## In the Court of Appeals Second Appellate Distri ct of Texas at Fort Worth

___________________________ No. 02

- 21

- 00135

- CV

__________________________ _

On Appea l from the 78th District Court Wichita County, Tex as Trial Court No. DC78

- CV2020

- 0243

Before Sudderth, C.J.; Kerr and Wallach, JJ. Memorandum Opinion by Justice Kerr 

### B IG 

### B LUE 

### P ROPERTIE S 

### WF, LLC , Appellant

V


### . W ORKFOR CE 

### R ESOURCE 

### , I NC 

### ., D 

### / B 

### / A 

### W ORKFORCE 

### S OLUTIONS 

### N ORTH 

### T EXAS A 

### / K 

### / A 

### T EXAS 

### W ORKFORCE 

### S OLUTIONS 

### , Appellee2 MEMORANDUM OPINION Appellant Big B lue Properties, LLC s ued appellee Workforce Resource, Inc., d/b/a Workforce Solutions North Texas a/k/a Texas Workforce Solutions to collect unpaid rent due under three commercial leases. Workforce Resource filed a plea to the jurisdiction cla iming that , as a loca l governmental entity, it is immu ne from suit
and that Section 271.152 of the Texas Local Govern ment C ode did not waive its immunity. See Tex. Loc. Gov’t Code Ann. § 271.152. The trial court agreed, granted the plea, and dismis sed Big Blue’s breach

- of

- contract claim. B ig Blue has appealed, arguing in four issues that the trial court erred by granting Workf orce Resource’s j urisdictional plea because Section 271.152 waived Workforce Resource’s governmental immunity. But because the leases at issue are not contracts for the provision of services to Workforce Resource, Section 271.152 does not apply and

t hus do es not waive Workforce Resource’s immunity. See id. §§ 271.151(2)(A), .152.
Acco rdingly, w e will affi rm the trial court’s judgment.
I. Background In November 2017, Workforce Resource

— a local

- workforce

- development organization

— solicited proposals to c onsoli date its operations in one place. 1 T he

1 Workforce Resource serves some eleven North Texas counties and “is led by a local board consistin g of 27 volunteer members, a maj o rity of which come from private industry. It is part of a statewide system of local boards which set policy and
o versee expend itures of funds in their individual areas. These boards are non

- profit and receive funding from the U.S. Department of Labor th r ough the Texas3 sol icitation provided th at “[t] he [Workforce Resource] Bo ard reserves the right to negotiate the final terms of any and all contracts or agreements that may be initiated”
and stated that it was “not to be c onstr ued as a purchas e agreement or contract or as a

c ommitment of any kind.” In response to this solicitation, Big Blue offered to lease portions of its building in Wichita Falls, Texas.
O n June 28, 2018, Workforce Resource’s bo ard unanimously voted to proceed
to le ase negotiations with Big Blue. Later that day, Workforce Resource’s e xecutive director, Ramona Statser, 2 contacted B ig Blue to inform it that Workforce Resource

wou ld “begin negotiations” with Big Blue. Soon thereafter, on July 20, 201 8, Statser sig ned th e first of three lease agreements with Big Blue on Workforce Resource’s behalf. Statser went on to sign two more leases with Big Blue for two other spa ces in its bu ilding

— again on Workforce Resource’s b ehalf

— on October 31, 2018 , and January 25, 2019.
All t hree leases differed from the original proposal Big Blue had presented to
Workforce R esource’s b oard. Some of those differences include d : ( 1) the leased
space ’ s square footage; (2) the leased space ’ s floor plans; (3) t he lease term; (4) the security

- deposi t requirement s ; (5) the lease

- termination option s ; (6) the rental rate s ;

Workforce Commission.” Workforce Solutions N o rth Texas, https://ntxworksolutions.org / about

- us/ (last visited Ma y 2 4 , 2022)

.
2 As the executive director, Statser was a staff member who reported to the board.4 (7) guarantees regarding the leased space ’ s condition; and (8) the leased space ’ s parking ava ilabi lity. None of the finalized leases containing these changes w as presented to Wo rkforc e Resource’s b oard for f inal approval

. But despite the b oard’s
lack of affirmative assent, Workforce Resource began moving i ts bo ard and executive
staff into one of the three leased space s in fall 2018. None of the three written leases required eithe r Big Blue or Workforce
Resource to provide any goods or services to the oth er; they provided for the payment of rent in exchange for a leasehold interest in the property , which Big Blue
was to maintain

