Dennis L. Ambrose v. City of Brownsville, Texas & the City of Brownsville Public Utility Board

Opinion

ACCEPTED

13-15-00039-CV

THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

9/30/2015 1:20:38 PM

Dorian E. Ramirez

CLERK

NO. 13-15-00039-CV

FILED IN

13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 13TH COURT OF APPEALS

IN THE 13TH

9/30/2015 1:20:38 PM

SITTING IN EDINBURG, TEXAS DORIAN E. RAMIREZ

Clerk

__________________________________________________________________

DENNIS AMBROSE

Appellant

v.

CITY OF BROWNSVILLE, TEXAS AND PUBLIC UTILITIES BOARD OF BROWNSVILLE, TEXAS.

Appellees

__________________________________________________________________

APPELLEES’ AMENDED BRIEF APPELLEES'

TREVINO & BODDEN DAVIDSON TROILO REAM & 805 Media Luna, Suite 300 GARZA Brownsville, Texas 78520 A Professional Corporation 956-554-0683 (telephone) 7550 West I.H.-10, Suite 800 956-554-0693 (fax) San Antonio, Texas 78229 E-mail: etrevino@trevinobodden.com 210-349-6484 (telephone)

210-349-0041 (fax) E-mail: lream@dtrglaw.com

By: /s/ /s/ Eddie Eddie Trevino, Trevino, Jr.

Eddie Trevino, Jr. By: /s/ Lea A. Ream State Bar No. 20211135 Lea A. Ream State Bar No. 16636750

ATTORNEYS FOR APPELLEE

APPELLEES REQUEST ORAL ARGUMENT

IDENTITY OF PARTIES AND COUNSEL

Appellees submit the following list of names and addresses of all parties and counsel pursuant to Tex. R. App. P. 28.1(a):

Appellant : Dennis Ambrose

Appellees : City of Brownsville, Texas and The Public Utilities Board of Brownsville, Texas

Counsel Counsel for forAppellant: Ruben R.

Appellant: Ruben R. Pena

Pena

SBN 15740900 125 Old Alice Road Brownsville, Texas 78520 956-546-5775 (telephone) 956-546-5778 (fax) Riolaw1@aol.com Riolawl@aol.com (email)

Counsel for Appellees: Eddie Trevino, Jr.

SBN 20211135 Trevino & Bodden 805 Media Luna, Suite 300 Brownsville, Texas 78520 956-554-0683 (telephone) 956-554-0693 (fax) etrevino@trevinobodden.com etrevino@a,trevinobodden.com (email)

Lea A. Ream SBN 16636750 Davidson Troilo Ream & Garza 7550 West IH 10 Suite 800 San Antonio, Texas 78229 210-349-6484 (telephone) 210-349-0041 (fax) lream@dtrglaw.com (email)

ii

TABLE OF CONTENTS

Page

IDENTITYOF PARTIES AND COUNSEL .................................................ii ii

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

INDEX OF AUTHORITIES................................................................iv, AUTHORITIES iv, v, vi

STATEMENT OF THE CASE.....................................................................2 CASE 2

ISSUES PRESENTED ……………………………………………………..2,3 .2,3

STATEMENT STATEMENT OF OF FACTS………………………………...............................3 FACTS 3

SUMMARY SUMMARY OF OF THE THE ARGUMENT……..………….....................................7 ARGUMENT 7

ARGUMENT……………………………………………………………….8,22 ARGUMENT 8,22

1. The 1. The trial trial court’s order granting court's order granting Appellees'

Appellees’ Plea

Plea to

to the

the Jurisdiction

Jurisdiction

should be sustained. 2. The Appellant has waived any and all unasserted bases for jurisdiction.

PRAYER PRAYER ………………………………………………………………………23

23

SERVICE 24 CERTIFICATE OF SERVICE.......................................................................24

CERTIFICATE OF COMPLIANCE 24 COMPLIANCE………………………………………......24

APPENDIX……………………………………………………………………..25 APPENDIX .25

Plaintiff’s Second Amended Plaintiff's Second Amended Original Original Petition

Petition

iii

INDEX OF AUTHORITIES

CASES PAGE(S)

Bland Indep. Sch. Dist. v. Blue, 34 S.W. 3d 547, 554 (Tex. 2000) ……….8,9 8,9

Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex.App.-Dallas 2010, no pet.) ……………………………………………22 22

City of Canyon v. McBroom, 121 S.W.3d 410 (Tex. App. – Amarillo App. — Amarillo 2003, 2003, no pet. h.) …………………………………… 13 no pet.

City of Dallas v. Blanton, 200 S.W.3d 266, 272 (Tex.App.-Dallas 2006, no pet.) ……………………………………………17,22 17,22

City of Fort Worth v. Crockett, 142 S.W.3d 550, 552

10

(Tex. App. - Fort Worth 2004, pet. denied)…………………………………10 denied)

City of Paris v. Abbott, 360 S.W.3d 567, 582 (Tex. App.—Texarkana 2011, pet. denied) …………………………………16

16

City of San Antonio v. Hardee, 70 S.W. 3d 207, 212 (Tex. App. San Antonio 2001, no pet.) ………………………………………8

8

City City of San Antonio of San Antonio v.

v. Summerglen

Summerglen Property

Property Owners

Owners Ass

Ass’n

'n Inc.,

Inc.,

185 S.W.3d 74 (Tex. App.-San Antonio, 2005, pet. denied) …………………8

8

City of Weslaco v. Cantu, 2004 WL 210790 (Tex. App. – Corpus App. — CorpusChristi, Christi, 2004, no pet. h.) ……………………………….13 2004, no 13

Concerned Cmty. Involved Dev., Inc. v. City of Houston, th

209 S.W.3d 666, 670 (Tex. App.- Houston [14 [14th Dist.] 2006,

2006, pet. denied) ….18

pet. denied) ....18

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 540, 542

542 (Tex. 2003) …..13

(Tex. 2003) .....13

Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498, 499 (1930) ……………………20

20

Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996) ………………………….20

20

G.C. & S.F. Ry. v. Fuller, 63 Tex. 467, 470-71 (1885) …………………….....20

20

iv

Hardin County Community Supervision and Corrections Department v. Sullivan, 186, (Tex.

106 S.W.3d 186, (Tex. App.

App.—– Austin

Austin 2003, pet. denied) …………………..13 2003, pet. .13

Hart Bros. v. Dallas County, 279 S.W. 1111, 1111 (Tex. 1926) ……………20

20

In re N.E.B., 251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.) ………..22 .22

Leatherwood v. Prairie View A&M University, 2004 WL 253275 (Tex. App. – Houston App. — Houston[1st [1stDist.],

Dist.], 2004, no pet.) …………………………….13 2004, no 13

L–M–S Inc. L—M—S Blackwell, 149 Tex. 348, 233 S.W.2d 286, 289 (1950) ………20 Inc.v.v.Blackwell, 20

McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. denied) …………………………………………22

22

Smith v. City of League City, 338 S.W.3d 114 (Tex. App.--Houston [14th Dist.] 2011, no pet.) …………………………….18

18

State v. BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex.App.-Austin 2009, pet. denied) ………………………………………...11 ..11

State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) ………………………….17

17

State v. Walker, 441 S.W.2d 168, 173 (Tex. 1969) …………………………..21 .21

State v. Whataburger, Inc., 60 S.W.3d 256 th

(Tex. App—Houston [14[14th Dist.] 2001, pet. denied) ………………………...20 ..20

Suleiman v. Texas Department of Public Transportation, 2010 WL 2431076 (Tex. App.—Houston [1[1stst Dist.] 2010, no pet.)(mem.op.) …………………..21 .21

Tex. Tex. Natural Res. Conserv.

