NO. 01-15-00436-CV

______________________________________

IN THE COURT OF APPEALS

FIRST JUDICIAL DISTRICT

HOUSTON, TEXAS

______________________________________

 THE CITY OF FRIENDSWOOD AND KEVIN HOLLAND, 

 Appellants, 

v. 

PAUL AND CAROLYN HORN, MIKE AND LUCY STACY, PETE AND JUDY 

GARCIA AND JANICE FRANKIE

 Appellees. 

______________________________________

On Appeal from the 212th Judicial District Court

of Galveston County, Texas

Trial Court No. 14-CV-0490

______________________________________ 

APPELLANTS THE CITYOF FRIENDSWOOD 

AND KEVIN HOLLAND’S BRIEF

______________________________________

CHAMBERLAIN, HRDLICKA, WHITE, 

 WILLIAMS & AUGHTRY

William S. Helfand

State Bar No. 09388250

Attorney-in-Charge

Charles T. Jeremiah

State Bar No. 00784338

1200 Smith Street, Suite 1400

Houston, Texas 77002

Telephone: (713) 654-9630

Telecopier: (713) 658-2553 

ATTORNEYS FOR APPELLANTS, 

CITY OF FRIENDSWOOD AND 

KEVIN HOLLAND

ORAL ARGUMENT REQUESTED

ACCEPTED

01-15-00436-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/15/2015 3:06:51 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/15/2015 3:06:51 PM CHRISTOPHER A. PRINE Clerk
CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons 

have an interest in the outcome of this case. These representations are made so the 

judges of this court may evaluate possible disqualification or recusal.

A. Parties:

Appellants: City of Friendswood 

Kevin Holland

Appellees: Paul and Carolyn Horn

Mike and Lucy Stacy 

Pete and Judy Garcia 

Janice Frankie 

 

B. Attorneys: 

Appellant: William S. Helfand

Charles T. Jeremiah

Chamberlain, Hrdlicka, White, 

 Williams & Aughtry

1200 Smith Street, Suite 1400

Houston, Texas 77002

Appellees: Aaron Pool

James T. Sunosky

Donato Minx Brown & Pool, PC 

3200 Southwest Freeway, Suite 2300 

Houston, Texas 77027

 

ii
STATEMENT REGARDING ORAL ARGUMENT

Appellants City of Friendswood and Kevin Holland believe that oral 

argument would be beneficial to the Court’s resolution of this appeal. 

iii
TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS....................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ............................................. iii

TABLE OF CONTENTS..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................vi

STATEMENT OF THE CASE.................................................................................. 1

ISSUES PRESENTED............................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 7

STANDARD OF REVIEW ....................................................................................... 8

ARGUMENTS AND AUTHORITIES ..................................................................... 9

I. Appellees bear the burder to establish a waiver of immunity. ........................ 9

II. The City is immune from Appellees’ common law tort claims....................11

A. Limited waiver of immunity under the Texas Tort Claims Act..........11

B. Appellees’ misrepresentation claim is barred by immunity................13

C. Appellees’ nuisance claim is barred....................................................15

III. Appellees fail to state and cannot state a viable claim of inverse 

condemnation.................................................................................................16

IV. Appellees fail to state and cannot state a viable claim of breach of 

contract...........................................................................................................19

V. Appellees’ request for declaratory judgment requesting an 

interpretation of the deed restrictions did not fall within a waiver of 

immunity from suit and the Court lacks jurisdiction.....................................20

VI. Appellees assertion of “ultra vires” does not present a viable claim 

which overcomes governmental immunity ...................................................23

iv
VII. Appellees have no viable claim and have not established jurisdiction 

under the Texas Open Meetings Act .............................................................26

VIII. Appellees’ claims against Mayor Holland are barred by derivative and 

official immunity ...........................................................................................27

IX. Appellees Claim for Injunctive Relief is Barred ...........................................29

X. District Court erred in failing to dismiss all of Appellees’ claims or, 

alternatively, individual claims......................................................................30

CONCLUSION........................................................................................................30

PRAYER..................................................................................................................30

CERTIFICATE OF SERVICE ................................................................................32

CERTIFICATE OF COMPLIANCE.......................................................................33

APPENDIX..............................................................................................................34

Order Denying Defendant’s Plea to the Jurisdiction and Motion to 

Dismiss...................................................................................................TAB A

Sec. 404. Hazard Mitigation (42 U.S.C. 5170c)....................................TAB B

v 
TABLE OF AUTHORITIES

CASES

Alewine v. City of Houston, 

309 S.W.3d 771 (Tex.App. – Houston [14th Dist.] 2010, pet. denied) ...................................18

Ballantyne v. Champion Builders, Inc.

144 S.W.3d 417 (Tex. 2004) ....................................................................................................28

Barnes v. Mathis, 

353 S.W.3d 760 (Tex. 2011) ....................................................................................................15

Benefit Realty Corp. v. City of Carrollton, 

141 S.W.3d 346 (Tex.App. – Dallas 2004, pet. denied) ..........................................................12

Berry v. Tex. Dem. Party, 

449 S.W.3d 633 (Tex.App. – Austin 2014, no pet. hist.) ........................................................25

Bird v. W.C.W., 

868 S.W.2d 767 (Tex. 1994) ....................................................................................................13

Butnaru v. Ford Motor Company, 

84 S.W.3d 198 (Tex. 2002) ......................................................................................................29

City of Corinth v. Nurock Development, 

293 S.W.3d 360 (Tex.App. – Fort Worth 2009, no pet.) .........................................................22

City of Dallas v. Jennings, 

142 S.W.3d 310 (Tex. 2004) ....................................................................................................16

City of Dallas v. Turley, 

316 S.W.3d 762 (Tex.App. – Dallas 2010, pet. denied) ..........................................................23

City of Dallas v. VSC, LLC, 

347 S.W.3d 231 (Tex. 2011) ....................................................................................................17

City of El Paso v. Heinrich, 

284 S.W.3d 366 (Tex. 2009) ........................................................................................24, 27, 29

City of Fort Worth v. Pasturek Industries, 

Inc., 48 S.W.3d 366, 372 (Tex.App. – Fort Worth 2001, no pet.) ...........................................14

City of Galveston v. State, 

217 S.W.3d 466 (Tex. 2007) ................................................................................................9, 10

City of Garland v. Rivera, 

146 S.W.3d 334 (Tex. App.—Dallas 2004, no pet.) ................................................................12

vi
City of Houston v. Boyle, 

148 S.W.3d 171 (Tex. App.—Houston [1st Dist.] 2004, no pet.) .....................................11, 14

City of Houston v. Song, 

2013 WL 269036 (Tex.App. – Houston [14th Dist.] 2013).....................................................17

City of Houston v. Swinerton Builders, Inc., 

233 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2007, no pet) ................................................10

City of Lancaster v. Chambers, 

883 S.W.2d 650 (Tex. 1994) ....................................................................................................28

City of North Richland Hills v. Home Town Urban Partners, Ltd., 

340 S.W.3d 900 (Tex.App. – Fort Worth 2011, no pet.) .........................................................22

City of Pasadena v. Thomas, 

263 S.W.3d 43 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ...............................................9

City of Plano v. Homoky, 

294 S.W.3d 809 (Tex.App. – Dallas 2009, no pet.) .................................................................12

City of San Antonio v. Fourth Court of Appeals, 

820 S.W.2d 762 (1991) ............................................................................................................26

Cowling v. Colligan, 

312 S.W.2d 943 (Tex. 1958) ......................................................................................................7

Dallas Area Rapid Transit v. Whitley, 

104 S.W.3d 540 (Tex. 2003) ......................................................................................................9

De Los Santos v. City of Robstown, 

2012 WL 6706780 (Tex.App. – Corpus Christi 2012, no pet.) .........................................21, 24

Devonshire Place Neighborhood Association v. Devonshire Place, Ltd., 

1999 WL 82617 (Tex.App. – Houston [1st Dist.] 1999, no pet.) (unpublished) .....................22

Ethio Express Shuttle Service v. City of Houston, 

164 S.W.3d 751 (Tex.App. – Houston [14th Dist.] 2005, no pet.) ..........................................14

Federal Sign v. Texas Southern Univ., 

951 S.W. 2d 401 (Tex. 1997) .....................................................................................................9

