Texas Logos, L.P. v. Brinkmeyer

• Decision Date: 07 May 2008
• Docket Number: No. 03-07-00032-CV.,03-07-00032-CV.
• Citation: 254 S.W.3d 644
• Parties: TEXAS LOGOS, L.P., Appellant v. Gregory R. BRINKMEYER, Individually; Hori-Zone Concepts, L.L.C.; Centerline Supply, Inc.; Lonestar Logos & Signs, L.L.C.; Media Choice, L.L.C.; and Quorum Media Group, L.L.C., Appellees.
• Court: Texas Court of Appeals

254 S.W.3d 644

TEXAS LOGOS, L.P., Appellant v. Gregory R. BRINKMEYER, Individually; Hori-Zone Concepts, L.L.C.; Centerline Supply, Inc.; Lonestar Logos & Signs, L.L.C.; Media Choice, L.L.C.; and Quorum Media Group, L.L.C., Appellees.

No. 03-07-00032-CV.

Court of Appeals of Texas, Austin.

May 7, 2008.

Christopher Alan Brown, Danny S. Ashby, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Dallas, H. Robert Powell, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Austin, for appellant.

Christopher Stanley, Christopher Stanley & Associates, PC, Georgetown, John K. Schwartz, Locke Lord Bissell & Liddell LLP, Michael Moody, Stumpf Craddock Massey & Farrimond, Randall K. Hill, Assistant Attorney General, Transportation Division, Austin, for appellees.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

Since the Texas Department of Transportation awarded its "logo sign contract"¹ to a rival vendor, the vendor that had previously held the contract, Texas Logos, L.P., has filed two separate lawsuits alleging that a TxDOT engineer involved in the procurement, in combination with the winning vendor and others, had unlawfully skewed the procurement process so as to cause Texas Logos to lose the contract. In its first suit, Texas Logos sued TxDOT in Travis County district court seeking declaratory relief aimed ultimately at voiding the logo sign contract. The district court dismissed the suit against TxDOT for lack of subject-matter jurisdiction. We affirmed, holding principally that Texas Logos's declaratory claims seeking to invalidate an already executed contract with the State were barred by sovereign immunity. See Texas Logos, L.P. v. Texas Dep't of Transp., 241 S.W.3d 105, 115-23 (Tex. App.-Austin 2007, no pet.) (Texas Logos I).

This appeal relates to Texas Logos's second suit. After it filed its first suit, Texas Logos brought an action in Williamson County against: (1) the now-former TxDOT engineer, Gregory Brinkmeyer; (2) a consulting company that Brinkmeyer had formed, Hori-Zone Concepts, L.L.C.; (3) the vendor that won the logo sign contract, Media Choice, L.L.C., and its affiliates, (4) Quorum Media Group, L.L.C. and (5) LoneStar Logos & Signs, L.L.C. (collectively, the Media Choice Defendants); and (6) Centerline Supply, Inc., a subcontractor who allegedly did business with both Brinkmeyer and the Media Choice Defendants. Texas Logos asserted common-law tort theories against the defendants and sought monetary damages and injunctive relief. The district court dismissed the suit for want of subject-matter jurisdiction. Because we conclude that the Williamson County district court possessed subject-matter jurisdiction over Texas Logos's common-law tort damage claims against private parties, we reverse its judgment dismissing those claims and remand for further proceedings.

STANDARD AND SCOPE OF REVIEW

The subject-matter jurisdiction of a trial court may be challenged through a plea to the jurisdiction. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Hendee v. Dewhurst, 228 S.W.3d 354, 366 (Tex.App.-Austin 2007, pet. denied). The determination of whether a trial court has subject-matter jurisdiction begins with the pleadings. See Miranda, 133 S.W.3d at 226. The pleader has the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the cause. Id. (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). Whether the pleader has met this burden is a question of law that we review de novo. Id. We construe the pleadings liberally and look to the pleader's intent. Id.

If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227.

