No. 01-14-00515-CV In the Court of Appeals for the FILED IN First District of Texas 1st COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 6:09:34 PM CHRISTOPHER A. PRINE KOSOCO, INC., Clerk
Appellant, vs.
METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, Appellee.
On Appeal from Cause No. 1010709 In the County Civil Court at Law No. 4 of Harris County, Texas ______________________
METRO'S SUPPLEMENTAL BRIEF IN RESPONSE TO THE REPLY BRIEF OF APPELLANT Frederick D. Junkin State Bar No. 11058030 fredjunkin@andrewskurth.com Kathryn K. Ahlrich State Bar No. 24063686 katieahlrich@andrewskurth.com Andrews Kurth LLP 600 Travis Street, Suite 4200 Houston, Texas 77002 (713) 220-4200 (713) 238-7387 (Facsimile)
ATTORNEYS FOR APPELLEE METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS
HOU:3513185.3 TABLE OF CONTENTS Page
TABLE OF CONTENTS ................................................................................................. ii INDEX OF AUTHORITIES............................................................................................. iii
PRELIMINARY STATEMENT ..........................................................................................1 ARGUMENT AND AUTHORITIES ...................................................................................3
I. Arguments first raised in a reply brief are waived. ...........................................3
II. The Reply Brief does not cite any relevant authority or competent evidence supporting the construction impairment argument. ...........................................................................................................4
III. Access to the Kosoco property was not materially and substantially impaired during the construction of the North Line.....................6 CONCLUSION .............................................................................................................10
CERTIFICATE OF SERVICE ..........................................................................................12
SERVICE LIST ............................................................................................................12
CERTIFICATE OF COMPLIANCE ..................................................................................12
HOU:3513185.3 ii INDEX OF AUTHORITIES Page(s)
Cases City of Austin v. Avenue Corp., 704 S.W.2d 11 (Tex. 1986)................................. 6, 7
City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969)....................................... 4 County of Bexar v. Santikos, 144 S.W.3d 455 (Tex. 2004) ....................................... 6
Dailey v. Dailey, No. 01-13-00923-CV, 2014 WL 4260543 (Tex. App.–Houston [1st Dist.] Aug. 28, 2014, no pet.) ................................................ 3
Dallas County v. Crestview Corners Car Wash, 370 S.W.3d 25 (Tex. App.–Dallas 2012, pet. denied) ........................................................................ 7, 8
Onyung v. Onyung, No. 01-10-00519-CV, 2013 WL 3875548 (Tex. App.–Houston [1st Dist.] July 25, 2013, pet. denied) .......................................... 3 Pennysavers Oil Co. v. State, 334 S.W.2d 546 (Tex. Civ. App.–San Antonio 1960, writ ref'd) .................................................................................... 10
Priddy v. Rawson, 282 S.W.3d 588 (Tex. App.–Houston [14th Dist.] 2009, pet. denied).............................................................................................. 3, 6 State v. Bristol Hotel Asset Co., 293 S.W.3d 170 (Tex. 2009) .................................. 7 State v. Heal, 917 S.W.2d 6 (Tex. 1996) ................................................................... 6 State v. Schmidt, 867 S.W.2d 769 (Tex. 1993) .................................................... 7, 10
Rules Tex. R. App. P. 38.1(i) ............................................................................................... 6
HOU:3513185.3 iii PRELIMINARY STATEMENT In its Reply Brief — for the first time in any filing related to METRO's
Motion to Dismiss for Lack of Jurisdiction (the "Motion") — Kosoco appears to
contend that the trial court had jurisdiction over its takings claim because "access
to its business was materially and substantially impaired during construction" of
the North Line.1
Kosoco did not raise this argument in its response to METRO's Motion in
the trial court. The sole focus of that response was the post-construction
configuration of North Main.2
In its initial brief in this appeal, Kosoco asserted in its Statement of the Case
that there were periods of time during construction when access to its property was
"totally cut off," "practically impossible," and "completely impossible for gasoline
delivery trucks."3 Kosoco also alluded to construction impacts in the portions of its
brief addressing the Issues Presented.4 None of these passages was supported by
citation to the appellate record, and Kosoco did not present any authority or
argument suggesting that any such impacts were sufficient to vest the trial court
1 Reply Brief of Appellant 4. 2 See CR 182-211 (no mention of construction impacts). 3 Brief of Appellant 2. 4 Id. 4, 11.