Felts v. Harris County, 

915 S.w.2d 482 (Tex. 1996) ....................................................................................................18

Green Int'l Inc. v. State, 

877 S.W.2d 428 (Tex. App.—Austin 1994, writ dism'd) ........................................................10

vii
Harris County, Tex. v. Cabazos, 

177 S.W.3d 105 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ...........................................15

Harris County v. Sykes, 

136 S.W.3d 635 (Tex. 2004) ......................................................................................................9

Hearts Bluff Game Ranch, Inc. v. State, 

381 S.W.3d 468 (Tex. 2012) ....................................................................................................17

Hoff v. Nueces County, 

153 S.W.3d 45 (Tex. 2004) ........................................................................................................8

Holloway v. Dekkers, 

380 S.W.3d 315 (Tex.App. – Dallas 2012, no pet.) .................................................................19

Hopkins v. Strickland, 

2013 WL 1183302 (Tex.App. – Houston [1st Dist.] 2013) (unpublished) ..............................28

K.C. Cunningham v. Tarski, 

365 S.W.3d 179 (Tex.App. – Dallas 2012, pet. denied) ..........................................................13

Laub v. Pesikoff, 

979 S.W.2d 686 (Tex.App. – Houston [1st Dist.] 1998, pet. denied) ......................................13

Martinez v. Hardy, 

864 S.W.2d 767,772 (Tex. App. 1993) ....................................................................................14

Marzo Club, LLC v. Columbia Lakes Homeowner’s Ass’n, 

325 S.W.3d 791 (Tex.App. – Houston [14th Dist.] 2010, no pet.) ..........................................23

Mission Consol. Indep. Sch. Dist. v. Garcia, 

253 S.W.3d 653 (Tex. 2008) ..............................................................................................11, 27

Moers v. Harris County Appraisal District, 

___ S.W.3d ___ (Tex. App. – Houston [1st Dist.] 2015, no pet. hist.)....................................25

Mustang Special Utility District v. Providence Village, 

392 S.W.3d 311 (Tex.App. – Fort Worth 2012, no pet.) .......................................21, 22, 23, 26

Patel v. Texas Dept. of Licensing and Regulation, 

___ S.W.3d ___ at *4 (Tex. 2015) .....................................................................................24, 25

Pilarcik v. Emmons, 

966 S.W.2d 474 (Tex. 1998) ....................................................................................................23

Scott v. Prairie View A & M Univ., 

7 S.W.3d 717 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) .........................................12

viii
Sharma v. Vinmar Int’l Ltd., 

231 S.W.3d 405 (Tex.App. – [14th Dist.] 2007, no pet.) ........................................................29

State v. Momin Properties, Inc., 

409 S.W.3d 1 (Tex.App. – Houston [1st Dist.] 2013 pet. denied) ...........................................18

State v. Schmidt, 

867 S.W.2d 769 (Tex. 1993) ....................................................................................................18

Tex. Dep't of Criminal Justice v. Miller, 

51 S.W.3d 583, 587 (Tex. 2001) ..............................................................................................12

Tex. Dep’t. of Parks & Wildlife v. Miranda, 

133 S.W.3d 217 (Tex. 2004) ......................................................................................8, 9, 12, 14

Tex. Dep't of Parks & Wildlife v. Sawyer Trust, 

354 S.W.3d 384 (Tex. 2011) ....................................................................................................21

Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 

397 S.W.3d 162 (Tex. 2013) ....................................................................................................17

Tex. Dep't of Transp. v. City of Sunset Valley, 

8 S.W. 3d 727 (Tex. App.—Austin 1999, no pet.) ..................................................................10

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 

74 S.W.3d 849 (Tex. 2002) ................................................................................................21, 22

Texas Bay Cherry Hill v. City of Fort Worth, 

257 S.W.3d 379 (Tex.App. – Fort Worth 2008, no pet.) .........................................................12

Texas DOT v. Jones, 

8 S.W.3d 636 (Tex. 1999) (per curiam) ....................................................................................8

Tooke v. City of Mexia, 

197 S.W.3d 325 (Tex. 2006) ....................................................................................................20

Town of Flower Mound v. Rembert Enterprises, Inc., 

369 S.W.3d 465 (Tex. App. – Fort Worth 2012, pet. denied) ...........................................24, 25

Uptegraph v. Sandalwood Civic Club, 

312 S.W.3d 918 (Tex.App. – Houston [1st Dist.] 2010, no pet.) ............................................23

Wichita Falls State Hosp. v. Taylor, 

106 S.W.3d 692 (Tex. 2003) ......................................................................................................9

ix
STATUTES

42 U.S.C. 5170c(b)(2)(B)(i).............................................................................................................2

TEX. CIV. PRAC. & REM. CODE § 37.003 ........................................................................................21

TEX. CIV. PRAC. & REM. CODE § 51.014 ..........................................................................................8

TEX. CIV. PRAC. & REM. CODE § 101.021 ................................................................................11, 14

TEX. CIV. PRAC. & REM. CODE § 101.057 ......................................................................................15

TEXAS LOCAL GOVERNMENT CODE § 271.152 .........................................................................19, 20

TEXAS LOCAL GOVERNMENT CODE § 551.142 ...............................................................................27

x 
STATEMENT OF THE CASE 

Nature of the case: 

Trial court: The Honorable Patricia Grady, 212th Judicial 

District Court of Galveston County, Texas. 

Trial court’s disposition: The trial court conducted a hearing on March 4, 

2015 on the City and Holland’s plea to the 

jurisdiction, motion to dismiss and motion to strike 

discovery. On April 20, 2015, the Court entered 

an order denying the City and Holland’s plea and 

motion. 

ISSUES PRESENTED

1. The trial court erred in denying the City’s plea to the jurisdiction and motion 

for summary judgment because the Appellees’ claims against the City are 

barred by governmental immunity.

2. The trial court erred in denying the Kevin Holland’s plea to the jurisdiction 

and motion to dismiss because the Appellees’ claims are barred by 

derivative immunity and official immunity. 

1
STATEMENT OF FACTS

The critical and dispositive facts presented by this appeal are undisputed. 

This case arises out of the City’s acquisition of flood-prone property in the 

Imperial Estates Subdivision in the City of Friendswood. Specifically, after severe 

flooding from Tropical Storm Allison in June 2001, the City obtained title to 

virtually all of the devastated property in the subdivision, specifically 38 of the 42 

lots, more than ninety percent (90%) of the lots1 through a Hazard Mitigation 

Program administered by the Federal Emergency Management Administration 

(“FEMA”). All homeowners of the subdivision were advised of the FEMA 

program and the four Appellees were the only individuals who chose not to 

participate. In fact, the only remaining structures on the entirety of the subdivision 

acreage for the past fourteen years are Appellees’ now re-built houses.2

The federal grant of the land to the City and Drainage District, like all such 

grants, required the City to maintain the property as open or “green” space as 

recreational space, park property or for drainage and water retention.3

 FEMA’s

purpose in requiring such use in this program is to ensure that the flood prone 

1

 In addition, the Galveston County Drainage District acquired one lot.

2

 The Appellees’ residences are surrounded by unimproved property. The property the 

City acquired is adjacent to the pre-existing Friendswood city park known as 1776 Park.

3

 See, Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 

5170c(b)(2)(B)(i).

2 

 
property would not be the subject of future similar catastrophic water damage and 

loss.

 Roughly ten years after the City acquired the lots, on November 19, 2012,

the Appellees filed suit claiming that deed restrictions, enacted over fifty years 

earlier, governed the City’s use of the lots it acquired and, more specifically that 

the City was required to use its lots only for “residential purposes.”4 Appellees 

theorized they had four votes and the City one vote, and thus Appellees had 

complete control over the City’s use of the property irrespective of the supremacy 

of the federal acquisition and conditional grant requirement. The City filed a plea 

to the jurisdiction. On the eve of the hearing on the plea, on May 9, 2013, 

Appellees nonsuited their original suit. 

