Latter Day Deliverance Revival Church and Christian Fellowship Missionary Baptist Church v. the Houston Housing Authority ( 2015 )

ACCEPTED
01-15-00790-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/16/2015 3:52:49 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00790-CV
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
AT HOUSTON 10/16/2015 3:52:49 PM
CHRISTOPHER A. PRINE
Clerk
LATTER DAY DELIVERANCE REVIVAL CHURCH AND
CHRISTIAN FELLOWSHIP MISSIONARY BAPTIST CHURCH,
Appellants,
v.
HOUSTON HOUSING AUTHORITY
Appellee.
APPELLANT LATTER DAY DELIVERANCE REVIVAL CHURCH’S
RESPONSE TO APPELLEE HOUSTON HOUSING AUTHORITY’S
MOTION TO DISMISS INTERLOCUTORY APPEAL AS MOOT
Appellant Latter Day Deliverance Revival Church (Latter Day)
respectfully requests that the Appellee Houston Housing Authority’s (HHA) Motion
to Dismiss Interlocutory Appeal As Moot be denied.
1. Latter Day filed this action under the Religious Freedom
Restoration Act (RFRA), seeking to prevent HHA from condemning its church
property through eminent domain for use as a targeted public-housing project.
Latter Day moved for a temporary injunction, and the district court held a hearing.
2. The district court issued an order denying Appellants’ request for
temporary injunction on September 1, 2015, on the sole basis that Latter Day had
failed to show that HHA’s taking of its church properties would impose a substantial
burden on Latter Day’s religious practice. (Ex. A, Order Denying Temporary
Injunction.)
3. Latter Day filed an interlocutory appeal of that decision on
September 4, 2015.
4. On September 11, 2015, the trial court entered an order granting
the HHA’s plea to the jurisdiction. HHA had argued that the district court lacked
jurisdiction because the County Court at Law has exclusive jurisdiction of
condemnation actions and because Latter Day allegedly failed to provide the 60-day
pre-suit notice usually required by RFRA. 1
5. Latter Day and Christian Fellowship filed a notice of appeal on
September 18, 2015 challenging the jurisdictional dismissal. The appeals from the
denial of temporary injunction and from the plea to the jurisdiction are consolidated
in the above case number. Appellants’ opening brief is due November 18, 2015.
Appellants intend to address both the jurisdictional dismissal and the temporary-
injunction ruling in their opening brief.
6. HHA moves to dismiss the interlocutory appeal from the denial
of temporary injunction because “it is routinely held that the rendition of a final
1
Latter Day countered that the district courts and county courts at law share concurrent jurisdiction over suits that
are related to condemnation actions but not themselves condemnation actions, see Taub v. Aquila Sw. Pipeline
Corp., 93 S.W.3d 451 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (allowing a landowner’s trespass to title
claim against a condemnor in district court and holding that “the Harris County Civil Courts at Law have
jurisdiction, but not exclusive jurisdiction, over a landowner’s claim . . . when those claims are inherently
intertwined in an eminent domain proceeding”); county court jurisdiction had not attached because HHA had not
served Latter Day with the condemnation action at the time HHA filed its RFRA suit in district court (indeed, it was
not served until October 2, 2015); the pre-suit notice requirement is not jurisdictional, see Barr v. City of Sinton, 295
S.W.3d 287, 292 n.8 (Tex. 2009); and even if the pre-suit notice requirement was jurisdictional, Latter Day satisfies
the exception to the pre-suit notice requirement, and in any event, complied by providing pre-suit notice before
filing its first amended complaint.
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judgment moots an appeal from an order denying a temporary injunction.” (Mot. ¶
4.)
7. The motion should be denied. The rule cited by HHA applies
only when the district court renders final judgment on the merits while an appeal of
the temporary injunction is pending. The reason is obvious: It makes no sense for an
appellate court to review a temporary resolution of the merits when it can instead
review a final resolution of the merits on a complete record. As the Texas Supreme
Court explained, “[t]he rules of law concerning dismissal of an appeal from a
temporary injunction after it has been rendered moot by a final judgment are
necessary to prevent premature review of the merits of the case.” Isuani v. Manske-
Sheffield Radiology Grp., P.A., 802 S.W.2d 235, 236 (Tex. 1991) (emphasis added).
