City of Carrollton, Texas v. Milan Hamrla, Petra Chudejova, Michael and Laura Brewer, Dalia Chavarria, Diane and Gene Hines, and Keith Effert ( 2015 )

ACCEPTED
02-15-00119-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
7/10/2015 9:27:36 AM
DEBRA SPISAK
CLERK
IN THE COURT OF APPEALS
SECOND DISTRICT OF TEXAS AT FORT WORTHFILED IN
________________________________2nd COURT OF APPEALS
FORT WORTH, TEXAS
7/10/2015 9:27:36 AM
No. 02-15-000119-CV DEBRA SPISAK
_________________________________ Clerk
CITY OF CARROLLTON, TEXAS
V.
MILAN HAMRLA, PETRA CHUDEJOVA, MICHAEL AND
LAURA BREWER, DALIA CHAVARRIA, DIANE AND GENE
HINES, AND KEITH EFFERT
___________________________________
APPELLEES' BRIEF
ORAL ARGUMENT IS REQUESTED
Bruce E. Turner
Texas Bar No. 20310500
bturner@bennettweston.com
J. Michael Weston
Texas Bar No. 21232100
jmweston@bennettweston.com
Bennett Weston LaJone & Turner PC
1603 LBJ Freeway, Suite 280
Dallas, Texas 75234
Telephone: 972-862-2332
Facsimile: 214-373-2570
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
Table of Contents ......................................................................... ii
Index of Authorities ..................................................................... iv
Statement Regarding Oral Argument........................................... vii
Statement of Facts ........................................................................ 1
The Slope............................................................................. 2
May 2009 ........................................................................... 4
Continuing Global Slope Failure ........................................ 5
Carrollton's Warnings About Slope Failure ...................... 7
Missing Records ................................................................. 10
Taking Earth ...................................................................... 12
History ................................................................................ 13
Retaining Wall.................................................................... 16
Problems from Slope Failure.............................................. 17
Summary of the Argument ........................................................... 18
Argument ..................................................................................... 19
Standard of Review ............................................................ 19
ii
Reply to Issue I - Inverse Condemnation ..................................... 20
Inverse Condemnation ....................................................... 21
Taking of Earth .................................................................. 24
Taking By Slope Failure ..................................................... 25
Knowledge of Effects of Actions ......................................... 26
Reply to Issue II - Negligence....................................................... 31
Negligence .......................................................................... 31
Reply to Issue III - Declaratory Judgment ................................... 33
Prayer ........................................................................................... 36
Certificate of Compliance ............................................................. 37
iii
INDEX OF AUTHORITIES
Constitution and Statutes Page
Article I, section 17(a) of the Texas Constitution .............................. 18, 21
Tex. Civ. Prac. & Rem. Code § 37.004(a) .......................................... 34
Tex. Civ. Prac. & Rem. Code, § 101.001 et seq. .................................. 31
Tex. Civ. Prac. & Rem. Code, § 101.021 ............................................. 31
Cases
City of Amarillo v. Burch, 369 S.W.3d 684 (Tex. App. -
Amarillo 2012, no pet.)...................................................................... 23
City of Carrolton v. RIHR Inc., 308 S.W.3d 444(Tex.App.-Dallas 2010, rev. denied) ................................................. 22, 29
City of Dallas v. Jennings, 142 S.W.3d 310 (Tex.2004) ................. 24, 28, 30
City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012)..................... 23
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ................ 35
City of El Paso v. Mazie's, L.P., 408 S.W.3d 13(Tex.-El Paso 2012, rev. denied) ....................................................... 24
City of El Paso v. W.E.B. Investments, 950 S.W.2d 166(Tex. App. - El Paso 1977, rev. denied) .............................................. 31
City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014) ................. 29
City of Houston v. Wall, 207 S.W.2d 664 (Tex.App.-
Galveston 1947, writ ref'd n.r.e.) ....................................................... 23
iv
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ................... 26-27, 30
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009)...... 26, 28-30
Cozby v. City of Waco, 110 S.W.3d 32 (Tex.App.-Waco
2002, no pet.) .................................................................................... 23
DuPuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965) ........................ 22
Edwards Aquifer Authority v. Day,
369 S.W.3d 814 (Tex. 2012) .............................................................. 24
Hale v. Colorado River Mun. Water Dist., 818 S.W.2d 537(Tex.App.—Austin 1991, no writ) ...................................................... 24
Harris Cnty. Flood Control Dist. v. Kerr, --- S.W.3d ---,
2015 WL 3641517, *2-3 (Tex. June 12, 2015) .................................... 20
Hidalgo Cnty. Water Improvement Dist. No. 2 v.
Holderbaum, 11 S.W.2d 506 (Tex. Comm'n App. 1928,
judgm't adopted) ............................................................................... 24
Hubler v. City of Corpus Christi, 564 S.W.2d 816(Tex.App.-Corpus Christi 1978, writ ref'd n.r.e.)............................... 23
Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537(Tex.Civ.App.—Texarkana 1961, writ ref'd)....................................... 23
Manning v. Embridge Pipelines (East Texas), L.P.,
345 S.W.3d 718 (Tex. App. - Beaumont 2011, rev. denied) ............... 34
Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697(Tex. 2002) ........................................................................................ 25
Mayhew v. Town of Sunnyvale, 964 S.W.3d 922(Tex. 1998) ........................................................................................ 21-22
v
Roberson v. City of Austin, 157 S.W.3d 130(Tex. App.-Austin 2005, pet. denied) ................................................ 34
Simon v. Nance, 45 Tex. Civ. App. 480, 100 S.W. 1038(Tex. Civ. App. - Austin 1907, no hist.) ............................................. 26
State v. Brownlow, 319 S.W.3d 649 (Tex. 2010) .............................. 22, 24
Suarez v. City of Texas, --- S.W.3d ---, WL 3802865
(Tex. June 19, 2015) ......................................................................... 20
Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546(Tex.2004)......................................................................................... 22, 27
Texas Dept. of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) .............................................................. 21
Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) ............. 35
Texas Parks & Wildlife Depar't v. Callaway,
971 S.W.2d 145 (Tex.App.-Austin 1998, no pet.)............................... 23
Will. v. Thompson, 152 Tex. 270,
256 S.W.2d 399 (1953) ...................................................................... 26
vi
STATEMENT REGARDING ORAL ARGUMENT
The Record is extensive and, in places, quite technical. Oral
argument could assist the Court by permitting the parties to address
questions from the Court about the evidence and the applicable law.
vii
IN THE COURT OF APPEALS
SECOND DISTRICT OF TEXAS AT FORT WORTH
________________________________
No. 02-15-000119-CV
_________________________________
CITY OF CARROLLTON, TEXAS
V.