 To be sure, the City disputed the Appellees’ contentions raised in the 

original suit. City’s use of the property was and is not inconsistent with or in 

violation of any deed restrictions. First, the FEMA mandated use as open or 

“green” space, or park property is quite consistent with residential purposes as 

defined in the deed restrictions [Supp. C.R. 13-14]. But, regardless of whether 

consistent, Appellees’ theory of any potential liability of the City is baseless. As 

4

 To be sure, Appellees have never specifically sought to have the City construct new 

residences on the lots, or to sell the lots for new residences, or in any other way use the 

lots for residential purposes. The City would be prohibited from doing so under the 

express terms of the federal grant.

3 

 
an undisputed owner of thirty-eight lots, the City has one vote per lot and the deed 

restrictions, if they did apply, guarantee the City at least thirty-eight votes 

compared to the Appellees’ four. Indeed, this is clear from the deed restrictions to 

which Appellees point: “each lot shall only have one vote.” [C.R. 165 (Plaintiff’s 

Second Amended Original Petition ¶ 15)] (emphasis added); Supp. C.R. 17].

Accordingly, the City disputed and disputes any contention by Appellees 

that its use was governed by, or violated, deed restrictions. However, to leave no 

doubt, after posting a public agenda and conducting an open meeting in full 

compliance with Texas law, the City cast its thirty-eight votes to approve a 

declaration of amended deed restrictions for its lots and filed that decision in the 

Galveston County Property Records on or about July 8, 2013. [C.R. 128; 138-142; 

Supp. C.R. 27-30]. Notably, the recorded document expressly states that it only

applies to the thirty-eight City acquired lots, [Supp. C.R. 27-30], and it tracks the

federal requirements of open space [C.R. 28, ¶ 2-2.2]. The Declaration was 

executed by Mayor Kevin Holland in due course as authorized agent for the City. 

[Id; C.R. 143]. 

Approximately one year later after the Declaration was filed, on May 1, 

2014, Appellees filed this same lawsuit a second time; this time against the City 

and Mayor Holland [C.R. 5-16]. Appellees initially made what were essentially 

the same claims asserted in their first lawsuit: an action for declaratory judgment 

4 
interpreting the deed restrictions. However, in the second suit they added a claim 

of “misrepresentation” against both Mayor Holland and the City [Id]. Appellants 

filed an answer, containing a motion to dismiss Appellant Holland in light of his 

individual immunity from suit. [C.R. 17-20]. Appellants then filed a Plea to the 

Jurisdiction, along with a renewed motion to dismiss Mayor Holland and motion to 

stay discovery based on immunity [C.R. 54-67; 22-53]. The plea was set for 

hearing and heard on October 16, 2014 [C.R. 70-71]. On the eve of the hearing, 

Appellees filed their First Amended Petition urging new theories; conclusory, 

factually unsupported allegations of violation of the Texas Open Meetings Act and 

breach of contract, an allegation the Mayor had engaged in an ultra vires act, and 

that the City had engaged in proprietary, not governmental functions [C.R. 100-

113]. Because these claims were just as insupportable under Texas law, 

particularly in light of the City’s and the Mayor’s immunity from suit, Appellants 

supplemented their plea with City records disproving any claim of an Open 

Meetings Act violation as well as Appellees’ newly added claims. [C.R. 114-161]. 

At the request of Appellants’ counsel, the Court reset the plea and motions 

for a second hearing for November 20, 2014. Again, on the eve of the hearing, 

Appellees amended in an effort to avoid the appropriate dismissal of their suit. In

their Second Amended Petition Appellees added to their montage of claims two 

more new theories: nuisance and inverse condemnation [C.R. 162-179]. The 

5 
Appellants supplemented their plea once again to address the new claims [C.R. 

185-186]. The District Court heard the plea again but did not issue a ruling and, 

before the judge who heard the plea ruled, a new presiding judge took the bench on 

January 1, 2015. The Plea and motions were reset for a third hearing on March 4, 

2015 [C.R. 187-188]. The Appellants supplemented their plea further to address 

the Appellants’ immunity from the newest claims in greater detail [C.R. 189-192]. 

The District Court did not rule at the hearing but issued a ruling on April 20, 2015 

denying the City’s plea and the Mayor’s Motion to Dismiss [C.R. 193].5

 

Appellants timely filed a notice of appeal [C.R. 199-200].

Apparently recognizing the applicability of Appellants’ immunity from suit 

and in a desperate, although not necessarily legitimate, effort to avoid dismissal 

Appellees have, each time with the benefit of the Appellants’ motions to dismiss, 

simply recast the same basic factual allegations into numerous different claims. 

The thrust of Appellees’ contention is that their desires should dictate the City’s 

use of its own property and supersedes the obligations imposed on the City by the 

federal grant and the will of the City residents. 

Regardless how Appellees wish to describe, or re-describe, their claims, the 

City is immune from their claims and thus the Court should have granted its plea to 

the jurisdiction. Additionally, Mayor Holland is entitled to immunity and the 

5

 The Court notified the parties of the Order on May 5, 2015 [C.R. 196-198].

6 

 
Court should have granted his plea to the jurisdiction and his motion to dismiss as 

well. The District Court erred on both and this Court should reverse the decision 

below and render judgment in favor of both the City and its Mayor. 

SUMMARY OF THE ARGUMENT

Even disregarding for a moment the Appellants’ immunity from suit, the 

Appellees claims were, and are, devoid of legal merit, even if they were suing 

private defendants. The fifty year old deed restrictions upon which Appellees rely 

simply do not govern the City’s use or require the City to use the lots for 

residential purposes, for numerous reasons. Regardless of whether the deed 

restrictions were ever enforced, to be sure the widespread destruction occasioned 

by Tropical Storm Allison’s severe flooding of the subdivision and intervention by 

FEMA in 2001 constituted an obvious change of conditions so substantial it 

rendered the deed restrictions inapplicable and obsolete.6

 In addition, the deed 

restrictions were effectively abandoned when more than ninety percent (90%) of 

the lots were acquired by the City of Friendswood and maintained as green space 

for more than a decade without objection. Irrespective, the City’s use of public 

property is not subject to the control of private interests of Appellees.

However, the simple fact is that, in not requiring the Appellees to prove a 

waiver of the Appellants’ immunity from suit, the trial court erred in denying the 

6

 Compare Cowling v. Colligan, 312 S.W.2d 943, 945 (Tex. 1958).

7 

 
City’s Plea to the Jurisdiction and Mayor Holland’s Motion to Dismiss. As a 

matter of law Appellees’ claims fail to overcome the City’s governmental 

immunity. Appellees’ claims fail to establish the elements of any claim that 

triggers a constitutional or statutory waiver of the City’s governmental immunity. 

Moreover, Appellees’ claims against Mayor Holland are barred by both derivative

and official immunity. Accordingly, the trial court erred when it failed to dismiss 

Appellee’s suit with prejudice for lack of jurisdiction. 

STANDARD OF REVIEW

This Court has jurisdiction to review an interlocutory order denying a plea to 

the jurisdiction by a governmental unit, or request for dismissal based on immunity 

by an officer of a political subdivision of the state. TEX. CIV. PRAC. & REM. CODE 

ANN. § 51.014(a)(5) and (8). 

The Court reviews the question of subject matter jurisdiction, a legal 

question, de novo, Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004), and the 

question of whether uncontroverted evidence of jurisdictional facts demonstrates 

subject-matter jurisdiction is also a question of law. Tex. Dep’t. of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Governmental or individual “immunity from suit defeats a trial court’s 

subject matter jurisdiction and thus is properly asserted in a plea to the 

jurisdiction.” Texas DOT v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). 

8 
The complainant has the burden to plead facts affirmatively showing the trial court 

has subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife, 133 S.W.3d at 226. 

A plea to the jurisdiction seeks dismissal of a case for lack of subject matter 

jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). 

