Opinion

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-06-208-CV

DON R. SANDERS AND APPELLANTS

SUSAN

SANDERS

V.

CITY OF GRAPEVINE, TEXAS, APPELLEES

WILLIAM D. TATE, C. SHANE

WILBANKS,

SHARRON SPENCER,

CLYDENE

JOHNSON, DARLENE FREED,

TED

WARE, ROY STEWART, AND

ROGER

NELSON

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FROM

THE 352ND DISTRICT COURT OF TARRANT COUNTY

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OPINION

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This is an appeal from the

trial court = s order

dismissing with prejudice all claims of appellants, Don R. and Susan Sanders,

against appellees the City of Grapevine, Texas (the City), and William D. Tate,

C. Shane Wilbanks, Sharron Spencer, Clydene Johnson, Darlene Freed, Ted Ware,

Roy Stewart, and Roger Nelson (the individual appellees), in appellants = suit concerning the City = s alleged failure to enforce its tree preservation ordinance. In two points, appellants contend that the

trial court abused its discretion by granting the City = s plea to the jurisdiction and by granting the individual appellees = motion to dismiss. We affirm

in part, reverse and remand in part, and dismiss in part.

Facts

Appellants bought a home

constructed by Weekley Homes, L.P. d/b/a David Weekley Homes, one of the

defendants below, in the Silverlake Estates Subdivision in Grapevine,

Texas. One of the primary reasons appellants

selected the Silverlake Estates was due to its A wooded @ and A country atmosphere. @

After moving into their new

home, appellants sued Weekley Homes, a related development company, the City,

and the individual appellees, who are the mayor, city manager, and city council

members of the City. In their original

petition, appellants alleged that a sales consultant for Weekley Homes had

assured them that Weekley Homes intended for the subdivision to have a wooded,

country atmosphere, that Weekley Homes A would take ordinary care @ to preserve existing trees, that the City of Grapevine had A an extremely tough tree ordinance, @ and that the amenities for the subdivision would include wooded home

sites. Appellants also alleged that

after they moved into their new home, it became clear to them that Weekley

Homes had no intention of complying with, and the City had no intention of

enforcing, the tree ordinance, as evidenced by the destruction of numerous

trees within the subdivision by Weekley Homes.

Appellants further alleged that after they attempted to resolve the

problem by correspondence and attendance at City Council meetings, Weekley

Homes = s employees and the City began a systematic plan of harassing

them.

Based on these alleged facts,

appellants brought claims for breach of contract and DTPA violations against

Weekley Homes C and for

fraud, negligence, and negligent misrepresentation against all of the appellees C due to Weekley Homes = s failure to comply with, and the City = s failure to enforce, the City = s tree ordinance. They also

sought a declaratory judgment as to A the rights, status and other legal relations @ among appellants and appellees with regard to the sales contract with

Weekley Homes and the City = s tree preservation ordinance.

Appellants also sought punitive damages as well as attorney = s fees.

Weekley Homes filed a motion

to compel arbitration of appellants = claims against it, which the trial court granted. The City then filed a plea to the

jurisdiction, contending that appellants = claims against it should be dismissed with prejudice because the City

is entitled to governmental immunity [1]

from appellants = suit. In the same document, the individual

appellees filed a motion to dismiss the claims against them with prejudice

under section 101.106(e) of the civil practice and remedies code, the election

of remedies section of the Texas Tort Claims Act (TTCA). Tex.

Civ. Prac. & Rem. Code Ann. ' 101.106(e) (Vernon 2005).

Appellants subsequently filed

a first amended petition. The first

amended petition contained the same factual allegations as appellants = original petition, with the addition of a paragraph regarding

appellants = discovery

of the development company = s involvement. It also

contained a section alleging that the City was liable to appellants under

section 101.0215 of the civil practice and remedies code for damages arising

from its governmental function of enforcing the tree ordinance. Id . ' 101.0215.

The trial court subsequently

granted the City = s plea to

the jurisdiction and the individual appellees = motion to dismiss, dismissing all claims against them with prejudice. Appellants timely filed this appeal pursuant

to section 51.014(a)(8) of the civil practice and remedies code, which allows

an interlocutory appeal from a trial court = s order granting a governmental unit = s plea to the jurisdiction. Id .

' 51.014(a)(8) (Vernon Supp. 2006); Tex.

