REVERSE and RENDER and Opin ion Filed August 13, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01273-CV TEXAS DEPARTMENT OF TR ANSPORTATION, Appellant V. PRIMARY MEDIA GROUP, INC., Appellee On Appeal from the 439th Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-21-1352 MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Goldstein The Texas Department of Transporta tion (TXDOT or De partment) appeals the trial court’s order denying TXDOT’s motion to dismiss for lack of jurisdiction. In a single issue, TXDOT argues that, becau se Primary Media failed to establish a waiver of sovereign immunity, the trial c ourt should have dismissed the case for want of jurisdiction. We reverse the trial court’s judgmen t and render judgment dismissing Primary Media’s claims for want of jurisdiction.–2– PRIMARY MEDIA’S SECOND AMENDED PETITION In September 2021, Primary Media filed its original petition asserting breach of contract claims against TXDOT in c onnection with Primary Media’s execution of certain quitclaim deeds and applications to relocate four impacted outdoor advertising signage. After the filing of TXDOT’s motion to dismiss for lack of jurisdiction, but prior to the hearing, Pri mary Media amended its petition twice, the Second Amended Petition being the live pleadi ng at the time of the hearing (herein “the petition”). The facts set forth in th is section are taken directly from Primary Media’s petition. Primary Media is an owner and operato r of off-premise, outdoor advertising signs commonly known as billboards througho ut Texas, frequently located adjacent to interstate highways and major thoroughf ares. TXDOT, responsible for widening and improving state highways, is also the agency charged with regulating and permitting commercial signs located on the interstate and primary systems. The petition outlined TXDOT’s treatment of billboards in eminent domain proceedings as follows: When acquiring property on whic h a billboard is located to accommodate a public improvement project, the State treats sign owners differently than other property owners. Acting through the Department, prior to the commen cement of formal condemnation proceedings, the State makes an offer to a billboard owner equal to the appraised value of a sign, less a nomin al retention value, in exchange for the sign owner’s agreement to remove the impacted billboard.–3– A billboard owner that chooses to settle with the Department is required, prior to the Special Co mmissioners’ hearing, to agree upon a value for the impacted sign (ordinarily through a memorandum of agreement or similar exchange of correspondence) and quitclaim its interest in the subject sign to the State of Texas through a nonnegotiable, standard form quitcla im deed prepared and provided by the Department. TxDOT’s standard memoranda of agreement typically include the following form language: It is important to confirm this agreement in order to avoid any possible misunderstanding as to the details of the purchase or the process by which the Texas Department of Transportation (TxDOT) will make payment. The payment of [the purchase price] as herein agreed will constitute full payment to be made by TxDOT for the property to be conveyed to the State. The consideration recited herein represents a settlement and compromise by all parties as to the value of the property herein conveyed in order to avoid formal eminent domain proceeding and the added expense of litigation.