ARGUMENTS AND AUTHORITIES

I. Appellees bear the burder to establish a waiver of immunity.

Immunity from suit bars an action against a governmental entity unless the 

State has expressly consented to the suit. See Federal Sign v. Texas Southern 

Univ., 951 S.W. 2d 401, 405 (Tex. 1997). “It is settled in Texas that for the 

Legislature to waive...immunity, a statute or resolution must contain a clear and 

unambiguous expression of the Legislature's waiver of immunity.” Wichita Falls 

State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). For suits brought against 

governmental entities, the plaintiffs must affirmatively demonstrate that sovereign 

immunity has been waived. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 

540, 542 (Tex. 2003). Accordingly, the City of Friendswood, like all other 

governmental units in Texas, is entitled to a presumption that Plaintiffs’ claims are 

barred by governmental immunity. See Dallas Area Rapid Transit v. Whitley, 104 

S.W.3d 540, 542 (Tex. 2003); City of Pasadena v. Thomas, 263 S.W.3d 43, 45 

(Tex. App.—Houston [1st Dist.] 2006, no pet.). The Texas Supreme Court has 

characterized this as a “heavy presumption.” City of Galveston v. State, 217 

9 
S.W.3d 466, 469 (Tex. 2007). Thus, in a plea to jurisdiction, it is not the 

defendant's burden to present evidence to support waiver; it is the plaintiff's burden 

to plead facts demonstrating waiver of immunity. Id.; See also Green Int'l Inc. v. 

State, 877 S.W.2d 428, 437 (Tex. App.—Austin 1994, writ dism'd). 

Because a governmental unit is protected from suit by governmental 

immunity, pleadings in a suit against a governmental unit must 

affirmatively demonstrate, either by reference to a statute or express 

legislative permission that the Legislature consented to the suit.

City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 10 (Tex. App.—

Houston [1st Dist.] 2007, no pet). It is beyond reasonable argument that immunity 

is, as a matter of law, presumed unless it a plaintiff disproves it and a court that 

denies a claim of immunity must expressly identify a specific legislative enactment 

that clearly and unequivocally demonstrates a clear legislative intent to waive the 

City’s immunity under the specific facts, and for the specific causes of action, 

alleged. Id. 

 Therefore, a court may not consider the merits of a plaintiff's substantive 

claims, no matter how arguably compelling, until the plaintiff alleges facts 

establishing waiver of immunity and, thus, that the court has subject-matter 

jurisdiction to decide the controversy. Tex. Dep't of Transp. v. City of Sunset 

Valley, 8 S.W. 3d 727, 730 (Tex. App.—Austin 1999, no pet.).

10
II. The City is immune from Appellees’ common law tort claims 

A. Limited waiver of immunity under the Texas Tort Claims Act

Appellees sued the City and Mayor Holland for two common law torts – 

misrepresentation and nuisance. The Texas Tort Claims Act (“TTCA”) “is the 

only, albeit limited, avenue for common-law recovery against the government.” 

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). 

The TTCA does not create a cause of action against governmental units but only 

establishes a limited waiver of governmental immunity, in narrowly defined 

circumstances. City of Houston v. Boyle, 148 S.W.3d 171, 179 (Tex. App.—

Houston [1st Dist.] 2004, no pet.) (citing City of Tyler v. Lykes, 962 S.W.2d 489, 

494 (Tex. 1997)). Put another way, unless immunity is waived by the TTCA, the 

governmental unit remains immune from suit. Boyle, 148 S.W.3d at 179. 

Unless an express waiver applies, the TTCA bars claims based upon a City’s 

governmental functions. There can be no question here but that Appellees’ claims 

relate only to governmental functions. The TTCA expressly defines municipal 

functions exercised in the interest of the general public, such as those involved 

here including “parks,” recreational, flood control, and “zoning, planning and plat 

approval” are governmental functions of the City covered by the TTCA. TEX. CIV.

PRAC. & REM. CODE §§ 101.0215(9), (11), (13), (19), (23), (29), (30) and (32). 

Moreover, the “[a]cquisition of land for a public purpose is a governmental 

11
function,” Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346, 349 

(Tex.App.—Dallas 2004, pet. denied), and redevelopment of the land, and use for 

park or recreational purposes are likewise governmental functions. Cf., Texas Bay 

Cherry Hill v. City of Fort Worth, 257 S.W.3d 379 (Tex.App.—Fort Worth 2008, 

no pet.) and City of Plano v. Homoky, 294 S.W.3d 809, 815 (Tex.App.—Dallas 

2009, no pet.).

The waiver is narrow. For a governmental unit to be subject to suit for a 

waiver of immunity under the TTCA, (1) the claim must arise under one of the 

three specific areas of liability listed in section 101.021; and (2) the claim must not 

fall within an exception to the waiver of sovereign immunity. See City of Garland 

v. Rivera, 146 S.W.3d 334, 338 (Tex. App.—Dallas 2004, no pet.) and Scott v. 

Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.—Houston [1st Dist.] 

1999, pet. denied). Appellees’ claims fail both prongs here. The TTCA provides a 

limited waiver of governmental immunity and allows suits to be brought against 

governmental entities in a few, narrowly defined circumstances. Texas Dept. of 

Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Governmental 

immunity is waived under the TTCA in only three areas – none of which are 

implicated here – (i) use of publicly owned automobiles, (ii) premises defects, and 

(iii) injuries arising out of conditions or uses of certain property. See, Tex. Dep’t 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). Unless the 

12
common law tort claims fall within this waiver of governmental immunity 

established by the Texas Legislature, they are barred.

B. Appellees’ misrepresentation claim is barred by immunity

The elements of misrepresentation are (1) the representation is made by a 

defendant in the course of his business, or in a transaction in which he has a 

pecuniary interest; (2) the defendant supplies ‘false information’ for the guidance 

of others in their business; (3) the defendant did not exercise reasonable care or 

competence in obtaining or communicating the information; and (4) the plaintiff 

suffers pecuniary loss by justifiably relying on the representation. K.C. 

Cunningham v. Tarski, 365 S.W.3d 179, 186-87 (Tex.App.—Dallas 2012, pet. 

denied). Appellees misrepresentation claim surely doesn’t meet these elements. 

The claim purports to rest on the assertion in April 2013 in the City’s plea in the 

first lawsuit averring that no action had been taken with respect to the property 

rendering Appellees’ claims unripe [See, C.R. 168-69 (Plaintiff’s Second 

Amended Petition, ¶ 21)].7

 

First and foremost, a statement in a judicial proceeding enjoys privilege and 

cannot support a misrepresentation claim.8

 Perhaps more glaringly undermining 

7

 In addition to other dispositive grounds.

8

 See, e.g., Bird v. W.C.W., 868 S.W.2d 767, 771-72 (Tex. 1994); Laub v. Pesikoff, 979 

S.W.2d 686, 691-92 (Tex.App.—Houston [1st Dist.] 1998, pet. denied).

13

 
the claim, the April 2013 filing occurred months before the City Council Meeting 

and filing of the declaration of amended deed restrictions – and thus was quite 

obviously accurate. While Appellees’ claim of misrepresentation, devoid of the 

basic elements of a legally cognizable misrepresentation claim, appears to be 

frivolous on its face, any claim for misrepresentation is plainly barred by 

governmental immunity.

Appellees here never alleged any of their claims arise out of (i) the use of a 

publicly owned automobile, (ii) a premises defect, or (iii) an injury arising out of a 

condition or use of certain property. Miranda, 133 S.W.3d at 225; TEX. CIV. PRAC.

