340 S.W.3d 900, 908–09 (Tex. App.—Fort Worth 2011, no pet.) (holding agreement

to hire third party contractors, among other things, constituted provision of services

to city); Wight Realty Interests, Ltd. v. City of Friendswood, 333 S.W.3d 792, 797

(Tex. App.—Houston [1st Dist.] 2010, no pet.); Friendswood Dev. Co., 256 S.W.3d


                                           8
at 751; see also City of San Antonio v. Lower Colo. River Auth., No. 03-10-00085-

CV, 2011 WL 3307509, at *3 (Tex. App.—Austin July 29, 2011, no pet.) (holding

contract was for goods or services because it required the water authority ―to

identify, pursue, and fund feasibility studies that subsequently became LCRA‘s

exclusive property‖).

      Appellants attempt to distinguish Ben Bolt, Kirby Lake, and other similar

cases by arguing that the contracts at issue in those cases differ from the contract

at issue here because the contract here is ―nothing more than a restatement of

independent obligations that Rembert must undertake under the Town‘s

development regulations as part of the land-development process.‖ However,

Appellants‘ argument requires a close examination of the merits of Rembert‘s

lawsuit beyond a review of Rembert‘s pleadings and the jurisdictional evidence, an

inquiry the supreme court has cautioned against. See Bland, 34 S.W.3d at 554.

Furthermore, Appellants‘ contention ignores one of the fundamental fact issues

underlying its dispute with Rembert, that is, whether the construction of Auburn

Drive was actually required by Flower Mound‘s ordinances. Appellants argue on

appeal and presented evidence to the trial court that Flower Mound‘s ordinances

required the construction of Auburn Drive, but Rembert argues on appeal and

pointed to other evidence in the trial court that the property already had existing

access to the north and south at the time Rembert purchased it. 5        Thus, one



      5
       Appellants argue that ―Rembert fails to distinguish between the existing road
conditions suitable for the existing Country Meadow Estates Mobile Home Park

                                         9
possibility is that the factfinder will determine that Flower Mound‘s ordinances did

not require the construction of Auburn Drive.6         Should that occur, then the

Agreement is not at all a memorialization of Flower Mound‘s ordinances.

Therefore, Appellants‘ contention that the Agreement merely memorialized

Rembert‘s development obligations under Flower Mound‘s ordinances cannot be

resolved in this pretrial plea to the jurisdiction proceeding. See generally Miranda,

133 S.W.3d at 227 (stating trial court cannot grant plea to jurisdiction if there is a

fact question concerning the jurisdictional issue).

      We hold, based on Rembert‘s third amended petition and the parties‘ plea to

the jurisdiction evidence, that local government code section 271.152 waives

Flower Mound‘s immunity from suit with regard to the Agreement because the

Agreement is a contract for the provision of services to Flower Mound within the

meaning of that statute. See Tex. Loc. Gov‘t Code Ann. §§ 271.151(2), .152; Kirby

Lake, 320 S.W.3d at 839–40; Ben Bolt, 212 S.W.3d 327–28; Home Town, 340

S.W.3d at 908–09; Friendswood Dev. Co., 256 S.W.3d at 751.               We overrule

Appellants‘ third issue.

              V. Declaratory Judgment and Individual Defendants

      Appellants contend in their first and fifth issues that the trial court did not

have subject-matter jurisdiction over Rembert‘s requested declarations because

located on the Property and the road access needed for the proposed 52-lot Casa
de Rembert residential subdivision.‖ But this is a question of fact for the factfinder.
      6
      We do not imply that the factfinder will or should make this determination
and note only that it is one possibility.


                                          10
they are nothing more than a restatement of Rembert‘s breach of contract claim

and because Jefferson and Springer have derivative immunity. Appellants argue in

part of their fourth issue that Rembert may not recover attorney‘s fees for

declaratory judgment claims over which the trial court did not have subject-matter

jurisdiction.   Because Appellants‘ first, fourth, and fifth issues are related, we

address them together.

A. Applicable Law

       The Declaratory Judgments Act contains a waiver of immunity from suit. See

Tex. Civ. Prac. & Rem. Code Ann. § 37.006(b) (West 2008); City of El Paso v.

Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). But this waiver is a limited one,

and determining whether a particular request for declaratory relief falls within this

waiver of immunity is often complicated.

       Immunity from suit is waived if a party joins a governmental entity and seeks

a declaration that an ordinance or statute is invalid, based on either constitutional or

nonconstitutional grounds. See Heinrich, 284 S.W.3d at 373 n.6; City of Elsa v.

M.A.L., 226 S.W.3d 390, 391–92 (Tex. 2007); Lakey v. Taylor, 278 S.W.3d 6, 15

(Tex. App.—Austin 2008, no pet.); see also City of Beaumont v. Bouillion, 896

S.W.2d 143, 148–49 (Tex. 1995). Likewise, immunity from suit is waived if a party

joins a governmental entity and seeks a declaration construing an ordinance or

statute. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d

628, 633–34 (Tex. 2010) (noting that governmental entities are to be joined in suits

to construe their legislative pronouncements and that immunity from suit is waived



                                           11
in such suits) (citing Heinrich, 284 S.W.3d at 373 n.6); Tex. Educ. Agency v.

Leeper, 893 S.W.2d 432, 445–46 (Tex. 1994) (stating that governmental entities

are   not    immune    from   suits   seeking   a   construction   of   their   legislative

pronouncements).       However, governmental immunity generally bars suits for

retrospective monetary relief, and private parties cannot circumvent a governmental

entity‘s immunity from suit by characterizing a suit for money damages as a

declaratory judgment claim. See Heinrich, 284 S.W.3d at 368–69, 371; see also

City of Houston v. Williams, 216 S.W.3d 827, 828–29 (Tex. 2007) (―The only injury

the retired firefighters allege has already occurred, leaving them with only one

plausible remedy—an award of money damages.               As they assert no right to

payments from the City in the future, they lack standing to seek a statutory

interpretation on behalf of those currently employed.‖). Therefore, if a litigant joins

a governmental entity and seeks an otherwise proper declaratory judgment

construing or invalidating a statute, the claim is nonetheless barred by

governmental immunity if the declaration sought would have the effect of

establishing a right to relief against the governmental entity for which governmental

immunity has not been waived. See Heinrich, 284 S.W.3d at 372; Williams, 216

S.W.3d at 828–29; State v. BP Am. Prod. Co., 290 S.W.3d 345, 360 (Tex. App.—

Austin 2009, pet. denied).      Furthermore, a party may not seek a declaratory

judgment ―only in an attempt to have the trial court decide its breach-of-contract

claim.‖     IT-Davy, 74 S.W.3d at 860 (holding that the limited waiver under the

Declaratory Judgment Act recognized in Leeper ―does not allow private parties to



                                           12
sue the State for money damages‖); see also City of Corinth v. NuRock Dev., Inc.,

293 S.W.3d 360, 368–69 (Tex. App.—Fort Worth 2009, no pet.) (holding that

immunity is not waived for a requested declaration that the plaintiff ―did not

materially breach the [contract] or otherwise fail to meet its obligations to the City‖).

      ―Private parties may seek declaratory relief against state officials who

allegedly act without legal or statutory authority[,]‖ but ―such suits are not suits

against the State‖ because ―suits to compel state officers to act within their official

capacity do not attempt to subject the State to liability.‖ IT-Davy, 74 S.W.3d at 855

(citations omitted). ―In contrast, declaratory-judgment suits against state officials

seeking to establish a contract‘s validity, to enforce performance under a contract,

or to impose contractual liabilities are suits against the State‖ and ―cannot be

maintained without legislative permission.‖ Id. at 855–56.

B. Discussion

      In its third amended petition, Rembert requested a judicial declaration that

the Impact Fee Act, the Agreement, and Flower Mound‘s ordinances required

Flower Mound to ―reimburse Rembert for 100% of the cost to construct Auburn

Drive‖ and that Flower Mound, ―Jefferson[,] and Springer had a ministerial

obligation to forward the sums owed to [Rembert], and their refusal to do so was

unauthorized and illegal.‖ However, Rembert similarly alleged in its third amended

petition that Flower Mound breached the Agreement and that Rembert is therefore

entitled to recover the amount Flower Mound owed it under the Agreement.




