File: 061025F - From documents transmitted: 09/28/2007
AFFIRM; Opinion issued September 28, 2007
Court of Appeals
Fifth District of Texas at Dallas
DALLAS COUNTY, TEXAS, Appellant
RISCHON DEVELOPMENT CORPORATION AND JOHN HAWKINS, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-05293-C
Before Justices Morris, Bridges, and Mazzant
Opinion By Justice Morris
This is an appeal from a summary judgment ordering that Dallas County, Texas
take nothing on its claims against Rischon Development Corporation and John Hawkins and
awarding Rischon damages and other relief on its counterclaim. In its first issue, the County
challenges the trial court's construction and enforcement of an agreement the parties filed with
the trial court pursuant to rule 11 of the Texas Rules of Civil Procedure. In its second issue, the
County complains about the denial of its motion for leave to file pleadings deemed untimely
pursuant to the rule 11 agreement. After examining the record, we conclude the County's first
two issues are without merit. We further conclude our resolution of these two issues makes it
unnecessary to address the County's remaining issues. Appellees have brought a cross-issue
complaining about the trial court's failure to award attorney's fees under sections 17.50 and
27.01 of the Texas Business and Commerce Code. Because the legislature has not waived the
County's immunity from suit with respect to these sections, we resolve appellees' cross-issue
against them. We affirm the trial court's judgment.
The County and appellees are adjoining property owners in Grand Prairie,
Texas. The County's property is a nature park. Appellees are developers of residential
subdivisions. The County filed this lawsuit alleging appellees constructed a retainage slope and
placed drainage pipes on its property without authorization. Appellees filed a counterclaim
alleging they paid the County for the slope and drainage easements that would permit the
construction but the County refused to execute the necessary documents as it promised.
Appellees moved for summary judgment, and a hearing was scheduled for
January 23, 2006. See Footnote 1 The County filed and served its response to
appellees' motions. At the same time, the County filed its plea to the jurisdiction and original
answer to appellees' counterclaim and a first amended petition. The January 23 hearing was
postponed while the parties explored settlement.
February 16, 2006, the parties filed with the trial court a rule 11
agreement. Among other things, the agreement provided that in the event appellees obtained a hearing on the
pending summary judgment motions, “such hearing shall be conducted based upon the
deadlines for filing and serving documents determined as if the January 23, 2006 hearing was
being held as provided by the Texas Rules of Civil Procedure.”
The matter did not settle, and appellees scheduled a hearing on their summary
judgment motions for March 14, 2006. Appellees then objected to the County's summary
judgment response, plea and original answer to counterclaim, and first amended petition.
Appellees asserted all of these pleadings were untimely because the County did not serve these
documents on appellees until January 18, 2006. Appellees argued that based on the rule 11
agreement, the County's deadline for filing and serving the documents expired January 17, 2006.
The trial court agreed and sustained appellees' objections. It also denied the County's March 14
request for leave to consider the late- filed pleadings. The trial court granted summary judgment
in appellees' favor, ordering the County take nothing on its claims and awarding appellees
$6,834.00 in damages and other relief. The trial court, however, denied appellees' request for
attorney's fees. This appeal followed.
its first issue, the County contends the trial court erred in
construing the rule 11 agreement to preclude consideration of its summary judgment response and other pleadings it
served on appellees on January 18 because its deadline to respond was extended to seven days
before the March 14 hearing date. We conclude the trial court did not err in so construing the
rule 11 agreement.
The same rules governing the construction of contracts apply in construing rule
11 agreements. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404-05 (Tex. 1971).
Accordingly, our role is to ascertain the true intentions of the parties as expressed in the
instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
rule 11 agreement before us expressly provides that the deadlines for
filing responses and pleadings would be based upon the original January 23, 2006 hearing date. Thus,
the County's response and pleadings were due to be filed and served no later than January 17,
2006. See Tex. R. Civ. P. 166a(c). Because the County's pleadings and summary judgment
response were not served on appellees until January 18, they were untimely and the trial court, in
accordance with the parties' agreement, was not required to consider them at the March 14
In support of its position, the County relies on several cases where summary
judgment response deadlines have been extended with the postponement of a summary
judgment hearing. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 684
(Tex. 2002); Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 798 (Tex. App.-Houston
[14th Dist.] 1998, no pet.); Brown v. Capital Bank, N.A., 703 S.W.2d 231, 233-34 (Tex.
App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). None of these cases, however, involves a
situation where the parties expressly agreed the filing deadlines would be governed as of a
particular date. The County's reliance is therefore misplaced.
