Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-00368
Justices Lang-Miers, Brown, and Boatright
Dallas/Fort Worth International Airport Board appeals an
interlocutory order denying its plea to the jurisdiction. We
hold that the Board was engaged in a governmental function
and therefore enjoyed governmental immunity for most of the
claims against it. The Legislature, however, has waived the
Board's immunity with respect to the breach of contract
claim. We therefore affirm in part and reverse and render in
Board was established in 1968 by contract between the cities
of Dallas and Fort Worth. It consists of members from both
cities and has the exclusive authority to "plan,
acquire, establish, construct, improve, equip, maintain,
operate, regulate, protect, and police" the Dallas/Fort
Worth International Airport. Tex. Transp. Code Ann. §
22.074(c), (d) (West 2011). The Board is "a special
purpose governmental entity separate from each of the
cities." Dallas/Fort Worth Int'l Airport Bd. v.
Ass'n of Taxicab Operators, USA, 427 S.W.3d 547, 548
(Tex. App.-Dallas 2014, pet. denied). It has the exclusive
power to operate DFW Airport for the cities. Id. at
contract establishing the Board authorizes it to contract for
professional services and to fix the time, manner, and
payment for these services. This contract establishes an
executive director as the Board's chief officer, who is
required to make recommendations to the Board in connection
with the Board's exercise of its contract-based powers.
In addition, a 2007 Board resolution authorizes its staff to
execute contracts on behalf of the Board in an amount up to
$50, 000 without the Board's express approval. Pursuant
to this delegated authority, Board staff in 2012 retained a
third-party consultant, appellee Vizant Technologies, LLC, to
analyze the Board's credit-card processing costs.
parties finalized their engagement in a consulting agreement
signed on August 29, 2012. The duration of the agreement was
thirty-six months from the date of the first invoice.
Vizant's fee was to be based on the reduction in
payment-processing costs that it achieved. The agreement also
provided that Vizant's compensation would not exceed $50,
000 and that Vizant would stop work once its compensation
reached this limit. The Board staff would then "make a
good faith effort" to obtain Board authorization to
increase the limit.
delivered the consulting services contemplated by the
agreement, and by its calculations it was due fees after the
first year that greatly exceeded $50, 000. Pursuant to the
"good faith effort" clause, Vizant in November 2013
sought to increase the $50, 000 limit under the contract.
Board staff in June 2014 submitted a request to the Board for
a revised limit of $330, 000, but the Board rejected the
request. The Board paid Vizant's $50, 000 fee as
specified in the agreement.
sued the Board for breach of contract, fraudulent inducement,
fraud-in-the-performance, promissory estoppel, and
attorney's fees. The Board filed a plea to the
jurisdiction that challenged Vizant's pleadings on the
ground that Vizant's fraud and promissory estoppel claims
were barred by governmental immunity. Following a hearing, the
district court denied the Board's plea to the
jurisdiction. This interlocutory appeal followed.
immunity deprives a trial court of subject matter
jurisdiction for lawsuits in which certain governmental units
have been sued. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 224 (Tex. 2004). We review a
trial court's decision about whether it has jurisdiction
de novo. Id. at 228. When a plea to the jurisdiction
challenges the pleadings, we determine whether the pleader
has alleged facts that affirmatively demonstrate the
court's jurisdiction, and we construe the pleadings
liberally in favor of the plaintiff, looking to the
pleaders' intent. Id. at 226. We indulge every
reasonable inference and resolve all doubts in the
plaintiff's favor. Id. at 228. We are not
required to look solely at the pleadings but may consider
evidence and must do so when necessary to resolve the
jurisdictional issues raised. Bland Indep. School Dist.
v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). We first
determine whether immunity applies and, if it does, we defer
to the Legislature's decision to waive, or not to waive,
such immunity. Wasson Interests, Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 435 (Tex. 2016).
subdivisions of the state are immune from suit when they
perform governmental functions, but not when they perform
proprietary functions. Id. at 430. The Board argues
that Vizant's claims are related to the operation of an
airport, which is a governmental function. Vizant, however,
contends that the issue is not whether the Board engaged in
functions that are classifiable as either governmental or
proprietary, but whether the negotiation and performance of
the agreement constituted governmental or proprietary
functions. Mindful of our obligation to construe the
pleadings in Vizant's favor, Miranda, 133 ...