Eden Cooper, LP v. City of Arlington, Texas James Holgersson Edward Dryden Sheri Capehart Mel LeBlanc And Kathryn Wilemon ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00439-CV
EDEN COOPER, LP APPELLANT
V.
CITY OF ARLINGTON, TEXAS; APPELLEES
JAMES HOLGERSSON; EDWARD
DRYDEN; SHERI CAPEHART; MEL
LEBLANC; AND KATHRYN
WILEMON
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In three issues, appellant Eden Cooper, LP appeals the trial court‘s orders
granting the pleas to the jurisdiction of appellee City of Arlington, Texas (the City)
1
See Tex. R. App. P. 47.4.
and of appellees James Holgersson, Edward Dryden, Sheri Capehart, Mel
LeBlanc, and Kathryn Wilemon (the individual appellees).2 We affirm.
Background Facts
In early 2009, Carrizo Oil & Gas Inc. (Carrizo) applied to the City‘s
planning and zoning commission for a specific use permit (SUP).3 Carrizo
wanted to drill for gas on the Shelton Fannin Farms development, a 3.68-acre
tract that was originally zoned for residential use. Carrizo initially proposed two
transportation routes to the potential drilling site. Both routes would have used
Kuykendall Road, a two-lane, undivided road. Some landowners expressed
opposition to Carrizo‘s application. After the City sent notices concerning the
application to several groups and held a public hearing, the commission denied
the application.
In response to the commission‘s denial of its SUP application, Carrizo
asked the city council to grant an SUP.4 The City held another public hearing.
After the hearing, in August 2009, the council passed ordinance number 09-040,
which granted an SUP to Carrizo for gas drilling and directed the drilling to be in
2
Holgersson is the City‘s city manager; Dryden is the City‘s building official;
and Capehart, LeBlanc, and Wilemon are city council members.
3
An SUP ―provides a means for developing certain uses . . . in a manner in
which the specific use will be compatible with adjacent property and consistent
with the character of the neighborhood.‖
4
One of the City‘s ordinances states, ―In any . . . specific use permit
[decision], . . . the Planning and Zoning Commission makes a recommendation to
the City Council[,] who has the final authority.‖
2
compliance with the ordinance. Among other provisions, the ordinance stated
that drilling was to comply with the conditions of ―Exhibit B,‖ which was attached
to the ordinance. Exhibit B stated in part, ―Ingress and egress to the site will be
on future Eden Road off of South Cooper Street.‖
In June 2010, the City approved five gas well permits for Carrizo.5 Carrizo
and Eden Cooper negotiated on the sale of a right-of-way across Eden Cooper‘s
land for the purpose of Carrizo‘s reaching the drilling site, but according to a
statement made in a city council meeting, the negotiations became ―very
challenging . . . to a point where Carrizo had to go look somewhere else.‖ 6 Thus,
in December 2010, Carrizo asked the City to amend the permits so that Carrizo
could use an alternate transportation route to the drilling site. A staff report
submitted before the city‘s council‘s consideration of Carrizo‘s request explained,
The current transportation route . . . utilizes the intersection of FM
157 and future Eden Road. The proposed route . . . travels from FM
157 to North Peyco Drive and gains access to Eden Road via a 24-
foot wide access road. . . .
5
Approved zoning is required before the City may issue a gas well permit.
6
A document that Eden Cooper filed in the trial court states, ―Carrizo
negotiated with Eden Cooper about purchasing the right-of-way . . . , but no
agreement could be reached.‖ Evidence presented at the hearing on appellees‘
pleas to the jurisdiction establishes that through a letter, Carrizo offered to
purchase land from Eden Cooper at a rate of $2.95 per square foot. The bottom
of the letter was signed by purported representatives of both Carrizo and Eden
Cooper. Alleged representatives for both entities likewise signed a ―Commercial
Contract of Sale,‖ which stated that the purchase price for the property was
$80,988. Nonetheless, after Eden Cooper determined that it wanted a much
higher price for the sale of the land than the price contained in the contract, it did
not close with Carrizo on the sale of the property.
