Karen Hall v. City of Bryan, Texas

No. 10-16-00044-CV
IN THE COURT OF APPEALS FOR THE
TENTH JUDICIAL DISTRICT OF TEXAS
Karen Hall, Appellant
City of Bryan, Appellee
Brief of Karen Hall
On Appeal from judgment
in cause number 12-00039l-CV-272
In 272nd District Court
Hon. Travis B. Bryan, Presiding
Oral Argument Requested
Karen Hall, pro se
P.O. Box 13
Kurten, TX 77862
(979)589-2920
Identity of Parties and Council
Appellant: Karen Hall
Counsel Karen Hall, pro se
P.O. Box 13
Kurten, TX 77862
Appellee: City of Bryan
Counsel Ryan Henry
1380 Pantheon Way, Suite 110
San Antonio, TX 78232
Counsel Janis Hampton
P.O. Box 1000
Bryan, TX 77805
Counsel Artin DerOhanian
1380 Pantheon Way, Suite 110
San Antonio, TX 78232
n
Table of Contents
Identity ofParties and Counsel ii
Table of Contents i"
Index of Authorities v
Oral Argument Requested 1
Statement of the Case 2
Points of Error 2
Statement of Facts 3
Summary ofthe Argument 8
Argument 9
Point 1: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on res judicata 9
Point 2: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on collateral estoppel 13
Point 3: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on a statute of limitations 15
Point 4: The trial court erred in denying appellant's Motion for Summary
Judgment 18
iii
Conclusion 28
Prayer 30
Certificate of Service 31
Appendix 32
Appendix - Supplemental bound separately
IV
Index of Authorities
Cases
Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex. 1971) 12
Alexander Oilv. City ofSeguin, 823 S.W.2d 312 (Tex. App.—San Antonio
1989) 16
Barr v. Resolution Trust Corp., 837 S.W.2d 628 (Tex.1992) 9, 10
Bonniwellv. BeechAircraft Corp., 663 S.W.2d 818 (Tex. 1984) 14
City ofCelina v. City ofPilot Point, 2009 Tex. App. LEXIS 6932, *11, 2009 WL
2750978 (Tex. App. Fort Worth Aug. 31, 2009, pet. refd) 16
City ofCorpus Christi v. Taylor, 126 S.W.3d 725 (Tex. App.—Corpus Christi
2004) 13,17
City ofDallas v. D.R. Horton, No. 05-14-01414-CV (Tex. App.—Dallas, July 10,
2015). Pet. filed 17
City ofHeath v. King, 665 S.W.2d 133 (Tex. App. - Dallas 1983, no writ) 1, 26
City ofLubbock v. Stubbs, 327 S.W.2d 411,414 (Tex. 1959) 10,12
City ofMurphy v. City of Parker, 932 S.W.2d 479 (Tex. 1995) 16
Clear Lake City Water Auth. v. Clear Lake Util., 549 S.W.2d 390 (Tex. 1977) 13
Cowlingv. Colligan, 312 S.W.2d947 (Tex. 1958) 10
Creative Thinking Etc. v. Creative Thinking, 74 S.W.3d 511 (Tex. App.—Corpus
Christi 2002)... 26
EagleProperties, Ltd. v. Scharbauer, 807 S.W.2d 722 (Tex. 1990) 14
Fort Worth Stockyards Co. v. Brown, 161 S.W.2d 549 (Tex. App.—Fort Worth
1977) 12
Franklinv. Rainey, 556 S.W.2d 583 (Tex. App.—Dallas 1977) 12
Godde v. Wood, 509 S.W.2d 441 (Tex. App.—Corpus Christi 1974) 17
Hall v. City ofBryan, No. 10-05-00417-CV, (Tex. App.—Waco 2006)....3, 9, 10,
13
Hall v. City ofBryan, No. 10-10-00403-CV, (Tex. App.—Waco 2011) 4, 9
Hall v. City ofBryan, No. 10-12-00248-CV, (Tex. App.—Waco 2014) 5, 9, 25
Hudspeth v. Hudspeth, 673 S.W.2d 252 (Tex. App.—San Antonio 1984) 12
Marino v. State Farm Fire & CasualtyIns. Co., 787 S.W.2d 949 (Tex. 1990)
10,12
Poe v. The City ofLago Vista Cause No. D-l-GN-05-002184, 345th District Travis
County (August 2, 2006) 1, 27
Powell v. Powell, 703 S.W.2d 464 (Tex. App. 1985) 12
Puga v. Donna Fruit Co., 634 S.W.2d 677, 679 (Tex. 1982) 9
