Tyler Court of Appeals holds District is immune from sewer backup as 20 year old plastic coupler which failed was not part of the motor system

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Sean Self v. West Cedar Creek Municipal Utility District, 12-20-00082-CV, (Tex. App – Tyler, Jan. 6, 2021)

This is an appeal from the granting of a plea to the jurisdiction in a sewage backup case in which the Tyler Court of Appeals affirmed the order.

Self and his wife Kimberly entered into a contract with the District in 2012  water and sewer services. After sewage backed up into their home in April 2015, the District made some repairs to the vault system. Another backup occurred in 2016 and Sean Self sued the District alleging negligent use of motor-driven equipment, premises defect, unconstitutional taking, non-negligent nuisance, and breach of contract. The District filed a plea to the jurisdiction, which was granted. Self appealed.

It is undisputed that a plastic coupler (known as a quick connect) failed causing the backup. Self argued the motors, pipes and couplers are all one system. The court explained in detail how the Self system worked. The coupler gives District employees the ability to remove the pump without cutting pipes. There is no motor in the coupler. It merely assists in disconnecting the pump if it needs to be worked on. If the coupler fails, gravity will cause any sewage coming from a higher-grade property to backfill Self’s property. Self’s expert plumber testified the pumps used can cause high pressure, which could potentially break the coupler, but he did not know that is what occurred in this instance.  However, there was no evidence that the coupler assists in sewage collection other than to the extent it helps maintain the connection between the pump and the discharge line. The evidence shows that, if the coupler breaks, whether the pump is on or not, the sewage in the tank would flow out to the ground or through the line in the tank and back into the house, due to the force of gravity, not the operation or use of motorized equipment. Under a premise defect theory, the duty owed by an owner of premises to an invitee is not that of an insurer. The coupler was placed in 1995. The fact that materials deteriorate over time and may become dangerous does not itself create a dangerous condition, and the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. No evidence of actual knowledge existed. In the context of an inverse condemnation claim, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” A taking cannot be established by proof of mere negligent conduct. No knowledge of intent is present. While Self alleged a claim for non-negligent nuisance, there is no separate waiver of governmental immunity for nuisance claims. Finally, as to the breach of contract claim, no goods are services were provided to the District, it was the District providing services to Self. As a result, no waiver of immunity exists.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Affirmed. Opinion by Justice Neeley. Docket page with attorney information found here.

The Tenth Court of Appeals affirmed the trial court’s summary judgment against the plaintiff developer because it did not challenge all possible grounds supporting the summary judgment order

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

David A. Bauer, et al. v. City of Waco, No. 10-19-00020-CV (Tex. App.—Waco  December 9, 2020) (mem. op.).

The Waco Court of Appeals affirmed a trial court’s judgment dismissing the plaintiff’s vested rights and takings claims on summary judgment.

The plaintiff developer sued the city after being required to provide an easement for a water line and meet other requirements in the city’s code prior to construction of its project.  The city required changes to various permit applications of the plaintiff prior to approval and required an easement for a previously placed waterline. The plaintiff developer sued the city for vested rights and takings, arguing the regulations were inapplicable due to the vesting of its original permit.  Among its summary judgment arguments, the City argued that a declaration of the plaintiff’s vested rights would not resolve the issue because the ordinance in place at the time of initial permit vesting would yield the same result.  As to the required easement, the City argued that the plaintiff did not seek a variance from the easement and could not claim a taking.  The trial court granted summary judgment in favor of the city but the order did not provide specific reasons.

To appeal a summary judgment, the appealing party has to prove that any or all bases for the summary judgment is error.  Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Lesher v. Coyel, 435 S.W.3d 423, 429 (Tex. App.—Dallas 2014, pet. denied). To establish a claim for vested rights under Chapter 245 of the Local Government Code the plaintiff needs to show that the city is required to review a permit application based on the regulations in effect at the time the original application is filed.  See Tex. Loc. Gov’t Code § 245.002; Milestone Potranco Dev., Ltd., v. City of San Antonio, 298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied).  For a takings claim, the plaintiff needs to show that the action where the property was taken was done without consent of the property owner and that there has been a final decision regarding the application of the regulations to the property at issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998). The court of appeals upheld the trial court’s judgment on both the vesting rights and takings claims because the plaintiff failed to disprove every basis for the summary judgment including that the ordinance in effect for vesting would not have changed the result and that the original property owner had given consent for the installation of the water line.

