San Antonio Housing Authority v. Serento Apartments, LLC

ACCEPTED
04-15-00075-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/16/2015 2:18:35 PM
KEITH HOTTLE
CLERK
Cause No. 04-15-00075-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
FOURTH JUDICIAL DISTRICT OF TEXASSAN ANTONIO, TEXAS
AT SAN ANTONIO, TEXAS 03/16/2015 2:18:35 PM
KEITH E. HOTTLE
Clerk
SAN ANTONIO HOUSING AUTHORITY
Appellant/Defendant,
v.
SERENTO APARTMENTS, LLC,
Appellee/Plaintiff.
ON APPEAL FROM
TH
288 JUDICIAL DISTRICT COURT
BEXAR COUNTY, TEXAS
CAUSE NO. 2014-CI-16503
APPELLANT’S BRIEF
N. MARK RALLS
State Bar No. 16489200
Email: mralls@hfdlaw.com
APRIL Y. QUIÑONES
State Bar No. 24079167
Email: aquinones@hfdlaw.com
HOBLIT FERGUSON DARLING LLP
Bank of America Plaza
300 Convent Street, Suite 1450
San Antonio, Texas 78205
Telephone No. (210) 224-9991
Facsimile No. (210) 226-1544
ATTORNEYS FOR APPELLANT,
SAN ANTONIO HOUSING AUTHORITY
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Names of the Parties and Their Counsel ............................................................................ iv
Request for Oral Argument ................................................................................................ iv
List of Authorities ................................................................................................................ v
Brief of Appellant ................................................................................................................ 1
I. Statement of the Case ............................................................................................... 1
II. Statement of Jurisdiction .......................................................................................... 2
III. Issues Presented ........................................................................................................ 2
1. The trial court erred in denying the San Antonio Housing Authority’s
(“SAHA”) Plea to the Jurisdiction because Plaintiff did not plead any
facts nor provide evidence that would demonstrate a waiver of SAHA’s
governmental and sovereign immunity.
2. The trial court erred in denying SAHA’s Plea to the Jurisdiction because
the contract made the basis of Plaintiff’s lawsuit was a “Housing
Assistance Program Contract Pursuant to Section 8 Moderate
Rehabilitation Program, which provides rental assistance for low
income families,” and it is not a contract “for providing goods or
services to” the San Antonio Housing Authority, as defined by Texas
Local Government Code, Section 271.151(2). Consequently, the limited
waiver of governmental immunity from suit set forth in Texas Local
Government Code, Section 271.152 does not apply to waive SAHA’s
governmental and sovereign immunity from suit on the contract.
IV. Statement of Facts .................................................................................................... 3
V. Summary of the Argument ....................................................................................... 5
VI. Standard of Review Is De Novo ............................................................................... 6
VII. Arguments and Authorities ...................................................................................... 8
A. Plaintiff Alleged No Facts that SAHA’s Entitlement to Immunity Is Waived .. 8
B. Section 271.152’s Waiver of Immunity Does Not Apply to Contract ............... 9
ii
1. Government Acting as a Conduit of Federal Funds Does Not Constitute a
Waiver of Immunity and Low-Income Housing is Not Considered a
“Good” or “Service” .................................................................................... 10
2. Contracts that Deal with Real Estate Do Not Waive Immunity.................. 11
3. Statute Waiving Governmental Immunity Must be Strictly Construed ...... 11
VIII. Prayer ...................................................................................................................... 13
Certificate of Service ......................................................................................................... 14
iii
NAMES OF THE PARTIES AND THEIR COUNSEL
Pursuant to and in compliance with Texas Rule of Appellate Procedure 38, the
parties to this appeal are the following:
DEFENDANT/APPELLANT: SAN ANTONIO HOUSING AUTHORITY
COUNSEL FOR DEFENDANT/ HOBLIT FERGUSON DARLING LLP
APPELLANT: N. Mark Ralls
April Y. Quiñones
Bank of America Plaza
300 Convent Street, Suite 1450
San Antonio, Texas 78205
Telephone No. (210) 224-9991
Facsimile No. (210) 226-1544
PLAINTIFF/APPELLEE SERENTO APARTMENTS, LLC
COUNSEL FOR PLAINTIFF/ LAW OFFICE OF JAMES A. RICKERSON
APPELLEE: James A. Rickerson
111 E. Euclid
San Antonio, Texas 78212
Telephone No. (210) 363-2399
Facsimile No. (210) 734-8097
REQUEST FOR ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39, Appellant respectfully requests
oral argument in this case.
