Ted Lazarides, in His Official Capacity v. Grady Farris ( 2012 )

Reversed and Rendered in Part, Reversed and Remanded in Part, and Opinion filed
April 17, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00404-CV
TED LAZARIDES,1 IN HIS OFFICIAL CAPACITY, Appellant
V.
GRADY FARRIS, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2009-46543
OPINION
In this groundwater diversion case, appellant Ted Lazarides appeals the trial
court’s denial of a motion for summary judgment in which he asserted various challenges
1
The City of Hilshire Village notified this court that Lazarides passed away on July 6, 2011, and
requested that Joe Garrett be substituted for Lazarides as the appellant. However, the Texas Rules of
Appellate Procedure provide that if a party dies after judgment but before our appeal is disposed, ―the
appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s
judgment will have the same force and effect as if rendered when all parties were living. The decedent
party’s name may be used on all papers.‖ See Tex. R. App. P. 7.1(a).
to the trial court’s subject-matter jurisdiction. In seven issues,2 Lazarides contends the
trial court erred by refusing to dismiss appellee Grady Farris’s claims against Lazarides
for conduct in his official capacity. We hold that the trial court should have granted
summary judgment based on lack of jurisdiction as to all of the claims, except Farris’s
claims for prospective declaratory and injunctive relief regarding Lazarides’s alleged
ultra vires acts. Farris has attempted to allege claims for prospective declaratory and
injunctive relief based upon Lazarides’s alleged ultra vires acts, but has not properly
pleaded those claims or stated facts sufficient to demonstrate that those claims are ripe or
not moot. Therefore, we reverse and remand those claims to the trial court to allow Farris
an opportunity to cure the pleading defects as to his ultra vires claims. With regard to the
remaining official capacity claims against Lazarides, we reverse and render judgment
dismissing those claims for lack of subject-matter jurisdiction.
Factual Background
Farris resides in the City of Hilshire Village, south of his next door neighbor
Sharon Fink.3 Fink built a new home in 2007, landscaped her property, and installed a
swimming pool, all of which Farris claims illegally diverted the flow of water from his
property. Before Fink made these changes to her property, surface water accumulated
from heavy rain drained from Farris’s backyard by flowing across the property line Farris
shared with Fink into a trench that directed water into the Spring Branch Creek drainage
watershed. Farris asserts that Fink obstructed the natural drainage by piling pool dirt
along the common property line between the two lots and along the back of her property,
and by adding perimeter fencing, plants, concrete structures, and other materials at and
near the boundaries of her property.
2
Lazarides argues that: 1) appellee Grady Farris’s claim for a declaratory judgment concerning
the legality of the City’s past applications of its drainage guidelines is moot; 2) the trial court lacks
jurisdiction over Farris’s official capacity claims because Farris failed to exhaust administrative remedies;
3) Farris lacks standing to challenge the City’s future application of its drainage guidelines; 4) Farris’s
claim for prospective relief is not yet ripe; 5) Farris has failed to properly plead an ultra vires claim; 6)
Farris’s claims for money damages are barred by governmental immunity; and 7) Farris’s claims are
barred by the election of remedies provision in Texas Civil Practice & Remedies Code § 101.106(b).
3
Fink is a defendant in the underlying case but not a party to this appeal.
2
Fink was required to obtain permits from the City before making these alterations
on her property. A certificate of occupancy also was required before she would be
allowed to move into her new home. Before permits were to be issued, Fink also was
required to submit drainage and building plans to the City that complied with building
codes and zoning regulations. The consulting engineers for the City approved an initial
drainage plan for Fink’s property in 2005 that specified, in compliance with the City’s
zoning regulations, that ―final grading shall be such that this property shall not drain on
adjacent properties and existing drainages on adjacent properties is not altered.‖ Farris
alleges that the original drainage plan was rendered moot because of changes to Fink’s
building and landscaping plans, including the addition of a pool, an eight-foot fence, and
dense shrubs and trees.
Farris alleges his property flooded in 2007 because of the combination of heavy
rain and alterations on Fink’s property, causing damage to Farris’s property. After this
incident, Farris wrote Lazarides,4 the City’s building official, concerned that the
alterations on Fink’s property interfered with the preexisting drainage pattern on Farris’s
property. Lazarides replied that he would ensure Fink’s drainage system would
accommodate Farris’s runoff to the south and Lazarides would not issue a certificate of
occupancy until that goal had been accomplished. Lazarides subsequently issued a
certificate of occupancy to Fink. Farris claims that Lazarides prevented restoration of the
former drainage pattern off his property by following a ―back to front drainage rule‖
contained in the City’s drainage criteria and guidelines.
Farris contends that the back-to-front drainage rule conflicts with the City’s
zoning regulation that requires a property owner to maintain the drainage of her property
without adversely affecting the existing drainage pattern of adjacent properties.