(emphasis added). The memoranda go on to de scribe a sign owner’s eligibility for an impacted sign credit: Under certain circumstances, Rule 21.192 of Title 43 of the Texas Administrative Code allows the owner of a billboard structure to apply for a relocation permit if it is legally erected and maintain ed and will be within the highway right of way as a result of a highway construction project. Executing a quitclaim deed and retaining the billboard structure does not guarantee that a relocation permit will be issued. In addition to ex ecuting the quitclaim deed and retaining the billboard structure, the owner of the billboard structure must follow and meet the current relocation permitting guidelines found in 43 TAC 21.192, et seq. The payment of the amount he rein stated and the terms provided constitute the only promises, consideration and–4– conditions of this purchas e; and no other promises, consideration and conditions have been signified or implied, save and except the mu tual benefits to be derived by you and TxDOT from the signi ng of this agreement. The Department’s standard form quitclaim deed provides that the billboard owner will remove the im pacted sign after receiving a notice to vacate from the Department. By submitting to this process, a billboard owner waives its right to go through formal condemnation proceedings to obtain an award of just compensation for the loss of the billboard, and waives its right to recover any relocation assistance benefits for the cost to relo cate the retained structure. The State’s settlement procedure fo r billboards displaced by highway projects is explained in a Depart ment-issued polic y titled, “Amended Guidance for Impacted Off-Premise Billboards Affected by Highway Transportation Projects” (the “Gui dance”). The Guidance provides that a billboard owner that retains the structure through this settlement process will be eligible for an impacted sign credit under 43 Tex. Admin. Code § 21.192. The same procedure is likewise included in a Department-issued memorandum titled, “Impacted Commercial Signs: What to Expect When Your Sign is Impacted by a TxDOT Construction Project.” The Department’s regulations appli cable to the issuance of impacted sign credits are found in 43 Tex. Ad min. Code §§ 21.192, .193, & .195. These sections provide sign owners the ability to relocate a billboard displaced by a highway project using certain relaxed relocation criteria. For example, a relocated sign need only be adjacent to one business, instead of the two businesses require d for ordinary new-build signs. 43 Tex. Admin. Code § 21.193(c); cf. 43 Tex. Admin. Code § 21.179(a)(1). Additionally, the va rious spacing requirements for relocated signs are relaxed, as co mpared to the spacing requirements for new-build signs. 43 Tex. Admi n. Code §21.193(b); cf. 43 Tex. Admin. Code § 21.187. Today, most of the available locations for the construction of new signs have be en utilized. As such, a relocation permit that entitles the holder to rela x the ordinary regulations for newbuild signs is a valuable, private right, which is made all the more valuable due to TxDOT’s require d waiver of condemnation rights necessary for the sign owner to re ceive the TxDOT relocation permit.–5– After agreeing on a reduced value for an impacted sign (through the execution of a memorandum of agreement or exchange of correspondence with TxDOT) and signing a quitclaim deed, an impacted sign owner will receive a no tice to vacate, which specifies the required removal date, and informs the sign owner of the following: “Failure to remove the retained impr ovements will also result in the loss of eligibility for a relocation perm it for the outdoor advertising sign.” After receiving the notice to vacate from the Department, a sign owner is required to remove a sign by the deadline included in the notice. The sign owner is then required to submit TxDOT’s Impacted Sign Credit Application form in order to r eceive an impacted sign credit.

The Parcel 23 Sign The petition alleged that Primary Media owned a sign adjacent to IH-35 in Gainesville, Texas, which wa s located on property designate d by the State as Parcel 23 and removed to accommodate a State road-widening project (the “Parcel 23 Sign”). The Parcel 23 Sign was permitted by the City of Gainesville, a “certified city” with the authority to control commerc ial signs in its jurisdiction. Under the Texas Administrative Code, a certified city has the author ity to regulate billboards within its corporate limits, and billboard ow ners that receive a permit from a certified city to construct a billboard do not have to obtain a permit from TXDOT. 