Alan Schrock v. City of Baytown

• Court: Court of Appeals of Texas
• Decided: June 27, 2019
• Docket: 01-17-00442-CV
• Status: Published

Opinion

Opinion issued June 27, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00442-CV ——————————— ALAN SCHROCK, Appellant V. CITY OF BAYTOWN, Appellee

On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1007923

OPINION

Appellant, Alan Schrock, challenges the trial court’s judgment, rendered after

a jury trial, in favor of appellee, City of Baytown (the “City”), in Schrock’s suit against the City for taking his property1 and for a declaratory judgment.2 In two

issues, Schrock contends that the trial court erred in granting the City a directed

verdict on his claims.

We affirm in part and reverse and remand in part.

Background

This is the second appeal we have heard involving these parties.3 In his

previous appeal, Schrock challenged the trial court’s rendition of summary judgment

against him on his regulatory-taking and declaratory-judgment claims.4 We held

that the trial court erred in granting the City summary judgment and dismissing

Schrock’s claims, and we reversed the trial court’s judgment and remanded the case

to the trial court for further proceedings consistent with our opinion.5

In his second amended petition, Schrock alleged that in 1993, he purchased a

house at 606 Vista Avenue in the City to use as a rental property (the “property”),

which he did until approximately January 2010. Each time that Schrock leased the

property to a new tenant, the City required, before it would connect utility services,

including water service, in the tenant’s name, that the tenant pay a deposit and

1 See U.S. CONST. amend. V; TEX. CONST. art. I, § 17. 2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011. 3 See Schrock v. City of Baytown, No. 01-13-00618-CV, 2015 WL 8486504 (Tex. App.—Houston [1st Dist.] Dec. 10, 2015, pet. denied) (mem. op.). 4 See id. at *1, *4–9. 5 See id.

2 provide a copy of the lease agreement related to the property. Thus, whenever a new

tenancy began, Schrock provided the City with a copy of the lease agreement, either

by furnishing his new tenant with an extra copy to give to the City or by giving a

copy of the lease agreement directly to the City himself.

In 2009, the City notified Schrock that he owed it $1,999.67 for unpaid utility

services provided by the City to the property for ten of Schrock’s prior tenants,

dating back to 1993. The City gave Schrock copies of the relevant billing invoices,

listing the names and account numbers of his prior delinquent tenants. The City

demanded that Schrock pay the outstanding sum within fourteen days to avoid

having a lien placed on the property. Schrock disputed the charges for utility

services and requested an administrative hearing.

After a hearing, the City reduced the amount owed by Schrock to $1,157.39

for unpaid utility bills that had accrued over the preceding four years, rather than the

preceding sixteen years. And it gave Schrock fourteen days to pay. Although after

the administrative hearing, the City sent Schrock’s attorney a notice detailing its

decision, Schrock’s attorney misfiled the notice. Because Schrock was not aware of

the City’s decision, he did not pay the sum assessed by the City, and on June 1, 2009,

the City filed a lien against the property for unpaid utility services that it had

provided directly to Schrock’s tenants who had previously resided at the property.

According to Schrock, the City failed to perfect its lien or provide him with notice

3 of the lien or his right to appeal. And the City continued to provide utility services,

including water service, to the property until January 2010, when, pursuant to an

ordinance, the City refused to provide services to Schrock’s new tenant.6

In 1991, the City had enacted an ordinance requiring landlords who wished to

prevent the City from filing liens against their rental properties and discontinuing

utility services to those properties to submit a “declaration” that their properties were

rental properties, which they did not wish to be security for their tenants’ utility

bills.7

Even so, according to Schrock, he complied with the City’s ordinance each

time that he leased the property to a new tenant because he provided a copy of the

lease agreement to the City, either directly or through his tenant. And the City

charged new tenants a higher deposit to connect utility services to the property

6 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(g) (1967) (amended 1991) (“No water, garbage or sewer services shall be provided to property encumbered by a lien filed pursuant to this section.”). 7 See id. § 98-65(i) (amended 1991) (“The owner of any property, which property is rented to another and such tenant carries [C]ity water, sewer or garbage collection services in the tenant’s name, may prevent the [C]ity from using that property as security for the water, sewer and garbage collection service charges for service to that property and from filing any lien on such property under this section by filing with the [C]ity utility billing division a declaration in writing specifically naming the service address of that property and declaring such to be rental property, which the owner does not wish to be security for the water, sewer and garbage collection service charges for service to that property.”).

4 because of their status as tenants.8 Thus, Schrock alleged that the City, at all times,

had notice that Schrock used the property as rental property. Also, Schrock asserted

that he had complied with the Texas Local Government Code, which provides that

a “municipality’s lien shall not apply to bills for service connected in a tenant’s name

after notice by the property owner to the municipality that the property is rental

property.”9 The Local Government Code prohibits requiring, as a condition of

connecting service, a third-party guarantee of a customer’s utility bill or requiring,

as a condition of connecting or continuing service, a customer to pay for service

previously furnished to another customer at the same address.10

Later, in 2011, the City amended its ordinance, removing the requirement that

a landlord file a “declaration.” Rather, if the City “knows” that a property is

occupied by a tenant, it may not file a lien against the property; however, it may

report the tenant’s delinquency to a credit bureau.11 In 2012, the City further

8 See id. § 98-65(i)(2) (amended 1991) (when rental declaration on file “the [C]ity shall collect a deposit in the amount of $125.00”); see also Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-56(a), (b) (1967) (amended 2011) (“Whenever a consumer desires to establish service with the utility billing division, he shall tender to such division . . . the proper deposit. . . . A residential consumer occupying a single-family dwelling house shall be required to place on deposit the amount of $50.00 if he is the owner of the dwelling house; however, a residential consumer occupying a single-family dwelling house shall be required to place on deposit the amount of $200.00 if he is not the owner of the dwelling house.”). 9 See TEX. LOC. GOV’T CODE ANN. § 552.0025(e). 10 See id. § 552.0025(a), (b). 11 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(d)(4) (1967) (amended 2011) (“No lien for water charges, garbage collection charges, or sewer 5 amended its ordinance, allowing utility services to continue to be provided to a

property in accordance with the Local Government Code.12

Schrock brought regulatory-taking13 and declaratory-judgment14 claims

against the City. Regarding his regulatory-taking claim, Schrock alleged that since

January 2010, the City had refused to provide water service to the property, and

without water service, Schrock was not able to use the property as a rental property.

Accordingly, Schrock was denied all economically viable use of the property, and

the property fell into disrepair and became uninhabitable. Schrock never received

any compensation from the City for its regulatory taking of his property.

Schrock further alleged that the City’s actions, in the enactment and

enforcement of its ordinance,15 constituted an unreasonable interference with his

right to use and enjoy the property and an “unlawful exercise of police

charges shall be placed on a property if . . . [t]he [C]ity knows the property to be a single-family dwelling house and the delinquent water charges, garbage collection charges, or sewer charges to be for services provided to a residential consumer who is not the owner of the property.”); see id. § 98-65(i) (1967) (amended 2011) (repealing former subsection (i), entitled “Rental property,” and renumbering former subsection (j), entitled “Effect of section,” as subsection (i)). 12 See id. § 98-65(g) (1967) (amended 2012) (“No water, garbage or sewer services shall be provided to property encumbered by a lien filed pursuant to this section, except as otherwise required by . . . Local Government Code § 552.0025.”). 13 See U.S. CONST. amend. V; TEX. CONST. art. I, § 17. 14 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011. 15 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(g), (i) (amended 1991).

6 power . . . . which primarily and adversely affected a small number of landlords of

single[-]family residences.” According to Schrock, from 1991 to 2012, the City filed

eighteen liens against rental properties, but only eight remained, including the lien

on his property.16 He argued that the City’s enforcement of its ordinance was not

“in response to a great public necessity,” but constituted an “attempt to coerce a

small number of landlords into paying their tenants’ water bills” out of convenience

because it was difficult for the City to collect from tenants who had moved. Schrock,

on his regulatory-taking claim, sought “all actual damages resulting from the [City’s]

inverse condemnation of his [p]roperty.”

Regarding his declaratory-judgment claim, Schrock sought a declaration that

the City’s enforcement of its ordinance17 against him in 2010 “resulted in the inverse

condemnation of [his] property for which no just compensation [was] paid.” Further,

Schrock sought a declaration that certain sections of the City’s ordinance,18 prior to

their amendment, were “invalid, illegal, and/or unconstitutional” and conflicted with

the Local Government Code.19 And he sought a “clarification as to the validity of

[the City’s] utility lien” as well as a “clarification as to his rights under the current

16 It is undisputed that in June 2013, the City released its lien against the property. 17 See id. 18 See id. 19 See TEX. LOC. GOV’T CODE ANN. § 552.0025.

7 version” of the City’s ordinance20 and as to whether the City “c[ould] lawfully

prevent [his] tenants from obtaining utility service[s] at the [p]roperty.”

In its fourth amended answer, the City generally denied Schrock’s claims and

asserted certain affirmative defenses.

At trial, Schrock testified that in 1993, he purchased the property, which was

a ten-year-old mobile home, for $21,000. In 2006 or 2007, Schrock spent $5,000 to

$5,500 renovating the property, which included rebuilding the outer walls, installing

and painting new siding, and installing new insulation. The trial court admitted into

evidence photographs of the property after the renovation, but before any utility

services were suspended by the City. In Schrock’s opinion, the property would

“have held up another 10 or 15 years with the new siding on it.”

