                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-08-156-CV


DALLAS AREA RAPID TRANSIT                                           APPELLANT

                                        V.

AGENT SYSTEMS, INC.                                                   APPELLEE

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           FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Dallas Area Rapid Transit (DART) appeals the denial of its plea

to the jurisdiction, complaining that the trial court did not have subject matter

jurisdiction over claims brought by Appellee Agent Systems, Inc. (Agent). We

reverse and remand.



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          … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      Agent had a contract with DART and the Fort Worth Transportation

Authority (the T) to supply fare boxes for their public transportation vehicles.

After a dispute arose between the parties, DART and the T terminated the

contract for default. Litigation then ensued between the parties over whether

the termination was actually one for convenience instead of for default.2

      An administrative law judge found that the termination was for

convenience, but he also denied Agent any additional payments under the

contract. Agent filed suit, asserting claims for declaratory judgment, breach of

contract, breach of the implied covenant of cooperation, economic duress, and

breach of the duty of good faith and fair dealing. DART filed a motion for

summary judgment and then a plea to the jurisdiction, both of which were

denied. The denial of the latter prompted this interlocutory appeal by DART.

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008).

                           III. Standard of Review


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       … The parties’ contract contains different provisions that govern in the
event of a termination for convenience or a termination for default. Under a
termination for convenience, the contractor must be paid its costs, including
contract close-out costs, and profit on work performed up to the time of
termination. Under a termination for default, however, Agent would recover
only the contract price for conforming goods, materials, or supplies delivered
and accepted or the actual value of work completed or services performed up
to the time of termination.

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      We review de novo the denial of a plea to the jurisdiction. See Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to

the jurisdiction is a dilatory plea; its purpose is to defeat a cause of action

without regard to whether the claims asserted have merit. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The purpose of a dilatory plea

is not to force the plaintiff to preview its case on the merits but to establish a

reason why the merits of the plaintiff’s claims should never be reached. 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 case’s merits. Id.

Accordingly, to determine whether jurisdiction exists, we construe the pleadings

liberally in favor of the plaintiff and look to the pleader’s intent. See Miranda,

133 S.W.3d at 226.

                             IV. Declaratory Relief

      In its first issue, DART argues that the trial court did not have subject

matter jurisdiction over Agent’s claim for declaratory relief because attorney’s

fees are not otherwise recoverable by Agent in its claim against a governmental

entity such as DART.

      In its first amended petition, Agent sought relief under the Uniform

Declaratory Judgments Act (UDJA), requesting “that the Court affirm the

agencies’ determination that the attempted ‘termination for default’ by

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Defendants was a ‘termination for convenience’ and to further construe the

agreement to determine the obligations of Defendants under the termination for

convenience.” 3 Agent then also requested attorney’s fees and costs under the

UDJA. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). Under

the heading “Breach of Contract,” Agent claimed that DART had not performed

its obligations under the contract because of its “failure to pay funds due under

the termination claims of Agent.” A clear reading of Agent’s first amended

petition reveals that Agent alleged that DART breached the contract by

denominating the termination as one of “default” instead of “convenience” and

then by failing to comply with the “convenience” provisions.

      It is axiomatic that attorney’s fees are recoverable only by statute or

contract. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999). The

contract in question does not allow for the recovery of attorney’s fees, and

section 38.001 of the civil practice and remedies code, the statutory vehicle for

recovery of attorney’s fees for breach of contract, is inapplicable to DART. See

Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008) (providing that a




      3
       … A plaintiff’s amended petition supersedes the original petition. See
Tex. R. Civ. P. 65; see also FKM P’ship, Ltd. v. Bd. of Regents of Univ. of
Houston Sys., 255 S.W .3d 619, 633 (Tex. 2008) (stating that “[o]ur rules
provide that amended pleadings and their contents take the place of prior
pleadings”).

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person may recover attorney’s fees from “an individual or corporation”); Dallas

Area Rapid Transit v. Plummer, 841 S.W.2d 870, 875 (Tex. App.—Dallas

1992, writ denied) (op. on reh’g) (stating that DART, as a governmental entity,

is neither an individual nor a corporation), abrogated on other grounds by Tex.