When a plea to the jurisdiction challenges the existence of facts alleged by the pleader to establish the trial court's subject-matter jurisdiction, the trial court must consider relevant evidence submitted by the parties. Id. at 227 (citing Bland, 34 S.W.3d at 555); Hendee, 228 S.W.3d at 366. Here, two pleas to the jurisdiction were filed by four of the six defendants. Neither plea challenged the jurisdictional facts alleged by Texas Logos or attached controverting jurisdictional evidence. Nor did any defendant introduce jurisdictional evidence at any hearings relating to the pleas. Consequently, we assume the truth of the factual allegations contained in Texas Logos's pleadings. Miranda, 133 S.W.3d at 226. The defendants' jurisdictional challenges, in other words, are limited to disputing whether Texas Logos has pled facts that, if proven, would affirmatively establish the district court's subject-matter jurisdiction.

On the other hand, because Texas Logos attached jurisdictional evidence to its petition, we may consider such evidence in resolving any jurisdictional challenges the defendants have raised. Bland, 34 S.W.3d at 555 ("[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.").

THE LOGO SIGN PROCUREMENT STATUTES

Before turning to Texas Logos's pleadings and jurisdictional evidence, it is helpful to note some relevant features of the statutes governing TxDOT's logo sign procurement process.² The legislature has charged TxDOT with contracting with third-party vendors to erect and maintain "specific information logo signs," "major shopping area guide signs" and "tourist-oriented directional signs." Tex. Transp. Code Ann. §§ 391.091(a), .0935(f), .099(d) (West 2007 & Supp.2007). The legislature has prescribed certain terms that such contracts must contain, including provisions for the charging of fees and remittance of at least ten percent to TxDOT. Id. §§ 391.091(b), .0935(g), .099(e). It had also specified that, at least with regard to specific-information logo signs and major shopping area guide signs:

(b) The department may enter into a contract under this section by the method that the department determines is the most advantageous for the state, including competitive bids, competitive sealed proposals, and open market contracts.

. . . .

(c) The department shall make a written award of a contract to the offeror whose proposal offers the best value for the state. In determining the best value for the state, the department may consider:

(1) revenue provided to the department by the contractor;

(2) fees to be charged eligible businesses or agricultural interests for inclusion on the signs;

(3) the quality of services offered;

(4) the contractor's financial resources and ability to perform; and

(5) any other factor the department considers relevant.

(d) To the extent of any conflict, this section prevails over any other law relating to the method of the purchasing of goods and services by the department.

(e) Subtitle D, Title 10, Government Code, and Chapter 223 [the Purchasing Act] do not apply to purchases of goods and services under this section.

Id. §§ 391.091(b), (c)-(e); cf. Texas Logos I, 241 S.W.3d at 116-19 (discussing parties' dispute over whether the Purchasing Act, instead of the above standards, governed TxDOT's procurement of the third category of logo signs, the tourist-oriented directional signs).

As we observed in Texas Logos I, the legislature "has not specifically provided a judicial review mechanism under the Purchasing Act or the transportation code" for challenging TxDOT's logo sign contract award. 241 S.W.3d at 116. Consequently, the judiciary lacks subject-matter jurisdiction to invalidate the award once it has been made. See, e.g., Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 172 (Tex.2004) ("In Texas, a person may obtain judicial review of an administrative action only if a statute provides a right to judicial review, or the action adversely affects a vested property right or otherwise violates a constitutional right."); Texas Logos I, 241 S.W.3d at 116 (observing that Texas Logos conceded that it "possessed no vested property right in the award of the logo sign contract that could support a claim to an inherent right of judicial review"); see also id. at 119-23 (holding that sovereign immunity barred Texas Logos's declaratory claims seeking to void the logo sign contract).

THE RECORD

Pleadings and jurisdictional evidence³

In its live petition, Texas Logos pled that after TxDOT issued a request for proposals (RFP) for the logo sign contract in December 2005, Texas Logos "timely submitted a complete, responsive proposal" that "met or exceeded all the published requirements of the RFP." "[S]everal other companies" also submitted proposals, "including Media Choice and Quorum Media who submitted a joint proposal." After TxDOT scored the submitted proposals, Texas Logos alleged, it initially received the highest score, 98, while Media Choice tied for second with Corey Media, achieving a score of only 93. These top three scorers were then invited to give oral presentations to TxDOT regarding their proposals, which they did in March 2006. On May 12, 2006, TxDOT awarded the logo sign contract to Media Choice. Texas Logos alleges that the final ranking respective scores were Media Choice (79), Texas Logos (77), and Corey Media (70).

Texas Logos attributes what it characterizes as its narrow loss to Media Choice to the tortious acts of the defendants. Specifically, it alleges that "[p]rior to, or during, the procurement process,...