According to Schrock, he always intended to use the property as a rental

property. And since 1993, he consistently rented the property, with never more than

a one or two week gap in between tenants. In other words, Schrock “always ha[d]

another tenant to move in” to the property, and that tenant would pay Schrock a

deposit prior to the previous tenant even vacating. Regarding rent, Schrock testified

that his tenants paid less than $2,000 a month and were generally lower-income

individuals. The last tenant with whom Schrock signed a lease agreement was

20 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(g) (amended 2011 and 2012).

8 required to pay a $400 deposit and $600 each month for rent. Schrock never foresaw

a reason that would prevent him from using the property as a rental property.

Schrock explained that the lease agreement that he signed with each of his

tenants required the tenant to provide and pay for his own utility services related to

the property. And his tenants provided the City with a copy of their lease agreements

when seeking the connection of utility services. According to Schrock, tenants were

required to provide $125 deposits to the City for the connection of utility services,

including water service, while owners of properties were only required to pay $50

deposits.

Schrock further testified that on March 31, 2009, the City sent him a letter, a

copy of which the trial court admitted into evidence, stating that, as the owner of the

property, he was responsible for “outstanding balances total[ing] . . . $1,999.67”

related to unpaid utility services provided by the City to Schrock’s tenants from 1993

through 2009. The City, in its letter, essentially wanted him to claim responsibility

for the outstanding balances of ten of his previous tenants based on a 1991 City

ordinance, which provided, at that time:

Sec. 98-65. Liens.

(a) Water. Liens for unpaid water charges shall be filed according to the following:

(1) After the [C]ity has terminated a customer’s water . . . , the supervisor of the utility billing division shall file a lien on the property served by the terminated water service and in the amount the customer 9 whose service was terminated owed to the [C]ity for water service at the time of the termination of services.

....

(g) Reconnection of services. No water, garbage or sewer services shall be provided to property encumbered by a lien filed pursuant to this section. However, the supervisor of the utility billing division shall be authorized to reconnect water, garbage and wastewater services if the customer agrees in writing to pay the accrued water and wastewater charges for [the] property . . . .

(i) Rental Property.

(1) The owner of any property, which property is rented to another and such tenant carries [C]ity water, sewer or garbage collection services in the tenant’s name, may prevent the [C]ity from using that property as security for the water, sewer and garbage collection service charges for service to that property and from filing any lien on such property under this section by filing with the [C]ity utility billing division a declaration in writing specifically naming the service address of that property and declaring such to be rental property, which the owner does not wish to be security for the water, sewer and garbage collection service charges for service to that property.[21]

According to Schrock, he did not know of the ordinance’s requirement of a “Rental

Property Declaration” until he received the City’s letter. And he had no idea that he

could possibly be responsible for the outstanding balances for utility services owed

by his tenants. In fact, his lease agreement with his tenants stated that they were to

pay for utility services; Schrock “had nothing to do with it.” And Schrock had never

21 The trial court admitted into evidence a copy of the City’s ordinance prior to its amendments in 2011 and 2012. See id. § 98-65(a), (g), (i) (amended 1991).

10 received a letter from the City like the March 31, 2009 letter, and he owned

approximately thirty-five rental properties by 2009.

Schrock also noted, in regard to the City’s ordinance, that it conflicted with

Texas law, which states that an “entity . . . cannot hold a third party responsible for

somebody else’s bill. In other words, the City had an agreement with the customer

and they c[ould not] come along and make a third party responsible for th[e]

[customer’s] bill.” Essentially, the City “couldn’t do what they were doing.”22

In response to the City’s March 31, 2009 letter, Schrock sought a hearing “to

contest the amount due and owing and/or [the] proposed lien” on the property. On

April 21, 2009, a hearing was held during which Schrock was told that “the[] law”

stated that “landlords of properties had to pay the water bills from [their] tenants that

didn’t pay [them].” Schrock agreed that, at the time of the hearing, he was the owner

of the property and he had not yet filed with the City a “Rental Property Declaration”

for the property.

22 The City concedes in its briefing that its ordinance, prior to its amendment in 2011 and 2012, “contradicted state law.” See TEX. LOC. GOV’T CODE ANN. § 552.0025 (“Connection, Disconnection, and Liability for Municipal Utility Services”). The trial court admitted into evidence a copy of the City’s amended ordinance, which created four “[e]xemptions” from the placement of liens for utility charges on a property and removed the requirement of a “Rental Property Declaration.” See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(d), (g), (i) (amended 2011 and 2012).

11 Following the hearing, on April 24, 2009, the City sent Schrock a letter

regarding its “[d]ecision concerning the appeal of the imposition of lien for unpaid

utility services.” That letter, a copy of which the trial court admitted into evidence,

states:

After having considered the testimony received at the hearing held on April 21, 2009, regarding the City’s decision to impose a lien for unpaid utility services and after reviewing the billing records together with the Code of Ordinances of the City of Baytown, [the City] ha[s] determined that a lien in the following amount[] should be placed on the property as indicated hereinbelow:

Property Address Account Number Lien Amount

606 Vista, 1071-00625 $1,157.39 Baytown, Texas

Such amount reflects the cost of utility services provided to the above-referenced property for only the past four years and excludes all late charges. . . .

This decision is based upon the following facts presented at the hearing, namely that:

1. . . . Schrock admitted that he was the owner of the property at all times during which the unpaid utility services were provided by the City;

2. [T]he property has not been and cannot be declared as a homestead;

3. [T]here was no evidence presented contesting [the] above-referenced amount[] for services provided to . . . [the] property; and

12 4. [T]here was no rental declaration on file for the time period in question declaring that . . . Schrock d[id] not wish the property to be used as security for the utility service[] charges for services to the property.

To avoid the imposition of [a] lien, . . . Schrock . . . must pay the above-referenced amount and send a check for the same to[] . . . [the City] on or before fourteen calendar days from the date of this letter. If payment has not been received or a payment arrangement has not been made within such time frame, the City shall no longer be stayed from the imposition of the lien in the amount referenced hereinabove. If a lien is filed, please be advised that the cost of the same will be included and such lien will bear interest . . . .

Schrock stated that he did not receive the City’s letter or become aware of it because

his attorney misfiled the letter in another client’s file. However, Schrock also

testified that he knew about the City’s letter, and he knew that if he paid $1,157.39

a lien would not be attached to the property. According to Schrock, he was

financially able to pay the lien at that time.

On May 1, 2009, Schrock submitted a “Rental Property Declaration” related

to the property, asserting that the property constituted a rental property and that he

did not “wish [the property] to be security for the water, sewer and garbage collection

service charges for service to th[e] property.” Although Schrock explained that the

City always knew that the property constituted a rental property based on the

deposits it had received from his tenants and the lease agreements that were required

to be provided for such deposits, he still completed the declaration based on the

advice of his attorney.

13 On May 27, 2009, the City executed a lien, and on June 1, 2009, the City filed

the lien in the Harris County real property records. At the time that the City executed

and filed its lien, a tenant lived at the property and the City was providing utility

services, including water service, to the property. Thus, Schrock explained that he

was not initially harmed by the execution of the lien, and he was not even aware of

its attachment to the property in June 2009. Schrock noted that, at the time that the

City executed and filed its lien, he had already filed the required “Rental Property

Declaration” for the property.

At the end of December 2009, Schrock’s tenant moved out of the property,

and Schrock signed a lease agreement with a new tenant, George Cuellar, on or about

January 10, 2010. When Cuellar moved to the property, he sought to have water

service to the property “turned on.” On or about January 20, 2010, Cuellar’s wife,

went to the City, with a copy of Cuellar’s lease agreement, but a City employee told

her that water service to the property could not be connected until the City spoke

with Schrock. When Schrock spoke to the City that same day, he was told that the

City would not provide utility services, including water service, to the property

unless Schrock paid the lien attached to the property. According to Schrock, this

was the first time that he ever became aware that the City had attached a lien to the

property. At that time, Schrock was told by a City employee that it would cost

$1,251.59 to pay off the lien, interest, and the filing fee.

14 When Schrock went to pay the lien; however, he was told that he was required

to pay $1,415.76, rather than $1,251.59, because Schrock was also liable for the

unpaid “water bill” of his last tenant who vacated the property in December 2009.

In other words, Schrock was told, in addition to paying the lien amount, he was

responsible for “pay[ing] [his] last tenant’s water bill before [his] new tenant c[ould]

get [water] service.” According to Schrock, his tenant’s unpaid water bill did not

accrue until after the City had filed its lien on June 1, 2009; and, essentially, he was

being asked to pay more to have the lien released than the actual cost of the lien

itself. At trial, the court admitted into evidence a copy of certain e-mails between

employees of the City, which confirmed that the unpaid water bill of Schrock’s last

tenant “was not included in the lien.”

Although Schrock was financially able to pay the $1,415.76 amount in

January 2010, he did not bring a check with him to cover the additional amount

subsequently requested by the City. Thus, Schrock did not pay the $1,415.76 on or

about January 20, 2010, and the City refused to connect utility services, including

water service, to the property that day. When Cuellar learned that he could not obtain

utility services for the property, he immediately moved out of the property. As a

result, Schrock refunded Cuellar his $600 rent payment and his $400 deposit, and he

reimbursed Cuellar for the deposits that Cuellar had made for gas and electricity. At

the time that Cuellar vacated the property, Schrock did not have another tenant to

15 rent the property. Schrock explained that he was harmed because the lien placed on

the property prevented any new tenant from securing utility services, including water

service for the property.