If you would like to read this opinion click here.   Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Chief Justice Tom Gray.

 

Property owner failed to allege Ch. 211 or 245 claims for zoning change; failure-to-exhaust-remedies bar applied to inverse-condemnation claim

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City of Dickinson v Stefan, 14-18-00778-CV, (Tex. App. – Houston [14th Dis.], Oct. 27, 2020)

Stefan operated his home computer business in a residential zone, but allowed his church group to host events, including weddings on the property.  The City changed later changed the zoning code and created a registration process for non-conforming uses. The registration allows a property owner to continue the same nonconforming use after the City adopted the change but the owner cannot expand the nonconforming use. Stefan registered his home computer business but did not list any church activities. Stefan did not write “events,” “wedding venue,” “event center,” or anything else that would indicate he had been using the Property for events.  Neither party produced evidence the City approved the request. Stefan was later cited for operating a special event center against the zoning code without a special use permit. Stefan appealed to the Board of Appeals, which denied his request to operate special events. Stefan then sued the City for declaratory relief claimed inverse-condemnation.  The city filed a plea to the jurisdiction, which was denied. The City appealed.

The Court first held that Stefan failed to allege a vested right determination under chapter 245 or a board of adjustment appeal under chapter 211 of the Texas Local Government Code. The operation of an ongoing business is not a “project” within the meaning of chapter 245. Rights to which a permit applicant is entitled under chapter 245 accrue on the filing of an original application or plan for development or plat application that gives the regulatory agency fair notice of the project and the nature of the permit sought.  Stefan’s pleadings do not mention chapter 245 or a vested right. Stefan does not cite § 211.011 or seek a writ of certiorari for a BOA appeal. He sued the City, not the BOA. As a result, he failed to seek judicial review of the BOA decision. The City challenged jurisdiction for the declaratory judgment and takings claims for failure to timely appeal the City Board of Adjustment determination and that Stefan did not exhaust his administrative remedies regarding nonconforming uses. Even under a liberal construction of the pleadings, the court cannot create a claim Stefan’s pleading did not contain, and it could not conclude that Stefan sought judicial review of the BOA decision under chapter 211. The exhaustion-of-administrative-remedies rule requires that a plaintiff pursue all available remedies within the administrative process before seeking judicial relief. Chapter  211 must be exhausted before a party may seek judicial review of a determination made by an administrative official. As a result, the trial court lacked jurisdiction over his declaratory claims and inverse-condemnation claims.

The concurrence believed Stefan’s failure to allege 211 should not preclude consideration, but then held Stefan abandoned that consideration in his briefing.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost and Justices Wise and Hassan (Hassan, J. concurring – opinion found here).

Beaumont Court of Appeals holds pro se Plaintiff did not establish entitlement to injunctive relief to prevent demolition of building

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Rema Charles Wolf v. City of Port Arthur, 09-19-00047-CV, (Tex. App – Beaumont, Aug. 6, 2020)

This is an interlocutory appeal from the denial of a temporary injunction request by a pro se property owner.

Pro se Plaintiff Wolf sued the City seeking a temporary restraining order and temporary injunction relief asserting the City failed to grant her a permit to repair a building she owns after Hurricane Harvey.  According to Wolf, the building “was never hazardous for anybody[.]”  The petition made claims against the City for fraud, harassment, and trespass, and sought damages. She also sought a restraining order to prevent the City from demolishing the building. The trial court granted the TRO and set the temporary injunction for a hearing. The  City demolished the building. The City filed a plea to the jurisdiction asserting The City also alleged that § 214.0012 of the Texas Local Government Code provides the exclusive remedy and basis for judicial review of actions related to the City’s Construction Board of Adjustments and Appeals. In a second plea, the City produced evidence of a public hearing on the demolition and that Wolf signed in and presented.  After the public hearing, the Board entered a ninety-day raze-or-repair order and provided it to Wolf. According to the plea, the City sent Wolf a letter on October 25, 2018, that notified her of the upcoming demolition, demolition began on November 15, 2018, and the demolition was two-thirds completed when the City received notice of the TRO.  After a temporary injunction hearing, the trial court denied the temporary relief and finding the plea was moot.