MILAN HAMRLA, PETRA CHUDEJOVA, MICHAEL AND
LAURA BREWER, DALIA CHAVARRIA, DIANE AND GENE
HINES, AND KEITH EFFERT
___________________________________
APPELLEES' BRIEF
Milan Hamrla and Petra Chudejova, Michael and Laura Brewer, Dalia
Chavarria, Diane and Gene Hines, and Keith Effert file their Appellees'
Brief.
STATEMENT OF FACTS
Carrollton relies upon its vague and erroneous assertions that it "did
not know, could not have known, and was not substantially certain, that
any of its actions would result in specific damage." Appellant's Issue I,
Brief p. 5. Appellant makes scant mention of the Record. Appellees'
-1-
references to the record 1 demonstrate they that have satisfied their burden
in establishing jurisdiction. 2
The Slope
This case involves a slope failure on Dudley Branch Creek in
Carrollton along the rear of the Appellees' homes. 3 Earth from the
Appellees' properties moved onto Carrollton's Dudley Branch Creek right of
way.4 Carrollton's Director of Engineering, Cesar Molina, evidenced
Carrollton's attitude towards the slope failure:
Q. How would you evaluate whether or not or how you would put
the earth back?
A. I guess they're welcome to go in there and just dig it out. Put it
back on their property.
Q. So you're going to put it on the Appellees to take back what the
city now has?
A. The city did not take it from them. It moved there.
Q. Well, you do admit the city has it?
1 References to the Record will be have the appropriate volume number with the
type of as follows: Court Record = C.R., Supplemental Court Record = Supp.
C.R., Reporter's Record = R.R. The reference shall be followed by a page
reference or for plaintiff or defendant exhibit number in volume 5 of the Report's
Record to a document. For example, 2 C.R. at 2505, 5 R.R., DX 2.
2 Appellees refer to just a portion of the evidence before the trial court.
3 The common word for a slope failure is landslide.
4 2 C.R. at 2504.
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A. Something moved it there. I'm sure some of it was dirt that was
on this side. Now it's on that side. 5
The suggestion ignores the warnings of Carrollton's expert regarding the
caution with which the earth on the landslide slope must be handled. 6
Geotechnical engineers, particularly Carrollton's geotechnical
engineer, Terracon Consultants, explained the slope failure.7 In its October
2, 2009 Report, Terracon noted as probable causes of the slope failure the
"presence of groundwater and seepage from the heavy rainstorms leading
up to the slope's failure."8 The soil behind the retaining wall at 1325
Barclay after the landslide was so wet and unstable that Terracon could not
drill bore holes in which to place inclinometers to measure the movement
of the slope. 9
Appellees' expert, Mark Farrow, summarized the causes of the slope
failure:
The homes were built below the street grade, which . . . meant the
drainage was extremely poor. The drainage from the lots had to run
back to the retaining wall, which would create a very poor drainage
condition in the back of those properties.
5 2 C.R. at 2505.
6 1 C.R. at 1201-1205.
7 1 C.R. at 934, 1193.
8 1 C.R. at 1200-1201.
9 1 C.R. at 944, 1197.
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The wall was constructed along a slope that was much too steep
for a retaining wall. A 3-to-1 slope is much too steep . . . to be placed
next to a retaining wall, because . . . as [Carrollton's expert] indicated,
you see slope failures in 3-to-1 slopes routinely in levees and highway
embankments . . . that is not in proximity to any . . . structure or
residential improvement is one issue, but when you have a slope
failure beneath a retaining wall that is supporting residential
improvements and a residence, that is a much -- much larger concern,
and so retaining walls are just not constructed on -- on slopes that
steep. . . . [A]s Terracon concluded in their report, they indicated that
the failure was due to deterioration of the soil, but when you do a
global stability study -- as engineers, when we do a global stability
study, we model -- actually model the soil in a deteriorated condition.
We determine how -- when we do triaxial testing or direct shear
testing, we actually model how soft the soil will get in a deteriorated
condition. And from their study, they indicated the factor of safety
was -- was 1.2 without any water impacts, which is well below a safe
factor of safety of 1.5. 10
Carrollton controlled the "presence of groundwater and seepage from the
heavy rainstorms" through its retaining wall, its Dudley Branch right of way
and its drainage system in the addition. Carrollton violated its own
standards related to the "presence of groundwater and seepage from the
heavy rainstorms leading up to the slope's failure."
May 2009
10 1 C.R. at 973-974, see also 1 C.R. at 977-981. Carrollton's in-house engineer only
disagreed with Terracon's report with regard to the measurement of the slope. 1
C.R. at 1033. See 2 Supp. C.R. at 1476-1486.
-4-
It rained heavily during the night of May 3-4, 2009. 11 In the morning,
Appellee Hamrla, 1325 Barclay Drive, found that his back fence was
destroyed, the retaining wall on his property had sunk three feet and moved
eight to ten feet towards Dudley Branch. 12 By July 2013, the drop was
more than seven feet. 13 The landslide was not isolated to 1325 Barclay. 14
Appellees did not cause the landslide.15 Appellees cannot prevent the
slope failure from continuing. 16 The retaining wall failure was caused by,
and not a cause of, the landslide.17 On May 11, 2009, Carrollton's engineer
stated that repair of the retaining wall would not solve the slope failure. 18
The affected properties cannot be sold without disclosure of the
landslide. Tex. Prop. Code, § 5.008. The homes have no value. 19
Continuing Global Slope Failure
Unless something impedes its movement, gravity will cause a slope to
flatten. 20 The likelihood of slope movement is called the factor of safety. 21
11 1 C.R. at 914-915.
12 1 C.R. at 914, 923.
13 1 C.R. at 915.
14 1 C.R. at 1208.
15 1 C.R. at 973-975.
16 1 C.R. at 974-975, 1357.