On October 19, 2010, Schrock, on the advice of his attorney, attempted to pay

the lien attached to his property for a second time. On that day, he was told that he

would have to pay $1,502.01, in order to have utility services turned back on at the

property, which included the lien amount, interest, a filing fee, and his last tenant’s

unpaid water bill. Schrock noted that the lien amount remained unchanged, even

though in May 2010, one of his former tenants paid his delinquent utilities account

with the City. Additionally, when Schrock went to make his lien payment, the City

informed him that he would need to also address his “other 19 accounts” related to

the other nineteen rental properties that he owned at the time. In other words,

according to Schrock, he was told that he “had to pay everything that had ever been

on any of [his] rent houses,” which “could have been as much as 19 times” $1,500.

Thus, Schrock believed that paying the lien attached to the property would not

ultimately resolve his situation with the City.

Schrock further testified that at the time that he attempted to pay the lien for

the second time, in October 2010, the property was still vacant and he could not rent

it to anyone because the City would not provide utility services to a new tenant. And

Schrock explained that if he did rent the property to a new tenant, but had not paid

16 the lien attached to the property, the City would simply deny services to that new

tenant, as it had in the past.

Regarding the condition of the property, after the City stopped providing

utility services to the property in January 2010, it became difficult for Schrock to

maintain without a tenant living there. For instance, although Schrock “check[ed]”

on the property once a week, rats gained access to the property through “the back of

the cabinets,” under the stove, and “the heating unit in the hall.” The rats went “up

in[to] the ceiling” and ate holes. Additionally, mold grew in various places inside

the property, and in 2012, the property was “broken into by kids a couple of times

[who] pretty much tore up [the] inside.” According to Schrock, those individuals

“tore the walls up,” tore out the light fixtures and ceiling fans, “busted windows,”

ripped the doors off of cabinets, “pulled . . . pieces of the flooring up,” and

vandalized the air-conditioning unit. Further, Schrock testified that because the

property was vacant for an extended period of time, the City “disconnect[ed]

the . . . power wires,” “pull[ed] the [electrical] meter out,” and removed the gas

meter.

The trial court admitted into evidence photographs of the property taken in

2012 after the property had been vandalized. Schrock explained that the

photographs depicted the damage due to the vandalism, but also the damage done

by rats and mold that had grown at the property. The trial court also admitted into

17 evidence photographs of the property taken “[v]ery recent[ly],” within three weeks

or a month of trial.

Schrock testified that if the City had provided utility services, including water

service, to the property then the property would have been occupied and the

aforementioned damages would not have occurred. In fact, according to Schrock,

no one had ever broken into any of his other rental properties, which all had tenants.

In Schrock’s opinion, the property was not currently habitable. And in order to make

the property habitable, he would need to repair all of the walls, install new

appliances, install a new air-conditioning system, replace the carpet, have “electric

reconnected,” “test the gas pipes . . . and have the gas meter reconnected,” and

potentially replace some wood on the exterior of the property. Schrock explained

that it would cost $1,100 to have the “power wires” reconnected and the electrical

meter replaced. It would also cost $400 to have the gas meter put back in, and

approximately $4,922.52 to replace the air-conditioning system. Additionally,

because of the rats, mold, and vandalism at the property, it would cost $8,500 to

repair the drywall, approximately $2,000 to replace the carpet, and approximately

$500 to replace the refrigerator, which had “complete[ly] rust[ed]” because the

property was vacant. According to Schrock, nothing was “wrong” with the property

before the City stopped providing utility services. At the time of trial, the property

did not have utility services, including water service connected.

18 Schrock further explained that, in general, he had accumulated approximately

twenty to thirty rental properties in the City and he originally planned to purchase

three houses a year until he reached the age of sixty-five. At that time, he would

begin selling the properties and using the money from those sales to support himself.

However, once the City stopped providing utility services to the property in January

2010, he stopped buying rental properties, having bought his last two properties in

2009 or 2010. In Schrock’s opinion, if the City had not tried to make him pay for

his tenant’s unpaid utility services then he would have continued with his investment

plan.

On cross-examination, Schrock noted that he had never had difficulty securing

utility services for his own home. And he testified that in 2012 he, based on the

advice of a City employee, actually requested that “the water [for the

property] . . . be turned on, like an emergency turn-on,” by the City so that he could

clean the property to remove the mold and rats. The trial court admitted into

evidence a copy of Schrock’s faxed request, dated February 28, 2012, which states:

“To the City of Baytown [W]ater Dept. Please turn on the water service at [the

property] ASAP using my 888 account with the floating deposit.” When he made

the request, Schrock was unsure whether the City would actually restore water

service to the property.

19 Schrock further testified that on or about March 2, 2012, the City restored

water service at the property, and on April 30, 2012, Schrock requested that the City

turn off the water service. After he had the water service to the property temporarily

restored, Schrock did not try to rent the property to a new tenant because it was

“unrentable” or unlivable, as the electrical wires had been disconnected, there was

no gas for the property, and it was infested with rats. According to Schrock, a City

employee told him that “it was a mistake for [the City] to [have] turn[ed] [the] water

back on” in 2012.

On June 13, 2013, the City released the lien attached to the property, and it

filed the release in the Harris County real property records. Schrock conceded that

he did not know whether, at the time of trial, the City would provide utility services,

including water service, to a new tenant at the property since it was no longer

encumbered by the lien. When asked whether the City ever said that he could not

rent out the property, Schrock responded, “Not those words, no.” However, Schrock

also testified that although the lien no longer encumbered his property, the City had

never told him that he was not responsible for his tenants’ unpaid utility bills, and

he did not know of anything preventing the City from attaching another lien to the

property. Schrock never paid the lien that the City attached to his property in 2009.

Kevin Troller, assistant city manager for the City, testified that, in accordance

with the City’s ordinance, if a property owner had a “Rental Property Declaration”

20 on file, the City “would go after the tenant” for any unpaid utility services. However,

if there was no “Rental Property Declaration” on file, then the City “would go after

the [property] owner if [his] tenant did not pay.” Troller conceded that irrespective

of a “Rental Property Declaration” the City would have been aware whether the

individual seeking utility services, including water service, at a given property was

a property owner or a tenant and whether a property was a rental property because

the deposit required for the installation of utility services depended on whether an

individual was a property owner or a tenant. When asked whether “the City would

be on notice at that point whether or not the property is [a] rental property,” Troller

stated, “Yes, sir.”

Troller further testified that the City’s ordinance was amended after 2010, and

it no longer requires that “a third-party or [property] owner . . . be held responsible

for someone else’s [utility] bill.” Troller stated that he was not aware that the City’s

ordinance, prior to its amendment, conflicted with Texas law.

After Schrock rested his case, the City orally moved for a directed verdict on

Schrock’s regulatory-taking claim, arguing that there were no disputed issues of

material fact related to Schrock’s regulatory-taking claim; the question of whether

there was a regulatory taking was a question of law; the City’s action did not

constitute a taking as a matter of law; and there was no evidence that the City was

responsible for Schrock’s damages because “a substantial amount of the

21 damages . . . related to vandalism of the property” were unrelated to the purported

regulatory taking. The trial court granted the City’s motion and entered a directed

verdict, holding that Schrock take nothing on his regulatory-taking claim and his

declaratory-judgment claim against the City. Schrock filed a motion for new trial,

which was overruled by operation of law.

Standard of Review

We review the trial court’s grant of directed verdict de novo. JP Morgan

Chase Bank, N.A., v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018);

City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). Directed verdicts are

reviewed under the same legal-sufficiency standard that applies to no-evidence

summary judgments. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.

2013). We sustain a legal-sufficiency point when (1) there is a complete absence of

evidence regarding a vital fact, (2) rules of law or evidence preclude according

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to

prove a vital fact is no more than a scintilla, or (4) the evidence conclusively

establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. We

consider the evidence in the light most favorable to the nonmovant, crediting

evidence a reasonable jury could credit and disregarding contrary evidence and

inferences unless a reasonable jury could not. Del Lago Partners, Inc. v. Smith, 307

S.W.3d 762, 770 (Tex. 2010); City of Keller, 168 S.W.3d at 827. Conclusive

22 evidence cannot be disregarded. See Dow Chem. Co. v. Francis, 46 S.W.3d 237,

241 (Tex. 2001); see also City of Keller, 168 S.W.3d at 816 (“Evidence is conclusive

only if reasonable people could not differ in their conclusions . . . .”).

The nonmovant bears the burden of identifying evidence before the trial court

that raises a genuine issue of material fact as to each challenged element of his cause

of action. See Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). A directed

verdict in favor of the defendant is proper if the plaintiff “fails to present evidence

raising a fact issue essential to [his] right of recovery,” or the plaintiff “admits or the

evidence conclusively establishes a defense to [his] cause of action.” Prudential Ins.

Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). We may affirm

a directed verdict on any ground that supports it. RSL-3B-IL, Ltd. v. Prudential Ins.

