Appeal from the 152nd District Court Harris County, Texas
Trial Court Cause No. 2017-56765
consists of Justices Christopher, Bourliot, and Zimmerer.
FRANCES BOURLIOT JUSTICE
a dispute involving an easement agreement. In three issues,
Houston Community College (HCC) challenges the trial
court's grant of summary judgment in favor of HV BTW, LP
(the Partnership) on the grounds that HCC is entitled to
immunity from suit and the Partnership did not conclusively
establish the easement agreement was properly executed by
HCC. We conclude that HCC did not meet its burden to show its
entitlement to immunity from suit. We further conclude that
the trial court erred in rendering summary judgment in favor
of the Partnership.
we reverse and remand.
owns a vacant lot on Lumpkin Road in Houston, Texas (the
Property). The Partnership owns an adjacent commercial
building on Old Katy Road. In 2013, the Partnership
approached HCC about obtaining an easement on the Property
from Lumpkin Road.
agreed to grant the easement. HCC and the Partnership
executed an "Easement Acquisition Agreement." An
"Access Easement and Right of Way Agreement" was
attached as an exhibit to the Easement Acquisition Agreement.
We refer to these agreements collectively as the Easement
Agreement or the Agreements. The Agreements were signed on
behalf of HCC by its acting chancellor Renee Byas and
approved as to form by HCC's general counsel. As set
forth in the Easement Agreement, as consideration for the
easement, The Partnership agreed to construct "at its
sole cost and expense, certain parking facilities on the
Property" in accordance with plans approved by HCC and
the Partnership. After the Agreements were signed, Byas
left HCC. The Partnership alleges that it "spent over
$500, 000 in engineering and permitting costs and fees,
demolition costs, grading, and constructing drainage, curbs,
and landscaping on the HCC Property." According to the
Partnership, the only things left to be done are paving the
road and parking lot and striping the parking lot.
the paving work, the Partnership needed approval from
CenterPoint Energy, which had a utility easement on the
Property. To obtain the approval, CenterPoint required a
signed "Consent to Encroach" from HCC. The
Partnership submitted the consent form to HCC. HCC refused to
sign it unless the Partnership agreed to a license agreement
instead of an easement.
Partnership filed a lawsuit against HCC alleging breach of
contract and seeking a declaration that the Partnership has
an easement on the Property. The Partnership sought actual
damages, specific performance, and attorney's fees. HCC
filed a plea to the jurisdiction. The Partnership filed a
motion for final summary judgment. The trial court rendered
final summary judgment and ordered HCC to file an executed
Access Easement and Right of Way Agreement in the Harris
County real property records. The trial court also declared
that the Partnership has an easement on the Property and
awarded the Partnership attorney's fees.
three issues, HCC contends the trial court erred in
implicitly denying its plea to the jurisdiction because,
according to HCC, it is immune from suit as to the
Partnership's claims. Alternatively, HCC argues the trial
court erred in granting summary judgment in favor of the
No Error in Denying Plea to the Jurisdiction
argues it is entitled to immunity from suit as a political
subdivision for which immunity has not been waived. The
Partnership contends immunity has been waived under chapter
271 of the Local Government Code, which waives governmental
immunity from suit for a governmental entity that enters into
a contract for services. See City of Galveston v. CDM
Smith, Inc., 470 S.W.3d 558, 563 (Tex. App.-Houston
[14th Dist.] 2015, pet. denied).
a public community college, is a political subdivision of the
state and, thus, protected by governmental immunity. See
Thielemann v. Blinn Bd. of Trustees, No. 01-14-00595-CV,
2015 WL 1247018, at *2 (Tex. App.-Houston [1st Dist.] Mar.
17, 2015, no pet.) (mem. op.); see also Tex. Civ.
Prac. & Rem. Code § 101.001(3)(A)-(B). Governmental
immunity includes both immunity from liability, which bars
enforcement of a judgment against a governmental entity, and
immunity from suit, which bars suit against the entity
altogether. Lubbock Cty. Water Control & Imp. Dist.
v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex.
2014); CDM Smith, 470 S.W.3d at 563. A governmental
entity that enters into a contract necessarily waives
immunity from liability, voluntarily binding itself like any
other party to the terms of agreement, but it does not waive
immunity from suit. Church & Akin, 442 S.W.3d at
300; CDM Smith, 470 S.W.3d at 563. Unlike immunity
from liability, immunity from suit deprives the courts of
jurisdiction and thus completely bars the plaintiff's
claim. Church & Akin, 442 S.W.3d at 300; CDM
Smith, 470 S.W.3d at 563.
review a plea challenging the trial court's jurisdiction
de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex.
2007). When a plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider relevant
evidence submitted by the parties. Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227
(Tex. 2004); CDM Smith, 470 S.W.3d at 564. The
standard of review for a jurisdictional plea based on
evidence "generally mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c)."
Miranda, 133 S.W.3d at 228. Under this standard, we
credit evidence favoring the nonmovant and draw all
reasonable inferences in the nonmovant's favor. See
id. The defendant must assert the absence of
subject-matter jurisdiction and present conclusive proof that
the trial court lacks subject-matter jurisdiction.