R. App. P. 26.1(b), 28.1. [2]

Dismissal of Appeal as to Individual Appellees

In their

second point, appellants contend that the trial court abused its discretion by

granting the individual appellees = motion to dismiss under section 101.106(e) of the civil practice and

remedies code. Generally, a Texas

appellate court has jurisdiction to hear an appeal only if it is from a final

judgment. Jack B. Anglin Co. v. Tipps ,

842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). Appellate courts have jurisdiction to

consider immediate appeals of interlocutory orders only if a statute explicitly

provides appellate jurisdiction. Stary

v. DeBord , 967 S.W.2d 352 , 352‑53 (Tex. 1998); N.Y. Underwriters

Ins. Co. v. Sanchez , 799 S.W.2d 677, 679 (Tex. 1990). Although the trial court = s denial of the City = s plea to the jurisdiction is an appealable, interlocutory order under

section 51.014(a)(8) of the civil practice and remedies code, the trial court = s granting of the individual appellees = motion to dismiss under section 101.106(e) is not. [3] See Tex.

Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8).

When a party appeals from two

interlocutory orders, only one of which is made appealable by statute, the

proper course is to dismiss the part that is nonappealable and to rule on the

part from which an appeal may be taken. Kaplan

v. Tiffany Dev. Corp ., 69 S.W.3d 212, 217 (Tex. App. C Corpus Christi 2005, no pet.); Eichelberger v. Hayton , 814

S.W.2d 179, 182 (Tex. App. C Houston [1st Dist.] 1991, writ denied). Accordingly, we dismiss appellants = second point complaining about the trial court = s granting of the individual appellees = motion to dismiss for want of jurisdiction. See Tex.

R. App. P. 42.3(a), 43.2(f).

Whether

City = s

Governmental Immunity Waived Under Civil Practice and Remedies Code Section

101.0215

In their first point,

appellants assert that the trial court abused its discretion by granting the

City = s plea to the jurisdiction because the City = s immunity from suit and liability is waived under section

101.0215(28) and (29) of the TTCA. Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215(28), (29). They

contend that the statute = s language

clearly waives immunity and makes a city liable for the damages arising from

the city = s exercise of its now statutorily defined governmental functions. That provision states, in part, that A [a] municipality is liable under this chapter for damages arising from

its governmental functions, . . . exercised by the municipality in the interest

of the general public, including, but not limited to: . . . building codes and

inspection; [and] . . . zoning, planning, and plat approval. @ Id. Appellants claim that these two

subsections of section 101.0215 form the basis for their causes of action as

well as their support for waiver of immunity.

In response, the City contends

that a municipality is never liable for intentional torts, such as the fraud

alleged by appellants, or exemplary damages, citing sections 101.057(2) and

101.024 of the civil practices and remedies code. Id. ' ' 101.057(2), 101.024. Further,

as to the negligence causes of action, the City contends that appellants failed

to assert a claim within a city = s limited waiver of immunity established by section 101.021 of the

TTCA. Id. ' 101.021.

Standard

of Review

Governmental

immunity defeats a trial court = s subject matter jurisdiction and thus 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); Tex. Dep = t of Transp. v. Andrews , 155 S.W.3d

351, 355-56 (Tex. App. C Fort Worth

2004, pet. denied). The trial court must

determine at its earliest opportunity whether it has the constitutional or

statutory authority to decide the case before allowing the litigation to

proceed. Miranda, 133 S.W.3d at

226 .

We review the trial court = s ruling on a plea to the jurisdiction based on immunity from suit

under a de novo standard of review.

Id. at 225-26, 228 ; Tex. Natural Res. Conservation Comm'n v.

IT‑Davy , 74 S.W.3d 849, 855 (Tex. 2002); Andrews , 155 S.W.3d

at 355-56 . Whether a pleader has alleged

facts that affirmatively demonstrate a trial court = s subject matter jurisdiction, or whether undisputed evidence of

jurisdictional facts establishes a trial court = s jurisdiction, is a question of law.

Miranda , 133 S.W.3d at 226 .

Here, the nature of appellants = claims are not disputed; rather, it is the legal effect of those

claims that is disputed. Thus, we

determine as a matter of law whether the alleged facts establish jurisdiction.

When a plea to the

jurisdiction challenges the pleadings, we determine if the pleader has alleged

facts that affirmatively demonstrate the court = s jurisdiction to hear the cause.

Id. ; 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 and look to the pleader = s intent. Miranda , 133

S.W.3d at 226 ; Tex. Ass'n of Bus. , 852 S.W.2d at 446 . If the pleadings do not contain sufficient

facts to affirmatively demonstrate the trial court = s jurisdiction but do not affirmatively demonstrate incurable defects

in jurisdiction, the issue is one of pleading sufficiency, and the plaintiffs

should be afforded the opportunity to amend.

Miranda , 133 S.W.3d at 227-28 .

However, if the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted without allowing

the plaintiffs an opportunity to amend. Id .

at 228.