Co. of Am., 470 S.W.3d 131, 136 (Tex. App.—Houston [1st Dist.] 2015, pet.

denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 443 (Tex. App.—Dallas

2002, pet. denied). However, if there is evidence that raises a material fact issue on

any theory of recovery, a directed verdict is improper and the case must be reversed

and remanded. See Cox v. S. Garrett, L.L.C., 245 S.W.3d 574, 578 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (citing Szczepanik v. First S. Tr. Co., 883 S.W.2d

648, 649 (Tex. 1994)).

23 Regulatory-Taking Claim

In his first issue, Schrock argues that the trial court erred in granting a directed

verdict that Schrock take nothing on his regulatory-taking claim because “there were

material fact issues to be determined by the jury.”

The Fifth Amendment of the United States Constitution provides that “private

property [shall not] be taken for public use, without just compensation.” U.S.

CONST. amend. V. This constitutional protection has been incorporated through the

Fourteenth Amendment to apply to the individual states. Williamson Cty. Reg’l

Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 175 n.1 (1985);

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 n.19 (Tex. 2012).

Similarly, Article I, section 17 of the Texas Constitution guarantees that “[n]o

person’s property shall be taken, damaged, or destroyed for or applied to public use

without adequate compensation being made.” TEX. CONST. art. I, § 17(a). Our case

law on takings under the Texas Constitution is consistent with federal jurisprudence,

and we consider federal and state takings claims together, as the analysis for both is

complementary. Hearts Bluff Game Ranch, 381 S.W.3d at 477; see also Sheffield

Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004) (although

takings provisions in state and federal constitutions worded differently, they are

comparable).

24 A property owner whose property has been taken, damaged, destroyed for, or

applied to public use without adequate compensation may bring an inverse

condemnation claim. City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646

(Tex. 1971); City of Hous. v. Boyle, 148 S.W.3d 171, 177 (Tex. App.—Houston [1st

Dist.] 2004, no pet.); see also City of Hous. v. Carlson, 451 S.W.3d 828, 831 (Tex.

2014) (where property owner believes compensation due, he may seek redress via

inverse-condemnation claim). The claim is denominated as “inverse” because the

property owner asserts the claim. City of Hous. v. Texan Land & Cattle Co., 138

S.W.3d 382, 387 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (internal

quotations omitted).

Takings can be classified as either physical or regulatory takings. Mayhew v.

Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). A physical taking occurs

when the government authorizes an unwarranted physical occupation of an

individual’s property, whereas a regulatory taking occurs when a government’s

regulation injures the property’s value or usefulness. See Lowenberg v. City of Dall.,

168 S.W.3d 800, 801–02 (Tex. 2005); Mayhew, 964 S.W.2d at 933; see also City of

Dall. v. Blanton, 200 S.W.3d 266, 271 (Tex. App.—Dallas 2006, no pet.) (“A

compensable regulatory taking can occur when [the] government[] . . . imposes

restrictions that either deny a property owner all economically viable use of his

25 property or unreasonably interfere[] with the owner’s right to use and enjoy the

property.”).

The United States Supreme Court and the Texas Supreme Court have

recognized several theories of regulatory takings. See Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528, 538–40 (2005); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 838–

39 (Tex. 2012); City of Sherman v. Wayne, 266 S.W.3d 34, 42–44 (Tex. App.—

Dallas 2008, no pet.) (“At least three theories of regulatory takings have been

discussed by the United States Supreme Court and the Texas Supreme Court . . . .”).

Relevant to the instant case, a regulation may constitute a taking necessitating

compensation if, under an “essentially ad hoc, factual inquir[y],” the government

action unreasonably interferes with a property owner’s use and enjoyment of the

property. Sheffield, 140 S.W.3d at 672–73 (citing Penn Cent. Transp. Co. v. City of

N.Y., 438 U.S. 104, 124 (1978)).

To determine whether a regulatory taking has resulted from the government’s

unreasonable interference with a property owner’s right to use and enjoy his

property, courts must consider the following three factors: (1) the economic impact

of the regulation on the property owner; (2) the extent to which the regulation

interferes with the property owner’s distinct investment-backed expectations; and

(3) the character of the governmental action. Id. (citing Penn Cent., 438 U.S. at

124); Mayhew, 964 S.W.2d at 935–36; City of Hous. v. Maguire Oil Co., 342 S.W.3d

26 726, 736 & n.7 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). These factors

are not exclusive and no single factor is determinative. Day, 369 S.W.3d at 840;

Sheffield, 140 S.W.3d at 672–73. A regulatory-taking analysis requires

consideration of all the relevant surrounding circumstances. Sheffield, 140 S.W.3d

at 672–73.

A. Economic Impact

The first factor, the economic impact of the regulation on the property owner,

“compares the value that has been taken from the property with the value that

remains in the property.” Mayhew, 964 S.W.2d at 935–36. In other words, the

proper inquiry considers the diminution in the value of the property brought on by

the regulation in question. Edwards Aquifer Auth. v. Bragg, 421 S.W.3d 118, 139

(Tex. App.—San Antonio 2013, pet. denied). Lost profits and lost investment are

relevant factors to consider in assessing the value of a property and the severity of

the economic impact on a property owner. Sheffield, 140 S.W.3d at 677; see also

Cty. of El Paso v. Navar, 511 S.W.3d 624, 631 (Tex. App.—El Paso 2015, no pet.)

(“Lost profits are one relevant factor to consider in assessing the severity of the

economic impact of governmental action, especially when the property affected has

had a proven, profitable use at the time of the government action.”); Wayne, 266

S.W.3d at 45 (“[I]t is incorrect to say that profit is not a consideration in determining

the value of property.”); Park v. City of San Antonio, 230 S.W.3d 860, 869 (Tex.

27 App.—San Antonio 2007, pet. denied); see also Schrock v. City of Baytown, No.

01-13-00618-CV, 2015 WL 8486504, at *5 (Tex. App.—Houston [1st Dist.] Dec.

10, 2015, pet. denied) (mem. op.) (explaining “lost rents” consideration in

economic-impact analysis and recognizing “a property owner has a constitutionally

protected property interest in lost rents”). Further, a property owner’s inability to

continue renting his property due to the government’s regulation may constitute

evidence of the economic impact. See Village of Tiki Island v. Ronquille, 463

S.W.3d 562, 578–79 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

Schrock testified that he purchased the property in 1993 for $21,000. In 2006

or 2007, he spent $5,000 to $5,500 renovating the property, which included

rebuilding the outer walls, installing and painting new siding, and installing new

insulation. The trial court admitted into evidence photographs of the property after

the renovation, but before any utility services were suspended by the City. Schrock

opined that the property would “have held up another 10 or 15 years with the new

siding on it.”

From 1993 until January 2010, Schrock consistently rented the property, with

never more than a one or two week gap in between tenants. According to Schrock,

he “always ha[d] another tenant to move in” to the property. Schrock testified that

his tenants paid less than $2,000 a month and his last tenant was required to pay

$600 a month in rent and a $400 deposit.

28 In January 2010, Schrock signed a lease agreement with a new tenant, Cuellar.

However, when Cuellar, on or about January 20, 2010, sought to have water service

to the property “turned on,” the City refused to do so unless Schrock paid the cost of

the lien that the City had attached to his property as well as interest, a filing fee, and

the unpaid “water bill” of one of Schrock’s former tenants that accrued after the City

had filed its lien. Because Schrock could not pay the amount owed on or about

January 20, 2010, Cuellar vacated the property immediately because the City refused

to provide water service. As a result, Schrock refunded Cuellar his $600 rent

payment and his $400 deposit, and he reimbursed Cuellar for the deposits that he

had made for gas and electricity. At the time that Cuellar vacated the property,

Schrock did not have another tenant to rent the property. According to Schrock, the

lien placed on the property prevented any new tenant from securing utility services,

including water service, for the property, and thus, prevented Schrock from renting

the property from January 2010 onward.

Schrock further testified that after the City stopped providing utility services

to the property in January 2010, it became difficult to maintain the property without

a tenant living there. For instance, rats gained access to the property through “the

back of the cabinets,” under the stove, and “the heating unit in the hall.” The rats

also went “up in[to] the ceiling” and ate holes. Additionally, mold grew in various

places inside the property, and in 2012, the property was “broken into by kids a

29 couple of times [who] pretty much tore up [the] inside.” Those individuals “tore the

walls up,” tore out the light fixtures and ceiling fans, “busted windows,” ripped the

doors off of cabinets, “pulled . . . pieces of the flooring up,” and vandalized the

air-conditioning unit. Further, because the property was vacant for an extended

period of time, the City “disconnect[ed] the . . . power wires,” “pull[ed] the

[electrical] meter out,” and removed the gas meter. According to Schrock, the

property became uninhabitable.

Schrock also explained that if the City had provided utility services, including

water service, to the property then the property would have been occupied and the

aforementioned damages would not have occurred. In fact, no one had ever broken

into any of his other rental properties, which all had tenants.

In order to make the property habitable again, Schrock testified that it would

cost $1,100 to have the “power wires” reconnected and the electrical meter replaced.

It would also cost $400 to have the gas meter put back in, and approximately

$4,922.52 to replace the air-conditioning system. Additionally, because of the rats,

mold, and vandalism at the property, it would cost $8,500 to repair the drywall,

approximately $2,000 to replace the carpet, and approximately $500 to replace the

refrigerator, which had “complete[ly] rust[ed]” because the property was vacant.

