City of Pharr v. German Garcia, Anna Leal, Domingo Lopez Jr., San Juanita De La Fuente, and Ezequiel Perez ( 2015 )

ACCEPTED
13-15-00409-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
10/20/2015 5:44:33 PM
Dorian E. Ramirez
CLERK
CASE NO. 13-15-00409-CV
COURT OF APPEALS FILED IN
13th COURT OF APPEALS
THIRTEENTH DISTRICT OFCORPUS
TEXASCHRISTI/EDINBURG, TEXAS
10/20/2015 5:44:33 PM
DORIAN E. RAMIREZ
Clerk
CITY OF PHARR,
Defendant – Appellant
v.
GERMAN GARCIA, ANNA LEAL, DOMINGO LOPEZ, JR., SAN
JUANITA DE LA FUENTE, AND EZEQUIEL PEREZ,
Plaintiff – Appellee
On Appeal from the 430th Judicial District Court of Hidalgo County, Texas
Case No. C-5232-14-J
======================================================
BRIEF OF APPELLANT CITY OF PHARR, TEXAS
======================================================
J. Arnold Aguilar Patricia Ann Rigney
State Bar No. 00936270 State Bar No. 24048765
AGUILAR ZABARTE, LLC
990 Marine Drive 118 South Cage Boulevard
Brownsville, Texas 78520 Pharr, Texas 78577
Telephone : (956) 504-1100 Telephone : (956) 457-1181
Facsimile : (956) 504-1408 Facsimile : (956) 272-0116
Email: arnold@aguilarzabartellc.com Email: patricia.rigney@pharr-tx.gov
Attorneys for Defendant /Appellant
CITY OF PHARR, TEXAS
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Defendant/Appellant Attorneys for Defendant/Appellant
City of Pharr, Texas J. Arnold Aguilar
AGUILAR ZABARTE, LLC
990 Marine Drive
Brownsville, Texas 78520
email: arnold@aguilarzabartellc.com
Patricia Ann Rigney
118 South Cage Blvd.
Pharr, Texas 78577
email: patricia.rigney@pharr-tx-gov
Plaintiff/Appellee Attorneys for Plaintiff/Appellee
German Garcia, Anna Leal, Francisco J. Rodriguez
Domingo Lopez, Jr., LAW OFFICE OF
San Juanita De La Fuente, FRANCISCO J. RODRIGUEZ
and Ezequiel Perez 1111 West Nolana, Suite A
McAllen, Texas 78504
email: frankr@mcallenlawfirm.com
Jeanne E. Holmes
LAW OFFICES OF
JEANNE E. HOLMES, P.C.
212 West Nolana
McAllen, Texas 78501
email: ljeanneholmes@rgv.rr.com
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ……………………………………...ii
TABLE OF CONTENTS………………………………………………….............iii
INDEX OF AUTHORITIES………………………………………………………vi
STATEMENT REGARDING ORAL ARGUMENT………..……………………..x
RECORD REFERENCES………………………………………………….....…....x
STATEMENT OF THE CASE…………………………………..………………...xi
ISSUES PRESENTED FOR REVIEW……………………………………...……xii
Whether the Trial Court Erred in Denying the Plea to the Jurisdiction?
a. Whether Garcia identified a waiver of the City of Pharr’s sovereign
or governmental immunity from suit, including any evidence of a
material issue of fact, in order to confer jurisdiction on the District
Court below?
b. Whether Garcia identified sufficient factual evidence and legal
authority to support a claim of inverse condemnation resulting from
a zoning change, in order to establish waiver of the City’s immunity
from suit?
c. Whether Garcia identified sufficient factual evidence and legal
authority to establish a claim for equitable relief, necessary to
establish jurisdiction before the District Court below?
d. Whether Garcia identified sufficient factual evidence and legal
authority for a District Court to temporarily enjoin enforcement of
rulings by a County Court at Law?
iii
e. Whether Garcia identified sufficient factual evidence and legal
authority to establish jurisdiction of a District Court to enter a
declaratory judgment relating to prior orders of a County Court at
Law?
f. Whether the rulings of the County Court at Law are res judicata
before the District Court below and this Court?
STATEMENT OF FACTS…………………..……………………………..............1
SUMMARY OF THE ARGUMENT…………………………..…………..............3
ARGUMENT……………………………………………………………….............4
ISSUES RESTATED................................................................................................4
A. Standard of Review…………………………………………………………….5
1. The City of Pharr is immune from suit unless
that immunity has been waived by law…………………...………….……5
2. Because the Plea to the Jurisdiction relied on evidence challenging
Garcia’s factual pleadings, he was required to identify a fact issue,
including evidence, that would establish waiver of the City’s immunity....7
B. Garcia Identified No Factual Evidence or Legal Support
to Establish Waiver of Immunity From Suit…...................................................10
1. Without evidence of an intentional taking of Garcia’s
property for a public use, he has not identified waiver of
immunity for an inverse condemnation claim…………………………..10
2. The District Court does not have jurisdiction to enjoin
enforcement of an Order of a County Court at Law..……...….………….16
3. The District Courts does not have jurisdiction to enter declaratory
judgment relating to an Order of a County Court at Law………………...19
4. The rulings of the County Court at Law are
res judicata before the District Court below and this Court……………..20
iv
C. Remand to Allow Garcia to Attempt to Cure Pleading and
Evidentiary Defects Would Serve No Purpose and is Not Authorized…….…23
CONCLUSION & PRAYER………………………………………………...........24
CERTIFICATE OF COMPLIANCE..…………………………………….………25
CERTIFICATE OF SERVICE...………………………………………….………26
APPENDIX FOR BRIEF OF APPELLANT CITY OF PHARR, TEXAS……….27
TABLE OF CONTENTS…………………………………………………...28
Order Denying Defendant City of Pharr, Texas’
Plea to the Jurisdiction………………………………………………..TAB A
Findings of Fact and Conclusions of Law,
Cause No. CL-08-0136-A, County Court at Law No. 1……………...TAB B
Order of Dismissal
Cause No. CL-08-0136-A, County Court at Law No. 1……………...TAB C
v
INDEX OF AUTHORITIES
CASES PAGE
Able v. Bloomfield, 6 Tex. 263 (1851)………………………………………….…..5
Allen v. City of Texas City, 775 S.W.2d 863
(Tex. App. – Houston [1st Dist.] 1989, writ denied)………………………………..12
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000)……………...……8, 9
Brazos River Auth. v. City of Graham, 354 S.W.2d 99 (Tex. 1962)……….….…..10
Butron v. Cantu, 960 S.W.2d 91
(Tex. App. – Corpus Christi 1997, no pet.)…………………………...…..……18, 20
Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653 (Tex. 2013)………………8
Chrismon v. Brown, 246 S.W.3d 102
(Tex. App. – Houston [14th Dist.] 2007, no pet.)………………………………….23
City of Carrollton v. HEB Parkway S., Ltd., 317 S.W.3d 787
(Tex. App. – Fort Worth 2010, no pet.)…………………………..…………..……13
City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004)………….…………12, 16
City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014)………………………..16
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)………………….…………15
City of Lubbock v. Rule, 68 S.W.3d 853 (Tex. App. – Amarillo 2002, no pet.)…..6
City of Wilmer v. Laidlaw Waste Systems, Inc., 890 S.W.2d 459
(Tex. App. – Dallas 1994), aff'd, 904 S.W.2d 656 (Tex. 1995)………………………8
Corpus Christi Indep. Sch. Dist. v. TL Mech., 2012 Tex. App. LEXIS 2552
(Tex. App. – Corpus Christi Mar. 29, 2012, pet. denied)………………………….6
Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643 (Tex. 1987)……………………..23
vi
Estate of Clifton v. Southern Pac. Transp. Co.,
709 S.W.2d 636 (Tex. 1986)……………. ………………………………………...23
Ford Motor Co. v. Cammack, 999 S.W.2d 1
(Tex. App. – Houston [14th Dist.] 1998, pet. denied)………………………………5
Fort Worth & D.C. Ry. v. Ammons, 215 S.W.2d 407
(Tex. Civ. App. – Amarillo 1948, writ ref’d n.r.e.)………………………………..11
General Servs. Comm’n v. Little-Tex Insulation Co.,
39 S.W.3d 591 (Tex. 2001)……………………………………………...……6, 7, 12
Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785
(Tex. App. – Houston [1st Dist.] 2012, no pet.)…………………………………….8
Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326
(Tex. App. – Corpus Christi 2002, no pet.)………………………………………6, 7
Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50 (Tex. 2006)……………….22
Hearts Bluff Game Ranch v. State, 381 S.W.3d 468 (Tex. 2012)…………………7
Lloyds Alliance v. Cook, 290 S.W.2d 716