Applicable Law

Section 101.0215 of the TTCA

provides a nonexclusive list of governmental functions for which a municipality

may be held liable under the Act. Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215; City of Kemah v. Vela , 149 S.W.3d 199 , 203 n.1 (Tex.

App. C Houston [14th Dist.] 2004, pet. denied). It does not provide an independent basis for

a waiver of governmental immunity. City

of Kemah , 149 S.W.3d at 203 n.1; see McKinney v. City of Gainesville ,

814 S.W.2d 862, 865 (Tex. App. C Fort Worth 1991, no writ).

Therefore, for a city to be subject to suit and liability [4]

for conduct falling within the list of governmental functions in section

101.0215, the conduct must also fall within one of the three general areas for

which immunity from liability and suit is waived under the Act. City of Kemah , 149 S.W.3d at 203 n.1;

Williams v. City of Midland , 932 S.W.2d 679 , 683 & n.1 (Tex. App. C El Paso 1996, no writ); McKinney , 814 S.W.2d at 865 ; see

Martinez v. City of San Antonio , No. 04-05-00775-CV, 2006 WL 3497250, at *3

(Tex. App. C San Antonio

Dec. 6, 2006, no pet.); City of Mesquite v. PKG Contracting, Inc. , 148

S.W.3d 209, 212-13 (Tex. App. C Dallas 2004), rev = d on other grounds , 197 S.W.3d 388 (Tex.

2006) ; City of Houston v. Boyle , 148 S.W.3d 171, 180 (Tex. App. C Houston [1st Dist.] 2004, no pet.).

Thus, we must first determine whether the alleged conduct falls within a

governmental function category under section 101.0215; if it does, we must then

look to see whether the conduct falls within one of the other provisions of

chapter 101 that waives immunity. Pakdimounivong

v. City of Arlington , No. 02-05-00414-CV, 2006 WL 3438218, at *4 (Tex. App. C Fort Worth Nov. 30, 2006, no pet. h.); McKinney, 814 S.W.2d at

865 ; see Tex. Civ. Prac. &

Rem. Code Ann. ' 101.021(1) B (2), ' 101.022

(Vernon Supp. 2006); Miranda, 133 S.W.3d at 225 .

Here, appellants claim that

the City = s act of failing to enforce the tree ordinance was a governmental

function, and the City does not dispute that contention. Thus, we must determine whether appellants

alleged conduct by the City that would fall within the areas of conduct for

which governmental immunity is waived under the TTCA.

The TTCA waives governmental

immunity for property damage, personal injury, and death caused by the use of

publicly owned automobiles and premises defects, and personal injury and death

caused by the condition or use of tangible personal or real property, to the

extent a private person would be liable for such condition or use of personal

or real property. Tex. Civ. Prac. & Rem. Code Ann. ' ' 101.021(1) B (2),

101.022; Miranda , 133 S.W.3d at 225 ; County of Cameron v. Brown ,

80 S.W.3d 549, 554 (Tex. 2002). The Act

does not waive immunity from suit and liability for intentional torts. Tex.

Civ. Prac. & Rem. Code Ann. ' 101.057(2); Tex. Dep't of Pub. Safety v. Petta , 44 S.W.3d 575,

580 (Tex. 2001); Meroney , 200 S.W.3d at 710.

Appellants = negligence allegations against the City, construed liberally in their

favor, do not allege conduct falling within any of these areas. See Brown , 80 S.W.3d at 554

(discussing governmental entity = s duty in premises defect case not to injure by willful, wanton, or

grossly negligent conduct and to use ordinary care either to warn of condition

presenting unreasonable risk of harm of which entity is actually aware and

plaintiff is not or to make condition reasonably safe); City of Denton v.

Page , 701 S.W.2d 831, 834 (Tex. 1986) (holding that property owner has duty

to keep real property in reasonably safe condition for invitees or to warn of

any hazard). Moreover, the trial court

has no jurisdiction over appellants = fraud claim because fraud is an intentional tort. Tex.

Civ. Prac. & Rem. Code Ann. ' 101.057(2); Gen. Elec. Co. v. City of Abilene , 795 S.W.2d 311,

313 (Tex. App. C Eastland

1990, no writ). Accordingly, appellants = pleadings C which they

amended after the City filed its plea to the jurisdiction C affirmatively negate the trial court = s jurisdiction over their TTCA claims. [5]

We are left with appellants = claim for declaratory relief, which neither parties specifically

addressed in their briefing. The

Declaratory Judgment Act does not extend a trial court = s jurisdiction, and a litigant = s request for declaratory relief does not confer jurisdiction on a

court or change a suit = s underlying

nature. IT‑Davy , 74 S.W.3d

at 855 . Consequently, private parties

cannot circumvent governmental immunity by characterizing a suit for money

damages as a declaratory judgment claim or by seeking to establish a contract = s validity, to enforce performance under a contract, or to impose

contractual liabilities against the governmental entity. See id . at 855-56. However, a party does not need legislative

permission to sue a governmental entity to determine its rights under a statute

or ordinance. Id . at 859-60; Fed.