iv
LIST OF AUTHORITIES
Cases:
Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25
(Tex. App.—San Antonio 2006, pet. dism’d) ................................................................. 11
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) .............................................. 6
City of Galveston v. State, 217 S.W.3d 466 (Tex. 2007) .................................................. 8, 12
City of Houston v. Jackson, 192 S.W.3d 764 (Tex. 2006) ................................................... 12
City of Houston v. Northwood Mun. Utility Dist. No. 1, 73 S.W.3d 304 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied) ....................................................................8
City of San Antonio v. Reed S. Lehman Grain, Ltd., No. 04-04-00930-CV, 2007 Tex.
App. LEXIS 632, 2007 WL 752197 (Tex. App.-San Antonio 2007, pet. denied)........... 11
C.L. Westbrook, Jr., v. Penley, 231 S.W.3d 389 (Tex. 2007) ............................................... 6
Cnty. of Cameron vs. Brown, 80 S.W.3d 549 (Tex. 2002). .....................................................7
E. Houston Estate Apts., L.L.C. v. City of Houston, 294 S.W.3d 723 (Tex. App.—
Houston [1st Dist.] 2009, no pet.) .................................................................................... 10
Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591 (Tex. 2001) ............ 8
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008)........................ 12
Somerset Indep. Sch. Dist. v. Casias, No. 04-07-00829-CV, 2008 Tex. App. LEXIS
2895, 2008 WL 1805533 (Tex. App.—San Antonio 2008, pet. denied)......................... 11
State v. Holland, 221 S.W.3d 639 (Tex. 2007)..................................................................... 6
Tex. Ass’n. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ..................... 6, 7, 8
Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001) ........................ 6, 8, 9
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..................... 6, 7
Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)................................................... 8
v
Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) .............. 8
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) ...................................................... 8, 12
Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003) ................................ 12
Statutes and Rules:
TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) ................................................................... 2
TEX. GOV’T CODE § 311.034............................................................................................... 8
TEX. LOC. GOV’T CODE § 271.151 ................................................................ ii, 3, 4, 5, 9, 10
TEX. LOC. GOV’T CODE § 271.152 ................................................ ii, 3, 4, 5, 6, 9, 10, 11, 12
TEX. LOC. GOV’T CODE § 271.153 ........................................................................................ 13
TEX. R. APP. P. 28.1 ............................................................................................................. 2
TEX. R. APP. P. 38 ............................................................................................................... iv
TEX. R. APP. P. 38.1 ............................................................................................................. 1
TEX. R. APP. P. 39 ............................................................................................................... iv
vi
Cause No. 04-15-00075-CV
IN THE COURT OF APPEALS
FOURTH JUDICIAL DISTRICT OF TEXAS
AT SAN ANTONIO, TEXAS
SAN ANTONIO HOUSING AUTHORITY
Appellant/Defendant,
v.
SERENTO APARTMENTS, LLC,
Appellee/Plaintiff.
ON APPEAL FROM
TH
288 JUDICIAL DISTRICT COURT
BEXAR COUNTY, TEXAS
CAUSE NO. 2014-CI-16503
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:
Appellant, SAN ANTONIO HOUSING AUTHORITY (“SAHA” or “Appellant”
or “Defendant” hereafter) files this Brief of Appellant pursuant to Texas Rule of
Appellate Procedure 38.1 and would respectfully show the following:
I.
