Creekstone Community Association, Inc. v. Houston Housing Authority, Individually and D/B/A/ Housing Authority of the City of Houston

Opinion issued December 16, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00984-CV

———————————

Creekstone Community Assn., Inc. , Appellant

V.

Houston

Housing Authority, Individually and DBA Housing Authority of the City of

Houston , Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Case No. 2007-75007

MEMORANDUM OPINION

Appellant,

the Creekstone Community Association (“Creekstone”), appeals the trial court’s

interlocutory order granting the Houston Housing Authority’s (“the Authority”)

plea to the jurisdiction. See Tex.

Civ. Prac. & Rem. Code § 51.014(a)(8). In its sole issue, Creekstone contends the

trial court erred in granting the Authority’s plea to the jurisdiction.

We

affirm.

BACKGROUND

The Authority is a governmental

entity organized pursuant to Chapter 392 of the Texas Local Government Code. [1] In September 1988, the Authority purchased

real property (“the property”) from the United States Department of Housing and

Urban Development (“HUD”). The property

is the subject of this suit and is located in Katy, Texas in the Creekstone

Section One Subdivision (“the Subdivision”).

Creekstone is the homeowners’ association that governs the Subdivision.

In December 2007, Creekstone

brought suit against the Authority seeking permanent injunctive relief. In its petition, Creekstone alleged that the

property was subject to particular covenants outlined in a Declaration of

Covenants filed at the Property Records of Harris County. It alleged that when the Authority bought the

property, it executed a special warranty deed that stated the Authority took

the property “subject to and as affected by [ ] all covenants, easements,

restrictions, conditions and rights appearing in the record.” It further alleged that the Authority had

failed to maintain the property in accordance with these covenants and that it

had, therefore, breached the Declaration of Covenants. In addition to permanent injunctive relief,

Creekstone sought attorney’s fees and costs of court, civil damages pursuant to

section 202.004(c) of the Texas Property Code, [2] and post judgment

interest.

The Authority responded to

Creekstone by asserting the affirmative defense of governmental immunity in its

First Amended Original Answer and Affirmative Defenses. The Authority filed a plea to the

jurisdiction asserting that the trial court lacked subject-matter jurisdiction to

adjudicate Creekstone’s claims because it had governmental immunity from suit

and liability. It further asserted that

Creekstone had failed to identify a statutory waiver of the Authority’s

immunity from suit that would vest the trial court with subject-matter

jurisdiction.

On April 30, 2009, the trial court

held an oral hearing regarding the Authority’s plea to the jurisdiction. During the oral hearing, the trial court

ordered Creekstone to file a response to the Authority’s plea by close of

business on May 12, 2009. Creekstone did

not respond by May 12, and on May 13, the trial court granted the Authority’s

plea to the jurisdiction, dismissing the case in its entirety for lack of

subject-matter jurisdiction. Creekstone

subsequently filed its response to the Authority’s plea on May 14.

Creekstone filed a motion for new

trial. It asserted the trial court

should grant a new trial because there was no evidence before the trial court

to demonstrate that the Authority was a governmental entity and Creekstone had

not been given an opportunity to amend its petition so it could plead and prove

waiver of immunity. The trial court

granted Creekstone’s motion for new trial and withdrew its May 13 order.

The trial court then reconsidered

Creekstone’s response to the Authority’s plea to the jurisdiction. In Creekstone’s response, it asserted that

its own pleadings did not provide a basis for concluding that the Authority was

a governmental entity. Next, it asserted

that chapter 271 of the Texas Government Code provided an explicit waiver of

governmental immunity for governmental entities that entered into contracts for

services, and that, even if the Authority was a governmental entity, it had

waived immunity from suit by executing the special warranty deed that it

contended was a contract for services.

On July 27th, the trial court again

granted the Authority’s plea to the jurisdiction and dismissed Creekstone’s

suit for lack of subject-matter jurisdiction.