Specifically, Farris states that Lazarides told him if he made significant changes to or
remodeled his property to repair the damages previously caused by flooding, he would be
required to direct drainage from his property to the west (the front of Farris’s property)
4
Except where otherwise noted, Lazarides is referred to in his official capacity.
3
instead of to the south where it previously flowed over the property line between Farris’s
and Fink’s properties. Farris contends that the City, through its building official, favors
―redirecting existing drainage to comply with a non-ordinance over enforcing the
protections of existing drainage contained in [the City’s zoning regulations].‖
Procedural History
Farris and his wife originally sued Lazarides in his individual capacity, Fink, and
others, including Robin Border, the mayor of Hilshire Village.5 Farris supplemented his
petition twice and, with his second supplemental petition (the live petition), added
Lazarides as a defendant in his official capacity. The trial court granted summary
judgment dismissing the claims against the mayor and against Lazarides in his individual
capacity. Regarding the claims against him in his official capacity, Lazarides sought
dismissal of these claims for lack of subject matter jurisdiction by both a plea to the
jurisdiction and by a motion for summary judgment. The trial judge denied Lazarides’s
motion for summary judgment and did not rule on his plea to the jurisdiction. Farris
asked the trial court to non-suit other defendants, which was confirmed. Accordingly,
when this appeal was filed, Fink and Lazarides in his official capacity were the only
remaining defendants in the suit.
In his second supplemental petition, Farris does not differentiate which of his
claims were brought against Lazarides in his individual capacity or official capacity;
therefore, notwithstanding the trial court’s dismissal of claims against Lazarides
individually, it is unclear from the record what official capacity claims remain. Farris
asserted claims against Lazarides for ―violation of the Restatement of Torts,‖ negligence
per se, and violations of the Texas Water Code. Farris seeks (1) a declaration that
Lazarides violated his duty to enforce the City’s zoning regulations by (a) maintaining
the drainage of Fink’s property in a manner that adversely affects the drainage pattern on
Farris’s property, (b) causing overflow of water due to his failure to adequately
5
Farris’s wife later non-suited all of her claims.
4
accommodate new or changed drainage patterns, and (c) failing to require a drainage
engineer to supply a drainage plan in compliance with the zoning ordinance; (2) a
declaration that Lazarides exceeded his authority by enforcing compliance with the back-
to-front drainage rule; (3) a mandatory injunction ordering Lazarides to refrain from
requiring compliance with the back-to-front drainage rule; (4) a mandatory injunction
requiring Lazarides to perform his alleged ministerial duty of enforcing ―Hillshire Village
Zoning Ordinance 11:01.07‖ (hereinafter the ―Ordinance‖); (5) actual damages;
(6) exemplary damages; and (7) attorney’s fees and costs.
Lazarides in his official capacity filed a plea to the jurisdiction and motion for
summary judgment. He moved for summary judgment on traditional and no-evidence
grounds. Farris did not respond. Though the trial court did not rule on the plea to the
jurisdiction, the court denied summary judgment, which included grounds challenging the
trial court’s subject matter jurisdiction. Lazarides filed this interlocutory appeal, seeking
reversal of the trial court’s denial of summary judgment and dismissal of the claims
against him for want of subject-matter jurisdiction.
Discussion
In his petition, Farris alleged claims against Lazarides in his official capacity,
including claims for declaratory relief, a prospective injunction, and damages. We
address whether Farris exhausted administrative remedies prerequisite to challenging
Lazarides’s past decisions, whether any claims for declaratory relief are moot, and
whether Farris is entitled to damages as part of his official capacity claims against
Lazarides. We also determine whether Farris has properly pleaded ultra vires claims and
whether the trial court lacks jurisdiction over any such claims due to lack of standing,
lack of ripeness, or immunity under Texas Civil Practice and Remedies Code section
101.106(b).
5
1. Jurisdiction over Interlocutory Appeal
Only the denial of the jurisdictional challenges contained in Lazarides’s motion
for summary judgment are at issue in this appeal.6 We have jurisdiction to hear
interlocutory appeals only as authorized by statute. Baylor Coll. of Med. v. Hernandez,
208 S.W.3d 4, 7 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Even when the
parties do not challenge appellate jurisdiction, we must inquire into our jurisdiction to
consider an appeal. Id.
