Fort Worth Court of Appeals holds oral pronouncements from bench cannot be considered when appealing a written order granting Town’s plea to the jurisdiction

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John Artuso v. Town of Trophy Club, Texas, 02-20-00377-CV, (Tex. App – Fort Worth, May 13, 2021)

This is a negligence, taking,  and declaratory judgment action where the Fort Worth Court of Appeals affirmed the granting of the Town’s plea to the jurisdiction.

Plaintiff Artuso sued the Town of Trophy Club for negligence and gross negligence with regard to his home’s placement in the Town’s Public Improvement District No. 1 (PID) and the special assessments imposed in the district. Artuso asserted he timely paid all assessments and even overpaid. He requested the Town credit his account for previously over-assessed amounts, which he characterized as a taking. He claimed that the manner in which the Town apportioned the PID costs was arbitrary and capricious, amounting to a violation of his due process rights, and he complained that the Town had not responded to his assessment-reduction petition. The Town filed two pleas to the jurisdiction, which were granted. Artuso appealed.

Artuso’s argument that the trial court’s oral statements about the grounds for granting the plea were improper. The trial court’s signed order listed no grounds.  The appellate court asserted it could not look to the oral statements in the record, only to the wording of the actual written order. By applying this policy, the courts and parties are relieved of the obligation to “parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.” Because Artuso has failed to challenge all of the grounds upon which the Town’s motion could have been granted, and failed to brief all grounds, the court of appeals affirmed the granting of the dispositive motions.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, and Justices Kerr and Womack. Memorandum Opinion by Chief Justice Sudderth. Docket page with attorney information found here.

Property owner not entitled to de novo review of nuisance determination says Austin Court of Appeals

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Mark Groba v. The City of Taylor, Texas, 03-19-00365-CV (Tex. App. – Austin, Feb. 3, 2021)

In this nuisance abatement case, the Austin Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Groba, a real property owner, was subject to an enforcement action in the Municipal Court of Taylor, acting in an administrative capacity.  The court conducted a hearing and issued an order granting the City’s application to declare Groba’s property a nuisance under chapter 214 of the Texas Local Government Code. The municipal court later issued an order declaring that Groba failed to comply with its original order to clean up the nuisance. The City then filed a Chapter 54 lawsuit to enforce it’s ordinances and the orders in district court. The City sought injunctive relief related to its nuisance determination, including authorizing the City to demolish the building and charge the costs for doing so to Groba. The City also sought civil penalties.  The trial court issued an injunction order allowing the City to demolish the building, which the City did.  The day after the demolition, Groba filed a counterclaim for declaratory judgment and trespass, arguing that he was entitled to a jury trial on the nuisance determination. The City filed a plea to the jurisdiction, which the trial court granted. Groba appealed.

After receiving a copy of the municipal court order, Groba did not appeal and, thus, did not comply with the jurisdictional prerequisites for judicial review of the nuisance determination.  Groba asserted he was entitled to de novo review of the City’s nuisance determination, and even if he had failed to timely appeal the nuisance determination, the City is estopped from asserting a jurisdictional challenge to his request for a jury trial because the City “misled” him by filing “multiple proceedings” and by dismissing the criminal municipal-court case after he had requested a jury trial. A property owner aggrieved by a municipality’s order under § 214.001 may seek judicial review of that decision by filing a verified petition in district court within thirty days of receipt of the order. A court cannot acquire subject-matter jurisdiction by estoppel. The City’s enforcement of an ordinance may be estopped, but only in exceptional circumstances that are not present. But subject-matter jurisdiction is still not conferred through estoppel.  Further, contrary to Croba’s assertions, the Texas Supreme Court’s opinion in City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) does not give him an unconditional right to de novo review of a nuisance determination. A de novo review is required only when a nuisance determination is appealed, which Croba did not perform.

If you would like to read this opinion click here. Panel consists of Chief Justice Byrne, Justice Baker and Justice Triana. Memorandum Opinion by Chief Justice Byrne.

U.S. 5th Circuit holds property owner’s federal Clean Water Act claim against Town for improper discharge was proper due to lack of comparable state regulation

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Stringer v. Town of Jonesboro, 20-30192 (5th Cir. Jan. 18, 2021)

In this §1983 taking suit and federal Clean Water Act (“CWA”) case, the U.S. 5th Circuit held the Plaintiff’s §1983 suit for damages due to sewage backup was barred, but not her Clean Water Act claim.

Stringer alleges that, since at least 2011, the Town’s wastewater treatment system has malfunctioned during periods of heavy rain, with chronic failures of a specific pump. She asserts the Town failed to respond to her complaints as political payback she ran against the mayor in an election.  She was also an alderwoman. The Louisiana Department of Health (LDOH) and the Louisiana Department of Environmental Quality (LDEQ) were aware of the overtaxed system. LDEQ sent the Town warning letters and issued compliance orders. LDOH also enforced the State Sanitary Code, issued the Town a compliance order imposed mandatory ameliorative measures and assessed a daily fine. Stringer brought a “citizen suit” under the CWA, 33 U.S.C. § 1365, as well as constitutional takings claims under 42 U.S.C. § 1983. She also sued the Mayor asserting he retaliated against her. The Defendants filed a motion to dismiss which the trial court granted. Stringer appealed.

The CWA creates a regime of water pollution regulation that harnesses state and federal power but also allows citizen suits. However, such citizen suits are not permitted if the applicable state is already prosecuting comparable enforcement actions. A state statute is “comparable” to the CWA so long as the state law contains comparable penalty provisions, has the same overall goals, provides interested citizens a meaningful opportunity to participate at significant stages of the decision-making process, and has adequate safeguards. The Louisiana Sanitary Code provides no formal or structured means for interested citizens to become aware of LDOH’s enforcement efforts, nor any mechanism by which they can call for further action. However, LEQA’s enforcement mechanisms provide for interested parties to obtain “periodic notice” of “all violations, compliance orders and penalty assessments,” because it mandates public comment before a proposed settlement is finalized, and because it permits third parties to “intervene in an adjudicatory hearing, or petition for an adjudicatory hearing if none is held.” However, LDEQ was not the focus of the Defendants’ diligent prosecution argument in the district court. Further, whether LDEQ has “diligently” pursued a comparable action under § 1319(g) may be “a fact-intensive question that can only be answered after the proper development of a record.”  As a result, the CWA claims should not have been dismissed. However, Stringer’s §1983 takings claim had a one-year statute of limitations. Stringer’s complaint confirms she was aware of the pertinent underlying facts as early as November 2011. A cause of action accrues when the plaintiff learns the facts giving rise to her injury. As a result, such claims were properly dismissed. Finally, Stringer’s First Amendment retaliation claim was also time-barred.

If you would like to read this opinion click here. Panel consists of Justices Elrod, Duncan and Wilson. Opinion by Justice Duncan.

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.