author: Chief Justice JEFFERSON

text:
    KIRBY LAKE DEVELOPMENT, LTD., Miter Development Co., L.L.C., Taylor Lake, Ltd., and Friendswood Development Co., Ltd., Petitioners, v. CLEAR LAKE CITY WATER AUTHORITY, Respondent.
    No. 08-1003.
    Supreme Court of Texas.
    Argued Jan. 19, 2010.
    Decided Aug. 27, 2010.

      Lawrence J. Fossi, Karen B. Jewell, Fossi & Jewell, LLP, Houston, TX, for petitioners.
    Ramon G. Viada III, Viada & Strayer, The Woodlands, TX, Barry Abrams, Abrams, Scott & Bickley, LLP, William E. Schweinle Jr., Schweinle, Parish & Low-erre, P.C., Houston, TX, for respondent.
    Murry B. Cohen, Akin Gump Strauss Hauer & Feld LLP, Houston, TX, Laura F. Hill, Texas Municipal League, Austin, TX, for amicus curiae.
   Chief Justice JEFFERSON

delivered the opinion of the Court,

in which Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, Justice JOHNSON, and Justice LEHRMANN joined, and in which Justice WILLETT joined as to all parts except footnote 7.

Water lies beneath the surface of today’s case, yet our holding is based on a rule of grammar, not capture. The Water Authority must seek voter approval, “in any bond election” it conducts, to sell bonds so that developers — who fronted the cost of the city’s water and sewer lines — can be reimbursed. Does “any” bond election mean “every” bond election? Or has the Authority satisfied its obligation by approving the reimbursement proposal in at least one election, even if voters reject the measure? We hold that, in the context of these Agreements, “any” means “every.” Our answer to that question, however, matters little unless the Authority is amenable to suit. We hold that it is. When a Water Authority enters into a contract like the one here, it may be sued for failing to fulfill the contract’s terms. See Tex. Loc. Gov’t Code § 271.152. The Authority’s refusal to include a reimbursement measure in every bond election constituted a breach of its contracts with the Developers. Because the Legislature has waived the Authority’s immunity from suit for that breach, we reverse in part the court of appeals’ judgment and remand the case to that court to consider the Authority’s remaining issues. Because we agree with the court of appeals that the Authority’s actions did not rise to the level of a taking, we affirm that part of the court of appeals’ judgment.

I. Background

Petitioners are residential developers in the Clear Lake area of greater Houston. Each entered into contracts entitled “Sales Agreement and Lease of Facilities” with the Clear Lake City Water Authority. The Agreements stipulated that the Developers would build water and sewer facilities according to the Authority’s specifications, and that the Developers would lease the facilities to the Authority free of charge until the Authority purchased them. The Authority agreed to reimburse the Developers for 70% of their construction costs once it received voter-approved bond funds. The Authority was not obligated to reimburse the Developers until a bond sale was approved in an election.

The Agreements contain the following pertinent clauses:

Subject to other terms and provisions hereof, the Developer agrees to sell and the Authority agrees to purchase all completed portions of the Facilities ... as soon as possible, but not more than 30 days after receipt of bond proceeds legally available and allocated by the Authority for payment therefore....
It is expressly acknowledged and agreed by the parties hereto, that the Authority has no existing voter authorization to issue any bonds to pay for the cost of the Facilities, and does not anticipate that funds will be available for such costs without a voter approved bond sale for such purchase. The Authority intends to call a bond election in the near future but is not obligated to do so, and the Authority cannot predict when, if ever, such an election and bond sale will occur, or when, if ever, the Authority will have other funds available and allocated for the purchase of the Facilities. The Authority shall have the right to purchase the Facilities with funds available from a source other than a bond sale for such purpose, but shall have no obligation to do so. The Authority does agree, however, that it shall include in any bond election it does hold subsequent to the effective date of this Agreement bond authorization in an amount sufficient to pay the purchase price of the Facilities?
The Authority shall have no obligation to obtain approval from the voters of bonds to finance purchase of the Facilities, but if such voter approval is obtained, the Authority shall sell Authority bonds for the purpose of purchasing the Facilities.... The Authority agrees to proceed with due diligence to consummate the issuance of such bonds and the acquisition of the Facilities under such circumstances.

In May 1998, as stipulated by the Agreements, the Authority placed a bond authorization measure on the next election ballot. Voters rejected the measure. In October 1998, the Authority again placed a bond measure on the ballot, this time separating it into two parts: a proposal to reimburse the Developers, and another to fund the maintenance of a separate water treatment plant the Authority owned. The voters passed the second proposal but rejected the first. Three of the four Developers (Kirby Lake, Miter, and Taylor Lake) then sued the Authority, alleging that it was obligated to reimburse them anyway. A jury found for the Developers, and the trial court rendered judgment in accordance with that verdict. Clear Lake City Water Auth. v. Kirby Lake Dev., Ltd., 123 S.W.3d 735, 741-42 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) {“Kirby Lake I ”). The court of appeals reversed, holding that voter approval was a condition precedent to the Authority’s purchase obligation. Id. at 756.

The Authority held another bond election in September 2004. This time it omitted the Developers’ reimbursement proposition altogether, citing the

language of the opinion rendered by the Fourteenth Court of Appeals ..., which expressly stated that certain of the Developers’ contracts merely required “that the developers be included in any subsequent election, and they were”— confirming that any obligation to seek voter approval to issue bonds to reimburse [the Developers] has already been satisfied.

The Developers sued again, alleging that the Authority breached its agreement to include a reimbursement provision in each bond election. On motion for summary judgment, the trial court concluded that the Authority breached the agreement and awarded damages. 274 S.W.3d 41, 42 (“Kirby Lake II”). The court of appeals rejected the Authority’s argument that it was immune from suit, holding that Local Government Code section 271.152 waived the Authority’s immunity. Id. at 44 (citing Friendswood I, 256 S.W.3d at 751). Nonetheless, the court of appeals reversed the trial court’s judgment, holding that the Authority complied with the contract because “the balance of the paragraph [in the Agreements] clearly indicates that only one election was contemplated.... We therefore find the agreement to be unambiguous in obligating the Water Authority to place the measure only on the next ballot after the effective date of the agreement.” Id. at 46.

Kirby, Miter, and Taylor also alleged that the Authority’s continued possession of the facilities constituted a taking. 2008 TexApp. LEXIS 5887, at *1 (“Kirby Lake III”). The Authority then filed a plea to the jurisdiction, arguing, among other things, that Kirby, Miter, and Taylor consented to the alleged taking. Id. at *2. The trial court granted the plea and dismissed the takings claim for lack of jurisdiction. Id. The court of appeals agreed, finding that the Developers had consented to the Authority’s possession of the facilities — barring an inverse condemnation claim. Id. at * 13. Each of these cases was decided by a different panel of the same court of appeals.

In November 2006, while the above cases were pending in the trial court, the Authority held another bond election that called for reimbursing the Developers. The 2006 election proved more contentious than its predecessors. The Authority’s board members — -including members who had signed the original contracts — actively discouraged passage of the measures. A front-page article in the local paper quoted board members as opposing the bonds. An Authority Newsletter denied any obligation to conduct future bond elections, but said “[nevertheless, the Board finds it appropriate at this time to submit the issue to the voters for a third time, so that the will of the people, which is an express condition of the contracts, can be heard.” The bond measures failed — an outcome that the Developers claim would not have occurred absent the Authority’s intermed-dling.

We consolidated Friendswood II, Kirby Lake II, and Kirby Lake III, Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 52 Tex. Sup.Ct. J. 788, 788-89 (May 29, 2009), and granted the petition for review, Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 53 Tex. Sup.Ct. J. 15, 15 (Oct. 23, 2009). The Developers maintain that the court of appeals erred in holding that “any bond election” meant only one election. They also allege that the Authority’s perpetual use of the property without compensation constitutes inverse condemnation. The Authority argues, among other things, that neither section 49.066 of the Water Code nor section 271.152 of the Local Government Code waives its immunity, and that it has fully satisfied its obligations under the Agreements.

