Plaintiff Gas Station did not plead proper standing for “takings” claim, but given a chance to fix it.

State of Texas v Momin Properties, No. 01-12-00854-CV, (Tex. App. Houston [1st Dis.] June 6, 2012)

This is an inverse condemnation case brought up via interlocutory appeal from a denial of a plea to the jurisdiction. The State built an overpass on the road next to which the Plaintiff’s property abutted and they brought suit. The State filed a plea to the jurisdiction arguing Momin did not present any evidence that the construction impeded direct access to the two public roads adjacent to their property. The trial court denied the plea and the State appealed.

Momin owns a gas station at an intersection which had four access entries, two on each road of the intersection. The State constructed a raised overpass over the intersection and traffic traveling North (which became a frontage road) was switched to the overpass and the State closed off the ground-level portion of the frontage road; however, the other roadway remained open to the gas station.  The State provided an aerial photograph of the after construction status of the roadway, which made it into the opinion.

The court went through inverse condemnation and Chapter 21 of the Property Code analysis for eighteen pages and ultimately determined the State provided evidence of access and Momin did not rebut so it did not allege jurisdictional facts.  The denial should not have occurred.  However, the important part of this opinion is only found in the conclusion paragraph whereby the court determined that since Momin had evidence but did not file it timely (and the trial court therefore did not consider it) the court of appeals remanded instead of dismissing, which allows Momin another bite at the apple.

If you would like to read this opinion please click here.