City of Pharr v. German Garcia, Anna Leal, Domingo Lopez Jr., San Juanita De La Fuente, and Ezequiel Perez

• Court: Court of Appeals of Texas
• Decided: October 20, 2015
• Docket: 13-15-00409-CV
• Status: Published

Opinion

ACCEPTED 13-15-00409-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/20/2015 5:44:33 PM Dorian E. Ramirez CLERK

CASE NO. 13-15-00409-CV

COURT OF APPEALS FILED IN 13th COURT OF APPEALS THIRTEENTH DISTRICT OFCORPUS TEXASCHRISTI/EDINBURG, TEXAS 10/20/2015 5:44:33 PM DORIAN E. RAMIREZ Clerk CITY OF PHARR, Defendant – Appellant

v.

GERMAN GARCIA, ANNA LEAL, DOMINGO LOPEZ, JR., SAN JUANITA DE LA FUENTE, AND EZEQUIEL PEREZ, Plaintiff – Appellee

On Appeal from the 430th Judicial District Court of Hidalgo County, Texas Case No. C-5232-14-J

====================================================== BRIEF OF APPELLANT CITY OF PHARR, TEXAS ======================================================

J. Arnold Aguilar Patricia Ann Rigney State Bar No. 00936270 State Bar No. 24048765

AGUILAR ZABARTE, LLC 990 Marine Drive 118 South Cage Boulevard Brownsville, Texas 78520 Pharr, Texas 78577 Telephone : (956) 504-1100 Telephone : (956) 457-1181 Facsimile : (956) 504-1408 Facsimile : (956) 272-0116 Email: arnold@aguilarzabartellc.com Email: patricia.rigney@pharr-tx.gov

Attorneys for Defendant /Appellant CITY OF PHARR, TEXAS

ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

Defendant/Appellant Attorneys for Defendant/Appellant

City of Pharr, Texas J. Arnold Aguilar AGUILAR ZABARTE, LLC 990 Marine Drive Brownsville, Texas 78520 email: arnold@aguilarzabartellc.com

Patricia Ann Rigney 118 South Cage Blvd. Pharr, Texas 78577 email: patricia.rigney@pharr-tx-gov

Plaintiff/Appellee Attorneys for Plaintiff/Appellee

German Garcia, Anna Leal, Francisco J. Rodriguez Domingo Lopez, Jr., LAW OFFICE OF San Juanita De La Fuente, FRANCISCO J. RODRIGUEZ and Ezequiel Perez 1111 West Nolana, Suite A McAllen, Texas 78504 email: frankr@mcallenlawfirm.com

Jeanne E. Holmes LAW OFFICES OF JEANNE E. HOLMES, P.C. 212 West Nolana McAllen, Texas 78501 email: ljeanneholmes@rgv.rr.com

ii TABLE OF CONTENTS PAGE

IDENTITY OF PARTIES AND COUNSEL ……………………………………...ii

TABLE OF CONTENTS………………………………………………….............iii

INDEX OF AUTHORITIES………………………………………………………vi

STATEMENT REGARDING ORAL ARGUMENT………..……………………..x

RECORD REFERENCES………………………………………………….....…....x

STATEMENT OF THE CASE…………………………………..………………...xi

ISSUES PRESENTED FOR REVIEW……………………………………...……xii

Whether the Trial Court Erred in Denying the Plea to the Jurisdiction?

a. Whether Garcia identified a waiver of the City of Pharr’s sovereign or governmental immunity from suit, including any evidence of a material issue of fact, in order to confer jurisdiction on the District Court below?

b. Whether Garcia identified sufficient factual evidence and legal authority to support a claim of inverse condemnation resulting from a zoning change, in order to establish waiver of the City’s immunity from suit?

c. Whether Garcia identified sufficient factual evidence and legal authority to establish a claim for equitable relief, necessary to establish jurisdiction before the District Court below?

d. Whether Garcia identified sufficient factual evidence and legal authority for a District Court to temporarily enjoin enforcement of rulings by a County Court at Law?

iii e. Whether Garcia identified sufficient factual evidence and legal authority to establish jurisdiction of a District Court to enter a declaratory judgment relating to prior orders of a County Court at Law?

f. Whether the rulings of the County Court at Law are res judicata before the District Court below and this Court?

STATEMENT OF FACTS…………………..……………………………..............1

SUMMARY OF THE ARGUMENT…………………………..…………..............3

ARGUMENT……………………………………………………………….............4

ISSUES RESTATED................................................................................................4

A. Standard of Review…………………………………………………………….5

1. The City of Pharr is immune from suit unless that immunity has been waived by law…………………...………….……5

2. Because the Plea to the Jurisdiction relied on evidence challenging Garcia’s factual pleadings, he was required to identify a fact issue, including evidence, that would establish waiver of the City’s immunity....7

B. Garcia Identified No Factual Evidence or Legal Support to Establish Waiver of Immunity From Suit…...................................................10

1. Without evidence of an intentional taking of Garcia’s property for a public use, he has not identified waiver of immunity for an inverse condemnation claim…………………………..10

2. The District Court does not have jurisdiction to enjoin enforcement of an Order of a County Court at Law..……...….………….16

3. The District Courts does not have jurisdiction to enter declaratory judgment relating to an Order of a County Court at Law………………...19

4. The rulings of the County Court at Law are res judicata before the District Court below and this Court……………..20 iv C. Remand to Allow Garcia to Attempt to Cure Pleading and Evidentiary Defects Would Serve No Purpose and is Not Authorized…….…23

CONCLUSION & PRAYER………………………………………………...........24

CERTIFICATE OF COMPLIANCE..…………………………………….………25

CERTIFICATE OF SERVICE...………………………………………….………26

APPENDIX FOR BRIEF OF APPELLANT CITY OF PHARR, TEXAS……….27

TABLE OF CONTENTS…………………………………………………...28

Order Denying Defendant City of Pharr, Texas’ Plea to the Jurisdiction………………………………………………..TAB A

Findings of Fact and Conclusions of Law, Cause No. CL-08-0136-A, County Court at Law No. 1……………...TAB B

Order of Dismissal Cause No. CL-08-0136-A, County Court at Law No. 1……………...TAB C

v INDEX OF AUTHORITIES

CASES PAGE

Able v. Bloomfield, 6 Tex. 263 (1851)………………………………………….…..5

Allen v. City of Texas City, 775 S.W.2d 863 (Tex. App. – Houston [1st Dist.] 1989, writ denied)………………………………..12

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)……………...……8, 9

Brazos River Auth. v. City of Graham, 354 S.W.2d 99 (Tex. 1962)……….….…..10

Butron v. Cantu, 960 S.W.2d 91 (Tex. App. – Corpus Christi 1997, no pet.)…………………………...…..……18, 20

Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653 (Tex. 2013)………………8

Chrismon v. Brown, 246 S.W.3d 102 (Tex. App. – Houston [14th Dist.] 2007, no pet.)………………………………….23

City of Carrollton v. HEB Parkway S., Ltd., 317 S.W.3d 787 (Tex. App. – Fort Worth 2010, no pet.)…………………………..…………..……13

City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004)………….…………12, 16

City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014)………………………..16

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)………………….…………15

City of Lubbock v. Rule, 68 S.W.3d 853 (Tex. App. – Amarillo 2002, no pet.)…..6

City of Wilmer v. Laidlaw Waste Systems, Inc., 890 S.W.2d 459 (Tex. App. – Dallas 1994), aff'd, 904 S.W.2d 656 (Tex. 1995)………………………8

Corpus Christi Indep. Sch. Dist. v. TL Mech., 2012 Tex. App. LEXIS 2552 (Tex. App. – Corpus Christi Mar. 29, 2012, pet. denied)………………………….6

Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643 (Tex. 1987)……………………..23 vi Estate of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636 (Tex. 1986)……………. ………………………………………...23

Ford Motor Co. v. Cammack, 999 S.W.2d 1 (Tex. App. – Houston [14th Dist.] 1998, pet. denied)………………………………5

Fort Worth & D.C. Ry. v. Ammons, 215 S.W. 2d 407 (Tex. Civ. App. – Amarillo 1948, writ ref’d n.r.e.)………………………………..11

General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001)……………………………………………...……6, 7, 12

Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App. – Houston [1st Dist.] 2012, no pet.)…………………………………….8

Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326 (Tex. App. – Corpus Christi 2002, no pet.)………………………………………6, 7

Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50 (Tex. 2006)……………….22

Hearts Bluff Game Ranch v. State, 381 S.W.3d 468 (Tex. 2012)…………………7

Lloyds Alliance v. Cook, 290 S.W.2d 716 (Tex. Civ. App. – Waco 1956, no writ)………………………………………...18, 20

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012)……….8

Montana v. United States, 440 U.S. 147, 99 S. Ct. 970 (1979)………….........21, 22

McVeigh v. Lerner, 849 S.W.2d 911 (Tex. App. – Houston [1st Dist.] 1993, writ denied)……………………………18, 20

Patel v. City of Everman, 179 S.W.3d 1 Tex. App. – Tyler 2004, pet. denied)…….12

Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646 (1978)…14

Postert v. Calhoun County, 2011 Tex. App. LEXIS 8643 (Tex. App. – Corpus Christi Oct. 27, 2011, pet. denied)………………………….23

Purcell v. Bellinger, 940 S.W.2d 599 (Tex. 1997)………………………………..22 vii Scally v. Detamore, 2001 Tex. App. LEXIS 2527, 2001 WL 392522 (Tex. App. – Houston [1st Dist.] Apr. 19, 2001, pet. denied)………………….18, 20

Sears & Roebuck & Co. v. Marquez, 628 S.W.2d 772 (Tex. 1982)………………23

Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004)..……………………………………………...10, 13, 14

State v. Lueck, 290 S.W.3d 876 (Tex. 2009)……………………………………….9

State v. Ware, 86 S.W.3d 817 (Tex. App. – Austin 2002, no pet.)….……………...11

Switzer v. Smith, 300 S.W. 31 (Tex. Comm'n App. 1927)………………………..18

Tamayo v. Lucio, 2013 Tex. App. LEXIS 8944 (Tex. App. – Corpus Christi July 18, 2013, no pet.)………………………………..8

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)…………………..…....11

Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002)……………………………………………………..…19

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).……………………………………………5, 7, 8, 9, 10

Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994)…………………….19

Texas Highway Dep't v. Weber, 219 S.W.2d 70 (Tex. 1949)……………………..16

Univ. of Tex. v. Ramos, 2012 Tex. App. LEXIS 707 (Tex. App. – Corpus Christi Jan. 26, 2012, pet. denied)……………….…………..9

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006)………………………………6

Westgate Ltd. v. State, 843 S.S.2d 448 (Tex. 1992)……………………….11, 14, 15

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)………..………..6

viii CONSTITUTION, STATUTES & RULES

Tex. Const. art. I, § 17……………………………………………………………..12

TEX. CIV. PRAC. & REMEDIES CODE § 37.002(b)…………………………….19

TEX. CIV. PRAC. & REMEDIES CODE § 65.011………………………………..16

TEX. CIV. PRAC. & REMEDIES CODE § 65.023…………………………….….18

TEX. R. APP. P. 43.3………………………………………………………………23

SECONDARY SOURCES

JOHN MILTON, PARADISE LOST 49, bk. II, ll. 592-94 (Scott Elledge ed., Norton & Co. 1993) (1674)…………….10

ix STATEMENT REGARDING ORAL ARGUMENT

Because of the unique nature of the legal and factual issues, Appellant City of

Pharr, Texas believes oral argument may assist the Court in evaluating the jurisdictional

prerequisites to suit against a governmental entity, in determining whether the factual

allegations create a material issue of fact for the jurisdictional issues raised, and whether

those allegations affect the legal issues before the Court. Appellant would therefore request

submission of oral argument in this case should the Court desire further clarification on the

factual or legal authority for the jurisdictional issues raised.

RECORD REFERENCES

The Clerk’s Record will be cited by the abbreviation “CR” followed by the

page numbers (e.g., CR 53 – 56). The Reporter’s Record, will be cited by the

abbreviation “RR” followed by the page numbers (e.g., RR 7 – 8).

x STATEMENT OF THE CASE

Nature of the Case: This case involves a claim of inverse condemnation allegedly resulting from a zoning change, a request in a District Court to enjoin enforcement of rulings by a County Court at Law, and a request for the District Court to declare judgment contrary to rulings of the County Court at Law. CR 40 – 43.

Trial Court: The Honorable Israel Ramon, Presiding Judge, 430th Judicial District Court, Hidalgo County, Texas.

Course of Proceedings: Defendant’s Plea to the Jurisdiction or in the Alternative Motion for Summary Judgment (June 4, 2015). CR 47 – 79.

Plaintiffs’ Response to Defendant City of Pharr’s Plea to the Jurisdiction or in the Alternative Motion for Summary Judgment (July 27, 2015). CR 80 - 85.

Defendants’ Reply to Plaintiffs’ Response to Defendants’ Plea to the Jurisdiction or in the Alternative Motion for Summary Judgment (July 27, 2015). CR 86 – 95.

Order Granting in Part and Denying in Part Defendants’ Plea to the Jurisdiction or in the Alternative Motion for Summary Judgment (August 17, 2015). CR 96 – 97; Appendix Tab A.

Trial Court’s On August 17, 2015, the District Court below entered its Disposition: Order denying Defendant City of Pharr’s Plea to the Jurisdiction. CR 96 – 97; Appendix Tab A. Defendant City of Pharr then filed its Notice of Interlocutory Appeal on August 31, 2015 (CR 98 – 100).

xi ISSUES PRESENTED FOR REVIEW

Whether the Trial Court Erred in Denying the Plea to the Jurisdiction?

a. Whether Garcia identified a waiver of the City of Pharr’s sovereign or governmental immunity from suit, including any evidence of a material issue of fact, in order to confer jurisdiction on the District Court below?

b. Whether Garcia identified sufficient factual evidence and legal authority to support a claim of inverse condemnation resulting from a zoning change, in order to establish waiver of the City’s immunity from suit?

c. Whether Garcia identified sufficient factual evidence and legal authority to establish a claim for equitable relief, necessary to establish jurisdiction before the District Court below?

d. Whether Garcia identified sufficient factual evidence and legal authority for a District Court to temporarily enjoin enforcement of rulings by a County Court at Law?

e. Whether Garcia identified sufficient factual evidence and legal authority to establish jurisdiction of a District Court to enter a declaratory judgment relating to prior orders of a County Court at Law?

f. Whether the rulings of the County Court are res judicata before the District Court below and this Court?

xii STATEMENT OF FACTS

Appellees’ German Garcia, Anna Leal, Domingo Lopez, Jr., San Juanita De

La Fuente, and Ezequiel Perez (hereinafter Garcia) First Amended Original Petition

alleged that their neighbor’s Lot 65, Beamsley Subdivision, an addition to the City

of Pharr (hereinafter Lot 65) was being used for commercial rather than residential

purposes. They complained that the City of Pharr (hereinafter the City) did not

compel that Lot 65 be limited to residential purposes as it had done previously in a

separate lawsuit, but instead authorized a zoning change for that Lot. CR 37 – 39.

The City of Pharr filed that prior suit in County Court at Law Number 1 of

Hidalgo County in 2008 against Jose Escamilla, seeking to prohibit him from using

Lot 65 in a manner not consistent with the City’s ordinances. CR 73, ¶ 4; TAB B.

On December 2, 2009, that Court had entered its Agreed Final Order, providing that

“Defendant Jose Escamilla and all other occupants, assigns, and grantees … [s]hall

not use the property located at Lot 65, … in any manner not consistent with the

allowed residential uses pursuant to Pharr zoning ordinances as may be amended

from time to time.” CR 73, ¶ 6; TAB B.

Thereafter, on March 4, 2014, Garcia filed his Original Petition in

Intervention in that County Court at Law case seeking an Order compelling

compliance with that Court’s Agreed Final Order, the same relief requested in the

present action. CR 73, ¶ 9; TAB B; RR 9 – 11. On August 6, 2014, however, the

1 City of Pharr filed its Motion to Vacate Final Order and Motion to Dismiss,

requesting that the County Court at Law set aside the Agreed Final Order because

of a change in circumstances, including the legal requirements, and because the City

was no longer in need of the relief provided in that Order, which Garcia challenged.

CR 73, ¶ 14; TAB B; RR 10. The City also rezoned Lot 65 from a Single-Family

Residential District to an Office-Professional District. CR 73, ¶ 10; TAB B.

