Arlo L. Schriver as Trustee of the Schriver Family Trust v. the Texas Department of Transportation

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-08-337-CV

ARLO L.

SCHRIVER AS TRUSTEE

OF THE SCHRIVER FAMILY TRUST APPELLANT

V.

THE TEXAS DEPARTMENT OF APPELLEE

TRANSPORTATION

------------

FROM THE 141ST

DISTRICT COURT OF TARRANT COUNTY

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OPINION

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In a single issue, appellant Arlo L. Schriver as

trustee of the Schriver Family Trust (the Trust) asserts that the trial court

erred in granting the plea to the jurisdiction filed by appellee the Texas

Department of Transportation (TxDOT). We

affirm.

I. Background

The Trust owns approximately .251 acres of land

in Tarrant County (the Property) that is subject to a twenty-year billboard

lease held by Clear Channel Outdoor, Inc. (Clear Channel). In May 2006, Halff Associates, Inc. (Halff),

purporting to act for TxDOT, sent a letter to the Trust stating that TxDOT

intended to acquire the Property for construction of State Highway 121. Citing an independent appraisal, TxDOT

(through Halff) offered to pay the Trust $293,300 for all interests in the

Property. The offer directed the Trust

to negotiate with any lessees or interest owners in the Property.

A few weeks later, the Trust = s

attorney sent a letter to Halff purporting to accept TxDOT = s offer

but stating that its acceptance applied to A the

Trust = s

interest in the Property alone, exclusive of any other interests in the

Property. @

Moreover, the Trust rejected TxDOT = s

directive that the Trust negotiate with lessees of the Property.

Halff = s letter

in response acknowledged the Trust = s A acceptance @ but

sought to A ameliorate any misunderstanding

that might have been present in [the parties = ] previous

communications. @

Specifically, the letter explained that TxDOT = s offer

represented one hundred percent of the appraised value, required the Trust to

negotiate with any lessees so that it could provide A fee

simple @ title,

and was A the only

offer anyone will offer the Trust. @

The Trust disputed the legality of TxDOT = s

requirement that the Trust negotiate with other interest owners in the

Property. The Trust also expressed

concern about Halff = s authority to act on behalf of

TxDOT and informed Halff that it would not further respond to TxDOT = s offer

until Halff provided documents establishing Halff = s

authority. Halff then sent the Trust a

formal final-offer letter and explained that if the offer was not accepted

within ten days, it would be deemed rejected.

The letter also stated that if the Trust did not accept the offer, TxDOT

would commence eminent domain proceedings to condemn the Property.

In response, the Trust stated that A we stand

by our prior acceptance of TxDOT = s offer

to purchase the Trust = s interest in the Property for

the sum of $293,300.00. @

The Trust also again requested documentation establishing Halff = s

authority. Thereafter, Halff forwarded

the Trust an e-mail from TxDOT discussing the Trust = s

assertions. TxDOT explained that A the fee

simple interest . . . that has been offered, is for all interests in the

property. @

TxDOT also disagreed with the Trust = s

assertion that TxDOT had to negotiate separately with each owner of an interest

in the Property. Finally, TxDOT refused

to close with the Trust unless the Trust would agree to dispose of all

interests of any owners in the Property.

The Trust then filed suit against Halff and TxDOT

under the Uniform Declaratory Judgments Act (UDJA), seeking declaratory relief

to resolve the parties = disputes as to: (1) whether

Halff had authority to negotiate on behalf of and bind TxDOT to a

pre-condemnation agreement with the Trust; (2) the legality of the requirement

that the Trust deal with other interest owners on TxDOT = s

behalf; and (3) the validity and construction of, and the parties = status

and rights with respect to, the written settlement agreement the Trust believes

was reached pursuant to the parties =

communications. The Trust also requested

an award of costs and attorney = s fees.

TxDOT answered and filed a plea to the

jurisdiction asserting sovereign immunity from the Trust = s

suit. The trial court granted TxDOT = s plea

to the jurisdiction and this interlocutory appeal followed. [1]

II.

Standard of Review

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. [2] In reviewing the denial of a plea to the

jurisdiction, we do not review the merits of the case. [3] We construe the pleadings liberally in favor

of the plaintiff and look to the plaintiff = s

intent. [4] Our focus is not on the plaintiff = s claims

but on the allegations in the pleadings. [5] Whether a plaintiff 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. [6]

III.

Analysis

In a single issue, the Trust asserts that the

trial court has subject matter jurisdiction over its declaratory judgment

action because the parties entered an agreement settling an eminent domain

claim for which TxDOT = s immunity from suit was waived

and, therefore, TxDOT = s immunity is likewise waived

for the Trust = s claims for declarations

construing the agreement. [7] Alternatively, the Trust asserts that it

raised a fact issue about the existence of an agreement and the trial court

could not act on TxDOT = s plea to the jurisdiction

without first resolving that threshold fact.