Reynolds v. Murphy, 266 S.W.3d 147 (Tex. App.—Fort Worth 2008) 26
Rolling Lands v. Northwest Airport, 111 S.W.3d 193, 194 (Tex. App.—Texarkana
2003) 12
Simulis, LLCv. Gen. Elec. Capital Corp., 392 S.W.3d 735 (Tex. App.—Houston
14*2011) 26
vi
Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 801 (Tex. 1994) 14
Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 839 (Tex. 2007) 26
Statutes
Tex. Civ. Prac. & Rem. Code ANN. § 16.004 (Vernon 2002) 16
Tex. Loc. Gov't Code §43.056 1, 3,20,21,27
Tex. Loc. Gov't Code §43.141 passim
Tex. Loc. Gov't Code §43.148 1,8,27,30
Tex. Loc. Gov't Code §43.901 6,15,16
Tex. Loc. Gov't Code §51.003 6
Tex. Gov't Code §311.011 18
Tex. Gov't Code §311.016 18
Tex. Gov't Code §311.023 18
Tex. Gov't Code §312.005 19
Tex. Gov't Code §312.006 18
Tex. Rev. Civ. Stat. Art 970a (Municipal Annexation Act) 1, 19, 20, 21, 28
vn
Oral Argument Requested
This case raises significant issues related to amunicipality's obligation
regarding the provision of services to newly annexed areas. From 1963 with the
passage ofthe Municipal Annexation Act (Appendix B) to the current versions of
TEX. LOC. GOV'T Code §43.056 titled Provision of Services to Annexed Area and
TEX. LOC. GOV'T CODE §43.141 titled Disannexation For Failure To Provide
Services, the Legislature's intent is clear; similar services for similar areas.
Since the recodification of TEX. REV. ClV. STAT, article 970a into §43.056
and §43.141, no other case has been appealed making this acase of first
impression. In City ofHeath v. King, 665 S.W.2d 133 (Tex. App. -Dallas 1983,
no writ) (1 CR 10), the Municipal Annexation Act was the controlling statute. In
Poe v. The City ofLago Vista Cause No. D-l-GN-05-002184, 345th District Travis
County (August 2, 2006), the case was not appealed by the City ofLago Vista. (3
CR 1089) (3 CR 1303-1307) (1 RR 27-29). No appellate court has ever ruled on
the refund of property taxes and fees pursuant to TEX. LOC. GOV'T CODE §43.148.
The inclusion of oral arguments will significantly aid the decision ofthis
Court.
STATEMENT OF THE CASE
Appellant filed suit seeking disannexation ofthe approximately 105 acres
labeled 6A-1 and commonly called Hwy. 21 East from the City of Bryan because
the City failed to provide, in good faith or under its service plan, full municipal
services pursuant to TEX. Loc. GOV'T CODE §43.141. The trial court granted the
City ofBryan's Motion for Summary Judgment as supplemented and denied Hall's
Second Amended Motion for Summary Judgment.
Points of Error
Point 1: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on res judicata.
Point 2: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on collateral estoppel.
Point 3: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on astatute of limitations.
Point 4: The trial court erred in denying appellant's Motion for Summary
Judgment.
STATEMENT OF FACTS
On July 27, 1999 the City ofBryan (hereinafter referred to as "City" or
"Bryan") annexed by Ordinance 1175 and pursuant to TEX. LOC. GOV'T CODE
§43.056 \ nine (9) separate areas comprising over 6000 acres. (1 CR 7). April
2004 - almost five years after being annexed - the majority ofthe qualified voters
ofthe approximately 105 acres labeled Area 6A-1, commonly called Hwy. 21 East
("Hwy. 21 East" or "Area" hereinafter) filed for disannexation under TEX. Loc.