II. An Overview of Water Management in Texas

A. History

Texas’ first venture into water regulation stemmed from the state’s need to irrigate its driest regions. See generally F. Joyce Cox, The Texas Board of Water Engineers, 7 Tex. L.Rev. 86, 86 (1928-1929) (“In Texas, as elsewhere, administrative control of water resources came in answer to a need.”). In 1889, the Legislature enacted a bill for “the arid districts of Texas.” See Act of March 19, 1889, 21st Leg., ch. 88, 1889 Tex. Gen. Laws 100,100. The goal was to charter corporations that would build an infrastructure to furnish “water to all persons ... for irrigation and domestic uses.” Id.; see also Ward County Irrigation Dish No. 1 v. Red Bluff Water Power Control Dish, 170 S.W.3d 696, 700 (Tex.App.-El Paso 2005, no pet.). Fifteen years later, Texans approved a constitutional amendment permitting local governments to issue bonds for water development. Tex. Const, art. Ill, § 52(b)(2).

Texas voters ratified another water-related amendment in 1917. See Tex. Const. art. XVI, § 59. The amendment created “conservation and reclamation districts” as units of local government, and made the preservation of natural resources a public right and duty. Id. § 59(a), (b); see also Dallas County Levee Dist. No. 2 v. Looney, 109 Tex. 326, 207 S.W. 310, 310 (1918). As with prior amendments, financing was instrumental to water-resource management. In that respect, the amendment permitted “all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment,” as long as “such proposition shall first be submitted to the qualified ... voters of such district and the proposition adopted.” Tex. Const, art. XVI, § 59(c).

Along with the development of conservation districts came the Legislature’s codification of state water law. See Tex. Water Code § 1.003 (declaring “the public policy of the state to provide for the conservation and development of the state’s natural resources”). Chapters 49 and 51 of the Water Code govern “water control and improvement districts” (“WCIDs”), like Clear Lake City Water Authority. Chapter 49 provides a blueprint for creating and operating general law water districts, and for financing the significant work required to conserve water resources. See id. § 49.211(b). Chapter 51 deals with WCIDs. See id. § 51.121. WCIDs have broad authority to “supply and store water for domestic, commercial, and industrial use; to operate sanitary wastewater systems; and to provide irrigation, drainage, and water quality services.” Texas Commission ON ENVIRONMENTAL QUALITY, TEXAS Water Districts: A General Guide 2 (2004), available at http://www.teeq.state. tx.us/files/gi-043.pdf_4419598.pdf (all Internet materials as visited August 25, 2010 and available in Clerk of Court’s file).

WCIDs are one of thirteen different types of general law water districts acting as state political subdivisions. See Tex. Water Code § 50-68; Bonnie M. Stepleton, Note, Texas Groundwater Legislation: Conservation of Groundwater or Drought by Process, 26 Nat. Resources J. 871, 874 (1986). WCIDs may consist of a single county or multiple counties. See Dick Smith, Water Control and Improvement Districts, 6 The New Handbook of Texas 840 (1996). Because WCIDs have extensive power to regulate domestic and commercial water supply, they have become “the main financing mechanism for development in urban areas.” Stepleton, 26 Nat. Resources J. at 875.

B. Clear Lake City Water Authority

The Clear Lake City Water Authority was created in 1963. See Act of May 6, 1963, 58th Leg., H.B. No. 1003, R.S., ch. 101, 1963 Tex. Gen. Laws 164, 173. The Authority occupies the Clear Lake area in Harris County, approximately 20 miles southeast of downtown Houston. Clear Lake City Water Authority, General Information (2010), http://clcwa.org/ generalinfo.htm. It is currently Texas’ largest water district, encompassing over 16,000 acres, with around 84,000 residents. Id.

Water districts frequently contract with private developers to build and maintain water facilities. “Prefunding agreements,” like the ones at issue here, are governed by the Texas Commission on Environmental Quality’s (“TCEQ”) rules. See Malcomson Rd. Util. Dist. v. Newsom, 171 5.W.3d 257, 274 n. 11 (Tex.App.-Houston [1st Dist.] 2005, pet. denied); 30 Tex. Admin. Code § 293.46. These agreements allow developers to finance facilities “contemplated for purchase by the district” before TCEQ has approved the bond issue, provided certain conditions are met. 30 Tex. Admin. Code § 293.46. The TCEQ rules require developers to pay at least 30% of the costs under such contracts, “to insure the feasibility of the construction projects of such districts.” 30 Tex. Admin, Code § 293.47. The rules further provide that “[a] person proceeding with construction of a project prior to its formal approval by the commission shall do so with no assurance that public funds will be authorized for acquiring the facilities.” Id. § 293.46(6). Thus, the developer who builds the infrastructure assumes the risk that funding will never materialize, and voters determine whether to commit funds for the project.

We turn now to the issues before us.

III. Government Immunity

Water Control and Improvement Districts are “valid and existing governmental agencies and bodies politic.” Willacy Cnty. Water Control & Improv. Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (Tex.1944) (quotations omitted). As such, they enjoy governmental immunity from suit, unless immunity is expressly waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). The Developers argue that both Texas Water Code section 49.066 and Texas Local Government Code section 271.152 waive the Authority’s immunity. The court of appeals in the Developers’ two contract-based cases held that, while section 49.066 does not waive immunity, section 271.152 does. 2008 Tex.App. LEXIS 9127, at *2 n. 2 (citing Friendswood I, 256 S.W.3d at 747 n. 14); 274 S.W.3d at 44. We agree for the following reasons.

A. Water Code section 49.066

Section 49.066(a) provides that “[a] district may sue and be sued in the courts of this state in the name of the district by and through its board. A suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board.” Tex. WateR Code § 49.066(a). As we explained in Tooke v. City of Mexia,

the effect of a “sue and be sued” clause in an organic statute depends on the context in which it is used. The words can mean that immunity is waived, but they can also mean only that a governmental entity, like others, has the capacity to sue and be sued in its own name.

Tooke v. City of Mexia, 197 S.W.3d 325, 337 (Tex.2006). Standing alone, then, “sue and be sued” does not plainly waive the Authority’s immunity.

The Developers argue that section 49.066 “plainly waives a district’s immunity” because it specifies how a district may be served with a lawsuit for contract damages, and delineates the mechanisms for enforcing a judgment against it. See Tex. WateR Code § 49.066(a)-(c). In Warns County Hospital District v. Tomball Regional Hospital, we held that a “sue and be sued” statute that specified who would represent the district in civil proceedings was not an indication of legislative intent to waive immunity: instead, the phrase merely “anticipates the district’s involvement in civil proceedings of some nature at some point, but it does not address immu''nity from suit.” Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 843 (Tex.2009).

As the court of appeals in Friends-wood II reasoned, “the Legislature states that a suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board; however, it does not state that all parties to such contracts may sue the district for breach of these contracts or that immunity from suit as to all such claims is waived.” 256 S.W.3d at 743. This interpretation conforms with our holding in Tooke, in which we scrutinized similar statutory language providing that the City “may contract and be contracted with, implead and be impleaded in all courts and places and in all matters whatsoever....” Tooke, 197 S.W.3d at 344. We explained that “the provision appears to address the capacity of the City to act as a corporate body, not its immunity from suit. All it dearly says is that the City can be sued and impleaded in court when suit is permitted, not that immunity is waived for all suits.” Id. Hence, a statute that contemplates a government entity’s involvement in litigation does not “clearly and unambiguously waive” the entity’s immunity from suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex.2003) (“[A] statute that waives the State’s immunity must do so beyond doubt_”).

The Developers also point to the provision in section 49.066(a) setting forth the “only” conditions under which a contract against a district will be enforceable. See Tex. Water Code § 49.066(a) (“A suit for contract damages may be brought against a district only on a written contract of the district approved by the district’s board.”). But such language “does not go as far as waiving immunity from suit, but merely establishes a condition precedent to suit.” Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 249 (Tex.2002); see also Farmers State Bank of New Boston v. Bowie County, 127 Tex. 641, 95 S.W.2d 1304, 1306 (1936) (“The language of said article indicates that the rejection by the commissioners’ court of a claim against the county, or the failure of such court to act on the same, is merely a condition precedent to the filing of a suit to recover thereon.”); Bexar Metro. Water Dist. v. Educ. and Econ. Dev. Joint Ven ture, 220 S.W.3d 25, 31 (Tex.App.-San Antonio 2006, pet. dism’d) (“The language the legislature actually used in amending section 49.066(a) does not ‘authorize’ a suit against a water district; nor does it expressly waive immunity. Rather, the amendment creates a condition precedent: if a suit for contract damages is otherwise authorized, it may be maintained only if the stated condition is met.”). We therefore reject this argument as well.