Natural Res. Conserv. Comm Comm’n

'n v.

v. IT-Davey,

IT-Davey, 74 S.W.3d 849, 855 (Tex. 2002) ……………………………………………………………………88

Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) …99

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) ……………………………………………………………………9, 10 9, 10

Texas Texas Workers’ Comp. Comm Workers' Comp. Comm’n 'n v.

v. Patient

Patient Advocates

Advocates of

of Tex.,

Tex.,

v

136 S.W.3d 643, 658 (Tex. 2004). ………………………………………….15

15

Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) …………………9

9

United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1378 (2010)…16 (2010) 16

Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) …………………………………………………………………15 15

Withrow v. Schou, 13 S.W.3d 37, 37, 40–41

40-41

(Tex. App.—Houston [14th Dist.] 1999, pet. denied) ……………………..16 .16

CONSTITUTION PAGE(S)

TEX. CONST. art. I, §§ 17 17 …………………………………………………17, 17, 21

TEX. CONST. art. I, § 19 ………………………………………………….5, 5, 14

STATE STATUTES AND RULES PAGE(S)

TEX CIV. PRAC. & REM CODE § 51.014 (a)(4) …………………………16

16

TEX. TEX. GOV’T CODE §§ 2007.002 GOV'T CODE 2007.002 …………………………………………….6,11 6,11

TEX. GOV'T CODE §§ 2007.004(a), .021(b) …………………………………11

11

TEX. GOV'T CODE §§ 2007.021(b), .022(b) ………………………………...11 ..11

TEX. GOV'T CODE § 1502.002 (a) ……………………………………….....19

19

TEX. PROP. CODE § 21.012 ………………………………………………...6, ..6, 12

TEX. PROP. CODE § 21.011 ………………………………………………… 14

TEX. R. APP. P. 38.1 …………………………………………………………22

22

TEX. WATER CODE § 11.035 ……………………………………………….6,22 6,22

42 U.S.C. § 1983 ……………………………………………………………….5,22 5,22

vi

NO. 12-15-00039-CV

13TH COURT OF APPEALS

IN THE 13TH SITTING IN EDINBURG, TEXAS

__________________________________________________________________

DENNIS AMBROSE

Appellant

v.

CITY OF BROWNSVILLE, TEXAS AND PUBLIC UTILITIES BOARD OF BROWNSVILLE, TEXAS.

Appellees

__________________________________________________________________

APPELLEES' APPELLEES’ BRIEF

__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

2

STATEMENT OF THE CASE

this case In this case David David Ambrose,

Ambrose, Plaintiff

Plaintiff in the

the Trial

Trial Court

Court and

and Appellant

Appellant

herein, filed herein, filed suit suit to enjoin

enjoin the use

use of

of his

his property

property by

by the

the City

City of

ofBrownsville

Brownsville

(“City”) and the ("City") the Public Public Utilities

Utilities Board

Board of

of Brownsville (“BPUB”), Defendants Brownsville ("BPUB"), Defendants in

Trial Court the Trial Court and and Appellees

Appellees herein,

herein, when

when resaca

resaca restoration

restoration operations

operations began

began

resacas historically

which were intended to reduce flooding of resacas historically used by Appellees Appellees

as part as part of of Brownville's Brownville’s water system.

system. Defendants/Appellees Defendants/Appellees filed filed aa Plea

Plea to the

Jurisdiction claiming claiming Plaintiff/Appellant Plaintiff/Appellant failed failed to

to assert

assert a valid cause of action for

which their immunity immunity had

had been

been waived. Appellant made efforts to state a cause of waived. Appellant

action by amending his petition twice to state a claim for which Appellees were not

governmentally immune. Following aa hearing, immune. Following hearing, the the Honorable

Honorable Janet Leal presiding

over over the 103rd Judicial the 103rd Judicial District District Court

Court of

of Cameron

Cameron County,

County, Texas

Texas granted

granted

Appellees’ Plea Appellees' Plea to to the

the Jurisdiction.

Jurisdiction. In

Inthis

thisAppeal,

Appeal, Appellant

Appellant has

has only

only contested

contested

the Trial the Trial Court's Court’s decision

decision in

in granting

granting the

the Plea

Plea to

to the

the Jurisdiction

Jurisdiction based

based on

on two

two

causes causes of action: inverse of action: inverse condemnation condemnation and pursuant pursuant to the

the provisions

provisions of the

Texas Private Real Property Rights Preservation Act.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

ISSUE ONE:

order granting

Court’s order

The Trial Court's granting Appellees'

Appellees’ Plea

Plea to

to the

the Jurisdiction

Jurisdiction should

should

be sustained.

3

A. Standard of Review.

B. Appellant failed to plead a waiver of sovereign immunity.

C. Appellant’s claim C. Appellant's claim under the Texas under the Texas Private

Private Real

Real Property

Property Rights

Rights

Preservation Act is statutorily barred.

Appellant’s reliance on the D. Appellant's the Texas Texas Property

Property Code

Code is

is misplaced—It

misplaced—It does

not provide not provide a private

private cause

cause of

of action

action ororwaiver

waiverofofgovernmental

governmental

immunity.

Appellant’s procedural E. Appellant's procedural Due Process Rights, Due Process implicated, have been Rights, if implicated, been satisfied.

Appellant failed F. Appellant failed to allege aavalid to allege validinverse inversecondemnation

condemnation claim,

claim,

governmental immunity governmental immunityapplies, applies,and

andthe

thegranting

grantingofofthe

the plea

plea to the

to the

jurisdiction should be sustained.

ISSUE TWO:

Appellant has waived any and all other bases for jurisdiction.

STATEMENT OF FACTS

The City of The of Brownsville, Brownsville, Texas is

is aa municipality

municipality incorporated incorporated under

under the

laws of the the State State of

of Texas. (2nd SCR 4) The Texas. (2nd ThePublic Public Utilities

Utilities Board

Board of

of Brownsville

Brownsville

water and electric is the water electric utility utility of

of the

the City

City of

of Brownsville. is managed Brownsville. It is managed by a

Board of Board of Directors Directorsappointed appointedbybythe

theCity

CityofofBrownsville.

Brownsville.(CR

(CR4)4) Both

Both are

are

political subdivisions under the the laws

laws of

of the

the State

State of

of Texas. (2nd SCR 4)

Texas. (2nd

4

connection with In connection governmental function with its governmental function of providing water of providing water to

to the

citizens citizens of Brownsville, Appellees of Brownsville, have utilized Appelleeshave utilized the the city’s unique network city's unique network of

of

resacas to use and store water and collect runoff from storms, and thereby help to

prevent flooding prevent flooding of of the

the city. Asaaresult city. (CR 21-22) As resultof ofsediment,

sediment, trash

trash and

and other

debris building up in the resacas, Appellees began an effort to clean, maintain and

restore the resacas restore resacas by implementing implementing the

the Resaca

Resaca Restoration

RestorationProject.

Project. (CR 21-22)

involved a cleaning and dredging The Project involved dredging process which allowed debris that

collected in had collected in the the resacas

resacas to

to be

be removed. Appellees instituted removed. (CR 21-22) Appellees instituted this

project to accomplish project accomplish a number number of tasks but the principal principal reasons

reasons were to create

create

additional water capacity capacity and

and help

help prevent

prevent flooding.

flooding. (CR 21-22)

Dennis Ambrose Dennis Ambrose (hereinafter (hereinafter“Plaintiff”

"Plaintiff' or “Appellant”) was or "Appellant") was aware aware of

Appellees’ plans to clean Appellees' clean and and maintain

maintain the

the resacas

resacas through

through aa dredging

dredging process.

process.

(CR 8-10) (CR 8-10) On OnMarch

March18,

18,2013,

2013,Appellant,

Appellant, through

through his

his counsel,

counsel, sent letters

letters to

Appellees objecting objecting to

to the

the Resaca

Resaca Restoration

Restoration Project

Project planned

plannedby

byAppellees.

Appellees. (CR

8-10)

On November 4, On November 2013 Appellant 4, 2013 Appellant filed suit and filed suit and obtained

obtained an ex parte

parte

Temporary Restraining Temporary RestrainingOrder.

Order. (CR

(CR 4,

4, 31)

31) InInhis

hisOriginal

OriginalPetition

Petition Appellant

Appellant

alleged that alleged on or that on or about about October

October 2013,

2013, Appellees

Appellees trespassed

trespassed on

on Appellant's

Appellant’s

property by placing equipment on his property and dredging his resaca without his

consent. (CR (CR 5)

5) Appellant

Appellantalleged

allegedthat

thatthe

thetrespass

trespass included

included the

the unlawful

unlawful entry on

his property by employees employees of

of Appellees

Appelleesand

andplacing

placingequipment.

equipment. (CR

(CR 5)

5) Appellant

5

alleged that alleged these acts constituted that these constituted aa trespass trespass and

and that these acts were carried out

willfully, maliciously, willfully, maliciously,and andoppressively

oppressivelyresulting in in resulting damages.

damages.(CR

(CR5)5) The

The

purported trespass purported trespass is on “the is on "the water

water portion”

portion" of

of Appellant’s

Appellant's property. (Appellant’s property. (Appellant's

Brief 9-10) Brief 9-10) Appellant Appellant claimed

claimed that

that these

these alleged

alleged events

events caused

caused him to suffer

suffer

mental anguish mental anguish and prayed prayed for

for unspecified

unspecified damages,

damages, exemplary

exemplary damages

damages and

and

attorneys’ fees in addition to injunctive attorneys' injunctive relief.

relief. (CR 5)

After receiving After receiving notice notice of

of Appellant’s claims, Appellees answered and filed a Appellant's claims,

plea to the jurisdiction. After aa hearing, jurisdiction. After denied Appellant’s hearing, the Trial Court denied request Appellant's request

for temporary injunctive injunctive relief. Appellant did relief. (CR 31) Appellant did not not appeal

appeal this decision.