43 Tex. Admin. Code § 21.200. Once TXDOT gave Primary Media notice that the Parcel 23 Sign would have to be removed, Prim ary Media negotiated a settlement with TXDOT, signed a memorandum of agreemen t, executed a quitc laim deed, timely removed the sign, and documented the rem oval of the sign on TXDOT’s Impacted Sign Credit Application.–6– After Primary Media removed the Parcel 23 Sign, it applie d for and obtained a permit from the City of Gainesville to construct a sign on the remainder of the impacted property, asserting that the site remained conforming as a new build site. Because Gainesville is a certified city, Pr imary Media did not have to apply for a TXDOT permit or utilize a TXDOT impacted sign credit. Primary Media did apply for a permit to construct a sign near Ca ddo Mills, Texas. TXDOT rejected the application pursuant to 43 Texas Administra tive Code section 21.19 2. In a letter, TXDOT stated the following: The application you submitted on De cember 30, 2020 was unable to be processed for the following reason( s). Based on the information provided by the City of Gainesville, the sign has already been relocated approximately thirty feet from wher e it was originally located. The purpose of the impacted sign credit is to provide an incentive to the sign owner when their sign is impacted by a highway construction project. In this case, the sign was able to move to a new location in accordance with the city of Gainesville ordina nces. Therefore, the permit is not eligible for use in relocating an imp acted sign and this application must be rejected. Primary Media appealed, but TXDOT “summarily c oncluded that Primary Media was ineligible for receipt of an im pacted sign credit because it was able to build a sign on the remainder of Parcel 23.” The Parcel 48 Sign Primary Media owned a sign located near Forney, Texas, designated as the Parcel 48 Sign, and TXDOT required that Primary Media remove the sign in July 2021. Primary Media followed TXDOT-ma ndated procedure for the removal of impacted signs so that it could remain e ligible for a relocation credit: Primary Media–7– settled with the State on the value of the st ructure through the execution of a standard form Quitclaim Deed, timely removed the impacted structure prior to the date included in TXDOT’s Notice to Vacate a nd submitted all requi red documentation to the Department with an Impacted Sign Credit Application. On July 29, 2021, TXDOT notified Primary Media that its Impacted Sign Credit Application was rejected as follows: According to 43 TAC § 21.192(a), a commercial sign that has been timely removed from a department construction project may be relocated. The notice to vacate stated that the property was to be vacated on July 12, 2021. However, photos from July 22, 2021 provided by TXDOT staff showed th at the sign was taken down, but the sign parts were still at the acquire d property. The pipe is cut at ground level and capped, leavi ng pipe and footings intact. The Parcel 16 Sign Primary Media removed a sign located in Gainesville, Texas, adjacent to I-35, on property designated by TXDOT as Parcel 16 (the “Parcel 16 Sign”) in order to accommodate TXDOT’s highway improve ments. Primary Media executed a Quitclaim Deed, timely remove d the Parcel 16 Sign in response to TXDOT’s Notice to Vacate, and properly documented the re moval. Similar to the Parcel 23 Sign, Primary Media was able to construct a new sign on the remainder of Parcel 16 because the property remained a confor ming location under Gainesville’s sign regulations. Primary Media properly subm itted an Impacted Sign Credit Application for the Parcel 16 Sign on August 12, 2021. On August 23, 2021, TXDOT sent a letter to Primary Media in which TXDOT rejected the Application for reasons–8– similar to those stated in the TXDOT’s le tters rejecting Primary Media’s Impacted Sign Credit Applications for Parcels 23 and 48. The Parcel 60 Sign Primary Media removed a sign located in Royse City, Texas, adjacent to I-30, on property designated by the State as Parcel 60 (the “Parcel 60 Sign”) in order to accommodate the State’s highway impr ovements. Primary Media executed a Quitclaim Deed, timely remove d the Parcel 60 Sign in response to TXDOT’s Notice to Vacate, and properly documented the re moval. On Septem ber 13, 2021, TXDOT mailed Primary Media a letter, in which TXDOT informed Primary Media that its Impacted Sign Credit Application was reject ed. In its letter, TXDOT explained: The notice to vacate stated that th e property was to be vacated on May 5th, 2021, with an extension grante d until August 31st, 2021. However, photos provided by Primary Media staff showed that the sign was taken down, but the sign parts were still at the acquired property. The pipe is cut at ground level and capped, leav ing pipe and footings intact. Therefore, the sign is not eligib le for an impacted sign credit. Primary Media’s Breach of Contract Claim Based on its rendition of the