For a temporary injunction, a review of a trial court order is limited.  In this case, several of Wolf’s issues on appeal complain about matters not within the scope of the order being appealed. The record includes no appealable ruling, order, or judgment granting or denying damages or some of the other relief requested by Wolf. As a result, the court of appeals lacks jurisdiction over such requests.  “An appeal from an order on a temporary injunction becomes moot when the act sought to be enjoined occurs.” In this case, the remainder of the building was demolished.   The trial court expressly stated at the conclusion of the hearing that it had not found sufficient evidence of irreparable loss. Deferring to the trial court as fact finder, the court of appeals held the trial court did not abuse its discretion in denying the injunctive relief.

If you would like to read this opinion click here. Panel consists of Justices Kreger, Horton, and Johnson. Affirmed. Memorandum Opinion by Justice Johnson. Docket page with attorney information can be found here.

Waco Court of Appeals holds an allegation of overzealous code enforcement actions is inadequate to establish a substantive due process violation when regulations are enforceable.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

House of Praise Ministries, Inc. v. City of Red Oak, Texas, 10-19-00195-CV (Tex. App.—Waco, Aug. 6, 2020).

In this substantive due process case, the Waco Court of Appeals affirmed a trial court’s grant of a plea to the jurisdiction because the plaintiff did not bring any allegations that rose to the level of a substantive due process violation for code enforcement on its property.

The plaintiff is the owner of a piece of property in Red Oak, Texas that was the subject of code enforcement actions including substandard building declaration in municipal court.  The plaintiff initially brought claims for regulatory taking, procedural due process, and substantive due process based on the municipal court case determining that the buildings on its property were substandard.  In an earlier ruling by the trial court and this court of appeals, the regulatory taking and procedural due process claims were dismissed, but the plaintiff was given the opportunity to replead the substantive due process claim. The plaintiff replead the substantive due process claim including allegations that the City’s offered amortization agreement, overzealous code enforcement actions, and premature lis pendens filing violated its substantive due process rights.  The trial court granted the City’s plea to the jurisdiction related to the substantive due process claim.

To present a substantive due process claim, the plaintiff must prove that the government deprived the plaintiff of a constitutionally protectable property interest capriciously and arbitrarily.  City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.—Amarillo 1996, writ denied).  The Court of Appeals held that none of the three allegations met this standard.  The amortization agreement was never entered into by the plaintiff and so did not deprive it of any rights. The Court of Appeals then held that “conclusory allegations that the code enforcement officer enforced the City’s regulations arbitrarily and capriciously are inadequate, standing alone, to support a substantive due process claim.”  The Court also noted that there was no allegation that the regulations themselves were an issue.  Finally, the Court held that a lis pendens filing, which puts potential property purchasers on notice that an action against a property is currently being brought, does not violate substantive due process even if filed prematurely, where no other evidence of capriciousness or arbitrariness in filing the lis pendens.  The Court of Appeals affirmed the trial court’s dismissal of the case.

If you would like to read this opinion click here.  Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Justice John E. Neill.

Fort Worth Court of Appeals analyzes the law-of-the-case doctrine and determines private property owners did not establish claims against a city regarding fee simple land ownership

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City of Mansfield, et al., v Saverings, et al, 02-19-00174-CV (Tex. App. – Fort Worth, July 16, 2020)

In this lengthy opinion, the Fort Worth Court of Appeals holds certain private property owners did not establish a right to declaratory relief regarding fee-simple ownership of lots over which the City exercised some regulatory control, asserting they were public paths.

