City of Weslaco, Texas v. Carl L. Borne

• Court: Court of Appeals of Texas
• Decided: August 22, 2005
• Docket: 13-05-00126-CV
• Status: Published

Opinion

                             NUMBER 13-05-126-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

CITY OF WESLACO, TEXAS, ET AL.,                         Appellants,

                                           v.

CARL L. BORNE, ET AL.,                                          Appellees.

                  On appeal from the 206th District Court

                           of Hidalgo County, Texas.

                     MEMORANDUM OPINION^[1]

                Before Justices Yañez, Castillo, and Garza

                  Memorandum Opinion by Justice Castillo

Carl Borne and other current or former residents of the Lake View Senior Mobile Home Park (the "Residents") sued the City of Weslaco ("the City"), the Economic Development Corporation of Weslaco ("the Corporation"),^[2] and the Weslaco Development Committee ("the Committee")^[3] for (1) common law fraud, (2) fraud in a real estate transaction, (3) breach of contract, (4) negligent misrepresentation, (5) violations of chapter 94 of the Texas Property Code, and (6) DTPA violations.^[4]  The trial court denied motions to dismiss and pleas to the jurisdiction filed by the City, the Corporation, and the Committee.  The City, the Corporation, and the Committee now appeal from that order.^[5]  We dismiss for want of jurisdiction.

I.  Factual Background

In 1999, the City entered into an agreement with the Texas State Parks and Wildlife Department ("PWD") in which the two agreed to commit two million dollars to develop a World Birding Center.^[6]  In May 2000, the Committee purchased Lake View Senior Mobile Home Park ("the Park").  According to the Residents' last pleading, the PWD informed the City, the Corporation, and the Committee, (collectively "the appellants") that it would only accept the Park if it was without any occupants.  The Residents further assert that after an initial attempt to oust them in June 2000, the committee sold the Park to the City in December 31, 2000.  The City maintains that it bought the Park to further the development of the Birding Center.  Thereafter, the Committee acted as a management agent for the City regarding the Park, until the Committee dissolved in May 2002, at which time the Corporation took over the management of the Park.  The Residents maintain that subsequent to the City's purchase of the Park, Hernan Gonzalez, executive director of the Committee, spoke with the Residents in October 2000, and promised that they could remain in the Park.  The Residents maintain that they also received a letter from Gonzalez stating that the Residents would not be forced to relocate.  The Residents state that the letter was posted at the park by the City and/or the Committee or the Corporation and it remained there until May 2003.  The Residents maintain that the Mayor subsequently represented in an article and in a speech directly to the Residents that they would never be asked to leave the Park as long as they were able to care for themselves.  The Residents maintain that later, on May 20, 2003, the Mayor announced that the Park Residents who were not permanent residents would be forced to leave.  In October 2003, the City entered a second agreement with the PWD, which gave the City the option of transferring the Park to the PWD as part of the plan to develop the World Birding Center.  The City would receive a credit against the two million dollars it pledged to the project in exchange for the transfer of the Park.  The Residents maintain that the transfer was contingent upon the property being free of occupants.

The Residents brought suit against the appellants.  The appellants assert that the Residents had no written leases with them, nor with any previous owner of the Park.  At the time of the suit, at the time of filing the plea to the jurisdiction, and even at the time the trial court denied the plea to the jurisdiction, neither City nor the PWD had initiated eviction proceedings against the Residents, and the City had not transferred the Park to the PWD.  The Residents maintain that the City had communicated to the Residents that it intended to transfer the Park to the PWD and that the Mayor directly informed some Residents about the City's intention to breach alleged promises regarding the Residents' ability to continue living at the Park.^[7]

II.  Procedural Background

The City filed special exceptions to the Residents' pleadings based on (1) the Residents seeking legal damages against the City for fraud, an intentional tort as to  which the City maintains it is immune, (2) the Residents' seeking legal damages against the City for misrepresentation, another intentional tort as to which the City maintains it is immune, (3) the Residents seeking legal damages against the City for alleged violations of the DTPA, as to which the City has not consented to suit, (4) the Residents seeking legal damages against the City for negligence, (5) the Residents' failure to satisfy notice requirements of the Texas Tort Claims Act, (6) the Residents' failure to plead and show that each Resident has suffered damages in excess of the minimum jurisdictional limit for the trial court, and (7) the Residents' failure to allege that all applicable notice requirements of the DTPA have been satisfied. 

