Gulf Coast Waste Disposal Authority v. Four Seasons Equipment, Inc.

Opinion issued June 24, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-01001-CV

———————————

GULF COAST WASTE DISPOSAL AUTHORITY , Appellant

V.

FOUR SEASONS

EQUIPMENT, INC. ,

Appellee

On Appeal from County Civil Court at Law No. 1

Harris County, Texas

Trial Court Case No. 940424

O P I N I O N

In

this interlocutory appeal, Gulf Coast Waste Disposal Authority (“Gulf Coast”),

a political subdivision of the State, appeals the trial court’s denial of its plea

to the jurisdiction, asserting that it has immunity from suit. The underlying dispute arises from a

commercial transaction in which Gulf Coast acquired a crane from Four Seasons

Equipment, Inc. (“Four Seasons”) through an Internet auction. We determine whether, as alleged by Four

Seasons, Gulf Coast’s governmental immunity was waived because the acquisition

of the crane constituted an uncompensated “taking” of Four Seasons’s property as

prohibited by article I, section 17 of the Texas Constitution.

We conclude that the acquisition of

the crane was not an unconstitutional taking; thus, Gulf Coast’s sovereign

immunity has not been waived. The trial

court erred when it denied Gulf Coast’s jurisdictional plea. We further conclude that the trial court lacks

subject matter jurisdiction over Four Seasons’s breach of contract claim

because Four Seasons’s requested damages exceed the maximum jurisdictional

limit of the trial court.

We

reverse and render judgment dismissing Four Seasons’s claims against Gulf Coast

for lack of jurisdiction.

Background

Created by the Texas

Legislature, Gulf Coast is a political subdivision of the State of Texas. It is a conservation and reclamation district,

which manages the water resources of Chambers, Galveston, and Harris counties

by providing waste disposal systems and regulation of waste disposal.

In 2007, Gulf Coast sought to

purchase a crane for its Washburn Tunnel Treatment Facility. Gulf Coast contacted Four Seasons and

requested budgetary pricing on a 30-ton capacity hydraulic rough terrain crane. Gulf Coast requested and received Four Seasons’s

assistance in formulating the bid specifications for the desired crane.

Gulf Coast informed Four Seasons that

the purchase of the crane would occur through the “reverse auction process.” A reverse auction is a real-time bidding

process usually lasting less than one hour and taking place at a previously

scheduled time and Internet location. Suppliers

anonymously submit bids to provide the designated goods or services. During the auction, the bids go down rather

than up. Bidders are able to view the

current bid and may make multiple, increasingly lower bids until the set time

expires. The goal is to be the lowest

bidder at the end of the auction.

Texas Procurement Center (“Texas

Procurement”), an auction facilitator, had the required software to conduct an

on-line reverse auction. Gulf Coast did

not have the software to conduct a reverse auction and had previously used the

services of Texas Procurement when purchasing equipment through the reverse

auction process.

To purchase the crane in 2007, Gulf

Coast again used Texas Procurement’s services to conduct the reverse auction. Texas Procurement conducted the reverse

auction on July 30, 2007. Four Seasons

participated in the on-line bidding process for the crane.

Before it was permitted to

participate in the on-line bidding, Four Seasons was required to agree to the

terms and conditions set out in the Supplier Reverse Auction User Agreement. The agreement expressly stated that, by

accessing Texas Procurement’s bidding system, the supplier was agreeing to the

terms and conditions of the Supplier Reverse Auction User Agreement. The agreement explained that Gulf Coast could

choose to pay Texas Procurement, which would, in turn, pay the successful

bidder.

Four Seasons’s bid of $280,000 was

the successful bid for the crane.

After confirming that Four

Seasons’s crane met the bid specifications, Gulf Coast submitted a purchase

order to Texas Procurement for the crane.

The purchase order indicated a total cost of $294,000. This included Four Seasons’s $280,000 bid price for the crane and a $14,000

commission to be paid to Texas Procurement.