A developer filed a final plat in Tarrant County, creating a planned housing development—The Arbors of Creekwood – Gated Community (the Development) located in the City, but which had two HOAs. An amended plat divided the lots into R1 and R2 lots. All R2 lots were in the floodplain, which was governed by City ordinance. The developer created a lake and connected jogging paths ending at the lake. The developer testified the paths were for public use.  The boundary line for the R2 lots abutting the lake was to the north of the lake; thus, the lake was not included within the boundaries of these R2 lots. The developer executed a declaration of covenants, conditions, and restrictions (the Declaration) for the Development and filed them in Tarrant County. The Declaration stated the HOAs owned fee-simple title to private streets in the Development and “common properties” which had a complicated definition. In 1997, the Arbors HOA forfeited its right to do business and became a terminated entity. The surviving HOA asserted the Arbors HOA property lots (R2) automatically transferred to it. In January 2012, the City began planning for a “possible future trail connection” to the jogging path. Construction on the bridge began in 2013 and opened on January 25, 2014. Some owners of R1 lots noticed an increase in people using the jogging path and trespassing on the R1 lots. The R1 owners sued seeking a declaration they owned the R2 lots as common properties, and seeking to quiet title The Court of Appeals issued an interlocutory opinion in review of a temporary injunction noting the R2 lots were included in the definition of “common properties.” The R1 Owners also raised claims against the City Defendants for trespass and inverse condemnation.  The City Defendants filed a traditional and no-evidence motion for summary judgment, including arguments that the facts and law had substantially changed since the interlocutory order. They argued the R1 owners did not have a right to possess the R2 lots (which were originally owned by the defunct HOA) and that they did not have a private right to enforce a city ordinance on floodplain development. The trial court denied the City Defendants’ motions and granted the partial summary judgment of the R1 owners. The City Defendants appealed.

The court first went through a detailed analysis of the evidence submitted, objections to the evidence, and what constituted judicial admissions. The court held the law-of-the-case doctrine only applied to claims fully litigated and determined in a prior interlocutory appeal; it did not apply to claims that have not been fully litigated. The law-of-the-case doctrine is flexible and directs the exercise of court discretion in the interest of consistency but does not limit its power.  The interlocutory opinion (which was a complicating obstacle) did not address the R1 Owners’ UDJA claim regarding title to the R2 lots, only a probable right of relief for trespass claims based on an undeveloped record. The court noted they were substantially different arguments, issues, law, and review standards. [Comment: For a good analysis of the doctrine and its boundaries, read this section of the case.]  The City argued the R2 lots owned by the defunct HOA could be distributed only under the terms of the articles of incorporation and could not pass to the live HOA automatically. The court agreed with the City that the R1 owners did not establish a proper conveyance under the articles.

Next the court turned to the floodplain ordinance, where the R1 owners asserted the City failed to follow its own ordinance by obtaining studies before constructing structures in the floodplain connecting the jogging paths. The City Defendants’ argument no private cause of action to enforce the ordinance exists is one of standing. The R1 Owners did not challenge the validity of the ordinance but rather asserted that they wanted a construction of the ordinance and enforcement of it against the City Defendants. The R1 Owners did not have a right to enforce the ordinance through a UDJA claim, which only waives immunity for ordinance invalidation.  Alternatively, under the record, the R1 owners did not establish the City violated the ordinance. The City Defendants proffered summary-judgment evidence raising a fact issue on their substantial compliance.  Finally, since the court held the R1 owners could not bring a UDJA claim, the attorney’s fee award was reversed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Gabriel and Kerr.  Opinion by Justice Gabriel.

Eastland Court of Appeals holds conclusory statements in pleadings insufficient to plead jurisdiction – facts are needed to establish City had intent to commit a taking

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City of Albany v. Diana Christine Blue and Elva Rae Sanders, 11-18-00051-CV, (Tex. App – Eastland, April 2, 2020)

This is an interlocutory appeal in a nuisance and inverse condemnation case where the Eastland court of appeals reversed the denial of the City’s plea to the jurisdiction.  It then remanded to allow the Plaintiffs the ability to replead.

The City began construction of a drainage and improvement project for the city-owned golf course next to property owned by the Plaintiffs.  The Plaintiffs assert the construction altered surface water flow and drainage resulting in the flooding of their property. They sued and the City filed a plea to the jurisdiction, which was denied. The City appealed.