(Tex. Civ. App. – Waco 1956, no writ)………………………………………...18, 20
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012)……….8
Montana v. United States, 440 U.S. 147, 99 S. Ct. 970 (1979)………….........21, 22
McVeigh v. Lerner, 849 S.W.2d 911
(Tex. App. – Houston [1st Dist.] 1993, writ denied)……………………………18, 20
Patel v. City of Everman, 179 S.W.3d 1 Tex. App. – Tyler 2004, pet. denied)…….12
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646 (1978)…14
Postert v. Calhoun County, 2011 Tex. App. LEXIS 8643
(Tex. App. – Corpus Christi Oct. 27, 2011, pet. denied)………………………….23
Purcell v. Bellinger, 940 S.W.2d 599 (Tex. 1997)………………………………..22
vii
Scally v. Detamore, 2001 Tex. App. LEXIS 2527, 2001 WL 392522
(Tex. App. – Houston [1st Dist.] Apr. 19, 2001, pet. denied)………………….18, 20
Sears & Roebuck & Co. v. Marquez, 628 S.W.2d 772 (Tex. 1982)………………23
Sheffield Dev. Co. v. City of Glenn Heights,
140 S.W.3d 660 (Tex. 2004)..……………………………………………...10, 13, 14
State v. Lueck, 290 S.W.3d 876 (Tex. 2009)……………………………………….9
State v. Ware, 86 S.W.3d 817 (Tex. App. – Austin 2002, no pet.)….……………...11
Switzer v. Smith, 300 S.W. 31 (Tex. Comm'n App. 1927)………………………..18
Tamayo v. Lucio, 2013 Tex. App. LEXIS 8944
(Tex. App. – Corpus Christi July 18, 2013, no pet.)………………………………..8
Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)…………………..…....11
Tex. Natural Res. Conservation Comm'n v. IT-Davy,
74 S.W.3d 849 (Tex. 2002)……………………………………………………..…19
Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004).……………………………………………5, 7, 8, 9, 10
Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994)…………………….19
Texas Highway Dep't v. Weber, 219 S.W.2d 70 (Tex. 1949)……………………..16
Univ. of Tex. v. Ramos, 2012 Tex. App. LEXIS 707
(Tex. App. – Corpus Christi Jan. 26, 2012, pet. denied)……………….…………..9
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006)………………………………6
Westgate Ltd. v. State, 843 S.S.2d 448 (Tex. 1992)……………………….11, 14, 15
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)………..………..6
viii
CONSTITUTION, STATUTES & RULES
Tex. Const. art. I, §17……………………………………………………………..12
TEX. CIV. PRAC. & REMEDIES CODE § 37.002(b)…………………………….19
TEX. CIV. PRAC. & REMEDIES CODE § 65.011………………………………..16
TEX. CIV. PRAC. & REMEDIES CODE § 65.023…………………………….….18
TEX. R. APP. P. 43.3………………………………………………………………23
SECONDARY SOURCES
JOHN MILTON, PARADISE LOST
49, bk. II, ll. 592-94 (Scott Elledge ed., Norton & Co. 1993) (1674)…………….10
ix
STATEMENT REGARDING ORAL ARGUMENT
Because of the unique nature of the legal and factual issues, Appellant City of
Pharr, Texas believes oral argument may assist the Court in evaluating the jurisdictional
prerequisites to suit against a governmental entity, in determining whether the factual
allegations create a material issue of fact for the jurisdictional issues raised, and whether
those allegations affect the legal issues before the Court. Appellant would therefore request
submission of oral argument in this case should the Court desire further clarification on the
factual or legal authority for the jurisdictional issues raised.
RECORD REFERENCES
The Clerk’s Record will be cited by the abbreviation “CR” followed by the
page numbers (e.g., CR 53 – 56). The Reporter’s Record, will be cited by the
abbreviation “RR” followed by the page numbers (e.g., RR 7 – 8).
x
STATEMENT OF THE CASE
Nature of the Case: This case involves a claim of inverse condemnation
allegedly resulting from a zoning change, a request in a
District Court to enjoin enforcement of rulings by a
County Court at Law, and a request for the District Court
to declare judgment contrary to rulings of the County
Court at Law. CR 40 – 43.
Trial Court: The Honorable Israel Ramon, Presiding Judge, 430th
Judicial District Court, Hidalgo County, Texas.
Course of Proceedings: Defendant’s Plea to the Jurisdiction or in the Alternative
Motion for Summary Judgment (June 4, 2015). CR 47 –
79.
Plaintiffs’ Response to Defendant City of Pharr’s Plea to the
Jurisdiction or in the Alternative Motion for Summary
Judgment (July 27, 2015). CR 80 - 85.
Defendants’ Reply to Plaintiffs’ Response to Defendants’
Plea to the Jurisdiction or in the Alternative Motion for
Summary Judgment (July 27, 2015). CR 86 – 95.
Order Granting in Part and Denying in Part Defendants’
Plea to the Jurisdiction or in the Alternative Motion for
Summary Judgment (August 17, 2015). CR 96 – 97;
Appendix Tab A.
Trial Court’s On August 17, 2015, the District Court below entered its
Disposition: Order denying Defendant City of Pharr’s Plea to the
Jurisdiction. CR 96 – 97; Appendix Tab A. Defendant
City of Pharr then filed its Notice of Interlocutory Appeal
on August 31, 2015 (CR 98 – 100).
xi
ISSUES PRESENTED FOR REVIEW
Whether the Trial Court Erred in Denying the Plea to the Jurisdiction?
a. Whether Garcia identified a waiver of the City of Pharr’s sovereign
or governmental immunity from suit, including any evidence of a
material issue of fact, in order to confer jurisdiction on the District
Court below?
b. Whether Garcia identified sufficient factual evidence and legal
authority to support a claim of inverse condemnation resulting from
a zoning change, in order to establish waiver of the City’s immunity
from suit?
c. Whether Garcia identified sufficient factual evidence and legal
authority to establish a claim for equitable relief, necessary to
establish jurisdiction before the District Court below?
d. Whether Garcia identified sufficient factual evidence and legal
authority for a District Court to temporarily enjoin enforcement of
rulings by a County Court at Law?
e. Whether Garcia identified sufficient factual evidence and legal
authority to establish jurisdiction of a District Court to enter a
declaratory judgment relating to prior orders of a County Court at
Law?
f. Whether the rulings of the County Court are res judicata before the
District Court below and this Court?
xii
STATEMENT OF FACTS
Appellees’ German Garcia, Anna Leal, Domingo Lopez, Jr., San Juanita De
La Fuente, and Ezequiel Perez (hereinafter Garcia) First Amended Original Petition
alleged that their neighbor’s Lot 65, Beamsley Subdivision, an addition to the City
of Pharr (hereinafter Lot 65) was being used for commercial rather than residential
purposes. They complained that the City of Pharr (hereinafter the City) did not
compel that Lot 65 be limited to residential purposes as it had done previously in a
separate lawsuit, but instead authorized a zoning change for that Lot. CR 37 – 39.
The City of Pharr filed that prior suit in County Court at Law Number 1 of
Hidalgo County in 2008 against Jose Escamilla, seeking to prohibit him from using
Lot 65 in a manner not consistent with the City’s ordinances. CR 73, ¶ 4; TAB B.
On December 2, 2009, that Court had entered its Agreed Final Order, providing that
“Defendant Jose Escamilla and all other occupants, assigns, and grantees … [s]hall
not use the property located at Lot 65, … in any manner not consistent with the
allowed residential uses pursuant to Pharr zoning ordinances as may be amended
from time to time.” CR 73, ¶ 6; TAB B.
Thereafter, on March 4, 2014, Garcia filed his Original Petition in
Intervention in that County Court at Law case seeking an Order compelling
compliance with that Court’s Agreed Final Order, the same relief requested in the
present action. CR 73, ¶ 9; TAB B; RR 9 – 11. On August 6, 2014, however, the
1
City of Pharr filed its Motion to Vacate Final Order and Motion to Dismiss,
requesting that the County Court at Law set aside the Agreed Final Order because
of a change in circumstances, including the legal requirements, and because the City
was no longer in need of the relief provided in that Order, which Garcia challenged.
CR 73, ¶ 14; TAB B; RR 10. The City also rezoned Lot 65 from a Single-Family
Residential District to an Office-Professional District. CR 73, ¶ 10; TAB B.