The City argues that the trial court properly granted a directed verdict on

Schrock’s regulatory-taking claim because Schrock provided “no evidence of the

30 value of the [p]roperty . . . to permit a fact finder to determine the difference in value

[of the property] before and after the [purported] taking.” However, such an

argument unnecessarily limits the considerations that are to be taken into account in

determining the economic impact of the regulation on Schrock.

As noted above, relevant to the economic-impact inquiry is the diminution in

the value of the property brought on by the City’s regulation; lost profits and lost

investment suffered by Schrock because of the City’s regulation; Schrock’s ability,

or lack thereof, to continue renting the property because of the City’s regulation; and

whether the property had a proven, profitable use at the time. See Sheffield, 140

S.W.3d at 677; Navar, 511 S.W.3d at 631; Bragg, 421 S.W.3d at 139; Wayne, 266

S.W.3d at 45; Park, 230 S.W.3d at 869; Ronquille, 463 S.W.3d at 578–79. These

are disputed issues of material fact to be answered by the fact finder, i.e., the jury in

the instant case, prior to the trial court’s ultimate determination of the economic

impact of the City’s regulation on Schrock. See City of Dall. v. Millwee-Jackson

Joint Venture, No. 05-13-00278-CV, 2014 WL 1413559, at *7 (Tex. App.—April 4,

2014, pet. denied) (mem. op.) (“Whether the City’s action rises to the level of a

regulatory taking requires resolution of several disputed facts necessary for

application of the legal principles necessary to establish a regulatory taking[]

claim.”); Wayne, 266 S.W.3d at 39, 45–46 (regulatory-taking case with jury trial);

see also City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 645 (Tex. 2013)

31 (evidence raised factual disputes with regard to extent of government’s intrusion

where property owner, regarding economic impact, asserted property had

diminished in value due to government’s moratorium); Schrock, 2015 WL 8486504,

at *5–6 (recognizing fact issues regarding economic impact of regulation at

summary-judgment stage). Notably, although the ultimate determination of whether

a government’s regulation constitutes a compensable taking is a question of law,

“determining whether a [government] regulation is unconstitutional requires the

consideration of a number of factual issues” and we must depend on the fact finder

“to resolve disputed facts regarding the extent of the governmental intrusion on the

property” and the “diminution in [a] property’s value.” Mayhew, 964 S.W.2d at

932–33, 936–37; Wayne, 266 S.W.3d at 45–46 (jury must make underlying factual

determinations regarding extent of government intrusion and diminution in

property’s value); see also Schrock, 2015 WL 8486504, at *5.

And as for the City’s argument that Schrock cannot testify as to the value of

his property or the required expenses, we disagree. See Redman Homes, Inc. v. Ivy,

920 S.W.2d 664, 669 (Tex. 1996); Wayne, 266 S.W.3d at 49 n.12; Blanton, 200

S.W.3d at 274–75 (property owner’s testimony concerning value and required

expenses relevant to economic-impact inquiry); see also BMTP Holdings, 409

S.W.3d at 645 (considering property owner’s assessment of diminished value of

32 property due to government’s intrusion in considering whether factual dispute raised

regarding economic impact on owner).

B. Interference with Investment-Backed Expectations

Under the second factor, the extent to which the regulation interferes with the

property owner’s distinct investment-backed expectations, “[t]he existing and

permitted uses of the property constitute the ‘primary expectation’ of the [property

owner] that is affected by regulation.” Mayhew, 964 S.W.2d at 936. And the

“[h]istorical uses of the property are critically important when determining the

reasonable investment-backed expectation of the [property owner].” Id. at 937

(emphasis added). Existing property regulations at the time a property is purchased

and knowledge of those existing regulations should be considered in determining

whether a regulation interferes with investment-backed expectations. Id. at 936–38.

The purpose of the investment-backed expectation requirement is to assess whether

the property owner has taken legitimate risks with the reasonable expectation of

being able to use the property, which, in fairness and justice, would entitle him to

compensation. Bragg, 421 S.W.3d at 142.

The trial court admitted into evidence a copy of the City’s ordinance in effect

when Schrock purchased the property in 1993.23 See generally City of Farmers

Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.—Dallas 2007, no pet.) (court

23 See id. § 98-65(a), (g), (i) (amended 1991).

33 may also take judicial notice of City ordinance); Blackwell v. Harris Cty., 909

S.W.2d 135, 140 n.2 (Tex. App.—Houston [14th Dist.] 1995, writ denied). Schrock

testified that when he bought the property in 1993, he intended to always use it as a

rental property, and at the time of purchase, he had no reason to believe that he would

not be able to use the property as a rental property. Further, from 1993 until January

2010, Schrock consistently rented the property, with never more than a one or two

week gap in between tenants. In other words, Schrock “always ha[d] another tenant

to move in” to the property, and that tenant would pay Schrock a deposit prior to the

previous tenant even vacating. Schrock never foresaw a reason that would prevent

him from using the property as a rental property.

Schrock also testified that, in general, he had accumulated approximately

twenty to thirty rental properties and he originally planned to purchase three houses

a year until he reached the age of sixty-five. At that time, he would begin selling the

properties and using the money from those sales to support himself. However, once

the City stopped providing utility services to the property in January 2010, he

essentially stopped buying rental properties, having bought his last two additional

properties in 2010. At the time of trial, Schrock had bought only those two houses

in the last seven years. In Schrock’s opinion, if the City had not tried to make him

pay for his tenant’s unpaid utility services, then he would have continued with his

investment plan.

34 Regarding the City’s ordinance, Schrock explained that on March 31, 2009,

the City sent him a letter, stating that, as the owner of the property, he was

responsible for “outstanding balances total[ing] . . . $1,999.67” related to unpaid

utility services provided by the City to Schrock’s tenants from 1993 through 2009.

The City, in its letter, essentially wanted Schrock to claim responsibility for the

outstanding balances of ten of his previous tenants based on the City’s ordinance.24

According to Schrock, he did not know of the ordinance’s requirement of a “Rental

Property Declaration” until he received the City’s letter. And he had no idea that he

could possibly be held responsible for the outstanding balances for utility services

owed by his tenants. In fact, his lease agreement with his tenants stated that they

were to pay for utility services; Schrock “had nothing to do with it.” Schrock had

never received a letter from the City, like the March 31, 2009 letter, and he owned

The City in its briefing states, as it did in the trial court, that it does not dispute

that “Schrock bought the [p]roperty to rent to tenants.” However, when considering

the second factor, i.e., the extent to which the regulation interferes with Schrock’s

distinct investment-backed expectations, we are not only concerned with the nature

of Schrock’s investment-backed expectation, but also with the reasonableness of that

expectation. Mayhew, 964 S.W.2d at 936–38. And Schrock’s knowledge of existing

24 See id.

35 regulations is relevant to the ultimate determination of the extent that the City’s

ordinance inferred with his investment-backed expectations. Id. at 936.

These are disputed issues of material fact to be answered by the fact finder,

i.e., the jury in the instant case, prior to the trial court’s ultimate determination of the

extent to which the City’s ordinance interferes with Schrock’s distinct

investment-backed expectations. See Millwee-Jackson Joint Venture, 2014 WL

1413559, at *6–7 (fact finder required to resolve several fact issues including

reasonableness of property owner’s investment-backed expectation); see also

Mayhew, 964 S.W.2d at 932–33, 936–37 (although ultimate determination of

whether government’s regulation constitutes compensable taking constitutes

question of law, “determining whether a [government] regulation is unconstitutional

requires the consideration of a number of factual issues” and we must depend on fact

finder “to resolve disputed facts”); Schrock, 2015 WL 8486504, at *5–6

(recognizing, at summary-judgment stage, fact issues regarding extent to which

regulation interferes with Schrock’s distinct investment-backed expectations).

C. Character of Governmental Action

Regarding the third factor, the character of the governmental action, “the

nature of the regulation is not as factually dependent as the other two [factors].”

Bragg, 421 S.W.3d at 144 (internal quotations omitted). And as stated in our

previous opinion, generally, “where courts have found direct governmental actions

36 in which the governmental defendant had regulatory authority over the matter

causing the [property owner’s] harm, they have generally found a taking.” Schrock,

2015 WL 8486504, at *5 (internal quotations omitted); see also Hearts Bluff Game

Ranch, 381 S.W.3d at 480. Here, “it is undisputed that the City had direct regulatory

authority over the matter causing [Schrock’s] harm.” Schrock, 2015 WL 8486504,

at *5.

However, this is not the only consideration under the third factor. Rather,

relevant to the character of the governmental action is evidence that the government

acted illegitimately or in bad faith and whether it directed the governmental action

in order to injure the property owner, rather than for its purported purpose. See

Hearts Bluff Game Ranch, 381 S.W.3d at 487–88 (evidence of bad faith “given due

weight” as is evidence government “targeted one particular landowner”); FLCT, Ltd.

v. City of Frisco, 493 S.W.3d 238, 272 (Tex. App.—Fort Worth 2016, pet. denied)

(considering whether City intentionally targeted property owner); Navar, 511

S.W.3d at 631; Comunidad Balboa, LLC v. City of Nassau Bay, 402 S.W.3d 479,

486 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“Whether the

governmental entity acted in bad faith has often been a consideration in determining

whether a governmental action gives rise to a compensable taking.”); Blanton, 200

S.W.3d at 279 (relevant to character of governmental action whether City made

decision to take unfair advantage of property owner); see also Hallco Tex., Inc. v.