3
The requested amendment will eliminate the need for Carrizo
to utilize future Eden Road. A result of this change is that the City
will not obtain the right-of-way dedication for the portion of Eden
Road the applicant promised to secure. In addition, North Peyco
Drive has a very low score of 45.19 on the City‘s overall condition
index (OCI). . . . [A]n OCI rating of less than 60 indicates roadway
failure.
On December 14, 2010, the city council passed resolution number 10-373,
which granted Carrizo‘s application to amend the five permits. The amended
permits stated, under the title ―Fannin Farms Drill Site Permit Stipulations,‖ that
Carrizo was to use North Peyco Drive to access the drilling site.
In January 2011, Eden Cooper filed an application for a temporary
restraining order, temporary injunction, and permanent injunction against Carrizo,
asking the trial court to prevent Carrizo from, among other actions, using North
Peyco Drive to travel to and from the drilling site. Eden Cooper contended that
Carrizo‘s plan to access its site through North Peyco Drive violated several parts
of the City‘s subdivision regulations. On Eden Cooper‘s behalf, a planning and
zoning consultant opined in an affidavit that the amended route to the site would
create an ―unsafe roadway condition for . . . area residents‖ and that the City had
not complied with its ordinances while amending the route. The consultant
stated in part, ―Only the Gas Well Drill Permit was amended and the
corresponding Specific Use Permit . . . was not amended.‖ The trial court initially
signed, but later dissolved, a temporary restraining order.
In February 2011, Eden Cooper sued appellees. In its original petition,
Eden Cooper alleged that by revising Carrizo‘s path to its drilling site, the City
4
had avoided ―justly compensating [Eden Cooper] for the Eden Road right-of-
way.‖ Eden Cooper claimed that it had invested money in removing timber and
fencing in preparation for the construction of a road across its property.7
The petition included claims against the City for a ―taking‖ of private property
without adequate compensation under the Texas constitution 8 and for a
declaratory judgment9 that the City had acted illegally when it had amended
Carrizo‘s permits. Eden Cooper also brought declaratory judgment claims
against the individual appellees, alleging that they had also acted illegally.
For example, Eden Cooper asserted that three city council members had a
conflict of interest because they served on the board of the Arlington Tomorrow
Foundation, which, according to Eden Cooper, had received large payments from
oil companies.
Appellees answered Eden Cooper‘s suit by asserting a general denial and
contending, among other arguments, that Eden Cooper had not established
standing. In May 2011, appellees filed pleas to the jurisdiction, arguing again
7
Eden Cooper has not directed us to any evidence in the record that
substantiates this claim, and Eden Cooper has not particularly argued in its
briefing that it has standing based upon preparing for the construction of the
road. In the individual appellees‘ brief, they state that Eden Cooper cleared its
land in November 2010, after Eden Cooper‘s negotiations with Carrizo had failed
and after Carrizo had applied for amended permits to create an altered
transportation route.
8
See Tex. Const. art. 1, § 17(a).
9
See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001–.011 (West 2008).
5
that Eden Cooper lacked standing and also contending that they were immune
from Eden Cooper‘s claims. With regard to Eden Cooper‘s declaratory judgment
claims, appellees asserted that Eden Cooper did not have standing to complain
about the amendments of the permits because the amendments did not affect
Eden Cooper‘s property interest and because Eden Cooper‘s interest, if any, was
no different than the general public‘s interest.10
Eden Cooper filed a motion for summary judgment on some of its claims,
and it also filed a response to appellees‘ pleas to the jurisdiction. In its response,
Eden Cooper contended that it had standing because it is the ―owner of property
affected by the challenged actions of the Defendants.‖ Eden Cooper also
amended its petition on more than one occasion. Eden Cooper‘s third amended
petition, like the original petition, asserted claims for a regulatory taking and for
declarations that the City had violated the law by issuing the amended permits
and that the individual appellees had also violated the law and had acted with
conflicts of interest. In its declaratory judgment claims contained within its third
amended petition, Eden Cooper sought declarations that
 the City, Capehart, Wilemon, and LeBlanc had amended Carrizo‘s permits
in violation of chapter 211 of the local government code and in violation of
the city‘s ordinances related to gas drilling and zoning;
 Capehart, Wilemon, and LeBlanc had acted with conflicts of interest by
voting on the amendments to Carrizo‘s permits, and their votes had
10
Carrizo also filed a plea to the jurisdiction on the ground of standing, but
Carrizo is not a party to this appeal. The City joined Carrizo‘s plea to the
jurisdiction and later filed its own plea to the jurisdiction.