& REM. CODE ANN. § 101.021. Appellees’ misrepresentation claim does not arise 

out of the use of a publicly owned vehicle, a premises defect, or a condition or use 

of property, even under their broadest reading [C.R. 173]. Therefore, “the general 

rule of immunity controls.” Boyle, 148 S.W.3d at 180 (citing Miranda, 133 

S.W.3d at 226–28). Accordingly, Appellees failed to affirmatively demonstrate any 

waiver of the City’s immunity under the TTCA. See Martinez v. Hardy, 864 

S.W.2d 767,772 (Tex. App. 1993). This Court’s own precedent is quite clear on the 

issue. See Ethio Express Shuttle Service v. City of Houston, 164 S.W.3d 751, 757-

58 (Tex.App.—Houston [14th Dist.] 2005, no pet.) (misrepresentation claim did not 

fall within waiver of immunity and was thus barred); see also, City of Fort Worth 

14
v. Pasturek Industries, Inc., 48 S.W.3d 366, 372 (Tex.App.—Fort Worth 2001, no 

pet.) (same). 

Further, to the extent, if any, Appellees claim intentional misrepresentation, 

the claim is further barred because the TTCA expressly states that it does not 

waive immunity for claims arising out of intentional torts. TEX. CIV. PRAC. & REM.

CODE ANN. § 101.057(2); Harris County, Tex. v. Cabazos, 177 S.W.3d 105, 109

(Tex. App.—Houston [1st Dist.] 2005, no pet.). Accordingly, Appellees’ 

misrepresentation claim must be dismissed as it not only fails to fall within a 

waiver of immunity, it is specifically excluded from the waiver set forth in the 

Texas Tort Claims Act. Accordingly, the Court has no jurisdiction over the 

misrepresentation claim against the City, and the claim must be dismissed. Mayor 

Holland’s official immunity and derivative immunity under 101.106 further bar 

any such claim against him as discussed below. 

C. Appellees’ nuisance claim is barred

In their Second Amended Petition, Appellees added a tort claim against the 

City for nuisance, purportedly based on the increase in traffic on nearby streets or 

City owned lots [C.R. 174-176]. Texas law generally defines a nuisance as “a 

condition that substantially interferes with the use and enjoyment of land by 

causing unreasonable discomfort or annoyance to persons of ordinary 

sensibilities.” Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011). However, the 

15
Texas Supreme Court has made clear that a claim of “nuisance” simply doesn’t 

overcome a governmental entity’s immunity from tort claims. City of Dallas v. 

Jennings, 142 S.W.3d 310, 313-16 (Tex. 2004). Rather, a plaintiff must establish 

that the circumstances are sufficient to constitute an inverse condemnation, and 

pursue liability under a constitutional takings theory. Id. 

To be sure, Appellants here failed to identify any specific harm to their 

persons or property by any action of Appellants of the nature actionable as a 

nuisance. Even if they did, Appellees’ nuisance claim is barred by governmental 

immunity. Again, the claim of nuisance is premised on Appellees’ contention that 

the subdivision will have increased pedestrian and vehicular traffic in the 

neighborhood which they speculate might interfere with their peaceful use and 

enjoyment of their property [C.R. 174-176]. None of the allegations include 

claimed use of motor driven equipment or other facts which would even arguably

present a waiver of tort immunity under the TTCA. Thus, Appellees’ nuisance 

claim is barred by immunity. Cf., Jennings. 

III. Appellees fail to state and cannot state a viable claim of inverse 

condemnation. 

Perhaps recognizing the effect of immunity on their common law claims, 

after reading the City’s briefing, Appellees added a claim of inverse condemnation 

for the first time in their Second Amended Petition [C.R. 174-76]. However, “[t]o 

properly assert an inverse condemnation claim against a governmental entity, a 

16
party must plead that the governmental entity intentionally performed an act in the 

exercise of its lawful authority that resulted in the taking, damaging or destruction 

of the party’s property for public use.” City of Houston v. Song, 2013 WL 269036 

(Tex.App.—Houston [14th Dist.] 2013), citing, Gen Servs. Comm’n v. Little-Tex 

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). “Determining whether a taking 

has occurred [in an inverse condemnation suit] is a question of law.” Hearts Bluff 

Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012).

Immunity can be waived for a claim of inverse condemnation. However, 

Texas law is clear that, if, as here, Appellees have not stated a viable inverse 

condemnation claim, the City retains its immunity from any such claim(s). See, 

City of Dallas v. VSC, LLC, 347 S.W.3d 231, 250 (Tex. 2011); Tex. Dept. of 

Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 167 (Tex. 2013); Heart’s 

Bluff, at 476. Merely asserting an inverse condemnation theory, as Appellants did 

in their most recent petition, does not circumvent the City’s governmental 

immunity. 

There is no authority for the proposition advanced by Appellants that the 

City, by maintaining its own property as green or open space, has condemned or 

taken their adjacent property. In essence, Appellees complain the City is using its 

own property for public use and Appellees prefer to have their four lots and the 

City’s thirty-eight lots left to Appellees’ own exclusive use and enjoyment. While 

17
there are no allegations which would even approach the degree of a constitutional 

taking presented in this case, Texas Courts have made clear that, even where public 

works introduce increased traffic and noise to a community, such works do not 

constitute a compensable taking. See Felts v. Harris County, 915 S.w.2d 482 (Tex. 

1996) (substantial increase in noise from constructed highway not taking); Alewine 

v. City of Houston, 309 S.W.3d 771, 779 (Tex.App.—Houston [14th Dist.] 2010, 

pet. denied), citing, City of Austin v. Travis County Landfill Co., 73 S.W.3d 234, 

244 (Tex. 2002) (increased noise from nearby airport overflights not taking “absent 

a showing by individual homeowners that their houses are no longer usable for 

residential purposes”); State v. Momin Properties, Inc., 409 S.W.3d 1 (Tex.App.—

Houston [1st Dist.] 2013 pet. denied) (overpass diverted traffic). The Texas 

Supreme Court has made clear that “an abutting property owner does not have a 

vested interest in the traffic that passes in front of his property.” State v. Schmidt, 

867 S.W.2d 769, 774 (Tex. 1993). The Appellees allegations in this case, even if 

true, fall far short of establishing any basis to assert their property was taken, 

damaged or destroyed for public use. See, Little Tex, supra.

Here, there could be no viable taking arising out of the City’s use of its own 

property, and surely by its maintenance of its own property as green space. While 

Appellees may find it undesirable to have members of the public on the the City’s 

park property, this hardly constitutes a constitutional taking, damaging or 

18
destruction of their property. As such, Appellees stated no viable claim of inverse 

condemnation, they failed to demonstrate that their claims would overcome 

immunity and failed to establish the trial court’s jurisdiction. The trial court erred 

and the claim should have been dismissed. This Court should reverse and render 

dismissal in favor of Appellants.

IV. Appellees fail to state and cannot state a viable claim of breach of 

contract. 

Appellees asserted a breach of contract claim in their First and Second 

Amended Petitions [C.R. 100-112; 162-178]. A claim for breach of contract 

requires proof of; (1) the existence of a valid contract; (2) performance or tendered 

performance by the plaintiff; (3) breach of the contract by the defendant; and (4) 

damages sustained by the plaintiff as a result of that breach. Holloway v. Dekkers, 

380 S.W.3d 315, 324 (Tex.App.—Dallas 2012, no pet.). 

Again, a governmental entity such as the City is entitled to governmental 

immunity except to the extent, if any, such immunity has been expressly waived by 

the Texas Legislature. Any waiver of immunity for breach of contract is governed 

by Section 271.152 of the Texas Local Government Code, which provides,

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.

19
TEX. LOCAL GOV’T CODE § 271.152 (emphasis added); See also, Tooke v. City of 

Mexia, 197 S.W.3d 325 (Tex. 2006). “‘Contract subject to this subchapter’ means 

a written contract stating the essential terms of the agreement for providing goods 

or services to the local government entity...” Id., § 271.152(2) (emphasis added). 

Quite simply, there were never allegations in this case that related to a 

contract for the provision of “goods or services” and Appellees have neither recited 

the existence of or shown a written contract for either. Therefore, § 271.152 does 

not provide for a waiver of immunity and there is no other statutory basis for 

waiver of immunity based upon a claim of breach of contract. Accordingly, the 

trial court erred in failing to dismiss Appellees’ breach of contract claim for want 

of jurisdiction. 