On August 29, 2014, following the hearing on the City’s Motion to Vacate the

Agreed Final Order, the County Court entered its Order of Dismissal granting the

City’s Motion to Vacate that Order, setting aside that Order and denying any other

relief. CR 78 – 79; TAB C. Pursuant to Garcia’s request, that Court later made

factual findings that the conditions surrounding Lot 65 had changed. CR 72 – 75,

¶¶ 17 – 19; TAB B. That Court also found that its 2009 Order authorized the City

to amend its zoning ordinances, that the City’s rezoning of Lot 65 was consistent

with the authority to amend its zoning ordinances provided in that Order, and that

the zoning change did not violate that Order. CR 75, ¶¶ 20 – 23; CR 76, ¶¶ 5 – 6;

TAB B. The County Court further found that the changed conditions authorized and

required vacation of the Agreed Final Order. CR 76, ¶¶ 26 – 27; 77, ¶¶ 11 – 12;

TAB B. Although the County Court did not directly rule on Garcia’s Motion for

Contempt (presumably because it was moot), Garcia did not appeal the 2014 Order

vacating and setting aside the 2009 Order, and the 2014 Order has now become final.

2 SUMMARY OF THE ARGUMENT

The City of Pharr is immune from suit unless that immunity has been clearly

and unambiguously waived as a matter of law. Because the City challenged Garcia’s

pleadings with supporting evidence, he was required to provide admissible

contradictory evidence that would establish jurisdiction. Garcia’s District Court

claim below is a no more than a challenge to the rulings previously made by County

Court at Law No. 1, however, and he identified no factual evidence or legal support

to establish waiver of the City’s immunity from suit for that challenge. Because that

County Court case has become final, its rulings are now res judicata or collateral

estoppel against Garcia.

Garcia only presented a claim of inverse condemnation against the City in the

District Court below, though he also requested an injunction and declaratory

judgment. His inverse condemnation claim asserted that the value of his property

was diminished when the City rezoned his neighbor’s property from residential to

office-professional, though he identified no evidence of any alleged diminution.

More significantly, he identified no evidence to establish the elements of an inverse

condemnation claim, including any intentional act by the City to take his property,

an actual taking of his property, or any public use for which his property was

allegedly taken. He therefore did not identify a waiver of the City’s immunity from

suit for a claim of inverse condemnation.

3 Garcia likewise identified no jurisdiction to have the District Court below

enjoin enforcement of a County Court’s 2009 Order, notwithstanding that County

Court’s subsequent 2014 Order setting aside its 2009 order, or to declare judgment

relating to those orders. As this Court explained previously, rules of comity

jurisdictionally prevent one trial court from indiscriminately attacking the judgment

of another trial court. Because Garcia was a party in the County Court case, the

County Court’s 2014 Order is res judicata for those same matters raised in the

District Court, and he is now collaterally estopped from relitigating those issues.

Without evidence to establish waiver of the City’s immunity from suit, the

court below did not have jurisdiction over Garcia’s claims. Because these

jurisdictional defects are incurable, remand would not be authorized for further

development of the evidence and the order denying the City’s Plea to the Jurisdiction

should be reversed and rendered.

ARGUMENT

ISSUES RESTATED

Whether the Trial Court Erred in Denying the Plea to the Jurisdiction?

a. Whether Garcia identified a waiver of the City of Pharr’s sovereign or governmental immunity from suit, including any evidence of a material issue of fact, in order to confer jurisdiction on the District Court below?

4 b. Whether Garcia identified sufficient factual evidence and legal authority to support a claim of inverse condemnation resulting from a zoning change, in order to establish waiver of the City’s immunity from suit?

c. Whether Garcia identified sufficient factual evidence and legal authority to establish a claim for equitable relief, necessary to establish jurisdiction before the District Court below?

d. Whether Garcia identified sufficient factual evidence and legal authority for a District Court to temporarily enjoin enforcement of rulings by a County Court at Law?

e. Whether Garcia identified sufficient factual evidence and legal authority to establish jurisdiction of a District Court to enter a declaratory judgment relating to prior orders of a County Court at Law?

f. Whether the rulings of the County Court are res judicata before the District Court below and this Court?

A. Standard of Review

1. The City of Pharr is immune from suit unless that immunity has been waived by law.

Whether Garcia established subject-matter jurisdiction is a question of law

that this Court reviews de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is never presumed and

cannot be waived. Ford Motor Co. v. Cammack, 999 S.W.2d 1, 5 (Tex. App. –

Houston [14th Dist.] 1998, pet. denied). “Want of jurisdiction of the subject matter

of the suit will arrest a cause at any stage of the proceedings.” Able v. Bloomfield,

6 Tex. 263, 264 (1851). The trial court was therefore required to dismiss if it became 5 apparent that it had no authority under the law to adjudicate the issues presented.

Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 333 (Tex. App. –

Corpus Christi 2002, no pet.).

“Governmental immunity encompasses two components: immunity from

liability and immunity from suit. … A waiver of immunity from suit may occur …

only if the legislature has waived such immunity by clear and unambiguous

language.” Corpus Christi Indep. Sch. Dist. v. TL Mech., 2012 Tex. App. LEXIS

2552, pp. 3 – 4 (Tex. App. – Corpus Christi Mar. 29, 2012, pet. denied), citing Tooke

v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). In order to establish a clear and

unambiguous waiver of immunity, the “statute that waives the State's immunity must

do so beyond doubt,” and any ambiguities are generally resolved in favor of

immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697-98 (Tex.

2003). Sovereign immunity, unless waived, protects municipalities from lawsuits

for damages absent legislative consent. General Servs. Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).

“Sovereign immunity derives from the principle that the sovereign may not

be sued in its courts without its consent.” Guadalupe-Blanco River Auth. v.

Pitonyak, 84 S.W.3d 326, 334 (Tex. App. – Corpus Christi 2002, no pet.). A

municipality’s sovereign immunity insulates it from suit and effectively deprives a

trial court of jurisdiction to hear the cause. City of Lubbock v. Rule, 68 S.W.3d 853,

6 857 (Tex. App. – Amarillo 2002, no pet.). Garcia was therefore required to

establish that immunity was waived by statute or legislative consent. Id. at 857. He

retains the burden to plead and prove that the Legislature waived the City’s immunity

from suit. General Servs. Comm. v. Little-Tex Insulation Co., 39 S.W.3d at 594.

2. Because the Plea to the Jurisdiction relied on evidence challenging Garcia’s factual pleadings, he was required to identify a fact issue, including evidence, that would establish waiver of the City’s immunity.

A Plea to the Jurisdiction is the proper vehicle through which the City could

challenge the jurisdiction of the trial court, where Garcia’s pleadings were

challenged with supporting evidence relevant to the jurisdictional issues. Texas

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d at 222. When a defendant

challenges pleadings that relate to a jurisdictional issue, and provides evidence that

may rebut those pleadings and thus undermine the alleged waiver of immunity from

suit, that evidence should be considered in ruling on the plea. Hearts Bluff Game

Ranch v. State, 381 S.W.3d 468, 476 (Tex. 2012); Tex. Dep't of Parks & Wildlife

v. Miranda, 133 S.W.3d at 227 – 28. Because the City challenged Garcia’s

pleadings with evidence, Garcia was required to provide admissible contradictory

evidence that would establish a fact issue on those jurisdictional elements. His

Response to the City’s Plea to the Jurisdiction identified no evidence of any facts to

contradict the City’s evidence, however. CR 80 – 85.

7 The Supreme Court explained that “when parties submit evidence at [the] plea

to the jurisdiction stage, review of the evidence generally mirrors the summary

judgment standard.” Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 656

(Tex. 2013), citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d at 228.

See also Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 792, (Tex. App. –

Houston [1st Dist.] 2012, no pet.). “Pleadings, even if sworn, are not proper

summary judgment evidence.” City of Wilmer v. Laidlaw Waste Systems, Inc., 890

S.W.2d 459, 467 (Tex. App. – Dallas 1994), aff'd, 904 S.W.2d 656 (Tex. 1995).