Since Tooke, we have consistently refused to find waivers of immunity implicit in statutory language: there can be no abrogation of governmental immunity without clear and unambiguous language indicating the Legislature’s intent do so. See, e.g., Tomball, 283 S.W.3d at 842-43; Lamesa Indep. Sch. Dist. v. Booe, 235 S.W.3d 710, 711 (Tex.2007); City of Elsa v. M.A.L., 226 S.W.3d 390, 391 (Tex.2007). The present statute is no different. In fact, every court of appeals to interpret section 49.066 after Tooke has concluded that the statute does not waive immunity. See Clear Lake City Water Auth. v. MCR Corp., No. 01-08-00955-CV, 2010 WL 1053057, at *4, 2010 Tex.App. LEXIS 2194, at *12 (Tex.App.-Houston [1st Dist.] Mar. 11, 2010, pet. denied); Jonah Water Special Util. Dist., No. 03-06-00626-CV, 2009 WL 2837649, at *2, 2009 Tex.App. LEXIS 7072, at *7 (Tex.App.-Austin, Aug. 31, 2009, no pet.); Boyer, Inc. v. Trinity River Auth. of Tex., 279 S.W.3d 354, 358 (Tex.App.-Fort Worth 2008, pet. denied); Bexar Metro. Water Dist., 220 S.W.3d at 32; Valley Mun. Util. Dist. No. 2 v. Rancho Viejo, Inc., No. 13-07-545-CV, 2008 WL 384320, at *3-4, 2008 Tex.App. LEXIS 1109, at *11 (Tex.App.-Corpus Christi, Feb. 14, 2008, no pet.) (mem.op.). Because section 49.066 does not contain a clear and unambiguous waiver, the “sue and be sued” language in 49.066(a) does not on its own abrogate governmental immunity.

B. Local Government Code section 271.152

The Legislature enacted section 271.152 “to loosen the immunity bar so that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.” Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Property/Casualty Joint Self-Ins. Fund, 212 S.W.3d 320, 327 (Tex.2006) (quotations omitted). The statute waives immunity from suit for certain contract claims: “A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract....” Tex. Loc. Gov’t Code § 271.152. The statute defines “contract subject to this subchapter” as “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity.” Id. § 271.151(2).

The Agreements here are written contracts stating their essential terms. The names of the parties, property at issue, and basic obligations are clearly outlined. See Liberto v. D.F. Stauffer Biscuit Co., 441 F.3d 318, 324 (5th Cir.2006) (noting that Texas courts generally construe essential terms of a contract to include “the time of performance, the price to be paid, the work to be done, the service to be rendered, or the property to be trans-ferred”); Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000) (noting that a contract is legally binding “if its terms are sufficiently definite to enable a court to understand the parties’ obligations”). The relevant inquiry is whether the Agreements entail the provision of “goods or services” to the Authority.

Chapter 271 provides no definition for “services,” despite the Legislature’s definition of the term in other contexts. It appears, generally, that the term is broad enough to encompass a wide array of activities. See Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex.1962) (“In ordinary usage the term ‘services’ has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed.” (quoting Creameries of Am. v. Indus. Comm’n, 98 Utah 571, 102 P.2d 300, 304 (1940))); but see Berkman v. City of Keene, 311 S.W.3d 523, 527 (Tex.App.-Waco 2009, pet. denied) (“[T]he statute does not apply to contracts in which the benefit that the local governmental entity would receive is an indirect, attenuated one.”) (quotations omitted).

The Friendswood I court relied on our analysis in Ben Bolt to conclude that the “agreement to hire third parties to construct the Facilities and to build the streets, roads, and bridges is ... sufficient to constitute the provision of services to the Authority.” Friendswood I, 256 S.W.3d at 751; see Ben Bolt, 212 S.W.3d at 327. In Ben Bolt, we liberally construed a government-pooled insurance policy (the “Fund”) as encompassing “services” rendered by its members, based on the fact that the Fund’s “members elect a governing board, and a board subcommittee resolves claims disputes. To that extent, at least, the Fund’s members provide services to the Fund.” Id. The services provided thus need not be the primary purpose of the agreement. See Friendswood I, 256 S.W.3d at 746 n. 13 (“[I]n Ben Bolt, the Texas Supreme Court concluded that the Legislature had waived immunity under this statute even though the court concluded that the part of the contract on which the plaintiff based its claim did not involve the provisions of good [sic] or services to the local governmental entity.”).

We agree with the court of appeals that the Agreements entail services provided directly to the Authority. The Developers contracted to construct, develop, lease, and bear all risk of loss or damage to the facilities, obligations far more concrete than those at issue in Ben Bolt. Ben Bolt, 212 S.W.3d at 327. We therefore hold that the Agreements contemplate the provision of services under the statute.

The Authority also argues that the Agreements fall outside chapter 271 because there is no “balance due and owed.” See Tex. Loc. Gov’t Code § 271.153(a)(1) (limiting “[t]he total amount of money awarded in an adjudication brought against a local governmental entity for breach of a contract” to “the balance due and owed by the local governmental entity under the contract.”). According to the Authority, because the voters have not approved bonds to buy the facilities, the Developers cannot prove that the amount they seek is “due and owed.” At least within the context of these Agreements, we disagree. The purpose of section 271.158 is to limit the amount due by a governmental agency on a contract once liability has been established, not to foreclose the determination of whether liability exists. Furthermore, the Agreements do stipulate the amount of reimbursement owed upon approval of bond funds. The existence of a balance “due and owed” is thus incorporated within the contract — a balance that would come due when voters approve payment in a bond election.

For the above reasons, we agree that section 271.152 waives the Authority’s immunity from suit.

IV. Interpretation of the Agreements

A. Defining “any”

We disagree, however, with the court of appeals’ conclusion regarding interpretation of the word “any” in the following contract provision:

The Authority intends to call a bond election in the near future but is not obligated to do so.... The Authority does agree, however, that it shall include in any bond election it does hold subsequent to the effective date of this Agreement bond authorization in an amount sufficient to pay the purchase price of the Facilities.

The Authority says this provision requires the reimbursement measure be placed on one ballot only, upon which it will have fulfilled its contractual obligation. The Developers, on the other hand, contend the provision requires that the Authority place the measure on every bond authorization ballot until the end of time, or until the measure is approved. The court of appeals agreed with the Authority, holding that, although the pertinent sentence “could reasonably be interpreted either way, ... the balance of the paragraph clearly indicates that only one election was contemplated.” Kirby Lake II, 274 S.W.3d at 46.

Texas courts defining “any” have generally interpreted it to mean “every.” Those decisions, however, have been so rooted in context that they provide little guidance in this case. See Texas Co. v. Sehriewer, 38 S.W.2d 141, 144 (Tex.Civ. App.-Waco 1931) (“The word ‘an/ is a flexible word that may have any one of several meanings according to its use.... Its meaning is often restrained, limited, or influenced by the subject-matter or manner in which it is used.”), aff'd in part, rev’d in part sub nom. Smith v. Tex. Co., 53 S.W.2d 774 (Tex. Comm’n App.1932). Accordingly, we will examine the Agreements’ grammatical structure, in context.

The Authority and the Kirby Lake II court point to the use of singular nouns in the succeeding sentence as indicative that “any” means “one time”: “The paragraph’s first sentence states that the Water Authority ‘intends to call a bond election’ but it cannot predict when or if ‘such an election ... will occur.’ Unlike ‘any,’ the words ‘a’ and ‘an’ are always singular.” Kirby Lake II, 274 S.W.3d at 46. However, the fact that “a” and “an” are singular does not foreclose interpreting “any” to mean “each” or “one of all” — both of which would require singular antecedents. See, e.g., Schriewer, 38 S.W.2d at 145 (“In its broad, distributive sense, the sense in which the word is very frequently used, it may have the meaning of ‘all,’ ‘every,’ ‘each,’ or ‘each one of all.’ ”). The more conventional grammatical meaning of the term, then, suggests that the proposition must be included in every bond election the Authority holds, until the voters approve reimbursement.