V. Appellees’ request for declaratory judgment requesting an 

interpretation of the deed restrictions did not fall within a waiver of 

immunity from suit and the Court lacks jurisdiction

Appellees also requested a declaratory judgment interpreting the deed 

restrictions, specifically that the City was entitled to fewer votes than the Appellees 

collectively and, in their most recent petition, that the Court declare that the City’s 

Declaration of Amended Deed Restrictions to be void as contrary to the Imperial 

Estates’ deed restrictions [C.R. 171-72]. Appellees reference and rely upon

Section 37 of the Texas Civil Practice & Remedies Code, the Texas Uniform 

Declaratory Judgments Act (“UDJA”). The UDJA generally provides that a “[a] 

20
court of record within its jurisdiction has power to declare rights, status, and other 

legal relations...” Tex.Civ.Prac. & Rem. Code 37.003(a). However, and essential 

here is the well-settled legal proposition that “immunity will bar an otherwise 

proper UDJA claim that has the effect of establishing a right to relief against the 

State for which the legislature has not waived immunity.” Mustang Special Utility 

District v. Providence Village, 392 S.W.3d 311, 315-16 (Tex.App.—Fort Worth 

2012, no pet.), citing, Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 

384, 388 (Tex. 2011). 

Appellees’ claim for declaratory relief does not fall within a waiver of 

governmental immunity. “The law is clear that the UDJA waives governmental 

immunity only for (1) claims challenging the validity of an ordinance or statute and 

(2) ultra vires claims against state officials who allegedly act without legal or 

statutory authority or who fail to perform a purely ministerial act.” Id, citing City 

of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 & n. 6 (Tex. 2009). See also Tex. 

Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).9

 

Notably, immunity is not waived where, as here, a party seeks to have the 

Court construe or interpret the terms of a contract, rather than a statute or 

9

 Even in the case of “an ultra vires action, the governmental entity [itself] 

remains immune from suit” De Los Santos v. City of Robstown, 2012 WL 

6706780 (Tex.App.—Corpus Christi 2012, no pet.), citing, City of El Paso v. 

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).

21

 
ordinance. City of Corinth v. Nurock Development, 293 S.W.3d 360, 369 

(Tex.App.—Fort Worth 2009, no pet.) (emphasis added), citing to IT-Davy, 74 

S.W.3d at 855-56; Mustang, at 316.10 See also, City of North Richland Hills v. 

Home Town Urban Partners, Ltd., 340 S.W.3d 900, 911 (Tex.App.—Fort Worth 

2011, no pet.). Governmental immunity bars requests for declaratory relief against 

a governmental entity (1) that constitute a suit to recover money damages or (2)

that seek to establish a contract’s validity, to enforce performance, or to impose 

contractual liabilities – actions that effectively control state action as such efforts 

interfere with the separation of governmental powers. Mustang, at 316.

Texas law precludes Appellees’ request for declaratory relief because, “deed 

restrictions are a contract between the property owner and the neighborhood 

association.” Devonshire Place Neighborhood Association v. Devonshire Place, 

Ltd., 1999 WL 82617 at *4 (Tex.App.—Houston [1st Dist.] 1999, no pet.) 

(unpublished), citing, Tien Tao Ass’n, Inc. v. Kingsbridge Park Community Ass’n, 

Inc., 953 S.W.2d 525, 532-33 (Tex.App. – Houston [1st Dist.] 1997, no writ) 

(“deed restrictions comprise a contract between the homeowner and neighborhood 

association”). Accordingly, Texas law subjects deed restrictions to the general 

10 The Court in Nurock explained that “[s]tatutes or ordinances enacted by 

legislative bodies are designed to address broad questions of public policy 

and to promulgate laws that those subject to the government’s power must 

follow in future conduct” and are thus distinguishable from a contractual 

dispute between specific parties. Id, at 368-69.

22

 
rules of contract construction. Marzo Club, LLC v. Columbia Lakes Homeowner’s 

Ass’n, 325 S.W.3d 791, 798 (Tex.App.—Houston [14th Dist.] 2010, no pet.); 

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Uptegraph v. Sandalwood 

Civic Club, 312 S.W.3d 918, 925 (Tex.App.—Houston [1st Dist.] 2010, no pet.). 

As Appellees seek interpretation and a declaration of their rights under a 

contract with their co-owner – the City - rather than interpretation of a statute or 

ordinance, there is no waiver of immunity for any claim against the City under the 

UDJA. See, Mustang at 316; See also City of Dallas v. Turley, 316 S.W.3d 762, 

768-69 (Tex.App.—Dallas 2010, pet. denied) (landowners who sought clarification 

of their rights but who did not challenge the validity of an ordinance or statute 

failed to establish waiver of immunity).

At bottom, Appellees’ declaratory judgment action is as barred by 

governmental immunity as their common law and breach of contract claims and 

the claim should have been dismissed for lack of jurisdiction. This Court should 

reverse and render dismissal in favor of Appellants.

VI. Appellees assertion of “ultra vires” does not present a viable claim 

which overcomes governmental immunity

For the first time in their First Amended Petition, and again with th benefit 

of the City’s briefing which demonstrated the baseless nature of their prior claims, 

Appellees asserted a bald allegation that the Mayor’s actions in executing the 

Declaration of Amended Deed Restrictions after a City Council vote were ultra 

23
vires [C.R. 110]. This assertion is not only as unavailing as Appellees’ other 

claims, it suggests Appellees misunderstand this legal concept.

 The ultra vires exception to immunity for a legislative act encompasses suits 

to require state officials to comply with statutory or constitutional provisions. 

These suits attempt to “reassert the control of the State.” City of El Paso v. 

Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Notably, regardless of whether an 

individual’s immunity may be affected by a proper assertion of a claim of an 

individual’s alleged ultra vires act, a governmental entity is immune from an 

ultra vires claim. See, e.g., De Los Santos v. City of Robstown, 2012 WL 6706780 

(Tex.App. – Corpus Christi, no pet.), citing, Heinrich, at 372. Patel v. Texas Dept. 

of Licensing and Regulation, ___ S.W.3d ___, 2015 WL3982687 at *4 (Tex. 

2015). The ultra vires exception only applies to official capacity claims brought 

against governmental officials who have failed to comply with ministerial statutory 

or constitutional duties. Town of Flower Mound v. Rembert Enterprises, Inc., 369 

S.W.3d 465, 476 (Tex. App.—Fort Worth 2012, pet. denied).

Appellees’ assertion that the Mayor had no authority to sign the Declaration 

was, and is, contrary to law. The City of Friendswood, Texas’ Charter, Article III, 

Section 3.05 sets out the Mayor’s duties and authority. It provides in part as 

follows:

The Mayor shall see that all resolutions of the City Council are 

faithfully obeyed and enforced. He/she shall, when authorized by the 

24
City council, sign all official documents, such as ordinances, 

resolutions, conveyances, grant agreements, official plats, contracts 

and bonds...H/she shall perform such other duties consistent with this 

Charter or as may be authorized or directed by City Council.

FRIENDSWOOD, TEXAS CHARTER § 3.05 [C.R. 143]. Further, “[t]o fall within [the] 

ultra vires exception, a suit must not complain of a government officer’s exercise 

of discretion, but rather must allege and ultimately prove that the officer acted 

without legal authority or failed to perform a purely ministerial act.” Berry v. Tex. 

Dem. Party, 449 S.W.3d 633, 643-44 (Tex.App.—Austin 2014, no pet. hist.). 

Patel at *4. “‘Complaints that the official ‘reached an incorrect or wrong result 

when exercising its delegated authority’ is not sufficient to state an ultra vires

claim of exceeding statutory authority.” Moers v. Harris County Appraisal 

District, ___ S.W.3d ___, 2015WL3981735 (Tex. App.—Houston [1st Dist.] 2015, 

no pet. hist.). Moreover, the official capacity ultra vires exception is quite limited 

and does not apply in an action to “establish a contract’s validity, to enforce 

performance under a contract, or to impose contractual liabilities.” See, Town of 

Flower Mound at 476. 

