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Civil Litigation Click here for the full text of this decision FACTS: Charles Livecchi contends that the trial court erred in granting the city of Grand Prairie’s plea to the jurisdiction and dismissing his suit with prejudice. HOLDING: Affirmed. Livecchi argues that the trial court had jurisdiction over his claims against the city. While Livecchi’s petition asserted causes of action for breach of contract, conspiracy, fraud and malice, he argues and briefs only that the trial court had jurisdiction over the breach of contract claim. Because his only assertion on appeal concerns the contractual cause of action, he has waived any complaint to the plea to the jurisdiction as it applies to the noncontractual complaints. In response to the contractual issues, the city argues it had not waived sovereign immunity by entering the contract, the alleged breaches were not within the application of the settlement agreement, and the city had no authority to make an agreement that limited its governmental functions. The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993). In a suit against a governmental unit for breach of contract, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Tex. Dep’t of Transp. v. Jones Bros. Dirt & Paving Contractors Inc., 92 S.W.3d 477 (Tex. 2002). Livecchi did not plead in his petition a particular statute or legislation that waived the city’s sovereign immunity. Instead, he contended that the trial court automatically had subject matter jurisdiction because the agreement settled his claims against the city in a previous suit. The city responds that it did not waive sovereign immunity and that the allegations do not support a breach of the settlement agreement. A governmental entity, by entering into a contract, waives immunity from liability for breach of the contract but does not, by entering into a contract, waive immunity from suit. Texas A&M Univ.-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002). Further, immunity from suit is not waived merely by accepting some of the benefits of a contract. Nevertheless, in a plurality opinion, the Supreme Court has concluded that if a governmental entity agrees to settle a suit from which it is not immune, it cannot claim immunity from suit for breach of the settlement agreement. Thus, to avoid a plea to the jurisdiction for a breach of contract suit, the plaintiff must allege facts that present breaches of the settlement agreement and must show the settlement is for a suit in which the governmental entity waived sovereign immunity. The court considers whether Livecchi alleged a breach of the settlement agreement. In his petition, Livecchi alleged three breaches of the settlement agreement. The first alleged breach was that Livecchi was issued a citation under Chapter 29 of the Grand Prairie Code Enforcement for inadequate exterior lighting in violation of paragraphs II b, e, f and g of the settlement agreement. The evidence presented showed that Livecchi claimed he had to have notice and a chance to correct before citation could be issued. Nothing in the settlement agreement limits the city’s ability to issue citations for this alleged violation of Chapter 29. In fact, the agreement provides that the city may write citations for code violations. Accordingly, this allegation cannot be a breach of the settlement agreement. As to the second alleged breach, Livecchi claimed he was issued a citation for a nonfunctioning air conditioner when he advised the city he needed more time to fix it, in violation of paragraphs II c, e and g. Livecchi’s deposition testimony presented at the hearing complained that he was not given a reasonable time to repair the air conditioner before citation was issued. The agreement provides that the code enforcement division has the authority to decide the reasonable time to make a repair. The agreement provides that the city has authority to write citations. This allegation does not present a breach of the settlement agreement. As to the third alleged breach, Livecchi claimed that two men from the city marshal’s office appeared unannounced at the apartment building and did not identify themselves when asking the whereabouts of an individual, in violation of paragraph II f of the agreement. However, that paragraph applies only to notice to be given for annual inspections. Any identification requirements applied only to a code enforcement officer. Livecchi did not allege that the city marshal’s office had any relation to code enforcement or annual inspections. The evidence presented at the hearing demonstrated that the city marshals were on the premises to get information about a witness in a municipal court proceeding. The facts alleged and the evidence presented conclusively show that this allegation did not concern a breach of the settlement agreement. When a plaintiff fails to plead facts that establish jurisdiction, but the petition and evidence presented do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002). On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Here, the allegations and evidence demonstrate that the acts complained of are not encompassed in the settlement agreement, and they cannot be. Because Livecchi’s petition and factual allegations affirmatively negate the existence of a breach of contract that could confer jurisdiction, even if the circumstances of the settlement agreement waived sovereign immunity, granting a plea to the jurisdiction was proper. OPINION: Rosenberg, J.; Wright, Farris and Rosenberg, JJ.

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