That rule prevents parties from using a temporary-injunction appeal “to obtain an
advance ruling on the merits” and the resulting inefficiency of courts reviewing the
merits twice. Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208
(Tex. 1981) (emphasis added). In both of these Supreme Court cases, the Court
dismissed a temporary-injunction appeal as moot where the district court had already
rendered final judgment on the merits. Unsurprisingly, every lower-court case cited
by HHA likewise involved the scenario where an appellate court dismissed the
interlocutory appeal of a temporary injunction after the district court had rendered a
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final judgment on the merits.2
8. Neither the mootness rule nor its stated rationale applies here.
The district court did not enter final judgment on the merits. It granted HHA’s plea
to the jurisdiction for reasons that have nothing to do with the merits-based reasons
it had previously denied the temporary injunction. See Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000) (“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
claims asserted have merit.”); City of Dallas v. Brown, 373 S.W.3d 204, 208 (Tex.
App.—Dallas 2012, pet. denied) (“In our review of both the plea to the jurisdiction
and the temporary injunction, the ultimate merits of the parties’ controversy are not
before us.”). Thus, the appeal of the temporary-injunction denial is in no sense
“moot.” If this Court reverses the district court’s erroneous jurisdictional ruling, the
temporary-injunction ruling would then be ripe for this Court’s review. Reviewing
the temporary-injunction ruling would not present the risk of “reviewing the merits
twice” in the same appeal because the district court has not yet entered final
2
See Lowe v. Farm Credit Bank, 2 S.W.3d 293, 299-300 (Tex. App.—San Antonio 1999, pet. denied) (upholding
grant of summary judgment on merits and dismissing interlocutory appeal of temporary-injunction denial as moot);
Save Our Springs Alliance, Inc. v. Austin Independent School District, 973 S.W.2d 378, 384 (Tex. App.—Austin
1998, no pet.) (same); Bonilla v. Roberson, 918 S.W.2d 17, 20-21 (Tex. App.—Corpus Christi 1996, no pet.)
(dismissing interlocutory appeal of temporary-injunction denial as moot after final judgment on the merits);
Roadrunner Investments, Inc. v. Texas Utilities Fuel Co., 526 S.W.2d 615, 616-17 (Tex. Civ. App.—Fort Worth
1975, no writ) (upholding grant of summary judgment on merits and dismissing interlocutory appeal of temporary-
injunction denial as moot); City of Corpus Christi v. Cartwright, 281 S.W.2d 343, 343-44 (Tex. Civ. App.—San
Antonio 1955, no writ) (dismissing interlocutory appeal of temporary-injunction denial as moot after final judgment
on the merits); Spencer v. Steele, 132 S.W.2d 146, 146 (Tex. Civ. App.—San Antonio 1939, no writ) (same); Jordan
v. Landry’s Seafood Restaurant, Inc., 89 S.W.3d 737, 741 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)
(upholding grant of summary judgment on merits and dismissing appeal of temporary injunction as moot); EMW
Manufacturing Co. v. Lemons, 741 S.W.2d 212, 214 (Tex. App.—Fort Worth 1987) (remanding for trial on merits
and dismissing appeal of temporary injunction as moot).
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judgment on the merits. Nor would it provide a “premature review of the merits”
because the Court will review the jurisdictional dismissal before it reaches the
temporary-injunction issue, and those issues rest on entirely distinct grounds. The
Court would proceed just as it does on every temporary-injunction appeal—by
reviewing the limited record to determine if the district court abused its discretion.
See Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).
9. Extending the mootness rule to non-merits jurisdictional
dismissals would cause the very duplication of effort the rule is designed to avoid. If
this Court were to dismiss the temporary-injunction appeal as moot before
addressing the district court’s jurisdictional ruling—as HHA requests—it would
create a high risk of duplicating judicial effort and wasting party resources. That is,
if the Court dismisses the temporary-injunction appeal as moot, but reverses the
district court’s jurisdictional dismissal, Latter Day on remand would have to file
another request for temporary injunction in district court. The district court would
have to hold another hearing and render another ruling. Assuming the same result
as before, Latter Day would have to file another interlocutory appeal. There is no
reason to put the courts and parties through this charade when the Court already has
a temporary-injunction appeal with a proper record before it now. Certainly, no case
cited by HHA compels this absurd result.