Lazarides brings this appeal under section 51.014(a)(8), which provides for
interlocutory appeals from the grant or denial of a plea to the jurisdiction filed by a
governmental unit. Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Here, the trial court did
not expressly grant or deny Lazarides’s plea to the jurisdiction, but it denied a summary-
judgment motion in which Lazarides asserted various jurisdictional challenges. When the
record does not contain an order granting or denying a plea to the jurisdiction, but does
include an order denying a motion for summary judgment in which the movant
challenged the trial court’s jurisdiction, an interlocutory appeal may be taken under
subsection (a)(8) irrespective of the selected procedural vehicle. Thomas v. Long, 207
S.W.3d 334, 339 (Tex. 2006). A state official, such as Lazarides, who was sued in his
official capacity may rely on subsection (a)(8) to file an interlocutory appeal because a
suit against a state official in his official capacity is not a suit against the official
personally; the real party in interest is the governmental entity. See Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 844–45 (Tex. 2007). Accordingly, we have
jurisdiction to review the trial court’s order to the extent that it denied summary judgment
as to grounds in which Lazarides challenged the trial court’s subject matter jurisdiction.7
6
As set forth above, the claims against Lazarides in his individual capacity were dismissed by the
trial court’s entry of summary judgment.
7
Farris also has alleged ultra vires claims against Lazarides, which, although alleged against
Lazarides in his official capacity, would not be a suit against the governmental entity. Franka v.
Velasquez, 332 S.W.3d 367, 382 (Tex. 2011) (―Under Texas law, a suit against a government employee in
his official capacity is a suit against his government employer with one exception: an action alleging that
the employee acted ultra vires.‖).
6
2. Standard of Review
The jurisdictional challenges in Lazarides’s summary-judgment motion raise a
question of law reviewed de novo on appeal. See Long, 207 S.W.3d at 339–40; City of
Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 354 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) This court may only review summary-judgment grounds that would
deprive the trial court of subject matter jurisdiction. See Long, 207 S.W.3d at 339–40;
Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 324 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied); Hernandez, 208 S.W.3d at 7–8.
A summary-judgment motion challenging jurisdiction may challenge either the
pleadings or the existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). When such a motion challenges the
existence of jurisdictional facts, we consider relevant evidence submitted by the parties to
resolve the jurisdictional issues raised, as the trial court is required to do. See id. at 227.
If a fact question is presented by the evidence regarding a jurisdictional issue, then the
trial court is precluded from granting summary judgment on the jurisdictional challenge,
and fact issues will be resolved by the fact-finder. Id. at 227–28. However, if the
relevant evidence is undisputed or fails to raise a genuine fact issue regarding the
jurisdictional challenge, the trial court grants summary judgment as a matter of law. Id.
at 228.
When a party has filed a summary-judgment motion raising jurisdictional issues
that challenge the pleadings only, a reviewing court must construe the pleadings liberally
in favor of the pleader and look to the pleader’s intent. See Long, 207 S.W.3d at 339–40;
Miranda, 133 S.W.3d at 226. If the facts alleged affirmatively demonstrate the trial
court’s jurisdiction to hear the cause, the trial court should reject the jurisdictional
challenge. See Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient
facts to affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively
demonstrate incurable defects in the jurisdiction, the issue is one of pleading sufficiency
and the plaintiffs should be afforded the opportunity to amend. Id. at 226–27. If the
7
pleadings affirmatively negate the existence of jurisdiction, then summary-judgment may
be granted on the jurisdictional challenge without allowing an opportunity to amend. Id.
at 227.
3. Failure to Exhaust Administrative Remedies
In his second issue, Lazarides argues that the trial court lacks jurisdiction over
Farris’s official capacity claims because Farris failed to appeal to the City’s Board of
Adjustment any of Lazarides’s decisions regarding the alterations to Fink’s property.
Exhaustion of administrative remedies is not required for ultra vires claims, and we do
not address Farris’s attempt to plead ultra vires claims in the following discussion of
administrative remedies. See Appraisal Review Bd. v. O’Connor & Assocs., 267 S.W.3d
413, 419 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Municipalities are authorized
to promulgate zoning regulations and establish boards of adjustment that ―hear and
decide an appeal that alleges error in an order, requirement, decision, or determination
made by an administrative official in the enforcement of [zoning regulations].‖ Tex. Loc.
Gov’t Code §§ 211.003; 211.008; 211.009(a)(1). Any person aggrieved by the decision
of an administrative official may appeal to the board of adjustment. Id. § 211.010(a)(1).
The appeal must be filed within a reasonable time as determined by the board’s rules. Id.
§ 211.010(b). The aggrieved person may appeal the decision of the board of adjustment
by filing, within ten days of the board’s decision, a verified petition in a district court,
county court, or county court at law stating that the board’s decision ―is illegal in whole
or in part.‖ Id. § 211.011(a)(1), (b). It is undisputed that Farris did not appeal to the
Board.