Appellant amended

After Appellant amended his his petition,

petition, (CR Appellees filed their First (CR 31), Appellees

Amended Plea Amended Plea to Jurisdiction asserting to the Jurisdiction asserting that that Appellant’s

Appellant's cause

cause of

of action for

trespass is barred by sovereign or governmental immunity; Appellant had failed to

plead a basis for a waiver of immunity; and Appellant had failed to provide timely

notice of claim.

claim. (CR 15-18).

Appellant filed Appellant Second Amended filed his Second Amended Original Original Petition

Petition on December

December 10,

2014 in which he again asserted a cause of action for trespass, but did not allege allege

any factual basis for a waiver waiver of Appellees’ sovereign of Appellees' sovereign immunity immunity for his

his trespass

trespass

allegation. (CR allegation. 26-29)1. Appellant (CR 26-29)1. Appellant included included new

new allegations

allegations in paragraph

paragraph 2.4 of

Petition that

his Second Amended Petition that Defendants Defendants violated

violated “his rights under "his rights under the

the Texas

Texas

Constitution Article 1, Section 19, in violation of title 42 USC section 1983, and in

1 See Appendix attached hereto.

6

violation of his rights violation rights under under the

the Texas

Texas Private

Private Real

Real Property

Property Rights

Rights Preservation

Preservation

Plaintiff would Act. Plaintiff would further further show

show that

that the

the actions

actions of

of these

these Defendants

Defendants violated his

rights under rights under 11.035 11.035 of

of the

the Texas

Texas Water

Water Code,

Code, providing

providingthat.”

that."[sic].

[sic]. (CR 27)

Appellant later Appellant later makes makes aa passing

passing allegation

allegation in Paragraph 3.1 in Paragraph 3.1 of his Second of his Second

Amended Petition Amended Petition that Appellees failed that Appellees failed to properly condemn condemn Plaintiff's property Plaintiff’s property

and violated Sections 21.012 through through 21.016

21.016 of

of the

the Texas

Texas Property

PropertyCode.

Code. (CR 28)

The basis The basis that that Appellant

Appellant alleged

alleged supports

supports aa waiver

waiver ofofgovernmental

governmental

immunity is immunity Chapter 2007.002 is Chapter 2007.002 of Texas Government of the Texas Government Code, Code, 11.035

11.035 of the

of the

Texas Water Water Code Code and

and aa passing

passing reference

referencetotoaagovernmental governmentaltaking.

taking.(CR

(CR28)

28) In

Appellant’s four Appellant's four page page pleading,

pleading, he does not set forth any facts to support any cause

of action other than than the

the original

original cause

cause of

of action

action that

that he

he asserted

assertedfor

for trespass.

trespass. (CR

Ofsignificance 27-28) Of significance to to this

this appeal,

appeal, Appellant

Appellant did not plead

plead any facts to support

the required elements elements of

of a taking claim, including taking claim, including the the most

most fundamental

fundamental of those

elements-- that some property property of

of Appellant

Appellant was

was taken

taken by

by Appellees.

Appellees. (CR 27-28)

Appellees filed their Second Amended Plea to the Jurisdiction on December

16, 2014 16, 2014 asserting asserting that that the

the court

court lacked

lacked jurisdiction

jurisdiction to

to hear

hear Appellant's

Appellant’s claims

claims

because Appellant's because Appellant’s pleadings pleadings fail

fail to

to allege

allege or

or attempt

attempt to

to establish

establish a basis to waive

sovereign immunity on on the

the part

part of

of Appellees. (2nd SCR 4)

Appellees. (211"

Following aa hearing, Following hearing, the Trial Court the Trial Court granted

granted Appellees’

Appellees' Plea

Plea to the

to the

Jurisdiction by its order order on

on December

December 29,

29, 2014.

2014. (CR 30)

7

SUMMARY OF THE ARGUMENT

This suit This suit arises arises out

out of

of the

the Appellees'

Appellees’ efforts

efforts to

to clean

clean and

and maintain

maintain the

the

resacas in resacas Brownsville to in Brownsville allow the resacas to allow resacas to hold hold more

more water,

water, protecting

protecting its

residents against residents against flooding. Appellant opposed flooding. Appellant opposed this project and began by writing writing

letters expressing letters expressing his his objection. When the

objection. When theletters letters were

wereunsuccessful,

unsuccessful, Appellant

Appellant

filed suit for trespass and obtained an ex parte temporary temporary restraining

restraining order.

order. After

receiving notice of receiving notice Appellant’s petition, of Appellant's petition, Appellees Appellees opposed

opposed the injunctive

injunctive relief

sought by sought Appellant and by Appellant and the Trial Court the Trial Court refused

refused to enter aa temporary to enter temporary or or

preliminary injunction. preliminary Appellees contested injunction. Appellees contested the Trial Court's the Trial Court’s jurisdiction jurisdiction over

over

Appellant’s suit Appellant's suit because because Appellant failed to plead jurisdictional jurisdictional facts

facts or a cause of

action that would provide provide the

the Trial

Trial Court

Court with

with jurisdiction. Appellant now claims jurisdiction. Appellant

suit is that his suit is premised premised on inverse

inverse condemnation,

condemnation, but

but yet

yet he failed in the Trial he failed Trial

Court to identify anything taken from him by Appellees, much less a compensable

taking—a fundamental taking—a fundamentalprerequisite prerequisitetotoany

anyclaim

claim for

for inverse

inverse condemnation.

condemnation. In

reality, Appellant’s reality, complaint remains as it began-- an action for trespass which is Appellant's complaint

barred by the Texas Tort Claims Act.

In seeming seeming recognition

recognition that

that the Trial Court

the Trial Court lacks

lacks jurisdiction

jurisdiction over

over his

his

trespass cause trespass cause of action, action, Appellant

Appellant dropped

dropped his trespass claims his trespass claims in his his appellate

appellate

“sounding

briefing but has instead tried to disguise his claims by labelling them as "sounding

in inverse condemnation.” In the condemnation." In the end, end, Appellant

Appellant was

was unable

unable to articulate

articulate a cause

of action for inverse condemnation condemnation in the Trial Court and still has not articulated, articulated,

8

and cannot articulate, articulate, a basis

basis for

for jurisdiction. Given the absence of a pleading that jurisdiction. Given

justifies Appellees' justifies Appellees’ immunity immunity being

being waived,

waived, the

the Trial

Trial Court lacked jurisdiction and

correctly granted Appellees’ correctly granted Appellees' Plea Plea to the Jurisdiction, to the Jurisdiction, which which this Court

Court should

should

uphold.

ARGUMENT

I. The trial court's The trial court’s order order granting

granting Appellees'

Appellees’ Plea

Plea to

to the

the Jurisdiction

Jurisdiction

should be sustained.

A. Standard of Review

The granting The granting or or denial

denial of

of aa Trial

Trial Court’s ruling on

Court's ruling on aa plea plea to

to the

the jurisdiction

jurisdiction is

is

reviewed by the appellate court under a de novo standard of review. Tex. Natural

Res. Conserv. Res. Conserv. Comm Comm’n

'n v.

v. IT-Davey,

IT-Davey, 74 S.W.3d

S.W.3d 849,

849, 855

855 (Tex.

(Tex. 2002).

2002). To resolve

any jurisdictional issues, this Court can consider the pleadings and other relevant

evidence. City of San Antonio v. Summerglen Summerglen Property Owners Ass’n Property Owners Inc., 185 Ass'n Inc.,

S.W.3d 74 (Tex. App.--San Antonio, 2005, pet. denied); Bland Indep. Sch. Dist.

v. Blue, 34 S.W. 3d 547, 554 (Tex.

(Tex. 2000).

2000). In

In cases

cases in

in which

which the only issue on the

plea to plea to the the jurisdiction jurisdiction involves

involves the

the individual

individual property

property owners’

owners' standing

standing to

to bring

their claims, their claims, the court may the court may not

not consider

consider the

the merits

merits of

of the

the underlying

underlying suit.

suit.

Summerglen, 185 S.W.3d at 83; City of San Antonio v. Hardee, 70 S.W. 3d 207,

212 (Tex. App.--San Antonio 2001, no pet.).

9

Appellant Failed B. Appellant Failed To Plead A Waiver Of Sovereign Immunity

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat

a cause of action without regard to whether the asserted claims have merit. Bland

Indep. School Indep. School Dist. Blue, 34 S.W.3d Dist. v. Blue, S.W.3d 547, 547, 554 (Tex. 2000).