On August 29, 2014, following the hearing on the City’s Motion to Vacate the
Agreed Final Order, the County Court entered its Order of Dismissal granting the
City’s Motion to Vacate that Order, setting aside that Order and denying any other
relief. CR 78 – 79; TAB C. Pursuant to Garcia’s request, that Court later made
factual findings that the conditions surrounding Lot 65 had changed. CR 72 – 75,
¶¶ 17 – 19; TAB B. That Court also found that its 2009 Order authorized the City
to amend its zoning ordinances, that the City’s rezoning of Lot 65 was consistent
with the authority to amend its zoning ordinances provided in that Order, and that
the zoning change did not violate that Order. CR 75, ¶¶ 20 – 23; CR 76, ¶¶ 5 – 6;
TAB B. The County Court further found that the changed conditions authorized and
required vacation of the Agreed Final Order. CR 76, ¶¶ 26 – 27; 77, ¶¶ 11 – 12;
TAB B. Although the County Court did not directly rule on Garcia’s Motion for
Contempt (presumably because it was moot), Garcia did not appeal the 2014 Order
vacating and setting aside the 2009 Order, and the 2014 Order has now become final.
2
SUMMARY OF THE ARGUMENT
The City of Pharr is immune from suit unless that immunity has been clearly
and unambiguously waived as a matter of law. Because the City challenged Garcia’s
pleadings with supporting evidence, he was required to provide admissible
contradictory evidence that would establish jurisdiction. Garcia’s District Court
claim below is a no more than a challenge to the rulings previously made by County
Court at Law No. 1, however, and he identified no factual evidence or legal support
to establish waiver of the City’s immunity from suit for that challenge. Because that
County Court case has become final, its rulings are now res judicata or collateral
estoppel against Garcia.
Garcia only presented a claim of inverse condemnation against the City in the
District Court below, though he also requested an injunction and declaratory
judgment. His inverse condemnation claim asserted that the value of his property
was diminished when the City rezoned his neighbor’s property from residential to
office-professional, though he identified no evidence of any alleged diminution.
More significantly, he identified no evidence to establish the elements of an inverse
condemnation claim, including any intentional act by the City to take his property,
an actual taking of his property, or any public use for which his property was
allegedly taken. He therefore did not identify a waiver of the City’s immunity from
suit for a claim of inverse condemnation.
3
Garcia likewise identified no jurisdiction to have the District Court below
enjoin enforcement of a County Court’s 2009 Order, notwithstanding that County
Court’s subsequent 2014 Order setting aside its 2009 order, or to declare judgment
relating to those orders. As this Court explained previously, rules of comity
jurisdictionally prevent one trial court from indiscriminately attacking the judgment
of another trial court. Because Garcia was a party in the County Court case, the
County Court’s 2014 Order is res judicata for those same matters raised in the
District Court, and he is now collaterally estopped from relitigating those issues.
Without evidence to establish waiver of the City’s immunity from suit, the
court below did not have jurisdiction over Garcia’s claims. Because these
jurisdictional defects are incurable, remand would not be authorized for further
development of the evidence and the order denying the City’s Plea to the Jurisdiction
should be reversed and rendered.
ARGUMENT
ISSUES RESTATED
Whether the Trial Court Erred in Denying the Plea to the Jurisdiction?
a. Whether Garcia identified a waiver of the City of Pharr’s
sovereign or governmental immunity from suit, including any
evidence of a material issue of fact, in order to confer jurisdiction
on the District Court below?
4
b. Whether Garcia identified sufficient factual evidence and legal
authority to support a claim of inverse condemnation resulting
from a zoning change, in order to establish waiver of the City’s
immunity from suit?
c. Whether Garcia identified sufficient factual evidence and legal
authority to establish a claim for equitable relief, necessary to
establish jurisdiction before the District Court below?
d. Whether Garcia identified sufficient factual evidence and legal
authority for a District Court to temporarily enjoin enforcement
of rulings by a County Court at Law?
e. Whether Garcia identified sufficient factual evidence and legal
authority to establish jurisdiction of a District Court to enter a
declaratory judgment relating to prior orders of a County Court
at Law?
f. Whether the rulings of the County Court are res judicata before
the District Court below and this Court?
A. Standard of Review
1. The City of Pharr is immune from suit unless that immunity has
been waived by law.
Whether Garcia established subject-matter jurisdiction is a question of law
that this Court reviews de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is never presumed and
cannot be waived. Ford Motor Co. v. Cammack, 999 S.W.2d 1, 5 (Tex. App. –
Houston [14th Dist.] 1998, pet. denied). “Want of jurisdiction of the subject matter
of the suit will arrest a cause at any stage of the proceedings.” Able v. Bloomfield,
6 Tex. 263, 264 (1851). The trial court was therefore required to dismiss if it became
5
apparent that it had no authority under the law to adjudicate the issues presented.
Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 333 (Tex. App. –
Corpus Christi 2002, no pet.).
“Governmental immunity encompasses two components: immunity from
liability and immunity from suit. … A waiver of immunity from suit may occur …
only if the legislature has waived such immunity by clear and unambiguous
language.” Corpus Christi Indep. Sch. Dist. v. TL Mech., 2012 Tex. App. LEXIS
2552, pp. 3 – 4 (Tex. App. – Corpus Christi Mar. 29, 2012, pet. denied), citing Tooke
v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). In order to establish a clear and
unambiguous waiver of immunity, the “statute that waives the State's immunity must
do so beyond doubt,” and any ambiguities are generally resolved in favor of
immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697-98 (Tex.
2003). Sovereign immunity, unless waived, protects municipalities from lawsuits
for damages absent legislative consent. General Servs. Comm’n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).
“Sovereign immunity derives from the principle that the sovereign may not
be sued in its courts without its consent.” Guadalupe-Blanco River Auth. v.
Pitonyak, 84 S.W.3d 326, 334 (Tex. App. – Corpus Christi 2002, no pet.). A
municipality’s sovereign immunity insulates it from suit and effectively deprives a
trial court of jurisdiction to hear the cause. City of Lubbock v. Rule, 68 S.W.3d 853,
6
857 (Tex. App. – Amarillo 2002, no pet.). Garcia was therefore required to
establish that immunity was waived by statute or legislative consent. Id. at 857. He
retains the burden to plead and prove that the Legislature waived the City’s immunity
from suit. General Servs. Comm. v. Little-Tex Insulation Co., 39 S.W.3d at 594.
2. Because the Plea to the Jurisdiction relied on evidence challenging
Garcia’s factual pleadings, he was required to identify a fact issue,
including evidence, that would establish waiver of the City’s
immunity.
A Plea to the Jurisdiction is the proper vehicle through which the City could
challenge the jurisdiction of the trial court, where Garcia’s pleadings were
challenged with supporting evidence relevant to the jurisdictional issues. Texas
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d at 222. When a defendant
challenges pleadings that relate to a jurisdictional issue, and provides evidence that
may rebut those pleadings and thus undermine the alleged waiver of immunity from
suit, that evidence should be considered in ruling on the plea. Hearts Bluff Game
Ranch v. State, 381 S.W.3d 468, 476 (Tex. 2012); Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d at 227 – 28. Because the City challenged Garcia’s
pleadings with evidence, Garcia was required to provide admissible contradictory
evidence that would establish a fact issue on those jurisdictional elements. His
Response to the City’s Plea to the Jurisdiction identified no evidence of any facts to
contradict the City’s evidence, however. CR 80 – 85.
7
The Supreme Court explained that “when parties submit evidence at [the] plea
to the jurisdiction stage, review of the evidence generally mirrors the summary
judgment standard.” Canutillo Indep. Sch. Dist. v. Farran, 409 S.W.3d 653, 656
(Tex. 2013), citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d at 228.
See also Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 792, (Tex. App. –
Houston [1st Dist.] 2012, no pet.). “Pleadings, even if sworn, are not proper
summary judgment evidence.” City of Wilmer v. Laidlaw Waste Systems, Inc., 890
S.W.2d 459, 467 (Tex. App. – Dallas 1994), aff'd, 904 S.W.2d 656 (Tex. 1995).