Administrative remedies available under section 211 of the Local Government
Code generally must be exhausted before a party may seek judicial review of a
determination made by an administrative official. See, e.g., City of San Antonio v. El
Dorado Amusement Co., 195 S.W.3d 238, 250 (Tex. App.—San Antonio 2006, pet.
denied) (―Because El Dorado did not exhaust its administrative remedies, the trial court
lacked jurisdiction to determine the propriety of the adjustment board’s denial of the non-
8
conforming use permit.‖); Winn v. City of Irving, 770 S.W.2d 10, 11 (Tex. App.—Dallas
1989, no writ) (―It is settled that the administrative remedies provided by Local
Government Code section 211.009–.010 . . . must be exhausted before matters regarding
nonconforming uses may be brought before the courts.‖). The requirement of
administrative exhaustion compels a party to ―pursue all available remedies within the
administrative process before seeking judicial relief.‖ Larry Koch, Inc. v. Tex. Natural
Res. Conservation Comm’n, 52 S.W.3d 833, 839 (Tex. App.—Austin 2001, pet. denied).
The failure to comply with this requirement before seeking judicial review deprives a
court of jurisdiction to decide the case. Id. (citing Lindsay v. Sterling, 690 S.W.2d 560,
563 (Tex. 1985)); see also Tex. Gov’t Code § 311.034 (―Statutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits against a
governmental entity.‖).
The City promulgates zoning regulations through the City Council, along with
rules to enforce the regulations. Both the regulation and the guidelines at issue were
promulgated in this manner.8 The zoning regulations specify that an appeal to the Board
of Adjustment may be filed ―by any person aggrieved . . . by any decision of the Building
Official.‖ The Board rules require an appeal to be filed ―within 45 days from the . . . date
of order, ruling, decision or determination of the Building Inspector.‖ Decisions of the
Board are reviewable on petition presented to a Harris County District Court.
Notice. During oral argument, Farris’s counsel argued that Farris did not receive
notice of Lazarides’s decisions, he had no standing to appeal to the Board, and he had no
obligation to appeal because he was not the homeowner who sought the building permits
and certificate of occupancy. As pled in the live petition in this case, Farris corresponded
with Lazarides after Farris’s property flooded in July 2007, complaining that the
8
The zoning regulation at issue was adopted on June 16, 1998. The City subsequently hired
Claunch & Miller, a local engineering firm, to draft drainage guidelines, which contain the purported
―back-to-front drainage rule,‖ with input from the mayor, Lazarides, and the City Council. The drainage
guidelines at issue became effective July 25, 2006, and have been revised several times. The newest
version of the guidelines was approved by the Hilshire Village City Council on June 21, 2011.
9
placement of dirt on Fink’s property did not comply with Fink’s approved drainage plan
in accordance with the previously issued building permits. Lazarides responded in
August 2007, ―I will ensure that the designed drainage system will accommodate your
runoff to the South. I will not issue a certificate of occupancy until this is done.‖
Subsequently, Lazarides announced at the December 18, 2007 City Council meeting, ―A
certificate [of occupancy] should be issued in December for [the] Fink residence at 1134
Glourie. There was a drainage problem that appears to be resolved.‖ Not only was this
meeting open to the public, but we take judicial notice that the minutes are publicly
available on the City’s website. See Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex.
App.—Houston [14th Dist.] 1991, no writ) (acknowledging that courts may take judicial
notice of matters of public record, whether requested by a party or on their own, for the
first time on appeal) (citing Tex. R. Evid. 201(c), (f)); see also The City of Hilshire
Village, http://hilshirevillagetexas.com/Government/Minutes/2007/Dec18.2007.html (last
visited April 11, 2012). The certificate of occupancy was issued on December 19, 2007.
We hold, under these circumstances, that Farris had notice of Lazarides’s decision
to issue the certificate of occupancy to Fink by December 19, 2007. Farris certainly
knew about flooding problems on his property during July 2007 when he complained to
Lazarides that Fink had not complied with her approved drainage plan that was submitted
to the City before building permits were issued. Lazarides responded with a status report
to Farris regarding whether a certificate of occupancy would be issued. Farris, moreover,
had several options to obtain information regarding the status of the certificate of
occupancy: as demonstrated from his previous letter to Lazarides, Farris knew how to
contact Lazarides to obtain a status regarding the property, or Farris could have attended
the public meeting where this issue was addressed9 or obtained the meeting minutes from
the City that were publicly available. See Little v. Smith, 943 S.W.2d 414, 421 (Tex.
1997) (―Constructive notice is usually applied when a person knows where to find the
relevant information but failed to seek it out.‖); Mooney v. Harlin, 622 S.W.2d 83, 85
9
It is unclear from the record whether Farris actually attended the meeting.
10
(Tex. 1981) (―A person is charged with constructive notice of the actual knowledge that
could have been acquired by examining public records.‖). Farris, accordingly, had actual
or constructive notice regarding the status of the certificate of occupancy by
December 19, 2007, when the certificate of occupancy was issued following the City
Council meeting held the day before.
Standing. Farris had standing to appeal Lazarides’s decisions to the Board as a
―person aggrieved,‖ see Texas Local Government Code § 211.010(a), because he alleged
injury to his own property and not just a generalized grievance as a member of the public.