Id. If the defendant discharges this burden, the
plaintiff must present evidence sufficient to raise a
material issue of fact regarding jurisdiction, or the plea
will be sustained. Id.
discussed, under chapter 271 the legislature waived sovereign
immunity as to local governmental entities that enter into
contracts for goods or services for the purpose of
adjudicating claims for breach of contract. Tex. Loc.
Gov't Code §§ 271.151(2)(A), 271.152. Section
271.151(2)(A), in relevant part, defines the types of
contracts subject to the waiver of immunity: "a written
contract stating the essential terms of the agreement for
providing goods or services to the local governmental entity
that is properly executed on behalf of the local governmental
entity." Id. § 271.151(2)(A). HCC argues
that chapter 271 does not apply because the subject contract
(1) does not provide for goods or services to HCC, (2) does
not include certain essential terms, and (3) was not properly
executed under the statute. HCC further contends that the
Partnership is not entitled to the remedy of specific
performance under chapter 271 or to a declaration regarding
the validity of the easement.
Contract for Services
argues that the Easement Agreement is not a contract for
services to HCC because "an easement is an interest in
land" and HCC will not receive a direct benefit. The
dispositive issue is whether the Partnership, in agreeing to
construct parking facilities on the Property, agreed to
provide a service to HCC.
271 does not define "services," but the supreme
court has interpreted the term in this context as "broad
enough to encompass a wide array of activities."
Kirby Lake Dev., Ltd. v. Clear Lake City Water
Auth., 320 S.W.3d 829, 839 (Tex. 2010); CDM
Smith, 470 S.W.3d at 566. It generally includes any act
performed for the benefit of another under some arrangement
or agreement whereby such act was to have been performed.
CDM Smith, 470 S.W.3d at 566. The services provided
need not be the primary purpose of the agreement. Kirby
Lake Dev., 320 S.W.3d at 839; CDM Smith, 470
S.W.3d at 566.
cites three cases in support of the argument that the
Easement Agreement does not provide for services to HCC.
See Church & Akin, 442 S.W.3d at 297; Water
Expl. Co. v. Bexar Metro. Water Dist., 345 S.W.3d 492
(Tex. App.-San Antonio 2011, no pet.); City of Garden
Ridge v. Ray, No. 03-06-00197-CV, 2007 WL 486395 (Tex.
App.-Austin Feb. 15, 2007, no pet.) (mem. op.). Each case is
distinguishable from the facts of this case.
first case, Church & Akin leased a marina from the
Lubbock County Water Control and Improvement District.
Church & Akin, 442 S.W.3d at 303. The lease
prohibited Church & Akin from using the premises for any
other purpose than as a marina without consent. Id.
Church & Akin argued that by operating the marina it was
providing a service to the Water District. Id. at
302. The supreme court disagreed because under the lease, the
Water District did not obligate Church & Akin to operate
a marina-it only restricted Church & Akin from using the
premises for a different purpose without consent.
Id. at 303. The court concluded, "When a party
has no right under a contract to receive services, the mere
fact that it may receive services as a result of the contract
is insufficient to invoke chapter 271's waiver of
Water Exploration Company case, the San Antonio
Court of Appeals held that the assignment by Water
Exploration Company (WECO) of leases of groundwater property
rights, wells, pumps, and easements to Bexar Metropolitan
Water District (BexarMet) was not a contract for services
because the nature of the property was a lease of real
property even though WECO was required (1) to cure any
failure to meet water quality standards or allow BexarMet to
terminate the lease for any such failure, and (2) to maintain
a minimum amount of water production with an option to cure
any such failure. 345 S.W.3d at 496-98. The court construed
these provisions as options to cure, not as services.
Id. at 501. Because BexarMet had leased a real
estate interest from WECO, BexarMet was responsible for
operating, maintaining, repairing, and replacing existing
facilities and constructing new ones and WECO's options
to cure were contingent on the leased property being
unusable, the court held that the leases did not trigger
governmental immunity under chapter 271. Id.
Garden Ridge case involved a drainage culvert
maintained by the City of Garden Ridge pursuant to an
easement agreement granted in favor of the city. 2007 WL
486395, at *1. Ray sued the city for flooding related to the
city's construction and maintenance of the culvert.
Id. No statutory waiver applied to Ray's breach
of contract claim. Id. at *1 n.1.
facts of this case are more akin to a case cited by the
Partnership, Clear Lake City Water Authority v.
Friendswood Development Co., 256 S.W.3d 735 (Tex.
App.-Houston [14th Dist.] 2008, pet. dism'd),
disapproved on other grounds by Rusk State Hosp. v.
Black, 392 S.W.3d 88 (Tex. 2012). In that case,
Friendswood Development agreed to arrange for the
construction of water distribution lines, sanitary sewer
lines, and drainage facilities to provide service to houses
Friendswood Development proposed to build. Id. at
738-39. Clear Lake City Water Authority agreed to purchase or
lease the completed facilities. Id. at 739. We
concluded that Friendswood Development's agreement to
construct the facilities and to build streets, roads, and
bridges constituted a provision ...