Garcia had the burden to identify a fact issue that, if accepted as true, would
establish waiver of the City’s immunity from suit. “[A] plea to the jurisdiction can
also properly challenge the existence of those very jurisdictional facts [alleged in the
plaintiffs’ petition]. In [such] cases, the court can consider evidence as necessary to
resolve any dispute over those facts, even if that evidence ‘implicates both the
subject-matter jurisdiction of the court and the merits of the case.’” Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (emphasis in original),
quoting Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d at 226.1
1 “If the plea challenges the existence of jurisdictional facts, [this Court must] consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional issue raised, as the
trial court is required to do so. In a case in which the jurisdictional challenge implicates the
merits of the plaintiff's cause of action and the plea to the jurisdiction includes evidence, the trial
court reviews the relevant evidence to determine if a fact issue exists. … [I]f the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
rules on the plea to the jurisdiction as a matter of law.” Tamayo v. Lucio, 2013 Tex. App. LEXIS
8944, pp. 7 – 8 (Tex. App. – Corpus Christi July 18, 2013, no pet.), citing Bland Indep. Sch.
8
“In the context of a plea to the jurisdiction, because the elements of [Garcia’s]
claim[s] are jurisdictional, [he] must affirmatively plead facts and, if appropriate,
produce evidence demonstrating those elements to show a waiver of [the City’s]
sovereign immunity.” Univ. of Tex. v. Ramos, 2012 Tex. App. LEXIS 707, p. 13
(Tex. App. – Corpus Christi Jan. 26, 2012, pet. denied), citing, Tex. Dep't of Parks
& Wildlife v. Miranda, 133 S.W.3d at 227-28. “In other words, to both establish
waiver of immunity, and accordingly, subject-matter jurisdiction, and avoid … the
granting of a plea to the jurisdiction, [Garcia] must have created a genuine issue of
material fact on each of the elements of [his] claim.” Univ. of Tex. v. Ramos, 2012
Tex. App. LEXIS 707, p. 15.
“[A]fter the [City] asserts and supports with evidence that the trial court lacks
subject matter jurisdiction, we simply require the plaintiffs, when the facts
underlying the merits and subject matter jurisdiction are intertwined, to show that
there is a disputed material fact regarding the jurisdictional issue.” Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d at 228. See also State v. Lueck, 290
S.W.3d 876, 881 (Tex. 2009); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d at 555.
“[I]f the plaintiffs’ factual allegations are challenged with supporting evidence
necessary to consideration of the plea to the jurisdiction, to avoid dismissal plaintiffs
Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); Tex. Dep't of Parks & Wildlife v. Miranda, 133
S.W.3d at 227.
9
must raise at least a genuine issue of material fact to overcome the challenge to the
trial court’s subject matter jurisdiction.” Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d at 221. Dismissal is proper where Garcia failed in his burden to “raise
at least a genuine issue of material fact to overcome the challenge to the trial court’s
subject matter jurisdiction.” Id. 133 S.W.3d at 222.
B. Garcia Identified No Factual Evidence or
Legal Support to Establish Waiver of Immunity From Suit
1. Without evidence of an intentional taking of Garcia’s property for a
public use, he has not identified waiver of immunity for an inverse
condemnation claim.
Garcia alleged a claim of inverse condemnation against the City because of
its failure to enforce a “Final Order” of the County Court at Law and its rezoning of
Lot 65 from a Single-Family Residential District to an Office-Professional District.
CR 39. He claims the failure to enforce that Order and the rezoning of Lot 65
allegedly caused him to suffer damages in the form of devaluation of the market
value of his property resulting from the non-residential use of Lot 65, for which he
also claims the City has not adequately compensated him. CR 39 – 40. Although
Garcia’s claim implicates the “sophistic Miltonian Serbonian Bog”2 that defines the
2 See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex. 2004), quoting
Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 105 (Tex. 1962)). See also JOHN
MILTON, PARADISE LOST 49, bk. II, ll. 592-94 (Scott Elledge ed., Norton & Co. 1993) (1674)
10
law of inverse condemnation through an alleged regulatory taking, he does not
reference the elements of an inverse condemnation claim and he failed to identify
evidence of facts that would establish that claim.
Initially, Texas courts have long described eminent domain as “one of the
inalienable rights of sovereignty. It is the power to take private property for public
use.” Fort Worth & D.C. Ry. v. Ammons, 215 S.W.2d 407, 409 (Tex. Civ. App. –
Amarillo 1948, writ ref’d n.r.e.). It is “axiomatic that government cannot take a
citizen’s property without payment of the property’s fair value,” however. State v.
Ware, 86 S.W.3d 817, 821 (Tex. App. – Austin 2002, no pet.). If the government
appropriates property without paying adequate compensation, the owner may
recover damages in an inverse condemnation suit. Westgate Ltd. v. State, 843 S.S.2d
448, 452 (Tex. 1992).
Governmental entities such as the City of Pharr are immune from suit unless
the Texas Legislature unequivocally waived that immunity, however. See Tex.
Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Garcia’s claim of inverse
condemnation alleges an unconstitutional taking of property without compensation,
presumably in violation of the Texas Constitution, article I, section 17. That section
provides that private property may not be “taken, damaged or destroyed for or applied
(describing the land beyond Lethe as “A gulf profound as that Serbonian bog / Betwixt Damiata
and Mount Casius old, / Where armies whole have sunk”).
11
to public use without adequate compensation being made, unless by the consent of
such person.” Tex. Const. art. I, §17.
“To recover [in an inverse condemnation suit] under Article I, section 17, a
plaintiff must prove that (1) the government’s intentional acts (2) resulted in a taking
of the plaintiff’s property, (3) for public use. Patel v. City of Everman, 179 S.W.3d
1, 7 (Tex. App. – Tyler 2004, pet. denied). See also General Servs. Comm. v. Little-
Tex Insulation Co., 39 S.W.3d at 598. “‘Inverse condemnation’ occurs when
property is taken, damaged, or destroyed for public use without process or without
proper condemnation proceedings, and the property owner attempts to recover
compensation.” Id., citing Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.
App. – Houston [1st Dist.] 1989, writ denied). “‘Taking,’ ‘damaging,’ and
‘destruction’ of one’s property are three distinct claims arising under Article I, Section
17. … However, the term ‘taking’ has become used as a shorthand to refer to all three
types of claims.” City of Dallas v. Jennings, 142 S.W.3d 310, 313 n.2 (Tex. 2004).
The Supreme Court has identified two distinct categories of regulatory action
that could constitute a taking. “One is where regulation ‘compels the property owner
to suffer a physical “invasion” of his property.’ The direct, physical effect on
property, though short of government possession, makes the regulation categorically
a taking. Another is ‘where regulation denies all economically beneficial or
12
productive use of land.’” Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d
at 671 (internal citations omitted).3
Garcia does not complain of a regulatory change to his property, however.
Rather, he complains of the effect on his property allegedly caused by a change to
his neighbor’s property. Although he alleges a diminution in value of his property,
he identified no evidence of that alleged diminution. Regardless, he has no
allegation or evidence to establish that he was denied “all economically beneficial
or productive use of land.” City of Carrollton v. HEB Parkway S., Ltd., 317 S.W.3d
at 793 (emphasis in original).
Garcia instead appears to complain only that the City interfered with his
unrestricted enjoyment of his property. This allegation cannot establish an inverse
condemnation claim, however. “An inverse condemnation may occur when the
3 “Takings may be physical (that is, ‘a direct government appropriation or physical invasion of
private property’) or regulatory (that is, based on a government regulation). A regulatory takings
claim may be based on a number of different theories. One basis for a regulatory takings claim
occurs when a government ‘requires an owner to suffer a permanent physical invasion of her
property—however minor.’ For example, a law that requires a landlord to permit a cable
television company to install its facilities upon the landlord's property constitutes a compensable
taking. Under both the federal and Texas constitutions, this type of regulation constitutes a per se
taking for which the landowner must be compensated. Another category of per se taking under
both the federal and Texas constitutions, sometimes referred to as a ‘Lucas-type “total regulatory
taking,”’ occurs when a government regulation deprives a landowner of all economically
beneficial use of the owner's property. A regulation will also constitute a taking when it does not
deprive a landowner of all of the property's economically beneficial use, but it does unreasonably
interfere with the landowner's right to use and enjoy his property. This type of claim is
sometimes called a ‘Penn Central’ takings claim, and it will generally arise when a government
has denied a landowner approval to develop his property.” City of Carrollton v. HEB Parkway
S., Ltd., 317 S.W.3d 787, 792-93 (Tex. App. – Fort Worth 2010, no pet.) (emphasis in original).
13
government physically appropriates or invades the property, or when it unreasonably
interferes with the landowner's right to use and enjoy the property, such as by
restricting access or denying a permit for development.” Westgate, Ltd. v. State,
843 S.W.2d at 452 (internal citations omitted). Garcia does not complain that the
City physically invaded or interfered with his right to use or enjoy his property. He
complains only that the zoning change to his neighbor’s property consequentially
resulted in a diminution of the value of his own property.