10. To be sure, if this Court affirms the district court’s jurisdictional
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dismissal, the case is over and the temporary-injunction appeal is moot. But the
temporary-injunction appeal is not moot until that happens. For if the Court reverses
the district court’s jurisdiction ruling—Issue One in Latter Day’s appeal—it will
then properly turn to the district court’s denial of the temporary injunction—Issue
Two in this appeal.
11. That is what happened in the most analogous case located by the
parties. In Harris v. Moore, 912 S.W.2d 860 (Tex. App.—Austin 1995, no pet.), the
trial court denied a temporary injunction and then immediately dismissed the case
based on “pleading defects” in the bill of review Id. at 861-62. The plaintiff
appealed both rulings. The court of appeals held that the trial court procedurally
erred in abruptly “dismissing for pleading defects” without full opportunity for the
plaintiff to make his case. Id. at 862. The court recognized the “ordinar[y]” rule
that a final judgment moots a temporary-injunction appeal. Id. at 863. But it also
recognized that its reversal of the district court’s procedurally erroneous dismissal
may have “revive[d]” the interlocutory appeal of the temporary-injunction denial.
Id. The court thus reached the merits of the temporary-injunction ruling, and
affirmed the trial court because there was no abuse of discretion. Id.
12. While Harris is not directly on point, it helpfully illustrates the
limits of the mootness rule. Where a trial court has not finally disposed of the merits
in a procedurally sound way, nothing prevents the appellate court from reviewing
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the denial of a temporary injunction. And the case for declining to extend the
mootness rule is far stronger here, for in Harris the ground for dismissal was merits-
related, while here it is purely jurisdictional.
For these reasons, Appellants respectfully request that the Court deny
Appellee’s Motion to Dismiss Interlocutory Appeal as Moot and for such other relief
that the Court may grant.
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Respectfully submitted,
BAKER BOTTS L.L.P.
By: /s/ Aaron Streett
Aaron Streett
State Bar No. 24037561
Sam Burk
State Bar No. 24064974
Shane Pennington
State Bar No. 24080720
Jonathan Havens
State Bar No. 24087686
910 Louisiana Street
Houston, Texas 77002-4995
Telephone: (713) 229-1234
Facsimile: (713) 229-7847
aaron.streett@bakerbotts.com
sam.burk@bakerbotts.com
shane.pennington@bakerbotts.com
jonathan.havens@bakerbotts.com
Hiram S. Sasser, III
State Bar No. 24039157
Justin E. Butterfield
State Bar No. 24062642
LIBERTY INSTITUTE
2001 W. Plano Parkway, Suite 1600
Plano, Texas 75075
hsasser@libertyinstitute.org
jbutterfield@libertyinstitute.org
ATTORNEYS FOR APPELLANTS
LATTER DAY DELIVERANCE
REVIVAL CHURCH AND
CHRISTIAN FELLOWSHIP
MISSIONARY BAPTIST CHURCH
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C ERTIFICATE OF S ERVICE
I certify that a true and correct copy of this motion was served on all
counsel of record listed below by electronic service on October 16, 2015.
Counsel for Houston Housing Authority:
STRASBURGER & PRICE
P. Michael Jung
State Bar No. 11054600
Kevin J. Maguire
State Bar No. 12827900
Kimberly H. Murphy
State Bar No. 24075619
901 Main Street, Suite 4400
Dallas, Texas 75202
michael.jung@strasburger.com
kevin.maguire@strasburger.com
kim.murphy@strasburger.com
Tel: 214.651.4300
Fax: 214.659.4330
Samuel J. Louis
State Bar No. 12588040
909 Fannin Street, Suite 2300
Houston, Texas 77010
sam.louis@strasburger.com
Tel: 713.951.5604
Fax: 832.397.3503
/s/Jonathan Havens
Jonathan Havens
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