Appellees did not premise their claim on any alleged non-performance of 

any identified statutory or constitutional ministerial duties by Appellant Holland

and executing legal documents, including those decided by the City Council, on 

behalf of the City is hardly outside this mayor’s authority and, therefore, not, as a 

simple matter of clear law, an ultra vires act. While Appellees claimed in their 

25
Second Amended Petition that Mayor Holland took action without notice or a vote,

that assertion was directly disproven by the evidence filed by Appellants, including 

the agenda and minutes [C.R. 116-130; 138-142]. Indeed, when the City filed 

documentation confirming the agenda and minutes relating to the City’s contested 

action, Appellees not only failed to controvert it, they told the trial court they

conceded the point. 

VII. Appellees have no viable claim and have not established jurisdiction 

under the Texas Open Meetings Act

Appellees further sought a declaratory judgment that Appellants’ actions 

were in violation of the Texas Open Meetings Act premised, again, on the 

contention – demonstrated false by the City’s public records [C.R. 116-130; 138-

142]- that there was no notice or discussion of the actions reflected in the 

Declaration of Amended Deed Restrictions. 

The Texas Open Meetings Act prescribes notice and disclosure requirements 

for governmental meetings. See, City of San Antonio v. Fourth Court of Appeals, 

820 S.W.2d 762 (1991). Appellees’ claim is asserted “pursuant to Chapter 37 of 

the Texas Civil Practice and Remedies Code,” the Texas Declaratory Judgments 

Act [C.R. 172]. As set forth above, governmental immunity is not waived under 

the Declaratory Judgments Act except in very limited circumstances, which do not 

include an alleged violation of the Open Meetings Act. See, Mustang Special 

Utility District. Rather, the Act’s enforcement mechanism is set forth in the Act 

26
itself.11 Appellees request for declaratory relief related to the Texas Open 

Meetings Act is barred by immunity because it is not within the narrow exceptions 

to immunity under the Declaratory Judgments Act. See, e.g., Heinrich. 

After Appellees asserted an Open Meetings Act claim, however bare, 

Appellants affirmatively disproved it by supplying the July 2013 City Council 

Minutes [C.R. 128] and, thereafter, the Agenda timely posted in advance of that

meeting [C.R. 139, No. 14]. After the City produced these, Appellees conceded 

there was no violation of the Texas Open Meetings Act, but neither the Appellees 

nor the Court dismissed the claim. The trial court erred in failing to grant 

Appellants’ plea to the jurisdiction on the Texas Open Meeting Act claim. 

VIII. Appellees’ claims against Mayor Holland are barred by derivative and 

official immunity

Appellees’ have not alleged any act by Mayor Holland other than executing 

the Declaration of Amended Deed Restrictions as Mayor. Along with its Answer, 

the Appellant City of Friendswood moved the Court to dismiss all claims against 

Mayor Holland, based on his derivative immunity under Texas Tort Claims Act §

101.106(e). See also, Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 657 (Tex. 

2008). Specifically, TTCA § 101.106(e) provides that “[i]f a suit is filed under this 

chapter against both a governmental unit and any of its employees, the employees 

shall immediately be dismissed on the filing of a motion by the governmental 

11 See, Texas Government Code § 551.142(b).

27

 
unit.” Hopkins v. Strickland, 2013 WL 1183302 (Tex.App.—Houston [1st Dist.] 

2013) (unpublished) (affirming dismissal of claims against mayor for defamation 

and malicious prosecution, under § 101.106). The trial court erred in denying the 

request to dismiss claims against Appellant Holland.

In addition, the ultra vires claim against Holland, necessarily against him in 

his official capacity only, must be dismissed because it fails to overcome the 

governmental immunity which applies, as discussed above. 

Finally, official immunity bars any claim against Holland based upon the 

pleadings and uncontroverted evidence before the Court. Common law official 

immunity protects public officials from suit arising from performance of their (1) 

discretionary duties (2) performed in good faith; and (3) within the scope of their 

authority. Ballantyne v. Champion Builders, Inc. 144 S.W.3d 417, 423 (Tex. 

2004). “An action is considered discretionary if it involves personal deliberation, 

decision, and judgment.” City of Lancaster v. Chambers, 883 S.W.2d 650, 654 

(Tex. 1994). To determine good faith, courts apply an objective standard, “what a 

reasonable [person] could have believed.” Ballantyne, 144 S.W.3d at 426. 

Specifically whether a reasonable person, possessing the same information he had 

at the time, could have believed his conduct was lawful. Chambers, at 656. An act 

is within the scope of an official’s authority if they are discharging the duties 

generally assigned to them. Ballantyne, at 424.

28
The pleadings and evidence demonstrate Mayor Holland acted within the 

scope of his authority, in his discretionary capacity, and in good faith [C.R. 128, 

139 ¶ 13, 143]. While the Mayor did absolutely nothing which would give rise to a 

legal claim against him, even if he did, § 101.106(e) and official immunity protect 

him from suit and deprived the trial court of jurisdiction. The trial court erred in 

denying Mayor Holland’s motion to dismiss and plea to the jurisdiction on claims 

asserted against him. 

IX. Appellees Claim for Injunctive Relief is Barred

Appellees included in their Petition a request for an injunction against any 

development by the City of its lots. To be entitled to injunctive relief, a party must 

show a probable right to relief and success on the merits, imminent harm, and an 

irreparable injury with no remedy at law. See, Butnaru v. Ford Motor Company, 

84 S.W.3d 198, 204 (Tex. 2002); Sharma v. Vinmar Int’l Ltd., 231 S.W.3d 405, 

419 (Tex.App.—Houston [14th Dist.] 2007, no pet.). The Court appropriately 

denied Appellees request for a Temporary Restraining Order [C.R. 21]. Injunctive 

relief is appropriate in narrow circumstances under the ultra vires exception, 

discussed above. See, Heinrich, supra. Appellees failed to identify any waiver 

from a claim for injunctive relief here. Thus, the Appellees’ immunity barring any 

claim extends to any request for injunctive relief. The Court should reverse the 

denial of Appellants’ plea and render dismissal in favor of Appellants.

29
X. District Court erred in failing to dismiss all of Appellees’ claims or, 

alternatively, individual claims

Any one of these grounds constituted a basis for dismissal in light of the lack 

of jurisdiction the District Court had over this case. The Court erred by denying 

the City’s plea to the jurisdiction on Appellee’s Counterclaim. 

CONCLUSION

Appellees have asserted numerous causes of action in an obvious and everexpanding attempt to thwart dismissal of claims from which both the City and 

Mayor clearly are immune. While the claims themselves wholly lack merit, they 

are barred by the direct application of immunity, or by Appellees’ failure to state 

viable claims which would overcome that immunity. Appellees failed to show as 

waiver of immunity on any of their claims and no waiver exists. Accordingly, the 

trial court lacks jurisdiction and should have granted the plea to the jurisdiction and 

motion to dismiss, in whole or at least in part. This Court should reverse and 

render judgment in favor of both the City and Mayor Holland and dismissing all of 

Appellees’ claims with prejudice. 

PRAYER

Appellants, the City of Friendswood, Texas and Kevin Holland pray this 

Court reverse the trial court’s denial of its Plea to the Jurisdiction and Motion to 

Dismiss, and render judgment that Appellees’ suit be dismissed with prejudice for 

lack of subject matter jurisdiction and for all other relief to which they are entitled. 

30
 Respectfully submitted, 

 /s/ William S. Helfand 

William S. Helfand

Attorney-in-Charge 

 SBOT No. 09388250

 bill.helfand@chamberlainlaw.com

Charles T. Jeremiah

 SBOT No. 00784338

 Charles.jeremiah@chamberlainlaw.com

ATTORNEYS FOR APPELLANTS 

OF COUNSEL:

CHAMBERLAIN, HRDLICKA, WHITE,

WILLIAMS & AUGHTRY

1200 Smith Street, Suite 1400

Houston, Texas 77002-4401

(713) 654-9630

(713) 658-2553 (Fax)

31
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief has been 

served via CM/ECF System and/or by CD and certified mail, return receipt 

requested, on this 15th day of July, 2015 to:

Aaron Pool

James T. Sunosky

Donato Minx Brown & Pool, PC 

3200 Southwest Freeway, Suite 2300 

Houston, Texas 77027

/s/William S. Helfand 

1947904.2 

003856..000356 

32
CERTIFICATE OF COMPLIANCE 

 I certify that this brief complies with the typeface and word-count

requirements set forth in the Texas Rules of Appellate Procedure. This brief has 

been prepared, using Microsoft Word, in 14-point Times New Roman font for the 

text and 12-point Times New Roman font for any footnotes. This Motion contains 

7,146 words, as determined by the word count feature of the word processing 

program used to prepare this document, excluding those portions of the notice 

exempted by TEX. R. APP. P. 9.4(i)(1).