County also argues that the deadlines set forth in the rule 11
agreement did not apply after the appellees' initial settlement offer was formally rejected. The County did not
raise this argument in the trial court before the March 14 summary judgment hearing and, thus, it
is waived. See Tex. R. App. P. 33.1. Absent waiver, however, we would still not agree with the
County's contention. Even though the rule 11 agreement was drafted in contemplation of a
particular settlement offer, appellees' later amended offer did not vitiate the existing agreement's
filing deadline. We resolve the County's first issue against it.
its second issue, the County asserts the trial court erred in denying
its motion for leave to file a late summary judgment response and its other pleadings. We review the trial
court's ruling on a motion for leave for an abuse of discretion. Carpenter, 98 S.W.3d at 686.
Generally, the trial court should grant a motion for leave when the nonmovant establishes (1)
good cause by showing the failure to timely respond was not intentional or the result of conscious
indifference, but the result of accident or mistake and (2) allowing the late response will
occasion no undue delay or otherwise injure the party seeking summary judgment. Id. at 688.
It is undisputed the County's documents were untimely for the January 23,
2006 hearing. After the January 23 hearing date had passed, however, the parties filed the rule
11 agreement providing that the summary judgment deadlines applicable to the January 23
hearing would control even if the summary judgment hearing was held on a later date. Given the
parties' express agreement, we cannot conclude the trial court abused its discretion in denying
appellant's motion for leave. We resolve appellant's second issue against it.
During oral argument on appeal, counsel for the County represented to the
Court that the County's issues three through eight are dependent upon a favorable ruling by this
Court on issues one and two. We agree with the County that our resolution of its first two issues
makes it unnecessary to address its remaining issues. Accordingly, we do not analyze the merits
of the County's remaining issues and instead turn directly to appellees' cross-issue.
In a single cross-issue, appellees complain the trial court erred in failing to
award them attorney's fees pursuant to sections 17.50 and 27.01 of the Texas Business and
Commerce Code. Appellant responds that the trial court did not err because neither of these
sections contain an express waiver of governmental immunity.
It is well-established that a governmental unit is immune from suit unless the
immunity is waived by clear and unambiguous legislative consent. See Tex. Gov't Code Ann. §
311.034 (Vernon Supp. 2006); City of Dallas v. Martin, 214 S.W.3d 638, 642 (Tex.
App.-Dallas 2006, pet. filed). Section 27.01 addressing fraud in real estate and stock
transactions provides that any person who violates its provisions shall be liable to the person
defrauded for reasonable attorney's fees. Tex. Bus. & Com. Code Ann. § 27.01(e) (Vernon
200). Appellees contend the legislature's consent to suit under section 27.01 is evidenced by the
use of the word “person,” which is defined in the Code Construction Act to include a
“government or governmental subdivision or agency . . . .” Tex. Gov't Code Ann. § 311.005(2)
(Vernon 1998). A statute that waives immunity must do so beyond doubt,
although it need not be a model of “perfect clarity.” See Wichita Falls State Hosp. v. Taylor,
106 S.W.3d 692, 697-98 (Tex. 2003). Moreover, we generally resolve ambiguities by
upholding immunity. Id. Statutes requiring the State be joined in a suit where immunity would
otherwise attach, or providing an objective limitation on the State's potential liability, indicate an
intent to waive immunity. Id. After analyzing section 27.01 with these factors in mind, we
conclude the legislature did not express a clear and unambiguous waiver of governmental
immunity as required by section 311.034 of the Texas Government Code. See Tex. Gov't Code
Ann. § 311.034 (Vernon Supp. 2006). The statute's use of the word “person” standing alone,
even in light of the definition set forth in the Construction Code Act, is insufficient to establish the
legislature's consent to suit.
Appellees also assert that they were entitled to attorney's fees pursuant to
section 17.50 of the Texas Business and Commerce Code, commonly known as the Deceptive
Trade Practices Act. Governmental entities are not included in the DTPA's definition of
“person.” See Tex. Bus. & Com. Code Ann. § 17.45(3) (Vernon 2002); Kerrville HRH,
Inc. v. City of Kerrville, 803 S.W.2d 377, 382 (Tex. App.-San Antonio 1990, writ denied).
Appellees argue, however, that unlike subsection 17.50(a)(1), (3) and (4), which authorize
actions against “persons” for specified practices, subsection 17.50(a)(2) does not limit actions
for breach of an express or implied warranty to “persons.” Appellees therefore argue this
omission compels the conclusion that the legislature has waived governmental immunity for a
breach of warranty under the DTPA. Appellees' argument fails for the same reasons articulated
above. Simply stated, the omission of the word “person” in subsection 17.50(2) does not
constitute a clear and unambiguous waiver of governmental immunity as required by section
311.034 of the Texas Government Code.
Because the legislature has not waived appellant's immunity from suit under
sections 27.01 or 17.50 of the Texas Business and Commerce Code, the trial court did not err
in refusing to award appellees attorney's fees pursuant to these sections. We resolve appellees'
cross-issue against them.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
Footnote 1 The January 23 hearing encompassed appellees' two separate motions for partial
summary judgment and a supplement to their second motion for partial summary judgment.