Texas Procurement in turn sent a purchase order to Four Seasons. The purchase order indicated that the bid

price for the crane was $280,000 and that the crane should be delivered to Gulf

Coast’s Washburn Tunnel Treatment Facility.

On December 3, 2007, Texas

Procurement sent an invoice to Gulf Coast for $294,000. Four Seasons delivered the crane to Gulf

Coast on March 25, 2008. On March 26,

2008, Gulf Coast paid Texas Procurement in full for the crane. Gulf Coast also paid Texas Procurement’s

commission. That same day, Four Seasons

invoiced Texas Procurement for $279,999.99.

This represented the $280,000 purchase price less $.01 for a crane that

Gulf Coast traded-in to Four Seasons.

Despite being paid in full by Gulf Coast, Texas Procurement never paid

Four Seasons for the crane.

On May 9, 2009, Four Seasons sued Gulf

Coast for inverse condemnation, alleging a physical and a regulatory taking in

violation of article I, section 17 of the Texas Constitution. In claiming a physical taking, Four Seasons’s original

petition alleges, “Gulf Coast physically appropriated the Crane from Four

Seasons through the reverse auction process.”

Four Seasons also asserts that Gulf Coast “committed” a regulatory taking

when it “imposed” the use of the reverse auction process to acquire the crane.

Gulf Coast answered and filed a plea

to jurisdiction. In its jurisdictional

plea Gulf Coast averred,

Four Seasons has not pled a cause of action for

which Gulf Coast’s governmental immunity has been waived, and the

uncontroverted evidence establishes that Four Seasons cannot plead a cause of

action against Gulf Coast for which governmental immunity has been waived. Thus, the court lacks jurisdiction to enter

any order other than an order of dismissal, and Gulf Coast seeks such an order

of dismissal.

Addressing Four Seasons’s physical

takings claim, Gulf Coast asserted, “Four Seasons argues that Gulf Coast

intended to use [Texas Procurement] to conduct a reverse auction, which is [the]

necessary intent for a taking. However,

an intent to use [Texas Procurement] to conduct a reverse auction is not an

intent to take Four Seasons’ property without making payment therefore.” Gulf Coast further asserted, “When money or

property is withheld in a contractual dispute, requisite intent under

constitutional-takings jurisprudence is lacking.”

With regard to Four Seasons’s

regulatory takings claim, Gulf Coast argued, “Four Seasons neglects to mention

that it was under no regulatory requirement to participate in the reverse

auction. It knew the terms of the transaction

via the ‘Supplier Reverse Auction User Agreement’ before it ever submitted a

bid.”

Before the trial court ruled on the

jurisdictional plea, Four Seasons supplemented its petition to include a breach

of contract claim. Four Seasons claimed

that it had entered into a contract with Gulf Coast and that Gulf Coast had

breached the contract when it failed to pay for the crane. Four Seasons further alleged that Texas

Procurement had acted as the agent of Gulf Coast during the transaction. Four Seasons also asserted that Gulf Coast

had waived its immunity by its conduct. Lastly, Four Seasons alleged that it could

recover as a third-party beneficiary of the contract between Gulf Coast and

Texas Procurement.

Gulf Coast did not supplement its

plea to the jurisdiction to address the additional allegations found in Four

Seasons’s supplemental petition. The

trial court denied Gulf Coast’s jurisdictional plea. Gulf Coast then filed this interlocutory

appeal to challenge the trial court’s ruling. [1] We now determine whether the trial court

properly denied Gulf Coast’s plea to the jurisdiction. [2]

Plea to the Jurisdiction

A. Scope and Standard of Review

A plea to the jurisdiction based

on governmental immunity challenges the trial court’s subject matter

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

(Tex. 2004). Because subject matter

jurisdiction is a question of law, we review de novo a trial court’s ruling on

a plea to the jurisdiction. State v. Holland , 221 S.W.3d 639, 642

(Tex. 2007).