Garcia had the burden to identify a fact issue that, if accepted as true, would

establish waiver of the City’s immunity from suit. “[A] plea to the jurisdiction can

also properly challenge the existence of those very jurisdictional facts [alleged in the

plaintiffs’ petition]. In [such] cases, the court can consider evidence as necessary to

resolve any dispute over those facts, even if that evidence ‘implicates both the

subject-matter jurisdiction of the court and the merits of the case.’” Mission Consol.

Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (emphasis in original),

quoting Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d at 226.1

1 “If the plea challenges the existence of jurisdictional facts, [this Court must] consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issue raised, as the trial court is required to do so. In a case in which the jurisdictional challenge implicates the merits of the plaintiff's cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. … [I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Tamayo v. Lucio, 2013 Tex. App. LEXIS 8944, pp. 7 – 8 (Tex. App. – Corpus Christi July 18, 2013, no pet.), citing Bland Indep. Sch. 8 “In the context of a plea to the jurisdiction, because the elements of [Garcia’s]

claim[s] are jurisdictional, [he] must affirmatively plead facts and, if appropriate,

produce evidence demonstrating those elements to show a waiver of [the City’s]

sovereign immunity.” Univ. of Tex. v. Ramos, 2012 Tex. App. LEXIS 707, p. 13

(Tex. App. – Corpus Christi Jan. 26, 2012, pet. denied), citing, Tex. Dep't of Parks

& Wildlife v. Miranda, 133 S.W.3d at 227-28. “In other words, to both establish

waiver of immunity, and accordingly, subject-matter jurisdiction, and avoid … the

granting of a plea to the jurisdiction, [Garcia] must have created a genuine issue of

material fact on each of the elements of [his] claim.” Univ. of Tex. v. Ramos, 2012

Tex. App. LEXIS 707, p. 15.

“[A]fter the [City] asserts and supports with evidence that the trial court lacks

subject matter jurisdiction, we simply require the plaintiffs, when the facts

underlying the merits and subject matter jurisdiction are intertwined, to show that

there is a disputed material fact regarding the jurisdictional issue.” Tex. Dep't of

Parks & Wildlife v. Miranda, 133 S.W.3d at 228. See also State v. Lueck, 290

S.W.3d 876, 881 (Tex. 2009); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d at 555.

“[I]f the plaintiffs’ factual allegations are challenged with supporting evidence

necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs

Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d at 227.

9 must raise at least a genuine issue of material fact to overcome the challenge to the

trial court’s subject matter jurisdiction.” Tex. Dep't of Parks & Wildlife v. Miranda,

133 S.W.3d at 221. Dismissal is proper where Garcia failed in his burden to “raise

at least a genuine issue of material fact to overcome the challenge to the trial court’s

subject matter jurisdiction.” Id. 133 S.W.3d at 222.

B. Garcia Identified No Factual Evidence or Legal Support to Establish Waiver of Immunity From Suit

1. Without evidence of an intentional taking of Garcia’s property for a public use, he has not identified waiver of immunity for an inverse condemnation claim.

Garcia alleged a claim of inverse condemnation against the City because of

its failure to enforce a “Final Order” of the County Court at Law and its rezoning of

Lot 65 from a Single-Family Residential District to an Office-Professional District.

CR 39. He claims the failure to enforce that Order and the rezoning of Lot 65

allegedly caused him to suffer damages in the form of devaluation of the market

value of his property resulting from the non-residential use of Lot 65, for which he

also claims the City has not adequately compensated him. CR 39 – 40. Although

Garcia’s claim implicates the “sophistic Miltonian Serbonian Bog”2 that defines the

2 See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex. 2004), quoting Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 105 (Tex. 1962)). See also JOHN MILTON, PARADISE LOST 49, bk. II, ll. 592-94 (Scott Elledge ed., Norton & Co. 1993) (1674) 10 law of inverse condemnation through an alleged regulatory taking, he does not

reference the elements of an inverse condemnation claim and he failed to identify

evidence of facts that would establish that claim.

Initially, Texas courts have long described eminent domain as “one of the

inalienable rights of sovereignty. It is the power to take private property for public

use.” Fort Worth & D.C. Ry. v. Ammons, 215 S.W. 2d 407, 409 (Tex. Civ. App. –

Amarillo 1948, writ ref’d n.r.e.). It is “axiomatic that government cannot take a

citizen’s property without payment of the property’s fair value,” however. State v.

Ware, 86 S.W.3d 817, 821 (Tex. App. – Austin 2002, no pet.). If the government

appropriates property without paying adequate compensation, the owner may

recover damages in an inverse condemnation suit. Westgate Ltd. v. State, 843 S.S.2d

448, 452 (Tex. 1992).

Governmental entities such as the City of Pharr are immune from suit unless

the Texas Legislature unequivocally waived that immunity, however. See Tex.

Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Garcia’s claim of inverse

condemnation alleges an unconstitutional taking of property without compensation,

presumably in violation of the Texas Constitution, article I, section 17. That section

provides that private property may not be “taken, damaged or destroyed for or applied

(describing the land beyond Lethe as “A gulf profound as that Serbonian bog / Betwixt Damiata and Mount Casius old, / Where armies whole have sunk”). 11 to public use without adequate compensation being made, unless by the consent of

such person.” Tex. Const. art. I, § 17.

“To recover [in an inverse condemnation suit] under Article I, section 17, a

plaintiff must prove that (1) the government’s intentional acts (2) resulted in a taking

of the plaintiff’s property, (3) for public use. Patel v. City of Everman, 179 S.W.3d

1, 7 (Tex. App. – Tyler 2004, pet. denied). See also General Servs. Comm. v. Little-

Tex Insulation Co., 39 S.W.3d at 598. “‘Inverse condemnation’ occurs when

property is taken, damaged, or destroyed for public use without process or without

proper condemnation proceedings, and the property owner attempts to recover

compensation.” Id., citing Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.

App. – Houston [1st Dist.] 1989, writ denied). “‘Taking,’ ‘damaging,’ and

‘destruction’ of one’s property are three distinct claims arising under Article I, Section

17. … However, the term ‘taking’ has become used as a shorthand to refer to all three

types of claims.” City of Dallas v. Jennings, 142 S.W.3d 310, 313 n.2 (Tex. 2004).

The Supreme Court has identified two distinct categories of regulatory action

that could constitute a taking. “One is where regulation ‘compels the property owner

to suffer a physical “invasion” of his property.’ The direct, physical effect on

property, though short of government possession, makes the regulation categorically

a taking. Another is ‘where regulation denies all economically beneficial or

12 productive use of land.’” Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d

at 671 (internal citations omitted).3

Garcia does not complain of a regulatory change to his property, however.

Rather, he complains of the effect on his property allegedly caused by a change to

his neighbor’s property. Although he alleges a diminution in value of his property,

he identified no evidence of that alleged diminution. Regardless, he has no

allegation or evidence to establish that he was denied “all economically beneficial

or productive use of land.” City of Carrollton v. HEB Parkway S., Ltd., 317 S.W.3d

at 793 (emphasis in original).

Garcia instead appears to complain only that the City interfered with his

unrestricted enjoyment of his property. This allegation cannot establish an inverse

condemnation claim, however. “An inverse condemnation may occur when the

3 “Takings may be physical (that is, ‘a direct government appropriation or physical invasion of private property’) or regulatory (that is, based on a government regulation). A regulatory takings claim may be based on a number of different theories. One basis for a regulatory takings claim occurs when a government ‘requires an owner to suffer a permanent physical invasion of her property—however minor.’ For example, a law that requires a landlord to permit a cable television company to install its facilities upon the landlord's property constitutes a compensable taking. Under both the federal and Texas constitutions, this type of regulation constitutes a per se taking for which the landowner must be compensated. Another category of per se taking under both the federal and Texas constitutions, sometimes referred to as a ‘Lucas-type “total regulatory taking,”’ occurs when a government regulation deprives a landowner of all economically beneficial use of the owner's property. A regulation will also constitute a taking when it does not deprive a landowner of all of the property's economically beneficial use, but it does unreasonably interfere with the landowner's right to use and enjoy his property. This type of claim is sometimes called a ‘Penn Central’ takings claim, and it will generally arise when a government has denied a landowner approval to develop his property.” City of Carrollton v. HEB Parkway S., Ltd., 317 S.W.3d 787, 792-93 (Tex. App. – Fort Worth 2010, no pet.) (emphasis in original). 13 government physically appropriates or invades the property, or when it unreasonably

interferes with the landowner's right to use and enjoy the property, such as by

restricting access or denying a permit for development.” Westgate, Ltd. v. State,

843 S.W.2d at 452 (internal citations omitted). Garcia does not complain that the

City physically invaded or interfered with his right to use or enjoy his property. He

complains only that the zoning change to his neighbor’s property consequentially

resulted in a diminution of the value of his own property.