Moreover, the Developers argue that the Authority ignores the Agreements’ overall structure and purpose, which was to construct facilities that the Authority would ultimately purchase (“Subject to other terms and provisions hereof, the Developer agrees to sell and the Authority agrees to purchase all the completed portions of the facilities.... ”). We agree with the Developers that we must evaluate the overall agreement to determine what purposes the parties had in mind at the time they signed the Agreements. See Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex.2008) (“Effectuating the parties’ expressed intent is our primary concern.”).

Section 4.01 provides that the Developer shall lease all operable portions of the facilities to the Authority “without charge until such time as the Authority acquires such portions; provided that such lease shall terminate upon the acquisition by the Authority of all the Facilities.” (Emphasis added.) Had the parties envisioned only one bond election, they could have easily stated that the Authority may lease the facilities until conclusion of that particular election. Instead, the Agreement permits a continued leasehold “until such time as the Authority acquires [the Facilities].” Moreover, the Agreement is silent as to the parties’ obligations in the event the bond measure does not pass. While it expressly acknowledges “that the Authority has no existing voter authorization to issue any bonds to pay for the cost of the Facilities, and does not anticipate that funds will be available for such costs without a voter approved bond sale,” it at no point relinquishes the Authority from its obligation “to include [the bond measure] in any bond election it does hold.” (Emphases added.)

The Kirby Lake II court noted that the Agreement “does not state that a bond measure would be submitted to voters repeatedly until approved.” 274 S.W.3d at 46. However, assuming that “any” means “every,” such additional language would be superfluous, as the Agreement plainly states that the Authority is to include the measure “in any bond election it does hold.” The more blatant omission would be the absence of a provision limiting the Authority’s perpetual lease of the facilities without charge in the event the measure does not pass.

Unless the Authority were obligated to submit a measure to reimburse the Developers in each bond election, the Developers would have essentially forfeited their interest in facilities they built and paid for. See Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.2009) (“Forfeitures are not favored in Texas, and contracts are construed to avoid them.”). It is unlikely that the Developers intended to convey water and sewer lines as a gift. Because we conclude that the contract, as a whole, contemplates the eventual sale of the Facilities, and because we construe contracts to avoid forfeiture where possible, we hold that the Agreements require the Authority to submit a bond proposal in every bond election it chooses to hold. See REO Indus., Inc. v. Natural Gas Pipeline Co. of Am., 932 F.2d 447, 454 (5th Cir.1991) (“Texas courts will not construe a contract to result in a forfeiture unless it cannot be construed in any other way.”); Sheppard v. Avery, 89 Tex. 301, 34 S.W. 440, 442 (1896) (“A forfeiture of rights of property is not favored by the courts, and laws will be construed to prevent rather than to cause such forfeiture.”).

B. At-will termination of perpetual contracts

The Authority contends, in the alternative, that the lower court’s judgments should be affirmed because the law disfavors perpetual contracts. It is true, as the Authority observes, that the Agreements contain no time limit on its alleged duty to include reimbursement measures in every bond election. We also acknowledge the prospect that voters may never approve such a measure. In Fort Worth Independent School District v. City of Fort Worth, 22 S.W.3d at 841, we noted that “contracts which contemplate continuing performance (or successive performances) and which are indefinite in duration can be terminated at the will of either party” (quotations omitted). Yet the Authority ignores the line of cases that distinguish between contracts of indefinite duration and contracts that specify determinable events. See generally Trient Partners I Ltd. v. Blockbuster Entertainment Corp., 83 F.3d 704 (5th Cir.1996) (applying Texas law); City of Big Spring v. Bd. of Control, 404 S.W.2d 810 (Tex.1966).

Where a contract’s language specifies a fixed and determinable term, “the rule of law that a contract may be terminated at the end of a reasonable time does not apply.” (Big Spring, 404 S.W.2d at 816). In City of Big Spring v. Board of Control, the City contracted to provide water to a state-run hospital at a prearranged rate for “as long as the State of Texas shall in good faith maintain and operate said hospital.” Big Spring, 404 S.W.2d at 815. Because this language “fix[ed] an ascertainable fact or event, by which the terms of [the] contract’s duration [could] be determined,” we held that the contract was not indefinite in duration and therefore not terminable at will. Id.; see also Fluorine on Call, Ltd. v. Fluorogas Ltd., 380 F.3d 849, 856 (5th Cir.2004) (applying Texas law). The Agreements here stipulate that both lease of the facilities and the terms of the Agreements themselves terminate upon the Authority’s purchase of the facilities (having attained voter-approved bond funds). “Purchase of the Facilities” is an ascertainable event which both parties can identify; the Agreements are thus not terminable at will.

C. Reserved Powers Doctrine

The Authority next argues that, should we interpret the Agreements to impose an ongoing obligation to submit bond proposals in each future election, the Agreements would interfere with substantive government functions, violating the reserved powers doctrine. See State ex rel. City of Jasper v. Gulf States Utils. Co., 144 Tex. 184, 189 S.W.2d 693, 698 (1945). The Authority maintains that “a contract which purports to bind all future boards of directors to include certain propositions in all future elections would abrogate [its] discretion” regarding its handling of future bond elections. See Todd v. Helton, 495 S.W.2d 213, 220 (Tex.1973) (noting that elections are “essentially the exercise of political power,” and exempt from judicial interference); State ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832, 833 (1960) (“[T]he conduct of elections is primarily a matter for legislative regulation and control.”).

Certain powers are conferred on government entities “for public purposes, and can neither be delegated nor bartered away.” Jasper, 189 S.W.2d at 698. Government entities cannot “cede ... away [such powers] through contracts with others so as to disable them from the performance of their public duties.” Id.; see also Brenham v. Brenham Water Co., 67 Tex. 542, 4 S.W. 143, 149 (1887) (“[Municipal] corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass bylaws which shall cede away, control or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.”) (quotations omitted). However, it does not apply to the case at hand. Here, the Authority contracted not to bargain away future power, but to pay an invoice for services rendered if and when funds become available through voter-approved bonds.

Nor does the present situation suggest improper impediments to the Authority’s governmental operations. In Clear Lake City Water Authority v. Clear Lake Utilities, we held that an agreement between the Authority and a utility company was not binding because it had “the effect of potentially controlling and embarrassing [the] Authority in the exercise of its governmental powers.” Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 392 (Tex.1977). In that case, the agreement obligated the Authority to meet all water and sewage treatment needs for the Utilities, while precluding it from extending those services directly to the landowners themselves, “under terms and rates that it deems best.” Id. Thus we found that the Authority had bargained away its governmental power to determine “whether, on any particular date, it is in the best interests of all of its customers and the public in general, to extend water and sewer service to a particular person or entity.” Id.

In this case, the Authority’s contractual obligation to include a bond reimbursement proposition in future elections does not affect the performance of its public duties. It neither hampers nor embarrasses the manner in which the Authority holds elections — -including the time, place, order, number of propositions, or even whether it chooses to hold a bond election at all. Nor does it control or impede the Authority’s power to determine how and to whom it will extend water services. See id. We therefore reject the Authority’s contention that the Agreements run afoul of the reserved powers doctrine.

Y. Inverse Condemnation Claim

Finally, Kirby, Miter, and Taylor claim that the Authority’s continued, rent-free possession of the Facilities constitutes inverse condemnation. Under the Texas Constitution, no property may “be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.... ” Tex. Const, art. I, § 17(a). This provision, like the Fifth Amendment to the United States Constitution, applies not only to traditional takings claims, but also to inverse condemnation claims, in which a property owner alleges that the government has usurped the use and value of his or her property, even if it has not completely appropriated title. U.S. Const, amend. V; Stevens v. City of Cannon Beach, 510 U.S. 1207, 114 S.Ct. 1832, 127 L.Ed.2d 679 (1994); Town of Flower Mound v. Stafford Estates L.P., 135 S.W.3d 620, 646 (Tex.2004); Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 130-31 (1962).