37 McMullen Cty., 221 S.W.3d 50, 77–78 (Tex. 2006) (Hecht, J. dissenting) (noting

timing of county’s ordinance suggested may have been directed at injuring property

owner rather than protecting county and considering whether evidence supported

county’s assertion ordinance adopted to protect health and safety of residents);

Sheffield, 140 S.W.3d at 678–79 (evidence City attempted to take unfair advantage

of developer when decision to rezone not made until developer closed on purchase

of property).

Schrock testified that even though he, prior to May 1, 2009, had never

submitted a “Rental Property Declaration,” in order to assert that he did not “wish

[the property] to be security for the water, sewer and garbage collection service

charges for service to th[e] property,” the City always knew that the property

constituted a rental property based on the amount of a deposit it had received from

Schrock’s tenants for the initiation of utility services, including water service.

Further, every time that the City provided one of Schrock’s tenants with utility

services, that tenant gave the City a copy of the lease agreement for the property.

Similarly, Troller, assistant city manager for the City, explained that

irrespective of whether a property owner ever filed a “Rental Property Declaration,”

the City was aware whether an individual seeking utility services, including water

service, at a given property was a property owner or a tenant and whether a property

constituted a rental property because the amount of deposit required for the initiation

38 of utility services depended on whether a given individual was a property owner or

a tenant. Further, when asked whether “the City would be on notice at that

point[, i.e., at the time a deposit for utility services was paid,] whether or not the

property [was a] rental property,” Troller stated, “Yes, sir.”

Schrock also testified that the City’s ordinance, prior to its amendment in 2011

and 2012, conflicted with Texas law,25 and the State concedes the same. And the

record reveals that the City’s ordinance, in 2011 and 2012, was amended to create

exemptions from the placement of liens for unpaid utility services and to remove the

“Rental Property Declaration” requirement entirely. 26 However, according to

Schrock, at his April 21, 2009 hearing “to contest the amount due and owing and/or

[the] proposed lien” on the property, he was told by the City that “the[] law” stated

that “landlords of properties had to pay the water bills from [their] tenants that didn’t

pay [them].” Yet, Troller, who conducted Schrock’s hearing and signed the City’s

April 24, 2009 letter regarding “the appeal of the imposition of lien for unpaid utility

services,” testified that that he was not aware that the City’s ordinance, prior to its

amendment, conflicted with Texas law.

25 See TEX. LOC. GOV’T CODE ANN. § 552.0025. 26 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(g) (amended 2011 and 2012).

39 Further, Schrock testified that when he attempted to pay the lien attached to

the property on October 19, 2010, the amount of the lien remained unchanged, even

though in May 2010, one of his former tenants actually paid a delinquent utilities

account with the City. And when Schrock went to make his lien payment in October

2010, the City informed him that he would need to also address his “other 19

accounts” related to the other nineteen rental properties that he owned at the time.

In other words, according to Schrock, he was told that he “had to pay everything that

had ever been on any of [his] rent houses,” which “could have been as much as 19

times” $1,500. Thus, Schrock believed that paying the lien attached to the property

would not ultimately resolve his situation with the City.

Based on the foregoing, whether the City acted illegitimately or in bad faith

and whether it directed its governmental action in order to injure Schrock, rather

than for its purported purpose, are disputed issues of material fact to be answered by

the fact finder, i.e., the jury in the instant case, prior to the trial court’s ultimate

determination of the character of the governmental action. See Mayhew, 964 S.W.2d

at 932–33, 936–37 (although ultimate determination of whether government’s

regulation constitutes compensable taking constitutes question of law, “determining

whether a [government] regulation is unconstitutional requires the consideration of

a number of factual issues” and we must depend on the fact finder “to resolve

disputed facts”); Millwee-Jackson Joint Venture, 2014 WL 1413559, at *6 (three

40 factors must be evaluated by trial court, as well as any other relevant consideration,

to determine whether there has been regulatory taking, but “fact finder will be [the

one] required to resolve several fact issues”); Wayne, 266 S.W.3d at 45–46 (jury

must make underlying factual determinations); see also Hallco, 221 S.W.3d at 78

(Hecht, J. dissenting) (“Whether a regulatory taking has occurred is, as we have said,

a question of law, but it must be answered after the relevant facts have been

determined.”).

D. Other Considerations

Although in determining whether a regulatory taking has resulted from the

government’s unreasonable interference with a property owner’s right to use and

enjoy his property, a court may consider the aforementioned three factors and any

“surrounding circumstances” or other “relevant circumstances,” little light has been

cast as to what such relevant circumstances may be. See Sheffield, 140 S.W.3d at

672–73 (internal quotations omitted); see also Day, 369 S.W.3d at 840; Bragg, 421

S.W.3d at 145–46 (noting under “[o]ther [c]onsiderations” that courts may “consider

the nature of the [property owner’s] business beyond the financial considerations

analyzed under the economic[-]impact factor”). Because Schrock has not asserted

that there were “material fact issues to be determined by the jury” related to any such

other necessary considerations, we do not express an opinion whether any

41 “surrounding circumstances” or other “relevant circumstances” raise additional fact

issues. See TEX. R. APP. P. 47.1.

E. Damages

In his second amended petition, Schrock, on his regulatory-taking claim,

sought “all actual damages resulting from the [City’s] inverse condemnation of his

[p]roperty.” The City, however, argues that the trial court properly granted a

directed verdict on Schrock’s regulatory-taking claim because Schrock “provided no

evidence of the value of the [p]roperty” on “[a]ny other date after 1993 when

Schrock purchased the property,” and thus, provided no evidence of damages.

In a condemnation proceeding, the burden to establish the value of the

condemned property is on the condemnee. Religious of Sacred Heart of Tex. v. City

of Hous., 836 S.W.2d 606, 613 (Tex. 1992); State v. Moore Outdoor Props., L.P.,

416 S.W.3d 237, 247 (Tex. App.—El Paso 2013, pet. denied). The term “[m]arket

value” means “the price the property will bring when offered for sale by one who

desires to sell, but is not obliged to sell, and is bought by one who desires to buy,

but is under no necessity of buying.” City of Harlingen v. Estate of Sharboneau, 48

S.W.3d 177, 182 (Tex. 2001). Texas recognizes three approaches to determining

the market value of a condemned property: the comparable sales approach, the

income approach, and the cost approach. State v. Cent. Expressway Sign Assocs.,

302 S.W.3d 866, 871 (Tex. 2009); Sharboneau, 48 S.W.3d at 182; see also City of

42 San Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 247–48 (Tex. App.—

San Antonio 2006, pet. denied) (discussing method of calculating damages in

regulatory-taking case). The comparable sales method is the favored approach, but

when comparable sales figures are not available, courts will accept testimony based

on the other two methods. Cent. Expressway, 302 S.W.3d at 871. The cost approach

looks to the cost of replacing the condemned property minus depreciation. Id. The

income approach is appropriate when the property would be priced according to the

rental income it generates. Id. All three methods are designed to approximate the

amount a willing buyer would pay a willing seller for the property. Id.

Texas law allows income from a business operated on the property to be

considered in two situations: (1) when the taking, damaging, or destruction of

property causes a material and substantial interference with access to one’s property

and (2) when only a part of the land has been taken, so that lost profits may

demonstrate the effect on the market value of the remaining land and improvements.

Id.; Dall. Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 39 (Tex. App.—

Dallas 2012, pet. denied).

As previously noted, a property owner is qualified to testify as to the market

value of his property. See Redman Homes, 920 S.W.2d at 669.

Schrock testified that he purchased the property in 1993 for $21,000. In 2006

or 2007, he spent $5,000 to $5,500 renovating the property, which included

43 rebuilding the outer walls, installing and painting new siding, and installing new

insulation. The trial court admitted into evidence photographs of the property after

the renovation, but before any utility services were suspended by the City. Schrock

opined that the property would “have held up another 10 or 15 years with the new

From 1993 until January 2010, Schrock consistently rented the property, with

never more than a one or two week gap in between tenants. According to Schrock,

he “always ha[d] another tenant to move in” to the property. Schrock testified that

his tenants paid less than $2,000 a month and his last tenant paid $600 a month in

rent and a $400 deposit.

In January 2010, Schrock signed a lease agreement with a new tenant, Cuellar.

However, when Cuellar, on or about January 20, 2010, sought to have water service

to the property “turned on,” the City refused to do so unless Schrock paid the cost of

the lien that the City had attached to his property as well as interest, a filing fee, and

the unpaid “water bill” of one of Schrock’s former tenants that accrued after the City

had filed its lien. When Schrock could not pay the amount owed on or about January

20, 2010, Cuellar vacated the property immediately because the City would not

provide water service to the property. As a result, Schrock refunded Cuellar his $600

rent payment and his $400 deposit, and Schrock reimbursed Cuellar for the deposits

that he had made for gas and electricity. At the time that Cuellar vacated the

44 property, Schrock did not have another tenant to rent the property. According to

Schrock, the lien placed on the property prevented any new tenant from securing

utility services, including water service, for the property, and thus, prevented

Schrock from renting the property from January 2010 onward.