The plaintiff bears the burden of

alleging facts that affirmatively demonstrate that the trial court has subject matter

jurisdiction over a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd .,

852 S.W.2d 440, 446 (Tex. 1993). When a

plea to the jurisdiction challenges the sufficiency of plaintiff’s pleadings to

confer jurisdiction, we determine whether the pleader has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause. See Miranda , 133 S.W.3d at 226 . We construe the pleadings liberally in favor

of the plaintiff and look to the pleader’s intent. Id . If the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiff an opportunity to amend its petition. Id . at

227.

In some instances, a plea to the

jurisdiction may require the court to consider evidence pertaining to

jurisdictional facts. See id .;

Bland Indep. Sch. Dist. v. Blue , 34

S.W.3d 547, 555 (Tex. 2000). A plea

should not be granted if a fact issue is presented regarding the court’s

jurisdiction. Miranda , 133 S.W.3d at 227–28. But, if the relevant undisputed evidence

negates jurisdiction, then the plea to the jurisdiction must be granted. Id . at

228. We must take as true all evidence

favorable to the plaintiff and “indulge every reasonable inference and resolve

any doubts in [his] favor.” Id.

B. Analysis: Physical Takings Claim

The

Texas Constitution provides a limited waiver of a governmental unit’s immunity from

suit when property is taken, damaged, or destroyed for public use without

adequate compensation. See Tex.

Const. art. I, § 17; see also Gen.

Servs. Comm’n v. Little-Tex Insulation Co., Inc ., 39 S.W.3d 591, 598 (Tex.

2001). As a result, immunity does not shield

a governmental unit from a constitutional-takings claim. See

Holland , 221 S.W.3d at 643 . Nonetheless, when a plaintiff fails to assert

facts that constitute a taking, dismissal of the claim for want of jurisdiction

is appropriate. See Little-Tex Insulation , 39 S.W.3d at 600 (dismissing

inverse-condemnation claim for want of jurisdiction because allegations did not

state takings claim).

Here, Four Seasons alleges that

Gulf Coast’s acquisition of the crane, through the reverse auction process, constitutes

a physical and regulatory taking in violation of the Texas Constitution’s takings

clause. We first address Gulf Coast’s

contention that Four Seasons has not alleged a cognizable physical takings

claim.

A physical taking occurs when the

government authorizes an unwarranted physical occupation or appropriation of an

individual’s property. Mayhew v. Town of Sunnyvale , 964 S.W.2d

922, 933 (Tex. 1998). To establish a

takings claim, the claimant must allege that a governmental unit acted

intentionally to take or damage the property for a public purpose. See

Little-Tex Insulation , 39 S.W.3d at 598 .

In its

original and supplemental petitions, Four Seasons acknowledges, “The

constitutional taking standard requires intentional conduct.” To satisfy this requirement, Four Seasons

alleges certain acts and omissions by Gulf Coast as causing the physical taking

of the crane.

Four

Seasons first asserts that Gulf Coast’s act of using the reverse auction

process to purchase the crane is sufficient to satisfy the requisite element of

intent because the intentional use of such process resulted in the taking of

Four Seasons’s property without compensation.

In addition, Gulf Coast claims,

In the case at bar, there is clear, direct, and

positive evidence that Gulf Coast committed intentional acts. Gulf Coast never asked [Texas Procurement] if

there was another process by which Gulf Coast could pay Four Seasons directly;

never requested that [Texas Procurement] post a performance bond or any type of

bond; never consulted with any other entity, agency, city or state, or county

utilizing [Texas Procurement’s] services before making the decision to utilize [Texas

Procurement]; never did any investigation into the background of [Texas

Procurement] or whether or not they were solvent, or dependable; never received

Board approval to utilize the services of [Texas Procurement]. Before the incident made the basis of this

lawsuit, there was a piece of laboratory equipment acquired through [Texas

Procurement] services where [Texas Procurement] was slow to pay. Gulf Coast never contacted the City of Houston

for a reference regarding [Texas Procurement].

These facts conclusively prove that Gulf Coast knew or should have known

that [Texas Procurement] was on the brink of insolvency, and even with this

knowledge, it still intended to use [Texas Procurement] as the reverse

auctioneer by entering into a contract with [Texas Procurement]. This intentional act by Gulf Coast resulted in

a physical taking of Four Season’s Crane.