 /s/ William S. Helfand 

33
APPENDIX 

34
TAB A 
NO. 14-CV-0490 

PAUL and CAROLYN HORN, MIKE 

and LUCY STACY, PETE and JUDY 

GARCIA, and JANICE FRANKIE 

vs. 

1'-CV-Ml8 

DCORDPJ 

~ ~ ...... Jurlldlclllll 

1832332 

· 11111111111111111111111 

THE CITY OF FRIENDSWOOD AND 

MAYOR KEVIN M. HOLLAND 

§ 

.§ 

§ 

§ 

§ 

§ 

§ 

§ 212tn JUDICIAL DISTRICT 

ORDER DENYING DEFENDANT'S PLEA TO THE JURISDICTION AND 

MOTION TO DISMISS 

BE IT REMEMBERED, on this day came on to be heard Defendants' Plea to the 

Jurisdiction and Motion to .Dismiss in the above cause. and the Court having considered 

same, with the arguments of counsel, finds that said Motion shah in all things be DENIED. 

It is therefore accordingly, 

ORDERED, ADJUDGED and DECREE, Defendants' Pfea to the Jurisdlction and 

Motion to Dismiss shall in all things be DENIED. It is further, 

ORDERED, ADJUDGED and DECREED, Defendanfs Motion to Strike Discovery 

or Alternatively Stay Discovery shall in all things be DENIED. 

SIGNED this the _aD_ day of_~-- --~·-~-=---- ---· 2015 

\ 12 193 
TAB B 
this subsection will have on the availability of other forms of assistance 

under this Act. 

(6) Definitions - For purposes of this section 

(A) Department of Defense - The term "Department of Defense" has the 

meaning the term "department" has under section I 01 of title 10. 

(B) Emergency work - The term "emergency work" includes clearance 

and removal of debris and wreckage and temporary restoration of 

essential public facilities and services. 

Sec. 404. Hazard Mitigation (42 U.S.C. 5170c)* 

(a) In General - The President may contribute up to 75 percent of the cost of hazard 

mitigation measures which the President has determined are cost-effective and 

which substantially reduce the risk of future damage, hardship, loss, or suffering in 

any area affected by a major disaster. Such measures shall be identified following 

the evaluation of natural hazards under section 5165 of this title and shall be 

subject to approval by the President. Subject to section 5165 of th is title , the total 

of contributions under this section for a major disaster shall not exceed 15 percent 

for amounts not more than $2,000,000,000, I 0 percent for amounts of more than 

$2,000,000,000 and not more than $I 0,000,000,000, and 7.5 percent on amounts of 

more than $10,000,000,000 and not more than $35,333,000,000 of the estimated 

aggregate amount of grants to be made (less any associated administrative costs) 

under this Act with respect to the major disaster. 

(b) Property acquisition and relocation assistance -

(I) General authority - In providing hazard m1t1gation assistance under this 

section in connection with flooding, the Director of the Federal Emergency 

Management Agency may provide property acquisition and relocation 

assistance for projects that meet the requirements of paragraph (2). 

(2) Terms and conditions - An acquisition or relocation project shall be eligible 

to receive assistance pursuant to paragraph (I) only if 

(A) the applicant for the assistance is otherwise eligible to receive 

assistance under the hazard mitigation grant program established 

under subsection (a); and 

(B) on or after December 3, 1993, the applicant for the assistance enters 

into an agreement with the Director that provides assurances that -

(i) any property acquired, accepted, or from which a structure 

will be removed pursuant to the project will be dedicated and 

maintained in perpetuity for a use that is compatible with 

open space, recreational, or wetlands management practices; 

29 
(ii) no new structure will be erected on property acquired, 

accepted or from which a structure was removed under the 

acquisition or relocation program other than--

(I) a public facility that is open on all sides and 

functionally related to a designated open space; 

(II) a rest room; or 

(JIT) a structure that the Director approves in writing 

before the commencement of the construction of the 

structure; and 

(iii)after receipt of the assistance, with respect to any property 

acquired, accepted or from which a structure was removed 

under the acquisition or relocation program--

(l) no subsequent application for additional disaster 

assistance for any purpose will be made by the 

recipient to any Federal entity; and 

(II) no assistance referred to in subclause (I) will be 

provided to the applicant by any Federal source. 

(3) Statutory construction - Nothing in this subsection is intended to alter or 

otherwise affect an agreement for an acquisition or relocation project 

carried out pursuant to this section that was in effect on the day before 

December 3, 1993. 

(c) Program Administration by States -

(1) In general - A State desiring to administer the hazard m1t1gation grant 

program established by this section with respect to hazard mitigation 

assistance in the State may submit to the President an application for the 

delegation of the authority to administer the program. 

(2) Criteria - The President, in consultation and coordination with States and 

local governments, shall establish criteria for the approval of applications 

submitted under paragraph (1). The criteria shall include, at a minimum -

(A) the demonstrated ability of the State to manage the grant program 

under this section; 

(B) there being in effect an approved mitigation plan under section 5165 

of this title; and 

(C) a demonstrated commitment to mitigation activities. 

(3) Approval - The President shall approve an application submitted under 

paragraph ( l) that meets the criteria established under paragraph (2). 

(4) Withdrawal of approval - If, after approving an application of a State 

submitted under paragraph (I), the President determines that the State is not 

administering the hazard mitigation grant program established by this 

30 
section in a manner satisfactory to the President, the President shall 

withdraw the approval. 

(5) Audits - The President shall provide for periodic audits of the hazard 

mitigation grant programs administered by States under this subsection. 

Sec. 405. Federal Facilities ( 42 U.S.C. 5171) 

(a) Repair, reconstruction, restoration or replacement of United States facilities - The 

President may authorize any Federal agency to repair, reconstruct, restore, or 

replace any facility owned by the United States and under the jurisdiction of such 

agency which is damaged or destroyed by any major disaster if he determines that 

such repair, reconstruction, restoration, or replacement is of such importance and 

urgency that it cannot reasonably be deferred pending the enactment of specific 

authorizing legislation or the making of an appropriation for such purposes, or the 

obtaining of congressional committee approval. 

(b) Availability of funds appropriated to agency for repair, reconstruction, restoration, 

or replacement of agency facilities - In order to carry out the provisions of this 

section, such repair, reconstruction, restoration, or replacement may be begun 

notwithstanding a lack or an insufficiency of funds appropriated for such purpose, 

where such lack or insufficiency can be remedied by the transfer, in accordance 

with law, of funds appropriated to that agency for another purpose. 

(c) Steps for mitigation of hazards - In implementing this section, Federal agencies 

shall evaluate the natural hazards to which these facilities are exposed and shall 

take appropriate action to mitigate such hazards, including safe land-use and 

construction practices, in accordance with standards prescribed by the President. 

Sec. 406. Repair, Restoration, and Replacement of Damaged Facilities ( 42 

u.s.c. 5172)* 

(a) Contributions -

( 1) In general -The President may make contributions -

(A) to a State or local government for the repair, restoration, 

reconstruction, or replacement of a public facility damaged or 

destroyed by a major disaster and for associated expenses incurred 

by the government; and 

(B) subject to paragraph (3), to a person that owns or operates a private 

nonprofit facility damaged or destroyed by a major disaster for the 

repair, restoration, reconstruction, or replacement of the facility and 

for associated expenses incurred by the person. 

31