17 1 C.R. at 1449.
18 1 C.R. at 944, 1197,1470.
19 1 C.R. at 899, 928.
20 1 C.R. at 940-941, 2 C.R. at 2144.
21 1 C.R. at 941-2, 2 C.R. at 2145.
-5-
The higher the factor of safety, the more stable the slope. 22 A factor of
safety of 1.5 or more indicates a stable slope. 23 The International Building
Code adopted by Carrollton requires a factor of safety of 1.5 for retaining
walls. 24 According to the Terracon report, the slope's existing factor of
safety at the retaining wall before heavy rainfall lead to the slope failure was
of 1.013, which signifies imminent failure.25 A factor of safety of one
designates an occurring landslide or slope failure. 26
Carrollton's expert described the slope failure as "continuing global
failure" and stated that "the failure wasn't just in the yard, it went under the
retaining wall and the retaining wall didn't actually fail. You had a global
landslide that impacted the retaining wall." 27 The scarp of the failed slope
continues to move towards and then under the Appellees' homes. 28
Carrollton governs drainage in Rosemeade 14, on Barclay Drive, and
into Dudley Branch all of which contributed to the slope failure. 29 The
retaining wall is part of Carrollton's drainage infrastructure, as are the
22 1 C.R. at 943, 2 C.R. at 2147.
23 4 R.R. at 1120.
24 1 R.R. at 1115, 2 C.R. at 1982.
25 1 C.R. at 942, 1291, 1221.
26 1 C.R. at 1222, 2 C.R. at 2147.
27 2 C.R. at 2090.
28 1 C.R. at 950, 976.
29 Carrollton Ordinance 2581, 1 C.R. at 1228-1339.
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Dudley Branch right of way and the sanitary sewer line easement on which
the retaining wall was constructed.30
Carrollton's Warnings About Slope Failure
Carrollton has adopted ordinances and standards to deal with
drainage and the problems of erosion. 31 Those ordinances and standards
set standards that are to be met to avoid the problems experienced with the
Barclay slope. Carrollton violated its own standards with regard to
drainage on Barclay Drive and Dudley Branch Creek and retaining wall.
Carrollton's Ordinance No. 2581, "Stormwater and Flood Protection
Ordinance," 32 states a purpose of the Ordinance to be "Control and manage
all stormwater runoff and drainage from points and surfaces within
subdivisions." 33 The Stormwater Ordinance applies to all areas of land
within Carrollton, including, with certain exceptions, property owned by
Carrollton. 34 In this case, Dudley Branch, Barclay Drive and the retaining
wall are part of Carrollton's drainage infrastructure. 35
30 2 Supp. C.R. at 932.
31 2 C.R. at 1503.
32 1 C.R. at 1228.
33 1 C.R. at 1229.
34 1 C.R. at 1241.
35 1 C.R. at 1271, 2 C.R. at 1563.
-7-
In its requirements for the Design of Local Drainage Systems, Section
C Street and Alley Capacities, the Stormwater Ordinance provides in
paragraph 3:
The first floor elevations of all residential and other structures shall
be set at a minimum elevation of the lower of either 1.5 feet above the
alley invert or one foot above the top of the street curb elevation, and
with positive drainage provided away from the structure.36
Appellees' homes on the creekside of Barclay Drive are below the elevation
of Barclay Drive and do not drain on to Barclay Drive. Water at the front of
the homes flows to the homes and then towards Dudley Branch. 37
In its report, Terracon found that the Dudley Branch Creek slope was
three feet horizontal to one foot vertical. 38 This slope, maintained by
Carrollton, violates the Stormwater Ordinance which requires a 4 to 1
slope.39
In its December 1992 Erosion Control Master Plan Carrollton makes
a number of comments directly relevant to the allegations regarding
Carrollton's obligations for the landslide. 40 A significant concern in the
36 1 C.R. at 1261, 2 C.R. at 1571.
37 1 C.R. at 973.
38 1 C.R. at 1219.
39 1 C.R. at 1268, 2 C.R. at 1562 (Ordinance No. 1375 enacted in December 1986).
40 1 C.R. at 1340.
-8-
Erosion Control Master Plan was the stability of sideslope. 41 Regarding the
erosion process, the Erosion Control Master Plan states:
Many of the channel areas in the City of Carrollton are located in clay
soils. Clay soils have high cohesive properties and under dry
conditions will exist with steep banks. Under high rainfall and
flooding conditions the clay soils become saturated and lose their
cohesive strength. The loss of cohesive strength results in unstable
slopes and sideslope failures. A frequently experienced erosion
process includes the following conditions:
7. Steep channel sideslopes become saturated and unstable.
8. Sideslopes fail in unstable planes and continue to become
wider and deeper.42 (Emphasis added)
The erosion process causes a three fold problem, the second of which is
"Channel sideslopes are unstable and are subject to sloughing or rotational
failures. 43
Regarding the specific area in which the slope failure occurred,
Carrollton's December 1992 Erosion Control Master Plan states "This
erosion is undermining the concrete channel section and resulting in slope
failures. The slope failures are in danger of impacting retaining walls,
fences, and residences. 44 (Emphasis added).
41 1 C.R. at 1342, 1343.
42 1 C.R. at 1344.
43 1 C.R. at 1344.
44 1 C.R. at 1335.
-9-
Understanding that Terracon's October 2009 report described the
earth at the slope failure as various forms of clay, 45 the following statement
from the Erosion Control Master Plan is particularly important:
The worst case condition for slopes, which consisted of
predominantly clay soils, occurs when the slopes become saturated
from frequent rainfall and flooding. Under these conditions the clay
soils loose their cohesive strength and develop internal water
pressure which result in slope failures. Retention systems must be
designed to prevent these soils from movement under these
conditions.46
(Emphasis added). The quoted excerpts show Carrollton knew that its
failure to follow its own standards would result in slope failure.
Missing Records
Carrollton's failure to maintain legally mandated records, 47 some of
which once existed and others of which were never maintained complicated
the presentation of evidence.48
As an example of the impact of the missing documents, Appellees
direct the Court to testimony from Michael McKay, the Carrollton engineer
in charge of "review of development plans, . . . construction inspection, and
45 1 C.R. at 1199-1200.
46 1 C.R. at 1358.