Whether “a zoning ordinance constitutes a compensable taking … is a

question of law….” Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d at

673. Consequential damages to property caused by government action do not

establish a taking without a physical invasion of that property, however. Even

“publicly targeting a property for condemnation, resulting in economic damage to

the owner, generally does not give rise to an inverse condemnation cause of action

unless there is some direct restriction on use of the property.” Westgate, Ltd. v.

State, 843 S.W.2d at 453. A diminution in property value caused only by a change

in a zoning law therefore cannot establish an unconstitutional taking. See Penn

Cent. Transp. Co. v. New York City, 438 U.S. 104, 131, 98 S. Ct. 2646, 2663 (1978).

“[Z]oning does not constitute a ‘taking’” unless an individual “surrenders to the

public something more and different from that which is exacted from other members

of the public….” Id., 438 U.S. at 147-48, 98 S. Ct. at 2671.

14 Furthermore, Garcia identified no intentional taking of his property through

the rezoning of Lot 65. He identified no allegation or evidence to establish the City

“intentionally took or damaged [his] property for public use, or was substantially

certain that [harm] would be the result.” City of Keller v. Wilson, 168 S.W.3d 802,

808 (Tex. 2005) (emphasis added). Even if the City’s actions resulted in a

diminution of his property value, liability may only extend to the City for an

intentional taking if he could establish that the City knew its actions would cause

him that harm. Garcia identified no evidence to establish the City had the necessary

state of mind to know that damage actually would occur to his property, however,

that the City intended to cause him any harm, or that it knew identifiable harm was

occurring or substantially certain to result. Without “evidence of ‘objective indicia of

intent’ showing the City knew identifiable harm was occurring or substantially

certain to result,” Garcia cannot establish an intentional taking. Id., 168 S.W.3d at

830. “The critical question in this case was the City’s state of mind – [Garcia] had to prove

the City knew (not should have known) that [the injury] was substantially certain” to occur.

Id., 168 S.W.3d at 829

Furthermore, “[a]s in statutory condemnation, the appropriated property must

also be applied to public use.” Westgate, Ltd. v. State, 843 S.W.2d at 452. “When

damage is merely the accidental result of the government's act, there is no public

benefit and the property cannot be said to be ‘taken or damaged for public use.’”

15 City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex. 2004), quoting Texas

Highway Dep't v. Weber, 219 S.W.2d 70, 71 (Tex. 1949). See also City of Houston

v. Carlson, 451 S.W.3d 828, 833 (Tex. 2014) (order to evacuate building because of

safety concerns is not a taking for public use).

Because Garcia retained all aspects of his property and the City received no

public benefit through the rezoning of Lot 65, he has not identified an intentional

taking for a public use. Garcia identified no factual evidence or legal authority to

establish any intentional taking, damaging, or destruction of his property by the City,

or how any alleged damage was for a public use. See CR 80 – 85. Without evidence

to establish the City intentionally took, damaged or destroyed his property for a

public use, Garcia has not identified a waiver of the City’s immunity.

2. The District Court does not have jurisdiction to enjoin enforcement of an Order of a County Court at Law.

Although “Plaintiffs [alleged they] sue the Defendant city of Pharr ONLY

under a theory of cause of action of inverse condemnation and no other theory or

cause of action,” (CR 39, emphasis in original), they also requested a temporary and

permanent injunction in the District Court below to prevent the City from violating

the Agreed Final Order of County Court at Law No. 1. CR 42 – 43, citing TEX.

CIV. PRAC. & REMEDIES CODE § 65.011. Garcia apparently ignores the County

Court’s 2014 Order of Dismissal, Findings of Fact and Conclusions of Law, relying

16 instead on its 2009 Order alone. That request for injunction may only be raised in

the County Court, however, and it may not be raised in the District Court below.

Garcia seeks an injunction to prevent the City’s alleged violation of the

County Court’s 2009 Agreed Final Order restricting the use of lot 65 to residential

uses. As explained above, that Agreed Final Order authorized Pharr zoning

ordinances to be amended from time to time. CR 73, ¶ 6; TAB B. After Garcia

filed his Original Petition in Intervention in the County Court, the City rezoned Lot

65 from a Single-Family Residential District to an Office-Professional District. CR

73, ¶ 10; TAB B. That Court then entered its Order of Dismissal in 2014, granting

the City’s Motion to Vacate its 2009 Agreed Final Order, setting aside that Order

and denying any other relief. CR 78 – 79; TAB C. Pursuant to Garcia’s request,

the County Court thereafter made factual findings that the conditions surrounding

Lot 65 had changed, that the 2009 Agreed Final Order authorized the City to amend

its zoning ordinances, and that the zoning change did not violate the Agreed Final

Order. CR 73 – 75, ¶¶ 17 – 23; CR 76, ¶¶ 5 – 6; TAB B. Although they were

parties to that County Court action, Plaintiffs/Appellees did not appeal that 2014

Order of Dismissal and it is now final.

Garcia has not identified any authority to support jurisdiction in the District

Court for an injunction relating to an Order of the County Court, however. Contrary

to his request, “[a] writ of injunction granted to stay proceedings in a suit or

17 execution on a judgment must be tried in the court in which the suit is pending or

the judgment was rendered.” TEX. CIV. PRAC. & REMEDIES CODE § 65.023.

That “statute controls not just venue of such a suit, but also jurisdiction, so long as

the judgment in question is valid on its face.” Scally v. Detamore, 2001 Tex. App.

LEXIS 2527, p. 4, 2001 WL 392522 (Tex. App. – Houston [1st Dist.] Apr. 19, 2001,

pet. denied). See also McVeigh v. Lerner, 849 S.W.2d 911, 914 (Tex. App. –

Houston [1st Dist.] 1993, writ denied).

As this Court explained, “[s]ection 65.023 is intended to ensure that comity

prevails among the various Texas trial courts because ‘orderly procedure and proper

respect for the courts will require that . . . attacks upon their judgments should be

made in the court rendering such judgment, rather than in other courts

indiscriminately.’” Butron v. Cantu, 960 S.W.2d 91, 94-95 (Tex. App. – Corpus

Christi 1997), quoting McVeigh v. Lerner, 849 S.W.2d at 914 & Lloyds Alliance v.

Cook, 290 S.W.2d 716, 718 (Tex. Civ. App. – Waco 1956, no writ). “This

requirement that an action to enjoin execution on a judgment must be brought in the

court in which the judgment was rendered is jurisdictional, and does not relate

merely to venue.” Butron v. Cantu, 960 S.W.2d at 94. See also Switzer v. Smith,

300 S.W. 31 (Tex. Comm'n App. 1927).

Garcia only seeks an injunction compelling the City to enforce the County

Court at Law’s 2009 Order, notwithstanding that Court’s subsequent 2014 Order

18 vacating that prior order. CR 38 – 39; 78 – 79; TAB C. Garcia’s allegations were

previously contested by Garcia and determined in the County Court, supported by

that Court’s Findings of Fact and Conclusions of Law, and concluded with an Order

of Dismissal. CR 72 – 79; TABS B & C. Any request for injunctive relief relating

to that Order must therefore be raised in that County Court, and the District Court

below does not have subject matter jurisdiction to consider that request.

3. The District Court does not have jurisdiction to enter declaratory judgment relating to an Order of a County Court at Law

In the District Court below, Garcia sought declaratory judgment that the

County Court’s Agreed Final Order was in full force and effect and that the City’s

rezoning of Lot 65 was invalid and void. CR 43. Although Garcia may have the

general authority to seek declaratory judgment, “to settle and to afford relief from

uncertainty and insecurity with respect to rights, status, and other legal relations,”

he must still identify a factual basis and legal support to pursue that judgment. TEX.

CIV. PRAC. & REMEDIES CODE § 37.002(b). See Tex. Natural Res. Conservation

Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Texas Educ. Agency v.