                                           13
Rembert‘s requested declarations merely recast Rembert‘s claim for breach of the

Agreement. See IT-Davy, 74 S.W.3d at 860; NuRock, 293 S.W.3d at 368–69.

        Rembert attempts to distinguish its declaratory judgment claim from its

breach of contract claim by arguing that a judicial interpretation of the Impact Fee

Act and Flower Mound ordinances is required to determine whether Flower Mound

is required to reimburse Rembert fifty or one hundred percent of the cost of

constructing Auburn Drive. ―But in every suit against a governmental entity for

money damages, a court must first determine the parties‘ contract or statutory

rights; if the sole purpose of such a declaration is to obtain a money judgment,

immunity is not waived.‖ Williams, 216 S.W.3d at 829 (citing IT-Davy, 74 S.W.3d at

860).    Thus, although the Declaratory Judgments Act typically waives immunity

when the construction of a statute or ordinance is involved, see First State Bank of

DeQueen, 325 S.W.3d at 633–34, the trial court in this case must construe the

Impact Fee Act, Flower Mound‘s ordinances, and the Agreement to determine

whether Flower Mound breached the Agreement.          Thus, Rembert‘s declaratory

judgment claim is merely a recast of its breach of contract claim, and immunity has

not been waived. See Williams, 216 S.W.3d at 829; IT-Davy, 74 S.W.3d at 860;

NuRock, 293 S.W.3d at 368–69.

        Rembert also contends that Flower Mound‘s immunity has been waived

because governmental entities must be joined in suits to construe their legislative

pronouncements. But as previously discussed, the construction of the ordinances

will occur as part of and is arguably dispositive of Rembert‘s breach of contract



                                        14
claim against Flower Mound, and Flower Mound is already a party to the case for

that purpose.     Furthermore, Rembert‘s reliance on City of Crowley v. Ray is

misplaced because that case involved a claim for liability against a third-party

engineer rather than the city; the city was a party only because the construction of

city documents was at issue and pertained to the engineer‘s potential liability. See

No. 02-09-00290-CV, 2010 WL 1006278, at *1, *5 (Tex. App.—Fort Worth Mar. 18,

2010, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a) (requiring

joinder of ―all persons who have or claim any interest that would be affected by the

declaration‖). We hold that the trial court erred by denying Appellants‘ plea to the

jurisdiction as to Rembert‘s request for a judicial declaration that the Impact Fee

Act, Flower Mound‘s ordinances, and the Agreement required Flower Mound to

―reimburse Rembert 100% of the cost to construct Auburn Drive.‖             We sustain

Appellants‘ first issue.

      Appellants further contend that because the trial court lacked subject-matter

jurisdiction over Rembert‘s claim for declaratory relief against it, the trial court also

lacked subject-matter jurisdiction over the claims against Jefferson and Springer.

Rembert, citing Heinrich, 284 S.W.3d at 378–79, responds that Jefferson and

Springer do not have immunity because the claim against them is based on their

alleged illegal conduct. Specifically, Rembert argues that Jefferson and Springer

had a ministerial duty to sign the check to Rembert for the additional amounts owed

and that ―[t]his situation is similar to the one in Heinrich where the individually

named defendants did not enjoy immunity where they refused to pay the individual



                                           15
plaintiff in accordance with the terms of the statute.‖ But the claim in Heinrich differs

from the claim against Jefferson and Springer in two significant ways.             First,

Heinrich alleged entitlement to future pension benefits and did not seek only a

retrospective remedy. See id. at 377 (holding claim for prospective benefits must

be against individual officials in their official capacity). Here, Rembert seeks only

retrospective relief in the form of reimbursement of the cost of constructing Auburn

Drive. Second, Heinrich‘s allegation involved a statutory rather than a contractual

duty. See id. at 369. ―[D]eclaratory-judgment suits against state officials ‗allegedly

act[ing] without legal or statutory authority‘‖ are permissible, but ―‗declaratory-

judgment suits against state officials seeking to establish a contract‘s validity, to

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

against the State‘‖ and are not permissible as ultra vires suits against individuals in

their official capacity. See id. at 371–72 (quoting IT-Davy, 74 S.W.3d at 855–56).