GOV'T CODE §43.141. After 60 days passed without the City's taking action on
the petition, Hall, as one ofthe signers ofthe petition, filed suit for disannexation.
(1 CR 9). The trial court granted the City's Motion for Summary Judgment. The
case was appealed. Hall v. City ofBryan, No. 10-05-0417-CV, 2006 WL 3438537
(Tex.App.—Waco 2006, pet. denied) (hereinafter referred to as Hall I). This
court affirmed the trial court's ruling stating that "Hall lacked standing" to
complain aboutthe service plan.
Aservice plan is valid for ten (10) years unless renewed. §43.056 (i). The
City did not renew the service plan so it expired July 27, 2009. On September 1,
1Because this area was annexed prior to the September 1999 changes to TEX. Loc. GOV'T Code
§43.056 titled Provision of Services to Annexed Area, the time for providing services is 4lA
years instead ofthe 2l/2 years listed in the current version. (Appendix C).
2009, appellant filed another petition signed by the majority of the qualified voters
of Area 6A-1 requesting disannexation under §43.141. (1 CR 9). On October 27,
2009, the City of Bryan denied the request and appellant filed suit seeking
disannexation. The City filed acombined Plea to the Jurisdiction and Motion for
Summary Judgment on multiple grounds. The trial court granted the City's Plea to
the Jurisdiction and Motion for Summary Judgment. The case was appealed. Hall
v. City of Bryan, No. 10-10-00403-CV, 2011 LEXIS 8038 (Tex.App.—Waco
2006, pet. denied), (hereinafter referred to as Hall IT). This court affirmed the trial
court's ruling stating that appellant's complaints amounted to "an attack on the
validity ofthe annexation." "Accordingly, ...she has no standing." Id. The other
issues raised in the City's Motion for Summary Judgment were not addressed by
this court because ofits finding that the trial court lacked jurisdiction.
The Opinion did, however, give clear direction to an individual seeking
disannexation when it said, "a complaint that the city has failed to provide services
to specific property that was annexed, under aservice plan or in good faith, gives
that individual property owner standing to sue the city to have the property
disannexed. TEX. LOC. GOV'T CODE ANN. §43.141 (West 2008)." (Hall II).
On February 13, 2012 appellant again filed for disannexation. Hall v. City
ofBryan, No. 10-12-00248-CV, (Tex. App.—Waco 2014). (hereinafter referred to
as Hall III). (1 CR 7) (3 CR 1085) (1 RR 67-68). The grounds stated in Plaintiffs
First Amended Petition for Disannexation are limited to the City's failure to
provide, in good faith or under its service plan, full municipal services to Area 6A-
1pursuant to §43.141. (1 CR 7). Area 6A-1 has been annexed over sixteen (16)
years and still lacks sanitary sewer, fire hydrants, adequate police patrols. As of
February 2012 not one shovel-full of dirt had been turned. There had been no
"good faith" effort made to provide this area with full municipal services similar to
that currently enjoyed by citizens living within the city's full-service boundaries
with similar land use and population density. Hwy. 21 E. is a fully developed area
similar to many other areas within Bryan's full-purpose boundaries. It is
undisputed that full municipal services were not provided as ofthe filing ofHall
III (February 13, 2012) and therefore, this area meets the requirements for
disannexation.
The City filed an answer which sought to assert sovereign and governmental
immunity, official and qualified immunity, resjudicata, collateral estoppel, statute
of limitations, and contractual obligations. The City then filed acombined Plea to
the Jurisdiction and Motion for Summary Judgment. The Plea to the Jurisdiction
inaccurately claimed that the appellant's disannexation suit was an attack on the
validity ofthe City's annexation. The plea also erroneously asserted that
appellant's claim was for "free" services. Appellant's claim is that the City of
Bryan failed to provide services to specific property that was annexed, under a
service plan or in good faith. The City's Summary Judgment argues resjudicata,
collateral estoppel, statute oflimitations, quo warranto, and sovereign immunity.
Appellant's response to the City's Plea to the Jurisdiction and Motion for
Summary Judgment addressed each ofthe grounds asserted by the City.
