Homeowners’ claims dismissed against County and District in buyout suit after Ike.

Miller et. al v Jefferson County, NO. 03-11-00521-CV, (Tex. App. – Austin, July 11, 2013).

Miller et. al v Jefferson County Drainage District No. 6, et al, NO. 03-11-00817-CV (Tex. App. – Austin, July 11, 2013).

In these two related appeals, the trial court claims were severed where one set of claims resulted in the granting of a plea to the jurisdiction and one resulting in the granting of the County’s motion for summary judgment. The same five points of error were raised in each appeal and will be practically treated as one for purposes of this summary.

After several homes were damaged by Hurricane Ike, the home owners brought suit seeking damages and declaratory relief against multiple governmental entities, officials, and others. They factually plead that their homes were built in the 100-year flood plain as a result of the “mishandling of information about the elevation…” They also sought damages arising out of the various entities’ participation in a Federal Emergency Management Agency (FEMA) flood buyout program. As part of this program the homeowners sold their property to Jefferson County. Appellants alleged that defendants misled them and that funds were available to pay additional amounts to them for their property but were used for other purposes.

The Austin Court of Appeals held the entities were not required to have special exceptions sustained prior to obtaining the trial court’s ruling on their plea to the jurisdiction and dispositive motions since the special exceptions were not based on a pleadings lack of clarity but on a failure to state viable claims. The court also seems to feel it compelling that the home owners did not file responses to the special exceptions, did not ask for a continuance to file a response, or suggest how they could have cured any defects if allowed.

The homeowners asserted they had a private cause of action under the Stafford Act which addresses federal disaster relief and assistance but the court disagreed. Further, even if such a private cause did exist, the trial court did not err by dismissing it since the homeowners did not plead or prove the entities violated any provision of the Act.

Next the homeowners asserted immunity was abrogated because the acts alleged were ministerial in nature (i.e. comply with the Stafford Act). The court held that in addition to the above analysis, improperly implementing ministerial acts is an ultra vires claim which can only be brought against an official in his official capacity. The homeowners did not plead or establish they entered into a contract with any entity “for providing goods or services” so there is no waiver of immunity under Chapter 271 of the Texas Local Government Code.  Immunity also protects the entities since the homeowners did not allege personal injury or death or the negligent operation of a motor-vehicle or equipment. While they attempt to assert a premise defect, they failed to show how the entities “possessed, owned, occupied, or controlled the premises.”  The only official sued was the Chief Appraiser and the only one capable of being sued for ultra vires acts; however, the trial court properly dismissed him pursuant to Tex. Civ. Prac. & Rem. Code §101.106(e). Since there was no “public use” involved, the takings claims were properly dismissed.

Without much explanation, the court stated that the homeowners did not plead or establish any facts to support their claims or contest summary judgment for their claims under U.S. Const. amend. I, V; 42 U.S.C. §§ 1983 (civil action for “deprivation of any rights, privileges, or immunities secured by Constitution and law”), 1985 (civil action for “conspiracy to interfere with civil rights”), 1988 (addressing “[p]roceeding in vindication of civil rights”).  And since a declaratory judgment action cannot be used to circumvent a claim for monetary relief, the dismissal of the declaratory claims was proper.

As to the only remaining claims against the County, the home owners assert the County entered into contracts to buy out the homes but failed to pay the required 25% match under FEMA regulations.  Additionally, the releases included in the buyouts were not enforceable because they were under duress or without consideration. The court held the County was not obligated to use other funding to pay the maximum of 25%, the homeowners retained the benefit of the bargains, the “duress” was not the type of threat which destroyed free will, and did not create any fact issue to overcome summary judgment.  Its odd the  court found in one opinion immunity was not waived for the contracts, but analyzed the Apparently, the homeowners also sued other officials of Jefferson County in a third lawsuit, which was found in favor of the officials and collaterally estopped similar claims here. In short, homeowners lost in all areas under both appeals.

If you would like to read these opinions click here and here.



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