The City only challenged the sufficiency of the Plaintiffs’ pleadings and did not submit any evidence contrary to the alleged facts. The City asserts that Appellees failed to allege facts that show an intentional act of the City.  However,  if the City knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged. The Plaintiffs merely allege that “[Appellant] knew that its actions would cause identifiable harm, or that specific property damage was and is substantially certain to occur.” However, conclusory statements in a pleading are insufficient to establish jurisdiction.  As a result, the Plaintiffs did not sufficiently plead an inverse condemnation claim. Likewise, they failed to allege the required intent needed to establish a nuisance claim against the City under the Texas Constitution. Again, they provide mere conclusory statements.  However, the Plaintiffs were not put on notice their pleadings were defective. The pleading defects in this case are not the type that can never be cured. As a result, the case is remanded to give the Plaintiffs the opportunity to cure the defects.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey,  Senior Justice Wright, and Justice Stretcher. Memorandum Opinion by Justice Stretcher. Docket page with attorney information can be found here.

First Court of Appeals holds service on pro se of MSJ via email address on file with court was proper service

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Glenn Herbert Johnson v. Harris County, et al., 01-18-00783-CV, (Tex. App – Hou [1st Dist.], Feb. 27, 2020)

This is an inverse condemnation case where the First Court of Appeals affirmed the granting the defendants’ motion for summary judgment. However, it will be of interest mostly to litigators as the central issue is proper service on a pro se by email during litigation.

Johnson (pro se) alleged that Harris County’s tax sale of his property constituted a taking. The County filed a traditional and no-evidence motion for summary judgment, to which Johnson did not respond. The trial court granted the motion. Johnson filed a post-judgment motion arguing that he did not receive notice of the MSJ or hearing, but listed a different email address for notice. The County submitted evidence it served Johnson via the electronic filing email he had on file with the court.  The trial court denied Johnson’s post-judgment motion and Johnson appealed.

The court first noted that Johnson failed to provide a single citation to the record in his brief and therefore waived any arguments. When an appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for review.  However, the court went on to say that even if he had cited to the record, he could not prevail.  The County’s MSJ was filed twenty-eight days before the date of submission and was therefore timely filed.  A nonmovant has the right to minimum notice of the summary judgment hearing. Id. “Proper notice to the nonmovant of the summary judgment hearing is a prerequisite to summary judgment.” Rule 21a deals with service and notice requirements for pleadings, including motions for summary judgment.  Pro se litigants are not required to participate in the electronic service program.  However, the Rule also states that if no email address is on file with the electronic filing manager, the document “may be served in person, mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.” “A certificate by a party or an attorney of record . . . shall be prima facie evidence of the fact of service.” Notice properly sent pursuant to Rule 21a raises a presumption that notice was received.  No evidence in the record indicates Johnson attempted to change the email address on file with the court or to the attorney in charge for the County. Pursuant to Texas Rule of Civil Procedure 57, Johnson was required to designate an email address if he had one.  Harris County used the designated email address and Johnson presented no evidence of a change. Therefore, Johnson did not overcome the presumption that Harris County properly served him and that he received Harris County’s motion and notice via email service.   Finally, to defeat a no-evidence MSJ, a non-movant must file a response. Here, Johnson did not.  The MSJ was affirmed.

If you would like to read this opinion click here. Panel consists of Justices Lloyd, Kelly, and Landau. Reversed and Remanded. Memorandum Opinion by Justice Lloyd. Docket page with attorney information can be found here.

13th Court of Appeals holds statute of limitations properly raised in plea to the jurisdiction and “damage” to real property is limited to two-year SOL

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Danis Tucker and Beverly Tucker v. City of Corpus Christi, Texas, 13-18-00328-CV, (Tex. App – Corpus Christi, Feb. 27, 2020)

This is a takings claim where the Corpus Christi Court of Appeals affirmed the granting of the City’s plea to the jurisdiction involving junked vehicles v antique vehicles.