Schrock further testified that after the City stopped providing utility services

to the property in January 2010, it became difficult to maintain the property without

a tenant living there. For instance, rats gained access to the property through “the

back of the cabinets,” under the stove, and “the heating unit in the hall.” The rats

also went “up in[to] the ceiling” and ate holes. Additionally, mold grew in various

places inside the property, and in 2012, the property was “broken into by kids a

couple of times [who] pretty much tore up [the] inside.” Those individuals “tore the

walls up,” tore out the light fixtures and ceiling fans, “busted windows,” ripped the

doors off of cabinets, “pulled . . . pieces of the flooring up,” and vandalized the

air-conditioning unit. Further, because the property was vacant for an extended

period of time, the City “disconnect[ed] the . . . power wires,” “pull[ed] the

[electrical] meter out,” and removed the gas meter. According to Schrock, the

Schrock also explained that if the City had provided utility services, including

water service, to the property, then the property would have been occupied and the

45 aforementioned damages would not have occurred. In fact, no one had ever broken

into any of his other rental properties, which all had tenants.

In order to make the property habitable again, Schrock testified that it would

cost $1,100 to have the “power wires” reconnected and the electrical meter replaced.

It would also cost $400 to have the gas meter put back in, and approximately

$4,922.52 to replace the air-conditioning system. Additionally, because of the rats,

mold, and vandalism at the property, it would cost $8,500 to repair the drywall,

approximately $2,000 to replace the carpet, and approximately $500 to replace the

refrigerator, which had “complete[ly] rust[ed]” because the property was vacant.

Based on the foregoing, we conclude that there is evidence that raises a

material fact issue related to Schrock’s damages.

* * *

As previously noted, in reviewing a case in which a verdict has been directed,

we must view the evidence in the light most favorable to the party against whom the

verdict was rendered and disregard all contrary evidence and inferences. Del Lago

Partners, 307 S.W.3d at 770; Qantel Bus. Sys., Inc. v. Custom Controls Co., 761

S.W.2d 302, 303–04 (Tex. 1988). If we conclude there is any evidence of probative

value which raises a material fact issue, then we must reverse the judgment and

remand the case to allow the jury to determine the issue. Qantel Bus. Sys., 761

S.W.3d at 303–04; Harris Cty. v. Walsweer, 930 S.W.2d 659, 664 (Tex. App.—

46 Houston [1st Dist.] 1996, writ denied); see also Wright v. Gen. Motors Corp., 717

S.W.2d 153, 155 (Tex. App.—Houston [1st Dist.] 1986, no writ) (“If an issue of fact

is raised by the evidence, the case must go to the jury even [if] the court might set

aside the verdict on the ground that it was not supported by sufficient evidence.”).

Considering the evidence in the light most favorable to Schrock, we conclude,

as noted above, that there is at least some evidence of probative force to raise several

material fact issues related to Schrock’s regulatory-taking claim. Accordingly, we

hold that the trial court erred in granting the City a directed verdict on Schrock’s

regulatory-taking claim.

We sustain Schrock’s first issue.

Declaratory-Judgment Claim

In his second issue, Schrock argues that the trial court erred in granting a

directed verdict that Schrock take nothing on his declaratory-judgment claim

because it does not merely restate his regulatory-taking claim, he challenges the

validity of certain sections of the City’s ordinance, the City’s release of its lien on

the property did not resolve the issue of the lien’s validity, and Schrock seeks

clarification of his rights under the current version of the City’s ordinance.

In his second amended petition, related to his declaratory-judgment claim,

Schrock sought a declaration that the City’s enforcement of its ordinance,27 prior to

27 See id. § 98-65(g), (i) (amended 1991).

47 its amendment, against him in 2010 “resulted in the inverse condemnation of [his]

property for which no just compensation [was] paid”; a declaration that certain

sections of the City’s ordinance,28 prior to its amendment, were “invalid, illegal,

and/or unconstitutional” and conflicted with the Local Government Code;29 a

“clarification as to the validity of [the City’s] utility lien”; and a “clarification as to

his rights under the current version” of the City’s ordinance30 and as to whether the

City “c[ould] lawfully prevent [his] tenants from obtaining utility service[s] at the

[p]roperty.”

After Schrock rested his case, the City orally moved for a directed verdict,

arguing that there were no disputed issues of material fact related to Schrock’s

regulatory-taking claim; the question of whether there was a regulatory taking was

a question of law; the City’s action did not constitute a taking as a matter of law; and

there was no evidence that the City was responsible for Schrock’s damages because

“a substantial amount of the damages . . . related to vandalism of the property” were

unrelated to the purported regulatory taking. While it is clear from the record that

the City orally moved for a directed verdict on Schrock’s regulatory-taking claim, it

does not appear that the City argued that it was entitled to a directed verdict on

28 See id. 29 See TEX. LOC. GOV’T CODE ANN. § 552.0025. 30 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(g) (amended 2011 and 2012).

48 Schrock’s declaratory-judgment claim. Nevertheless, following the City’s motion,

the trial court entered a directed verdict in favor of the City, holding that Schrock

take nothing on his regulatory-taking claim and his declaratory-judgment claim.

Under such circumstances, we treat the trial court’s directed verdict on Schrock’s

declaratory-judgment claim as a sua sponte directed verdict. See Harvey v. Elder,

191 S.W.2d 686, 687 (Tex. App.—San Antonio 1945, writ ref’d); Allen v. State

Farm Lloyds, No. 05-16-00108-CV, 2017 WL 3275912, at *14 (Tex. App.—Dallas

Aug. 1, 2017, pet. denied) (mem. op.) (where directed-verdict motion specifies claim

and trial court dismisses all claims, “[w]e treat this as a sua sponte directed verdict”);

Johnson v. Whitehurst, 652 S.W.2d 441, 446 (Tex. App.—Houston [1st Dist.] 1983,

writ ref’d n.r.e.) (“It has long been Texas law that a trial court may render a directed

verdict on its own motion where there are no disputed issues of fact.”).

Governmental immunity protects political subdivisions of the State, including

cities. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

Governmental immunity, composed of both immunity from liability and immunity

from suit, implicates a trial court’s jurisdiction, and when it applies, precludes suit

against a governmental entity. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74

S.W.3d 849, 853 (Tex. 2002); City of Wimberley Bd. of Adjustment v. Creekhaven,

LLC, No. 03-18-00169-CV, 2018 WL 5074580, at *3 (Tex. App.—Austin Oct. 18,

49 2018, no pet.) (mem. op.). Absent an express waiver of governmental immunity,

courts do not have subject-matter jurisdiction over suits against political

subdivisions of the State. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006);

Creekhaven, 2018 WL 5074580, at *3.

The Declaratory Judgment Act (“DJA”) gives Texas courts the power to

“declare rights, status, and other legal relations whether or not further relief is or

could be claimed.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.003(a). It provides

that a person “whose rights, status, or other legal relations are affected” by a statute

or an ordinance “may have determined any question of construction or validity

arising under” the statute or ordinance and “obtain a declaration of rights, status, or

other legal relations thereunder.” See id. § 37.004(a). The DJA waives

governmental immunity in a suit that involves the validity of a city’s ordinance. City

of Dall. v. Albert, 354 S.W.3d 368, 378 (Tex. 2011); City of El Paso v. Heinrich,

284 S.W.3d 366, 373 n.6 (Tex. 2009) (“For claims challenging the validity of

ordinances or statutes, however, the [DJA] requires that the relevant governmental

entities be made parties, and thereby waives immunity.”).

A declaratory judgment is appropriate only if a justiciable controversy exists

as to the rights and status of the parties and the controversy will be resolved by the

declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).

There must be a real and substantial controversy involving a genuine conflict of

50 tangible interests and not merely a theoretical dispute. City of Dall. v. VSC, LLC,

347 S.W.3d 231, 240 (Tex. 2011); Bonham State Bank, 907 S.W.2d at 467. The

DJA gives a court no power to decide hypothetical or contingent situations or to

determine questions not essential to the decision of an actual controversy, even if

such questions may in the future require adjudication. City of Richardson v. Gordon,

316 S.W.3d 758, 761 (Tex. App.—Dallas 2010, no pet.); Robinson v. Alief Indep.

Sch. Dist., 298 S.W.3d 321, 324–25 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied).

A case becomes moot if, since the time of its filing, a controversy ceases to

exist because the issues are no longer “live” or the parties lack a legally cognizable

interest in the outcome. Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex.

2012) (internal quotations omitted). Courts may not decide moot controversies

because the Texas Constitution prohibits advisory opinions on abstract questions of

law. See Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex. 2010).

In his second amended petition, Schrock first sought a declaration that the

City’s enforcement of its ordinance,31 prior to its amendment, against him in 2010

“resulted in the inverse condemnation of [his] property for which no just

compensation [was] paid.” However, the DJA is “not available to settle disputes

already pending before a court.” BHP Petroleum Co. v. Millard, 800 S.W.2d 838,

31 See id. § 98-65(g), (i) (amended 1991).

51 841 (Tex. 1990) (internal quotations omitted). And a trial court lacks jurisdiction

over a declaratory-judgment claim that merely restates a plaintiff’s claim for a

taking. Ronquille, 463 S.W.3d at 583 (“Because [plaintiff’s] Declaratory Judgment

Act claim merely restates her takings claim, we hold that the trial court lacks

jurisdiction over her request for declaratory judgment.”); City of Anson v. Harper,

216 S.W.3d 384, 395 (Tex. App.—Eastland 2006, no pet.); see also City of Hous. v.

Williams, 216 S.W.3d 827, 829 (Tex. 2007) (“[I]n every suit against a governmental

entity for money damages, a court must first determine the parties’ contract or

statutory rights; if the sole purpose of such a declaration is to obtain a money

judgment, immunity is not waived [by the DJA].”). Thus, we conclude that the trial

court lacked jurisdiction over this portion of Schrock’s declaratory-judgment claim.