554 (Tex. 2000). AAgovernmental governmental

unit’s sovereign unit's sovereign immunity immunity deprives

deprives a trial

trial court

court of

of subject

subject matter

matter jurisdiction.

jurisdiction.

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

Governmental Governmental immunity, immunity, aa derivation

derivation of sovereign

sovereign immunity,

immunity, shields

shields political

political

subdivisions of subdivisions of the State from suit and the State and liability.

liability. Tooke

Tooke v. Mexia, 197 v. City of Mexia,

S.W.3d 325, 332 (Tex. 2006). Because immunity 2006). Because immunity from suit deprives a trial court of

jurisdiction, aa governmental jurisdiction, governmental entity entityproperly

properlyasserts

assertsimmunity

immunityininaa plea

plea to the

to the

jurisdiction. Miranda, 133 S.W.3d at 133 S.W.3d at 225-26. The plaintiff 225-26. The plaintiff bears bears the burden

burden of

alleging facts alleging affirmatively proving facts affirmatively provingthat that the

the trial court has

trial court has subject

subject matter

matter

jurisdiction. Texas Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.

While the 2001). While the claims claims may

may form

form the

the context

context in

in which

which the

the dilatory

dilatory plea is raised,

the plea should be decided without delving into the merits of the case. Bland, 34

S.W.3d at 554.

Appellant must Appellant must have have alleged

alleged sufficient

sufficient facts

facts to

to invoke

invoke the Trial Court's

the Trial Court’s

jurisdiction which jurisdiction which Appellant Appellant acknowledged

acknowledged in

in his Brief, “In

his Brief, "In aa challenge challenge solely

solely to

to

the pleadings, as here, this Honorable Court must decide if the plaintiff has alleged

sufficient jurisdictional sufficient jurisdictional facts facts to

to show the trial

show the trial court's

court’s subject-matter

subject-matter jurisdiction, jurisdiction,

10

using a liberal using liberal construction construction inin favor

favor of

of the

the plaintiff.” (Appellant’s Brief plaintiff." (Appellant's Brief at at 11,

11,

citing Miranda, 133 S.W.3d at 226.)

Curiously, later in his Brief, Appellant seems to have confused the pleading

responsibilities of the responsibilities the respective respective parties

parties in

in this

this litigation.

litigation. In his Brief, he criticizes

Appellees for Appellees for not pleading that not pleading Appellant’s property that Appellant's property was was not damaged by

not damaged the

by the

resaca project. resaca (Appellant’s Brief project. (Appellant's Brief at at 17).

17). While

WhileAppellees

Appellees contest

contest that

that Appellant

Appellant

sustained any sustained any damage damage to his property,

property, Appellees

Appellees had

had no

no obligation

obligation to

to file such a

pleading, or pleading, or make make such

such an

an allegation. Appellees were allegation. Appellees were the defendants defendants in the suit

responding to responding to the allegations allegations of

of Appellant/Plaintiff. Appellant had alleged that Appellant/Plaintiff. If Appellant

significantly, if he had

he suffered some damage, or more significantly, had alleged alleged that

that Appellees

Appellees

had taken his property, property, Appellees

Appellees would have responded.

would have responded. A

A review

review of

of Appellant’s

Appellant's

Second Second Amended Amended Petition Petition makes

makes abundantly

abundantlyclear

clear that

that he

he did

did not

not make such an

Rather, Appellant

allegation. Rather, Appellant failed failed to

to meet

meet his

his obligations

obligations to plead facts sufficient

to invoke to invoke the the Court’s jurisdiction which Court's jurisdiction which he he acknowledged

acknowledged was required of him.

Governmental Governmentalentities, entities,like

like Appellees,

Appellees,are

are immune

immune from

from suit unless the

suit unless

Texas Legislature Texas Legislature has has expressly

expressly consented

consentedtoto suit and thereby suit and thereby waived

waived the

the

governmental entity’s governmental immunity. City of Fort Worth v. Crockett, 142 S.W.3d 550, entity's immunity.

552 (Tex. App. -- Fort Worth 2004, pet. denied). Absent consent to suit, the trial

court lacks jurisdiction.

jurisdiction. Id. The Appellant Appellant in this proceeding proceeding failed

failed to meet the

standard for waiver of immunity.

11

Appellant’s Claim C. Appellant's Claim Under Under The Texas Private The Texas Private Real

Real Property

Property Rights

Rights

Preservation Act Is Statutorily Barred.

Appellant alleges Appellant alleges the the Appellees

Appellees violated

violated his

his rights

rights under

under the Texas

the the Texas

Private Private Real Real Property Property Rights

Rights Preservation

Preservation Act

Act (“the Act"), which

("the Act”), which can

can be found in

be found in

Texas Government Code 2007.002 et. seq. (CR 27-28) citing to Texas Government

Code 2007.002 2007.002 as authority authority that Appellees' immunity from Appellees’ immunity from suit suit has

has been

been waived.

waived.

While this provision provision does

does in fact waive immunity immunity from

from suit in some instances, it

does not does not here.

here. Appellant Appellant has

hasnot

notmet

metthe

thespecific

specificstatutory

statutory requirements

requirements for

for

jurisdiction under jurisdiction under this this statutory

statutory scheme. Any proceeding scheme. Any proceeding under under the Act must be

filed filed with with its appropriate tribunal its appropriate tribunal ‘not 'not later

later than

than the 180th day

the 180th day after

after the

the date

date the

the

private real property private property owner owner knew

knew or should

should have

have known

known that

that the

the governmental

governmental

restricted or action restricted or limited limited the

the owner's

owner's right

right in

in the

the private

private real

real property.’”

property.'" State v.

BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex.

(Tex. App.--Austin

App.--Austin 2009, pet. denied)

denied)

(quoting TEX. GOV'T. (quoting TEX. GOV'T. CODE CODE §§

§§ 2007.021(b), .022(b)). The 2007.021(b), .022(b)). The Legislature Legislature only

only

waived immunity immunity from from suit

suit to the extent provided for in the Act;

Act; the

the requirement

requirement

that suit that suit against against aa political

political subdivision

subdivision be

be timely

timely filed

filed in district court

in district court is

jurisdictional. Id. §§ 2007.004(a), .021(b); BP Am. Prod. Co., 290 S.W.3d at 367

(holding timely (holding timely filing filing in proper district court court is

is aa jurisdictional

jurisdictional requirement requirement for

suing a political subdivision pursuant to the Act).

Appellant filed Appellant Second Amended filed his Second Amended Original Original Petition

Petition on December

December 10,

2014, in 2014, in which which he he first

first alleged

allegedhis

hiscause

causeofofaction

actionunder

underthe

theAct.

Act. (CR

(CR27) His

27) His

12

Second Second Amended Amended Original Original Petition

Petition isis complaining complaining of

of actions

actions and events that

and events that

occurred occurred on or about September September 2013,

2013, which

which conservatively

conservatively isis 436

436 days

days from the

date in which date which Appellant Appellant brought

broughtforth

forthhis

his claims

claimspursuant

pursuanttotothe

theAct.

Act. (CR 27)

Therefore, taking Therefore, Appellant's allegations taking Appellant’s allegations as as true

true as to his claim under the Act and

has not

the date of filing his claim, he has not met met the

the jurisdictional

jurisdictional requirements for suit,

and any and all claims under the Act are barred.

D. Appellant’s Reliance on the Texas Property Code is Misplaced—It Does Appellant's Provide a Private

Not Provide Private Cause Cause Of

Of Action

Action or

or Waiver

Waiver of

ofGovernmental

Governmental

Immunity.

Appellant in his Second in his Second Amended

Amended Original

Original Petition

Petition provides

provides for

for aa "kitchen

“kitchen

sink” approach sink" approach to pleading, attempting to pleading, attempting to to “throw

"throw in” many state

in" many state and

and federal

federal

statutes that statutes that relate relate to

to condemnation. Appellant cites to Chapter condemnation. Appellant Chapter 21 of the the Texas

Texas

Property Property Code Code which which relates

relates solely

solely to

to aa governmental

governmental entity’s ability to entity's ability to exercise exercise

eminent eminent domain domain authority, authority,and

anddoes

doesnot

not provide

providefor

for aa private

private right

right or cause of

or cause

action, and therefore action, therefore is insufficient insufficient in

in providing

providing subject

subject matter

matter jurisdiction.

jurisdiction. (CR

28)

Section 21.012 of the Texas Property Code provides the statutory authority

and procedural and procedural guidelines guidelines for

for entities

entities that

thatpossess

possess“eminent

"eminentdomain

domainauthority.”

authority." “If

"If

an entity with eminent domain authority wants wants to acquire real property for public

use but use but is is unable unable to

to agree

agree with

with the

the owner

owner of

of the

the property

property on the

the amount

amount of

damages, the entity may begin a condemnation damages, condemnation proceeding proceeding by

by filing

filing a petition in

the proper the proper court.” Tex. Prop.

court." Tex. Prop. Code § 21.012. There There is

is no

no private

private right or cause of

13

action under Chapter 21 of the Texas Property Code that provides an individual the

authority to institute suit to force force condemnation

condemnation proceedings.

proceedings. Appellant lacks such

authority and lacks standing to file suit based upon these statutes.