See, e.g., Galveston Historical Found. v. Zoning Bd. of Adjustment, 17 S.W.3d 414, 418
(Tex. App.—Houston [1st Dist.] 2000, pet. denied) (holding, under section 211.010(a),
persons residing within zoned area have standing to challenge zoning decisions affecting
that area); Texans to Save the Capitol, Inc. v. Bd. of Adjustment, 647 S.W.2d 773, 775
(Tex. App.—Austin 1983, writ ref’d n.r.e.) (aggrieved parties had standing under former
version of section 211.010(a) to appeal to board of adjustment when evidence offered
showed some unique harm done to them). Also, there is no requirement that only the
homeowner seeking permits is allowed to appeal the building official’s decisions
regarding those permits—the only requirement in the Board rules is that the person who
files the appeal must own property affected by the decisions.10 We conclude Farris’s
arguments regarding his failure to appeal to the Board are without merit.
The summary judgment evidence presented by Lazarides affirmatively
demonstrates that no appeal was filed with the Board. Moreover, the undisputed
evidence shows that Farris had either actual or constructive notice that the certificate of
occupancy was issued. Farris thus was required to exhaust his administrative remedies
by appealing Lazarides’s decisions to the Board within 45 days after Lazarides issued the
10
An appeal is made by application to the Board. The Board rules require the owner of property
involved in an application to join in the application. We do not read this rule as having precluded Farris
from filing an application, as his complaint is that his property was affected by Lazarides’s decisions to
issue building permits and the certificate of occupancy to Fink. Farris, moreover, could have appealed to
a Harris County District Court any decision by the Board that he was not authorized to appeal Lazarides’s
decisions.
11
certificate of occupancy. The trial court erred by denying Lazarides’s motion because it
did not have subject-matter jurisdiction over Farris’s non-ultra vires claims.11
Accordingly, we hold that with the exception of Farris’s ultra vires claims, Farris’s
failure to exhaust administrative remedies deprived the trial court of subject-matter
jurisdiction over Farris’s official capacity claims. See Larry Koch, Inc., 52 S.W.3d at
839.
We sustain Lazarides’s second issue.
4. Ultra Vires Claims
Farris has attempted to plead ultra vires claims against Lazarides in his official
capacity. An ultra vires action is one in which the plaintiff seeks relief in an official-
capacity suit against a government actor who allegedly has violated statutory or
constitutional provisions by acting without legal authority or by failing to perform a
purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex.
2009). Under Heinrich, governmental immunity does not bar such ultra vires claims, but
the only remedies available to a successful plaintiff are prospective declaratory and
injunctive relief. Id. at 376, 380.
In his live pleadings, Farris asserts a claim for prospective declaratory and
injunctive relief against Lazarides in his official capacity based on his alleged violation of
the City’s Municipal Code and his alleged failure to perform purely ministerial acts.
Farris has requested both: (1) a declaratory judgment that the back-to-front drainage rule
violates the Ordinance as well as Texas Water Code § 11.086, and (2) a prospective
injunction prohibiting Lazarides from enforcing or applying the back-to-front drainage
11
We note, moreover, that even if Farris had exhausted administrative remedies, his official
capacity claims regarding retrospective declaratory relief against Lazarides are moot. Farris sought a
declaratory judgment that Lazarides acted without legal authority by enforcing the unofficial back-to-
front drainage rule. The Texas Supreme Court has held that a claim for declaratory relief is moot if the
party is no longer subject to the alleged illegal conduct. See Williams v. Lara, 52 S.W.3d 171, 184–85
(Tex. 2001). Because Farris is no longer subject to any purported illegal conduct regarding his
complaints pertaining to Lazarides’s past decisions, his claims for a declaration against Lazarides’s past
actions are moot. Id.
12
rule in the future and requiring Lazarides to perform his alleged ministerial duty of
enforcing the Ordinance.
Before we address whether Farris has properly pleaded any ultra vires claims—or
could properly plead such claims if given the opportunity to replead—we must first
determine whether such claims are barred by mootness, lack of standing, or lack of
ripeness.
a. Standing, Ripeness, and Mootness
In his third and fourth issues, Lazarides contends that Farris lacks standing to
challenge the City’s future application of its drainage guidelines and that Farris’s
purported ultra vires claims are not yet ripe.
Standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing focuses on the
question of who may bring an action. Patterson v. Planned Parenthood of Houston and
Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Standing cannot be waived and may be
raised for the first time on appeal by the parties or by the court. Tex. Ass’n of Bus., 852
S.W.2d at 445. The general test for standing is whether (1) there is a real controversy
between the parties, (2) which will actually be determined by the judicial declaration
sought. Id. at 446. As a general rule, to have standing an individual must demonstrate a
particularized interest in a conflict distinct from that sustained by the public at large. S.
Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007).
Farris has requested both: (1) a declaratory judgment that Lazarides acted without
legal authority by enforcing the back-to-front drainage rule, failed to perform a
ministerial act by not enforcing the Ordinance, and that the back-to-front drainage rule
violates the Ordinance as well as Texas Water Code § 11.086, and (2) a prospective
injunction prohibiting Lazarides from enforcing or applying the back-to-front drainage
rule in the future and requiring Lazarides to enforce the Ordinance. We address only
these purported ultra vires claims because we have already disposed of all other claims
13
by Farris against Lazarides in his official capacity.
Farris has alleged that Lazarides informed him in a letter that if Farris made
significant changes or new additions to his property, Farris would be required to comply
with the back-to-front drainage rule. This statement by Lazarides arguably gives Farris
standing to bring a claim for prospective relief. If Farris were to make substantial
changes to his property, then Farris would have ―a particularized interest in a conflict
distinct from that sustained by the public at large‖ and an injunction would prevent the
City from enforcing the back-to-front drainage rule against Farris. See Lomas, 223
S.W.3d at 307. In addition, Farris also alleges in his live pleading that he has
experienced drainage problems as a result of Lazarides’s failure to perform the
ministerial duty of enforcing the Ordinance. However, as pleaded, Farris does not
affirmatively demonstrate a justiciable controversy, as discussed below.
Ripeness also is a threshold issue that implicates subject-matter jurisdiction.
Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). While standing focuses on who
may bring an action, ripeness examines when an action may be brought. Patterson, 971
S.W.3d at 442. The ripeness inquiry focuses on whether the case involves uncertain or
contingent future events that may not occur as anticipated, or may not occur at all.
Robinson, 353 S.W.3d at 755–56; Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc.,
201 S.W.3d 272, 278 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Although a claim
is not required to be ripe at the time of filing, if a party cannot demonstrate a reasonable
likelihood that the claim will soon ripen, the case must be dismissed. Robinson, 353
S.W.3d at 755. ―[T]he essence of the ripeness doctrine is to avoid premature adjudication
. . . [and] to hold otherwise would be the essence of an advisory opinion, advising what
the law would be on a hypothetical set of facts.‖ Id. at 756 (quoting Patterson, 971
S.W.2d at 444) (second alteration in original).
Farris cites Heinrich in support of his claim for prospective injunctive relief as to
his alleged ultra vires claims. 284 S.W.3d 366. However, the prospective injunction that
Farris seeks is distinguishable from that requested in Heinrich. In Heinrich, the
14
requested prospective declaratory and injunctive relief involved a widow’s claims over
pension benefit payments. Id. at 369. The widow in that case had been receiving
monthly pension benefit payments, but the pension fund reduced her payments by one-
third when her son turned 23. Id. The widow brought ultra vires claims against the
board members in their official capacities, and sought declaratory and injunctive relief
reinstating full pension benefit payments. Id. at 369–70. The monthly pension benefit
payments were recurring and certain, and the widow only sought to have them increased
to their original amount. The prospective injunctive relief sought in Heinrich was not
based on events that were speculative or contingent. Accordingly, although it was not
directly addressed by the Heinrich court, the relief sought in that case would not have
been barred by a lack of ripeness.
In the present case, Farris has not claimed that he actually made significant
changes or additions to his property and was forced to comply with the back-to-front
drainage rule. Nor has Farris argued that he plans to undertake such changes. Farris does
allege in his live pleading that he has experienced drainage problems as a result of
Lazarides’s failure to perform the ministerial duty of enforcing the Ordinance. The
summary-judgment evidence does not conclusively prove that the trial court lacks
jurisdiction over Farris’s purported ultra vires claims due to a lack of ripeness.
Nonetheless, as pleaded, Farris’s claims for prospective injunctive relief do not
affirmatively demonstrate ripeness. See, e.g., Scarbrough v. Metro. Transit Auth. of
Harris Cnty., 326 S.W.3d 324, 337–38 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) (where no evidence at the time of trial that METRO’s proposed construction
would occur on any part of Scarbrough’s property or that she would be denied access to
or restricted in the use of her property, the likelihood of injury to her depended on factors
too speculative to address, and such claims were therefore not ripe for decision).