In sum, Four Seasons alleges

that the intentional government actions resulting in an uncompensated physical

taking of its property are (1) Gulf Coast’s use of the reverse auction process

and (2) Gulf Coast’s retention of Texas Procurement as auctioneer without first

conducting appropriate due diligence into Texas Procurement’s financial health.

The Supreme

Court of Texas has made clear that the level of intent required to support a

takings claim is more than mere negligence. City of

Tyler v. Likes , 962 S.W.2d 489, 505 (Tex. 1997). When, as here, it is alleged that the

governmental unit’s intentional act is not the actual physical taking or

damaging of property, but rather the cause

of a physical taking, a governmental unit acts intentionally if it knows either

that a specific act is causing identifiable harm or that the harm is

substantially certain to result. [3] See City

of Dallas v. Jennings , 142 S.W.3d 310 , 314–15 (Tex. 2004). This case implicates the last inquiry: whether

the pleaded facts show that Gulf Coast knew that Texas Procurement’s failure to

pay Four Seasons for the crane was substantially certain to result (1) from the

decision to use the reverse auction process or (2) from the retention of Texas

Procurement to facilitate the reverse auction. A governmental entity is substantially certain

that its actions will cause harm only when the harm is “necessarily an incident

to, or necessarily a consequential result of the [entity’s] action.” Id. at 314. The government’s knowledge

must be determined as of the time it acted, not with benefit of hindsight. Id.

Even when

viewed in its favor, Four Seasons’s allegations do not affirmatively

demonstrate the requisite intent to support a physical takings claim. More particularly, the allegations do not

affirmatively demonstrate that Gulf Coast knew with substantial certainty that Texas

Procurement would fail to pay Four Seasons for the crane. Texas Procurement’s failure to pay Four

Seasons is not necessarily incident to, or a consequential result of Gulf

Coast’s lack of due diligence or its knowledge that Texas Procurement had paid

a supplier late on one occasion. Similarly,

Texas Procurement’s failure to pay Four Seasons is not necessarily incident to,

or a consequential result of Gulf Coast’s use of the reverse auction

process. At most, Four Seasons’s

allegations demonstrate Gulf Coast’s awareness that an increased risk existed that

Texas Procurement would not pay Four Seasons.

In

addition, undisputed jurisdictional evidence offered by Gulf Coast demonstrates

that it lacked the requisite intent to support a physical taking. Gulf Coast offered the affidavit of James

Cooksey, its chief financial officer.

Cooksey testified that Gulf Coast had used the reverse auction process

over the years “on various occasions.”

According to Cooksey, Texas Procurement is the only reverse auction

facilitator that Gulf Coast has used. Cooksey

also testified that it had acquired another crane from Four Seasons in 2002

through the reverse auction process. Texas

Procurement had been the auction facilitator in that transaction as well. Four Seasons never indicated to Gulf Coast

that it had not been paid in that transaction.

Lastly, it is undisputed that Gulf Coast paid Texas Procurement $280,000

for the crane, plus a $14,000 commission.

Such evidence further shows that Gulf Coast was not “substantially

certain” that Texas Procurement would not pay Four Seasons.

The Texas Supreme

Court has made clear that, in takings cases, its objective has been to “avoid

what would be an anomalous result if the State, an entity otherwise generally

entitled to immunity for negligence, were subject to liability for something

less than intentional behavior.” Tarrant Reg’l Water Dist. v. Gragg , 151

S.W.3d 546, 554 (Tex. 2004). As a result,

the government retains immunity absent intentional conduct. See Jennings ,

142 S.W.3d at 314–15. Anything less than

intentional conduct will not suffice. See Karnes

City v. Kendall , 172 S.W.3d 624, 629 (Tex. App.—San Antonio

2005, pet. denied) (holding that gross negligence does not supply requisite

intent to sustain liability of governmental entity for a constitutional takings

claim; acting with “conscious indifference” to a known risk is not equivalent

to acting intentionally).