The City filed its first plea to the jurisdiction on April 16, 2004, asserting that (1) the Residents' request for injunctive relief was premature since the controversy lacks "ripeness," and (2) the justice courts have exclusive jurisdiction over forcible entry and detainer proceedings.  On May 4, 2004, the City filed its second motion to dismiss and plea to the jurisdiction, in which it stated (1) the City maintains its immunity from intentional torts under the Texas Tort Claims Act, and therefore, the trial court lacks jurisdiction to hear those claims, (2) the Residents failed to plead facts demonstrating their claim for negligent misrepresentation falls within one or more of the statutory waivers outlined in the act, (3) the trial court was without jurisdiction to hear the Residents' claims for breach of contract as the City is entitled to immunity as to those claims, (4) the actions of the City constitute governmental functions as to which the City maintains its immunity except as waived by the tort claims act, (5) the Residents failed to plead how all applicable notice requirements have been met, (6) the trial court is without jurisdiction as the controversy lacks "ripeness," and (7) the trial court is without jurisdiction to hear the Residents' cause of action as it is a landlord-tenant dispute over possession of the premises at issue.  By way of their First Joinder in City of Weslaco's Pleas, Motions/Pleas, Supplemental Motions/Pleas and Reply, the Committee and the Corporation joined in the City's special exceptions and pleas to the jurisdiction. 

The trial court denied the motions to dismiss and pleas to the jurisdiction filed by the City, the Corporation, and the Committee.^[8]

III.  Issues Presented

By eight issues, the City, the Committee and the Corporation ask (1) whether the trial court erred in denying their pleas to the jurisdiction as to the Residents' intentional tort claims, (2) whether the trial court erred in denying the pleas to the jurisdiction as to the Residents' negligent misrepresentation claims, (3) whether the trial court erred in denying the pleas to the jurisdiction as to the Residents' breach of contract claims, (4) whether the trial court erred in denying the pleas to the jurisdiction as to the Residents' claims for violation of Chapter 94 of the Texas Property Code, (5) whether sovereign immunity bars claims based upon the DTPA, (6) whether the trial court erred in denying pleas to the jurisdiction based on the Residents' failure to properly plead and prove compliance with the notice requirements of the Texas Tort Claims Act, (7) whether the Residents' claims are ripe, and (8) whether the Hidalgo district court has jurisdiction as to claims based on the landlord-tenant claims over possession of the premises. 

IV. Standard of Review

This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction.  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004-05).  A plea to the jurisdiction is the vehicle by which a party contests the trial court's authority to determine the subject matter of the cause of action.  State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.BCorpus Christi 1989, writ denied).  The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court's jurisdiction to hear a case.  Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.BCorpus Christi 2001, no pet.).  Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).  Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law.  Id.  To determine whether the plaintiff has affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.  Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).  If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the case is proper.  Peek v. Equipment Service Co., 779 S.W.2d 802, 804-05 (Tex. 1989); City of Austin v. L.S. Ranch, 970 S.W.2d 750, 753 (Tex. App.BAustin 1998, no pet.).  However, the mere failure of a petition to state a cause of action does not show a want of jurisdiction in the court.  Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (1960).  If the plaintiff's pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissing.  County of Cameron v. Brown, 80 S.W.3d 549, 554‑55 (Tex. 2002); Peek, 779 S.W.2d at 804-05. 

Like the trial court, we must construe the pleadings in the plaintiff's favor and look to the pleader's intent.  Brown, 80 S.W.3d at 554-55.  Our task is not to determine the merits of the case but rather to examine the petition, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court.  Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex. App.BCorpus Christi 2001, pet. denied).