. 3 The lease agreements signed by B ig Blue and Statser provi de d that “[Workforce Resour ce] has inspected the leased premises and accepts it i n its present (as

- is) condition.” The lease agreements further state d that “[the leases] contain [ ] the entire agreement between Lan dlord and Tenant and may not be chang ed exc ept by

w ritten agreement.” Alt hough Stat se r and Big Blue orally negotiated for Big Blue to conduct property renovations and construction , and although Big Blue performed

some of that work, tho se side agreements were never incorporated into the writte n leas e agreements or o therwise reduced to writing

. Workforce Resource moved into one of the leased spaces and fulfilled its rent obligations for that space from September 2018 t hro ug h summer 2019. But after Workforce Resou rce’s management changed , it stop ped pa ying rent and sought

3 Big Blue does not argue th at maintenance was a service.5 release from all th re e lease agree ments. Ultimately , at the end of 2019, Workforce
Resou rce vacated the one leased space it had moved into

. B ig Blue sue d Workforce Resour ce for breach of contract to collect the rent
due under all three leases , pleading that Workforce Resource was a local governmental
entit y for which immunity had been waived under Local Gov ernment Code Section
271.152

. Workforce Reso urce filed a plea to the jurisdiction challenging the jurisdictional facts and arg uing t hat Section 271.152 did not waive its immunity.
It is undisputed that Workforce Resource and Big Blue entered into three

wr itten contract s that contained ea ch party’s basic obligations . But the parties disagree

on four issues: (1) whether Workforce R esourc e was authorized to enter into the lease agreement s; (2) whether the lease agreements contained the “e ssential terms of the agreement”; (3) whether the leas e agreements were contracts for the provision of

s ervices to Workforce Resource; and (4) wheth er Sta tser’s negotiation and signature,
without b oard ap proval, constitute d “proper execution of th e lease agreements. ”
The trial court granted Workforce Resource’s plea to the jurisdiction and dismissed Big Blue’s breach

- of

- contract claim , its only cause of act ion

. 4 T his appeal followed.

4 Bi g Blue ’s pleading also alleged a suit on a sworn account , which is not an independent caus e of action b ut a proc edural device for proving certain contract disputes. See Beach St. Foods, Inc. v. Gr andy’s, LLC , No. 02

- 2 0

- 00135

- CV, 2022 WL 187988, at *3 (Tex. App.

— Fort Worth Jan. 20, 2022, no pet.) (m em. op.)

.6 I I. Governmental Immunity and Standard of Review
“Sove reign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages .” M ission Consol. ISD v. Garcia , 253 S. W.3d 653, 655 (Tex. 2008). Sovereign immunity protects the State from lawsuits to which it has not consented while governmental immunity provides similar protection to the State’s political
subdivisions. City of Cleb urne v. RT Gen., LLC , No. 10

- 20

- 00037

- CV , 2020 WL 7394519, at *2 (Tex. App.

— Waco Dec. 16, 2020 , no pet.) (mem. op.). Workforce Resource is a local governmental entity and is entitled to governmental immunity. See Arbor E&T, LLC v. Lower Rio Grande Valley W orkf orce D ev. Bd., Inc. , 476 S.W.3d 25, 35

– 38 (Tex. App.

— Corp us Christi

– Edinburg 2013 , no pet. ) ; see also
Dall

. /Fort Worth Int’l Airport Bd. v. Vizant Techs., LLC , 576 S.W.3d 362, 36 6 (Tex. 2019) (“ Governmental immunity generally protects local governmental en tities against both lawsuits and legal liabilities. ”)

. Governmental immunity comprises two components: immunity from su it and
imm unity from liability. See Tex

. De p’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,
22 4 (Tex. 2004) (op. on reh’g) . Immunity from s uit deprives the trial court of subject

matter jurisdiction. Id. A party filing a plea to the jurisdiction seeks to de f eat a claim by challenging the trial court’s subject

- matter jurisdiction. See Bland ISD v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Th e plai ntiff bears the burden of establishing the trial court’s jurisdiction , a7 burden that inclu des demonstrating the government ’ s waiver of immunity once it has
been raised. See Town of Shady Shores v. Swanson , 590 S.W.3d 544, 550 (Tex. 2019)

. A governme ntal e ntity asserting governme ntal immunity may challenge the plaintiff’s pleading s or , as here, the ex istence of jurisdictional facts. See City of El Paso
v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009). When the governmental entity challenges subject