47 1 C.R. at 2223-2228.
48 2 C.R. at 2216, 2223-2234.
-10-
. . . drainage,"49 regarding the retaining wall that is central to this case. 50
The exhibit being discussed states that Carrollton "approved the
construction plans for the wall, inspected the wall during construction and
accepted the improvements on completion." Carrollton also received a
maintenance bond for the wall. 51 Looking at the exhibit, McKay testified:
Q. Okay. Then the next sentence says, the City approved the
construction plans for the wall. Do you see that?
A. Yes.
Q. Did you find anything in the records of the City of Carrollton
improving -- approving the construction plans for the wall?
A. No, I did not.
Q. The next section says, inspected the wall during construction.
Did you find anything that related to inspection of the wall
during construction?
A. I found no documentation of that.
Q. And that the City accepted the improvements on completion.
Do you see that?
A. I see that, yes.
49 2 R.R. at 31.
50 According to McKay, Carrollton has no standards for retaining walls in private
property other than have to be signed and sealed by a professional engineer. 2
R.R. at 44. However, Carrollton adopted the International Building Code with
regard to retaining walls which requires a factor of safety of 1.5. 1 C.R. at 1044.
51 1 C.R. at 1225.
-11-
Q. Did you find anything that says that they accepted the
documents -- the retaining wall?
A. I saw no specific documents that said that they had accepted
it. 52
Documents once existed related to the first retaining wall include (a)
a proposal and contract for a reinforced concrete retaining wall, (b) a
"Preliminary Engineering Observation Report" on the retaining wall failure,
(c) letters from Carrollton regarding review of retaining wall repairs, (d) a
letter from engineers revising plans for retaining wall repair, (e) a letter
requesting city fill in eroded areas along retaining wall, and (f) documents
related to decision of builder not to develop lots between 1319 and 1331
"because they were deemed to be undesirable."53 Carrollton provided no
explanation for the failure to produce the documents in discovery other
than the documents do not exist.
The Motion for Sanctions details more problems with documents. 54
Taking Earth
Carrollton is taking earth from both the surface of and under
Appellees’ properties. 55 The slope failure occurs underground. 56 The earth
52 2 Supp. C.R. at 1581, 2 R.R. at 63-67.
53 1 C.R. at 1226-1227.
54 2 C.R. at 2216.
55 2 C.R. at 2088-2089.
-12-
movement damaged and damages the surface and surface structures,
including to the retaining wall and the subsurface.57
History
In 1981, Carrollton accepted a 15 feet wide sanitary sewer easement
along what became the rear of the affected Barclay properties. 58 The
property owners subject to the easement, including all of Appellees, cannot
construct anything on the easement without Carrollton's permission. 59
Carrollton approved the Rosemeade 14 final plat in September
1986. 60 The retaining wall was built on the sewer easement. 61 On July 21,
1987, Carrollton accepted the retaining wall and a maintenance bond
stating that the retaining wall had been correctly installed. 62 The retaining
wall is part of Carrollton's storm water drainage infrastructure. 63
Stormwater in Rosemeade 14, other than for the odd side of Barclay Drive,
drains on to the roads and alleys of the subdivision. Barclay Drive is higher
56 1 C.R. at 951-952.
57 1 C.R. at 952, 2 C.R. at 2089.
58 1 C.R. at 1103.
59 2 R.R. at 51.
60 5 R.R. DX 2.
61 5 R.R. DX 2, Rosemeade010.
62 1 C.R. at 1225.
63 Tumulty Deposition, 2 C.R. at 2340-2341, Molina Deposition, 2 C.R. at 2442,
2446-2448, 2450.
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than the affected Barclay properties. 64 The Dudley Branch slope is too
steep.65
The retaining wall had problems in 1987 behind 1317 and 1319
Barclay Drive. Documents related to the problems once existed. 66 In
February 2007, Carrollton declared that the retaining wall located at 1317
and 1319 Barclay:
has been found in a state of disrepair and appears structurally
unsound and is in danger of collapse causing an obstruction of the
drainage channel and possible severe damage to the homes located at
both 1317 Barclay and 1319 Barclay. The conditions of the retaining
wall render the structure and premises as a "Dangerous Building."67
Other than the notices, no documents exist.
In the 1990's an event occurred which evidences slope failure.68
Carrollton has no geotechnical engineer report explaining the "wall
failure."69 In 1993, Carrollton's Engineering Department issued warnings
about construction on affected Barclay Drive properties.70 Nine of the
64 1 C.R. at 973.
65 1 C.R. at 973.
66 2 Supp. C.R. at 392.
67 1 C.R. at 1429-1431.
68 1 C.R. at 964-965.
69 1 C.R. at 1103, 2 C.R. at 2220, 2230-2233.
70 1 C.R. at 1099-1102. "These addresses are empty lots that back up to Dudley
Branch. There is a retaining wall on the back of the lots. This wall has failed in
several areas (1341-1343 & 1347) where either the house or the pool/spa is within
10 feet of the retaining wall. To avoid anymore possible wall failures, I would
suggest that the builder place the house as close to the street as legally allowed."
-14-
houses on the affected Barclay properties were constructed after the 1990's
event, including homes located at 1323-1329 Barclay Drive. 71
After the 1990's problems with the slope and retaining wall,
Carrollton conducted no investigation of the slope or the retaining wall.
Carrollton continues to maintain and repair Dudley Branch, Barclay Drive
and the retaining wall so as to continue the factors that caused the slope
failure.
In 2008, Carrollton, responding to information about a crack in the
retaining wall, inspected the retaining wall and took photographs. The
photographs evidence an on-going slope failure.72 Before the May 2009
landslide, adjacent to Dudley Branch a large water filled hole developed in
the Dudley Branch channel due to erosion. 73 The hole and water may have
changed the factor of safety of the slope. 74 Carrollton filled the hole after
the May 2009 slope failure. 75
When faced with accumulating water on their lots, some Barclay
residents attempted to alleviate the accumulation of water by installing
71 1 C.R. at 1109-1110.
72 1 C.R. at 965.
73 1 C.R. at 465 (photograph after repair), 1441.
74 1 C.R. at 964-965.
75 1 C.R. at 736-737.