6
violated sections of the City‘s design criteria manual for roadways,
therefore creating a ―substantial public safety issue‖ on North Peyco Drive;
and
 Holgersson and Dryden had violated state law and city ordinances by
issuing the amended permits.
The trial court granted the individual appellees‘ plea to the jurisdiction and
dismissed Eden Cooper‘s claims against them. The court also granted the City‘s
pleas to the jurisdiction and dismissed ―the claims presented in Count II of Eden
Cooper, LP‘s petition.‖11 Eden Cooper brought this appeal.
Standing
In its first issue, Eden Cooper challenges the trial court‘s decision to grant
appellees‘ pleas to the jurisdiction on the ground that Eden Cooper did not have
standing to bring claims for declaratory and injunctive relief. A plea to the
jurisdiction is a dilatory plea used to defeat a cause of action without regard to
whether the claims have merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.
2000); City of Fort Worth v. Shilling, 266 S.W.3d 97, 101 (Tex. App.—Fort Worth
2008, pet. denied). The plea challenges the trial court‘s subject matter
jurisdiction. Blue, 34 S.W.3d at 554. Whether the trial court had subject matter
jurisdiction is a question of law that we review de novo. Tex. Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002). A plaintiff‘s
standing to bring a suit is a necessary component of subject matter jurisdiction.
11
The parties agree, therefore, that the trial court did not dismiss Eden
Cooper‘s regulatory taking claim against the City.
7
Maddox v. Vantage Energy, LLC, 361 S.W.3d 752, 756 (Tex. App.—Fort Worth
2012, pet. denied); Kohout v. City of Fort Worth, 292 S.W.3d 703, 707 (Tex.
App.—Fort Worth 2009, no pet.).
The plaintiff has the burden of alleging facts that affirmatively establish the
trial court‘s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993); Shilling, 266 S.W.3d at 101. We construe the
pleadings liberally in favor of the plaintiff, look to the pleader‘s intent, and accept
the pleadings‘ factual allegations as true. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If a plea to the jurisdiction
challenges the existence of jurisdictional facts, as in this case, we consider
relevant evidence submitted by the parties that is necessary to resolve the
jurisdictional issues. Id. at 227; Blue, 34 S.W.3d at 555. ―If 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.‖ Clifton v. Walters,
308 S.W.3d 94, 98 (Tex. App.—Fort Worth 2010, pet. denied).
Under the Uniform Declaratory Judgments Act (UDJA), a person whose
legal relations are affected by a statute or municipal ordinance ―may have
determined any question of construction or validity . . . and obtain a declaration of
rights, status, or other legal relations thereunder.‖ Tex. Civ. Prac. & Rem. Code
Ann. § 37.004(a). A declaratory judgment, however, is appropriate ―only if a
justiciable controversy exists as to the rights and status of the parties and the
controversy will be resolved by the declaration sought.‖ Bonham State Bank v.