Whether “a zoning ordinance constitutes a compensable taking … is a
question of law….” Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d at
673. Consequential damages to property caused by government action do not
establish a taking without a physical invasion of that property, however. Even
“publicly targeting a property for condemnation, resulting in economic damage to
the owner, generally does not give rise to an inverse condemnation cause of action
unless there is some direct restriction on use of the property.” Westgate, Ltd. v.
State, 843 S.W.2d at 453. A diminution in property value caused only by a change
in a zoning law therefore cannot establish an unconstitutional taking. See Penn
Cent. Transp. Co. v. New York City, 438 U.S. 104, 131, 98 S. Ct. 2646, 2663 (1978).
“[Z]oning does not constitute a ‘taking’” unless an individual “surrenders to the
public something more and different from that which is exacted from other members
of the public….” Id., 438 U.S. at 147-48, 98 S. Ct. at 2671.
14
Furthermore, Garcia identified no intentional taking of his property through
the rezoning of Lot 65. He identified no allegation or evidence to establish the City
“intentionally took or damaged [his] property for public use, or was substantially
certain that [harm] would be the result.” City of Keller v. Wilson, 168 S.W.3d 802,
808 (Tex. 2005) (emphasis added). Even if the City’s actions resulted in a
diminution of his property value, liability may only extend to the City for an
intentional taking if he could establish that the City knew its actions would cause
him that harm. Garcia identified no evidence to establish the City had the necessary
state of mind to know that damage actually would occur to his property, however,
that the City intended to cause him any harm, or that it knew identifiable harm was
occurring or substantially certain to result. Without “evidence of ‘objective indicia of
intent’ showing the City knew identifiable harm was occurring or substantially
certain to result,” Garcia cannot establish an intentional taking. Id., 168 S.W.3d at
830. “The critical question in this case was the City’s state of mind – [Garcia] had to prove
the City knew (not should have known) that [the injury] was substantially certain” to occur.
Id., 168 S.W.3d at 829
Furthermore, “[a]s in statutory condemnation, the appropriated property must
also be applied to public use.” Westgate, Ltd. v. State, 843 S.W.2d at 452. “When
damage is merely the accidental result of the government's act, there is no public
benefit and the property cannot be said to be ‘taken or damaged for public use.’”
15
City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex. 2004), quoting Texas
Highway Dep't v. Weber, 219 S.W.2d 70, 71 (Tex. 1949). See also City of Houston
v. Carlson, 451 S.W.3d 828, 833 (Tex. 2014) (order to evacuate building because of
safety concerns is not a taking for public use).
Because Garcia retained all aspects of his property and the City received no
public benefit through the rezoning of Lot 65, he has not identified an intentional
taking for a public use. Garcia identified no factual evidence or legal authority to
establish any intentional taking, damaging, or destruction of his property by the City,
or how any alleged damage was for a public use. See CR 80 – 85. Without evidence
to establish the City intentionally took, damaged or destroyed his property for a
public use, Garcia has not identified a waiver of the City’s immunity.
2. The District Court does not have jurisdiction to enjoin
enforcement of an Order of a County Court at Law.
Although “Plaintiffs [alleged they] sue the Defendant city of Pharr ONLY
under a theory of cause of action of inverse condemnation and no other theory or
cause of action,” (CR 39, emphasis in original), they also requested a temporary and
permanent injunction in the District Court below to prevent the City from violating
the Agreed Final Order of County Court at Law No. 1. CR 42 – 43, citing TEX.
CIV. PRAC. & REMEDIES CODE § 65.011. Garcia apparently ignores the County
Court’s 2014 Order of Dismissal, Findings of Fact and Conclusions of Law, relying
16
instead on its 2009 Order alone. That request for injunction may only be raised in
the County Court, however, and it may not be raised in the District Court below.
Garcia seeks an injunction to prevent the City’s alleged violation of the
County Court’s 2009 Agreed Final Order restricting the use of lot 65 to residential
uses. As explained above, that Agreed Final Order authorized Pharr zoning
ordinances to be amended from time to time. CR 73, ¶ 6; TAB B. After Garcia
filed his Original Petition in Intervention in the County Court, the City rezoned Lot
65 from a Single-Family Residential District to an Office-Professional District. CR
73, ¶ 10; TAB B. That Court then entered its Order of Dismissal in 2014, granting
the City’s Motion to Vacate its 2009 Agreed Final Order, setting aside that Order
and denying any other relief. CR 78 – 79; TAB C. Pursuant to Garcia’s request,
the County Court thereafter made factual findings that the conditions surrounding
Lot 65 had changed, that the 2009 Agreed Final Order authorized the City to amend
its zoning ordinances, and that the zoning change did not violate the Agreed Final
Order. CR 73 – 75, ¶¶ 17 – 23; CR 76, ¶¶ 5 – 6; TAB B. Although they were
parties to that County Court action, Plaintiffs/Appellees did not appeal that 2014
Order of Dismissal and it is now final.
Garcia has not identified any authority to support jurisdiction in the District
Court for an injunction relating to an Order of the County Court, however. Contrary
to his request, “[a] writ of injunction granted to stay proceedings in a suit or
17
execution on a judgment must be tried in the court in which the suit is pending or
the judgment was rendered.” TEX. CIV. PRAC. & REMEDIES CODE § 65.023.
That “statute controls not just venue of such a suit, but also jurisdiction, so long as
the judgment in question is valid on its face.” Scally v. Detamore, 2001 Tex. App.
LEXIS 2527, p. 4, 2001 WL 392522 (Tex. App. – Houston [1st Dist.] Apr. 19, 2001,
pet. denied). See also McVeigh v. Lerner, 849 S.W.2d 911, 914 (Tex. App. –
Houston [1st Dist.] 1993, writ denied).
As this Court explained, “[s]ection 65.023 is intended to ensure that comity
prevails among the various Texas trial courts because ‘orderly procedure and proper
respect for the courts will require that . . . attacks upon their judgments should be
made in the court rendering such judgment, rather than in other courts
indiscriminately.’” Butron v. Cantu, 960 S.W.2d 91, 94-95 (Tex. App. – Corpus
Christi 1997), quoting McVeigh v. Lerner, 849 S.W.2d at 914 & Lloyds Alliance v.
Cook, 290 S.W.2d 716, 718 (Tex. Civ. App. – Waco 1956, no writ). “This
requirement that an action to enjoin execution on a judgment must be brought in the
court in which the judgment was rendered is jurisdictional, and does not relate
merely to venue.” Butron v. Cantu, 960 S.W.2d at 94. See also Switzer v. Smith,
300 S.W. 31 (Tex. Comm'n App. 1927).
Garcia only seeks an injunction compelling the City to enforce the County
Court at Law’s 2009 Order, notwithstanding that Court’s subsequent 2014 Order
18
vacating that prior order. CR 38 – 39; 78 – 79; TAB C. Garcia’s allegations were
previously contested by Garcia and determined in the County Court, supported by
that Court’s Findings of Fact and Conclusions of Law, and concluded with an Order
of Dismissal. CR 72 – 79; TABS B & C. Any request for injunctive relief relating
to that Order must therefore be raised in that County Court, and the District Court
below does not have subject matter jurisdiction to consider that request.
3. The District Court does not have jurisdiction to enter declaratory
judgment relating to an Order of a County Court at Law
In the District Court below, Garcia sought declaratory judgment that the
County Court’s Agreed Final Order was in full force and effect and that the City’s
rezoning of Lot 65 was invalid and void. CR 43. Although Garcia may have the
general authority to seek declaratory judgment, “to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations,”
he must still identify a factual basis and legal support to pursue that judgment. TEX.
CIV. PRAC. & REMEDIES CODE § 37.002(b). See Tex. Natural Res. Conservation
Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Texas Educ. Agency v.
Leeper, 893 S.W.2d 432, 446 (Tex. 1994). Garcia has not identified facts that would
establish a waiver of immunity from suit in District Court for a declaratory judgment
as to the “rights, status [or] legal relations” involving the orders of the County Court,
notwithstanding the requirement of exclusive jurisdiction in the County Court.
19
Like Garcia’s request for injunctive relief, “‘orderly procedure and proper
respect for the courts will require that . . . attacks upon their judgments should be
made in the court rendering such judgment, rather than in other courts
indiscriminately.’” Butron v. Cantu, 960 S.W.2d at 94-95, quoting McVeigh v.
Lerner, 849 S.W.2d at 914 & Lloyds Alliance v. Cook, 290 S.W.2d 716, 718 (Tex.