When bringing When bringing suit against a governmental suit against governmental entity, entity, the plaintiff has the plaintiff the

has the

burden to affirmatively plead a valid waiver of immunity from suit in order to vest

the trial court with jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

540 (Tex.

(Tex. 2003). Although the 2003). Although the allegations allegations in the Appellant's pleadings are Appellant’s pleadings to be are to be

liberally construed, construed, the Appellant’s live pleading Appellant's live pleading must demonstrate, not only from

the facts alleged, but also from references to statutes or other provisions of law,

that the that the defendant's defendant’s governmental governmental immunity

immunity from

from suit has been waived.

waived. City

City of

Weslaco v. Cantu, 2004 WL 210790 210790 (Tex.

(Tex. App. – Corpus

App. — Corpus Christi,

Christi, 2004,

2004, no pet.);

Leatherwood v. Prairie View Leatherwood View A&M A&M University,

University, 2004 WL

WL 253275

253275 (Tex.

(Tex.App.

App.—–

[1st Dist.], 2004, no pet.); City of Canyon v. McBroom, Houston [1st McBroom, 121 S.W.3d 410

(Tex. App. – Amarillo App. — Amarillo 2003, 2003, no

no pet.); Hardin County Community Supervision and

Corrections Corrections Department Department v. Sullivan, 106 S.W.3d 186, 186, (Tex.

(Tex. App.

App.—– Austin 2003,

pet. denied). In In the

the present

present case,

case, Appellant's pleadings fail Appellant’s pleadings fail to to provide

provide a sufficient

sufficient

statutory or other legal statutory legal provision provision which

which affirmatively

affirmatively establishes establishes any

any waiver

waiver of

immunity from

Appellees’ immunity Appellees' from suit.

suit.

14

E. Appellant’s Procedural Appellant's Procedural Due Due Process Rights, If

Process Rights, If Implicated, Implicated, Have

Have Been

Been

Satisfied.

Appellant further contends that, by failing to follow the procedures set forth

in Chapter 21 of the Texas Property Code, Appellees have violated his Procedural

Due Process Due Process rights rights under

under Article

Article I, Section 19

I, Section 19 of

of the

theTexas

TexasConstitution.

Constitution.

(Appellant's Brief at 13-15) (Appellant’s Brief 13–15) The The Texas Constitution provides that “[n]o Texas Constitution "[n]o citizen citizen of

of

this State shall be deprived of life, liberty, property, privileges or immunities, or in

any manner any manner disfranchised, disfranchised, except

except by

by the

the due

due course

courseof

ofthe

thelaw

lawof

ofthe

theland.” TEX.

land." TEX.

CONST. CONST. Art.

Art. I,I, §§ 19.

19. Chapter

Chapter 21

21 of

ofthe

theTexas

TexasProperty

Property Code

Code sets

sets forth

forth the

the

procedural safeguards procedural safeguardsthe the government

governmentmust

mustfollow

followin

in exercise

exercise its powers of

its powers

eminent domain. Tex.

Tex. Prop.

Prop. Code

Code § 21.011(2015).

Here, however, Here, however, Appellees Appellees never

never sought

sought to condemn or

to condemn take Appellant's or take Appellant’s

property. Rather, property. Rather, the the City

City was

wasmerely

merely cleaning

cleaning and

and restoring

restoring the

the resacas.

resacas.

Accordingly, Appellees Accordingly, Appellees had had no

no reason

reason or obligation

obligation to follow the procedures procedures set

forth in Chapter 21 of the Texas Texas Property

Property Code.

Code. Tex. Prop. Code § 21.011, et. seq.

Turning to Article I, § 19 of the the Texas

Texas Constitution,

Constitution, Appellant has failed to

satisfy his burden of first satisfy first identifying identifying aa property

property interest

interest warranting

warranting Due Process

Process

protection. AADue Due Process

Process inquiry

inquiry requires

requires aa two-part

two-part analysis:

analysis: (1) the Court must

determine whether determine whether Appellant Appellant has

has aa liberty

liberty or property interest or property interest that that is entitled

entitled to

15

procedural due procedural due process process protection;

protection;and

and (2)

(2) ifif so, what process so, what process is due. Univ.

Univ. of

Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

In Appellant's In Appellant’s Second Second Amended

Amended Petition,

Petition, he

he did

did not

not identify

identify the

the deprivation

deprivation

of property property he sought to vindicate.

he sought vindicate. His Hisargument

argument before

before this

this Court

Court consists

consists

entirely entirely of describing the of describing procedures established the procedures establishedby by Chapter

Chapter 21

21 of Texas

of the Texas

Property Property Code Code for the exercise for the exercise of

of eminent

eminent domain

domain by

bygovernment

government entities.

entities.

(Appellant's Brief at 13-15) (Appellant’s Brief 13–15) He Hepresumes

presumesthat

thatAppellees

Appellees were

were obligated

obligated to initiate

condemnation condemnation proceedings proceedings under

under Chapter

Chapter21. However, Chapter 21 only governs 21. However,

eminent domain procedures eminent domain procedures when the government when the government takes takes private

private property.

property.

Appellees have Appellees have not not taken

taken Appellant’s property and Appellant's property and Appellant Appellant has failed to

has failed identify

to identify

compensable taking. a compensable Accordingly, Appellant taking. Accordingly, Appellant has not identified has not identified aa property property

interest, the interest, the first two prong first of the two prong test, test, that

that is

is worthy

worthy of

of procedural

procedural due

due process

process

protection and his reliance on Chapter 21 is misplaced.

Even the Court Even if the Court found found that

thatprocedural

procedural due

due process

process safeguards

safeguards were

were

triggered, Due triggered, Due Process Process would

would be satisfied. Though be satisfied. Though textually textually different,

different, Texas

Texas

courts generally construe the due course of law provision in the same manner as its

federal counterpart, the Due Process Clause. Texas federal counterpart, Texas Workers’ Comp. Comm'n Workers' Comp. Comm’n v.

v.

Patient Advocates Patient Advocates of Tex., 136 136 S.W.3d

S.W.3d 643,

643, 658

658 (Tex.

(Tex. 2004). Under the

2004). Under the Due

Due

Process Process Clause, Clause, technical technicalnotice

noticeisis not

not and has never

and has never been

been the

the standard

standard for

for

determining whether determining whetherdue dueprocess

processhas

hasbeen

beenafforded

affordedtotoaa litigant. “Rather, due litigant. "Rather, due

process only requires notice, reasonably calculated under the circumstances, to be

16

given.” Withrow v. Schou, 13 S.W.3d 37, 40–41 given." (Tex. App.—Houston [14th Dist.]

40-41 (Tex.

1999, pet. denied) 1999, denied) (citing (citing Peralta

Peralta v. Heights Med.

v. Heights Med. Ctr., Inc., Inc., 485

485 U.S.

U.S. 80, 82

82

Actual notice (1988)). Actual (1988)). notice "more “more than

than satisfies"

satisfies” due

due process

process rights.

rights. United Student

Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1378 (2010).

Here, by Here, by his his own

own admission,

admission, Appellant

Appellant had

had actual

actual notice

notice of the Appellees'

of the Appellees’

Resaca Restoration Restoration Project Project months

months before

before itit commenced.

commenced. Appellant states that, on

or about March 18, 2013, he had his attorney attorney write to Appellees, Appellees, objecting to the

operation, operation, which which letters

letters were

were attached

attachedtotohis

hispetition. (Appellant's Brief petition. (Appellant’s Brief at 9; CR

Appellant then 8-10). Appellant then sought sought and obtained an ex parte temporary temporary injunction.

injunction. After

and aa hearing,

notice to the City and the Trial hearing, the Trial Court Court subsequently

subsequently denied

denied Appellant's

Appellant’s

request for aa preliminary request preliminary injunction injunction refusing

refusing to enjoin

enjoin the

the Resaca

Resaca Restoration

Restoration

Project. Project. (Appellant's Brief at (Appellant’s Brief Denialofofa apreliminary at 9) Denial preliminary injunction injunction can

can be

be

immediately appealed. immediately appealed. Tex. Civ. Prac. & Rem. Code Code § 51.014(a)(4).