STATEMENT OF THE CASE
This is an interlocutory appeal in a case involving a breach of contract claim.
Appellee sued SAHA alleging that SAHA breached provisions of a federal Housing
Assistance Program contract pursuant to the Section 8 Moderate Rehabilitation Program
1
between Appellant and Appellee, Serento Apartments, LLC (“Serento” or “Appellee” or
“Plaintiff” hereafter) that relate to alleged notice requirements and renewal of said
contract. See C.R. at 1–5.1 SAHA appeals an order by the Honorable Stephani A. Walsh,
Judge of the 45th Judicial District Court of Bexar County, Texas, dated January 22, 2015,
denying San Antonio Housing Authority’s Plea to the Jurisdiction and alternative Motion
to Dismiss based on the defense of governmental and sovereign immunity of SAHA.
C.R. at 32.
II.
STATEMENT OF JURISDICTION
This Honorable Court has jurisdiction over this interlocutory appeal pursuant to
Texas Civil Practice and Remedies Code Section 51.014(a)(8) and Texas Rule of
Appellate Procedure 28.1. SAHA filed its Plea to the Jurisdiction and Alternative Motion
to Dismiss on the basis it is protected by governmental and sovereign immunity from suit
for breach of contract, except to the extent immunity has been clearly and specifically
waived by the Texas Legislature. C.R. at 6–7. Since there has been no waiver of
immunity for Plaintiff’s suit or the allegations giving rise to Plaintiff’s suit against
SAHA, the trial Court lacks jurisdiction. Id.
III.
ISSUE PRESENTED
The trial court erred in denying the San Antonio Housing Authority’s (“SAHA”)
Plea to the Jurisdiction because Plaintiff did not plead any facts nor provide evidence that
1
Citations to the District Clerk’s Record will be “C.R.,” and citations to the Court Reporter’s Record will be “R.R.”
Furthermore, all citations to the District Clerk’s Record refer to the record filed February 24, 2015.
2
would demonstrate a waiver of SAHA’s governmental and sovereign immunity.
Further, the trial court erred in denying SAHA’s Plea to the Jurisdiction because
the contract made the basis of Plaintiff’s lawsuit was a “Housing Assistance Program
Contract Pursuant to Section 8 Moderate Rehabilitation Program, which provides rental
assistance for low income families,” and it is not a contract “for providing goods or
services to” the San Antonio Housing Authority, as defined by Texas Local Government
Code, Section 271.151(2). Consequently, the limited waiver of governmental immunity
from suit set forth in Texas Local Government Code, Section 271.152 does not apply to
waive SAHA’s governmental immunity from suit on the contract.
IV.
STATEMENT OF FACTS
SAHA and Serento entered into a federal Housing Assistance Program (“HAP”)
contract pursuant to the Section 8 Moderate Rehabilitation Program (“Mod Rehab”),
which provided rental assistance for low-income families.2 C.R. at 2 and 24. The HAP
Program is overseen by the United States Department of Housing Development (“HUD”)
and administered locally by SAHA. Id.
Pursuant to the Mod Rehab program contract, SAHA would refer low-income
families eligible for participation through the program to Appellee for occupancy of one
of Appellee’s apartment units. Id. Approved and selected tenants would then enter into a
separate Apartment Lease Contract with Appellee. Id. The contract between SAHA and
Serento was renewable each year for a one-year period. C.R. at 2 and 25. Pursuant to the
2
While Plaintiff indicated that the contract at issue was attached as an exhibit to Plaintiff’s Original Petition and
subsequently filed an amended petition, no contract was ever filed by Plaintiff. See C.R. at 1–5 and 23–30.
3
contract, Serento was required to maintain its apartment units in accordance with certain
housing quality standards and SAHA could refuse to renew the contract with Serento if
SAHA or HUD determine that Serento engaged in material adverse financial or
managerial actions or omissions. Id. SAHA would conduct an annual inspection of
Plaintiff’s premises for the purpose of ensuring compliance with the contract. C.R. at 3
and 27.