Civ. App. – Waco 1956, no writ). The County Court retains exclusive jurisdiction
“so long as the judgment in question is valid on its face.” Scally v. Detamore, 2001
Tex. App. LEXIS 2527, p. 4, 2001 WL 392522. Because Garcia does not challenge
the facial validity of the County Court’s 2014 Order, he has no basis for jurisdiction
in the District Court below to challenge or interpret the rulings of that County Court.
4. The rulings of the County Court at Law are
res judicata before the District Court below and this Court
The County Court’s 2014 Findings of Fact and Conclusions of Law, along
with its Order of Dismissal, are also res judicata, and Garcia is collaterally estopped
from attempting to relitigate those claims in the District Court. Although Garcia
apparently seeks a declaratory judgment that the County Court’s 2009 Agreed Final
Order remains in effect, and derivatively that its 2014 Order vacating that 2009
Order is without effect, those issues have already been resolved in the County Court
case. As set out above, the County Court vacated its 2009 Agreed Final Order and
20
issued findings supporting its conclusions, which Garcia is now collaterally estopped
from challenging. CR 72 – 79; TABS B & C.
[D]octrines of collateral estoppel and res judicata [provide] that a
“right, question or fact distinctly put in issue and directly determined
by a court of competent jurisdiction . . . cannot be disputed in a
subsequent suit between the same parties or their privies….” Under res
judicata, a final judgment on the merits bars further claims by parties
or their privies based on the same cause of action. Under collateral
estoppel, once an issue is actually and necessarily determined by a court
of competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a party
to the prior litigation.
Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973 (1979) (internal
citations omitted).
The County Court at Law made numerous findings of fact to support its
conclusions. In particular, The County Court found that the conditions had changed
between December 2, 2009, when the original Agreed Final Order was issued, and
August 20, 2014, the day the Court considered Pharr’s Motion to Vacate Final
Order and Motion to Dismiss. CR 75, ¶ 19; TAB B. The Court also found, factually
and legally, that the 2009 Agreed Final Order authorized the City of Pharr to amend
its zoning ordinances from time to time and that the City’s rezoning of Lot 65 from
a Residential District to an Office Professional District did not violate the 2009
Agreed Final Order. CR 75, ¶¶ 20 & 22; CR 76, ¶¶ 5 & 6; TAB B. In addition, the
Court determined that use of Lot 65 was not inconsistent with the allowed residential
uses pursuant to Pharr zoning ordinances, and was further in compliance with Pharr
21
zoning ordinances. CR 75, ¶ 23; CR 77, ¶ 7; TAB B. The Court therefore vacated
the 2009 Agreed Final Order. CR 78 – 79; TAB C. Those findings may not now be
challenged by Garcia. Montana v. United States, 440 U.S. at 153, 99 S. Ct. at 973.
“The facts relevant to [Garcia’s] present … claim … were all evident in the
prior suit, and [his] requested [relief in the present action] proposed no new or
different application.” Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 60
(Tex. 2006). “Whether or not the [County Court] was correct in [its decision], that
holding is dispositive and not subject to collateral attack; claim preclusion inheres
regardless of whether the prior decision was correct. … If [Garcia] wished to
challenge the [County Court’s] decision, [he] could have filed an appeal, which [he]
chose not to do. Id., citing Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997).
To allow Garcia’s District Court challenge to the County Court’s 2014 Order
vacating and setting aside its prior 2009 Agreed Final Order would instead create an
alternative appeal procedure, without respect to jurisdiction or deadlines. He has
identified no jurisdictional avenue to do so, however. Garcia therefore may not seek
review of the County Court’s Orders through declaratory judgment in the District
Court below, and he may not seek any relief that would be contrary to the prior
Findings, Conclusions or Order of Dismissal in the County Court, including any
declaratory judgment contrary to the County Court’s 2014 Order. Montana v.
United States, 440 U.S. at 153, 99 S. Ct. at 973.
22
C. Remand to Allow Garcia to Attempt to Cure Pleading and
Evidentiary Defects Would Serve No Purpose and is Not Authorized
Remand is also not authorized for “further development” of Garcia’s claims
or to plead a new claim. This Court may not remand this case “in the interests of
justice,” or because the case has not been “fully developed,” as Appellees may
request. Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex. 1987); Estate
of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636, 639 (Tex. 1986); Sears
& Roebuck & Co. v. Marquez, 628 S.W.2d 772, 773 (Tex. 1982).
“As an intermediate appellate court, [this Court] lacks authority to … remand
for further development of the case.” Postert v. Calhoun County, 2011 Tex. App.
LEXIS 8643, p. 6 n.3 (Tex. App. – Corpus Christi Oct. 27, 2011, pet. denied), citing
TEX. R. APP. P. 43.3; Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App. –
Houston [14th Dist.] 2007, no pet.); Sears, Roebuck & Co. v. Marquez, 628 S.W.2d
at 773. “Once an appellate court has concluded there is no evidence to support a
necessary finding, it is not within its power to … remand for further development of
the same or similar evidence….” Sears & Roebuck & Co. v. Marquez, 628 S.W.2d
at 773. Remand is therefore not authorized.
23
CONCLUSION & PRAYER
Garcia failed to identify any evidence or authority that would support waiver
of the City of Pharr’s immunity from suit on a claim of inverse condemnation or a
request for injunctive or declaratory relief. The evidence submitted by the City, on
the other hand, established the lack of jurisdiction to consider either of those claims.
Because these jurisdictional defects are incurable, remand would serve no purpose
and is not authorized for further development of Garcia’s allegations. Appellee
CITY OF PHARR, TEXAS therefore prays that this Court reverse the trial court’s
denial of its Plea to the Jurisdiction and render judgment dismissing the City of Pharr
for lack of jurisdiction.
Signed on this the 20th day of October, 2015.
Respectfully submitted,
AGUILAR ZABARTE, LLC Patricia Ann Rigney
990 Marine Drive 118 South Cage Boulevard
Brownsville, Texas 78520 Pharr, Texas 78577
Telephone: (956) 504-1100 Telephone : (956) 457-1181
Facsimile: (956) 504-1408 Facsimile : (956) 272-0116
Email: arnold@aguilarzabartellc.com Email: patricia.rigney@pharr-tx.gov
/s/ Patricia Ann Rigney
J. Arnold Aguilar Patricia Ann Rigney
State Bar No. 00936270 State Bar No. 24048765
ATTORNEYS FOR DEFENDANT/APPELLANT
CITY OF PHARR, TEXAS
24
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)(3)
Pursuant to TEX. R. APP. P. 9.4(i)(3), the undersigned certifies this brief
complies with the type-volume limitations of TEX. R. APP. P. 9.4(i)(2)(B). This
brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B)
because it contains 6,140 words, excluding the parts of the brief exempted by TEX.
R. APP. P. 9.4(i)(1).
This brief complies with the typeface requirements of TEX. R. APP. P.
9.4(e)(3) and the type style requirements of TEX. R. APP. P. 9.4(b), (c) and (d)
because it has been prepared in a proportionally spaced serif typeface produced by
Microsoft Word 2013 software in Times New Roman 14 point font in text and Times
New Roman 12 point font in footnotes.
The undersigned further certifies that all required privacy redactions have
been made pursuant to TEX. R. APP. P. 9.9.
J. Arnold Aguilar
Attorney for Defendant/Appellant
City of Pharr, Texas
Dated: October 20, 2015
25
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing BRIEF OF
APPELLANT CITY OF PHARR, TEXAS’ will on this the 20th day of October,
2015, be served automatically through the notice of electronic filing and/or via
certified mail, return receipt requested to:
Francisco J. Rodriguez
LAW OFFICE OF FRANCISCO J. RODRIGUEZ
1111 West Nolana, Suite A
McAllen, Texas 78504
email: frankr@mcallenlawfirm.com
Jeanne E. Holmes
LAW OFFICES OF JEANNE E. HOLMES, P.C.
212 West Nolana
McAllen, Texas 78501
email: ljeanneholmes@rgv.rr.com
J. Arnold Aguilar
26
CASE NO. 13-15-00409-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CITY OF PHARR,
Defendant – Appellant
v.