V.  Jurisdiction

Our initial inquiry is always whether we have jurisdiction over an appeal.  Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.) (citing Tex. Air Control Bd., 852 S.W.2d at 443).  We are obligated to determine, sua sponte, our own jurisdiction.  Garcia, 101 S.W.3d at 779 (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)).  Jurisdiction of a court is never presumed.  Garcia, 101 S.W.3d at 783.  Our jurisdiction is established exclusively by constitutional and statutory enactments.  Id. at 784; see Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2004-05).

A.  Interlocutory Appeal

The Texas Civil Practice and Remedies Code grants us jurisdiction to hear an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004‑05).  Governmental immunity extends to all agencies, political subdivisions, and other institutions which are derived from the State Constitution and laws.  See Dillard v. Austin Ind. Sch. Dist., 806 S.W.2d 589, 593 (Tex. App.BAustin 1991, writ denied.).^[9]

B.  Ripeness of the Residents' Claims

In conjunction with jurisdiction, we consider the appellant's assertion that the Residents' claims are not ripe for review.  The entirety of the Residents' suit relies upon the possibility that the City will ask all or some of the Residents to vacate the Park.  To show that the controversy at issue is ripe, the Residents assert that they face more than a hypothetical injury.  The Residents allege that: (1) in October 2000, Gonzalez, executive director of the Committee, promised the Residents that they could remain in the Park, (2) the Residents received a letter from Gonzalez stating the same, (3) one of the appellants posted the letter at the Park and it remained there until May 2003, (4) the Mayor subsequently represented in an article and in a speech that the Residents would never be asked to leave the Park as long as they were able to care for themselves, (5) on May 20, 2003, the Mayor announced that the Park Residents who were not permanent would be forced to leave, (6) the transfer of the Park from the City to the PWD is contingent upon the property being free of occupants, (7) the City has communicated to the Residents that it intends to transfer the Park to the PWD, (8) the Mayor directly informed some Residents about the City's intention to breach alleged promises regarding the Residents' ability to continue living at the Park, and (9) the appellants have not retracted their statements that they intend to remove the Residents from the premises.  The Residents believe these alleged actions show that the City has threatened to "breach its agreements,^[10] renege on its promises, and kick the [Residents] off the property."

On appeal, the appellants maintain that the Residents' case is based upon hypothetical facts and events that have not come to pass.  Asserting that this case is not ripe for consideration, they point out that at this time, the City has not transferred the Park to the PWD and neither the City nor the PWD have initiated eviction proceedings against the Residents.  The Commitee and the Corporation point out and the Residents acknowledge that, subsequent to the Mayor's announcement^[11] that the Residents would have to leave, the City has taken the position that the announcement may not have been an official statement of the City regarding its intentions with respect to the Park.  The Committee and the Corporation state that the case at issue is based entirely on what might happen to the Residents at some point in the future, that the case is not ripe, and that the case should be dismissed.

It is fundamental that a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe.  See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442-43 (Tex. 1998); Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988).  Ripeness, like standing, is a threshold issue that implicates subject matter jurisdiction, and like standing, emphasizes the need for a concrete injury for a justiciable claim to be presented.  Patterson, 971 S.W.2d at 442.  The ripeness doctrine avoids premature adjudication on a hypothetical set of facts.  Id. at 444.  At the time a lawsuit is filed, ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote.  Id. at 442 (citation omitted).  An issue is ripe when it presents a fully developed controversy.  Id.  Ripeness thus focuses on whether the case involves "uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all."  Id. (citation omitted).

When we consider the ripeness of a suit, we look to the time the suit was filed. Patterson, 971 S.W.2d at 442.  It is obvious from the Residents' assertions that the City had not made a final decision as to whether it would transfer the property to the PWD, and further, if it did decide to transfer the property, (1) how much of the property would be transferred, (2) if not all the property would be transferred,^[12] then which Residents would be displaced, and (3) when the property would be transferred.  Accordingly, we cannot, on this record, determine (1) if any of the Residents will actually be displaced, or (2) who the allegedly injured parties will be if the City does in fact move to displace any of the Residents.  The answers to these questions are contingent upon the City's decision whether to transfer all or part of the property to the PWD and the conditions, if any, of such transfer.  See id.  The Residents have not presented the trial court with a fully developed controversy.  Id.  We conclude that we do not have jurisdiction to render an advisory opinion on a controversy that is not yet ripe.  See Patterson, 971 S.W.2d at 442-43; Camarena, 754 S.W.2d at 151.  We sustain the City, the Corporation, and the Committee's seventh issue on appeal. 