facts, Prima ry Media asserted claims of breach of contract in connection with each of the signs. Generally, Primary Media claimed it settled with TXDOT by execu ting quitclaim deeds in lieu of exercising its rights to just compensation in eminent domain. Primary Media claimed the quitclaim deeds required Primary Media to remove and retain the subject structures in order to–9– retain eligibility for relocation permits 1 and that, in exchange for its compliance with the deeds’ removal requirement s, Primary Media was entitled 2 to the issuance of relocation permits. In compliance with the terms of the de eds and Department regulations, Primary Media asserts it timel y removed the subject signs, incurred the expense of such removal efforts, agreed to a one-percent reduction in compensation for the subject signs, and submitted all TX DOT-mandated paperwork. Thus, avers Primary Media, TXDOT breached its ob ligation to issue Primary Media the requested relocation permits upon the timel y removal of the subject signs. Specifically, Primary Media claimed TXDO T breached its obligation owed to Primary Media under the quitclaim deed fo r the Parcel 23 Sign when it rejected Primary Media’s impacted sign credit appli cation, and Primary Media did not waive its right to an impacted sign credit. As to the Parcel 48 Sign, Primary Media asserted that TXDOT breached its obligations unde r the quitclaim deed when it rejected Primary Media’s impacted sign credit app lication because TXDOT regulations do not require the removal of the subsurface components of an impacted sign structure but only the removal of the “sign” its elf. Primary Media complained TXDOT breached its obligations under the appli cable quitclaim deeds when it rejected

1 We note that the quitclaim deeds actually make no reference to relocation permits; they only refer to Primary Media’s removal and retention of the signs.
2 Primary Media’s contention that it was “entitled” to relocation permits would become a central issue in the case, both in the trial court and on appeal. Again, however, the quitclaim deeds do not mention relocation or relocation permits or cont ain the word “entitled” or its variants.–10– Primary Media’s impacted sign credit applica tions in connection with the Parcel 16 Sign and Parcel 60 Sign “for the same reasons.”
TXDOT’S PLEA TO THE JURISD ICTION, SPECIAL EXCEPTIONS, GENERAL DENIAL, AND AF IRMATIVE DEFENSES In October 2021, TXDOT filed a responsiv e pleading asserting that the trial court lacked jurisdiction over Primary Media’s suit because TXDOT’s sovereign immunity had not been waived. TXDOT al so specially excepted to Primary Media’s petition because it did not allege a valid wa iver of sovereign immunity or Primary Media’s obtaining legislative consent to f ile suit against TXDOT. Finally, TXDOT generally denied Primary Me dia’s allegations and, as an affirmative defense, asserted it was immune from suit and liability under the theory of sovereign immunity.
TXDOT’S MOTION TO DISMISS FOR LACK OF JURISDICTION In May 2022, TXDOT filed its motion to di smiss for lack of jurisdiction. As the factual background for its motion, TXDOT alleged Primary Media executed a quitclaim deed for each of the subject proper ties. In the deeds, the parties agreed that Primary Media could remove and retain possession of and title to the commercial sign structures located on the properties if they were removed from the described tracts of land by the dates set forth in notices to vacate. In consideration for the quitclaim deeds, Pri mary Media was paid $218,252 for the deed to Parcel 16, $89,400 for the deed to Parcel 23, $82,569 for the deed to Parcel 48, and $110,150–11– for the deed to Parcel 60. TXDOT correctly reflects th e record that the quitclaim deeds did not make any promises concer ning relocation permits and did not even mention relocation or relocation permits. According to TXDOT, Primary Media’s impacted sign credit applications were deni ed either because the signs had already been relocated in accordance with muni cipal ordinances pursuant to 43 Texas Administrative Code secti on 21.195 or because all si gn parts were not timely removed. TXDOT argued it did not waive immunity from suit by contracting with a private party, citing Texas Natural Resource Conservation Commission v. ITDavy , 74 S.W.3d 849, 854, 858 (Tex. 2002). TX DOT asserted Primary Media could not raise a material issue of fact regard ing the existence of promises to issue relocation permits that may have been vi olated because the quitclaim deeds do not contain such promises. Accordingly, TX DOT argued, Primary Me dia had not raised a material fact issue as to whether contr acts were breached, sovereign immunity was not waived, and Primary Media’s claims s hould have been dismissed for want of jurisdiction.
