Texas Department of Transportation v. Primary Media Group, Inc.

REVERSE and RENDER and Opinion Filed August 13, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01273-CV

TEXAS DEPARTMENT OF TRANSPORTATION, 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 Transportation (TXDOT or Department) appeals

the trial court’s order denying TXDOT’s motion to dismiss for lack of jurisdiction.

In a single issue, TXDOT argues that, because Primary Media failed to establish a

waiver of sovereign immunity, the trial court should have dismissed the case for

want of jurisdiction. We reverse the trial court’s judgment and render judgment

dismissing Primary Media’s claims for want of jurisdiction.
PRIMARY MEDIA’S SECOND AMENDED PETITION

In September 2021, Primary Media filed its original petition asserting breach

of contract claims against TXDOT in connection 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, Primary Media amended its petition twice, the

Second Amended Petition being the live pleading at the time of the hearing (herein

“the petition”). The facts set forth in this section are taken directly from Primary

Media’s petition.

Primary Media is an owner and operator of off-premise, outdoor advertising

signs commonly known as billboards throughout Texas, frequently located adjacent

to interstate highways and major thoroughfares. 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 which 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 commencement of formal condemnation
proceedings, the State makes an offer to a billboard owner equal to the
appraised value of a sign, less a nominal retention value, in exchange
for the sign owner’s agreement to remove the impacted billboard.

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A billboard owner that chooses to settle with the Department is
required, prior to the Special Commissioners’ 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 quitclaim 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 describe 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 maintained 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 executing 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 herein stated and the terms
provided constitute the only promises, consideration and

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conditions of this purchase; and no other promises,
consideration and conditions have been signified or
implied, save and except the mutual benefits to be derived
by you and TxDOT from the signing of this agreement.

The Department’s standard form quitclaim deed provides that the
billboard owner will remove the impacted 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 relocate the retained structure.

The State’s settlement procedure for billboards displaced by highway
projects is explained in a Department-issued policy titled, “Amended
Guidance for Impacted Off-Premise Billboards Affected by Highway
Transportation Projects” (the “Guidance”). 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 applicable to the issuance of impacted
sign credits are found in 43 Tex. Admin. 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 required for ordinary new-build signs. 43
Tex. Admin. Code § 21.193(c); cf. 43 Tex. Admin. Code §
21.179(a)(1). Additionally, the various spacing requirements for
relocated signs are relaxed, as compared to the spacing requirements
for new-build signs. 43 Tex. Admin. Code §21.193(b); cf. 43 Tex.
Admin. Code § 21.187. Today, most of the available locations for the
construction of new signs have been utilized. As such, a relocation
permit that entitles the holder to relax the ordinary regulations for new-
build signs is a valuable, private right, which is made all the more
valuable due to TxDOT’s required waiver of condemnation rights
necessary for the sign owner to receive the TxDOT relocation permit.

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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 notice to vacate, which specifies the
required removal date, and informs the sign owner of the following:
“Failure to remove the retained improvements will also result in the loss
of eligibility for a relocation permit 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 receive 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 was located on property designated 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 commercial signs in its jurisdiction. Under the

Texas Administrative Code, a certified city has the authority to regulate billboards

within its corporate limits, and billboard owners 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, Primary Media negotiated a settlement with

TXDOT, signed a memorandum of agreement, executed a quitclaim deed, timely

removed the sign, and documented the removal of the sign on TXDOT’s Impacted

Sign Credit Application.

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After Primary Media removed the Parcel 23 Sign, it applied 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, Primary 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 Caddo Mills, Texas. TXDOT rejected the

application pursuant to 43 Texas Administrative Code section 21.192. In a letter,

TXDOT stated the following:

The application you submitted on December 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 where 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 ordinances. Therefore, the permit is not
eligible for use in relocating an impacted sign and this application must
be rejected.

Primary Media appealed, but TXDOT “summarily concluded that Primary

Media was ineligible for receipt of an impacted 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-mandated procedure for the removal of

impacted signs so that it could remain eligible for a relocation credit: Primary Media
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settled with the State on the value of the structure 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 and submitted all required 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 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, leaving 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 improvements. Primary Media executed a

Quitclaim Deed, timely removed the Parcel 16 Sign in response to TXDOT’s Notice

to Vacate, and properly documented the removal. 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 conforming location under Gainesville’s sign

regulations. Primary Media properly submitted 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

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similar to those stated in the TXDOT’s letters 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 improvements. Primary Media executed a

Quitclaim Deed, timely removed the Parcel 60 Sign in response to TXDOT’s Notice

to Vacate, and properly documented the removal. On September 13, 2021, TXDOT

mailed Primary Media a letter, in which TXDOT informed Primary Media that its

Impacted Sign Credit Application was rejected. In its letter, TXDOT explained:

The notice to vacate stated that the property was to be vacated on May
5th, 2021, with an extension granted 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, leaving pipe and footings intact.
Therefore, the sign is not eligible for an impacted sign credit.

