Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 22, 2017
Appeal from the County Court at Law No. 1 Jefferson County,
Texas Trial Cause No. 130641
McKeithen, C.J., Kreger and Johnson, JJ.
McKEITHEN CHIEF JUSTICE
an appeal from the trial court's order denying a plea to
the jurisdiction in a suit involving the City of
Beaumont's assertion of sovereign immunity. We affirm the
trial court's order denying the plea to the jurisdiction.
Factors Corporation ("Interflow") sued the City of
Beaumont, Texas ("the City") and Valory Barnett,
individually and d/b/a PCLC Landscape Management,
alleging that the City contracted with Barnett to provide
landscaping services and waived its immunity from liability
and from suit when it did so. Interflow alleged that Barnett
executed an agreement with Interflow "for the purpose of
factoring the invoices of her business" and assigned to
Interflow "the right to collect payment on present and
future accounts receivable owed by [the] City to PCLC"
pursuant to that agreement. Interflow pleaded that it
subsequently provided a Notice of Assignment to the City, in
which it informed the City of Interflow's right to
collect payment on present and future accounts receivable
that the City owed to Barnett, and the City then made
"over thirty electronic payments" to Interflow
based upon invoices Barnett submitted.
alleged that, at Barnett's request, the City directly
paid Barnett for four invoices that totaled $11, 847.00.
According to Interflow, Barnett's actions in requesting
direct payments from the City, using direct payments from the
City, and refusing to turn the payments over to Interflow
constituted breaches of the factoring agreement and caused
Interflow to suffer damages. Interflow asserted that when the
City received notice of the assignment, it became obligated
to pay the invoices to Interflow, and the City was obligated
to inquire about the status of the factoring agreement before
paying Barnett directly. According to Interflow, the
City's payments to Barnett did not discharge the
City's liability to Interflow pursuant to the invoices.
filing its answer, the City filed a plea to the jurisdiction,
in which it asserted that (1) it had not waived its immunity
from Interflow's breach of contract claims, (2) it had
fulfilled its contractual obligations, and (3) the payment of
additional monies would result in unjust enrichment.
According to the City, Interflow merely provided a loan to
Barnett, and did not provide goods or services to the City,
and the agreement was not properly executed on behalf of the
City. Attached to the City's plea as evidence were
Barnett's formal bid contract with the City, the notice
of assignment the City received from Interflow, and payment
records between the City and Barnett.
filed a response to the City's plea to the jurisdiction,
as well as a brief in support of its response. Interflow
asserted that by contracting with Barnett, the City waived
its right to immunity, and that because of the assignment,
Interflow now "stands in the shoes of Barnett when
seeking to collect invoices from [the] City." According
to Interflow, the assignment from Barnett to Interflow
"does not revive the immunity already waived by [the]
City." Interflow cited First-Citizens Bank &
Trust Co. v. Greater Austin Area Telecommunications
Network, 318 S.W.3d 560 (Tex. App.-Austin 2010, no
pet.), as support for its contention that the City had waived
immunity as to both Barnett and her assignee, Interflow. In
response, the City argued that First-Citizens Bank &
Trust Co. ("First-Citizens") is
distinguishable because in that case, the municipality was
withholding money, whereas the City is not withholding money
in this case.
trial judge initially signed an order granting the City's
plea to the jurisdiction, but then withdrew that order and
signed an order denying the plea to the jurisdiction after
Interflow filed a motion for reconsideration. The City then
filed this accelerated interlocutory appeal. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(West Supp. 2017).
sole appellate issue, the City challenges the trial
court's denial of its plea to the jurisdiction. We review
the trial court's jurisdictional ruling de novo.
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998); City of Dayton v. Gates, 126 S.W.3d
288, 289 (Tex. App.-Beaumont 2004, no pet.). We must
liberally construe the pleadings in favor of jurisdiction and
determine whether Interflow alleged facts that affirmatively
demonstrate the trial court's jurisdiction. See Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004); Peek v. Equip. Serv. Co. of San
Antonio, 779 S.W.2d 802, 804 (Tex. 1989). In determining
whether Interflow affirmatively demonstrated the trial
court's jurisdiction, "we consider the facts alleged
by the plaintiff and, to the extent it is relevant to the
jurisdictional issue, the evidence submitted by the
parties." Tex. Nat. Res. Conservation Comm'n v.
White, 46 S.W.3d 864, 868 (Tex. 2001). We do not
consider the merits of the claim except to the extent
necessary to determine jurisdiction. Miranda, 133
S.W.3d at 226-27.
First-Citizens Bank & Trust Co., a contractor
that sold cabling and installation services assigned its
accounts receivable to First-Citizens. Id. at 563.
First-Citizens sued Greater Austin Area Telecommunications
Network ("Greater Austin") and Austin Independent
School District ("Austin ISD") for breach of
contract. Id. at 563. Greater Austin and Austin ISD
filed a plea to the jurisdiction, in which they asserted that
the claim was barred by ...