Here, Rembert‘s request for a declaration that Jefferson and Springer had a

ministerial duty to issue payment under the Impact Fee Act, the applicable

ordinances, and the Agreement is an impermissible recasting of Rembert‘s breach

of contract claim and another manner of seeking retrospective relief against Flower

Mound, and that claim must be brought against Flower Mound rather than the

individual officers. See id. at 371–72; IT-Davy, 74 S.W.3d at 855–56. We sustain

Appellants‘ fifth issue.

      Because we have held that the trial court did not have subject-matter

jurisdiction over Rembert‘s declaratory judgment claims, we also sustain the portion



                                           16
of Appellants‘ fourth issue relating to Rembert‘s claim for attorney‘s fees based on

its request for declaratory judgment. See Home Town, 340 S.W.3d at 913 (holding

party could not recover attorney‘s fees for prosecuting claims for which the city‘s

immunity had not been waived).

                             VI. Impact Fee Act Claim

      Appellants argue in their second issue and the remainder of their fourth issue

that the trial court did not have subject-matter jurisdiction over Rembert‘s Impact

Fee Act claim or Rembert‘s corresponding request for attorney‘s fees. However,

Rembert unequivocally pleaded in the trial court and asserted in its appellate brief

that it does not allege a claim under the Impact Fee Act, and we do not read

Rembert‘s third amended petition to assert a claim under the Impact Fee Act. 7

Instead, as we understand Rembert‘s pleading, the Impact Fee Act is relevant

because Appellants contend that the Impact Fee Act and Flower Mound‘s

ordinances limit Rembert‘s reimbursement to fifty percent. As discussed above,

that dispute will be resolved as part of Rembert‘s breach of contract claim. Thus,

we overrule Appellants‘ second issue and the remainder of their fourth issue. See

Tex. R. App. P. 47.1 (requiring appellate court to address ―every issue raised and

necessary to final disposition of the appeal‖).




      7
        Rembert pleaded in its third amended petition that it ―is not seeking an
impact fee refund under § 395.025, Tex. Loc. Govt. Code‖ and wrote in its appellate
brief that ―Rembert is not making a ‗claim‘ under Chapter 395.‖


                                          17
                           VII. Inverse Condemnation

      Rembert contends in its sole cross-issue that the trial court erred by granting

Appellants‘ plea to the jurisdiction as to Rembert‘s inverse condemnation claim.

A. Applicable Law

      A prohibition against taking private property for public use without just

compensation is set forth in article I, section 17 of the Texas constitution, which

provides that ―[n]o person‘s property shall be taken, damaged, or destroyed for or

applied to public use without adequate compensation being made, unless by the

consent of such person.‖     Tex. Const. art. I, § 17; see Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). Takings are classified as either

physical or regulatory. Mayhew, 964 S.W.2d at 933; Sefzik v. City of McKinney,

198 S.W.3d 884, 891 (Tex. App.—Dallas 2006, no pet.). A physical taking is an

unwarranted physical appropriation or invasion of the property.       Mayhew, 964

S.W.2d at 933. A compensable regulatory taking can occur when a governmental

entity imposes restrictions that either deny a property owner all economically viable

use of his property or unreasonably interfere with the owner‘s right to use and enjoy

the property. Id. at 935. A distinct category of regulatory taking occurs when the

government conditions the approval of a permit or some other type of governmental

approval on an exaction from the approval-seeking landowner.          See Lingle v.

Chevron U.S.A., Inc., 544 U.S. 528, 548, 125 S. Ct. 2074, 2087 (2005) (referring to

―land-use exaction‖ taking theory); Dolan v. City of Tigard, 512 U.S. 374, 377–80,

114 S. Ct. 2309, 2312–14 (1994) (permit to expand store and parking lot



                                         18
conditioned on dedication of portions of property for greenway and bicycle and

pedestrian pathway); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 827–28, 107 S.

Ct. 3141, 3143–44 (1987) (permit to build larger residence on beachfront property

conditioned on dedication of easement allowing public to traverse strip of property).

Specifically, an exaction occurs if a governmental entity requires an action by a

landowner as a condition to obtaining governmental approval of a requested land

development. Town of Flower Mound v. Stafford Estates, L.P., 71 S.W.3d 18, 30

(Tex. App.—Fort Worth 2002), aff’d, 135 S.W.3d 620, 630 (Tex. 2004) (citing Dolan,

512 U.S. at 377, 114 S. Ct. at 2312–13, and Nollan, 483 U.S. at 827, 107 S. Ct. at

3143).

