Billboard owner unable to establish waiver of immunity in suit against village

Triple BB, LLC v. The Village of Briarcliff, Texas, 03-17-00149-CV (Tex. App. – Austin, Aug. 15, 2018).

This is an appeal from the granting of the Village of Briarcliff’s plea to the jurisdiction in a case involving a billboard. The Austin Court of Appeals affirmed the dismissal.

The local marina had a cliff-side billboard which was located on Village property. In 2002, the Village entered into a contract with the Marina owners (which became Triple BB) for a separate easement allowing access to a raw water line, in exchange for allowing the billboard. Several years later, the City conveyed the property on which the billboard is located to a third party, who demanded the Marina owners remove the billboard. Triple BB sued the third-party and then added the Village under declaratory judgment, breach of contract, and inverse condemnation theories. The Village filed a plea to the jurisdiction which the trial court granted. Triple BB appealed.

The court first, briefly, addressed the proprietary vs governmental function distinction and held the contract at issue was primarily to allow water and sewer service, with the billboard being merely a form of consideration. As a result, it was a governmental function. Next, as a general rule, when the government “is made a party defendant to a suit for land,” immunity bars the suit absent legislative consent. No waiver of immunity exists to establish a prescriptive easement against the Village. Next, Triple BB argues that the grant of an easement alone qualifies as a contract for service under Chapter 271. However, Chapter 271 does not apply unless the governmental entity has a right under a contract to receive a service. By conveying an easement, the previous owners granted the Village a legal right to use their land in a certain way. They made no promise to perform an act or provide anything, therefore it is not a service and immunity is not waived. As to Triple BB’s declaratory judgment claim, except for a narrow waiver of immunity for claims challenging the validity of ordinances or statutes the UDJA generally does not waive immunity. Finally, to plead a viable inverse condemnation claim, “a plaintiff must allege an intentional government act that resulted in the uncompensated taking of private property” for public use. Triple BB’s factual allegations, taken as true, do not include an intentional act by the Village which resulted in the taking of Triple BB’s land. It merely conveyed the land to a third party. As a result, the trial court properly granted the plea.

If you would like to read this opinion click here. Panel consists of Justice Puryear, Justice Field and Justice Bourland. Memorandum Opinion by Justice Bourland. The attorney listed for Triple BB is Bradley B. Clark.  The attorney listed for the Village is Kenton P. Campbell.