A City municipal court judge ordered that four vehicles located on the Tuckers’ residential property be seized and disposed of pursuant to the City’s junked vehicles ordinance.  The Tuckers sued claiming a taking under the Texas Constitution. The City filed a plea to the jurisdiction, based in part on a statute of limitations defense,  which was granted.  The Tuckers appealed.

The court first addressed whether the statute of limitations is now considered a jurisdictional defense (as opposed to an affirmative defense) which could be raised in a plea. Adopting reasoning from other districts, the court held Tex. Gov’t Code §311.034 states compliance with statutory prerequisites to suit are jurisdictional. A statute of limitations is a prerequisite to suit and is therefore jurisdictional when dealing with a governmental entity. It, therefore, can be raised in a plea. Under § 16.003 of the Texas Civil Practice and Remedies Code, a takings claim based on a physical seizure of “personal property” is governed by a two-year limitation, while a takings claim based on the actual physical seizure of real property is a ten-year period (referencing adverse possession). However, a takings claim based on “damage” to real property is governed by the two-year limitations period. The statute of limitations begins to run when a claim accrues, which occurred more than four years before the Tuckers brought suit. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Hinojosa, and Tijerina. Affirmed. Opinion by Justice Hinojosa. Docket page with attorney information can be found here.

14th Court of Appeals holds flooded property owners’ claims lack jurisdiction in district court

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San Jacinto River Authority v. Reba Ogletree, et al., 14-18-00043-CV, (Tex App – Hou [14th dist.], Jan 28, 2020)

In this inverse condemnation case the Fourteenth Court of Appeals dismissed the homeowner’s claims for lack of jurisdiction.

Homeowners, whose properties allegedly flooded when water was released from Lake Conroe in the aftermath of Hurricane Harvey, sued the San Jacinto River Authority (SJRA) and the Texas Water Development Board in a Harris County district court. SJRA filed a plea to the jurisdiction and the TWB filed a Rule 91a motion. The trial court denied the plea but granted TWB’s motion. SJRA and the Homeowners appealed.

SJRA and the Texas Water Board contend on appeal that Texas Government Code section 25.1032(c) imbues the county civil courts at law with exclusive jurisdiction over all inverse condemnation claims filed in Harris County. Generally, Texas district courts and county courts at law have concurrent jurisdiction in eminent-domain cases, but section 25.1032(c) creates an exception for certain cases filed in Harris County.  Inverse condemnation claims and statutory condemnation claims are distinct categories of eminent-domain proceedings. The homeowners also raised substantive and procedural due process claims. The court concluded that the district court lacks subject matter jurisdiction over the purported substantive and procedural due process claims because, as pled, they are necessarily dependent upon the viability of the inverse-condemnation claims over which the district court lacks jurisdiction.  When the homeowners requested the ability to amend their petitions, the court noted it lacked authority to lift the legislatively mandated stay in section 51.014(b) [interlocutory appeal provision], even for a limited purpose. Further, in this situation, the homeowners’ live pleading affirmatively negates the district court’s jurisdiction; hence, the homeowners are not entitled to a remand to plead new claims.  All of the homeowner’s claims should have been dismissed.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, and Justices Jewell and Bourliot. Opinion by Justice Bourliot. Docket page with attorney information found here.

12th Court of Appeals holds a regulatory civil enforcement suit did not constitute a taking by a conservation district

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Neches and Trinity Valleys Groundwater Conservation District v. Mountain Pure TX, LLC  12-19-00172-CV (Tex. App. – Tyler, September 18, 2019).

This is a regulatory takings/compliance enforcement case where the Tyler Court of Appeals reversed the denial of a conservation district’s plea to the jurisdiction and dismissed the property owner’s counterclaims.

The District adopted  rules requiring all persons owning a groundwater well to obtain permits to drill and operate the well unless exempt. Mountain Pure owns a spring water bottling plant in Palestine, Texas. Mountain Pure refused to acknowledge that it owns or operates a water well, refused to apply for a permit to operate a water well, failed to file quarterly production reports or pay quarterly production fees and overall refused to acknowledge the District’s authority. Mountain Pure took the position its water came from an “underground formation from which water flows naturally to the surface of the earth.”  Therefore, the District has no authority to regulate spring water. The District filed a compliance suit against Mountain Pure to which Mountain Pure counter-claimed for tortious interference with their lucrative operating contracts and also asserted a takings claim.  The District filed a plea to the jurisdiction as to the counterclaims which was denied. The District appealed.