The Order made the following findings of fact and conclusions of law:

(1) As demonstrated by [the Authority’s]

affidavit and by the Court taking judicial notice, [the Authority] is a

governmental entity organized pursuant to Chapter 392 of the Texas Local

Government Code.

(2) Governmental immunity protects [the

Authority] from suit and liability unless immunity has been waived by clear and

unambiguous statutory language.

(3) The limited waiver of immunity from suit

contained in Section 271.152 of the Texas Local Government Code does not apply

to [the Authority’s] purchase of the real property at issue by special warranty

deed.

(4)

[Creekstone] and [the Authority] did

not enter into a contract as that term is defined by Section 271.151(2) of the

Texas Local Government Code; thus, the limited waiver of immunity from suit

contained in Section 271.152 of the Texas Local Government Code does not apply.

(5) A restrictive covenant is not a contract as

that term is defined by Section 271.151(2) of the Texas Local Government code;

thus, the limited waiver of immunity from suit contained in Section 271.152 of

the Texas Local Government code does not apply to [Creekstone’s] Declaration of

Covenants, Conditions and Restrictions (the restrictive covenants).

(6) [The Authority] did not waive its immunity

to suit and liability for any of [Creekstone’s] claims.

(7)

This Court is without subject-matter

jurisdiction to adjudicate any of [Creekstone’s] claims against [the

Authority].

After the trial court signed its order, Creekstone

filed a second motion for new trial.

Creekstone’s second motion for new trial was overruled by operation of

law.

THE AUTHORITY’S PLEA TO THE JURISDICTION

On appeal, Creekstone does not

raise a point of error regarding the trial court’s order. However, the rules of appellate procedure and

applicable case law require us to construe briefing rules liberally. See Republic

Underwriters Ins. Co. v. Mex-Tex, Inc. , 150 S.W.3d 423, 427 (Tex. 2004); see also Tex. R. App. P. 38.9.

Although not assigned as a specific issue, Creekstone raised in its

brief the contention that the “[Authority] is not entitled to immunity from

suit with regard to [its] claims.” We

interpret Creekstone’s argument as contending the trial court erred in granting

the Authority’s plea to the jurisdiction because it was not entitled to

immunity from suit with regard to Creekstone’s claims.

A. Standard of

Review

Subject-matter jurisdiction is an

essential prerequisite to a court’s authority to resolve a suit. See

Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636, 637 (Tex. 1999). In a suit against a governmental entity, it

is the plaintiff’s burden to affirmatively demonstrate the court’s

subject-matter jurisdiction by alleging a valid waiver of immunity. DART v.

Whitley , 104 S.W.3d 540, 542 (Tex. 2003).

Unless a plaintiff meets his burden of establishing the court’s

jurisdiction, the court is without power to hear a case. See id.

at 543, 544 .

Governmental immunity from suit is

properly asserted in a plea to the jurisdiction. See

Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217 , 225–26 (Tex.

2004). In filing a plea to the

jurisdiction, a litigant challenges the trial court’s subject-matter

jurisdiction. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). In order to prevail, the party asserting the

plea must show that, even if all the allegations in the plaintiff’s pleadings

are taken as true, there is an incurable jurisdictional defect apparent from

the face of the pleadings, rendering it impossible for the plaintiff’s petition

to confer jurisdiction on the trial court.

Rylander v. Caldwell , 23

S.W.3d 132, 135 (Tex. App.—Austin 2000, no pet.).

Because subject-matter jurisdiction

is a question of law, we conduct a de novo review of the trial court’s ruling

on the plea. See Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). Upon review, we consider the pleadings and

the evidence pertinent to the jurisdictional inquiry. County

of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002). We do not consider the merits of the case; our

jurisdiction is limited to reviewing the grant or denial of the plea to the

jurisdiction that was filed. Id. ; see

also Tex. Civ. Prac. & Rem. Code

Ann. § 51.014(a)(8) (Vernon Supp. 2010); First Trade Union Sav. Bank , 133 S.W.3d at 686–87; Brenham Hous. Auth. v. Davies , 158

S.W.3d 53, 61 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We do not have jurisdiction to consider

grounds outside those raised in the plea to the jurisdiction. First

Trade Union Sav. Bank , 133 S.W.3d at 687 ; Davies , 158 S.W.3d at 61 .