TxDOT responds that as a matter of law there is no contract between the

Trust and TxDOT, and without a contract settling a claim for which immunity is

waived, there is no waiver of immunity for breach of contract.

A. Applicable Law C No

Waiver of Immunity For Mere Negotiations

TxDOT possesses immunity from suit and from

liability. [8] Although a governmental entity like TxDOT

waives immunity from liability when it contracts with private citizens, its

immunity from suit is not waived solely by its entering into such a contract. [9] Express legislative consent, in clear and

unambiguous language, is required to show that immunity from a breach of

contract suit has been waived. [10]

In Lawson , a plurality of the Supreme

Court of Texas concluded that when a governmental entity settles a claim for

which immunity from suit has been waived, immunity from suit is also waived for

a breach of the settlement agreement. [11] The plurality reasoned that A when a

governmental entity is exposed to suit because of a waiver of immunity, it

cannot nullify that waiver by settling the claim with an agreement on which it

cannot be sued. @ [12]

Following the Lawson plurality = s

reasoning, this court held in Singer that sovereign immunity does not

bar a breach of contract claim against a governmental entity where the contract

at issue settles an eminent domain claim. [13] In eminent domain actions, a landowner has a

constitutional claim for adequate compensation against the condemnor, and there

is no sovereign immunity against such claim. [14] We reasoned in Singer that, just as in

Lawson , a governmental entity cannot claim immunity from a landowner = s claim

for adequate compensation under article I, section 17 of the Texas

Constitution, by contracting to purchase the property for a public purpose

before initiating eminent domain proceedings. [15] We recognized that A [a]n

agreement to convey property to a governmental authority for a public purpose

has the same effect as a formal condemnation proceeding. @ [16]

Under Texas law, however, mere negotiations for

the purchase of property that do not result in the formation of a contract do

not afford the owner the right to recover damages from the State, A because

there has been neither a taking or any character of a physical invasion of the

property. @ [17] Government action does not give rise to a

cause of action under article I, section 17, A in the

absence of a current, direct restriction on the property = s use. @ [18] Thus, while negotiations are a

statutorily-mandated prerequisite to filing a condemnation action, the mere

fact that a governmental entity engages in such negotiations does not, without

more, trigger a waiver of governmental immunity under article I, section 17. [19] Accordingly, to establish a waiver of

immunity for a breach of contract claim predicated on an underlying eminent

domain action, a party must establish the existence of an agreement by which a

governmental entity contracted to acquire property for a public purpose. [20]

Settlement agreements are governed by the law of

contracts. [21] Under Texas law, the requirements of a

contract are: (1) an offer; (2) an acceptance in strict compliance with the

terms of the offer; (3) a meeting of the minds; (4) each party = s

consent to the terms; and (5) execution and delivery of the contract with the

intent that it be mutual and binding. [22] A [A]n

acceptance must be identical with the offer to make a binding contract. @ [23] If the acceptance modifies the terms of an

offer, there is no agreement because the modification constitutes a

counteroffer. [24]

B. No Settlement Agreement C No

Waiver of Immunity

Here, TxDOT made an offer to the Trust to

purchase all interests in the Property for $293,300. The offer directed the Trust to negotiate

with any lessees or interest owners in the Property. The Trust = s

purported acceptance modified this offer in two respects and, therefore, there

was neither a valid acceptance nor a meeting of the minds. [25]

First, although TxDOT offered to purchase the

Property without any qualification, the Trust = s

response stated that the Trust = s A acceptance @ applied

only to A the

Trust = s

interest in the Property alone, exclusive of any other interests in the

Property. @

Second, although the offer explained that TxDOT expected the Trust to

negotiate with lessees regarding their interests in the Property, the Trust

declined to negotiate with lessees and indicated that TxDOT would have to

acquire leasehold interests in the Property on its own. Thus, the response proposed modifications to

both the scope of the property to be purchased and the terms by which lessees =

interests in the Property would be negotiated.

Because the Trust = s

response to TxDOT = s offer proposed modifications

of the scope of the interest that TxDOT sought to acquire and the terms for

dealing with lessees, the A acceptance @ was

actually a counteroffer. [26] The parties never reached any agreement

regarding the Trust = s counteroffer and,

consequently, as a matter of law no contract was formed. Absent a contract settling a claim for which

immunity was waived, there was no waiver of TxDOT = s immunity

against the Trust = s declaratory judgment action. [27] The trial court, therefore, did not err in

granting TxDOT = s plea to the jurisdiction.