HOU:3513185.3 with jurisdiction over its takings claim. As in the trial court, the sole focus of
Kosoco's argument was the post-construction configuration of North Main.5
To the extent Kosoco now contends that its claim should not have been
dismissed because at various times the construction activities associated with the
development of the North Line impacted the routes by which vehicles could access
its property, the argument should be rejected for three reasons:
1. It has been waived, because it was not raised in Kosoco's initial brief; 2. Kosoco's Reply Brief does not cite any competent evidence or relevant authorities supporting the argument; and
3. Even if the Court were to consider the argument, the relevant evidence and authorities establish that the construction of the North Line did not materially and substantially impair access to the Kosoco property.
The Reply Brief also includes arguments relating to issues that were raised
in Kosoco's initial brief and addressed in METRO's Brief of Appellee. As they
have already been briefed, this reply does not include further discussion of those
issues. The absence of further briefing should not be construed as agreement with
the assertions and arguments in the Reply Brief. To the contrary, Kosoco
continues to mischaracterize METRO's arguments, the facts of this case as
established in the evidence accompanying the Motion, and the authorities to which
Kosoco refers.6
5 Id. 12-17 (presenting no argument or authority relating to access during construction). 6 See Brief of Appellee 4-5, 6-7, 11, 20-22, 27, 30-34.
HOU:3513185.3 2 ARGUMENT AND AUTHORITIES I. Arguments first raised in a reply brief are waived.
This Court recently noted that "[a]n appellant is not allowed to raise new
issues in a reply brief—even in reply to matters addressed in the appellee's
response—and issues raised for the first time in a reply brief are waived and need
not be considered by the appellate court." Dailey v. Dailey, No. 01-13-00923-CV,
2014 WL 4260543, at *1 (Tex. App.–Houston [1st Dist.] Aug. 28, 2014, no pet.);
see also Onyung v. Onyung, No. 01-10-00519-CV, 2013 WL 3875548, at *21
(Tex. App.–Houston [1st Dist.] July 25, 2013, pet. denied) (declining to consider
issues first raised in a reply brief); Priddy v. Rawson, 282 S.W.3d 588, 597-98
(Tex. App.–Houston [14th Dist.] 2009, pet. denied) (same).
Kosoco's initial brief did not refer to any evidence or authorities supporting a
claim that construction activities materially and substantially impaired access to its
property. It likewise did not present any argument supporting reversal on the basis
of impaired access during construction. The passing references to construction
impacts, without supporting evidence, authority, or argument, should not be
deemed sufficient to preserve the issue for review.
Kosoco has waived any argument for reversal on the ground that access to
its property was impaired during the construction of the North Line. See Dailey,
2014 WL 4260543, at *1.
HOU:3513185.3 3 II. The Reply Brief does not cite any relevant authority or competent evidence supporting the construction impairment argument.
Kosoco does not cite a single case addressing the proof required to establish
a material and substantial impairment of access during the construction of a public
improvement project. The only case it references in connection with its argument
is City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969). But Texland
involved takings claims based on post-construction access; the opinion did not
concern or discuss the proof required to establish a taking based on a claim that
construction activities impacted the routes by which vehicles could access the
claimants' properties. See id.
Kosoco's argument is equally lacking in evidentiary support. On page 2 of
the Reply Brief, Kosoco cites to the Affidavit of Louis Namgoong as support for
the assertion that "Kosoco's business was shut down for days at a time" during
construction.7 Kosoco's reliance on the affidavit is misplaced for several reasons.
First, the affidavit was not presented to the trial court in support of or
opposition to METRO's Motion.8 Kosoco had filed the affidavit in support of its
response to a previously filed No-Evidence Motion for Summary Judgment.9 In
7 Reply Brief of Appellant 2. 8 See CR 5-211. 9 See CR 226-40. METRO passed the hearing on that motion and subsequently deposed Mr. Namgoong in order to investigate the claims in the affidavit. Based on his deposition testimony and other evidence, METRO filed its Motion seeking dismissal for lack of jurisdiction.