A person who consents to the governmental action, however, cannot validly assert a takings claim. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985) (holding that homeowners did not state a claim for inverse condemnation because their representative “consented to the taking”); State v. Steck Co., 236 S.W.2d 866, 869 (Tex.Civ.App.-Austin 1951, writ ref'd); Hightower v. City of Tyler, 134 S.W.2d 404, 406 (Tex.Civ.App.-El Paso 1939, writ ref'd) (rejecting claim that city’s use of water and sewer lines was a taking, because “appellants gave consent to the City to make such use of the lines as was made”). Moreover, when a private party contracts with the government, generally “the State does not have the requisite intent under constitutional-takings jurisprudence when it withholds property or money from an entity in a contract dispute.” General Seros. Comm’n v. Little-Tex Insulation Co. Inc., 39 S.W.3d 591, 598-99 (Tex.2001). Instead, “the State is acting within a color of right under the contract and not under its eminent domain powers.” Id. at 599 (noting that, in such cases, the State acts “akin to a private citizen and not under any sovereign powers”); see also J.J. Henry Co. v. U.S., 188 Ct.Cl. 39, 411 F.2d 1246, 1249 (1969) (“The clear thrust of the authorities is that where the government possesses property under the color of legal right, as by an express contract, there is seldom a taking in violation of the Fifth Amendment.”).

We agree with the Kirby Lake III court, which observed that the Developers consented to any alleged taking when they “agreed to allow the Authority to lease and use the Facilities free of charge until the Authority purchases the Facilities.” 2008 Tex.App. LEXIS 5887, at * 12-* 13 (concluding that the Developers’ allegations affirmatively negated jurisdiction). As the court noted, the Developers “treated the Agreements as still in effect by continuing to demand performance ... and suing to enforce the Agreements”; thus, the Authority was acting under colorable contract rights and did not have the requisite intent to take the Developers’ facilities under any eminent domain powers. See Little-Tex., 39 S.W.3d at 599. Accordingly, the Developers’ inverse condemnation claim is barred.

VI. Conclusion

In sum, we affirm the court of appeals’ judgment in Kirby Lake III, which held the Developers did not state a claim for inverse condemnation. Tex.R.App. P. 60.2(a). With respect to Kirby Lake II and Friendswood II, we reverse the court of appeals’ judgments and remand to that court to consider the Authority’s remaining issues. Id. 60.2(d).

Justice GUZMAN did not participate in the decision.

      . They are: Kirby Lake Development, Ltd., Miter Development Company, L.L.C., Taylor Lake, Ltd., and Friendswood Development Company, Ltd. ("Developers”).

      . Taylor Lake, Ltd. entered into two of these contracts, four years apart, because the Authority was not immediately able to annex a portion of the property that Taylor Lake sought to develop. Clear Lake City Water Auth. v. Kirby Lake Dev., Ltd., 123 S.W.3d 735, 740 n. 1 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

      . This section appears in bold and italics in all but one of the Agreements.

      . Friendswood Development sued separately from the other developers. 2008 Tex.App. LEXIS 9127, at *1 {"Friendswood II”).

      . That claim, initially part of Kirby Lake II, had to be refiled in the Harris County Civil Court at Law. See Tex. Gov't Code § 25.1032(c) ("A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy.’’).

      . The Friendswood II court deferred to its prior holding in Friendswood I with regard to the issue of immunity. See 2008 Tex.App. LEXIS 9127, at *2 ("The issues regarding governmental immunity are the same as those in the prior interlocutory appeal in this case. Absent (1) a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or (2) an intervening and material change in the statutory law, this court is bound by the prior holding of another panel of this court.”) (citations omitted). Assuming without deciding that the issue is before us in Friendswood II, we agree with the Friendswood I court's determination that immunity is waived.

      . As supporters of the Bill explained, blanket immunity from breach of contract claims "create[d] a fundamentally unfair situation that denie[d] redress, for example, to a contractor who completed a project for a city that refused to pay.” House Research Organization, Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S. (2005).

      . See, e.g., Tex Bus. & Com. Code § 17.45(2) (defining "services” under the Deceptive Trade Practices Act as "work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods”); Tex. Util. Code § 11.003(19) (defining "service” under the Public Utility Regulatory Act as "any act performed, anything supplied, and any facilities used or supplied by a public utility in the performance of the utility's duties under this title to its patrons, employees, other public utilities, and the public”); see also Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895-96 (Tex.1962) ("Within the meaning of [lien enforcement] statutes ... and of exemption statutes, ‘services’ may be rendered though the actual labor ... performed by one’s employees and by means of his machinery or other equipment .... ” (quoting Levitt v. Faber, 64 P.2d 498, 500 (Cal.App.Super 1937))).

      . See Hime v. City of Galveston, 268 S.W.2d 543, 545 (Tex.Civ.App.-Waco 1954, writ refd n.r.e.) ("[T]he word 'any' has been judicially construed to mean: ‘each ’ or 'every ' or ‘all.’ (Black's Law Dictionary, 3rd Ed., p. 119); and particularly in construing statutes, the word 'any' is equivalent to and has the force of 'every ’ and 'all.'"); Branham v. Minear, 199 S.W.2d 841, 846 (Tex.Civ.App.-Eastland 1947, writ ref'd n.r.e.) ("[M]any cases are collated showing that in construing statutes and other instruments ‘any’ is equivalent to and has force of 'every' or ‘all.’ ... We think that as found by the learned trial court, 'any minerals’ as used in the deed in question, undoubtedly meant ‘all minerals.' ”); Doherty v. King, 183 S.W.2d 1004, 1007 (Tex.Civ.App.-Amarillo 1944, writ dism’d) (“When the word ‘any’ is used in a plural sense it means 'all,' ‘all or every,' 'each,' 'each one of all,' or ‘every’ without limitation.") (quotations omitted); Texas Co. v. Schriewer, 38 S.W.2d 141, 144-45 (Tex.Civ.App.-Waco 1931) ("In its broad, distributive sense, the sense in which the word is very frequently used, it may have the meaning of ‘all,’ 'every,' 'each,' or ‘each one of all.’ ”), aff d in part, rev’d in part sub nom. Smith v. Tex. Co., 53 S.W.2d 774 (Tex. Comm’n App.1932).

      . We note, too, that the Water Code expressly permits water districts to "enter into contracts, which may be of unlimited duration, with ... private entities on the terms and conditions the board may consider desirable, fair, and advantageous for . .. the continuing and orderly development of the land and property within the district through the purchase, construction, or installation of works, improvements, facilities, plants, equipment, and appliances...." Tex Water Code § 49.213(c)(4).

      . 2008 Tex.App. LEXIS 5887, at * 14.


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Rene VAN ZANTEN, Westhoff Ranch, LP, and Cookin’ with Gas, LP, Appellants, v. ENERGY TRANSFER PARTNERS, L.P., Energy Transfer Company a/k/a La Grange Acquisition, LP, ETC Marketing, Ltd., Houston Pipe Line Company, L.P., Energy Transfer Partners GP, L.P., Energy Transfer Partners LLC, LA PG, LLC, LGM, LLC, and HPL GP, LLC, Appellees.
    No. 01-08-00996-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 24, 2010.

      James L. Reed Jr., Looper, Reed & McGraw, P.C., Houston, TX, for Appellants.
    Charles W. Schwartz, Skadden, Arps, Slate, Meagher & Flom LLP, Houston, TX, for Appellees.
    Panel consists of Justices JENNINGS, ALCALA, and MASSENGALE.
   OPINION

ELSA ALCALA, Justice.

This appeal concerns plaintiffs who seek to compel arbitration with defendants pursuant to an arbitration agreement between the defendants and a company that markets and sells the plaintiffs’ product to the defendants. The plaintiffs are appellants, Rene van Zanten, Westhoff Ranch, LP, and Cookin’ with Gas, LP (collectively, “the Owners”). The Owners contend the trial court erred by refusing to compel arbitration of their claims filed against the defendants, appellees, Energy Transfer Partners, L.P., Energy Transfer Company a/k/a La Grange Acquisition, LP, ETC Marketing, Ltd., Houston Pipe Line Company, L.P., Energy Transfer Partners GP, L.P., Energy Transfer Partners LLC, LA PG, LLC, LGM, LLC, and HPL GP, LLC (collectively, “the Energy Companies”). In their sole issue, the Owners contend the trial court erred by rendering judgment staying the arbitration because under Texas law the direct benefits estoppel doctrine allows non-signatories to an arbitration agreement to compel arbitration. We conclude that the direct benefits estoppel doctrine is not a proper basis to allow the plaintiff Owners to compel arbitration based on an arbitration agreement to which they are not signatories. We affirm.

