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Becky, Ltd. v. City of Cedar Park

Court of Appeals of Texas, Third District, Austin

May 19, 2017

Becky, Ltd., Appellant
The City of Cedar Park, Stephen Thomas, Matt Powell, Corbin Van Arsdale, Lyle Grimes, Lowell Moore, Jon Lux, & Don Tracy, Appellees


          Before Justices Puryear, Goodwin, and Bourland


          Cindy Olson Bourland, Justice

         In five issues, appellant, Becky, Ltd., challenges the trial court's grant of a plea to the jurisdiction filed by appellees, the City of Cedar Park ("the City") and City Council members Stephen Thomas, Matt Powell, Mitch Fuller, [1] Lyle Grimes, Lowell Moore, Jon Lux, and Don Tracy (collectively, "the City Council members").[2] We will affirm the order of the trial court.


         Becky owns a landlocked 13.49-acre tract of land in Cedar Park, Texas. Milestone Community Builders, Ltd. ("Milestone") sought to develop a 37.59-acre tract that is immediately adjacent to Becky's and is bordered on the opposite side by South Lakeline Boulevard, near its intersection with Old Mill Road.

         On September 12, 2013, the City Council approved, pending review by the City Attorney, a Unified Development Agreement with Milestone ("the Agreement") in which Milestone agreed to dedicate to the City an approximately 1200-foot-long public right-of-way for the extension of Old Mill Road ("the Old Mill Road Extension").[3] Milestone also agreed to construct an approximately 714-foot-long portion of the Old Mill Road Extension ("Phase 1"). In exchange for Milestone's agreement to dedicate the right-of-way for the Old Mill Road Extension and construct Phase 1, the City agreed to approve a water quality and detention facility on a different property. The Agreement did not require Milestone to complete the construction of the remaining approximately 497 feet of the Old Mill Road Extension ("Phase 2").[4] Phase 2, once constructed, would extend Old Mill Road to Becky's tract of land.[5] On September 17, 2013, the City of Cedar Park's Planning and Zoning Commission approved Milestone's final plat for its proposed subdivision, which shows the right-of-way for the Old Mill Road Extension through Milestone's tract. The City, through its City Manager and after approval by the City Attorney, executed the Agreement on October 7, 2013. Milestone later provided letters of credit and a cost estimate for the development project to the Planning and Zoning Commission, and the final plat was recorded in the public records of Williamson County on October 30, 2013.

         Becky brought suit in May 2014 against Milestone, the City, and the City Council members in their official capacities, challenging the validity of the Agreement and further seeking "a declaration construing [the City of Cedar Park Code of Ordinances § 12.01.001, et seq] and a declaration of its rights, status, and legal relations to Cedar Park as a result of the Agreement." Specifically, Becky sought the following declarations:

• "of the proper construction and application of §§ 12.03.004(a) and (b), 12.03.006, and 12.15.003(c) and (d) of the City's Subdivision Ordinance in light of Tex. Local Gov't Code § 212.006, and the rights, status, and legal relationship of the parties under those ordinances with respect to the Agreement;"
• "that the Agreement is void because it is an ultra vires act of the City and is contrary to the terms, purpose, and policy under Chapter 212 of the Local Government Code and contrary to the terms, purpose, and policy expressly adopted in Cedar Park's Subdivision ordinance in reliance on Chapter 212;" and
• "vacating the final plat on Milestone's tract because construction of all subdivision improvements to the boundary of Milestone's tract were not completed on a timely basis as required by Cedar Park Subdivision Ordinance, which mandates expiration of the plat under such circumstances."

Appellees filed a plea to the jurisdiction on the grounds of governmental immunity, standing, ripeness, and mootness, and Milestone filed a similar plea to the jurisdiction based on standing, ripeness, and mootness. The trial court granted Appellees' plea to the jurisdiction, without stating the grounds for its decision, and dismissed Becky's claims against Appellees. The trial court denied Milestone's plea to the jurisdiction and Becky's motion for new trial. Becky later severed its claims against Milestone, and this appeal followed.[6] The trial court abated Becky's claims against Milestone pending the outcome of this appeal.


         Governmental immunity from suit implicates courts' subject-matter jurisdiction. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016). Thus, such immunity is properly raised in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Because subject-matter jurisdiction is a question of law, we review a trial court's ruling on a plea to the jurisdiction de novo. Klumb v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015). When a plea to the jurisdiction challenges the pleadings, we determine if the pleading party has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009) (internal quotation marks omitted). We construe the pleadings liberally in favor of the pleading party and look to its intent. Id. Mere unsupported legal conclusions are insufficient. See Creedmoor-Maha Water Supply Corp. v. Texas Comm'n on Envtl. Quality, 307 S.W.3d 505, 515-16 & n.7 & 8 (Tex. App.-Austin 2010, no pet.). If the pleadings fail to allege sufficient facts to affirmatively demonstrate the trial court's jurisdiction but also fail to affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-27. If, on the other hand, 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. Id. at 227.


         In five issues, Becky challenges the trial court's order granting of Appellees' plea to the jurisdiction. Becky first asserts that it properly pled ultra vires acts by the City Council members so governmental immunity does not apply. Next, Becky asserts that the Uniform Declaratory Judgment Act (UDJA) waives the governmental immunity of the City for its claims because it is seeking construction of a municipal ordinance and statute. In its third, fourth, and fifth issues, ...

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