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French drains to move the water to Dudley Branch. 76 Accepted
engineering standards and Carrollton's standards require French drains for
lots with retaining walls. 77 French drains were not installed as part of the
retaining wall or of the drainage system.
Retaining Wall
Retaining walls are supposed to permit the drainage of water along
and under a slope, and to impede movement of the slope and objects (earth
and improvements) down the slope. 78
The Rosemeade 14 developer submitted an "as-built" drainage plan
dated June 1986. 79 The as-built drainage plan merely states "construct" a
retaining wall and provides no drawings of the retaining wall. 80
Carrollton’s drainage system resulted in the affected Barclay properties
draining to the back of the lots where ponding occurred adjacent to the
76 1 C.R. at 419, 910.
77 1 C.R. at 2688, Carrollton General Design Standards, page 24, Section 3G-2
"French Drain System: A french drain system, composed of a minimum six inch
diameter perforated PVC pipe, will be installed between the back of curb and
right-of-way line whenever adjoining lot elevations necessitate the use of
retaining walls to maintain lot grades. French drain system must be connected to
the storm sewer system."
78 2 C.R. at 1982.
79 5 R.R. DX 2, Rosemeade010.
80 5 R.R. DX 2, Roll031-TS000170. Note that the other "plans" are detailed
drawings.
-16-
retaining wall.81 The affected Barclay properties become saturated which
lowers the slope's factor of safety, which contributed to the slope failure.
Carrollton violated accepted engineering standards and its standards
with regard to the retaining wall and the drainage of the affected Barclay
properties.82
Problems from Slope Failure
The surface effect of the slope failure can be seen in February 2008,
May 2009, 2011 and 2013-2014 photographs of the backyard at 1325
Barclay Drive. 83 The Brewer Appellees abandoned their swimming pool for
safety concerns.84 Adjacent properties have similar but less severe
problems. Appellee Effert (1329 Barclay Drive), David Wozniak (1343
Barclay Drive) and other owners of property behind the reconstructed
retaining wall have seen the anchored retaining wall sinking, the earth
moving towards Dudley Branch and the retaining wall breaking. 85 The
Effert property sinks so much that Effert spreads 200 forty pound bags of
dirt on his backyard each year. 86
81 2 C.R. at 2376-2380.
82 2 R.R. at 76-77.
83 1 C.R. at 1086, 1088, 1453-1454, 5 R.R., PX 16, 18, 27 and 30.
84 1 C.R. at 892, 902.
85 3 R.R. at 87-88, 91.
86 3 R.R. at 87.
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All of Carrollton actions with regard to drainage, maintenance of
Barclay Drive, and erosion control were accomplished with motor driven
vehicles and motor driven equipment.87 Carrollton's actions constitute
negligence and proximately caused the injuries and damages of which
Appellees complain.
SUMMARY OF THE ARGUMENT
Issue I
Carrollton established standards to be followed for stormwater and
drainage infrastructure in its territory. Carrollton justified its standards by
noting the consequences of failing to adhere to the standards, including
specific references of resulting slope failure. Carrollton did not follow its
standards with regard to Appellees' properties. The warned of
consequences occurred in the form of a continuing global slope failure.
Carrollton's actions constituted a taking under Article I, Section 17(a)
of the Texas Constitution.
Issue II
87 1 Supp. C.R., 30-31, 2 Supp. C.R., 880-881, 945-949.
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Carrollton's actions with regard to Appellees' breached Carrollton's
obligations to Appellees as established by Carrollton. The breaches
proximately caused Appellees injuries and damages.
Issue III
The court has jurisdiction over Appellees' damages claims against
Carrollton and that jurisdiction includes jurisdiction needed to assert
claims for Declaratory Judgment relief. Appellees seek a declaration of
Carrollton's duties and obligations regarding stormwater and drainage
under its standards and ordinances with regard to Appellees' properties.
ARGUMENT
Standard of Review
This is the standard of review of the denial of Carrollton's Plea to
Jurisdiction:
Whether subject-matter jurisdiction exists is a question of law that
can be challenged, as it was here, by a plea to the jurisdiction. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). We review
de novo the disposition of Texas City's jurisdictional plea. Miranda,
133 S.W.3d at 226. Because we address a plea to the jurisdiction in
which disputed evidence implicates both the court's subject-matter
jurisdiction and the merits of the case, we consider relevant evidence
submitted by the parties to determine if a fact issue exists. Id. at 227.
We take as true all evidence favorable to the nonmovant, indulge
every reasonable inference, and resolve any doubts in the
nonmovant's favor. Id. at 228. If the evidence creates a fact question
regarding jurisdiction, the plea must be denied pending resolution of
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the fact issue by the fact finder. Id. at 227–28. If the evidence fails to
raise a question of fact, however, the plea to the jurisdiction must be
granted as a matter of law. Id. at 228.
Suarez v. City of Texas, --- S.W.3d ---, 2015 WL 3802865, *6 (Tex. June 19,
2015); also Harris Cnty. Flood Control Dist. v. Kerr, 2015 WL 3641517, *2-
3 (Tex. June 12, 2015). Appellees met their burden to sustain jurisdiction
over this matter.
Reply to Issue I.
Whether the trial court has subject-matter jurisdiction over
Appellees’ takings claim when the evidence shows the City did not
know, could not have known, and was not substantially certain, that
any of its actions would result in specific damage to Appellees’
property.
Carrollton violated the standards it imposed to control stormwater
and drainage and caused the injuries Carrollton used to justify the
imposition of its requirements. This fact alone establishes the requisite
knowledge and intent. Harris Cnty. Flood Control Dist. v. Kerr, 2015 WL
3641517 at *3:
In a takings case, “the requisite intent is present when a
governmental entity knows that a specific act is causing identifiable
harm or knows that the harm is substantially certain to result.”
Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004).
It is not enough that the act causing the harm be intentional–there
must also be knowledge to a substantial certainty that the harm will
occur. City of Dallas v. Jennings, 142 S.W.3d 310, 313–14
(Tex.2004). Intent, in takings cases as in other contexts, may be
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proven by circumstantial evidence. See Spoljaric v. Percival Tours,
Inc., 708 S.W.2d 432, 435 (Tex.1986).
Carrollton warned of the consequences of not complying with its drainage
requirements. Carrollton did not comply with its standards. The warned of
consequences occurred.