8
Beadle, 907 S.W.2d 465, 467 (Tex. 1995); see Brooks v. Northglen Ass’n, 141
S.W.3d 158, 163–64 (Tex. 2004) (―A declaratory judgment requires a justiciable
controversy as to the rights and status of parties actually before the court for
adjudication, and the declaration sought must actually resolve the controversy.‖);
City of Euless v. Dallas/Fort Worth Int’l Airport Bd., 936 S.W.2d 699, 702–03
(Tex. App.—Dallas 1996, writ denied) (stating that the UDJA is a procedural
device for deciding cases already within a court‘s jurisdiction rather than a
legislative enlargement of a court‘s authority to resolve cases).
A person‘s assertion that the government has acted illegally, in itself, is
usually insufficient to confer standing. Andrade v. NAACP of Austin, 345 S.W.3d
1, 7 (Tex. 2011); see City of San Antonio v. Stumburg, 70 Tex. 366, 368, 7 S.W.
754, 755 (1888) (―[N]o action lies to restrain an interference with a mere public
right, at the suit of an individual who has not suffered or is not threatened with
some damage peculiar to himself.‖). Rather, to have standing, a plaintiff must
demonstrate that it ―possesses an interest in a conflict distinct from that of the
general public, such that the defendant‘s actions have caused the plaintiff some
particular injury.‖ Clifton, 308 S.W.3d at 98; see Kohout, 292 S.W.3d at 707
(―Only a litigant who has suffered an injury has standing.‖). In analyzing issues of
standing, we focus on whether a party has a sufficient relationship with the
lawsuit so as to have a justiciable interest in the outcome. Fantasy Ranch, Inc. v.
City of Arlington, 193 S.W.3d 605, 611 (Tex. App.—Fort Worth 2006, pet.
denied). Under this standard, a contingent, speculative, or intended injury is
9
insufficient to confer standing when the plaintiff has not actually been injured.
See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707–08 (Tex. 2001);
Empire Life Ins. Co. of Am. v. Moody, 584 S.W.2d 855, 858 (Tex. 1979)
(explaining that a ―judgment under the [UDJA] depends on a finding that the
issues are not hypothetical or contingent, and the questions presented must
resolve an actual controversy‖). The ―irreducible . . . minimum‖ of standing
contains three elements: (1) the plaintiff must have suffered an ―injury in fact,‖ an
invasion of a legally protected interest that is concrete and particularized, and
that is actual or imminent rather than conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant and not the independent
action of a third party not before the court; and (3) it must be likely that the injury
will be redressed by a favorable decision. Save Our Springs Alliance, Inc. v. City
of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—Austin 2010, pet. denied);
see OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 5 (Tex. App.—Dallas 2006,
pet. denied) (―To constitute a justiciable controversy, there must exist a real and
substantial controversy involving a genuine conflict of tangible interests and not
merely a theoretical dispute.‖).
Even if the amendments of Carrizo‘s permits, and the resulting change of
the route for Carrizo‘s access to its drilling site, was accomplished by a process
that violated the law, Eden Cooper has not established that it has been
particularly and distinctly injured by the amendments; that there is any imminent,
threatened injury that is not theoretical or hypothetical; or that any injury would be
10
redressed by a favorable decision. See DaimlerChrysler Corp. v. Inman, 252
S.W.3d 299, 304–05 (Tex. 2008); Brooks, 141 S.W.3d at 163–64; Save Our
Springs Alliance, Inc., 304 S.W.3d at 878. Eden Cooper argues that appellees‘
actions allowed Carrizo ―to access the drill site without the necessity of building a
road using Eden Cooper‘s property.‖ This alleged injury to Eden Cooper,
however, is conjectural in at least two ways.
First, it is contingent upon assumptions that if the City had not amended
the permits at all, Carrizo and Eden Cooper would have completed a sale of
Eden Cooper‘s land, Eden Cooper would have received money from that sale,
and Carrizo would have therefore actually used that land to reach its drilling site.
In other words, Eden Cooper‘s alleged injury is contingent upon an assumption
that if Carrizo was faced with the options of either buying land from Eden Cooper
or not drilling on Shelton Fannin Farms at all, Carrizo would have chosen to buy
the land.