Gulf Coast’s use of

Texas Procurement’s services and Gulf Coast’s decision to use the reverse

auction process—the acts cited by Four Seasons as intentional acts—demonstrate

at most acts of negligence. [4] Mere negligence cannot support a takings

claim against Gulf Coast. See Likes , 962 S.W.2d at 505 . Thus, Four Seasons’s pleadings, and the record

evidence, affirmatively negate jurisdiction with regard to Four Seasons’s

physical takings claim. We hold that the

trial court erred when it did not grant Gulf Coast’s plea to the jurisdiction

regarding the physical takings claim. [5]

C. Analysis: Regulatory Takings Claim

In its pleadings, Four Seasons also

asserts a regulatory takings claim. A compensable

regulatory taking can occur when a governmental unit imposes restrictions that

either deny a property owner all economically viable use of its property or

unreasonably interfere with the owner’s right to use and enjoy the property. Mayhew

v. Town of Sunnyvale , 964 S.W.2d 922, 933 (Tex. 1998); Taub v. City of Deer Park , 882 S.W.2d 824, 826 (Tex. 1994).

Four Seasons contends that Gulf

Coast committed a regulatory taking when it “imposed the use of a reverse auction

process to acquire the crane.” Its own pleadings,

however, belie this assertion. For

example, in its original petition, Four Seasons states, “Gulf Coast contacted [Four

Seasons] and requested that it take part

in an online auction scheduled for July 30, 2007 for the [] crane.” (Emphasis added.) In addition, the affidavit of Rod Dundas,

Four Seasons’s vice president, indicates that Four Seasons participated in the

auction at Gulf Coast’s “request.” There

are no allegations or evidence that Four Seasons acted under any legal

compulsion when it participated in the reverse auction process. Instead, the pleadings and the jurisdictional

evidence affirmatively demonstrate that Four Seasons voluntarily participated

in the reverse auction process. In

short, Gulf Coast never “imposed” the reverse auction process on Four

Seasons.

Four Seasons’s voluntary

participation in the bidding process is fatal to its takings claim. Courts have long held that a party cannot

voluntarily participate in a government program or process and then later claim

that the process effectuated a government taking. See,

e.g., Bowles v. Willingham , 321 U.S. 503 , 517–18, 64 S. Ct. 641 , 648–49

(1944); Meriden Trust & Safe Deposit

Co . v. FDIC ., 62 F.3d 449 , 455

(2d Cir. 1995); Burditt v. United States

Dep’t of Health & Human Servs ., 934 F.2d 1362, 1376 (5th Cir. 1991); see Kahn v. Imperial Airport, L.P ., No.

05-08-01022-CV, 2010 WL 923956, at *8 (Tex. App.—Dallas Mar. 16, 2010, no pet.)

(concluding that restrictive terms of agreed order did not constitute

governmental taking because it was “a joint decision” of the city and

claimants; it was not a unilateral act or regulation by the city).

Because Four Seasons voluntarily

participated in the reverse auction process, we conclude that the pleadings and

record evidence affirmatively negate Four Seasons’s regulatory takings claim

and, thus, negate jurisdiction. We hold

that the trial court erred when it denied Gulf Coast’s plea to the jurisdiction

with regard to the regulatory takings claim.

We sustain Gulf Coast’s issues to

the extent they assert that the trial court erred when it denied Gulf Coast’s

plea to the jurisdiction.

Damages in Excess of Jurisdictional Limit

As mentioned, Four Seasons asserted

its breach of contract claim for the first time in its supplemental petition. [6] Gulf Coast did not amend or supplement its

plea to the jurisdiction to address the new allegations raised in the

supplemental petition. Nonetheless, Gulf

Coast asserts on appeal that the trial court lacks subject matter jurisdiction

over Four Seasons’s breach of contract claim because the amount in controversy

exceeds the trial court’s $100,000 jurisdictional limit. [7] We agree.