Primary Media’s Breach of Contract Claim

Based on its rendition of the facts, Primary Media asserted claims of breach

of contract in connection with each of the signs. Generally, Primary Media claimed

it settled with TXDOT by executing 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

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retain eligibility for relocation permits1 and that, in exchange for its compliance with

the deeds’ removal requirements, Primary Media was entitled2 to the issuance of

relocation permits. In compliance with the terms of the deeds and Department

regulations, Primary Media asserts it timely 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 TXDOT-mandated paperwork. Thus, avers

Primary Media, TXDOT breached its obligation to issue Primary Media the

requested relocation permits upon the timely removal of the subject signs.

Specifically, Primary Media claimed TXDOT breached its obligation owed to

Primary Media under the quitclaim deed for the Parcel 23 Sign when it rejected

Primary Media’s impacted sign credit application, 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 under the quitclaim deed when it rejected

Primary Media’s impacted sign credit application because TXDOT regulations do

not require the removal of the subsurface components of an impacted sign structure

but only the removal of the “sign” itself. Primary Media complained TXDOT

breached its obligations under the applicable 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 contain the word “entitled” or its variants.
–9–
Primary Media’s impacted sign credit applications in connection with the Parcel 16

Sign and Parcel 60 Sign “for the same reasons.”

TXDOT’S PLEA TO THE JURISDICTION, SPECIAL EXCEPTIONS,
GENERAL DENIAL, AND AFIRMATIVE DEFENSES

In October 2021, TXDOT filed a responsive pleading asserting that the trial

court lacked jurisdiction over Primary Media’s suit because TXDOT’s sovereign

immunity had not been waived. TXDOT also specially excepted to Primary Media’s

petition because it did not allege a valid waiver of sovereign immunity or Primary

Media’s obtaining legislative consent to file suit against TXDOT. Finally, TXDOT

generally denied Primary Media’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 dismiss for lack of jurisdiction. As

the factual background for its motion, TXDOT alleged Primary Media executed a

quitclaim deed for each of the subject properties. 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, Primary 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

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for the deed to Parcel 60. TXDOT correctly reflects the record that the quitclaim

deeds did not make any promises concerning relocation permits and did not even

mention relocation or relocation permits. According to TXDOT, Primary Media’s

impacted sign credit applications were denied either because the signs had already

been relocated in accordance with municipal ordinances pursuant to 43 Texas

Administrative Code section 21.195 or because all sign 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. IT-

Davy, 74 S.W.3d 849, 854, 858 (Tex. 2002). TXDOT asserted Primary Media could

not raise a material issue of fact regarding the existence of promises to issue

relocation permits that may have been violated because the quitclaim deeds do not

contain such promises. Accordingly, TXDOT argued, Primary Media had not raised

a material fact issue as to whether contracts were breached, sovereign immunity was

not waived, and Primary Media’s claims should have been dismissed for want of

jurisdiction.

THE TRIAL COURT’S ORDER

On November 2, 2022, the trial court 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 reviewed 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.

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[TXDOT] takes the position that there is no agreement or guarantee
because the parties’ signed agreement states “Executing a quitclaim
deed and retaining the billboard structure 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 must follow and meet the current
relocation permitting guidelines found in 43 TAC 21.192, et seq.” The
signed agreement also provides for reasons the Plaintiff would not be
eligible for a relocation permit.

[TXDOT] also claims there could never be a breach of contract claim
based on the failure to issue a relocation permit because issuance of a
permit is a governmental function, not a contract. Yet [TXDOT’s]
Amended Guidance for Impacted Off-Premise Billboards Affected by
Highway Transportation Projects dated June 9, 2016, provides
procedures to be followed with specific reference to language in the
deed, which, is derived from the agreement reached in lieu of
condemnation.

Further, [TXDOT’s] rejection letters lay out provisions in the
agreements and/or deeds that allegedly 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 that, 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

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v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 109 (Tex. App.—Dallas 2013, no pet.).

A plea to the jurisdiction can challenge the sufficiency of the claimant’s pleadings

or the existence of necessary jurisdictional facts. Miranda, 133 S.W.3d at 226–28;

Hank’s Rest. Grp., 412 S.W.3d at 109. Here, TXDOT asserted that Primary Media

failed to demonstrate that the allegations in its petition fell within the trial court’s

jurisdiction. As the claimant, Primary Media bears the burden of pleading facts that

affirmatively demonstrate that governmental immunity has been waived 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.—Dallas 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 jurisdiction but do not affirmatively demonstrate

incurable defects in jurisdiction, 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.] 2012, no pet.). But if the pleadings 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

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372 n.2. “When performing governmental functions, political subdivisions derive

governmental immunity from the state's sovereign immunity.” City of Houston v.