Leeper, 893 S.W.2d 432, 446 (Tex. 1994). Garcia has not identified facts that would

establish a waiver of immunity from suit in District Court for a declaratory judgment

as to the “rights, status [or] legal relations” involving the orders of the County Court,

notwithstanding the requirement of exclusive jurisdiction in the County Court.

19 Like Garcia’s request for injunctive relief, “‘orderly procedure and proper

respect for the courts will require that . . . attacks upon their judgments should be

made in the court rendering such judgment, rather than in other courts

indiscriminately.’” Butron v. Cantu, 960 S.W.2d at 94-95, quoting McVeigh v.

Lerner, 849 S.W.2d at 914 & Lloyds Alliance v. Cook, 290 S.W.2d 716, 718 (Tex.

Civ. App. – Waco 1956, no writ). The County Court retains exclusive jurisdiction

“so long as the judgment in question is valid on its face.” Scally v. Detamore, 2001

Tex. App. LEXIS 2527, p. 4, 2001 WL 392522. Because Garcia does not challenge

the facial validity of the County Court’s 2014 Order, he has no basis for jurisdiction

in the District Court below to challenge or interpret the rulings of that County Court.

4. The rulings of the County Court at Law are res judicata before the District Court below and this Court

The County Court’s 2014 Findings of Fact and Conclusions of Law, along

with its Order of Dismissal, are also res judicata, and Garcia is collaterally estopped

from attempting to relitigate those claims in the District Court. Although Garcia

apparently seeks a declaratory judgment that the County Court’s 2009 Agreed Final

Order remains in effect, and derivatively that its 2014 Order vacating that 2009

Order is without effect, those issues have already been resolved in the County Court

case. As set out above, the County Court vacated its 2009 Agreed Final Order and

20 issued findings supporting its conclusions, which Garcia is now collaterally estopped

from challenging. CR 72 – 79; TABS B & C.

[D]octrines of collateral estoppel and res judicata [provide] that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies….” Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.

Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973 (1979) (internal

citations omitted).

The County Court at Law made numerous findings of fact to support its

conclusions. In particular, The County Court found that the conditions had changed

between December 2, 2009, when the original Agreed Final Order was issued, and

August 20, 2014, the day the Court considered Pharr’s Motion to Vacate Final

Order and Motion to Dismiss. CR 75, ¶ 19; TAB B. The Court also found, factually

and legally, that the 2009 Agreed Final Order authorized the City of Pharr to amend

its zoning ordinances from time to time and that the City’s rezoning of Lot 65 from

a Residential District to an Office Professional District did not violate the 2009

Agreed Final Order. CR 75, ¶¶ 20 & 22; CR 76, ¶¶ 5 & 6; TAB B. In addition, the

Court determined that use of Lot 65 was not inconsistent with the allowed residential

uses pursuant to Pharr zoning ordinances, and was further in compliance with Pharr 21 zoning ordinances. CR 75, ¶ 23; CR 77, ¶ 7; TAB B. The Court therefore vacated

the 2009 Agreed Final Order. CR 78 – 79; TAB C. Those findings may not now be

challenged by Garcia. Montana v. United States, 440 U.S. at 153, 99 S. Ct. at 973.

“The facts relevant to [Garcia’s] present … claim … were all evident in the

prior suit, and [his] requested [relief in the present action] proposed no new or

different application.” Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 60

(Tex. 2006). “Whether or not the [County Court] was correct in [its decision], that

holding is dispositive and not subject to collateral attack; claim preclusion inheres

regardless of whether the prior decision was correct. … If [Garcia] wished to

challenge the [County Court’s] decision, [he] could have filed an appeal, which [he]

chose not to do. Id., citing Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997).

To allow Garcia’s District Court challenge to the County Court’s 2014 Order

vacating and setting aside its prior 2009 Agreed Final Order would instead create an

alternative appeal procedure, without respect to jurisdiction or deadlines. He has

identified no jurisdictional avenue to do so, however. Garcia therefore may not seek

review of the County Court’s Orders through declaratory judgment in the District

Court below, and he may not seek any relief that would be contrary to the prior

Findings, Conclusions or Order of Dismissal in the County Court, including any

declaratory judgment contrary to the County Court’s 2014 Order. Montana v.

United States, 440 U.S. at 153, 99 S. Ct. at 973.

22 C. Remand to Allow Garcia to Attempt to Cure Pleading and Evidentiary Defects Would Serve No Purpose and is Not Authorized

Remand is also not authorized for “further development” of Garcia’s claims

or to plead a new claim. This Court may not remand this case “in the interests of

justice,” or because the case has not been “fully developed,” as Appellees may

request. Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex. 1987); Estate

of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636, 639 (Tex. 1986); Sears

& Roebuck & Co. v. Marquez, 628 S.W.2d 772, 773 (Tex. 1982).

“As an intermediate appellate court, [this Court] lacks authority to … remand

for further development of the case.” Postert v. Calhoun County, 2011 Tex. App.

LEXIS 8643, p. 6 n.3 (Tex. App. – Corpus Christi Oct. 27, 2011, pet. denied), citing

TEX. R. APP. P. 43.3; Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App. –

Houston [14th Dist.] 2007, no pet.); Sears, Roebuck & Co. v. Marquez, 628 S.W.2d

at 773. “Once an appellate court has concluded there is no evidence to support a

necessary finding, it is not within its power to … remand for further development of

the same or similar evidence….” Sears & Roebuck & Co. v. Marquez, 628 S.W.2d

at 773. Remand is therefore not authorized.

23 CONCLUSION & PRAYER

Garcia failed to identify any evidence or authority that would support waiver

of the City of Pharr’s immunity from suit on a claim of inverse condemnation or a

request for injunctive or declaratory relief. The evidence submitted by the City, on

the other hand, established the lack of jurisdiction to consider either of those claims.

Because these jurisdictional defects are incurable, remand would serve no purpose

and is not authorized for further development of Garcia’s allegations. Appellee

CITY OF PHARR, TEXAS therefore prays that this Court reverse the trial court’s

denial of its Plea to the Jurisdiction and render judgment dismissing the City of Pharr

for lack of jurisdiction.

Signed on this the 20th day of October, 2015.

Respectfully submitted,

AGUILAR ZABARTE, LLC Patricia Ann Rigney 990 Marine Drive 118 South Cage Boulevard Brownsville, Texas 78520 Pharr, Texas 78577 Telephone: (956) 504-1100 Telephone : (956) 457-1181 Facsimile: (956) 504-1408 Facsimile : (956) 272-0116 Email: arnold@aguilarzabartellc.com Email: patricia.rigney@pharr-tx.gov

/s/ Patricia Ann Rigney J. Arnold Aguilar Patricia Ann Rigney State Bar No. 00936270 State Bar No. 24048765

ATTORNEYS FOR DEFENDANT/APPELLANT CITY OF PHARR, TEXAS

24 CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3)

Pursuant to TEX. R. APP. P. 9.4(i)(3), the undersigned certifies this brief

complies with the type-volume limitations of TEX. R. APP. P. 9.4(i)(2)(B). This

brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B)

because it contains 6,140 words, excluding the parts of the brief exempted by TEX.

R. APP. P. 9.4(i)(1).

This brief complies with the typeface requirements of TEX. R. APP. P.

9.4(e)(3) and the type style requirements of TEX. R. APP. P. 9.4(b), (c) and (d)

because it has been prepared in a proportionally spaced serif typeface produced by

Microsoft Word 2013 software in Times New Roman 14 point font in text and Times

New Roman 12 point font in footnotes.

The undersigned further certifies that all required privacy redactions have

been made pursuant to TEX. R. APP. P. 9.9.