THE TRIAL COURT’S ORDER On November 2, 2022, the trial c ourt signed an order denying TXDOT’s motion to dismiss for lack of jurisdiction. The order provided in its entirety: In considering the [TXDOT’]s Motion to Dismiss for Lack of Jurisdiction, the Court has revi ewed the motion, response, all supplements of each, other evidence on file, and the pleadings. The Parties stipulated that all the signs in [Primary Media’s] Petition are from settlements in lieu of condemnation proceedings.–12– [TXDOT] takes the position that ther e is no agreement or guarantee because the parties’ signed agreement states “Executing a quitclaim deed and retaining the billboard st ructure does not guarantee that a relocation permit will be issued.” However, the very next sentence states “In addition to executing the quitclaim deed and retaining the billboard structure, the owner mu st follow and meet the current relocation permitting guidelines found in 43 TAC 21.192, et seq.” The signed agreement also provides for r easons the Plaintiff would not be eligible for a relocation permit. [TXDOT] also claims there could neve r be a breach of contract claim based on the failure to issue a relo cation permit because issuance of a permit is a governmental function, not a contract. Yet [TXDOT’s] Amended Guidance for Impacted O ff-Premise Billboards Affected by Highway Transportation Projects dated June 9, 2016, provides procedures to be followed with sp ecific reference to language in the deed, which, is derived from the agreement reached in lieu of condemnation. Further, [TXDOT’s] rejection le tters lay out provisions in the agreements and/or deeds that alle gedly were not complied with by [Primary Media]. The Court finds that [TXDOT’s] Motion to Dismiss for Lack of Jurisdiction is hereby DENIED. This appeal followed.
ANALYSIS In a single issue, TXDOT argues th at, because Primary Media failed to establish a waiver of sovereign immunity, the trial court should have dismissed the case for want of jurisdiction.
Standard of Review We review an order denying a plea to the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004); City of McKinney–13– v. Hank’s Rest. Grp., L.P. , 412 S.W.3d 102, 109 (Tex. A pp.—Dallas 2013, no pet.). A plea to the jurisdiction can challenge the sufficiency of the claimant’s pleadings or the existence of necessa ry jurisdictional facts. Miranda , 133 S.W.3d at 226–28; Hank’s Rest. Grp. , 412 S.W.3d at 109. Here, TXDO T asserted that Primary Media failed to demonstrate that the allegations in its petition fell within the trial court’s jurisdiction. As the claimant, Primary Me dia bears the burden of pleading facts that affirmatively demonstrate that governmental immunity has been wa ived and that the court has subject-matter jurisdiction. Hank’s Rest. Grp. , 412 S.W.3d at 109; see City of Dallas v. Turley , 316 S.W.3d 762, 767 (Tex. App.—D allas 2010, pet. denied). We construe the pleadings in the claimant’s favor and look to the pleader’s intent. Miranda , 133 S.W.3d at 226. If the pleadings do not contain enough facts to demonstrate the propriety of jurisdictio n but do not affirmatively demonstrate incurable defects in jurisdictio n, the claimant should be afforded the opportunity to amend. Id. at 226–27. This opportunity shall be given after a court determines that the pleadings are insufficient. Lazarides v. Farris , 367 S.W.3d 788, 803–04 (Tex. App.—Houston [14th Dist.] 20 12, no pet.). But if the pl eadings affirmatively negate the existence of jurisdiction, the plea may be granted without giving the claimant an opportunity to amend. Miranda , 133 S.W.3d at 227. Governmental immunity is a common-law doctrine. City of Dallas v. Albert , 354 S.W.3d 368, 373 (Tex. 2011). It applies to political subdivisions of the State, while the immunity of the State itself is referred to as sovereign immunity. Id. at–14– 372 n.2. “When performing governmental functions, po litical subdivisions derive governmental immunity from the st ate's sovereign immunity.” City of Houston v. Williams , 353 S.W.3d 128, 134 (Tex. 2011) (fo otnote omitted). Governmental immunity comprises both immunity from liability and immunity from suit. Albert , 354 S.W.3d at 373. “Immunity from liab ility protects entities from judgment while immunity from suit deprives courts of ju risdiction over suits against entities unless the Legislature has expressly consented . . . .” Id. Thus, the legislature can waive a political subdivision’s governmental immunity. See id. at 374 (“[W]aivers of sovereign immunity or consent to sue gove rnmental entities must generally be found in actions of the Legislature.”). Governmental immunity is not unlimited. Generally, a claim falls within the scope of governmental immunity if the cl aimant seeks either