Second, Eden Cooper‘s argument about its alleged injury presupposes
that if the method of amending the permits and of altering Carrizo‘s transportation
route was declared to be illegal, the City would not thereafter amend the permits
and alter the route (using North Peyco Drive or possibly another route) by a legal
method, which would have still eliminated any necessity of Carrizo‘s building a
road on Eden Cooper‘s land. Eden Cooper challenges only the way that the City
amended Carrizo‘s route to its drilling site, not that the City had the general
authority to amend it. Specifically, Eden Cooper contends that ordinance 09-040
11
should have been amended to alter the route and that amending the drilling
permits was insufficient to do so.
In summary, although Eden Cooper argues that it has a justiciable interest
because it ―owns the property where the ‗future Eden Road‘ was to be
constructed,‖ Eden Cooper‘s alleged injury is too speculative because there is no
guarantee that the road would have been constructed, or that Eden Cooper
would have been compensated by Carrizo, if appellees had not taken their
allegedly illegal actions. Eden Cooper recognized this principle in the trial court
when it alleged that appellees‘ actions ―deprived [it] of the anticipated use and
enjoyment of its property which was designated to be used as the future site of
Eden Road.‖ [Emphasis added.] Although the purpose of the UDJA is to ―settle
and to afford relief from uncertainty and insecurity with respect to rights, status,
and other legal relations,‖ see Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b),
there is no legal relationship between appellees and Eden Cooper that is
different than the relationship that the general public had with the City.12 See
Blue, 34 S.W.3d at 555–56 (stating that plaintiffs must show that they have
suffered a particularized injury distinct from that suffered by the general public in
order to have standing to challenge a government action); Cernosek Enters., Inc.
12
Eden Cooper cites two supreme court cases to contend that its
declaratory judgment claims are proper, but neither of those cases concern the
issue of standing. See Tex. Dep’t of Ins. v. Reconveyance Servs., Inc., 306
S.W.3d 256 (Tex. 2010); City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex.
2009).
12
v. City of Mont Belvieu, 338 S.W.3d 655, 666 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (―While Hill Lumber alleges damage to the community, it has not
demonstrated that this injury affects it in some special or unique way that is
different from the injury suffered by the community at large.‖).13 For the same
reasons, Eden Cooper does not have standing to bring its claim for injunctive
relief. See OHBA Corp., 203 S.W.3d at 6 (―OHBA‘s request for injunctive relief is
no different [from its UDJA claim] because it is based on the declaratory relief
OHBA seeks and there is no ‗real controversy between the parties, which . . . will
be actually determined by the judicial declaration sought.‘‖); see also Camarena
v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (vacating an injunction
because it was based on a ―hypothetical situation‖).
For all of these reasons, we hold that the trial court did not err by granting
appellees‘ pleas to the jurisdiction on the basis that Eden Cooper lacks standing
to assert its claims for declaratory judgments and for injunctive relief. We
overrule Eden Cooper‘s first issue, and because our resolution of that issue is
dispositive, we decline to address Eden Cooper‘s other issues. See Tex. R. App.
13
Deposition testimony from Eden Cooper‘s representative Daniel
Fernandez establishes that Eden Cooper was opposed to Carrizo‘s access route
on North Peyco Drive because of Eden Cooper‘s belief that the route ―did not
provide for the . . . health[,] safety[,] and welfare of the general public.‖
[Emphasis added.] Fernandez went on to testify that Eden Cooper‘s concern
was that appellees‘ acts were detrimental because ―the public purpose was
served by a negotiated deal with Carrizo.‖ Under the cases cited above, these
assertions, and allegations similar to these, are insufficient to confer standing.
13
P. 47.1; Binzer v. Alvey, 359 S.W.3d 364, 367 (Tex. App.—Fort Worth 2012, no
pet.).
Conclusion
Having overruled Eden Cooper‘s first, dispositive issue, we affirm the trial
court‘s orders granting appellees‘ pleas to the jurisdiction.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
DELIVERED: June 28, 2012
14