Williams, 353 S.W.3d 128, 134 (Tex. 2011) (footnote omitted). Governmental

immunity comprises both immunity from liability and immunity from suit. Albert,

354 S.W.3d at 373. “Immunity from liability protects entities from judgment while

immunity from suit deprives courts of jurisdiction 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 governmental 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 claimant seeks either to control government

action or to subject the governmental 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 ‘germane to, connected with, and properly

defensive to’ affirmative claims made by the 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 against 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

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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 promissory language in the record, Primary

Media has argued TXDOT promised that Primary Media was entitled to relocation

permits under the terms of the quitclaim deeds. However, none of the quitclaim

deeds or other documents contain such a promise. 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 relocation 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 parcels 16 and 23 provided, in keeping with the

initial offer letters, that executing a quitclaim deed and retaining the billboard

structure “does not guarantee that a relocation permit will be issued.” A November

2020 Rule 11 agreement between the State and Primary Media regarding a

settlement in lieu of condemnation on parcels “60/60E and 61” stated that Primary

Media “maintains its eligibility for relocation permits under Texas Department of

Transportation’s regulations” provided that Primary Media remained in compliance

with all other provisions of the agreement and TXDOT regulations. The notices to

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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 dismiss, Primary Media asserted that,

if it had not settled with TXDOT and executed 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.—Houston [14th Dist.] 2015, pet.

denied) for the proposition that “[w]hen a governmental entity is exposed to suit—

such as through a claim 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 agreement 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 property 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 governmental 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.

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Trant is instructive to our analysis. In Trant, the Trants entered into an option

contract with the cities of Bryan and College Station, pursuant to which the cities

obtained the right to purchase approximately 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, Conditions, and Representations” in the option contract.

Id. at 56–57. The cities and the Trants also 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 agency, a governmental entity that 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 that 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 agency, 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’

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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 restrictive 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 landfill, 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 other than as a landfill constituted an

unconstitutional taking of the property and 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’ contention that their sale of land to the

cities was tantamount to a formal condemnation proceeding 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 governmental entity is exposed to

suit—such as through a claim 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 agreement on which it cannot be sued. Id.

(citing Lawson, 87 S.W.3d at 521). To illustrate, the court went on to state that the

Fort Worth Court of Appeals held that a city did not have governmental immunity

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for a breach of contract claim involving the breach of an agreement in settlement of

a condemnation claim because the governmental 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 was, 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 waste facility and landfill’” and

“[s]ince all takings and transfer set forth herein were made pursuant to condemnation

or the threat of condemnation, [the agency] has waived its right to sovereign or

governmental immunity.” Id. As the court had already 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)

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(“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 court concluded the agency was immune from suit under the

circumstances of that case, the court affirmed the trial court’s judgment granting the

agency’s plea to the jurisdiction and dismissing the case for want of jurisdiction. Id.

at 65.

Similarly, here the quitclaim deeds did not mention relocation or relocation

permits, and the other documents associated with the State’s acquisition of the four

parcels acknowledged the possibility of Primary Media obtaining relocation permits

but either expressly stated TXDOT did not guarantee that Primary Media would get

a relocation permit or merely indicated 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 conclude Primary Media has not raised a material issue of

fact regarding whether the contracts were breached3 and we need not, therefore,

decide whether the quitclaim deeds and other documents constituted 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 representations made by “TXDOT’s agent” to show that the
parties agreement included an agreement that Primary Media would be allowed to relocate its signs, we
reject this argument. The parol evidence rule bars consideration 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).
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trial court’s jurisdiction. See id. Thus, on this record, we conclude the trial court

erred in denying TXDOT’s motion to dismiss for lack of jurisdiction.

To the extent Primary Media complains of TXDOT’s application of its

regulations concerning relocation permits to the parcels at issue, again, on this

record, the trial court similarly lacked jurisdiction 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. App.—Houston [14th Dist.] May 12,

2022, no pet.) (mem. op.) (Government Code 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.

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

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

TEXAS DEPARTMENT OF On Appeal from the 439th Judicial
TRANSPORTATION, Appellant District Court, Rockwall County,
Texas
No. 05-22-01273-CV V. Trial Court Cause No. 1-21-1352.
Opinion delivered by Justice
PRIMARY MEDIA GROUP, INC., Goldstein. Justices Garcia and Miskel
Appellee 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.

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