May 7, 2012 - four days prior to the hearing on the City's Plea to the
Jurisdiction motion - the City filed afirst supplement to its jurisdiction plea
asserting sovereign immunity, quo warranto, resjudicata, collateral estoppel,
statute of limitations, the Municipal Validation Act (TEX. Loc. GOV'T CODE
§51.003), and presumed consent (TEX. LOC. GOV'T CODE §43.901). (2 CR at 463,
469-474). The City also asserted that it is not responsible for providing services to
annexed areas.
On May 10, 2012, appellant filed her response to the City's first supplement
to its plea to the jurisdiction addressing each ofthe specific claims made by the
City. May 11, 2012 the trial court held ahearing on the City's Plea to the
Jurisdiction and the Defendant City ofBryan's First Supplement to Defendant's
Plea to the Jurisdiction The trial court granted the City's Plea to the Jurisdiction.
That ruling was appealed. After oral arguments, this court issued an Opinion on
July 24, 2014, remanding the case to the trial court on one point oferror; the lack
of"regular and routine police patrols" required by the service plan.
Both the City and Hall filed Motions for Summary Judgment. (1 CR 46-
703) (3 CR 1084-1327). After ahearing on December 22, 2015, the trial court
granted the City's Motion for Summary Judgment as supplemented and denied
Hall's Motion for Summary Judgment. (3 CR 1623-1627). Notice of Appeal was
timely filed by appellant on February 5, 2016. (3 CR 1637-1638).
Summary Of The Argument
The trial court erred in granting the City ofBryan's Motion for Summary
Judgment. It is undisputed that as ofthe filing date, February 13, 2012, there were
no wastewater facilities (sanitary sewer) or fire hydrants (except those at the City
owned Coulter Airfield) in Area 6A-1. Hours ofvideo and personal observation
attest that the Area lacks regular and routine preventive patrols. Legislative intent
and statutory history shows that when acity annexes an area, it is required to
provide that area with comparable services to similar areas ofthe city. Basically,
similar services for similar areas.
The primary issue in this appeal is whether acity may ignore nearly 50
years of legislative efforts to prevent cities from annexing land, imposing
municipal taxes on the landowners, and failing to provide municipal services
comparable to other parts ofthe city. Analysis ofthe governing statute, Tex.
Gov't Code §43.141, shows the Legislature's intent that acitizen may seek
disannexation when services are not timely provided. Because the City ofBryan
has monumentally failed to provide in good faith the municipal services required
by the service plan, appellant is requesting that Area 6A-1 be disannexed from the
City ofBryan pursuant to Tex. Gov't Code §43.141 and that all taxes and fees be
refunded pursuant to Tex. Gov't Code §43.148.
8
Argument
Point 1: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on res judicata.
The City has raised the issue ofresjudicata citing this Court's ruling in Hall
I (Hall v. CityofBryan^o. 10-05-00417-CV, (Tex. App.—Waco 2006)). (1 CR
55). Broadly speaking, resjudicata is the generic term for a group ofrelated
concepts concerning the conclusive effects given final judgments. Barr v.
Resolution Trust Corp., 837 S.W.2d 628 (Tex. 1992). See Puga v. Donna Fruit Co.,
634 S.W.2d 677, 679 (Tex. 1982). In both Hall II(Hall v. City ofBryan, No. 10-
10-00403-CV, (Tex. App.—Waco 2011)) and Hall III (Hall v. City ofBryan, No.
10-12-00248-CV, (Tex. App.—Waco 2014)), this Court has treated the service
plan as a continuous contract. The City concurs in its Motion for Summary
Judgment Sec. E. titled Alternatively, the Citv asserts it currently provides proper
services and has always done so. (1CR61) Black's defines a "continuing
contract" as, "a contract calling for periodic performances over a space oftime."
BLACK'S LAW DICTIONARY, 321 (Sixth Ed. 1990). The annexation service
plan is not aone time event such as abotched surgery or a car accident but the
provision ofservices for as long as the area remains part ofthe city. The case
before this Court was filed in February 13, 2012 (1 CR 7) (3 CR 1085) (1 RR 67-68)
and it is the actions or lack of actions at thattime that constitutes the basis for
this lawsuit. It is a snapshop ofArea 6A-1 at that time. This is not a relitigation
of Hall I as put forth by the City.