51.014(a)(4). Appellant

Appellant

Trial Court's

did not appeal the Trial refusal of Court’s refusal of the

the preliminary

preliminary injunction

injunction and

and cannot

cannot

now complain that he has not been afforded due process. City of Paris v. Abbott,

360 S.W.3d 567, 582 (Tex.

(Tex. App.—Texarkana

App.—Texarkana 2011, pet. denied) (concluding that

plaintiff who failed to avail himself of the procedures for appeal and opportunity to

be heard be heard on on the the matters

matters at

at issue

issue "cannot

“cannot now

now assert

assert aaprocedural

procedural due

due process

process

takings claim”). takings claim").

In short, In short, Appellant's Appellant’s procedural

procedural due process claim fails for the same reason

takings claim that his takings claim fails—he fails—he has

has suffered

suffered no

no compensable

compensableharm.

harm. Even

Even if his

17

property rights property rights had had been

been at issue, Appellant's at issue, Appellant’s actual actual notice

notice of Appellees’ actions of Appellees' actions

preclude an preclude an argument argument that

that Appellant’s

Appellant's due process rights were violated.

F. Appellant F. AppellantFailed FailedToToAllege

AllegeA A Valid

Valid InverseCondemnation Inverse Condemnation Claim, Claim,

Governmental Immunity Governmental Immunity Applies, Applies,And

And The

The Granting

Granting Of

Of The

The Plea To

The Jurisdiction Should Be Sustained.

Appellant's pleadings fail Appellant’s pleadings allege aa valid fail to allege validinverse inverse condemnation

condemnation claim.

claim.

Article I, section Article section 17 17 of

of the

theTexas

TexasConstitution guarantees that Constitution guarantees that "no “no person's

person's

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

use

without adequatecompensation without adequate compensationbeing beingmade....”

made...."TEX.

TEX.CONST.

CONST.art.

art.I,I, §§ 17

17

(emphasis added). (emphasis A takings added). A takings cause

cause of

of action

action consists

consists of

of three

three essential

essential elements:

elements:

(1) an intentional act by the government under its lawful authority (2) resulting in a

taking of the taking the Appellant's Appellant's property

property (3) for public

public use.

use. State v. Holland,

Holland, 221

S.W.3d 639, 643 (Tex.2007).

valid inverse

When an Appellant does not allege a valid inverse condemnation condemnation claim,

as in in this this case, case, governmental

governmental immunity

immunity applies,

applies, and court should and the trial court should

grant a plea to the jurisdiction. City of Dallas v. Blanton, 200 S.W.3d 266, 272

(Tex.App.--Dallas 2006, 2006, no

no pet.). In this

pet.). In this case

case Appellant

Appellant completely failed to plead

an inverse condemnation condemnation claim. His four claim. His four page

page Second

Second Amended

Amended Petition

Petition makes

makes

only a cursory reference to a claim for inverse condemnation. He only mentioned a

claim condemnation once claim for inverse condemnation once in the petition—by petition—by name in substance, name or in substance,

when he stated when “The conduct stated "The conduct of of defendants

defendants set

set out

out above

above constitute

constitute an

an inverse

inverse

condemnation condemnation without without just

just and

and fair

fair compensation.” (CR 28)

compensation." (CR

18

To assert aa constitutional constitutional claim for inverse inverse condemnation

condemnation a plaintiff must

first and foremost foremost allege

allege that

that his

his or

or her

her property

property was

was taken

taken by

by the

the government.

government. In

this case, Appellant made no allegation or even suggestion that his property was

taken by Appellees. taken Appellees. Nowhere Nowhere in

in his

hisSecond

SecondAmended

Amended Petition

Petition does

does Appellant

Appellant

identify any identify property taken any property taken from from him Appellees, which him by Appellees, which is essential and is an essential and

fundamental fundamentalelement elementofofany

any cause

cause of

of action

action for inverse condemnation.

for inverse “A condemnation. "A

necessary element necessary element of an inverse condemnation condemnation claim

claim is that private property was

taken for taken for aa public public use.”

use." Smith v. City of League City, 338 S.W.3d 114 (Tex. App.--

Houston [14th Dist.] 2011, 2011, no

no pet.). “To prove

pet.). "To prove standing, standing, aa party

party must

must demonstrate

demonstrate

that he that he 'possesses ‘possesses an an interest

interest in

in aa conflict

conflict distinct

distinct from

from that

that of

of the

the general

general public,

public,

such that that defendant's defendant's actions havecaused actionshave causedthe

theplaintiff

plaintiffsome

someparticular

particularinjury.’”

injury.'

Smith v. City of League Smith League City, City, 338 S.W.3d 114, 124 124 (Tex.

(Tex. App.—Houston [14th

App.—Houston [14th

Dist.] 2014, Dist.] 2014, no nopetition)(quoting

petition)(quoting Williams Williams v. Lara, 52

v. Lara, S.W.3d 171,

52 S.W.3d 171, 178

178

(Tex.2001)). “Alandowner (Tex.2001)). "A landowner suffers suffers no

no compensable

compensable injury

injury where

where the

the government

government

physically appropriated, has not physically appropriated, denied denied access to, or otherwise otherwise directly

directly restricted

restricted

the use the use of of the the landowner's

landowner's property."

property.” Id. (citing Concerned Cmty. Involved Dev., Dev.,

Inc. v. City Inc. City of of Houston,

Houston, 209 S.W.3d

S.W.3d 666,

666, 670

670 (Tex.App.-Houston

(Tex.App.-Houston [14th Dist.]

Dist.]

“Standing is

2006, pet. Denied)). "Standing is aa question question of

of law

law we

we determine

determine de

de novo.” Id.

novo." Id.

In this case, Appellees were cleaning and maintaining the resacas to increase

storage capacity water storage capacity and prevent prevent flooding

flooding in accordance

accordance with

with the provision

provision of

which permits

state law which municipality to permits a municipality to "improve, “improve, enlarge,

enlarge, equip,

equip, operate,

operate, or

or

19

maintain any maintain any property, property, including

including…

... resacas...” Texas Gov't resacas..." Texas Gov’t Code Code §§ 1502.002

1502.002 (a).

Appellees’ actions

likelihood Appellees'

In all likelihood actions benefited benefited Appellant's

Appellant’s property

property by helping to

prevent flooding, along the resaca by removing trash, debris and excess sediment,

The fact

not hurt him. The fact that that his

his property

property was

was not

not taken

taken but

but benefited

benefited by

by Appellees’

Appellees'

actions would actions would explain explain Appellant’s

Appellant'sfailure

failuretoto articulate

articulateaa taking

taking claim

claim in his

in his

petition.

The only The only complaint complaint articulated

articulated in

in his

his petition

petition was

was that

that Appellees’ had come

Appellees' had come

upon the water portion of the resaca as part of their cleaning and dredging process.

(Appellant’s Brief (Appellant's Brief 9-10) These allegations 9-10) These formed the allegations formed the basis basis of

of Appellant's

Appellant’s

governmental immunity and which Appellant trespass claim which was barred by governmental

has not raised has raised in in this appeal.22

this appeal. But, even But, even giving

giving Appellant

Appellant great

great latitude

latitude in

assuming that assuming that his his alleged

alleged taking

taking claim

claim is based upon

is based Appellees’ access upon Appellees' access to to his

portion of portion the resaca, of the resaca, such such a claim

claim would

would not

not support

support aa claim

claim for

for inverse

inverse

condemnation. Effectively, such condemnation. Effectively, suchaa claim claim would

would seem

seemto

to be

be for some type

for some type of

transitory or passing entry on or through the resaca as part of the dredging process.

Such Such a claim, even if itit had had been

been articulated

articulated by

by Appellant,

Appellant, would not support support a

claim for inverse claim for inverse condemnation condemnation because

becausesuch

suchalleged

allegedharm

harmisis viewed

viewed as

as a

community community loss loss and

and is

is not

not a compensable

compensable taking. The Texas taking. The Texas Supreme Supreme Court has

“concluded that "concluded injuries to that injuries property received to property received or sustained sustained in common

common with

with the

2 2Claims for trespass are barred by the Texas Tort Claims Act. Harris County v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

20

community in which the property is situated, and resulting from the operation of a

public work, public work, are community community in nature. Community in nature. Community damages damages are

are not

not connected

connected

with the with the landowner's landowner's use

use and enjoyment ofof property and enjoyment propertyand andgive

give rise

rise to no

to no

compensation.” compensation." Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996)(citing G.C.