HOU:3513185.3 4 responding to the Motion, however, Kosoco did not attach the affidavit as an
exhibit, incorporate it by reference, or otherwise rely on it.10
Second, the affidavit does not state that Kosoco's business was ever
completely shut down, as the Reply Brief implies. Rather, it states: "As a result
Kosoco, Inc.'s business was substantially shut down for days at a time . . . ."11 As
the deposition testimony of Mr. Namgoong subsequently revealed, even this
conclusory assertion was overstated. During his deposition, Mr. Namgoong
admitted that (i) Kosoco never closed due to construction activities12 and (ii) there
were always routes by which vehicles could gain access to the property.13
In the Argument and Authorities section of the Reply Brief, the only
evidence Kosoco cites that is potentially relevant to a construction impairment
argument is an excerpt from Mr. Namgoong's deposition, in which he discussed a
fuel truck that had entered onto the Kosoco property and damaged a pylon and
fence.14 Mr. Namgoong did not recall the specific date of the incident, and he did
not indicate whether it occurred while there were ongoing construction activities
10 See CR 182-211. 11 CR 239 (emphasis added). 12 CR 39-40 (depo 45-46). 13 CR 40-42 (depo 49-53, 55-56). 14 See Reply Brief of Appellant at 5.
HOU:3513185.3 5 adjacent to the Kosoco property.15 He did testify that the fuel truck was not
delivering fuel to Kosoco, apparently "had gotten lost," and utilized a driveway
that was not the typical point of entry or exit for fuel delivery trucks.16 The fact
that a single "lost" fuel truck, at some unspecified time, had difficulty maneuvering
on the property provides no basis for concluding that access to the property was
materially and substantially impaired during the construction of the North Line.
Arguments lacking any legal or evidentiary foundation are waived. Tex. R.
App. P. 38.1(i) ("The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.");
Priddy, 282 S.W.3d at 595-96, 598. As Kosoco's argument is premised on
conclusory assertions lacking evidentiary support and precedential foundation, it
has been waived and should be disregarded.
III. Access to the Kosoco property was not materially and substantially impaired during the construction of the North Line.
A claimant alleging that its property has been "taken" due to an impairment
of access must prove that the impairment is material and substantial. Cnty. of
Bexar v. Santikos, 144 S.W.3d 455, 460 (Tex. 2004); State v. Heal, 917 S.W.2d 6,
9 (Tex. 1996). With respect to an alleged temporary impairment, the claimant
must show that the impairment resulted in a total restriction of access. City of
15 CR 39 (depo 42-43). 16 CR 38-39 (depo 41-42).
HOU:3513185.3 6 Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986). Texas courts have
consistently held that routine construction inconveniences, including inconvenient
or difficult access, are a normal and expected consequence of public improvement
projects, do not constitute material and substantial impairments of access, and are
not evidence of a taking. See State v. Bristol Hotel Asset Co., 293 S.W.3d 170, 173
(Tex. 2009); State v. Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); Avenue Corp.,
704 S.W.2d at 12-13; Dallas Cnty. v. Crestview Corners Car Wash, 370 S.W.3d
25, 45-47 (Tex. App.–Dallas 2012, pet. denied).
In City of Austin v. Avenue Corp., the claimant contended that the
reconstruction of the sidewalk in front of its business created a partial temporary
restriction of access for nine months. The Texas Supreme Court denied
compensation, noting that "[t]he inconvenience and damage which a property
owner suffers from these temporary obstructions are incident to city life and must
be endured." Avenue Corp., 704 S.W.2d at 12; see also Schmidt, 867 S.W.2d at
775. More recently, the Dallas Court of Appeals considered whether occasional
utility disruptions, construction dust, and blocking of access by construction
workers, construction vehicles, and construction materials constitute material and
substantial impairments of access. Crestview Corners Car Wash, 370 S.W.3d at
45. The court concluded they do not, explaining that such occurrences "fall along
HOU:3513185.3 7 the lines of the normal inconvenience from construction activities the supreme
court has routinely rejected as recoverable damages." Id. at 47.
The Reply Brief does not address these authorities. Instead, it misstates
facts, confuses the legal standard for establishing a takings claim, and intertwines
alleged construction and post-construction impacts in an effort to cobble together
an argument that the construction inconveniences Kosoco experienced rose to the
level of a taking.
For example, the Reply Brief states: "Metro does not deny that there were
periods of time during construction when some or all of the entrances to Kosoco's
business were cut off during periods of construction."17 To the contrary, METRO
has denied and does deny that there was ever an occasion when all of the entrances
to Kosoco's business were inaccessible.18 In fact, Mr. Namgoong admitted that
Kosoco was never denied vehicular access to the Property,19 and it never closed its
business during construction.20 Mr. Namgoong also testified that he could not
remember one of the driveways ever being obstructed and that the reports Kosoco
17 Reply Brief of Appellant 4 (with no citation to the record for this bald assertion). 18 See CR 18. 19 CR 40-42 (depo 49-53, 55-56). 20 CR 39-40 (depo 45-46).