      As stated by the supreme court in Stafford,

      conditioning government approval of a development of property on
      some exaction is a compensable taking unless the condition (1) bears
      an essential nexus to the substantial advancement of some legitimate
      government interest and (2) is roughly proportional to the projected
      impact of the proposed development.

Town of Flower Mound v. Stafford Estates, L.P., 135 S.W.3d 620, 634 (Tex. 2004).

B. Discussion

      In its third amended petition, Rembert alleged that ―the number of vehicular

trips from the houses in the Subdivision represent 5% or less of the capacity of the

roadways Rembert was required to construct by [Flower Mound],‖ that ―Rembert

was coerced into signing (and did not consent to) the boilerplate waiver and release

language to the extent [Flower Mound] was considering paying Rembert less than

100% of the Auburn Drive costs,‖ and that ―Rembert‘s understanding at the time the



                                         19
Agreement was signed was that Rembert would be reimbursed or credited 100% of

the roadway construction costs based on the express terms of the Agreement and

Chapter 42-78 of the [Flower Mound] Code.‖ Rembert also alleged as follows:

             In the alternative, the construction cost required of Rembert for
      roadways related to the Subdivision does not meet the proportionality
      requirement for an exaction under Article I, Section 17 of the Texas
      Constitution. Rembert is entitled to recover from [Flower Mound] the
      total street construction costs incurred by Rembert related to the
      Subdivision (or at a minimum, 95% of the cost). [Flower Mound] does
      not enjoy immunity from constitutional violations for illegal exactions.

      Under facts very similar to this case, the supreme court held in Stafford that

Flower Mound was required to compensate Stafford for the cost of rebuilding a road

abutting but not within Stafford‘s development. See id. at 645. Flower Mound, as a

condition of its approval of the plats for the second and third phases of Stafford‘s

development, required Stafford to rebuild the asphalt road next to the development.

Id. at 623. Stafford objected, rebuilt the road as Flower Mound required, and sued

Flower Mound for compensation. Id. at 624. After a lengthy discussion of the

United States Supreme Court‘s opinions in Nollan and Dolan and after rejecting

Flower Mound‘s attempts to distinguish those cases, the Stafford Court agreed that

Flower Mound advanced legitimate government interests—such as the safety and

durability of the road—by requiring Stafford to rebuild the road. Id. at 643–44.

However, the court also held that Flower Mound failed to show that the required

rebuild of the road bore ―any relationship to the impact of the Stafford Estates




                                        20
development on the road itself or on the Town‘s roadway system as a whole.‖ 8 Id.

at 645. The Court concluded,

              On this record, conditioning development on rebuilding Simmons
       Road with concrete and making other changes was simply a way for
       the Town to extract from Stafford a benefit to which the Town was not
       entitled. The exaction the Town imposed was a taking for which
       Stafford is entitled to be compensated.

Id.   Relying on Stafford, Rembert argues that the trial court erred by granting

Appellants‘ plea to the jurisdiction as to its inverse condemnation claim.

       Appellants argue that Stafford is distinguishable because it ―involved an off-

site road improvement obligation, not an internal subdivision road.‖ But Appellants

omit that Flower Mound required Rembert to not only build Auburn Road to connect

F.M. 1171 and Peters Colony Road but also to acquire the land necessary to do so

in the manner that Flower Mound required instead of permitting Rembert to build

two points of egress on the land it already owned and that abutted those two roads.

In other words, Flower Mound‘s requirement that Rembert acquire additional land

and construct Auburn Drive is not ―the garden-variety on-site requirement‖ that

Appellants contend it to be.

       In a further attempt to distinguish Stafford, Appellants argue that the evidence

that the development‘s use of Auburn Drive will not exceed five percent of its

capacity is not evidence of how much traffic from the development will use Auburn

Drive now or in the future.         Appellants posit that the development could


       8
       Stafford had offered evidence that its development would increase traffic on
the road by only about eighteen percent. Id. at 644.