Background

The Energy Companies are in the natural gas marketing and transportation business. Roughly fifteen percent of all natural gas produced in the United States flows through their gas gathering and transportation pipelines. Houston Pipe Line is a major purchaser of natural gas in the Gulf Coast, South Texas, and East Texas areas.

The Owners include an individual royalty owner who resides in Travis County, Texas, and working interests owners in oil and gas properties located in Jackson County, Texas. The Jackson County Owners are signatories to an operating agreement with Encon Services, Inc. (“Encon”); the agreement provides that Encon will sell and market their gas.

Encon has a gas purchase agreement with Houston Pipe Line. Pursuant to this agreement, Encon sold the Owners’ gas to Houston Pipe Line. In this agreement, Encon represents that it acts as an agent for itself and “all other interest owners.” The agreement between Encon and Houston Pipe Line also contains an arbitration clause that provides that “... all claims, demands, causes of action, disputes, and other matters arising out of or relating hereto, whether sounding in contract, tort or otherwise shall be resolved by binding arbitration pursuant to the Federal Arbitration Act.”

The Owners alleged that the Energy Companies, individually and collectively, engaged in an intentional scheme to manipulate the Houston Ship Channel natural gas price index. In July 2007, the Federal Energy Regulatory Commission issued a show cause order as to why the Commission should not find that the Energy Companies manipulated wholesale natural gas markets at the Houston Ship Channel. Based on this alleged misconduct, the Owners filed a Class Action Arbitration Complaint with the American Arbitration Association. The Energy Companies filed an application to stay the arbitration proceeding in district court. The Owners moved for summary judgment on the basis that they were, as a matter of law, entitled to arbitrate their claims. The Energy Companies filed a response and cross-motion for summary judgment, asserting that, because the Owners were not signatories to Encon’s contract with Houston Pipe Line, the Owners were not entitled to compel arbitration. After both sides filed responses, the trial court denied the Owners’s summary judgment motion and granted the Energy Companies motion, rendering final judgment staying arbitration.

Direct Benefits Estoppel

Although the parties agree that the theory of “direct benefits estoppel” precludes a defendant from claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes, the Owners contend we should extend that concept to include the opposite situation. The Owners assert the estoppel theory should be extended to enable a plaintiff who claims to have received direct benefits from a contract containing an arbitration clause, to which the plaintiff is not a signatory, to compel arbitration of claims arising from that contract against a defendant who is a signatory to the agreement.

A. Applicable Law

When the facts are undisputed, as here, a summary judgment presents a question of law that we review de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Huffhines v. State Farm Lloyds, 167 S.W.3d 493, 496 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

The parties agree that the Federal Arbitration Act (FAA) applies to this case. To determine whether an arbitration agreement under the FAA is binding on a non-signatory, Texas courts apply Texas procedural rules. In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005); see also Arthur Andersen LLP v. Carlisle, — U.S. -, -, 129 S.Ct. 1896, 1902, 173 L.Ed.2d 832 (2009) (stating that state contract law governs ability of non-signatories to enforce arbitration provisions). “Generally, only signatories to an arbitration agreement are bound by the agreement.” In re James E. Bashaw & Co., 305 S.W.3d 44, 54 (Tex.App.-Houston [1st Dist.] 2009, orig. proceeding) (citing Brown v. Pac. Life Ins. Co., 462 F.3d 384, 398 (5th Cir.2006)). However, “[a] person who has agreed to arbitrate disputes with one party may in some cases be required to arbitrate related disputes with others.” Id. (quoting Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 304 (Tex.2006)). “Estop-pel is one of five or six instances in which the federal circuit courts require arbitration with nonsignatories.” In re Merrill Lynch Trust Co., 235 S.W.3d 185, 191 (Tex.2007) (citing cases from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits).

As stated by the Fifth Circuit, “[I]n certain limited instances, pursuant to an equitable estoppel doctrine, a non-signatory-to-an-arbitration-agreement-defendant can nevertheless compel arbitration against a signatory-plaintiff.” Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 526 (5th Cir.2000); see also Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 267 (5th Cir.2004) (stating that equitable estoppel “precludes a party from claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes”). The Texas supreme court, relying on federal cases such as Grigson, has stated the theory similarly. In Meyer v. WMCO-GP, LLC, the supreme court stated the rule as follows, “We have held that a person who seeks by his claim ‘to derive a direct benefit from the contract containing the arbitration provision’ may be equitably estopped from refusing arbitration.” 211 S.W.3d 302, 305 (Tex.2006). The supreme court has also stated, “[A] non[-signatory] may be compelled to arbitrate if it deliberately seeks and obtains substantial benefits from the contract itself.” In re Weekley Homes, 180 S.W.3d at 132.

B. Analysis

Here, the fact pattern does not fit the description of the estoppel theory in Grigson. See Grigson, 210 F.3d at 526. The defendants, the Energy Companies, are the signatories, not the non-signatories. The plaintiffs, the Owners, are the non-signatories. In other words, in this case there is no “non-signatory-to-an-arbitration-agreement-defendant” and no “signatory-plaintiff.” See id. Moreover, as stated in Washington Mutual, the Energy Companies are not “claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes.” 364 F.3d at 267. Under the estoppel theory set forth in Grigson, therefore, the Owners may not compel arbitration. See Grigson, 210 F.3d at 526.

This case is also distinguishable from the Texas supreme court cases applying direct benefits estoppel. In Meyer, the party “seekfing] by his claim ‘to derive a direct benefit from the contract containing the arbitration provision’ ” is the party who may be estopped. 211 S.W.3d at 305. Here, it is the Owners who are seeking the benefit of a contract to which they are non-signatories, and they are attempting to offensively invoke the contract’s arbitration clause against a signatory. They are not seeking to “estop” the Energy Companies from anything in the sense that the Energy Companies do not seek to enforce one provision yet evade another with respect to a non-signatory. Likewise, in In re Weekley Homes, the non-signatory was compelled to arbitrate by seeking benefits under the contract. 180 S.W.3d at 132. Here, the non-signatories are not being compelled to arbitration, but are seeking to compel arbitration. We conclude, therefore, that the Owners may not rely on the theory of direct benefits estoppel to compel arbitration under the facts of this case. See Meyer, 211 S.W.3d at 305; In re Weekley Homes, 180 S.W.3d at 132; see also In re Kellogg, Brown & Root, Inc., 166 S.W.3d 732, 739-40 (Tex.2005) (stating that under “direct benefits estoppel, a non-signatory plaintiff seeking the benefits of a contract is estopped from simultaneously attempting to avoid the contract’s burdens, such as the obligation to arbitrate disputes”).

The Owners acknowledge that the facts of this case do not fit within the facts of other cases applying direct benefits es-toppel. They assert, instead, that estoppel is “an evolving doctrine” and that there is no authority holding that estoppel “is strictly confined to one set of facts or circumstances.” Estoppel is an equitable doctrine and does depend on the facts of each case. See In re Weekley Homes, 180 S.W.3d at 134-35. However, situations in which estoppel applies all have one fact in common: the party to be estopped must have engaged in some conduct on which the other party relied. See, e.g., Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex.2008) (“Estoppel, on the other hand, generally prevents one party from misleading another to the other’s detriment or to the misleading party’s own benefit.”); see also Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex.1998) (“[T]he doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations.”); Inimitable Group, L.P. v. Westwood Group Development II, Ltd., 264 S.W.3d 892, 902 (Tex.App.-Fort Worth 2008, no pet.) (“Estoppel is defined in general as conduct which causes the other party to materially alter his position in reliance on that conduct.”).