Plaintiff filed suit against SAHA alleging breach of the federal Housing
Assistance Program contract pursuant to the Section 8 Moderate Rehabilitation Program.
C.R. at 1–5. SAHA filed its Answer, Subject to its Plea to the Jurisdiction, generally
denying all of the Plaintiff’s allegations, and asserting specific denials and defenses.
C.R. at 6–10.
The Texas Legislature has provided a very limited waiver of immunity from suit
involving an alleged breach of contract by a local governmental entity to include a
written contract stating the essential terms of the agreement for providing goods or
services to the local governmental entity. TEX. LOC. GOV’T CODE §§ 271.151(2)(A),
271.152. Because Plaintiff did not plead any facts to support a waiver of SAHA’s
immunity and because the contract made the subject of Plaintiff’s suit is not a contract
where the essential terms involved Serento providing goods or services directly to
SAHA, SAHA filed its Plea to the Jurisdiction on November 6, 2014. C.R. at 6–10.
Plaintiff never filed a response to Defendant’s Plea. See C.R. at 42–44. On January 22,
2015, Plaintiff filed its First Amended Original Petition. C.R. at 23–30. In its First
Amended Petition, Plaintiff did not plead any new facts nor provide any evidence to
4
demonstrate that the contract at issue was one for goods and services provided by Serento
to SAHA. Compare C.R. at 1–5 with 23–30. Between Plaintiff’s Original Petition and
First Amended Petition, the factual allegations remained unchanged. Rather, Plaintiff
merely added a paragraph, stating that “[t]he Court ha[d] jurisdiction over this breach of
contract suit because the Texas Legislature waived Defendant’s immunity form [sic] suit
when it enacted Texas Local Government Code [§] 271.152,” along with amending a title
heading to read “Breach of Contract Pursuant to Local Government Code 271.152.” C.R.
at 23–24. The Honorable Stephani A. Walsh, Judge of the 45th Judicial District Court of
Bexar County, Texas, denied San Antonio Housing Authority’s Plea to the Jurisdiction
on January 22, 2015. C.R. 32. This interlocutory appeal followed.
V.
SUMMARY OF THE ARGUMENT
The trial court erred in denying SAHA’s Plea because Plaintiff’s pleadings are
devoid of any facts or evidence that SAHA waived its entitlement to governmental and
sovereign immunity.
Furthermore, there is no waiver of sovereign and governmental immunity with
respect to Plaintiff’s claims.
The trial court erred in denying SAHA’s Plea because there is no waiver of
sovereign and governmental immunity with respect to Plaintiff’s claims.
Because the Contract at issue is not a contract wherein the essential terms are “for
providing goods or services to” SAHA, it is not a contract subject to Texas Local
Government Code Section 271.151(2). Consequently, the limited waiver of governmental
5
immunity from suit set forth in Texas Local Government Code Section 271.152 does not
apply to waive SAHA’s governmental immunity from suit on the Contract.
Because SAHA did not waive its governmental immunity with respect to
Plaintiff’s claims, the Court should reverse the order of the trial court and render
judgment for SAHA on its Plea.
VI.
STANDARD OF REVIEW
Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and
thus, is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). A plea to the jurisdiction is a dilatory
plea by which a party challenges a court’s authority to determine the subject matter of the
action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A party suing a
governmental entity bears the burden of affirmatively showing that the trial court has
jurisdiction to hear the cause. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583,
587 (Tex. 2001). A plea to the jurisdiction raises a question of law reviewed de novo on
appeal. C.L. Westbrook, Jr., v. Penley, 231 S.W.3d 389, 394 (Tex. 2007); State v. Holland,
221 S.W.3d 639, 642 (Tex. 2007); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
at 226–27.
The determination of whether a trial court has subject-matter jurisdiction begins
with the pleadings. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d at 226–27.