- matter jurisdic tion based on disputed facts, the dispute may require resolution by the f act finder. Miranda , 133 S.W .3d at 22 6. But whether un disputed e vidence

— as presented here

— establishes a trial court’s subject

- matter jurisdiction is a legal question that we r eview de novo . See id.
III. Analysis
In four issues , Big Blue argues tha t Texas Lo cal Government Code Section
271.1 52 waives Workforce Resource’ s immunity and that the trial court thus erred by granting Workforce Resource’s plea to the jurisdiction because (1) Work forc e Resource was authorized to e nter into the leas es ; (2) Workforce Res ource “properly
executed” the lea ses ; ( 3) the leases are contr acts for the provision of services ; and (4) ther e is no legal impediment to enforcing the leases. Because we con clude tha t th e leases are not contracts for the provision of services to Workforce Resource , issue
three i s disposi tive , and we need not address Big Blue’s remaining issues. See Tex. R. App. P. 47.1 ; Lance v. Robinson , 543 S.W.3d 723, 740 (Tex. 2018).8 A
. Waiver of Imm unity and the Local Government Code
Gove rnmental immu nity may be waived only with the l egislat ure’s exp ress

consent. Garcia , 253 S.W .3d a t 655. The l egislature waives governmental immunity through statu tes , which courts narrowly construe to en sure “clea r a nd unambiguous”
waiver s . Id. ; see Tex. Go v’t Code Ann

. § 311.034. Chapter 271 of the Texas Loca l
Govern ment Code waives governmental immunity for certain contract claims against local governmental entities

. See Tex. Loc. Gov’t Code Ann

. § 271.152. For w aiv er to apply, a claim must arise from a “c ontract subject to th is subchapter .” Id. A “ contract

s ubject t o this subchapter” means a co ntract that (1) is in writing; (2) states the “essential terms of the agreement”; (3) is an agreement for the p rovision o f “ goods or services” to the governmental en tity; 5 and (4) is “properly executed” on the government al entity’s behalf. Id. § 271.151 (2) (A) (defining “contract subject to this subchapter”) ; Dall

. /Fort Worth Int’l Airport Bd. , 576 S .W.3d at 368

. Ch apter 271 was mean t to “loosen the [governmental ] i mmunity bar so that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts. ”
K

irby Lak e Dev. , Lt d. v. Clear Lake City Wat er Auth. , 320 S.W.3d 829, 838 (Tex. 2010) (quoting Ben Bolt

– Palito Blanco Consol. ISD v. Tex. Pol. Subdivision s Prop./Cas. Joint Self

5 Big Blue does not argue tha t any goo ds were involved , so w e focus on the

“ services ” aspect of Section 271.151(2)(A )’ s “ goods or services ” language

. See Tex. L oc. Gov’t Code Ann . § 271.151 (2)(A)

.9 Ins. Fund , 212 S.W.3d 320, 327 (Tex. 2006)) . But the l egislature did not intend to

swee p all gove rnm ental contracts within Chapter 271’s immunity waiver. See Water Expl. C o. v. Bexar Metro. Water Dist. , 3 45 S.W.3d 492, 500

– 01 (Tex. A pp.

— San Antonio 2011, no pet.). Applying the requi site “narrow” reading of the waiver, courts
have consistentl y interpre ted “goods or services” to req uire some affirmative a ct beyond conveying l easehold property interest s . 6 See , e.g. , Triple BB, LLC v. Vil l. of Briarcliff , 566 S.W.3d 385, 395 (Tex. App.

— Austin 2018, pet. denied) (op. on reh’g) ; Hoppenstein Props., Inc. v. M cLe nnan Cnty. Appraisal Dist. , 341 S.W.3d 16, 19

– 20 ( Tex. App.

— Waco 2010, pet. denied) (op. on reh’g); City of San Antonio v. Reed S. Le hman Grain, Ltd. , No. 04

- 04

- 00930

- CV, 2007 WL 752197, at *2 n.2 (Tex. App.

— San Antonio Mar. 14, 2007, pet. den ied) (mem. op . on reh’g)

. T he affirmativ e act must be required by the written contra ct, and it must result in a direc t benefit to the governmental entity by conferring “ goods or services ” upon it

. See Lubb ock Cnty. Water
Control & Improvement Dist. v. Chur ch & Akin, L. L.C. , 442 S.W.3d 297, 302

– 0 3 (Tex. 2014). Thus, wh ere a written contrac t does not require the provision of goods or services to the g overnmental entity’s direct benefit, Chapter 271 does not waive the entity’s immunity

. See i d.