As to Farris’s request for a declaration that the back-to-front drainage rule violates
the Texas Water Code and the Ordinance, Lazarides argues that the Hilshire Village City
Council approved drainage guidelines on June 21, 2011, that affirmatively prohibit Water
15
Code violations, allow individualized permitting determinations on a case-by-case basis,
and provide for drainage to the street, ditch, or storm sewer system—which on most lots
equates to back-to-front drainage.12 Therefore, Lazarides argues that the Ordinance
cannot now be construed to conflict with the Texas Water Code, and the City has
approved of a back-to-front drainage rule. Though the summary-judgment evidence did
not conclusively prove that the trial court lacks jurisdiction over Lazarides’s purported
ultra vires acts due to mootness, Farris’s current pleadings do not affirmatively
demonstrate that these claims are not moot.13 The mootness doctrine precludes a court
from rendering an advisory opinion in a case where no live controversy exists. Alief
Indep. Sch. Dist., 298 S.W.3d at 324. A declaratory judgment is appropriate when a
justiciable controversy exists concerning the rights and status of the parties and the
controversy will be resolved by the declaration sought. Id.
b. Failure to Properly Plead Ultra Vires Claims
In his fifth issue, Lazarides contends that Farris failed to properly state any ultra
vires claims. In his live pleadings, Farris attempted to allege claims for prospective
declaratory and injunctive relief based upon Lazarides’s alleged ultra vires acts, but
Farris did not properly plead these claims. Farris asserts a claim for injunctive relief
against Lazarides in his official capacity based on his alleged violation of the City’s
Municipal Code and his alleged failure to perform purely ministerial acts. Farris seeks an
injunction requiring Lazarides to enforce the Ordinance that requires a property owner to
maintain the drainage of her property without adversely affecting the existing drainage
12
The July 25, 2006 and July 24, 2009 City of Hilshire Village Drainage Guidelines are found in
the record. However, the most recent June 21, 2011 guidelines are not in the record, as they were passed
during the pendency of this appeal. Lazarides has asked this court in his reply brief to take judicial notice
of the newest guidelines. See Tex. R. Evid. 204 (allowing courts—either upon motion of a party or sua
sponte—to take judicial notice of the ordinances of a municipality).
13
Though the mootness of the requested declaration was not alleged by Lazarides, this court
nonetheless must determine whether jurisdiction is proper. See Tex. Dep’t of Transp. v. Olivares, 316
S.W.3d 89, 104 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Gantt v. Gantt, 208 S.W.3d 27, 29–30
(Tex. App.—Houston [14th Dist.] 2006, pet. denied) (―Subject matter jurisdiction is never presumed . . .
[and] [e]ven if not raised, issues affecting jurisdiction must be reviewed sua sponte.‖).
16
pattern of adjacent properties. However, to obtain a permanent injunction, Farris must
plead and prove, among other things, the existence of imminent harm, the existence of
irreparable injury, and the absence of an adequate remedy at law. Farris has not pleaded
these elements.
The summary-judgment evidence did not conclusively prove that the trial court
lacks jurisdiction over Lazarides’s purported ultra vires claims. When a defendant
challenges the plaintiff’s pleadings on jurisdictional grounds, the court’s determination
turns on whether the pleader has alleged facts sufficient to affirmatively demonstrate the
court’s jurisdiction to hear the cause. See Miranda, 133 S.W.3d at 226. In making this
determination, courts should glean the pleader’s intent and construe the pleadings
liberally in favor of jurisdiction. Id. If the pleadings do not contain facts sufficient to
affirmatively demonstrate the trial court’s jurisdiction, but do not affirmatively
demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and
plaintiffs should be afforded an opportunity to amend. Id. at 226–27. If the pleadings
affirmatively negate jurisdiction, the claims may be dismissed without allowing plaintiffs
an opportunity to amend. Id. at 227. The opportunity to amend pleadings that are
insufficient to establish, but do not affirmatively negate, jurisdiction arises after a court
determines the pleadings are insufficient. Koseoglu, 233 S.W.3d at 839–40; Tex. Dep’t of
Transp. v. Olivares, 316 S.W.3d 89, 95–96 (Tex. App.—Houston [14th Dist.] 2010, no
pet.).
c. Opportunity to Re-plead
Liberally construing the live pleadings in Farris’s favor, the pleadings do not
contain facts sufficient to affirmatively demonstrate the trial court’s jurisdiction over the
ultra vires claims, but neither do they affirmatively demonstrate incurable defects in
jurisdiction. The trial court ruled in Farris’s favor, so Farris had no occasion in the trial
court to ask for an opportunity to amend his pleadings to cure any defect. In this
situation, the proper course of action is to reverse the trial court’s order as to Farris’s
ultra vires claims and remand with instructions for the trial court to give Farris a
17
reasonable opportunity to amend his pleadings in an attempt to properly plead these
claims and to plead facts showing ripeness and lack of mootness. See Olivares, 316
S.W.3d at 95, 99. Therefore, Farris should be given an opportunity to re-plead. See
Koseoglu, 233 S.W.3d at 839. Without expressing any opinion as to the merits of any
such claims, we reverse the trial court’s order as to Farris’s ultra vires claims, and we
remand with instruction for the trial court to provide Farris a reasonable opportunity to
amend his pleadings. See Olivares, 316 S.W.3d at 95, 99.
d. Election of Remedies under Section 101.106
In his seventh issue, Lazarides contends that Farris’s claims are barred by the
election of remedies statute. Tex. Civ. Prac. & Rem. Code § 101.106. Lazarides claims
that, because Farris elected to sue Lazarides in his individual capacity first, Farris cannot
now sue Lazarides in his official capacity. Specifically, Lazarides argues that section
101.106(b) bars the suit. Section 101.106(b) reads:
The filing of a suit against any employee of a governmental unit constitutes
an irrevocable election by the plaintiff and immediately and forever bars
any suit or recovery by the plaintiff against the governmental unit regarding
the same subject matter unless the governmental unit consents.