The jurisdictional limit of a

Harris County civil court at law is more than $500 but less than $100,000,

excluding interest, statutory or punitive damages, penalties, attorney’s fees,

and costs. [8] See Tex. Gov’t Code Ann . § 25.0003(c)(1)

(Vernon Supp. 2009), § 25.1032(a) (Vernon 2004). The amount in controversy is ordinarily

determined by looking at the allegations in the plaintiff’s original petition. See Peek

v. Equip. Serv. Co. of San Antonio , 779 S.W.2d 802, 804 (Tex. 1989). In its original petition, Four Seasons expressly

claims damages of $280,000. Because this

sum exceeds the $100,000 jurisdictional limit of the trial court, we conclude

that the trial court lacks subject matter jurisdiction over Four Seasons’s

breach of contract claim. [9]

We hold that Four Seasons’s breach

of contract claim should be dismissed.

Conclusion

We reverse the trial court’s order

denying Gulf Coast’s plea to the jurisdiction and render judgment dismissing Four

Seasons’s claims for want of jurisdiction.

Laura

C. Higley

Justice

Panel

consists of Justices Keyes, Hanks, and Higley.

[1] We have jurisdiction over this

interlocutory appeal because it is an appeal from the denial of a plea to the

jurisdiction. See Tex. Civ. Prac. &

Rem. Code Ann . § 51.014(a)(8) (Vernon 2008) (permitting appeal from

interlocutory order that denies plea to jurisdiction filed by governmental unit). In the same instrument with its plea to the

jurisdiction, Gulf Coast filed a motion for summary judgment. The motion for summary judgment challenged

the merits of Four Seasons’s takings claims and requested the trial court to

render a take-nothing judgment against Four Seasons. When it denied Gulf Coast’s plea to the

jurisdiction, the trial court also denied Gulf Coast’s motion for summary

judgment. Although it invites us to do

so, we do not have jurisdiction to review the denial of the motion for summary

judgment in this interlocutory appeal. See Novak v. Stevens , 596 S.W.2d 848,

849 (Tex. 1980).

[2] In its opening brief, Gulf Coast

identifies the following three issues for appeal: (1) the County Civil Court at

Law erred by failing to dismiss [Four Seasons’s] takings claims against [Gulf

Coast] because as a matter of law [Four Seasons] failed to plead facts showing

a viable takings claims; (2) the County Civil Court at Law erred by failing to

dismiss [Four Seasons’s] takings claims against [Gulf Coast] because as a

matter of law the jurisdictional facts establish that [Four Seasons] does not

have a viable takings claim; and (3) the County Civil Court at Law erred by

exercising subject matter jurisdiction over [Four Seasons’s] inverse

condemnation/takings claim against [Gulf Coast]. After listing the three issues, Gulf Coast

writes, “The issues are argued together as one.” To coincide with Gulf Coast’s briefing, we

amalgamate Gulf Coast’s issues and determine unitarily whether the trial court

properly denied Gulf Coast’s plea to the jurisdiction.

[3] We note that this standard has been

applied in cases in which it was alleged that real property was damaged as a

result of a government action. See, e.g., Tarrant Reg’l Water Dist. v. Gragg , 151 S.W.3d 546,

550 (Tex. 2004) (concerning release of water from reservoir causing flooding

that damaged land); City of Arlington v.

State Farm Lloyds , 145 S.W.3d 165, 166 (Tex. 2004) (involving dislodgment

of clogged sewer causing sewage backup into residence); City of Dallas v. Jennings , 142 S.W.3d 310, 312 (Tex. 2004)

(involving sewage back-up that flooded homes). Despite the factual differences, w e discern no reason why the test should not

apply to Four Seasons’s taking claim.

[4] We further note that, to support its

takings claim, Four Seasons alleges that it contracted with Gulf Coast to sell

the crane and that Gulf Coast never paid for the crane. Our supreme court has reasoned that when a

governmental unit withholds property in a contractual context, it lacks the

necessary intent to commit a taking because it “is acting within a color of

right under the contract and not under its eminent domain powers.” Gen.