6 The Texas Supreme Court has recognized that leas ehold inter ests themselves usually do not consti tute contract s for the provision of “goods o r services” under Cha pter 271. See Wasson Ints., L td. v. City of Jacksonville , 489 S.W.3d 427, 437 (Tex. 2016) (“[G]enerally, contracts for land leases

. . . are no t covered by Chapter 271.”).10 B
. A pplication Big Blue p ri ncipally relies on Houston C ommunity College System v. HV BTW, LP , 589 S .W.3d 204 (Tex. App.

— Housto n [14t h Dist.] 2019, no pet.)

. There, the Houston Community College System granted HV B TW, LP an easement on the s ystem ’ s property. Id. at 208. As consider at ion for the easement, HV agr eed to construct parkin g facilities on the p roperty at its sole cost and expe nse . Id. After signi ng the contract, HV spent over $500,000 in various costs directly associated with its contractual development obligati ons. Id. To o btain approval for the const ru ction, HV needed the s ystem’s signature , b ut w hen the s ystem refused to sig n, HV sued it for
br each of contract

. Id. The trial court implicitly denied the s ystem’s plea to the jurisdiction and granted HV’s summary

- judgment m ot ion

. Id.
T he court of appeal s affirmed the trial co urt’s denial of the s ystem’s plea to the jurisdiction , holding that the system had waived its govern mental immunity by entering into “an agreement for services within the purview of [C]hapter 271

. ” Id. at 212. C ritical to the court’s decisio n was the fact that HV’ s “construction of pa rking
facilities as consideration ” for the easement c onstituted a “service” to the system’s direct benefit

. Id. Here, in contrast, Big Blue was not contractually o bligated to p erform any services. Big Blue , howev er, argues that the lea ses required it to pe rform services in
the form of “co nstruction services to make the leased premises ready for [Workforce11 Resource] , ” pointing to each lease’s delay

- in

- occupancy provi sion , which p rovide s that If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on t he leased premises to be completed by the Landlord that is not substantially complete

. . . . the Commencement Date will automa tically be ex tended to the date Tenant is able to occupy the Property

. . . . If Tenant is unable to occupy the leased premises a fter the 90th day after the Commencement Date because of construction on the l eased premises to be completed by Landlord that i s not substan tially complete

. . . Tenant may ter minate this lease by giving written notice to Landlord before the leased premise s become[s] available to be occupied by Tenant and Landlo rd will refund to Ten ant any amounts paid to Landlord by Tenant. [Emph ases added.] But a private company is not contrac tually obligated to provide services to a local governmental en tity when the company can choose not to provide the servi ce s without brea ching the contract

. See Churc h & Akin , 442 S.W.3d at 303 (holding that a private mar ina wa s not obligated to provide ser vices to a local governmental entity
when the marina “could have electe d not to use the premises for any purpose ”). T he leases did not require Big Blue to provide construction services , and the leases could
have been f ul filled without any such construction. Th us , while Workforce Resource

m ight have benefitt ed from Big Blue’s co nstruction services , it had no ri ght to them
under the leases. And “[w]hen a party has no right under a contract to receive services, the mere fa ct that it may receive services as a result of the contract is
insufficient to invoke [C] h apter 271’s waiver of immunity.” Id. Additionally, the re was no “meeting of the minds” about what construction Big Blue would complete

. Rather, Big Blue’s owner testi fi ed that, after the contracts were12 signed , th e parties “would have the back and forth ove r what Big Blue wou ld do
under the lease as far as the build out.” And, even if Big Blue had assumed specific
construction obligation s through oral negotia tion, Big B lu e never reduced those obligation s to writing or incorporate d them in to the leases with w r itten addend a that
our sister cou rts have held can satisfy Chapter 271

. For example, in the distinguishable cir cumstance s o f Hoppenstein Properties , the
M cLennan Cou nt y Appraisal District (MCAD) contracted to lease pro perty from Hoppenstein, a private entity. 34 1 S.W.3d at 18. T he parties supplement ed their
written contract with a written “construction addendum” that required Hoppenstein

to complete specifi c renovat ions on t he leased property. 7 Id. After the renovations were completed, MCAD occupied the leased pr emises. I d. at 19

. But after a dispute

arose, Hoppenstein sued for brea ch of contract. See i d. MCAD asserted gover nmental immunity in a plea to the jurisdiction, whic h the trial court granted. Id. at 18