The pleader has the initial burden of alleging facts that affirmatively demonstrate the trial
court’s jurisdiction to hear the cause. Id. (citing Tex. Ass’n. of Bus. v. Tex. Air Control Bd.,
6
852 S.W.2d 440, 446 (Tex. 1993)). Whether the pleader has met this burden is also a
question of law, reviewed de novo. Id.
A plea to the jurisdiction can challenge either the pleadings or the existence of
jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d at 226–27.
When a plea challenges the plaintiff’s pleadings, the determination hinges on whether the
pleader has alleged sufficient facts to demonstrate the court’s subject-matter jurisdiction
over the case. Id. The court construes the pleadings liberally in the plaintiff’s favor and
looks to the pleader’s intent. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d at
446.
When the plea challenges the existence of jurisdictional facts, it is appropriate for
the court to consider evidence relevant to the jurisdictional issue(s) submitted by the
parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d at 227. When the
pleadings neither allege sufficient facts nor demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and the plaintiff should be afforded an opportunity
to amend. Cnty. of Cameron vs. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the pleadings
affirmatively negate jurisdiction, then the plea to the jurisdiction may be granted without
leave to amend. Id.
In this case, because appellee’s pleadings lacked any facts to support a waiver of
SAHA’s immunity, and instead, affirmatively negated the trial court’s subject-matter
jurisdiction to consider its claims, the trial court should have granted SAHA’s Plea to the
Jurisdiction or Alternative Motion to Dismiss.
7
VII.
ARGUMENTS AND AUTHORITIES
A. Plaintiff Alleged No Facts that SAHA’s Entitlement to Immunity is Waived
SAHA is a public housing authority organized pursuant to the laws and Constitution
of the State of Texas. As such, it is a local governmental entity and enjoys governmental
immunity from suit in the performance of its governmental functions unless that immunity
has been waived by the legislature in clear and unambiguous language. City of Galveston v.
State, 217 S.W.3d 466, 469 (Tex. 2007); Tooke v. City of Mexia, 197 S.W.3d 325, 343–44
(Tex. 2006); TEX. GOV’T CODE § 311.034. The Plaintiff always bears the burden to allege
facts which affirmatively demonstrate the court’s jurisdiction to hear the case. Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d at 446. In a suit against a governmental
entity, because immunity from suit defeats a trial court’s subject-matter jurisdiction, the
burden is upon the plaintiff to affirmatively plead a clear and unambiguous Legislative
waiver of immunity from suit on each of its claims. Tex. Dep’t of Transp. v. Jones, 8
S.W.3d 636, 638 (Tex. 1999);Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39
S.W.3d 591, 594 (Tex. 2001);Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 854–5 (Tex. 2002). The failure of a plaintiff to meet this burden deprives the
trial court of subject-matter jurisdiction to consider the claim. See Tex. Dep’t of Criminal
Justice v. Miller, 51 S.W.3d at 586–87; City of Houston v. Northwood Mun. Utility Dist.
No. 1, 73 S.W.3d 304, 313 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
Moreover, mere reference to a statute which contains a limited waiver of immunity
from suit is not sufficient to confer jurisdiction upon the trial court. Tex. Dep’t of Criminal
8
Justice v. Miller, 51 S.W.3d at 586–87. The facts alleged by a plaintiff as the basis of its
claim, must fit within the limited waiver of immunity provided by the statute, or the
allegation of waiver is insufficient. Id.
In both its original and first amended petition, Plaintiff clearly did not provide
sufficient facts, yet alone any facts, to support a waiver of SAHA’s immunity;
specifically, that the contract in question was one where the essential terms involved
Serento providing goods or services directly to SAHA. See C.R. at 1–5 and 23–30. In an
insufficient attempt to invoke jurisdiction, Plaintiff filed a First Amended Petition that
merely added a paragraph, stating that “[t]he Court ha[d] jurisdiction over this breach of
contract suit because the Texas Legislature waived Defendant’s immunity form [sic] suit
when it enacted Texas Local Government Code [§] 271.152” along with amending a title
heading to read “Breach of Contract Pursuant to Local Government Code 271.152.”