IV.

Conclusion

For the foregoing reasons, we affirm the trial

court = s order

granting TxDOT = s plea to the jurisdiction.

JOHN

CAYCE

CHIEF

JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON

and WALKER, JJ.

LIVINGSTON, J. filed a concurring opinion.

DELIVERED: July 30, 2009

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-08-337-CV

ARLO L. SCHRIVER AS

TRUSTEE APPELLANT

OF THE SCHRIVER FAMILY

TRUST

V.

THE

TEXAS DEPARTMENT OF APPELLEE

TRANSPORTATION

------------

FROM

THE 141ST DISTRICT COURT OF TARRANT COUNTY

------------

CONCURRING

OPINION

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I concur with the majority = s

conclusion that as a matter of law, the parties to this case did not enter any

contract, and the precedents of the supreme court and our court related to

agreements settling immunity-waived claims do not therefore apply. See Tex. A & M Univ.‑Kingsville

v. Lawson , 87 S.W.3d 518 , 522 B 23 (Tex.

2002); City of Carrollton v. Singer , 232 S.W.3d 790 , 799 B 800

(Tex. App. C Fort Worth 2007, pet. denied). 1

However, I write separately to expand upon some of the statements made

by the majority in reaching its decision and to opine that if the parties in

this case had entered into a valid contract, TxDOT = s

immunity would be waived under Singer .

The majority states that immunity from suit is

not waived solely by a government entity = s

entering into a contract with a private citizen. Majority op. at 6. While that legal principle may be true in

some circumstances, it is not true in others.

The majority acknowledges that immunity can be waived by entering

a contract where the government is not immune from the claim that the contract

settles. See Lawson , 87 S.W.3d at

522 B 23; Singer ,

232 S.W.3d at 799 B 800. Furthermore, a condition precedent to eminent

domain proceedings C governmental attempts to settle C was

occurring at the time of the completed settlement (in Singer ) and at the

time the parties were exchanging conflicting settlement proposals (in this

case). 2 See

Singer , 232 S.W.3d at 797 (describing that A a

genuine effort to purchase the land by agreement between the parties, and the

failure to do so, is a condition precedent to instituting eminent domain

proceedings @ ); see also Tex. Prop.

Code Ann. ' 21.012(b)(4) (Vernon Supp.

2008) (dictating that a condemnation petition may be filed only after the

government = s failure to reach an agreement

with a landowner). Thus, I reiterate

that had the parties to this suit completed their statutorily required

settlement negotiations and properly formed a contract, thus avoiding TxDOT = s

liability in an eminent domain proceeding for which immunity is waived, TxDOT

would have no immunity for a breach of that contract, just as the City of

Carrollton had no immunity for a suit claiming a breach of its agreement in Singer .

Having expressed these concerns about the

majority = s

opinion, I respectfully concur but otherwise join in its opinion and judgment.

TERRIE

LIVINGSTON

JUSTICE

DELIVERED: July 30, 2009

[1] See Tex. Civ. Prac. &

Rem. Code Ann. ' 51.014(a)(8)

(Vernon 2008). Halff is not a party to

this appeal.

[2] See Tex. Dep = t of Parks & Wildlife

v. Miranda ,

133 S.W.3d 217 , 225 B 26 (Tex. 2004); City

of Carrollton v. Singer , 232 S.W.3d 790, 794 (Tex. App. C Fort Worth 2007, pet.

denied).

[3] See State v. Fiesta Mart,

Inc. ,

233 S.W.3d 50 , 53 B 54 (Tex. App. C Houston [14th Dist.]

2007, pet. denied) (citing Chocolate Bayou Water Co. & Sand Supply v.

Tex. Natural Res. Conservation Comm'n , 124 S.W.3d 844, 849 (Tex. App. C Austin 2003, pet.

denied)).

[4] See Miranda , 133 S.W.3d at 226 ; Singer ,

232 S.W.3d at 795 .

[5] See Bland Indep. Sch.

Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000); Werthmann v. City of Fort Worth ,

121 S.W.3d 803, 806 (Tex. App. C Fort Worth 2003, no pet.).

[6] See Miranda , 133 S.W.3d at 226 ; Singer ,

232 S.W.3d at 794 .

[7] See Tex. A & M

Univ.-Kingsville v. Lawson , 87 S.W.3d 518 , 521 B 22 (Tex. 2002) (plurality op.); Singer ,

232 S.W.3d at 800 . We note that a party

cannot circumvent a sovereign immunity bar by recasting a breach of contract

claim as a UDJA claim. See Tex.