Schrock next sought a declaration that certain sections of the City’s

ordinance,32 prior to its amendment, were “invalid, illegal, and/or unconstitutional”

and conflicted with the Local Government Code.33 However, any declaratory relief

sought regarding the validity of a city’s ordinance is rendered moot by the

amendment of the ordinance’s challenged provisions. See Speer v. Presbyterian

Children’s Home & Serv. Agency, 847 S.W.2d 227, 228–30 (Tex. 1993) (claim of

discriminatory practices in hiring adoption service workers that sought only

32 See id. 33 See TEX. LOC. GOV’T CODE ANN. § 552.0025.

52 declaratory and injunctive relief became moot when entity stopped offering adoption

services); Gordon, 316 S.W.3d at 762 (claim for declaratory-judgment moot where

“city charter provision about which [plaintiff] complain[ed] . . . [was] amended” so

that no future violations of that provision c[ould] occur”); Trulock v. City of

Duncanville, 277 S.W.3d 920, 925–28 (Tex. App.—Dallas 2009, no pet.) (claim city

ordinance unconstitutional rendered moot when City modified ordinance to delete

challenged provisions). Here, it is undisputed that the City’s ordinance at issue in

this case was amended in 2011 and 2012 and the specific sections of the City’s

ordinance about which Schrock seeks a declaration, in this portion of his

declaratory-judgment claim, have either been amended or removed entirely. See

Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98 65(g), (i) (amended 2011

and 2012) (amending subsection (g), removing previous subsection (i), and no

longer requiring “Rental Property Declaration”). Thus, we conclude that Schrock’s

request for a declaration that certain pre-amendment sections of the City’s ordinance

were “invalid, illegal, and/or unconstitutional” and conflicted with the Local

Government Code is moot.

Regarding Schrock’s request for a “clarification as to the validity of [the

City’s] utility lien,” it is undisputed, and the evidence shows, that on June 13, 2013,

the City released the lien attached to the property, and that release was filed in the

Harris County real property records. Schrock, however, asserts that the City’s

53 release of the lien does not render this portion of his declaratory-judgment claim

moot because “the City has never confirmed that [he] is not liable for his tenants’

water bills.”

The trial court admitted into evidence a copy of the City’s release of the lien

that was previously attached to the property, and a copy of a June 18, 2013 letter that

the City sent to Schrock regarding the release of its lien. That letter states: “Please

find enclosed ‘Release of Utility Lien’ for the above referenced property. The lien

is paid in full . . . .” (Emphasis added.) Further, the City’s ordinance, as amended

in 2011 and 2012, provides:

(a) Water. Liens for unpaid water charges shall be filed according to the following:

(1) After the [C]ity has terminated a customer’s water pursuant to subsection 98-62(i) or after the [C]ity terminates water service at the customer’s request, the supervisor of the utility billing division shall file a lien on the property served by the terminated water service and in the amount the customer whose service was terminated owed to the [C]ity for water service at the time of the termination of services. ....

(d) Exemptions. No lien for water charges, garbage collection charges, or sewer charges shall be placed on a property if:

(1) A customer owes less than $50.00 for the aggregate sum of water charges, garbage collection charges, and sewer charges;

(2) The customer is not delinquent in payment for water charges, garbage collection charges, or sewer charges; 54 ...

(4) The [C]ity knows the property to be a single-family dwelling house and the delinquent water charges, garbage collection charges, or sewer charges to be for services provided to a residential consumer who is not the owner of the property.

(g) Reconnection of services. No water, garbage or sewer services shall be provided to property encumbered by a lien filed pursuant to this section, except as otherwise required by V.T.C.A., Local Government Code § 552.0025. . . .

See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(a), (d), (g) (amended

2011 and 2012) (emphasis added) (amending subsections (d) and (g), repealing

former subsection (i), entitled “Rental property,” renumbering former subsection (j),

entitled “Effect of section,” as subsection (i), and no longer requiring “Rental

Property Declaration”).

Under the amended ordinance, the City may not place a lien on a property if

the City knows that the property is a single-family dwelling and the delinquent utility

charges associated with the property are for services provided to a residential

customer who is not the property’s owner, like a tenant. We conclude that Schrock’s

request for a clarification as to the validity of the lien previously attached to the

property, but now removed, is moot. See Wright v. Hooker, No. 12-17-00095-CV,

2017 WL 6350137, at *9 (Tex. App.—Tyler Dec. 13, 2017, no pet.) (mem. op.)

(“Here, EMS released the lien on [plaintiff’s] claims prior to the filing of this actions;

thus, her claim for declaratory relief that EMS filed the lien in violation of Chapter 55 55 was moot prior to its filing . . . .”); Englobal U.S., Inc. v. Jefferson Refinery,

L.L.C., No. 09-14-00210-CV, 2015 WL 8476545, at *2 (Tex. App.—Beaumont Dec.

10, 2015, no pet.) (mem. op.) (in declaratory-judgment action part of dispute

regarding validity of lien became moot after lien released); Target Corp. v. Advanced

Alarm Sys., Inc., No. 09-06-322-CV, 2007 WL 1628101, at *1–2 (Tex. App.—

Beaumont June 7, 2007, no pet.) (mem. op.) (removal of lien by settlement rendered

moot issue of lien’s validity); cf. Schrock, 2015 WL 8486504, at *9 (holding

summary-judgment burden not met related to Schrock’s declaratory-judgment claim

regarding validity of lien where copy of lien release not contained in record and no

evidence lien release filed in county’s real property records); Jackson v. City of

McKinney, No. 05-00-00062-CV, 2001 WL 946811, at *4 (Tex. App.—Dallas Aug.

22, 2001, no pet.) (mem. op.) (release of lien did not render claim moot because

absent declaratory judgment City could reassert liens).

Finally, Schrock sought a “clarification as to his rights under the current

version” of the City’s ordinance34 and as to whether the City “c[ould] lawfully

prevent [his] tenants from obtaining utility service[s] at the [p]roperty.” Although

the DJA waives immunity for certain claims, it is not a general waiver of

governmental immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d

34 See Baytown, Tex., Code of Ordinances, ch. 98, art. III, § 98-65(g) (amended 2011 and 2012). 56 384, 388 (Tex. 2011); Heinrich, 284 S.W.3d at 370. Rather, the DJA provides a

limited waiver of immunity for claims challenging the validity or constitutionality

of a statute or ordinance. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b);

Heinrich, 284 S.W.3d at 373 n.6; Tex. Dep’t of Ins. v. Green, No. 01-15-00321-CV,

2016 WL 2745063, at *3 (Tex. App.—Houston [1st Dist.] May 10, 2016, pet.

denied) (mem. op.); see also Harvel v. Tex. Dep’t of Ins.–Div. of Workers’ Comp.,

511 S.W.3d 248, 253 (Tex. App.—Corpus Christi 2015, pet. denied) (DJA’s waiver

of governmental immunity is “narrow”). Notably, the DJA does not waive

governmental immunity when a plaintiff seeks a declaration of his rights under a

statute, ordinance, or other law. Tex. Dep’t of Trans. v. Sefzik, 355 S.W.3d 618, 621

(Tex. 2011). Schrock’s request for a “clarification as to his rights under the current

version” of the City’s ordinance and as to whether the City “c[ould] lawfully prevent

[his] tenants from obtaining utility service[s] at the [p]roperty,” does not constitute

a request for a declaration concerning the validity of the City’s ordinance such that

the City’s immunity is waived. See Creekhaven, 2018 WL 5074580, at *4. Thus,

we conclude that the trial court lacked subject-matter jurisdiction over this portion

of Schrock’s declaratory-judgment claim.

Based on the foregoing, we hold that the trial court did not err in granting the

City a directed verdict on Schrock’s declaratory-judgment claim.

We overrule Schrock’s second issue.

57 In his second amended petition, Schrock sought attorney’s fees pursuant to

the DJA. In a portion of his second issue, Schrock asserts that “[b]ecause the trial

court dismissed Schrock’s declaratory[-]judgment claim in error, [he] is entitled to

attorney’s fees pursuant to the [DJA].” Because we have held that the trial court did

not err in granting the City a directed verdict on Schrock’s declaratory-judgment

claim and Schrock does not assert that the trial court erred in failing to award him

attorney’s fees, irrespective of whether or not he prevailed on his

declaratory-judgment claim, we need not address this portion of Schrock’s second

issue. See TEX. R. APP. P. 38.1, 47.1; Washington v. Bank of N.Y., 362 S.W.3d 853,

854–55 (Tex. App.—Dallas 2012, no pet.) (party who does not adequately brief a

complaint on appeal waives his issue); see also Indian Beach Prop. Owners’ Ass’n

v. Linden, 222 S.W.3d 682, 706 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(party need not prevail to be awarded attorney’s fees under DJA).

58 Conclusion

We reverse the portion of the trial court’s judgment granting the City a

directed verdict on Schrock’s regulatory-taking claim against it, and we remand a

portion of the case to the trial court for a new trial on Schrock’s regulatory-taking

claim. We affirm the remaining portion of the trial court’s judgment.

Julie Countiss Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.