Id. § 101.106(b).
The argument that Lazarides appears to be making is that section 101.106(b) bars
suit against a governmental unit if suit is filed against a governmental employee in either
his individual or official capacity. There is case law to support that conclusion. See, e.g.,
Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 787 (Tex. App.—Waco 2005,
pet. denied) (―Accordingly, we agree with WISD that under section 101.106(b) whether
the Defendant Employees were sued in their official or individual capacities is
irrelevant.‖).
Lazarides seems to contend that the amended suit against Lazarides in his official
capacity is really a suit against the governmental unit itself. Therefore, he argues, the
original pleadings against Lazarides in his individual capacity would have barred the later
18
pleadings against him in his official capacity because of the irrevocable election in
101.106(b). See, e.g., Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657
(Tex. 2008) (―But it is equally true that by forcing plaintiffs to make an irrevocable
election at the time suit is filed, the Legislature intended to reduce the delay and expense
associated with allowing plaintiffs to plead alternatively that the governmental unit is
liable because its employee acted within the scope of his or her authority but, if not, that
the employee acted independently and is individually liable.‖).
However, because Farris is alleging ultra vires claims, the suit would not be
barred under section 101.106(b). The Supreme Court of Texas has stated that ―[u]nder
Texas law, a suit against a government employee in his official capacity is a suit against
his government employer with one exception: an action alleging that the employee acted
ultra vires.‖ Franka v. Velasquez, 332 S.W.3d 367, 382 (Tex. 2011); see also Heinrich,
284 S.W.3d at 372–73 (―Nonetheless, as a technical matter, the governmental entities
themselves—as opposed to their officers in their official capacity—remain immune from
suit. . . . [I]t follows that these suits cannot be brought against the state, which retains
immunity, but must be brought against the state actors in their official capacity.‖).
Therefore, when ultra vires claims have been alleged, the claim is not against the
governmental unit, and the irrevocable election in 101.106(b) does not bar the suit against
the state actor in his or her official capacity. Accordingly, we overrule Lazarides’s
seventh issue.
5. Governmental Immunity From Damages Claims
In his sixth issue, Lazarides argues that governmental immunity bars Farris’s
damages claims against him. Farris asserts that this issue is ―not relevant to denial of the
Motion.‖ In reply, Lazarides asserts that Farris, by his response, disavowed this claim.
On this record and based upon the statements of Farris’s counsel at oral argument, it is
unclear whether Farris still seeks damages against Lazarides in his official capacity. We,
accordingly, address this issue.
19
The Texas Supreme Court has limited the remedies for ultra vires claims against
state officials to prospective declaratory and injunctive relief. Heinrich, 284 S.W.3d at
376, 380. While compliance with a prospective injunction may sometimes involve
expenditure of money by the state, a claimant is not entitled to retrospective monetary
damages because they are barred by governmental immunity. Id. at 374–76. Farris’s live
petition seeks damages that Farris sustained from the flooding on his property and
exemplary damages. We hold that these claims are barred by governmental immunity. 14
Accordingly, we sustain Lazarides’s sixth issue.
Conclusion
Except as to any claims for prospective declaratory and injunctive relief based
upon Lazarides’s alleged ultra vires acts, we conclude the trial court did not have subject-
matter jurisdiction over Farris’s official capacity claims, and consequently, the trial court
erred by denying summary judgment. Farris’s pleadings do not contain facts sufficient
to affirmatively demonstrate the trial court’s jurisdiction over the claims for prospective
declaratory and injunctive relief based upon Lazarides’s alleged ultra vires acts, but the
pleadings do not affirmatively demonstrate incurable defects in jurisdiction. Therefore,
we reverse the trial court’s order as to Farris’s ultra vires claims and remand with
instructions for the trial court to give Farris a reasonable opportunity to amend his
pleadings in an attempt to properly plead these claims. We expressly reserve any opinion
on the merit of those claims. With regard to the remaining official capacity claims
against Lazarides, we reverse and render judgment dismissing those claims for lack of
subject-matter jurisdiction.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
14
See Miranda, 133 S.W.3d at 225–26 (―Sovereign immunity from suit defeats a trial court’s
subject matter jurisdiction . . . .‖).
20