The district court has jurisdiction over Appellees' claims for taking
private property for public use without just compensation. Tex. Const. Art.
I, § 17. Sovereign immunity has been waived under the Texas Tort Claims
Act. Because jurisdiction exists for Appellees' taking and tort claims,
jurisdiction exists over Appellees' Declaratory Judgment Act claims to
determine Carrollton's obligations to remedy the slope failure and maintain
the property in its control so as to avoid a recurrence of the slope failure.
Appellees filed sufficient pleadings and provided extensive evidence
that precludes the granting of Carrollton's plea to jurisdiction. Texas Dept.
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).
Inverse Condemnation
Article I, section 17(a) of the Texas Constitution provides that: "No
person's property shall be taken, damaged, or destroyed for or applied to
public use without adequate compensation being made, unless by the
consent of such person . . . ." See Mayhew v. Town of Sunnyvale, 964
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S.W.3d 922, 933 (Tex. 1998); City of Carrolton v. RIHR Inc., 308 S.W.3d
444, 448-449 (Tex.App.-Dallas 2010, rev. denied) (dispute over payment
for retaining wall repairs and city's demand for payment before issuance of
a building permit was an unconstitutional exaction).
Whether particular facts constitute an unconstitutional taking is a
question of law for the court. Mayhew v. Town of Sunnyvale, 964 S.W.3d
at 937. The Supreme Court wrote in State v. Brownlow, 319 S.W.3d 649,
652 (Tex. 2010):
The essence of an inverse condemnation proceeding is that the
government has intentionally taken or unreasonably interfered with
an owner’s use of property and the property owner is attempting to
recover compensation for the lost or impaired rights. (citations
omitted)
A “taking, damaging, or destruction” for purposes of inverse condemnation
is defined as the physical appropriation or invasion of property, or
unreasonable interference with a landowner’s right to use and enjoy the
property. See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552
(Tex. 2004); DuPuy v. City of Waco, 396 S.W.2d 103, 108 -109 (Tex. 1965).
The evidence is that earth from the surface and below the Appellees'
properties is on or under Carrollton's Dudley Branch right of way.
Carrollton's apparent objection to the inverse condemnation is not to the
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fact of the taking but how the taking of the earth occurred.
A "taking, damaging or destruction" constituting inverse
condemnation can occur in a variety of ways:
a. declaration of a nuisance and the demolition of the property. City of
Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012).
b. requirement to lower and encasing pipe line under streets
established after area incorporated. Magnolia Pipe Line Co. v. City
of Tyler, 348 S.W.2d 537, 540 (Tex.Civ.App.—Texarkana 1961, writ
ref'd).
c. diversion of water through streets and other city "infrastructure"
onto landowner's property. City of Amarillo v. Burch, 369 S.W.3d
684 (Tex. App. - Amarillo 2012, no pet.).
d. drainage in excess of natural drainage. Hubler v. City of Corpus
Christi, 564 S.W.2d 816 (Tex.App.-Corpus Christi 1978, writ ref'd
n.r.e.).
e. change in drainage flow. City of Houston v. Wall, 207 S.W.2d 664(Tex.App.-Galveston 1947, writ ref'd n.r.e.).
f. build up of dirt adjacent to alley constructed which impaired access
to garage and parking. Cozby v. City of Waco, 110 S.W.3d 32(Tex.App.-Waco 2002, no pet.).
g. opening canal over landowner's property to public use in
contravention of terms of easement. Texas Parks & Wildlife Dep't v.
Callaway, 971 S.W.2d 145 (Tex.App.-Austin 1998, no pet.).
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h. construction of public works or their subsequent maintenance and
operation. Hale v. Colorado River Mun. Water Dist., 818 S.W.2d
537, 539 (Tex.App.—Austin 1991, no writ); Hidalgo Cnty. Water
Improvement Dist. No. 2 v. Holderbaum, 11 S.W.2d 506, 507 (Tex.
Comm'n App. 1928, judgm't adopted).
i. construction, operation and maintenance of drainage system. City
of El Paso v. Mazie's, L.P., 408 S.W.3d 13, 23 (Tex.-El Paso 2012,
rev. denied).
Carrollton knows that its actions with regard to its Barclay Drive and
Dudley Branch Creek and the retaining wall caused an identifiable harm -
slope failure. Carrollton's implemented standards for the construction,
maintenance and repair of its drainage system, slopes and retaining walls
identify slope failure as a consequence of failing to follow its standards
proves intent. See City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex.
2004)
Taking of Earth
Carrollton's chief engineer agrees that on or under Carrollton's
Dudley Branch right of way, there is now earth that once was on or under
Appellees' property. Taking earth from Appellees' properties is a taking.
Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832 (Tex. 2012) (taking
groundwater beneath property), State v. Brownlow, 319 S.W.3d at 653
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(earth taken from easement to construct mitigation pond).
Carrollton has the right to build a sewer line on the sewer easement
and may have had the right to place the retaining wall on the sewer
easement. Carrollton has not claimed the right to take earth from the
affected Barclay properties. Carrollton's rights are limited to what is
necessary to exercise the right of placing and utilizing the sewer line on the
easement. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701-
702 (Tex. 2002).
A significant amount of earth has been taken since the initial slope
failure in May 2009. Carrollton knew that a continuing slope failure was
manifested by the May 2009 events. Immediately after the May 2009 slope
failure at 1325 Barclay Drive, there was a scarp of roughly three feet, which
reflects how much the surface of the backyard of 1325 Barclay Drive had
sunk because earth was moving onto the Dudley Branch right of way. At
the time of the hearing, the scarp was in excess of seven feet. A lesser
damaged property requires 200 40 pound bags of dirt each year to fill in
sunken areas.
Taking By Slope Failure
If Carrollton changed the Dudley Branch slope outside the retaining
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wall and that removal of earth caused a slope failure, there would be a
taking by removing the lateral support of the property. Williams v.
Thompson, 152 Tex. 270, 277-278, 256 S.W.2d 399, 403 (1953), Simon v.
Nance, 45 Tex. Civ. App. 480, 483-484, 100 S.W. 1038, 1040 (Tex. Civ.
App. - Austin 1907, no hist.). In this case, the removal of lateral support
comes from a combination of circumstances, all of which are in the
exclusive control of Carrollton.