HOU:3513185.3 8 received regarding inconvenient access were from customers who had made their
way to the property to purchase fuel and other items.21
The Reply Brief also repeatedly asserts that Kosoco has lost half of its
business due to the North Line project.22 That assertion is based on a passage in
Mr. Namgoong's summary judgment affidavit.23 Contrary to the suggestion in the
Reply Brief, however, the affidavit did not include any information regarding the
gross income, net income, or profits of the business.24
Even if there were competent evidence of a loss of revenues during
construction, the Texas Supreme Court has recognized that a decrease in the
profitability of a business is not relevant to the determination of whether access has
been materially and substantially impaired.
If the public authorities could never change a street or highway without paying all persons along such thoroughfares for their loss of business, the cost would be prohibitive. The highways primarily are for the benefit of the traveling public, and are only incidentally for the benefit of those who are engaged in business along its way.
21 CR 41-42 (depo 53-55). 22 Reply Brief of Appellant 2-4, 7. 23 Id. 2 n.6. As noted above, that affidavit was not made a part of the record on METRO's Motion. See supra 4-5. 24 Although the affidavit did assert that there was a decrease in the gallons of fuel sold between 2009 and "2011 to the present," when Mr. Namgoong was questioned about this passage, he admitted that he did not know how much fuel Kosoco sold in 2012 and 2013. See CR 43 (depo 58-59). This testimony negated any evidentiary foundation for the suggestion that Kosoco has experienced a post-construction decrease in fuel sales.
HOU:3513185.3 9 Schmidt, 867 S.W.2d at 773 (quoting State Highway Comm'n v. Humphreys, 58
S.W.2d 144, 145 (Tex. Civ. App.–San Antonio 1933, writ ref'd)); see also
Pennysavers Oil Co. v. State, 334 S.W.2d 546, 547, 548-49 (Tex. Civ. App.–San
Antonio 1960, writ ref'd).
In his deposition, Mr. Namgoong acknowledged that the activities that
impacted access to the Kosoco property during the construction of the North Line
amounted to "the normal construction process of a project like this."25 Such
activities may have made access to the Kosoco property more difficult and less
convenient, and may even have contributed to a decrease in business during the
construction period. However, such impacts do not constitute a material and
substantial impairment of access. As Mr. Namgoong acknowledged, there were
always routes by which it was possible for customers to travel to the property.
CONCLUSION Kosoco has waived any argument based on an alleged impairment of access
to its property during the construction of the North Line by failing to raise the issue
in its initial brief and by failing to provide adequate legal or evidentiary support for
the argument. Accordingly, the Court should disregard the portions of the Reply
Brief relating to alleged impacts arising from construction activities.
25 CR 37 (depo 35).
HOU:3513185.3 10 Even if the Court does consider the construction impairment argument, the
relevant evidence and applicable authorities establish that access to Kosoco's
property was not materially and substantially impaired.
The trial court's Order dismissing Kosoco's takings claim should be
affirmed.
Respectfully submitted,
By: /s/ Frederick D. Junkin Frederick D. Junkin State Bar No. 11058030 fredjunkin@andrewskurth.com Kathryn K. Ahlrich State Bar No. 24063686 katieahlrich@andrewskurth.com Andrews Kurth LLP 600 Travis, Suite 4200 Houston, Texas 77002 (713) 220-4200 (713) 238-7387 (fax) ATTORNEYS FOR APPELLEE METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS
HOU:3513185.3 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing METRO's Supplemental Brief in Response to the Reply Brief of Appellant was forwarded to all counsel of record by electronic service on this 14th day of January, 2015. /s/ Frederick D. Junkin Frederick D. Junkin
SERVICE LIST Michael D. Sydow The Sydow Firm, LLP 5020 Montrose Boulevard, Suite 450 Houston, Texas 77006 michael.sydow@thesydowfirm.com
Counsel for Appellant Kosoco, Inc.
CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the undersigned certifies that this brief complies with the word limits of Rule 9.4(i)(2)(B) because, exclusive the parts of the brief exempted by Rule 9.4(i)(1), it contains 2,316 words (and this brief and the Brief of Appellee combined contain a total of 9,452 words). /s/ Frederick D. Junkin Frederick D. Junkin Attorney for Appellee Metropolitan Transit Authority of Harris County, Texas
Dated: January 14, 2015
HOU:3513185.3 12