& S.F. Ry. v. Fuller, 63 Tex. 467, 470–71 470-71 (1885)).

State v. Whataburger, In State Whataburger, Inc., 60 S.W.3d S.W.3d 256

256 (Tex.

(Tex. App—Houston [14th

App—Houston [14th

Dist.] 2001, pet. denied), the Court of Appeals explained:

The Texas The Texas Constitution Constitution provides

provides that that nono person's person's property

property

“shall be "shall be taken, taken, damaged

damaged or or destroyed destroyed for or applied for or applied to

to public

public

use without use without adequate adequate compensation

compensationbeing beingmade.”

made." Tex. Const.

art. I, §§ 17.

17. Translating

Translatingthisthisconcept concept into into aaworkable workable scheme

scheme

that produces that produces aa "just, “just, fair,

fair, and

and full

full compensation

compensation has has often often

engrossed engrossed the the best best thought

thought of of the

the courts.”

courts." Hart Bros. v. Dallas County, 279 279 S.W.

S.W. 1111,

1111, 1111 1111 (Tex.1926).

(Tex.1926). BecauseBecause all enhancements, enhancements, whetherwhether public public or private, are rarely or private, rarely achieved achieved

without some without some inconvenience, inconvenience, not all "damages"

not all “damages” are are compensable. compensable. Increased Increased access

access to property often to property enhances its often enhances

value; the inconvenience value; inconvenience and temporary temporary impairment

impairment which

which a

property owner property owner suffers improvements are suffers when street improvements are made made is

simply an simply an incident incident ofof city

city life

life and

and must

must be be endured. “The law endured. "The law

gives him gives him no right right to

to relief,

relief, recognizing

recognizing that that he recoups recoups his

damage in the benefit which he shares with the general damage general public in the in the ultimate ultimate improvement

improvement which which is being made."

is being made.” L—M—S

L–M–S

Blackwell, 149 Tex. 348, 233 S.W.2d Inc. v. Blackwell, S.W.2d 286, 289 (1950)(1950) (quoting Farrell (quoting Farrell v. Rose, Rose, 253253 N.Y.

N.Y. 73,73, 170

170 N.E.

N.E. 498,

498, 499

499

(1930)). Thus, Thus, aa property

property owner

owner may may notnot generally generally recover for

increased traffic increased traffic noise, noise, dust, diversion of dust, diversion traffic, circuity of traffic, circuity of

travel, reduced travel, reduced visibility visibility byby the public, public, etc. Felts Felts v. Harris Harris

County, 915 S.W.2d 482, 485 (Tex.1996); State v. Schmidt, 867 S.W.2d 769, 774 (Tex.1994).

that Appellant

The fact that Appellant has not not suffered

suffered any

any compensable

compensable taking

taking is

further exemplified further exemplifiedby byhis

his allegations

allegationsfor

fordamages.

damages. The

The only

only form

form of

21

damages he damages has articulated he has articulated in his petition in his petition are for alleged are for alleged "mental

“mental anguish."

anguish.”

(CR 27) (CR 27) Mental Mentalanguish anguish damages

damages are

are not

not recoverable

recoverable in action for in an action for

condemnation condemnation or inverse condemnation.

condemnation. State v. Walker, 441 S.W.2d 168,

1969).33

173 (Tex. 1969).

Finally, in his Second Amended Petition Appellant states that the acts of the

Appellees were Appellees were “illegal "illegaland

andunlawful

unlawfulaction.”

action." (CR

(CR 27-29) By stating

27-29) By stating that the the

actions of the Appellees were outside the bounds of any legal authority, Appellant

has plead has plead allegations allegations that

that are

are contrary

contrarytoto aa cause

cause of

of action

action for

for inverse

inverse

condemnation. Taking the condemnation. Taking the Appellant's pleadings as Appellant’s pleadings as true, true, and

and the illegal acts of the

Appellees were unlawful unlawful and outside

outside the bounds of any legal authority, then their

actions cannot actions cannot constitute constitute inverse

inverse condemnation. Therefore, despite not properly condemnation. Therefore, properly

alleging a claim under Article I, Section alleging Section 17 of of the

the Texas

Texas Constitution,

Constitution, Appellant

Appellant

plead that

has failed to plead that the the Appellees were acting Appellees were acting within within their

their "lawful

“lawful authority"

authority”

and instead plead that Appellees Appellees were

were acting

acting outside

outside their

their legal

legal authority.

authority. Because

Appellant failed Appellant failed to properly plead to properly cause of plead a cause of action

action for

forinverse

inversecondemnation

condemnation

governmental immunity governmental immunity applies, applies, and

and the Appellees’

the Trial Court properly granted Appellees'

3 3 The causes The causes of of action

action and

and damages

damages sought

sought byby the

the landowner

landowner in Suleiman

Suleiman v. Texas

Texas

Department of Public Transportation are very similar to those sought by Appellant in this Transportation, 2010 WL 2431076 (Tex.

case. Suleiman v. Texas Department of Public Transportation, st

App.—Houston [1st[1 Dist.] 2010, no pet.)(mem.op.).

pet.)(mem.op.). Suleiman

Suleiman alleged

alleged claims

claims for inverse

condemnation and condemnation and for for trespass

trespass based

based inin part

part on

on TXDOT’s removal of TXDOT's removal of dirt, dirt, excavation

excavation on

on

Appellant’s property Appellant's property and and emotional

emotional distress,

distress, among

among other

other claimed

claimed damages.

damages. Id. at *7-10.

*740.

The The court court of of appeals

appeals affirmed

affirmed the

the trial

trial court’s award of

court's award of a plea to the jurisdiction on these claims and damages. Id. at *10.

22

Plea to the Jurisdiction Jurisdiction and this Court should affirm its decision.

decision. City of Dallas, Dallas,

200 S.W.3d at 272.

II. The II. TheAppellant AppellantHas

HasWaived

Waived Any

Any And

And All

AllUnasserted

Unasserted Bases

Bases For

For

Jurisdiction.

Court, aa party's

To present an issue to this Court, party's brief brief shall

shall contain,

contain, among

among other

non-argumentative statement things, a concise, non-argumentative statement of of the

the facts of the case, supported

by record references, and a clear clear and

and concise

concise argument

argument for the

the contentions

contentions made

with appropriate with appropriate citations citationstoto authorities authoritiesand

andthe

therecord. TEX. R. APP. P. 38.1;

record. TEX. 38.1;

McIntyre v. Wilson, McIntyre Wilson, 50 S.W.3d S.W.3d 674,

674, 682

682 (Tex.App.--Dallas

(Tex.App.--Dallas 2001, pet. denied).

denied).

Existing Existing legal legal authority authority applicable

applicable to

to the

the facts

facts and

and the questions

questions we

we are asked to

address must be accurately cited and analyzed. Bolling v. Farmers Branch Indep.

S.W.3d 893,

Sch. Dist., 315 S.W.3d 893, 896 896 (Tex.App.--Dallas

(Tex.App.--Dallas2010,

2010,no

nopet.).

pet.). When a party

fails adequately brief fails to adequately brief a complaint, complaint, he waives the

he waives the issue

issue on

on appeal.

appeal. In re

In re

N.E.B.,251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.).

Appellant asserted Appellant asserted claims, claims, in

in the Trial Court, under 42 USC Section Section 1983,

Texas Water Code Section 11.035, and a common law cause of action for trespass.

(CR 27-28) Appellant Appellant has

has not

not asserted

asserted on

on appeal

appeal that

that jurisdiction

jurisdiction may be granted

pursuant to these claims, pursuant claims, and thus any appeal for jurisdiction jurisdiction on

on the basis of said

claims is waived in total. Id.

23

CONCLUSION

On the face On the face of of Appellant's

Appellant’s pleadings

pleadings Appellant

Appellant failed

failed to

to allege

allege or

or attempt

attempt to

to

establish establish any any waiver

waiver of governmental

governmental immunity

immunityon

on the part of the

the part the Appellees, Appellees,

asserted claims under statutory authority authority that

that does

does not

not provide

provide for

for a valid cause of

action and failed to properly plead jurisdictional facts that would support a cause of

action under action under inverse inverse condemnation. Appellant properly condemnation. Appellant properly framed framed the

the issue

issue to

to be

decided by decided by this this Court

Court in

in his

his Brief,

Brief, namely,

namely, "whether

“whether plaintiff

plaintiff has

has alleged

alleged sufficient

sufficient

jurisdictional facts jurisdictional factstoto show show the

the trial

trial court’s subject-matter jurisdiction.”

court's subject-matter jurisdiction." It is It is

abundantly clear that Appellant has failed to allege sufficient facts to establish the

court’s jurisdiction. Consequently, court's jurisdiction. Consequently,Appellant's Appellant’sclaims

claimsare

arejurisdictionally

jurisdictionally barred

barred

and the trial court's order granting court’s order granting Appellees'

Appellees’ Amended

Amended Plea

Plea to

to the

the Jurisdiction

Jurisdiction

should be affirmed.