– 19

. The court of appeals initially affirmed but ultimately r eversed on rehear ing in light of the T exas S upreme C ourt’s then

- recent decision in Kirby Lake Development

. Id. at 18, 20 (citing Kirby La k e D ev. , 320 S.W. 3d at 839 ). In reversing , the court of appeals
h eld that M CAD had waived its governmental immunity by entering into a contract for s ervices

. Id. at 20. C ritical to that holding was t he fact that the written contract

—

7 The “construction addendum” in Ho ppenste in Properties required the company to (1) remov e interior walls and construct new ones according to an attached floor plan, (2) install new carpet and tile, and (3) modify the building’s HVAC system. 341 S.W.3d at 18.13 as supplemented in writing

— required Hopp enste in “ to renovate the premises for
MCAD , ” a “service” t hat directly benefitted the a ppraisal d istri ct. Id. As with Houston Community Colle ge , Hoppenstein Prope rties is dist inguishable . In both cases, written contracts obligated private comp anies to perf orm s pecific “services”

— in the form of
construction and de velopment

— to a governmental entity’s direct benefit. Here, however, Big Blue had no obligation under the contract s to perform any constru ction , renovation, or other property development . And even if Big Blue later agreed, during oral negotiations, to compl ete certain construction or renovation work for Workforce Resource, those agreement s were never reduced to writing

. Instead, t his case is similar to Triple BB . There, the Vi llage of Bri arcliff

— throu gh a written contract

— obtained an easement to construct a water line on a
marina’ s land in exchange fo r granting the marina a license to display a bil lboard on a lot owned by the Village and for agreeing to repair the mar ina ’ s parking lot a t t he Village ’ s expense . Triple BB , 56 6 S.W.3d at 391. A few years late r, the marina ’ s owners, the Clendenins, sold the marina and their interest in the contract to T riple BB, after which the Village conveyed the lot to another couple, t he Flowerses. Id. T he
Flowerses lat er s old t heir interest to Malcolm Phil lips , who demanded that Triple BB

remo ve the bil l board

. Id. In response, Triple BB sued Philli ps and the Village

. Id. The
trial court granted Phill ips’s summary

- judgment motion and the Villag e ’s plea to th e jurisdictio n. Id.14 T h e c ourt of appeals rejec ted Triple B B’s argument that the Clendenins’

easement conveyance alone constituted a “service” to a governmental entity under Chapter 271. Id. at 394

– 9 5

. Instead, the court of appeals held that “ [b] y conveying an
easement, the Clen den ins granted the Villa ge a legal right to use their lan d in a certain way. They made no promise to perform an act, and thus the contract for easement is
not a contract for se rvice.” Id. at 395 (citation s omitted). Accordingly, C hapt er 271 did

no t waive t he Village’s immuni ty. Id. Here, the lease agreement s between Big Blue and Workforce Resource do not
constitute contracts for services

. The written leases gave Workforce Resour ce nothing
more than leasehold property interest s . Such co nveyances alo ne are in suffi c ient to constitute the provision of services. The lease agreements here also explicitly disclaimed any construction or renovation obligation on Big Blue ’s part: “[Workfor ce Resource] has inspected the leased p remises and accep ts it in its pr esent (as

- is) condition. ” The leases’ “ as
- is” provisions distingu ish this case from the written parking

- facilities obligation in Houston Community College

. See 589 S.W.3d at 212. Furthe r, the le ase agreements here state, “[t he leases]
contain [ ] the entire agreemen t between Landlord and Tenant and may not be changed exc ept by written agreement.” No written amendment was ever incorporated into the agreement s ; Big Blue and Statser orally n egotiated for certain work

. Because the le ases merely conv eyed leas ehol d propert y interests to Workf orce Resource

— without requiring that Big Blue perform some “service” for Workf orce15 Resource’s benefit

— and because no written addendum for services was execu ted , we hold that the leases are no t contr acts for the pro vi sion of ser vices to Wo rkforce
Resource and that Section 271.152 thus does not waive Workforce Resource’s immunity. See Tex. Loc. Gov’t Code Ann. §§ 271.151(2)(A), .152. Accordingly, the
trial cour t did not err by granting Wo rkforce Resour ce’s pl ea to the jurisdiction , and

we ov errule Big Blue’s third issue

. IV. Conclusion
H aving concluded that the trial court did not err by granting Workforce Resource’s plea to the jurisdiction , we affirm the trial court’s judgment.

/s/ Elizabeth Kerr Elizabeth Kerr Justice Delivered: J une 2, 2022