Servs. Comm’n v. Little-Tex Insulation Co ., Inc ., 39 S.W.3d 591 , 598–99 (Tex. 2001); see State v. Holland , 221

S.W.3d 639 643–44 (Tex. 2007). For this

reason, Four Seasons’s contract allegations also fail to demonstrate the intent

necessary for a physical takings claim.

To the contrary, such allegations negate the requisite intent.

[5] In addition, courts have held that

when a governmental unit acquires property rights in the same manner as a

private citizen, and not pursuant to its sovereign powers, such acquisition is

not an unconstitutional taking. See, e.g., MBP Corp. v. Bd. of Trs. of

Galveston Wharves , 297 S.W.3d 483 , 490–91 (Tex. App.—Houston [14th Dist.]

2009, no pet.) (“[B]ecause a private landowner could have acted as the

[governmental unit] did, we conclude [the claimant] has not shown the [unit’s]

requisite intent to act under its sovereign powers.”); Dallas County Cmty. Coll. Dist. v. Clear Channel Outdoor, Inc ., No.

05-07-00701-CV, 2008 WL 3307085 , at *3–4 (Tex. App.—Dallas July 31, 2008, pet. denied)

(mem. op.) (concluding that taking did not exist as government did not compel

transfer of property in case in which party “voluntarily and willingly” sold

property to government). The requisite intent to take property

using sovereign powers is absent in such cases. See MBP Corp. , 297 S.W.3d at

491 . Here, the record affirmatively

negates jurisdiction because it shows that Gulf Coast was acting “akin to a

private citizen” when it acquired the crane; it was not acting pursuant to its

sovereign powers. See Holland , 221 S.W.3d at 643 (quoting Gen. Servs. Comm’n v. Little-Tex Insulation Co. , Inc. , 39 S.W.3d 591, 599 (Tex. 2001)); see also MBP Corp. , 297 S.W.3d at

491 .

[6] Four Seasons also asserted that Gulf Coast had

waived its governmental immunity by its conduct and that Texas Procurement was

Gulf Coast’s agent. These theories

appear to have been pled to advance Four Seasons’s newly pleaded breach of

contract claim.

[7] We

have previously held that we may address subject matter jurisdiction in

an interlocutory appeal, even though the issue was not raised in the trial

court. See Harris County Mun. Util. Dist. No. 156 v. United Somerset Corp. ,

274 S.W.3d 133 , 137–38 (Tex. App.—Houston [1st Dist.] 2008, no pet.); City of Houston v. Northwood Mun. Util.

Dist. No. 1 , 73 S.W.3d 304 , 313 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied); see also 138 Waco Indep. Sch.

Dist. v. Gibson , 22 S.W.3d 849, 851 (Tex. 2000) (“[B]ecause subject matter

jurisdiction is essential to the authority of a court to decide a case, it

cannot be waived and may be raised for the first time on appeal.”).

[8] Gulf Coast does not dispute that Four

Seasons’s inverse condemnation claims were properly filed in Harris county

civil court. The Government Code

provides, “A county civil court at law has exclusive jurisdiction in Harris

County of eminent domain proceedings, both statutory and inverse, regardless of

the amount in controversy.” Tex. Gov’t Code Ann . § 25.1032(c)

(Vernon 2004); see Houston v. Boyle , 148 S.W.3d 171 , 177–78

(Tex. App.—Houston [1st Dist.] 2004, no pet.) (“Harris County Civil Courts at

Law have exclusive jurisdiction over article 1, section 17 claims.”).

[9] In its petition, Four Seasons claims,

alternatively to its $280,000 damages request, that it be given possession of

the crane “and damages for the loss of market value and/or use by Gulf

Coast.” When a plaintiff asserts a

single claim through alternative theories of recovery, for the purpose of

determining jurisdiction, the amount in controversy is determined by looking to

the theory that would yield the largest award.

French v. Moore , 169 S.W.3d 1,

7 (Tex. App.—Houston [1st Dist.] 2004, no pet.). For this reason, Four Seasons’s alternative

theory of recovery does not affect our conclusion that the trial court lacks

subject matter jurisdiction.