Natural Res. Conservation Comm = n v. IT-Davy , 74 S.W.3d 849, 856 (Tex. 2002); Koch

v. Tex. Gen. Land Office , 273 S.W.3d 451, 455 (Tex. App. C Austin 2008, pet.

filed). The Trust, however, does not

assert that TxDOT = s immunity is waived

under the UDJA.

[8] See Fed. Sign v. Tex. S.

Univ. ,

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

[9] See Catalina Dev., Inc.

v. County of El Paso , 121 S.W.3d 704, 705 (Tex. 2003); Gen. Servs. Comm = n v. Little-Tex

Insulation Co. , 39 S.W.3d 591, 594 (Tex. 2001).

Under Chapter 271 of the Local Government Code, however, when a properly

executed and authorized contract provides goods or services to a local

government, the local government waives sovereign immunity to suit for the

purpose of adjudicating a claim for breach of the contract. See Tex. Loc. Gov = t Code Ann. ' ' 271.151-.152 (Vernon

2005); Singer at 795 n. 4. Chapter 271 specifically excludes its

application to TxDOT, however, and the Trust has not argued that the chapter is

applicable. Tex. Loc. Gov = t Code Ann. ' 271.151(3); Tex. Gov = t Code Ann. ' 2260.001(4) (Vernon

2008).

[10] See Tex. Gov = t Code Ann. ' 311.034 (Vernon Supp.

2008); Travis County v. Pelzel & Assocs., Inc. , 77 S.W.3d 246, 248

(Tex. 2002).

[11] 87 S.W.3d at 521 B 22.

[12] Id. at 521.

[13] See Singer , 232 S.W.3d at 800 .

[14] Tex. Const. art. I, ' 17; Singer , 232

S.W.3d at 796 .

[15] Singer , 232 S.W.3d at 796 .

[16] See id. at 798.

[17] Westgate, Ltd. v. State , 843 S.W.2d 448, 452

(Tex. 1992) (quoting State v. Vaughan , 319 S.W.2d 349, 354 (Tex. Civ.

App. C Austin 1958, no writ) ( A [T]he condemnation may be

completely abandoned and the property never taken. @ )).

[18] Westgate , 843 S.W.2d at 452 .

[19] See Tex. Prop. Code Ann. ' 21.012(a), (b)(4)

(Vernon Supp. 2008).

[20] The dissent in Singer

concluded that because the contract at issue was not a settlement agreement, A Lawson clearly has no

application to the facts of [the] case. @ Singer ,

232 S.W.3d at 801 (Cayce, C.J., dissenting).

[21] Schlumberger Tech. Corp.

v. Swanson ,

959 S.W.2d 171, 178 (Tex. 1997); Williams v. Glash , 789 S.W.2d 261, 264

(Tex. 1990).

[22] Hubbard v. Shankle , 138 S.W.3d 474, 481

(Tex. App. C Fort Worth 2004, pet.

denied).

[23] Gasmark, Ltd. v. Kimball

Energy Corp. ,

868 S.W.2d 925, 928 (Tex. App. C Fort Worth 1994, no writ); see also MTrust

Corp. N.A. v. LJH Corp. , 837 S.W.2d 250, 254 (Tex. App. C Fort Worth 1992, writ

denied).

[24] Gasmark , 868 S.W.2d at 928 ; MTrust

Corp. , 837 S.W.2d at 254 .

[25] See Gasmark , 868 S.W.2d at 928 ;

MTrust Corp. , 837 S.W.2d at 254 .

[26] See Gasmark , 868 S.W.2d at 928 ; MTrust

Corp. , 837 S.W.2d at 254 (material modification of the terms of an offer

constitutes a counteroffer).

[27] See Singer , 232 S.W.3d at 798 .

1 Citing Lawson , the Trust has argued

that we cannot consider the validity of the parties = contract in making our

decision in this case. In Lawson ,

the supreme court stated that it would not consider whether a settlement

agreement was void because of the posture of that case, in which no evidence or

argument on the validity of the agreement had been offered in the trial

court. Lawson , 87 S.W.3d at

523 . Here, the parties provided evidence

in the trial court of their written communications with each other, and they

argued about the completion of their contract negotiations. Also, there is an obvious difference between

consideration in an interlocutory appeal of whether an undisputedly completed

agreement is void for reasons unrelated to the agreement = s formation, as was the

issue in Lawson , and whether there is even an agreement to begin with

that could be subject to Lawson = s analysis, as is the case here. See id.

2 Here, Halff Associates, TxDOT = s agent in the

condemnation process, sent the Trust a letter stating that its property was A required for the

construction @ of State Highway

121. Halff Associates described its

letter as a A stage of the purchase

process @ and then referenced

eminent domain proceedings. In a later

letter, Halff Associates recognized that it was attempting to acquire a

right-of-way A under the threat of

condemnation. @