Appellees' properties are falling in to Dudley Branch as a result of the
global slope failure. Carrollton's ordinances and standards warn of slope
failure and provide standards to be followed to prevent slope failure.
Carrollton consistently violated its rules. If Carrollton had obtained expert
advice to violate its standards, Carrollton might not be subject to the claim
of inversely condemned Appellees' properties. See City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005). If Carrollton had perceived problems and
attempted to remedy the problems, albeit unsuccessfully, Carrollton might
not have inversely condemned Appellees' properties. See City of San
Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009); City of Keller v.
Wilson, 168 S.W.3d at 828–830.
Knowledge of Effects of Actions
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Carrollton knew that its actions and policies with regard to the
affected Barclay properties would or were substantially certain to result in
the slope failure. Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d at 551–
554. The Supreme Court 's opinion in City of Keller v. Wilson illustrates an
important point. In City of Keller v. Wilson, Keller, like Carrollton,
established standards and violated its standards which caused flooding.
The property owners based their claims on the violation of the Keller's
standards. Regarding the issue of knowledge or culpability of Keller, the
Supreme Court noted:
Here, it was uncontroverted that three sets of engineers certified that
the revised plans met the City’s codes and regulations—and thus
would not increase downstream flooding.
City of Keller v. Wilson, 168 S.W.3d at 829. Carrollton established
standards, ignored its standards in creating and maintaining drainage for
the affected Barclay properties, and ignored its engineer's
recommendations of how to avoid future wall failures. The Supreme Court
noted that:
The missing piece in the evidence here is proof that the City knew the
plans it approved were substantially certain to increase flooding on
the Wilsons’ properties.
Id. The piece is not missing in this case. Carrollton's standards were
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written to prevent slope failure. Carrollton received no recommendations
from experts that it should ignore its standards.
In City of Dallas v. Jennings, the Appellees sued for damages after a
sewer line backed up and flooded their home with raw sewage, the Court
noted:
Nor do we believe, however, that the City must necessarily intend to
cause the damage; if the government knows that specific damage is
substantially certain to result from its conduct, then takings liability
may arise even when the government did not particularly desire the
property to be damaged.
City of Dallas v. Jennings, 142 S.W.3d. at 315. In this case, Appellees rely
on Carrollton's' statements implementing its standards to establish "that
[Carrollton] believes that the consequences are substantially certain to
result from [violations of its standards]." Carrollton violated its standards.
In City of San Antonio v. Pollock, property owners sued because of
gases coming from a closed landfill. When the city found pockets of
methane gas near the landfill, it drilled a system of ventilation wells to draw
the gases back into the landfill, established monitoring facilities, surveyed
water quality, hired a consulting firm, improved the methane collection
system, and, ultimately, installed a new system. City of San Antonio v.
Pollock, 284 S.W.3d at 813-814. The Court noted that the knowledge of the
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City cannot be determined in hindsight:
The Pollocks contend that the City knew its management of the
West Avenue landfill was damaging their property, or knew at least
that damage to their property was a necessary result. But the evidence
is all to the contrary. Whenever the City was aware that gas was
migrating from the landfill, it took steps to prevent damage. It
monitored gas generation, monitored leachate, and installed methane
collection systems.
Id. at 821. Even when Carrollton replaced a portion of the retaining wall in
the 1990's it (a) did nothing to determine the causes and scope of the
problem and solve it, or destroyed or discarded documents reflecting its
efforts, (b) did not follow its engineer's recommendations that might have
reduced the problems, and (c) ignored future signs of problems.
In February 2008, Carrollton declared a portion of the retaining wall
a "dangerous building" which enabled it to take actions to remedy the
situation. See City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014).
Carrollton did nothing. Compare City of Carrolton v. RIHR Inc., 308
S.W.3d at 447. After the May 2009 slope failure, in the face of a continuing
slope failure, Carrollton did nothing to determine the causes and scope of
the problem, ignored numerous warnings of a global slope failure, and
falsely denied responsibility for drainage of Appellees' lots and Dudley
Branch Creek, and for the retaining wall. Carrollton took steps to conceal
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the true problem.
In City of Dallas v. Jennings, City of San Antonio v. Pollock and City
of Keller v. Wilson, the cities obtained professional advice and followed that
advice. Based on the lack of documentation, we must assume that
Carrollton either failed to get outside professional advice until the May
2009 slope failure or obtained advice and ignored that advice. Carrollton
ignored the in-house engineering advice after the "wall failure" in the
1990's. In February 2008, Carrollton declared a portion of the retaining
wall a dangerous building. Carrollton did nothing to resolve the situation
or even investigate the cause of the retaining wall being a "dangerous
building." In May 2009, when Carrollton received the warning of a
continuing, global slope failure along Barclay Drive, Carrollton (a) did not
determine the scope of the slope failure, (b) did not determine the source of
water that lead to the slope failure, (c) denied responsibility, and (d)
concealed its responsibility for the slope failure. Carrollton continued its
actions with regard to Barclay Drive storm water drainage and Dudley
Branch that caused the slope failure.
There is no question that the slope failure resulted in earth previously
located on and under Appellees' properties moving so that the earth is now
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located under Carrollton's Dudley Branch channel. That is a taking.
Appellees are entitled to the cost of either returning the earth to its proper
location, rebuilding the properties to the condition they enjoyed before the
taking or the value of the properties if the problem cannot be remedied.
Reply to Issue II
Whether the trial court has subject-matter jurisdiction over
Appellees’ negligent-property-damage claim when they have failed to
plead and the evidence negates a City-employee use of motor-driven-
vehicle or equipment sufficient for a waiver of governmental
immunity from suit under the Texas Tort Claims Act.
Negligence
Under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code §
101.001 et seq., Carrollton can be held liable for property damage
proximately caused by the wrongful act or omission or the negligence of an
employee acting within the scope of his employment if the property damage
arises from the operation or use of a motor-driven vehicle or motor-driven
equipment, and the employee would be personally liable under Texas law.
Tex. Civ. Prac. & Rem. Code, § 101.021.