to control government action or to subject the govern mental entity to liability. Hank’s Rest. Grp. , 412 S.W.3d at 111. But “a governmental entity does not have immunity from suit for monetary claims against it that are ‘g ermane to, connected with, and properly defensive to’ affirmative claims made by th e entity, to the extent the claims against the entity offset the entity’s claims.” Albert , 354 S.W.3d at 372 (quoting Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 378 (Tex. 2006)). Also, “suits for injunctive relief may be maintained ag ainst governmental entities to remedy violations of the Texas Constitution.” City of Elsa v. M.A.L. , 226 S.W.3d 390, 392 (Tex. 2007) (per curiam) (internal quotation and citation omitted). Nevertheless, the–15– State does not waive immunity from suit simply by contracting with a private party. Tex. Nat. Res. Conservation Comm’n v. IT-Davy , 74 S.W.3d 849, 854 (Tex. 2002). Without specific identification of promis sory language in the record, Primary Media has argued TXDOT promised that Primary Media was entitled to relocation permits under the terms of th e quitclaim deeds. Howeve r, none of the quitclaim deeds or other documents contain such a pr omise. The quitclaim deeds themselves made no mention of relocation permits. The initial offer letters with respect to each property set forth procedures for applying for relocation permits but expressly stated that “[e]xecuting the quitclaim deed and retaining the billboard structure does not guarantee that you will get a re location permit.” The final offer letters related to parcels 48 and 60 stated that, “[a]s outlined in the State’s initial offer letter,” Primary Media would be eligible for a relocation permit only if it quitclaimed its billboard structure to the State, retained that structure, and then applied for a relocation permit. Memoranda of agreement related to parcel s 16 and 23 provided, in keeping with the initial offer letters, that executing a quitc laim deed and retaining the billboard structure “does not guarantee that a reloca tion permit will be issued.” A November 2020 Rule 11 agreement between the St ate and Primary Media regarding a settlement in lieu of condemn ation on parcels “60/60E and 61” stated that Primary Media “maintains its eligibility for relo cation permits under Te xas Department of Transportation’s regulations” provided that Primary Media remained in compliance with all other provisions of the agreemen t and TXDOT regulations. The notices to–16– vacate associated with each parcel provided that the failure to remove the retained improvements would result in “the loss of eligibility for a relocation permit for the outdoor advertising sign.” In its response to TXDOT’s motion to di smiss, Primary Media asserted that, if it had not settled with TXDOT and ex ecuted the quitclaim deeds and other agreements, it would have been entitled to adequate compensation in eminent domain. Primary Media quoted Trant v. Brazos Valley Solid Waste Management Agency, Inc. , 478 S.W.3d 53, 62 (Tex. App.—Hous ton [14th Dist.] 2015, pet. denied) for the proposition that “[w]hen a governmental entity is exposed to suit— such as through a claim se eking compensation for a governmental taking—because of a waiver or lack of immunity, it cannot nu llify that waiver or lack of immunity by settling the claim with an agreemen t on which it cannot be sued.” See also Texas A & M Univ.–Kingsville v. Lawson , 87 S.W.3d 518, 521 (Tex. 2002). Primary Media argued that “[a]n agreement to convey pr operty to a governmental authority for a public purpose has the same effect as a formal condemnation proceeding,” quoting City of Carrollton v. Singer , 232 S.W.3d 790, 798 (Tex. App.—Fort Worth 2007, pet. denied). Based on these authorities, Primary Media asserted that courts have held on several occasions that government al entities are not entitled to immunity from suit in actions for breach of settlement agreements reached in lieu of eminent domain proceedings. See id. at 800.–17– Trant is instructive to our analysis. In Trant , the Trants entered into an option contract with the cities of Bryan and Colle ge Station, pursuant to which the cities obtained the right to purchase approximate ly 382 acres of land in Grimes County from the Trants. Trant , 478 S.W.3d at 56. The option contract stated: “[the cities] contemplate using the Property as a . . . Landfill.” Id. The cities subsequently purchased the property, and the parties executed a general warranty deed, which incorporated the “Terms, C onditions, and Representations” in the option contract. Id. at 56–57. The cities and the Trants al so signed an easement agreement for access granting the Trants non-exclusive access to their land adjacent to the property. Id.