                                          21
hypothetically account for seventy-five percent of the traffic on Auburn Drive but still

account for less than five percent of Auburn Drive‘s capacity. But Appellants ignore

other evidence in the record that, combined with the five percent capacity evidence,

presents an issue for the factfinder. For example, there is evidence that Auburn

Drive was a fee-impact eligible road and that Flower Mound ―anticipated that the

construction of Auburn Drive would likely be necessary within the upcoming 10-year

window as a roadway improvement.‖ While this certainly did not guarantee that

Flower Mound would in fact build Auburn Drive, this evidence, combined with the

evidence that the development would use only five percent or less of Auburn

Drive‘s capacity, presents a fact question on the proportionality prong of Rembert‘s

takings claim.9 See id. In other words, the factfinder must determine whether

Flower Mound took advantage of Rembert‘s request to develop the property and

exacted a benefit to which it was not entitled by requiring that Rembert construct

Auburn Drive.

      Appellants also argue that the trial court properly dismissed Rembert‘s

takings claim because Rembert consented to the alleged taking. A landowner may

consent to property being taken or damaged without payment of any compensation.

Tex. Const. art. I, § 17; Hale v. Lavaca Cnty. Flood Control Dist., 344 S.W.2d 245,

248 (Tex. Civ. App.—Houston 1961, no writ). Consent is an act of the will; it need



      9
       The parties do not dispute that the construction of Auburn Drive served
legitimate government interests, the first prong of the takings analysis. See id. at
634.


                                          22
not be written but may be spoken, acted, or implied. Hightower v. City of Tyler, 134

S.W.2d 404, 407 (Tex. Civ. App.—El Paso 1939, writ ref‘d).

      To support their consent argument, Appellants quote language in the

Agreement that purports to waive any takings claims, points to e-mails it contends

show that Rembert understood all along that his total reimbursement would not

exceed fifty percent of the cost of constructing Auburn Drive, and argues that

Rembert never objected to the condition that it construct Auburn Drive. The e-

mails, however, all post date the first development agreement, and nothing in the e-

mails confirms Rembert‘s supposed understanding or consent to Appellants‘

contention that total reimbursement could not exceed fifty percent of the

construction cost.    To the contrary, each e-mail to or from Rembert can be

construed to speak separately about impact fee credits—which are capped at fifty

percent of total cost—and reimbursement—which may or may not be capped at fifty

percent of total cost.10 Moreover, Rembert contends that it did not consent to any

taking and that it never understood or read the Agreement to waive or otherwise

preclude its ability to recover up to 100% of the construction cost. And Rembert

presented evidence to support these contentions. Specifically, Reginald Rembert‘s

affidavit in opposition to the plea to the jurisdiction states that ―Rembert‘s intent and

understanding at the time the Agreement was signed was that [Flower Mound]

would pay Rembert the difference between the Auburn Drive construction cost

      10
       Some of the e-mails do support Appellants‘ contention that all
reimbursement to Rembert could not exceed fifty percent of the construction cost,
but Rembert was not a sender or recipient of those e-mails.


                                           23
minus the total amount of roadway impact fees in the Subdivision.‖ The affidavit

also explains Rembert‘s interpretation of Flower Mound‘s reimbursement obligation

under the Agreement and states that ―[b]ecause Rembert was to be reimbursed for

100% of its costs to construct Auburn Drive pursuant to the express terms of the

Agreement, there were no constitutional or inverse condemnation claims for

Rembert to waive at that time.‖ And based on this evidence, there is a question of

fact as to whether Rembert consented to the alleged taking.           See generally

Miranda, 133 S.W.3d at 227 (stating trial court cannot grant plea to jurisdiction if

there is a fact question concerning the jurisdictional issue). Compare Stafford, 135

S.W.3d at 624 (stating developer objected ―at every administrative level‖), with

Rischon Dev. Corp. v. City of Keller, 242 S.W.3d 161, 168–69 (Tex. App.—Fort

Worth 2007, pet. denied) (affirming judgment that developer consented to

conditions imposed by not objecting before signing development agreement). 11

      Finally, Appellants contend that Flower Mound did not have the requisite

intent required to support a takings claim because a breach of contract cannot

result in a taking. We disagree for two reasons. First, Rembert clearly pleaded its

inverse condemnation claim in the alternative to its breach of contract claim. See

Tex. R. Civ. P. 48 (permitting parties to plead alternative, inconsistent claims for

relief). Should the trial court determine that the Agreement and Flower Mound‘s


      11
        Also, we note that neither Stafford nor Rischon was decided after a pretrial
plea to the jurisdiction and that Appellants resisted responding to discovery in this
case before the trial court ruled on its plea to the jurisdiction. See Stafford, 135
S.W.3d at 624; Rischon, 242 S.W.3d at 166.