Governments must sometimes impose restrictions on and regulations affecting the use of private property in order to secure the safety, health, and general welfare of its citizens.  Although those restrictions and regulations sometimes result in inconvenience to owners, the government is not generally required to compensate for accompanying loss.  However, if regulations go too far, they will be recognized as a taking.

A civil enforcement procedure alone cannot serve as the basis of a regulatory takings claim. A denial of access is compensable if the denial of access is substantial and material. Mountain Pure does not contend that the District’s rules and regulations it seeks to enforce are unconstitutional or otherwise invalid. But it maintains that the District is wrongfully attempting to apply them to its property. The record shows that Mountain Pure’s Palestine plant, after the government action, retains a value of $4,090,000. Mountain Pure cannot contend that the District’s action renders its property valueless. The loss of anticipated gains or future profits is not usually considered in a regulatory takings analysis. “The existing and permitted uses of the property constitute the ‘primary expectation’ of the landowner affected by regulation.”  There is no pleading or evidence which show that the application of the groundwater rules, should they be held to apply, will interfere with production and sale of bottled water from the property. If the District is successful, the enforcement of the production reporting rules would represent a restriction on the property’s use. There is no pleading that the imposition of a three cent per 1000 gallons fee will be so onerous as to affect the present use of the property or significantly diminish its economic viability.  Neither a diminution in property value nor a “substantial reduction of the attractiveness of the property to potential purchasers’ will suffice to establish that a taking has occurred.” Neither the District’s rules nor its attempt at their enforcement has deprived Mountain Pure of any reasonable investment backed expectation for bottling water.  There is no showing that the enforcement of the reporting rules and the accompanying fee will affect production. Mountain Pure’s pleadings do not contain facts that allege a compensable denial of access, nor do they show how the District’s suit forced a cessation of operation. The operating lessee’s termination of its lease purchase operating agreement may have been influenced by the District’s civil enforcement suit. But there are no facts pleaded to show it was required by the District’s action. The District’s suit neither denied access to the spring nor prevented its operation. The court held “[i]t is impossible to avoid the conclusion that Mountain Pure’s inverse condemnation claim is no more that its dismissed tortious interference claim thinly disguised as a taking.”  However, no taking has occurred under the facts. No waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Worthen, C.J., Hoyle, J., and Bass, Retired, J., Opinion issued by Justice Bass.  The attorney listed for the district is  John D. Stover.  The attorneys listed for Mountain Pure are Danny R. Crabtree and Jeffrey L. Coe.

Eighth Amendment Excessive Fine Prohibition applicable to the states through 14th Amendment, says U.S. Supreme Court

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Timbs v Indiana, 17-1091 (U.S. February 20, 2019).

Tyson Timbs pleaded guilty to possession of a controlled substance and conspiracy to commit theft. At the time of his  arrest, police seized a vehicle Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of the vehicle, the value of which was four times the maximum monetary fine for the offenses. The Indiana Supreme Court held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions.

The Court held the prohibition in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.”  Indiana argued the clause does not apply to its use of civil in rem forfeitures because the clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. However, the Court noted the trial court did not address the clause’s application to civil in rem forfeitures and the Indiana Supreme Court only held the Clause was inapplicable to the states through the 14th Amendment.  The Court held the 14th Amendment makes applicable the Excessive Fines Clause, and the Court declined to separate out whether it was for criminal or civil forfeiture purposes.

If you would like to read this opinion, click here. GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

Texas Supreme Court holds plaintiff in red-light challenge lawsuit was required to exhaust administrative remedies before filing for injunctive relief

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Garcia v City of Willis, et al., 17-0713 (Tex. May 3, 2019)

In this constitutional challenge to red-light camera case, the Texas Supreme Court held the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim.