In this case, the Owners have not identified any conduct of the Energy Companies on which the Owners relied in deciding to file their claims in arbitration rather than in court. Absent some conduct on the part of the Energy Companies that can form the basis of an estoppel, the Owners cannot prevail on this theory. See Ulico Cas. Co., 262 S.W.3d at 778; Johnson & Higgins of Tex., Inc., 962 S.W.2d at 515-16; see also Inimitable Group, L.P., 264 S.W.3d at 902 (“One of the essential requisites of estoppel is a reasonable or justified reliance on the conduct or statements of the person sought to be estopped by the person seeking the benefit of the doctrine.”); see also In re Trammell, 246 S.W.3d 815, 826 (Tex.App.-Dallas 2008, orig. proceeding) (noting detrimental reliance is element of estoppel and nothing in record showed non-signatory relied on arbitration clause he was seeking to enforce).

Agent

In their brief to this Court, the Owners also assert that they may compel arbitration because Encon was acting as their agent when it entered the contract containing the arbitration clause with Houston Pipe Line. We have reviewed the Owners’ motion for summary judgment, and Encon’s status as the Owners’ agent is not asserted in the motion as a ground for summary judgment. Because this ground for summary judgment was not raised in writing to the trial court, it may not serve as a basis to reverse the trial court’s judgment. See Tex.R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993) (summary judgment motion “must stand or fall on the grounds expressly presented in the motion”).

Conclusion

We overrule the sole issue and affirm the judgment of the trial court.

      . 9 U.S.C.S §§ 1-16 (LexisNexis 2008).

      . The Fifth Circuit refers to this estoppel theory as “equitable estoppel,” while the Texas supreme court has referred to its theory as "direct benefits estoppel.”


author: Justice BRIDGES.

text:
    GREENVILLE SURGERY CENTER, LTD., Appellant, v. Walter BEEBE, M.D., C. Bradley Bowman, M.D., Ronald L. Fellman, M.D., Henry Gelender, M.D., David G. Godfrey, M.D., Tyrone L. McCall, M.D., David Stager, Jr., M.D., David Stager, Sr., M.D., and Richard J. Starita, M.D., Appellees.
    No. 05-08-01045-CV.
    Court of Appeals of Texas, Dallas.
    July 9, 2010.
    Rehearing Overruled Sept. 15, 2010.
    Scott P. Stolley, Carie Dawn Martin Jones, Richard B. Phillips, Jr., Thompson & Knight, LLP, Dallas, TX, Jennifer Petti-john Henry, Attorney at Law, Fort Worth, TX, for Appellant.
    Stuart M. Reynolds, Jr., Schneider & Miller, P.C., Richardson, TX, David Fowler Johnson, Winstead, Sechrest & Minick, P.C., Fort Worth, TX, and William G. Ar-not III, Houston, TX, for Appellees.
    Before Justices BRIDGES, LANG and LANG-MIERS.
   OPINION

Opinion By

Justice BRIDGES.

Appellant Greenville Surgery Center, Ltd. (“GSC”) appeals the trial court’s decision granting appellees’ (“Doctors”) motion for summary judgment and denying GSC’s cross-motion for partial summary judgment. We affirm.

Background

GSC owns and operates an ophthalmology surgery center in Dallas. The Doctors are nine of seventeen physicians invested in GSC as limited partners. GSC’s general partner is Greenville Surgery Center, Inc.

The partnership was evidenced by the Amended and Restated Certificate and Agreement of Limited Partnership of Greenville Surgery Center, Ltd. (“LP Agreement”) executed on September 30, 1985 and amended from time-to-time thereafter. The LP Agreement contained a covenant not to compete that barred the limited partners from owning an interest in a competing facility while being a limited partner at GSC.

On January 5, 2006, the LP agreement was amended by the Eighth Amendment, which modified the covenant not to compete. Section 16.2 of the LP Agreement, as amended by the Eighth Amendment, provides as follows:

16.2.1 Covenants of Limited Partners. A Limited Partner (except for the General Partner or its affiliates who hold one or more Units) shall not serve and, in the case of an Entity Limited Partner, shall cause each of its Physician Interest Holders not to serve as an officer, director or employee or consultant of, or hold or acquire any direct or indirect ownership interest in, or manage, lease, develop or otherwise have any financial interest in any business or entity (through a corporation, partnership, trust or other entity in which the Limited Partner or Physician Interest Holder, owns or has a beneficial interest, or through the Limited Partner’s or Physician Interest Holder’s spouse or children under the age of 25 or through a shareholder, partner, member or other (direct or indirect) equity owner of an Entity Limited Partner) competing with the Partnership in the development, management or operation of an outpatient surgical care facility within a ten-mile radius of the Center from the date of his admission as a Limited Partner and extending to the date two years after the date he is no longer a Limited Partner or Physician Interest Holder (provided that in no event shall such period be less than five years following the date a Limited Partner is admitted to the Partnership); provided, however, that no Limited Partner or Physician Interest Holder shall be prevented from (i) serving as a member of the Board of Trustees or medical staff, or holding any position other than medical staff, of any hospital; (ii) performing outpatient surgery in his office or in any other location he may desire at any time; or (iii) owing less than 1% of the voting stock of a publicly-held company which owns or operates one or more healthcare facilities.

In early 2007, the Doctors began discussing a new facility in anticipation of the GSC building’s lease expiration. By October of 2007, the Doctors entered into a contract for the purchase of land located 1.5 miles from GSC’s surgery center. The building of the new center would take eighteen months and the Doctors intended to stay on with GSC during that time.

. GSC requested to be a part of the new venture, but the Doctors denied its request and on March 5, 2008, GSC’s lawyer threatened the Doctors with a lawsuit, alleging that the Doctors were in violation of the covenant not to compete in the LP Agreement. The Doctors filed suit, seeking a declaration that the covenant not to compete was unenforceable. The Doctors also sought injunctive relief, requesting the trial court enjoin GSC from interfering with their efforts to build a new center. After an evidentiary hearing, the trial court denied the injunctive relief, but stated it did not believe the covenant not to compete was enforceable.

GSC counterclaimed for breach of contract.

Thereafter, the Doctors filed a traditional motion for summary judgment and GSC filed a traditional cross-motion for partial summary judgment. The trial court granted the Doctor’s motion for summary judgment and denied GSC’s cross-motion for partial summary judgment. This appeal ensued.

Standard of Review

The standards for reviewing a traditional summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. A motion for summary judgment must expressly present the grounds upon which it is made and must stand or fall on those grounds alone. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex.App.-Dallas 2000, no pet.).

When both parties move for summary judgment, each party must carry its own burden as the movant. Dallas County Community College Dist. v. Bolton, 185 S.W.3d 868, 871 (Tex.2005). The court may consider all of the summary judgment evidence filed by either party. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997).

We must affirm the summary judgment if any one of the movant’s theories has merit. Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex.2001).

Analysis

GSC raises four issues for our consideration. First, GSC contends the trial court erred in concluding the covenant not to compete was not supported by adequate consideration. Second, GSC argues the trial court erred in holding that section 15.50(b) of the Texas business and commerce code applies to the covenant not to compete between GSC and the Doctors. Next, GSC alleges the trial court erred in granting the Doctor’s motion for summary judgment. Finally, GSC contends the covenant not to compete meets the requirements of section 15.50(a) of the Texas business and commerce code and, therefore, the trial court erred in denying GSC’s motion for partial summary judgment.

We first turn to GSC’s second issue, whether the trial court erred in holding that section 15.50(b) of the Texas business and commerce code applies to the covenant not to compete between GSC and the Doctors.

Section 15.50(b) provides, in pertinent part, as follows:

(b) A covenant not to compete is enforceable against a person licensed as a physician by the Texas State Board of Medical Examiners if such covenant complies with the following requirements:
(2) the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties;....

GSC contends that section 15.50(b) was not meant to apply to the covenant in this case because the covenant at issue does not affect the Doctors’ practice of medicine. We disagree.

Statutory construction is a legal question reviewed de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). We must construe a statute, first, by looking to the plain and common meaning of the statute’s words. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999) (“[I]t is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.”). If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. Id. at 865. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create an ambiguity. Id. at 866.