B. Immunity

Governmental

immunity has two components: immunity from suit and immunity from

liability. Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit bars suit against a

government entity altogether. Id.

When a political subdivision of the state is immune from suit under the

doctrine of governmental immunity, a court lacks subject-matter jurisdiction

over the suit. Tex. Dep’t of Transp. , 8 S.W.3d at 638 . Immunity from suit can be waived only by

statute or legislative resolution. Federal Sign v. Tex. So. Univ. , 951

S.W.2d 401, 405 (Tex. 1997).

Immunity from liability protects

government agencies and officials from judgment even if immunity from suit has

been waived. Tex. Dep’t of Transp. , 8 S.W.3d at 638 . A governmental unit waives its immunity from

liability when it contracts with a private citizen. See

Federal Sign , 951 S.W.2d at 408 .

C. Statutory

Interpretation

We review the trial court’s

interpretation of applicable statutes de novo. See Johnson

v. City of Fort Worth , 774 S.W.2d 653 , 655–56 (Tex. 1989). In our review, we look to pertinent

legislative enactments to determine the extent to which immunity has been

voluntarily relinquished. See Mission Consol. Indep. Sch. Dist. v.

Garcia , 253 S.W.3d 653, 655 (Tex. 2008). We interpret statutory waivers of immunity

narrowly, as the Legislature’s intent to waive immunity must be clear and

unambiguous. Id. ; see also Tex. Gov’t Code Ann. § 311.034

(Vernon Supp. 2010) (“[A] statute shall not be construed as a waiver of

sovereign immunity unless the waiver is effected by clear and unambiguous

language.”). Use of words like “sue and

be sued,” as found in statutes such as section 392.065(1) of the Local

Government Code, are not words in and of themselves that waive immunity from

suit. See Tooke , 197 S.W.3d at 328–29; see also Tex. Loc. Gov’t

Code Ann. § 392.065(1) (Vernon 2005) (“A[] [housing] authority may:

(1) sue and be sued.”).

In construing a statute, our

objective is to determine and give effect to the Legislature’s intent. See Nat’l

Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent

from language the Legislature used in the statute and not look to extraneous

matters for an intent the statute does not state. Id. If the meaning of the statutory language is

unambiguous, we adopt the interpretation supported by the plain meaning of the

provision’s words. St. Luke’s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997).

We must not engage in a forced or

strained construction; instead, we must yield to the plain sense of the words

the Legislature chose. See id.

D. Analysis

In its Original Petition for

Permanent Injunction, Creekstone asserted that the Authority had substantially

breached the Declaration of Covenants.

In its response to the Authority’s plea to the jurisdiction, Creekstone

also asserted the Authority had waived immunity because it “entered into

written contracts pursuant to the authority of Chapter 271 in the form of both

the Special Warranty Deed and the Declaration [of Covenants].”

Section 271.152 of the Texas Local Government

Code provides for a limited waiver of immunity from suit as to certain contract

claims:

A local government 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 purposes of adjudicating a claim for breach of

contract, subject to the terms and conditions of this subchapter.

Tex. Loc. Gov. Code Ann. § 271.152

(Vernon 2005). For the entity to waive

immunity from suit as to contract claims under section 271.152, the following

statutory criteria must be satisfied:

(1) the entity must be “[a]

local governmental entity that is authorized by statute or the constitution to

enter into a contract.”

(2)

The entity must enter into a “contract subject to this subchapter.”

(3) The claim must be for

breach of the contract and be asserted in a civil suit in “county or state

court” or in an “authorized arbitration proceeding” in accordance with any

“mandatory procedures established in the contract . . . for the arbitration

proceedings.”

See id. § 271.152; Clear Lake City Water Auth. v. Friendswood Dev. Co. , 256 S.W.3d 735,

746 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d). The term “contract subject to this

subchapter” means:

[A] written contract stating

the essential terms of the agreement for providing goods or services to the

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

governmental entity.