PRAYER

WHEREFORE PREMISESCONSIDERED, WHEREFORE PREMISES CONSIDERED,Appellees, Appellees,the

theCity

City of

Brownsville, Texas and Public Utilities Board of Brownsville, Texas, respectfully Brownsville,

affirm the

request that the Court affirm the Trial Trial Court’s

Court's granting of the Brownsville’s Brownsville's Plea to

the Jurisdiction. the Jurisdiction. The The City

City ofofBrownsville

Brownsville and

and Public

Public Utilities

Utilities Board

Board of

Brownsville, Texas Brownsville, Texas further further respectfully

respectfullyrequest

requestthat

that costs

costs be taxed against

be taxed against

Appellant, Dennis Ambrose, Appellant, Dennis Ambrose, and and for all other relief to which City of of Brownsville

Brownsville

and Public Utilities Board of Brownsville, Texas may be entitled.

24

CERTIFICATE OF SERVICE

and correct

I hereby certify that a true and correct copy copy of the

the foregoing

foregoing document

document has

been forwarded via electronic mail on this the 30th day of September, 2015 to:

Ruben R. Pena 125 Old Alice Road Brownsville, Texas 78520 956-546-5778 (fax) Riolaw1@aol.com Riolawl@aol.com

/s/ Eddie Trevino, Jr. Eddie Trevino, Jr.

/s/ Lea A. Ream Lea A. Ream

CERTIFICATE OF COMPLIANCE

certify that this I certify this document document was

was produced

produced on aa computer

computer using

using Microsoft

Microsoft Word

Word

2010 and contains 2010 contains 5,130 5,130 words, determined by words, as determined the computer by the computer software's software’s 19

word-count function, word-count function, including including the

the sections

sections of

of the document

document listed

listed in Texas Rule

of Appellate Procedure 9.4(i)(1).

Lea A. Ream Lea A. Ream

25

APPENDIX

Plaintiff’s Second Amended Plaintiff's Second Amended Original Original Petition

Petition

26

FILED 2013-DCL-07168 12/10/2014 4:45:29 PM Aurora De La Garza Cameron County District Clerk By Teodula Garza Deputy Clerk CAUSE NO.2013-DCL-7168-D 3447792

DENNIS L. AMBROSE, IN THE 103rd JUDICIAL Plaintiff

v. DISTRICT COURT OF

CITY OF BROWNSVILLE, TEXAS & THE CITY OF BROWNSVILLE PUBLIC UTILITY BOARD, CAMERON COUNTY, TEXAS Defendants

PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, DENNIS L. AMBROSE, hereinafter referred to as Plaintiff, complaining of the CITY OF BROWNSVILLE, TEXAS and the CITY OF BROWNSVILLE PUBLIC UTILITY BOARD (PUB) , hereinafter called by name or as defendants, and for such cause of action, would respectfully show unto the Court and jury as follows:

I.

PARTIES

1.1 Plaintiff, DENNIS L. AMBROSE , is a resident of Cameron County, Texas. 1.2 Defendant, the BROWNSVILLE PUBLIC UTILITY BOARD, is a semi autonomous board of the City of Brownsville, with its own board of directors and its own manager.

1.3 The Defendant BROWNSVILLE PUBLIC UTILITY BOARD has appeared herein and filed an answer.

1.4 The CITY OF BROWNSVILLE, TEXAS has appeared herein and filed an answer. 1.5 Venue is proper in Cameron County, Texas in that the incidents the basis of this cause of action occurred in Cameron County, Texas, and the property subject of this suit is located in Cameron County, Texas. Pursuant to Tex. Civil Practice & Remedies Code §15.011 venue is mandatory in Cameron County, Texas.

II.

FACTUAL ALLEGATIONS

2,.1 The injuries and damages suffered by the plaintiff and made the basis of this action

27

arose out of a series of occurrences which occurred on or about September 2013 and continues through the present.

2.2 Plaintiff is the owner of real property where he resides and which is located adjacent to Dean Porter Park, more particularly described as follows:

Lot Seven (7) and the Southeast Six feet (6') of Lost Six (6) in a resubdivision of Lots One (1) and Two (2), Block Three (3), LOS EBANOS ADDITION, a Subdivision in the City of Brownsville, Cameron County, Texas, according to the Map of record in Volume 12, page 31, Map Records of Cameron County, Texas.

2.3 On or about March 18, 2013, long before the incidents giving rise to these claims, Plaintiff by and through his attorney advised the PUB, and the City of Brownsville and its legal counsel that he opposed any dredging on his property, which includes the resaca. Plaintiff was made aware through newspaper publications that the city and PUB were planning on dredging resacas throughout Brownsville, Texas. Having previously been invaded by the Defendants against his will and consent, Plaintiff sought to preempt the illegal and unlawful taking of his property. In spite of his protests the Defendants nevertheless, undertook the illegal and unlawful action.

2.4 The actions by the Defendants violated his rights under the Texas constitution article I, Section 19, in violation of title 42 USC section 1983, and in violation of his rights under the Texas Private Real Property Rights Preservation Act. Plaintiff would further show that the actions by these Defendants violated his rights under §11.035 of the Texas Water Code, providing that 2.5 In spite of such request to cease and desist the Defendants in violation of Plaintiffs property rights, have trespassed by placing equipment on his property, dredging his resaca without his consent. The dredging has caused Plaintiff a great deal of mental anguish.

2.6 This has not been the first time the Defendants have entered onto Plaintiffs property without permission and without securing an easement for the purposes of dredging the said resaca. The Defendants have a history of trespassing on plaintiffs property without obtaining permission or any legal right to do so. On at least two prior occasions Defendants have trespassed on Plaintiff's property. The trespass includes the unlawful entry on his

28

property by employees of the Defendants and placing equipment , i.e. a tanker truck and two pickup trucks on Plaintiffs property in September of 2013 without regard to the ownership of Plaintiff and without regard that Plaintiff has sought injunctive relief. This constitute a willful, wonton and malicious action on the part of the Defendants.

III.

3.1 Defendants have failed to properly condemn plaintiffs property and have as a result violated section 21.012 through 21.016 of the Texas Property Code. Under Chapter 2007.002 et. seq. of the Texas Government Code immunity has been waived as to suit and liability in regards to a governmental taking. The City of Brownsville, Texas and the Public Utility Board have admitted they are "political subdivisions" under the laws of the State of Texas. As such governmental immunity is not applicable to governmental taking. Under Texas Water Code § 11.035 immunity has also been waived as to suit and liability.

3.2 Plaintiff has complied with all conditions precedent.

IV.

DAMAGES

4.1 The conduct of defendants set out above constitute an inverse condemnation without just and fair compensation. Plaintiff is hereby entitled to recover actual damages.

V

JURY DEMAND

5.1 Plaintiff has previously requested a jury trial and reasserts his demand for a trial by jury.

Prayer for Relief

WHEREFORE PREMISES CONSIDERED, plaintiff prays that this Honorable Court grant the following: 1. Judgment against the Defendants for Plaintiffs damages; 2 A permanent injunction be issued, on final trial of this cause, enjoining defendant, its agents, servants, and employees, directly or indirectly from trespassing onto Plaintiffs property; 3. Court costs

29

4. Attorneys fees; 5. Prejudgment interest as allowed by law; 6. Interest on said judgment at the legal rate from date of judgment 7. Such other and further relief to which plaintiff may be justly entitled

Respectfully submitted,

LAW OFFICES OF RUBEN R. PERA, P.C. 125 Old Alice Rd Brownsville, Texas 78520 Tele: 956-546-5775 Fax: 956-546-5778

BY:IslRuben R. Pena

RUBEN R. PESTA State Bar No. 15740900 Cameron County I.D. No. 285801

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Second Amended Original Petition has been forward to the attorneys for the Defendants on this the 10TH day of December, 2014.

VIA FACSIMILE• 210-349-0041

WILLIAM A. FAULK, III Davidson Troilo Ream & Garza 7550 West 1F1-10, Suite 800 San Antonio, Texas 78229

VIA FACSIMILE: 956-554-0693

Eddie Trevino, Jr. TREVINO & BODDEN 805 Media Luna, Bldg 300 Brownsville, Texas 78520

/s/ Ruben R. Pena

Ruben R. Pena