It is not contested that Carrollton used motor-driven vehicles and
motor-driven equipment to construct, maintain and repair its drainage
system. See City of El Paso v. W.E.B. Investments, 950 S.W.2d 166, 170
-31-
(Tex. App. - El Paso 1977, rev. denied). As discussed above, Carrollton
established the duties and standards that it applied and applies to the
construction, maintenance and report of its drainage systems. Carrollton's
Department of Public Works maintained and repaired the drainage system,
Barclay Drive and Dudley Branch Creek, in a manner that water did not and
does not drain from Appellees' properties, causing the water to pond and
accumulate on the property, thereby reducing the factor of safety of such
properties with the result that the slope failed. Carrollton required specific
slopes and factors of safety and French drains for retaining walls. The
Barclay Drive retaining wall, part of Carrollton's infrastructure does not
meet those requirements.
Pursuant to ordinance, Barclay Drive was to provide drainage for the
Appellees' properties, which it does not. Barclay Drive was repaired and
maintained with motor vehicles and motor driven equipment in such a
manner that Appellees' properties cannot drain on to Barclay Drive.
Dudley Branch was repaired and maintained contrary to Carrollton's
standards with improper slopes and no provision for drainage of Appellees'
properties even though the properties contained Carrollton's retaining wall.
All repair and maintenance was done with motor driven vehicles and motor
-32-
driven equipment.
Carrollton is liable for its negligence.
As quoted above, in its final report dated October 2, 2009 Terracon,
Carrollton's expert, noted regarding the cause of the slope failure the
presence of groundwater on the Barclay Drive side of 1325 Barclay Drive.
Groundwater that did not drain from Appellees' properties which, if for no
other reason, did not drain from Appellees' properties because of the way
Carrollton maintained and repaired Barclay Drive and the retaining wall. 88
Reply to Issue III - Declaratory Judgment
Whether the trial court has subject-matter jurisdiction over
Appellees’ requests for declaratory relief and related attorney’s fees
when Appellees are not seeking to challenge the validity of any City
ordinance or franchise.
In their claims for inverse condemnation and negligence, Appellees
seek relief for injuries and damages suffered due to the slope failure. In
their declaratory judgment action, Appellees seek a judicial resolution of
issues related to the future maintenance and repair of Dudley Branch
Creek, Barclay Drive and the retaining wall. Appellees particularly seek a
declaration of Carrollton's obligations under its standards and ordinances.
88 C.R. at Vol 1, 1200.
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A declaratory judgment action is the proper vehicle to determine
issues relating to easements. Manning v. Embridge Pipelines (East Texas),
L.P., 345 S.W.3d 718, 727 (Tex. App. - Beaumont 2011, rev. denied),
Roberson v. City of Austin, 157 S.W.3d 130, 137 (Tex. App.-Austin 2005,
pet. denied). Appellees' action is exactly the sort of action that the
Declaratory Judgment Act was written to address,
A person interested under a deed, will, written contract, or other
writings constituting a contract or whose rights, status, or other legal
relations are effected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract,
or franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
Tex. Civ. Prac. & Rem. Code 37.004(a) (Emphasis added).
Appellees seek specific declaratory relief under the Texas Declaratory
Judgment Act, requesting that declarations that Carrollton employees in its
Engineering Department failed to perform ministerial acts under
Carrollton's ordinances, rules, regulations and standards and the laws of
the State of Texas by failing to
a. determine that the retaining wall is part of Carrollton's
infrastructure.
b. complying with ordinances, rules, regulations and standards
regarding retaining walls in connection with the retaining wall
on the affected Barclay properties.
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c. complying with its ordinances, rules, regulations and standards
with regard to slope stability.
d. complying with ordinances, rules, regulations and standards
with regard to retaining walls.
e. complying with ordinances, rules, regulations and standards
with regard to drainage.
See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-373 (Tex. 2009)
Regarding jurisdiction, Appellees accept that sovereign immunity
would not be waived for the Declaratory Judgment Act claims if they were
seeking to establish jurisdiction through the Declaratory Judgment Act.
See Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (plaintiff
only sought declaratory relief challenging the denial of a permit), City of El
Paso v. Heinrich (plaintiff sought declaratory relief and an injunction
against state officials). The Declaratory Judgment Act does not enlarge the
trial court's jurisdiction, but is "merely a procedural device for deciding
cases already in a court's jurisdiction." Tex. Dep't of Transp. v. Sefzik, 355
S.W.3d at 621-622 (quoting Tex. Parks & Wildlife Dep't v. Sawyer Trust,
354 S.W.3d 384, 388 (Tex.2011)).
Appellees have established jurisdiction independent of the
Declaratory Judgment Act claims. Appellees' claims for declaratory relief
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seek to have a determination of their "rights, status, or other legal relations
. . . effected by a . . . municipal ordinance . . . and obtain a declaration of
rights, status, or other legal relations thereunder." The issues raised by
Appellees for declaratory relief all relate to claims over which this Court has
jurisdiction independent of the Declaratory Judgment Act.
PRAYER
Appellees pray that the District Court's order denying Carrollton's
Motion to Dismiss be in all things affirmed.
Respectfully submitted,
s/ Bruce E. Turner
__________________________
Bruce E. Turner
Texas Bar No. 20310500
bturner@bennettweston.com
J. Michael Weston
Texas Bar No. 21232100
jmweston@bennettweston.com
Bennett Weston LaJone & Turner PC
1603 LBJ Freeway, Suite 280
Dallas, Texas 75234
Telephone: 972-862-2332
Facsimile: 214-373-2570
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of Appellees'
Brief was served on all counsel of record by electronic service under Tex. R.
App. P. 9.2 on the 10th day of July 2015, in accordance with the
requirements of the Texas Rules of Appellate Procedure. The persons
served are:
Fredrick "Fritz" Quast Meredith A. Ladd, City Attorney
George A. Staples, Jr. City of Carrollton, Texas
Counsel for Appellant 1945 East Jackson Road
Taylor, Olson, Adkins, Sralla Carrollton, Texas 75006
& Elam, LLP
6000 Western Place, Suite 200
Fort Worth, Texas 76107
/s/ Bruce E. Turner
___________________
Bruce E. Turner, Esq.
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(3) of the Texas Rules of Appellate Procedure,
the undersigned authority hereby certifies that according to the word
processing software used to prepare this filing, the word count of this
document is 7,438.
/s/ Bruce E. Turner
___________________
Bruce E. Turner, Esq.
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