at 57. The cities formed the agen cy, a governmental entity th at operated a landfill on the property. Id. In 2014, the Trants learned that the cities had decided to put a firing range on a portion of the property near their land. Id. The Trants sent a letter to the cities and the agency, contending th at the property could be used only as a landfill. Id. Counsel for the agency responded by letter that while the option contract contemplated an intended use of the property as a landfill, the contract did not restrict the cities’ use of the property to such purpose. Id. The Trants filed suit against the agen cy, bringing claims including a breach of contract claim. Id. The agency filed a plea to the jurisdiction, asking the trial court to dismiss the suit on the basis that governmental immunity barred the Trants’–18– claims. Id. The Trants argued that the general warranty deed included a restrictive use covenant allowing the land to be used only as a landfill. Id. at 60. The Trant court determined the Trants failed to raise a material issue of fact as to the agency’s violation of a restrictiv e use covenant in the general warranty deed or option contract because those documents did not include a restrictive use covenant providing that the cities agreed to use the property as a land fill, only language reflecting how the cities anticipated using the property. Id. (emphasis in original). The court addressed the Trants’ argument that the purported unauthorized use of the easement and the property for purposes ot her than as a landfill constituted an unconstitutional taking of the property a nd rejected this argument because the agency was not required to use the property as a landfill. Id. at 61–62. The court next addressed the Trants’ cont ention that their sale of land to the cities was tantamount to a fo rmal condemnation proceedi ng that was settled by the Trants’ agreement to sell the property, the purpose of their lawsuit was to enforce the parties’ settlement agreement, and the agency was not immune from such suits. Id. at 62. The Trant court stated that, when a gove rnmental entity is exposed to suit—such as through a cl aim seeking compensation for a governmental taking— because of a waiver or lack of immunity, it cannot nullify that waiver or lack of immunity by settling the claim with an ag reement on which it cannot be sued. Id. (citing Lawson , 87 S.W.3d at 521). To i llustrate, the court went on to state that the Fort Worth Court of Appeals held that a city did not have governmental immunity–19– for a breach of contract claim involving the breach of an agreement in settlement of a condemnation claim because the govern mental entity would not have had immunity from the underlying takings claim. Id. (citing Singer , 232 S.W.3d at 799– 800). The court noted that, in holding that the City was not immune from suit, the Singer court observed in the absence of the settlement agreement, “the [plaintiffs] would have [had] a claim against the City for adequate compensation for the City’s [taking] of their property . . . for which the City would not be immune.” Id. at 62– 63 (citing Singer , 232 S.W.3d at 800). Ultimately, the Trant court concluded it need not decide whether the Option Contract wa s, as alleged by the Trants, a settlement of a condemnation claim because the Trants had not raised a material issue of fact regarding whether the contract was breached. Id. at 63. The Trant court observed that the Trants alleged only that “the Option Contract specifically limited the taking of each tract of property for ‘the construction, operation, and maintenance of a solid wa ste facility and landfill’” and “[s]ince all takings and transfer set forth herein were made pur suant to condemnation or the threat of condemnation, [the agen cy] has waived its right to sovereign or governmental immunity.” Id. As the court had alrea dy explained, the contract contained no such limitation. Id. Accordingly, the Trants did not allege an unconstitutional taking for which the agency would not be immune as a basis for the trial court’s jurisdiction. Id. (citing Singer , 232 S.W.3d at 800); see also Kaufman Cnty. v. Combs , 393 S.W.3d 336, 345 (Tex. App. —Dallas 2012, pet. denied)–20– (“Although governmental immunity does not shield a governmental entity from a valid takings claim, it does apply when a plaintiff does not allege a valid takings claim.”). Because the cour t concluded the ag ency was immune from suit under the circumstances of that case, the court affi rmed the trial court’s judgment granting the agency’s plea to the jurisdiction and dismi ssing the case for want of jurisdiction. Id.