GERMAN GARCIA, ANNA LEAL, DOMINGO LOPEZ, JR., SAN
JUANITA DE LA FUENTE, AND EZEQUIEL PEREZ,
Plaintiff – Appellee
On Appeal from the 430th Judicial District Court of Hidalgo County, Texas
Case No. C-5232-14-J
======================================================
APPENDIX FOR BRIEF OF
APPELLANT CITY OF PHARR, TEXAS
======================================================
J. Arnold Aguilar Patricia Ann Rigney
State Bar No. 00936270 State Bar No. 24048765
AGUILAR ZABARTE, LLC
990 Marine Drive 118 South Cage Boulevard
Brownsville, Texas 78520 Pharr, Texas 78577
Telephone: (956) 504-1100 Telephone : (956) 457-1181
Facsimile: (956) 504-1408 Facsimile : (956) 272-0116
Email: arnold@aguilarzabartellc.com Email: patricia.rigney@pharr-tx.gov
/s/ J. Arnold Aguilar /s/ Patricia Ann Rigney
J. Arnold Aguilar Patricia Ann Rigney
State Bar No. 00936270 State Bar No. 24048765
Attorneys for Defendant /Appellant
CITY OF PHARR, TEXAS
27
TABLE OF CONTENTS
TAB
Order Denying Defendant City of Pharr, Texas’ Plea to the Jurisdiction …………………A
Findings of Fact and Conclusions of Law,
Cause No. CL-08-0136-A, County Court at Law No. 1…………………………………...B
Order of Dismissal
Cause No. CL-08-0136-A, County Court at Law No. 1…………………………………...C
28
TAB A
Electronically Filed
8/11/2015 4:26:09 PM
Hidalgo County District Clerks
Reviewed By: Andrea Guajardo
CAUSE NO. C-5232-14-J
GERMAN GARCIA, ANNA LEAL, ♦ IN THE DISTRICT COURT``
DOMINGO LOPEZ, JR., SAN JUANITA ♦
DE LA FUENTES, and EZEQUIEL ♦
PEREZ ♦
♦
Plaintiffs ♦ 430th JUDICIAL DISTRICT
♦
♦
CITY OF PHARR, et al. ♦
♦
Defendants ♦ HIDALGO COUNTY, TEXAS
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ PLEA
TO THE JURISDICTION OR IN THE ALTERNATIVE MOTION FOR
SUMMARY JUDGMENT
Upon consideration of the Defendants’ Plea to the Jurisdiction or in the
alternative Motion for Summary Judgment, and after reviewing the pleadings, evidence
and other documents on file including the arguments of counsel thereon, the Court is of
the opinion that Defendants’ Plea to the Jurisdiction or in the alternative Motion for
Summary Judgment should be GRANTED IN PART and DENIED IN PART;
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the following
Defendants are dismissed with prejudice in their official capacities: Arturo J. Cortez, Raul
Martinez, Raul Gonzalez, Ricardo Medina, Francisco [Francisca] Quintanilla, Adan Farias,
Hector Villarreal, Romeo Robles, Guadalupe Cano, Chris [Cris] Flores, Charlie Ramirez,
Tom Greuner, Victor Carrillo, III, and Edward Wylie.
96
Electronically Filed
8/11/2015 4:26:09 PM
Hidalgo County District Clerks
Reviewed By: Andrea Guajardo
IT IS FURTHER ORDERED that the remaining requests by the Defendants
contained in Defendants’ Plea to the Jurisdiction or in the alternative Motion for
Summary Judgment are hereby DENIED.
17TH august
SIGNED on this ______ day of __________________, 2015.
____________________________
____
_____________________
__
JUDGE PRESIDING
E PRE
R SIDING
michael@michaelpruneda.com; frankr@mcallenlawfirm.com; Sonia@mcallenlawfirm.com
germangarcia@rgv.rr.com; rpalacios@pgtlawfirm.com; ljeanneholmes@rgv.rr.com
th
Jose Escamilla, 6916 N. 30 St.; McAllen, Texas 78504
97
TAB B
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Accepted by: Ester Espinoza 6/4/2015 9:22:17 AM
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CAUSE NO. CL-08-0136-A
CITY OF PHARR ♦ IN THE COUNTY COURT``
♦
Plantiff ♦
♦
♦
GERMAN GARCIA, ANNA LEAL, ♦
DOMINGO LOPEZ, JR., SAN ♦
JUANITA DE LA FUENTES, ♦
EZEQUIEL PEREZ, BLANCA ♦
SALOMERON, CELEDINA ♦ AT LAW NO. 1
MARTINEZ, JOSE GARCIA, and ♦
MARIA PEREZ ♦
♦
Intervenors ♦
♦
♦
JOSE ESCAMILLA, and all ♦
occupants ♦
♦
Defendants ♦ HIDALGO COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to the Intervenors’ Request, the Court hereby submits its Findings of
Fact and Conclusions of Law in support of its Order of Dismissal and Final Judgment
entered on August 25, 2014, as follows:
FINDINGS OF FACT
1. Plaintiff City of Pharr is a municipality in Hidalgo County, Texas.
2. Defendant Jose Escamilla is an individual residing in Hidalgo County, Texas.
3. Intervenors German Garcia, Anna Leal, Domingo Lopez, Jr., San Juanita De La
Fuentes, Ezequiel Perez, Blanca Salomeron, Celedina Martinez, Jose Garcia,
and Maria Perez are individuals residing in Hidalgo County, Texas.
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4. In 2008, Plaintiff City of Pharr filed suit against Defendant Escamilla to prohibit
his use of premises located at Lot 65, 1301 Truman, Pharr, Hidalgo County,
Texas from being used in a manner not consistent with the ordinances approved
by the City of Pharr.
5. After a period of time, the parties reached a resolution of their differences and
submitted a proposed Agreed Final Order.
6. On December 2, 2009, the Court approved, signed and entered that proposed
Agreed Final Order, providing that “Defendant Jose Escamilla and all other
occupants, assigns, and grantees
[s]hall not use the property located at Lot
65, 1301 Truman, Pharr, Hidalgo County, Texas in any manner not consistent
with the allowed residential uses pursuant to Pharr zoning ordinances as may be
amended from time to time. Neither Defendant Jose Escamilla nor other
occupants, assigns, and grantees shall be allowed to use the property for
commercial purposes, directly or indirectly, and shall not be allowed to store
equipment or other items of commerce.” Agreed Final Order (emphasis added.)
7. The only relief provided in the Agreed Final Order was injunctive.
8. Prior to entering its Agreed Final Order, neither party requested a trial of factual
issues before a jury.
9. On March 4, 2014, Intervenors filed their Intervenors’ Original Petition in
Intervention seeking an Order from this Court compelling compliance with the
Court’s prior Agreed Final Order.
10. Prior to August 20, 2014, the property located at Lot 65, 1301 Truman, Pharr,
Hidalgo County, Texas, was rezoned by the City of Pharr from a Single-Family
Residential District (R-1) to an Office-Professional District (O-P).
11. On March 12, 2014, Intervenors filed their Motion for Contempt and Motion for
Costs, seeking an Order from this Court finding Plaintiff, Defendant and others in
contempt of this Court for violating the Court’s prior Agreed Final Order.
12. On May 14, 2014, Intervenors Blanca Salomeron, Celedina Martinez, Jose
Garcia and Maria Perez filed their Notice of Non-Suit Without Prejudice.
13. Only Intervenors German Garcia, Anna Leal, Domingo Lopez, Jr., San Juanita
De La Fuentes and Ezequiel Perez, Plaintiff and Defendant are before this Court;
No other alleged contemnors have been served with process or made an
appearance before this Court.
14. On August 6, 2014, Plaintiff City of Pharr filed its Motion to Vacate Final Order
and Motion to Dismiss, requesting that this Court set aside the Agreed Final
Order because of a change in circumstances, including the legal requirements,
and because Plaintiff is no longer in need of the relief provided in that Order.
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15. After timely notice, the Court held a hearing on Plaintiff’s City of Pharr’s Motion to
Vacate Final Order and Motion to Dismiss on August 20, 2014. See Hearing
Transcript.
16. On August 20, 2014, the day of the hearing on Plaintiff’s motion, Intervenors filed
their demand for a jury trial and paid the jury fee.