Luis Garcia sued the City of Willis on behalf of himself and “others similarly situated” who paid a civil penalty for violating a city ordinance for red-light infractions caught on camera. He sought the invalidation of the ordinance, a refund, or a takings claim. The City filed a plea to the jurisdiction, which was denied by the trial court, but granted by the court of appeals. On appeal to the Supreme Court, the State filed an amicus brief, arguing additional authority in support of the City.

While the City did not initially challenge Garcia’s standing to bring suit, the State’s amicus brief raised the issue, and the Court felt it was required to address that first. After receiving notice from the City of his red-light violation, Garcia paid the requisite civil fine. He has no outstanding fines and does not assert that he plans to violate red-light laws in the future. And for standing purposes, we “assume that [plaintiffs] will conduct their activities within the law,” barring some stated intent otherwise. Because no pending charges exist, Garcia lacks standing for prospective injunctive relief and could not be a class member of others similarly situated who have not paid the fine.  However, he does have standing to seek a refund of his past payment. In this context, immunity is waived only if Garcia paid the fine under duress.  Here, Garcia chose to voluntarily pay a fine and forgo administrative remedies that would have entitled him to an automatic stay of the enforcement of his fine under TEX. TRANSP. CODE § 707.014(a).  Because Garcia could have invoked this automatic reprieve from payment and challenged the notice of violation administratively — but chose not to — he cannot now claim he paid his fine under duress.  Therefore, the City maintains its immunity.

Garcia additionally argues the fine imposed on him amounts to an unconstitutional taking, because the underlying is unconstitutional and because the City failed to conduct the statutorily required engineering study.  He asserts he could not challenge the constitutionality of the fine in the administrative hearing. However, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments. As a result, he failed to exhaust his administrative remedies.

If you would like to read this opinion, click here.  Justice Brown delivered the opinion of the Court.  The docket page with attorney information can be found here.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.

 

  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.

 

  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.

 

  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.

 

  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.

 

  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.

 

 

  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.

 

  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.

 

  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

City not liable for takings claim because of alleged failure to enforce ordinances against neighboring property owner/developer

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City of Mason v. William Robin Lee, et al.  04-18-00275-CV (Tex. App. – San Antonio, Nov. 7, 2018).

This is an interlocutory appeal in a regulatory takings case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the takings claims.

The Zeschs’ trust asserted they owned property adjacent to or downhill from property owned by Tyler and Reyeses. The City approved a minor plat and Reyeses began constructing a single-family residence. The Zeschs assert the development caused increase water runoff damaging the property. Additionally, the Zeschs assert the construction generated nuisance level noise and dust. They assert the City committed a regulatory taking by approving the plat, then refusing to enforce various City ordinances against Reyeses. The City filed a plea to the jurisdiction, which was denied. The City took this interlocutory appeal.

The court first noted a justiciable controversy still exists even though the Zeschs settled with Tyler and Reyes and now own the property since a question remains as to whether the Zeschs’ property was damaged due to the City’s actions. Next, to state a valid takings claim, a plaintiff generally must allege: (1) an intentional governmental act; (2) that resulted in his property being taken; (3) for public use. The crux of the Zeschs claims is that the City failed to impose applicable regulations to the subdivision and to the property owned by the Reyeses. The Texas Supreme Court and the Fourth Court have recognized “the law does not recognize takings liability for a failure to” act. A municipality’s failure to enforce applicable zoning ordinances and special permit restrictions does not constitute a regulatory taking.  The court also cited to precedent noting that if the government’s alleged affirmative conduct is nothing beyond allowing private developers to use their property as they wish, the more appropriate remedy is a claim against the private developers rather than a novel taking claim against the government.  Interestingly, in a footnote, the court held that the Penn Central analysis (applicable when a regulation unreasonably interferes with a property owner’s use and enjoyment of the property) does not apply in this type of case because the Zeschs were not complaining of regulations applied to them, but of the lack of regulations applied to others. No intentional conduct occurred so the plea should have been granted.

If you would like to read this opinion click here. Justice Martinez, Justice Chapa and Justice Rios.  Memorandum Opinion by Justice Rios.  The docket page with attorney information can be found here.