Compare C.R. at 1–5 with 23–30. For the foregoing reasons, the trial Court erred in
denying SAHA’s Plea to the Jurisdiction.
B. Section 271.152’s Waiver of Immunity Does Not Apply to Contract
Section 271.152 provides that “[a] local governmental entity that is authorized by
statute or the constitution to enter into a contract and that enters into a contract subject to
this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim
for breach of the contract, subject to the terms and conditions of this subchapter.” TEX.
LOC. GOV'T CODE § 271.152. Section 271.151(2) defines a “[c]ontract subject to this
subchapter” as “a written contract stating the essential terms of the agreement for
9
providing goods or services to the local governmental entity that is properly executed on
behalf of the local governmental entity.” Id. § 271.151(2) (emphasis added).
1. Government Acting as a Conduit of Federal Funds Does Not Constitute
a Waiver of Immunity and Low-Income Housing is Not considered a
“Good” or “Service”
The central purpose of the Contract at issue was to facilitate federal funds to a
private entity, Serento, on behalf of low-income families. SAHA, in its governmental
function and capacity, was merely a conduit of federal funds and no goods or services were
provided directly by Serento to SAHA. See E. Houston Estate Apts., L.L.C. v. City of
Houston, 294 S.W.3d 723, 736–37 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(rejecting apartment owner’s argument that the City’s immunity was waived as the owner
was providing a service to the City—low income housing).
Furthermore, the “services” being provided under a contract must be directly
provided to and directly benefit the governmental entity. See id. at 736 (concluding that
while the City would benefit in a general way from apartment owner providing availability
of more housing for low income families, such a benefit is an indirect and attenuated one
and Section 271.152’s waiver did not apply).
Here, the essential terms and central purpose of the contract was for Serento to
provide apartment units that met housing quality standards to low income families. C.R. at
2 and 24–25. In no way did SAHA receive any type of service or benefit directly under the
contract. Rather, the benefit of the federal funds received, pursuant to the contract, ran
directly from the federal government to Serento, not SAHA. See C.R. at 2 and 24–25.
Because SAHA, pursuant to the contract, is merely acting as a conduit of federal funds and
10
because providing low-income housing is not considered a “good” or “service” under the
statute, SAHA’s entitlement to immunity is not waived.
2. Contracts that Deal with Real Estate Do Not Waive Immunity
The Section 8 contract in question is a contract that deals with the lease of real
estate, i.e., Serento’s apartment units, to low income families, wherein SAHA would pay a
portion of the family’s monthly rent, via the federal Housing Assistance Program, directly
to Serento. C.R. 2 and 24–25. This Court has already concluded that contracts that deal
with the lease of real estate are not included within Section 271.152’s waiver of immunity.
See Bexar Metro. Water Dist. v. Educ. & Econ. Dev. Joint Venture, 220 S.W.3d 25, 31–32
(Tex. App.—San Antonio 2006, pet. dism’d); see also Somerset Indep. Sch. Dist. v. Casias,
No. 04-07-00829-CV, 2008 Tex. App. LEXIS 2895, 2008 WL 1805533, at *3 (Tex. App.—
San Antonio 2008, pet. denied) (holding that section 271.152 did not waive immunity with
respect to the contract because the earnest money contract itself was for the sale of land;
the services at issue were a condition to closing); City of San Antonio v. Reed S. Lehman
Grain, Ltd., No. 04-04-00930-CV, 2007 Tex. App. LEXIS 632, 2007 WL 752197, at *2 n.2
(Tex. App.-San Antonio 2007, pet. denied) (noting section 271.152 not applicable to claim
for breach of easement dedication contract because it conveyed an interest in real
property and was not an agreement for providing goods and services). Because the
contract in issue deals with the lease of real estate, there is no waiver of SAHA’s immunity.