Section 15.50(b) outlines the situations in which a covenant not to compete is enforceable against a person licensed as a physician by the Texas State Board of Medical Examiners. Here, the record demonstrates the Doctors are licensed physicians. Section 15.50(b)(2) requires the covenant to include a buy-out provision if the covenant is to be enforceable against a physician. Tex. Bus. & Com.Code Ann. § 15.50(b)(2). This buy-out clause requirement provides physicians with the unique opportunity to buy out their covenants that is not available to any other employee subject to a covenant. See Mike Kreager, The Physician’s Right in § 15.50(b) to Buy Out a Covenant Not to Compete in Texas, 61 Baylor L.Rev. 357, 419 (Spring 2009). The covenant before us, however, contains no buy-out clause as required by section 15.50(b)(2). Therefore, the covenant is unenforceable against the Doctors. See Gulf Coast Cardiology Group, P.A., v. Saniman, No. 09-02-009-CV, 2002 WL 1877175 (Tex.App.-Beaumont Aug. 15, 2002, pet. denied) (covenant not to compete unenforceable since it did not contain a buy-out provision).

Based on our review of plain language of the statute and the covenant not to compete in this case, we conclude the trial court properly applied section 15.50(b) in this case. We, therefore, overrule appellant’s second issue on appeal.

In light of our decision regarding appellant’s second issue, we need not address appellant’s remaining issues. See Dow Chemical Co., 46 S.W.3d 237. We affirm the judgment of the trial court.


author: JIM R. WRIGHT, Chief Justice.

text:
    Vernon Lee WILLIS, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00312-CR.
    Court of Appeals of Texas, Eastland.
    July 15, 2010.

      Tom Watson, Mehaffey & Watson, Abilene, for appellant.
    James Eidson, Dist. Atty., Patricia Dyer, Asst. Dist. Atty., Abilene, for appel-lee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

The grand jury indicted Vernon Lee Willis on one count of possession with intent to deliver cocaine in an amount of more than 4 grams and less than 200 grams. The second count of the indictment charged the offense of possession of the same cocaine in an amount of more than 4 grams and less than 200 grams, but omitted the charge that Willis intended to deliver it. The jury found Vernon Lee Willis guilty of the offense of possession of cocaine in an amount of more than 4 grams and less than 200 grams as charged in the second count. The offense was enhanced by a prior conviction for burglary of a habitation. Willis pleaded true to the enhancement allegation, and the trial court assessed Willis’s punishment at confinement for twenty years. We affirm.

There is no challenge to the sufficiency of the evidence, and there is no need to detail it. Suffice it to say, the evidence shows that Willis was personally in possession of the cocaine when approached by law enforcement officers.

Willis presents two points of error. First, he claims that the trial court erred when it proceeded to try him before a jury of eleven members. In his second issue, Willis maintains that the trial court erred when it submitted a jury charge on the law of parties without limiting it to the offense of possession with intent to deliver.

On the morning after the jury was seated and sworn, and opening statements had been made, the bailiff notified the trial court that one of the jurors had informed him that he had been convicted of a felony. The conviction occurred some twenty years earlier. The juror had received probation and had forgotten about it.

When the matter was brought to the attention of the trial court, it asked the prosecutor how the State wanted to proceed. The prosecutor responded that the juror was disqualified but that they should proceed with eleven jurors. The prosecutor also told the court that a mistrial would not be appropriate because the trial court was obligated first to take less drastic measures. It was the State’s position that the law allowed them, by agreement, to continue the trial with eleven jurors and that was a less drastic way in which to proceed.

When the trial court asked Willis’s attorney to respond, he said, “Judge, I think I’m in agreement [with] Joel [the State’s attorney]. I mean, just for judicial economy. Instead of bringing 48, 50 more people down here, you know, requesting a mistrial, reseating them, the Code does provide to proceed with 11, and so.” At that point, the trial court interrupted, “Okay. All right.”

Tex.Code Crim. PROC. Ann. art. 36.29(a) (Vernon Supp.2009) provides in relevant part: “Not less than twelve jurors can render and return a verdict in a felony case.” There are exceptions to that provision. The exception here is contained in Tex. Gov’t Code Ann. § 62.201 (Vernon 2005). That provision contains the following language: “The jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors” (emphasis added).

The plain language of Section 62.201 draws no distinction between civil and criminal cases. Hatch v. State, 958 S.W.2d 813, 816 (Tex.Crim.App.1997). Section 62.201 applies to criminal cases. Id. at 817.

However, there is a distinction between the complete waiver of a jury trial and an agreement to be tried by a jury of less than twelve persons. Id. at 816. In the latter instance, the defendant is still claiming his right to a jury trial, albeit with less than twelve members. Id. The various requirements for waiver of a jury trial set out in Tex.Code CRim. Proc. Ann. arts. 1.13, 1.14, 1.15 (Vernon 2005), do not apply to situations in which there is an agreement by the parties to try the case before a jury of less than twelve persons, as opposed to a complete waiver of a jury. Butler v. State, 119 S.W.3d 404, 407 (Tex.App.-Waco 2003, pet. ref'd). What is required under Section 62.201 is a record that affirmatively establishes the agreement of the parties to try the case with less than twelve jurors. Hatch, 958 S.W.2d at 815-16; Roberts v. State, 987 S.W.2d 160, 163 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).

Here, after the juror’s disqualification became known, the trial court asked the prosecutor to comment upon the State’s position on whether to proceed. The prosecutor advised the trial court that they should proceed with eleven jurors as a less drastic measure than a mistrial. Willis’s attorney agreed with him. After the trial court dismissed the juror, both attorneys were asked if they were ready for the jury to be brought in. They both responded that they were, and the testimony began.

We hold that this record affirmatively establishes the agreement of the parties to try the case before a jury of less than twelve members in accordance with Section 62.201 of the Texas Government Code. Willis’s first point of error is overruled.

In his second point, Willis contends that the trial court erred when it instructed the jury on the law of parties and did not limit the application of the law of parties to the offense of possession with intent to deliver. The trial court gave the jury an abstract instruction on the law of parties. However, the court did not, directly or indirectly, include the law of parties either in the application paragraph for count one or in the application paragraph for count two.

When an abstract charge is given on a theory of law not raised by the evidence, without specific application to the facts of the case, the trial court does not err when it overrules an objection to the abstract charge. Hughes v. State, 897 S.W.2d 285, 297 (Tex.Crim.App.1994).

The court of appeals addressed an issue similar to the one before us in Wappler v. State, 104 S.W.3d 661 (Tex.App.-Houston [1st Dist.] 2003), rev’d on other grounds, 138 S.W.3d 331 (Tex.Crim.App.2004). Wappler contended that the trial court erred when it submitted the following charge to the jury: “Nothing in the law prohibits the admission of a statement made by the accused that is the res geste [sic] of the arrest or of the offense.” Wappler, 104 S.W.3d at 669. The State agreed with Wappler that the instruction was not raised by the evidence. However, the State also argued that no reversible error was shown because the charge was a correct statement of the law, was given to the jury only in the abstract jury instructions, and was not applied to the specific facts of the case. Relying on Hughes, the court of appeals agreed and held that the trial court did not err when it overruled Wap-pler’s objection to the charge. Wappler, 104 S.W.3d at 669.

The situations in Hughes, in Wappler, and in this case are to be distinguished from those situations where the charge contains an abstract instruction on the theory of law on which the accused is prosecuted but does not contain an application paragraph applying that law to the facts. In those situations, such failure deprives an accused of a fair trial. Jones v. State, 815 S.W.2d 667, 670 (Tex.Crim.App.1991).

We hold that, when an abstract charge is given on a theory of law not raised by the evidence, in which the law is correctly stated, without specific application to the facts of the case, the trial court does not err when it overrules an objection to the abstract charge. Here, the trial court correctly stated the law of parties in an abstract instruction and did not apply the abstract instruction on the law of parties to the facts of this case as to either charge in the indictment. Accordingly, the jury was not authorized to convict Willis by applying the law of parties. Hughes, 897 S.W.2d at 297. The trial court did not err when it overruled Willis’s objection to the court’s charge. The second point of error is overruled.

We affirm the judgment of the trial court.