Educ. Agency v. Leeper, 893 S.W .2d 432 (Tex. 1995); see also City of

Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 360 n.6 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (applying same rule to municipality).

Hence, Agent is not entitled to attorney’s fees unless it can find another horse

to ride.

      Agent attempts to mount the UDJA. See Tex. Civ. Prac. & Rem. Code

Ann. § 37.009 (providing that a court may award reasonable and necessary

attorney’s fees in a declaratory judgment proceeding). However, a party may

not use section 37.009 for the sole purpose of obtaining attorney’s fees. City

of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex.

App.—Houston [14th Dist.] 2004, no pet.). More specifically, a party may not

use a declaratory judgment action to seek the same relief afforded under

another of its causes of action in an effort to obtain otherwise impermissible

attorney’s fees. Id.; see also U.S. Bank, N.A. v. Prestige Ford Garland Ltd.

P’ship, 170 S.W.3d 272, 278 (Tex. App.—Dallas 2005, no pet.) (stating that

“[o]rdinarily declaratory relief will not be granted when the cause of action has

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fully matured and invokes a present remedy at law”); Kenneth Leventhal & Co.

v. Reeves, 978 S.W.2d 253, 258–59 (Tex. App.—Houston [14th Dist.] 1998,

no pet.) (stating that “[o]nce Reeves pleaded breach of contract, he had no

need for declaratory relief. Under such circumstance, a pleading for declaratory

relief will not lie”).

       Furthermore, a declaratory plea may not be coupled to a damage action

simply in order to pave the way to recover attorney’s fees. Cytogenix, Inc. v.

Waldroff, 213 S.W .3d 479, 490 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied); Hartford Cas. Ins. v. Budget Rent-A-Car, 796 S.W.2d 763, 772 (Tex.

App.—Dallas 1990, writ denied).        Therefore, it is apparent that Agent’s

declaratory judgment thoroughbred will not leave the starting gate, as Agent’s

only real purpose is to obtain damages that an already existing breach of

contract claim would entitle it to and to obtain attorney’s fees to which it is not

otherwise entitled. We sustain DART’s first issue.

                          V. Breach of Contract Claim

       In its second issue, DART asserts that the trial court lacked subject

matter jurisdiction over Agent’s breach of contract claim. However, the parties’

contract and Agent’s first amended petition dispel this argument.

       In its first amended petition, Agent asserted a claim under subchapter

271 of the local government code when it stated that sections 271.151 and

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271.152 of the local government code provide a waiver of immunity with

regard to its breach of contract claim.          These sections, which apply

retroactively, waive a “local governmental entity’s” sovereign immunity to suit

for contracts entered for goods and services—“local governmental entity” is the

very status upon which DART rests its plea to the jurisdiction.4 See Tex. Loc.

Gov’t Code Ann. §§ 271.151–.152 (Vernon 2005); Paula Constr., Inc. v. City

of Lytle, 220 S.W.3d 16, 18–19 (Tex. App.—San Antonio 2006, no pet.) (op.

on reh’g) (applying section 271.151 retroactively); see also Ben Bolt-Palito

Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint

Self-Ins. Fund, 212 S.W.3d 320, 328 (Tex. 2006) (applying section 271.152’s




      4
         … Governmental immunity has two components: immunity from liability
and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.
2006). Immunity from suit bars suit against the entity altogether. Id. When
a governmental entity enters into a contract, that entity waives immunity from
liability and voluntarily binds itself, just as any other party would, to the terms
of the contract, but that entity does not thereby waive immunity from suit. Id.
For there to be a waiver of immunity from suit in the contract-claim context,
the legislature must have waived immunity from suit as to the claim in question
by clear and unambiguous language. See Tex. Gov’t Code Ann. § 311.034
(Vernon Supp. 2008) (providing that a statute shall not be construed as a
waiver of sovereign immunity unless the waiver is effected by clear and
unambiguous language); Tooke, 197 S.W.3d at 332–33 (requiring clear and
unambiguous language to waive governmental immunity). Section 271.152 of
the local government code contains an express waiver of immunity from suit for
some contract claims. See Clear Lake City Water Auth. v. Friendswood Dev.
Co., 256 S.W.3d 735, 746–47, 751 (Tex. App.—Houston [14th Dist.] 2008,
pet. filed) (holding that contract to provide services fell under subchapter 271).