J. Arnold Aguilar

Attorney for Defendant/Appellant City of Pharr, Texas

Dated: October 20, 2015

25 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing BRIEF OF APPELLANT CITY OF PHARR, TEXAS’ will on this the 20th day of October, 2015, be served automatically through the notice of electronic filing and/or via certified mail, return receipt requested to:

Francisco J. Rodriguez LAW OFFICE OF FRANCISCO J. RODRIGUEZ 1111 West Nolana, Suite A McAllen, Texas 78504 email: frankr@mcallenlawfirm.com

Jeanne E. Holmes LAW OFFICES OF JEANNE E. HOLMES, P.C. 212 West Nolana McAllen, Texas 78501 email: ljeanneholmes@rgv.rr.com

26 CASE NO. 13-15-00409-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS

CITY OF PHARR, Defendant – Appellant

GERMAN GARCIA, ANNA LEAL, DOMINGO LOPEZ, JR., SAN JUANITA DE LA FUENTE, AND EZEQUIEL PEREZ, Plaintiff – Appellee

On Appeal from the 430th Judicial District Court of Hidalgo County, Texas Case No. C-5232-14-J ====================================================== APPENDIX FOR BRIEF OF APPELLANT CITY OF PHARR, TEXAS ======================================================

J. Arnold Aguilar Patricia Ann Rigney State Bar No. 00936270 State Bar No. 24048765

AGUILAR ZABARTE, LLC 990 Marine Drive 118 South Cage Boulevard Brownsville, Texas 78520 Pharr, Texas 78577 Telephone: (956) 504-1100 Telephone : (956) 457-1181 Facsimile: (956) 504-1408 Facsimile : (956) 272-0116 Email: arnold@aguilarzabartellc.com Email: patricia.rigney@pharr-tx.gov

/s/ J. Arnold Aguilar /s/ Patricia Ann Rigney J. Arnold Aguilar Patricia Ann Rigney State Bar No. 00936270 State Bar No. 24048765

Attorneys for Defendant /Appellant CITY OF PHARR, TEXAS 27 TABLE OF CONTENTS

TAB

Order Denying Defendant City of Pharr, Texas’ Plea to the Jurisdiction …………………A

Findings of Fact and Conclusions of Law, Cause No. CL-08-0136-A, County Court at Law No. 1…………………………………...B

Order of Dismissal Cause No. CL-08-0136-A, County Court at Law No. 1…………………………………...C

28 TAB A Electronically Filed 8/11/2015 4:26:09 PM Hidalgo County District Clerks Reviewed By: Andrea Guajardo

CAUSE NO. C-5232-14-J

GERMAN GARCIA, ANNA LEAL, ♦ IN THE DISTRICT COURT` DOMINGO LOPEZ, JR., SAN JUANITA ♦ DE LA FUENTES, and EZEQUIEL ♦ PEREZ ♦ ♦ Plaintiffs ♦ 430th JUDICIAL DISTRICT ♦ ♦ CITY OF PHARR, et al. ♦ ♦ Defendants ♦ HIDALGO COUNTY, TEXAS

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ PLEA TO THE JURISDICTION OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT

Upon consideration of the Defendants’ Plea to the Jurisdiction or in the

alternative Motion for Summary Judgment, and after reviewing the pleadings, evidence

and other documents on file including the arguments of counsel thereon, the Court is of

the opinion that Defendants’ Plea to the Jurisdiction or in the alternative Motion for

Summary Judgment should be GRANTED IN PART and DENIED IN PART;

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the following

Defendants are dismissed with prejudice in their official capacities: Arturo J. Cortez, Raul

Martinez, Raul Gonzalez, Ricardo Medina, Francisco [Francisca] Quintanilla, Adan Farias,

Hector Villarreal, Romeo Robles, Guadalupe Cano, Chris [Cris] Flores, Charlie Ramirez,

Tom Greuner, Victor Carrillo, III, and Edward Wylie.

96 Electronically Filed 8/11/2015 4:26:09 PM Hidalgo County District Clerks Reviewed By: Andrea Guajardo

IT IS FURTHER ORDERED that the remaining requests by the Defendants

contained in Defendants’ Plea to the Jurisdiction or in the alternative Motion for

Summary Judgment are hereby DENIED.

17TH august SIGNED on this ______ day of __________________, 2015.

____________________________ ____ _____________________ __ JUDGE PRESIDING E PRE R SIDING

michael@michaelpruneda.com; frankr@mcallenlawfirm.com; Sonia@mcallenlawfirm.com

germangarcia@rgv.rr.com; rpalacios@pgtlawfirm.com; ljeanneholmes@rgv.rr.com th Jose Escamilla, 6916 N. 30 St.; McAllen, Texas 78504

97 TAB B Electronically Filed Electronically Submitte Accepted by: Ester Espinoza 6/4/2015 9:22:17 AM 9/30/2014 3:13:47 P HidalgoHidalgo CountyCounty DistrictClerks ClerksOffic Reviewed By: Sonia Ponce

CAUSE NO. CL-08-0136-A

CITY OF PHARR ♦ IN THE COUNTY COURT` ♦ Plantiff ♦ ♦ ♦ GERMAN GARCIA, ANNA LEAL, ♦ DOMINGO LOPEZ, JR., SAN ♦ JUANITA DE LA FUENTES, ♦ EZEQUIEL PEREZ, BLANCA ♦ SALOMERON, CELEDINA ♦ AT LAW NO. 1 MARTINEZ, JOSE GARCIA, and ♦ MARIA PEREZ ♦ ♦ Intervenors ♦ ♦ ♦ JOSE ESCAMILLA, and all ♦ occupants ♦ ♦ Defendants ♦ HIDALGO COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to the Intervenors’ Request, the Court hereby submits its Findings of Fact and Conclusions of Law in support of its Order of Dismissal and Final Judgment entered on August 25, 2014, as follows: FINDINGS OF FACT

1. Plaintiff City of Pharr is a municipality in Hidalgo County, Texas.

2. Defendant Jose Escamilla is an individual residing in Hidalgo County, Texas.

3. Intervenors German Garcia, Anna Leal, Domingo Lopez, Jr., San Juanita De La Fuentes, Ezequiel Perez, Blanca Salomeron, Celedina Martinez, Jose Garcia, and Maria Perez are individuals residing in Hidalgo County, Texas.

Page 1 72 Electronically Filed Electronically Submitte Accepted by: Ester Espinoza 6/4/2015 9:22:17 AM 9/30/2014 3:13:47 P HidalgoHidalgo CountyCounty DistrictClerks ClerksOffic Reviewed By: Sonia Ponce

4. In 2008, Plaintiff City of Pharr filed suit against Defendant Escamilla to prohibit his use of premises located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas from being used in a manner not consistent with the ordinances approved by the City of Pharr.

5. After a period of time, the parties reached a resolution of their differences and submitted a proposed Agreed Final Order.

6. On December 2, 2009, the Court approved, signed and entered that proposed Agreed Final Order, providing that “Defendant Jose Escamilla and all other occupants, assigns, and grantees
[s]hall not use the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas in any manner not consistent with the allowed residential uses pursuant to Pharr zoning ordinances as may be amended from time to time. Neither Defendant Jose Escamilla nor other occupants, assigns, and grantees shall be allowed to use the property for commercial purposes, directly or indirectly, and shall not be allowed to store equipment or other items of commerce.” Agreed Final Order (emphasis added.)

7. The only relief provided in the Agreed Final Order was injunctive.

8. Prior to entering its Agreed Final Order, neither party requested a trial of factual issues before a jury.

9. On March 4, 2014, Intervenors filed their Intervenors’ Original Petition in Intervention seeking an Order from this Court compelling compliance with the Court’s prior Agreed Final Order.

10. Prior to August 20, 2014, the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, was rezoned by the City of Pharr from a Single-Family Residential District (R-1) to an Office-Professional District (O-P).

11. On March 12, 2014, Intervenors filed their Motion for Contempt and Motion for Costs, seeking an Order from this Court finding Plaintiff, Defendant and others in contempt of this Court for violating the Court’s prior Agreed Final Order.

12. On May 14, 2014, Intervenors Blanca Salomeron, Celedina Martinez, Jose Garcia and Maria Perez filed their Notice of Non-Suit Without Prejudice.

13. Only Intervenors German Garcia, Anna Leal, Domingo Lopez, Jr., San Juanita De La Fuentes and Ezequiel Perez, Plaintiff and Defendant are before this Court; No other alleged contemnors have been served with process or made an appearance before this Court. 14. On August 6, 2014, Plaintiff City of Pharr filed its Motion to Vacate Final Order and Motion to Dismiss, requesting that this Court set aside the Agreed Final Order because of a change in circumstances, including the legal requirements, and because Plaintiff is no longer in need of the relief provided in that Order.

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15. After timely notice, the Court held a hearing on Plaintiff’s City of Pharr’s Motion to Vacate Final Order and Motion to Dismiss on August 20, 2014. See Hearing Transcript.