17. Prior to the entry of the Court’s Agreed Final Order of December 2, 2009, the
following conditions were present at or surrounding the property located at Lot
65, 1301 Truman, Pharr, Hidalgo County, Texas:
a. The property was located in a Single-Family Residential District (R-1)
zone;
b. Defendant was operating a charter bus service out of that property;
c. Approximately eleven (11) Charter buses would be parked on the
property and on the public street in front of and surrounding the
property;
d. The Charter buses were large, heavy vehicles.
e. The length and width of the bus vehicles block or impede traffic flow;
f. Because of their size, the use of the buses violated the City’s street
roadway ordinance and should have instead been in an industrial
zone;
g. The Charter bus business would bring in additional traffic, including
additional vehicles that would park, drop off and pick up bus
passengers;
h. At one point, approximately 30 additional vehicles were parked in front
of the property waiting for their passengers to board a bus;
i. Buses would leave the property at different times of the day and night;
j. The nature of the buses, their size, and the pedestrian traffic created
by their use increased the noise level;
k. The Charter buses would increase the danger to children, pedestrians
and other motorists beyond that of normal vehicle traffic;
18. As of the day of hearing on Plaintiff City of Pharr’s Motion to Vacate Final Order
and Motion to Dismiss, August 20, 2014, the following conditions were present at
or surrounding the property located at Lot 65, 1301 Truman, Pharr, Hidalgo
County, Texas:
a. The City of Pharr approved conversion of the property to an Office-
Professional District (O-P) zone, which can be used for very limited
matters, such as doctors’, attorneys’ or auditors’ offices;
b. A charter bus service is no longer being operated out of that property;
c. The business now on the property involves estimating from blueprints and
has only four (4) employees;
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d. Buses are no longer parked on the property or on the public street in front
of or surrounding the property;
e. Although some additional vehicle traffic may be present on occasion, that
additional traffic is sporadic and does not lead to consistent congestion;
f. The vehicle traffic that now presents in front of and surrounding the
property consists primarily of passenger, rather than commercial or
industrial, vehicles;
g. Because the vehicle traffic that presents on the street primarily involves
passenger vehicles, it does not block or impede traffic flow;
h. There is no longer a large influx of persons waiting, with or without
vehicles, to board buses, on a daily or other consistent basis;
i. Buses no longer leave the property at different times of the day and night;
j. The noise level is comparable to other residential neighborhoods in the
City of Pharr;
19. The conditions existing at or surrounding the property located at Lot 65, 1301
Truman, Pharr, Hidalgo County, Texas, as of the day of hearing on Plaintiff City
of Pharr’s Motion to Vacate Final Order and Motion to Dismiss, August 20, 2014,
have changed from the conditions that existed prior to the entry of the Court’s
Agreed Final Order of December 2, 2009.
20. The Agreed Final Order of December 2, 2009, authorized the City of Pharr,
Texas to amend its zoning ordinances from time to time.
21. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman,
Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1)
zone to an Office-Professional District (O-P) zone was consistent with the
authority to amend its zoning ordinances provided in the Agreed Final Order of
December 2, 2009.
22. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman,
Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1)
zone to an Office-Professional District (O-P) zone did not violate the Agreed Final
Order of December 2, 2009.
23. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County,
Texas as of August 20, 2014, is not inconsistent with the allowed residential uses
pursuant to Pharr zoning ordinances as may be amended from time to time.
24. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County,
Texas as of August 20, 2014, does not violate, and is in compliance with, the City
of Pharr zoning ordinance in effect on that date for that location (Office-
Professional District).
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25. As of August 20, 2014, the property located at Lot 65, 1301 Truman, Pharr,
Hidalgo County, Texas, is not being used to store equipment or other items of
commerce.
26. The changed conditions described above require vacation of the Agreed Final
Order of December 2, 2009.
27. The changed conditions described above authorize vacation of the Agreed Final
Order of December 2, 2009.
28. Upon vacation of the Court’s prior Agreed Final Order of December 2, 2009, the
Court finds that there remains no actual controversy between the parties.
CONCLUSIONS OF LAW
1. “Trial courts undoubtedly have jurisdiction to modify or vacate their judgments
granting permanent injunctions because of changed conditions.” Smith v.
O'Neill, 813 S.W.2d 501(Tex.1991) (per curiam), quoting City of Tyler v. St.
Louis Southwestern Ry., 405 S.W.2d 330, 332 (Tex. 1966).
2. “[A] court cannot be required to ignore significant changes in law or facts if the
court is ‘satisfied that what it has been doing has been turned through changing
circumstances into an instrument of wrong.’” Kubala Pub. Adjusters, Inc. v.
Unauthorized Practice of Law Comm., 133 S.W.3d 790, 794 (Tex. App. –
Texarkana 2004, no pet.), quoting Sys. Fed'n No. 91 v. Wright, 364 U.S. 642,
647, 5 L. Ed. 2d 349, 81 S. Ct. 368 (1961); United States v. Swift & Co., 286
U.S. 106, 114-15, 52 S. Ct. 460, 76 L. Ed. 999 (1932).
3. A “trial court has authority to amend, alter, or dissolve [an] injunction if either the
factual situation or the controlling law has changed since its entry.” Kubala Pub.
Adjusters, Inc. v. Unauthorized Practice of Law Comm., 133 S.W.3d 790, 795
(Tex. App. – Texarkana 2004, no pet.)
4. The Agreed Final Order of December 2, 2009, authorized the City of Pharr,
Texas to amend its zoning ordinances from time to time.
5. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman,
Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1)
zone to an Office-Professional District (O-P) zone was authorized through the
authority to amend its zoning ordinances provided in the Agreed Final Order of
December 2, 2009.
6. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman,
Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1)
zone to an Office-Professional District (O-P) zone did not violate the Agreed Final
Order of December 2, 2009.
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7. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County,
Texas as of August 20, 2014, is authorized as part of the allowed residential uses
pursuant to Pharr zoning ordinances as may be amended from time to time.
8. The use of the property located at Lot 65, 1301 Truman, Pharr, Hidalgo County,
Texas as of August 20, 2014, does not violate, and is in compliance with, the City
of Pharr zoning ordinance in effect on that date for that location (Office-
Professional District).
9. The controlling law that was applied when the Court entered the Agreed Final
Order provided that the property located at Lot 65, 1301 Truman, Pharr, Hidalgo
County, Texas, was in a Single-Family Residential District (R-1) zone.
10. The City of Pharr’s conversion of the property located at Lot 65, 1301 Truman,
Pharr, Hidalgo County, Texas, from a Single-Family Residential District (R-1)
zone to an Office-Professional District (O-P) zone created a change in the
controlling law.
11. The changed conditions described above require vacation of the Agreed Final
Order of December 2, 2009.
12. The changed conditions described above authorize vacation of the Agreed Final
Order of December 2, 2009.
13. Intervenors were not entitled to a trial by jury because they did not make
application for a jury and pay the jury fee at least ten (10) days before the Agreed
Final Order was entered on December 2, 2009, and/or at least ten (10) days
before the hearing on Plaintiff City of Pharr’s Motion to Vacate Final Order and
Motion to Dismiss on August 20, 2014. See Citizens State Bank v. Caney Inv.,
746 S.W.2d 477 (Tex. 1988); Tex. R. Civ. P. 216.
14. The Court having found circumstances had changed to allow vacation of the prior
Agreed Final Order, and the Court having vacated that Order, there remains no
actual controversy between the parties and all other pending motions are moot,
or in the alternative are denied as without merit. See Thompson v. Ricardo,
269 S.W.3d 100(Tex. App. – Houston [14th Dist.] 2008, no pet.)
3rd
ENTERED on this the ________ October
day of _________________, 2014.
________________________________
__
_ __
___
_____
________
___
____
_ _
JUDGE
JUDG GE PRESIDING
PRES
SID
IDIN
NG
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CAUSE NO. CL-08-0136-A
CITY OF PHARR § IN THE COUNTY COURT
§
VS § AT LAW NO. 1
§
JOSE ESCAMILLA and all occupants § HIDALGO COUNTY, TEXAS
ORDER OF DISMISSAL
On the 20th day of August, 2014, this cause came for hearing on City of
Pharr’s Request to Vacate Final Order and Motion to Dismiss. After
considering the request, motion and response thereto on file, and hearing the
evidence and argument of counsel thereon, the Court finds that the City of Pharr
has not violated the terms of this Court’s Agreed Final Order of December 2, 2009,
that the conditions applicable to the relief provided for in that Agreed Final Order
have changed, and that such Agreed Final Order is no longer necessary, and the
Court is of the opinion that the Request to Vacate Final Order and Motion to
Dismiss should therefore be GRANTED;
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that City of
Pharr’s Request to Vacate Final Order and Motion to Dismiss is hereby
GRANTED and the Agreed Final Order of December 2, 2009, is hereby set aside.
All other pending motions are therefore dismissed.
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It is further ORDERED, ADJUDGED and DECREED that the bond executed
and posted by Plaintiff is no longer necessary and is hereby annulled.
It is further ORDERD, ADJUDGED and DECREED that any and all other
relief not expressly granted herein is denied. This Order finally disposes of all
parties and claims and is appealable.
25th August
ENTERED on this the _______ day of _________________, 2014.
___________________________________
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JUDGE
JUDG PRESIDING
GE PRES
SIDING
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