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statutory waiver to insurance claim dispute). It is undisputed that the contract

at issue here stated all essential terms, involved the provision of goods or

services, and was properly executed by DART. See Tex. Loc. Gov’t Code Ann.

§ 271.151.       Instead, DART argues that because the contractual dispute

resolution procedures do not conflict with subchapter 271, its immunity is not

waived. In light of the contract’s language, however, this argument must fail.

       In the parties’ contract, section 13(b) of the Fort Worth Transportation

A u th o rity   G eneral   Term s    and     C onditions,    title d   “ C o n t ra c t

Disputes/Breaches/Damages,” states

       [b]y submission of a bid, proposal, offer, or quotation in response
       to this solicitation, the Contractor or offeror agrees to exhaust its
       administrative remedies under Chapter 10 of the Authority’s
       Procurement Regulations or the Disputes Clause of any resulting
       contract prior to seeking judicial relief of any type in connection
       with any matter related to this solicitation, the award of any
       contract, and any dispute under any resulting contract. [Emphasis
       added.]

       DART points to Rule of Practice 28 of the T’s regulations under which the

contract was formed, which states that “[s]ubject only to reconsideration under

Rule 29, the decisions will be final and not subject to review or modification by

the Authority’s Executive Committee.” However, the same rule goes on to

state that “[t]he failure to file a motion for reconsideration shall not be an

impediment to either appellant or respondent seeking judicial review of an


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Administrative Judge’s decision under the standard of review permitted by the

Disputes Clause.”

         Because the contract in question does not prohibit subsequent judicial

relief, and because the contract itself appears to fall under subchapter 271 of

the local government code, we need not address DART’s remaining arguments

under this issue.5 See Tex. R. App. P. 47.1. We overrule DART’s second

issue.

                                   VI. Tort Claims

         In its third issue, DART asserts that the trial court did not have subject

matter jurisdiction over Agent’s tort claims. DART is correct.

         A governmental unit is immune from tort liability unless the legislature has

waived immunity. City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366,

372 (Tex. App.—Fort Worth 2001, no pet.).             The Texas Tort Claims Act

(TTCA) provides for a limited waiver of governmental immunity in specific




         5
       … We need not address Agent’s contention that by contracting, DART
waived its immunity under the “sue and be sued” language under chapter 452
of the transportation code. See, e.g., Metro. Transit Auth. v. M.E.B., Eng’g,
Inc., 201 S.W.3d 692, 692–93 (Tex. 2006) (applying similar provision to hold
that there was no waiver); Tooke, 197 S.W.3d at 341–42.

                                           9
circumstances, and the extent of the waiver of immunity is set out in section

101.021 of the TTCA.6 Id.

      Agent’s tort causes of action do not fall within the TTCA’s limited waiver

of immunity, so Agent can assert these claims against DART only if the

legislature has expressly granted consent to sue. See Tex. Dep’t of Transp. v.

Jones, 8 S.W.3d 636, 638 (Tex. 1999).            Neither the record nor Agent’s

pleadings demonstrate that the legislature has given consent to suit on these

claims. See id. (stating that a party can establish consent by reference to a

statute or to express legislative permission). Therefore, the trial court lacks




      6
          … Section 101.021 provides that a governmental unit is liable for:

      (1) property damage, personal injury, and death proximately caused
      by the wrongful act or omission or the negligence of an employee
      acting within his scope of employment if:

               (A) the property damage, personal injury, or death arises from
               the operation or use of a motor-driven vehicle or motor-driven
               equipment; and

               (B) the employee would be personally liable to the claimant
               according to Texas law; and

      (2) personal injury and death so caused by a condition or use of
      tangible personal or real property if the governmental unit would,
      were it a private person, be liable to the claimant according to
      Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2005).

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subject matter jurisdiction over the tort claims.   See id.   Accordingly, we

sustain DART’s third issue.

                               VII. Conclusion

      Having sustained DART’s first and third issues and having overruled its

second issue, we reverse and remand the judgment of the trial court for further

proceedings consistent with this opinion.


                                            BOB MCCOY
                                            JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

LIVINGSTON, J. concurs without opinion.

DELIVERED: November 20, 2008




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