11
3. Statute Waiving Governmental Immunity Must be Strictly Construed
Governmental immunity is a jurisdictional bar to suits against local governmental
entities, absent a Legislative waiver of that immunity. City of Galveston v. State, 217
S.W.3d at 569-71; Tooke v. City of Mexia, 197 S.W.3d at 334. Any such waiver must be
“clearly and unambiguously stated.” Tooke v. City of Mexia, 197 S.W.3d at 336–43.
Statutes waiving governmental immunity are strictly construed. City of Houston v. Jackson,
192 S.W.3d 764, 770 (Tex. 2006); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 655 (Tex. 2008) (“We interpret statutory waivers of immunity narrowly, as the
Legislature’s intent to waive immunity must be clear and unambiguous.”) Texas courts
generally resolve ambiguities by retaining immunity. Wichita Falls State Hospital v.
Taylor, 106 S.W.3d 692, 697 (Tex. 2003).
Serento has represented that the “service” it provided to SAHA was managing and
maintaining its own apartment complex units. See R.R. P. 7/L. 24 – P. 8/L. 3 and P. 17/L.
25 – P. 18/L. 14. However, the Serento apartment complex was neither owned nor operated
by SAHA. Accordingly, to the extent Serento’s employees or contractors managed,
maintained, and/or repaired its own apartment units, Serento was doing so in furtherance of
its own interests, not as a “service” to SAHA.
Serento’s position impliedly invites this Court to construe the limited waiver in
Texas Local Government Code Section 271.152 liberally, rather than strictly, as required
by numerous decisions of the Texas Supreme Court. City of Houston v. Jackson, 192
S.W.3d at 770; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d at 655. A review
of Subchapter I of Chapter 271 of the Texas Local Government Code shows that the statute
12
was intended to be for the benefit of contractors who sell goods or services to local
governmental entities. For example, the kinds of damages available under Texas Local
Government Code Section 271.153 are limited to “the balance due and owed by the local
government entity under the contract” and “the amount owed for change orders or
additional work the contractor is directed to perform by a local governmental entity in
connection with the contract.” TEX. LOC. GOV’T CODE § 271.153(a)(1)–(2). The
Legislature never intended the limited waiver of the statute to reach a contract where a
claimant can merely point to some incidental act that it claims to have performed, and
which could, under a strained construction, be interpreted to be a “good” or “service” to the
local governmental entity. Because Plaintiff has alleged no facts in its pleadings nor
provided evidence to support a waiver of SAHA’s immunity, the trial Court erred in
denying SAHA’s Plea to the Jurisdiction and Motion to Dismiss.
VIII.
PRAYER
Appellant, SAN ANTONIO HOUSING AUTHORITY, respectfully prays this
Court reverse the trial court’s Order of January 22, 2015, denying SAHA’s Plea to the
Jurisdiction and dismiss Plaintiff’s suit against SAHA for want of subject matter
jurisdiction. Appellant prays for such other and further relief, at law or in equity, to which
it may be justly entitled.
13
Respectfully submitted,
_______________________________
N. MARK RALLS
State Bar No. 16489200
Email: mralls@hfdlaw.com
APRIL Y. QUIÑONES
State Bar No. 24069756
Email: aquinones@hfdlaw.com
HOBLIT FERGUSON DARLING LLP
Bank of America Plaza
300 Convent Street, Suite 1450
San Antonio, Texas 78205
Telephone No. (210) 224-9991
Facsimile No. (210) 226-1544
ATTORNEYS FOR APPELLANT,
SAN ANTONIO HOUSING AUTHORITY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served upon
counsel of record via Certified Mail, Return Receipt Requested #7014 1200 0001 2447
4340, on this 16th day of March, 2015.
James A. Rickerson
Law Office of James A. Rickerson
111 E. Euclid
San Antonio, Texas 78212
Counsel for Plaintiff/Appellee
By: ______________________________
N. MARK RALLS
14