VI.  Conclusion

We dismiss for want of jurisdiction. 

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 22nd day of August, 2005.

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^[1] See Tex. R. App. P. 47.1, 47.4.

^[2] The Economic Development Corporation of Weslaco was created as a non-profit corporation under the Development Corporation Act of 1979, by the City of Weslaco and pursuant to a resolution passed by the City Commission and Mayor in September 1990.

^[3] Weslaco Development Committee, Inc. was incorporated on February 17, 1960 under the Texas Non-Profit Corporation Act, its purpose being to promote "orderly Commercial and Industrial Development of the City of Weslaco, and community surrounding it."  The Committee dissolved in May 2002.

^[4] See Tex. Bus. & Com. Code Ann. '' 17.01-.854 (Vernon 2002 & Supp. 2004-05).  The Residents' petition does not state specifically which sections of the DTPA it relies upon.

^[5] The Corporation and the Committee filed one joint brief on appeal and the City filed its appellate brief separately.  Though two briefs were filed, the points on appeal in each are identical.

^[6] According to the Residents' fourth amended petition and last live pleading, the PWD owns 45 acres adjacent to the Park.

^[7] The Residents acknowledge that, subsequent to this announcement, the City took the position that the announcement may not have been an official statement of the City regarding its intentions with respect to the Park.

^[8] The order stated:

The Court, having considered by submission the following motions:

1. Defendant City of Weslaco's Plea to the Jurisdiction;

2. Defendant City of Weslaco's Second Motion to Dismiss/Plea to the Jurisdiction;

3. Defendant Economic Development Corporation of Weslaco, Inc.'s Motion to Dismiss for Lack of Jurisdiction/Plea to the Jurisdiction;

4. Defendant City of Weslaco's Supplemental Motion to Dismiss/Plea to the Jurisdiction;

5. Defendants', the Economic Development Corporation of Weslaco, Inc. Joinder in City of Weslaco's Plea to the Jurisdiction and Second Motion to Dismiss/Plea to the Jurisdiction;

6. Defendant's, The Economic Development Corporation of Weslaco, Inc.'s Second Joinder in City of Weslaco's Reply to Response to Plea to the Jurisdiction and Supplemental Motion to Dismiss/Plea to the Jurisdiction; and

7. Defendant's Weslaco Development Committee, Inc.'s First Joinder in City of Weslaco's Pleas, Motions/Pleas, Supplemental Motions/Pleas and Reply to Dismiss and Pleas to Jurisdiction and Second Motion to Dismiss and Plea to Jurisdiction and any responses and evidence with regard thereto, hereby DENIES the motions in all respects.

Signed and entered this the 17th day of February 2005. [Signed by the Judge presiding.]

^[9] The City is such a governmental unit.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(3)(B) (Vernon 2005).  We do not reach the issue of whether the Committee and Corporation are governmental entities as we conclude that we do not have jurisdiction over this case.  See Tex. R. App. P. 47.1.  Our jurisdiction extends no further than that of the court from which the appeal is taken.  Pearson v. State, 315 S.W.2d 935, 938 (Tex. 1958); Nabejas v. Tex. Dep't of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App.BCorpus Christi 1998, no pet.).  We conclude that the trial court did not have jurisdiction over this case, thus neither do we have jurisdiction over the matter on appeal. 

^[10] Again, the appellants maintain that the Residents have no leases with the current or any of the former owners of the Park.

^[11] The Residents maintain "on information and belief" that the announcement came when the Mayor "emerged from a closed session City Commission meeting and announced that the [Residents] who were not 'permanent' would be forced to leave."

^[12] The Residents' petition asserts that the PWD gave the City the choice of transferring either all or part of the Park to the PWD, so long as any property transferred be free of occupants.