at 65. Similarly, here the quitclaim deeds di d not mention relocation or relocation permits, and the other documents associated with the State’s acquisition of the four parcels acknowledged the possibility of Pri mary Media obtaining relocation permits but either expressly stated TXDOT did not guarantee that Primary Media would get a relocation permit or merely indicat ed that Primary Media would be eligible for a relocation permit under certain circumstances . Because none of the deeds or other documents indicate that TXDOT was contractually obligated to issue Primary Media relocation permits, we concl ude Primary Media has not ra ised a material issue of fact regarding whether the contracts were breached 3 and we need not, therefore, decide whether the quitclaim deeds and ot her documents constitu ted a settlement of a condemnation claim. See id. at 63. Accordingly, Primary Media did not allege an unconstitutional taking for which the agency would not be immune as a basis for the

3 To the extent Primary Media relies on representatio ns made by “TXDOT’s agent” to show that the parties agreement included an agreement that Primar y Media would be allowed to relocate its signs, we reject this argument. The parol evidence rule bars c onsideration of evidence that contradicts, varies, or adds to the terms of an unambiguous written agreement. Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc. , 590 S.W.3d 471, 483 (Tex. 2019).–21– trial court’s jurisdiction. See id. Thus, on this record, we conclude the trial court erred in denying TXDOT’s motion to di smiss for lack of jurisdiction. To the extent Primary Media compla ins of TXDOT’s application of its regulations concerning relocation permits to the parcels at issue, again, on this record, the trial court similarly lacked ju risdiction over those claims as well. See Lamar Advantage Outdoor Co., L.P. v. Texas Dep’t of Transportation , No. 14-20- 00362-CV, 2022 WL 1498213, at *9 (Tex. A pp.—Houston [14th Dist.] May 12, 2022, no pet.) (mem. op.) (Government C ode Section 2001.0038 does not confer jurisdiction over the courts to determine whether an agency has complied with a rule or how a rule should be applied) (citing LMV-AL Ventures, LLC v. Texas Dep’t of Aging & Disability Servs. , 520 S.W.3d 113, 124–25 (Tex. App.—Austin 2017, pet. denied)). We sustain TXDOT’s single issue. We reverse the trial court’s judgment and render judgment dismissing Primary Media’s claims for want of jurisdiction.

221273F.P05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–22– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant

No. 05-22-01273-CV V. PRIMARY MEDIA GROUP, INC., Appellee On Appeal from the 439th Judicial District Court, Rockwall County, Texas Trial Court Cause No. 1-21-1352. Opinion delivered by Justice Goldstein. Justices Garcia and Miskel participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that: Primary Media Group, Inc.’s claims are DISMISSED for lack of jurisdiction. It is ORDERED that appellant TEXAS DEPARTMENT OF TRANSPORTATION recover its costs of this appeal from appellee PRIMARY MEDIA GROUP, INC.
Judgment entered August 13, 2024.