Sign v. Tex. So. Univ ., 951 S.W.2d

401, 404 (Tex. 1997); City of Anson v. Harper , No. 11-05-00398-CV, 2006

WL 1914611, at *8 (Tex. App. C Eastland July 13, 2006, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. ' 37.004(a) (Vernon 1997). If a

party is challenging the validity of a municipal ordinance, the municipality must

be joined in the suit. Tex. Civ. Prac. & Rem. Code Ann. ' 37.006(b); IT-Davy , 74 S.W.3d at 860 ; Tex. Educ. Agency v.

Leeper , 893 S.W.2d 432, 446 (Tex. 1994).

Here, appellants = first amended petition includes the following: A Pursuant to the Texas Declaratory Judgment Act, [appellants] hereby

[seek] a declaration of the rights, status and other legal relations between

[appellants] and Defendants with regard to the Real Estate Purchase Agreement

and the Tree Preservation Ordinance for the City. @ As relief, they asked for A judgment over and against Defendants for damages in excess of the

minimum jurisdictional limits of this Court, enhance[d] damages, punitive

damages, attorney = s fees,

costs, interest and general relief. @

Although appellants = request for relief expressly asks only for monetary damages and does

not clearly delineate the declaratory judgment relief that appellants are

seeking regarding the tree ordinance, the first amended petition does assert

that appellants are seeking a declaration of their rights and status under the

tree ordinance. Construing the petition

liberally in appellants = favor, we

hold that their claim for declaratory relief, on its face, does not seek to

impose damages or other liability on the City; therefore, on the pleadings

before us and the trial court, the City does not have immunity from appellants = cause of action under the Declaratory Judgment Act, and the trial

court erred by granting the City = s plea to the jurisdiction as to that claim. At the very least, appellants should have

been afforded the opportunity to replead to clarify the specific declaratory

relief sought. See Miranda , 133

S.W.3d at 226-27 .

Having determined that the

trial court erred by granting the City = s plea to the jurisdiction as to appellants = declaratory judgment claim but not as to their fraud and negligence

claims, we overrule appellants = first point in part and sustain it in part.

Conclusion

Having

overruled appellants = first point

in part and sustained it in part, we affirm the part of the trial court = s May 25, 2006 order granting the City = s plea to the jurisdiction as to appellants = fraud and negligence claims against the City. However, we reverse the part of its May 25,

2006 order granting the City = s plea to the jurisdiction as to appellants = claim under the Declaratory Judgment Act and remand to the trial

court for further proceedings consistent with this opinion. We dismiss the appeal of the part of the

trial court = s May 25,

2006 order granting the individual appellees = motion to dismiss, for want of jurisdiction.

TERRIE LIVINGSTON

JUSTICE

PANEL B: LIVINGSTON, GARDNER, and MCCOY, JJ.

DELIVERED:

February 1, 2007

[1] Sovereign

immunity refers to the State = s immunity while governmental

immunity refers to the immunity of political subdivisions of the State,

including counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor ,

106 S.W.3d 692 , 694 n.3 (Tex. 2003).

[2] The

remainder of the case against the development company remains pending and is

stayed during the interlocutory appeal of the grant of the City = s

plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. '

51.014(b).

[3] Section

101.106(e) provides that A [i]f

a suit is filed under this chapter [the TTCA] against both a governmental unit

and any of its employees, the employees shall immediately be dismissed on the

filing of a motion by the governmental unit. @ Tex.

Civ. Prac. & Rem. Code Ann . ' 101.106(e); Meroney v.

City of Colleyville , 200 S.W.3d 707, 712 (Tex. App. C Fort

Worth 2006, pet. filed).

[4] Section

101.025 of the TTCA waives a governmental entity = s

immunity from suit to the extent that its immunity from liability is waived

under the Act. Tex. Civ. Prac. & Rem. Code Ann. '

101.025.

[5] Additionally,

the trial court would also be without jurisdiction to impose any punitive

damages against the City. See Tex. Civ. Prac. & Rem. Code Ann. '

101.024; Durbin v. City of Winnsboro , 135 S.W.3d 317, 325 (Tex. App. C Texarkana

2004, pet. denied).