                                         24
ordinances required Flower Mound to reimburse Rembert only fifty percent of the

Auburn Drive construction cost, Rembert‘s inverse condemnation claim would not

rely on the Agreement as a basis of liability. See generally Sefzik, 198 S.W.3d at

896 (affirming denial of summary judgment on takings claim based on condition city

placed on development approval because claim not based on contract). In other

words, Rembert‘s takings claim, because it is pleaded in the alternative to its

breach of contract claim, is not dependent upon Flower Mound‘s alleged breach of

contract.

      Second, the cases upon which Appellants rely are distinguishable.             For

example, the claimants in Kirby Lake contractually agreed that the Water Authority

could use the facilities for free until the Water Authority purchased the facilities and

thus could not claim that the Water Authority‘s use of the facilities constituted a

taking. See 320 S.W.3d at 844. In Gen. Servs. Commiss’n v. Little-Tex Insulation

Co., 39 S.W.3d 591, 593–94, 598–99 (Tex. 2001), the claimant constructed a

recreational facility for Texas A&M University and contended that by not paying

additional amounts under the contract, the school had taken the claimant‘s ―labor

and materials to build an athletic facility for use as part of its public university.‖

Finally, in NuRock, NuRock settled a federal lawsuit against the City of Corinth and

agreed as part of the settlement to make improvements to a specified road. See

293 S.W.3d at 367. The claimants in each case attempted inverse condemnation

claims based only on contractual obligations.




                                          25
         Here, there is evidence, some of it conflicting, that the construction of Auburn

Drive may or may not have been required by Flower Mound‘s ordinances, that

Flower Mound conditioned approval of Rembert‘s development on Rembert‘s

construction of Auburn Drive, that only then did the parties enter into a development

agreement, and that Rembert never consented to building Auburn Drive without

receiving full reimbursement. Should Appellants prevail on their contention that the

Agreement and Flower Mound‘s ordinances limit Rembert‘s reimbursement to fifty

percent, Rembert should be permitted to proceed on its alternative claim that

Flower Mound‘s ordinances and resulting development condition constituted a

compensable taking. See generally Stafford, 135 S.W.3d at 645. Of course, if

Rembert is found after a trial on the merits to have consented to receiving only fifty

percent reimbursement (or if another defense to Rembert‘s alternative claim for a

compensable taking bars Rembert‘s recovery), Rembert could not prevail on its

takings claim. Thus, our holding should not be construed (as Appellants contend in

their motion for rehearing) to mean that a party may consent via contract to a

defined reimbursement and also seek the remainder of the cost through a takings

claim.

         On this record, given the conflicting evidence and the alternative nature of

Rembert‘s inverse condemnation claim, we hold that the trial court erred by granting

Appellants‘ plea to the jurisdiction as to Rembert‘s alternatively pleaded inverse

condemnation claim. See Tex. R. Civ. P. 48; see also Stafford, 135 S.W.3d at 645;

Miranda, 133 S.W.3d at 227. We sustain Rembert‘s sole cross-issue.



                                            26
                                   VIII. Conclusion

      Having overruled Appellants‘ second and third issues and part of their fourth

issue, we affirm in part the trial court‘s denial of Appellants‘ plea to the jurisdiction.

Having sustained Rembert‘s sole cross-issue, we reverse the part of the trial court‘s

order that granted Appellants‘ plea to the jurisdiction as to Rembert‘s inverse

condemnation claim. Finally, having sustained Appellants‘ first and fifth issues and

part of their fourth issue, we reverse in part the trial court‘s order denying

Appellants‘ plea to the jurisdiction and dismiss for lack of subject-matter jurisdiction

Rembert‘s request for judicial declarations and request for attorney‘s fees based on

that claim. We remand the case to the trial court for further proceedings consistent

with this opinion.




                                                     ANNE GARDNER
                                                     JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: March 1, 2012




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