16. On August 20, 2014, the day of the hearing on Plaintiff’s motion, Intervenors filed their demand for a jury trial and paid the jury fee.

17. Prior to the entry of the Court’s Agreed Final Order of December 2, 2009, the following conditions were present at or surrounding the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas:

a. The property was located in a Single-Family Residential District (R-1) zone; b. Defendant was operating a charter bus service out of that property; c. Approximately eleven (11) Charter buses would be parked on the property and on the public street in front of and surrounding the property; d. The Charter buses were large, heavy vehicles. e. The length and width of the bus vehicles block or impede traffic flow; f. Because of their size, the use of the buses violated the City’s street roadway ordinance and should have instead been in an industrial zone; g. The Charter bus business would bring in additional traffic, including additional vehicles that would park, drop off and pick up bus passengers; h. At one point, approximately 30 additional vehicles were parked in front of the property waiting for their passengers to board a bus; i. Buses would leave the property at different times of the day and night; j. The nature of the buses, their size, and the pedestrian traffic created by their use increased the noise level; k. The Charter buses would increase the danger to children, pedestrians and other motorists beyond that of normal vehicle traffic;

18. As of the day of hearing on Plaintiff City of Pharr’s Motion to Vacate Final Order and Motion to Dismiss, August 20, 2014, the following conditions were present at or surrounding the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas:

a. The City of Pharr approved conversion of the property to an Office- Professional District (O-P) zone, which can be used for very limited matters, such as doctors’, attorneys’ or auditors’ offices; b. A charter bus service is no longer being operated out of that property; c. The business now on the property involves estimating from blueprints and has only four (4) employees;

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d. Buses are no longer parked on the property or on the public street in front of or surrounding the property; e. Although some additional vehicle traffic may be present on occasion, that additional traffic is sporadic and does not lead to consistent congestion; f. The vehicle traffic that now presents in front of and surrounding the property consists primarily of passenger, rather than commercial or industrial, vehicles; g. Because the vehicle traffic that presents on the street primarily involves passenger vehicles, it does not block or impede traffic flow; h. There is no longer a large influx of persons waiting, with or without vehicles, to board buses, on a daily or other consistent basis; i. Buses no longer leave the property at different times of the day and night; j. The noise level is comparable to other residential neighborhoods in the City of Pharr;

19. The conditions existing at or surrounding the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, as of the day of hearing on Plaintiff City of Pharr’s Motion to Vacate Final Order and Motion to Dismiss, August 20, 2014, have changed from the conditions that existed prior to the entry of the Court’s Agreed Final Order of December 2, 2009.

20. The Agreed Final Order of December 2, 2009, authorized the City of Pharr, Texas to amend its zoning ordinances from time to time.

21. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1) zone to an Office-Professional District (O-P) zone was consistent with the authority to amend its zoning ordinances provided in the Agreed Final Order of December 2, 2009.

22. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1) zone to an Office-Professional District (O-P) zone did not violate the Agreed Final Order of December 2, 2009.

23. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas as of August 20, 2014, is not inconsistent with the allowed residential uses pursuant to Pharr zoning ordinances as may be amended from time to time.

24. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas as of August 20, 2014, does not violate, and is in compliance with, the City of Pharr zoning ordinance in effect on that date for that location (Office- Professional District).

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25. As of August 20, 2014, the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, is not being used to store equipment or other items of commerce.

26. The changed conditions described above require vacation of the Agreed Final Order of December 2, 2009.

27. The changed conditions described above authorize vacation of the Agreed Final Order of December 2, 2009.

28. Upon vacation of the Court’s prior Agreed Final Order of December 2, 2009, the Court finds that there remains no actual controversy between the parties.

CONCLUSIONS OF LAW

1. “Trial courts undoubtedly have jurisdiction to modify or vacate their judgments granting permanent injunctions because of changed conditions.” Smith v. O'Neill, 813 S.W.2d 501(Tex.1991) (per curiam), quoting City of Tyler v. St. Louis Southwestern Ry., 405 S.W.2d 330, 332 (Tex. 1966).

2. “[A] court cannot be required to ignore significant changes in law or facts if the court is ‘satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.’” Kubala Pub. Adjusters, Inc. v. Unauthorized Practice of Law Comm., 133 S.W.3d 790, 794 (Tex. App. – Texarkana 2004, no pet.), quoting Sys. Fed'n No. 91 v. Wright, 364 U.S. 642, 647, 5 L. Ed. 2d 349, 81 S. Ct. 368 (1961); United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S. Ct. 460, 76 L. Ed. 999 (1932).

3. A “trial court has authority to amend, alter, or dissolve [an] injunction if either the factual situation or the controlling law has changed since its entry.” Kubala Pub. Adjusters, Inc. v. Unauthorized Practice of Law Comm., 133 S.W.3d 790, 795 (Tex. App. – Texarkana 2004, no pet.) 4. The Agreed Final Order of December 2, 2009, authorized the City of Pharr, Texas to amend its zoning ordinances from time to time.

5. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1) zone to an Office-Professional District (O-P) zone was authorized through the authority to amend its zoning ordinances provided in the Agreed Final Order of December 2, 2009.

6. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1) zone to an Office-Professional District (O-P) zone did not violate the Agreed Final Order of December 2, 2009.

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7. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas as of August 20, 2014, is authorized as part of the allowed residential uses pursuant to Pharr zoning ordinances as may be amended from time to time.

8. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas as of August 20, 2014, does not violate, and is in compliance with, the City of Pharr zoning ordinance in effect on that date for that location (Office- Professional District).

9. The controlling law that was applied when the Court entered the Agreed Final Order provided that the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, was in a Single-Family Residential District (R-1) zone.

10. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1) zone to an Office-Professional District (O-P) zone created a change in the controlling law.

11. The changed conditions described above require vacation of the Agreed Final Order of December 2, 2009.

12. The changed conditions described above authorize vacation of the Agreed Final Order of December 2, 2009.

13. Intervenors were not entitled to a trial by jury because they did not make application for a jury and pay the jury fee at least ten (10) days before the Agreed Final Order was entered on December 2, 2009, and/or at least ten (10) days before the hearing on Plaintiff City of Pharr’s Motion to Vacate Final Order and Motion to Dismiss on August 20, 2014. See Citizens State Bank v. Caney Inv., 746 S.W.2d 477 (Tex. 1988); Tex. R. Civ. P. 216.

14. The Court having found circumstances had changed to allow vacation of the prior Agreed Final Order, and the Court having vacated that Order, there remains no actual controversy between the parties and all other pending motions are moot, or in the alternative are denied as without merit. See Thompson v. Ricardo, 269 S.W.3d 100(Tex. App. – Houston [14th Dist.] 2008, no pet.) 3rd ENTERED on this the ________ October day of _________________, 2014.

________________________________ __ _ __ ___ _____ ________ ___ ____ _ _ JUDGE JUDG GE PRESIDING PRES SID IDIN NG

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CITY OF PHARR § IN THE COUNTY COURT § VS § AT LAW NO. 1 § JOSE ESCAMILLA and all occupants § HIDALGO COUNTY, TEXAS

ORDER OF DISMISSAL

On the 20th day of August, 2014, this cause came for hearing on City of

Pharr’s Request to Vacate Final Order and Motion to Dismiss. After

considering the request, motion and response thereto on file, and hearing the

evidence and argument of counsel thereon, the Court finds that the City of Pharr

has not violated the terms of this Court’s Agreed Final Order of December 2, 2009,

that the conditions applicable to the relief provided for in that Agreed Final Order

have changed, and that such Agreed Final Order is no longer necessary, and the

Court is of the opinion that the Request to Vacate Final Order and Motion to

Dismiss should therefore be GRANTED;

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that City of

Pharr’s Request to Vacate Final Order and Motion to Dismiss is hereby

GRANTED and the Agreed Final Order of December 2, 2009, is hereby set aside.

All other pending motions are therefore dismissed.

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It is further ORDERED, ADJUDGED and DECREED that the bond executed

and posted by Plaintiff is no longer necessary and is hereby annulled.

It is further ORDERD, ADJUDGED and DECREED that any and all other

relief not expressly granted herein is denied. This Order finally disposes of all

parties and claims and is appealable.

25th August ENTERED on this the _______ day of _________________, 2014.

___________________________________ _____ ________ ______ JUDGE JUDG PRESIDING GE PRES SIDING