See id. § 271.151(2)

(Vernon 2005).

Assuming

the first and third criteria of section 271.152 are satisfied, Creekstone has

still failed to meet the second criterion because neither the Declaration of

Covenants nor the Special Warranty Deed qualifies under section 271.151(2) as a

written contract related to the provision of goods and services. See

id. §§ 271.151(2), 271.152; Hoppenstein Props., Inc. v. McLennan County

Appraisal Dist. , No. 10-09-00426-CV, 2010 WL 3272404 , at *2 (Tex. App.—Waco

Aug. 18, 2010, no pet.) (mem. op.) (“A contract that involves an interest in

property, alone, is not an agreement to provide goods or services to a

governmental entity.”); City of San

Antonio v. Reed S. Lehman Grain, Ltd. , No. 04-04-00930-CV, 2007 WL 274071 ,

at *2 n.2 (Tex. App.—San Antonio Jan. 31, 2007, pet. denied) (mem. op.) (noting

that easement dedication contract conveyed only interest in real property and

was not agreement for providing goods and services). Because Creekstone did not bring an action

that provided a limited waiver of immunity from suit pursuant to section 271.152,

we conclude the trial court correctly granted the Authority’s plea to the

jurisdiction. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political

Subdivisions Prop./Casualty Joint Self-Ins. Fund , 212 S.W.3d 320, 327 (Tex.

2006) (stating that, for there to be waiver of immunity under section 271.152,

suit must be for breach of “a written contract stating the essential terms of

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

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

Creekstone

also makes the assertions that (1) it may obtain injunctive relief against the

Authority because it seeks to enforce restrictive covenants and not monetary

damages, (2) the Authority is not immune from suit because the Authority is not

involved in a governmental function, (3) the Authority waived immunity through

its conduct. The record does not reflect

that Creekstone raised these arguments in the trial court. It has, therefore, failed to preserve these

issues for our review. See Tex.

R. App. P. 33.1; see also

Dreyer v. Greene , 871 S.W.2d 697, 698 (Tex. 1993) (“As a

rule, a claim, including a constitutional claim, must have been asserted in the

trial court in order to be raised on appeal.”); Holcombe v. Reeves County Appraisal Dist. , 310 S.W.3d 86, 90 (Tex. App.—El

Paso 2010, no pet.) (“It is well settled that a party will not be permitted to

take a position on appeal that is not presented in the trial court.”).

We

overrule Creekstone’s sole issue on appeal.

RULE 45 SANCTIONS

In

its brief, the Authority contends that Creekstone’s appeal is frivolous and

requests monetary damages. Rule 45 of

the Texas Rules of Appellate Procedure permits an appellate court to award a

prevailing party “just damages” for a “frivolous” appeal. Tex.

R. App. P. 45; Smith v. Brown ,

51 S.W.3d 376, 380 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). In determining whether an appeal is

frivolous, we apply an objective test. Smith , 51 S.W.3d at 381 . We review the record from the viewpoint of

the advocate and ask whether the advocate had reasonable grounds to believe the

judgment could be reversed. Id.

We exercise prudence and caution and deliberate most carefully before

awarding appellate sanctions. Id.

After

reviewing the record and the arguments presented by the parties to the trial

court and in their appellate briefs, we hold that Creekstone’s appeal is not

frivolous. We, therefore, deny the

Authority’s request for sanctions.

CONCLUSION

We affirm the judgment of the

trial court.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Massengale and Matthews. [3]

[1] See

Tex. Loc. Gov’t Code Ann. §

392.006 (Vernon Supp. 2010).

[2]

See Tex. Prop. Code Ann.

§ 202.004(c) (Vernon 2007) (“A court may assess civil damages for the violation

of a restrictive covenant in an amount not to exceed $200 for each day of the

violation.”).

[3]

The Honorable Sylvia Matthews,

Judge of the 281st District Court of Harris

County,

participating by assignment.