Res judicata is not a bar when a sequence ofevents occurs across time,
space, origin, or motivation. Barr, 837 S.W.2d at 631. New facts confer new
rights and create anew cause of action. Marino v. State Farm Fire &Casualty
Ins. Co., 787 S.W.2d 949 (Tex. 1990). Ajudgment in one suit will not operate as
resjudicata to asubsequent suit on the same question between the same parties
"where, in the interval, the facts have changed, or new facts have occurred which
may alter the legal rights or relations of the parties." Id. at 949-950. See City of
Lubbock v. Stubbs, 327 S.W.2d 411, 414 (Tex. 1959). "The judgment is res
adjudicata only ofpresent and not of future conditions." Cowling v. Colligan,
312S.W.2d947(Tex. 1958).
InHall I, this Court's opinion stated that the City had "complied with the
service plan as written." The Opinion then quotes the City's policy of extending
municipal services with "...developer or property owner participation." That
ruling was based on the affidavits of Kevin Russell, Director of Development
10
Services, who said that it is city policy to require developers or property owners to
pay for wastewater line extensions, the affidavit ofMichael Donoho, Bryan Fire
Chief, who saidit is city policy that"property owners and developers are
responsible for installation offire hydrants," and the affidavit ofBryan Police
Chief Michael Strope who said that the City could provide police protection and
services. (1 CR 52) Chief Strope never addressed the question of" regular and
routine police patrols" as required by the service plan.
Assuming the City's policy in 2004 was that the developers and property
owners pay for capital improvements, evidence obtained from Discovery shows
that the City's policy has changed. (3 CR 1134-1256). Area 6A-1 is a fully
developed mix ofresidential and businesses. The projects listed are only a small
sample ofthe Capital Improvement Projects (CIPs) where sewer (CIP numbers
starting with 411) and/or water with fire hydrants (CIP numbers starting with 611)
have been installed by the City and paid for with bond funds or other monies
controlled by the City of Bryan. (Appendix D, E).
It is a "...well-accepted rule that res judicata is not a defense in a subsequent
action if there has been a change in the material facts, the applicable statutory law,
or the decisional law between the first judgment and the second suit. The rationale
11
underlying this rule is that no judgment can affect subsequently arising rights and
duties." Marino, 787 S.W.2d 9 at 950. "Estoppel by judgment extends only to
facts in issue as they existed at the time the judgment was rendered, and does not
prevent are-examination of the same question between the same parties,
where, in the interval, the facts have changed, or new facts have occurred
which may alter the legal rights or relations of the parties." (emphasis added).
City ofLubbock, 327 S.W.2dat414. See Hudspeth v. Hudspeth, 673 SW2d252
(Tex. App.—San Antonio 1984).
Resjudicata will operate as abar only to matters actually raised or that
could have been raised in the previous litigation. Powell v. Powell, 703 S.W.2d
464 (Tex. App. 1985). See Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.
1971). As to matters which arise subsequently, the prior judgment will not be res
judicata. Fort Worth Stockyards Co. v. Brown, 161 S.W.2d 549 (Tex. App.-Fort
Worth 1977). See Franklin v. Rainey, 556 S.W.2d 583 (Tex. App.—Dallas 1977).
The issues raised in this suit are based on significant changes ofmaterial facts
between the first suit in 2004 and the filing ofthis suit in 2012. The changes
center around the City's policy regarding sewer and fire hydrant construction.
Resjudicata does not apply in dealing with acontinuing contract when the
current suit "arises out ofaseparate breach." Rolling Lands v. Northwest Airport,
12
111 S.W.3d 193, 194 (Tex. App.—Texarkana 2003). The service plan is not a
document to be followed for one day but imposes duties for the entire time the
area remains apart ofthe City. It is classified as a"continuous contract." City of
Corpus Christi v. Taylor, 126 S.W.3d 725 (Tex. App.—Corpus Christi 2004). See
Clear Lake City Water Auth. v. Clear Lake Util, 549 S.W.2d 390 (Tex. 1977). It
can only be terminated by the City ofBryan and only then by disannexing the area.
Until such time, the obligations imposed by the service plan remain in effect. If
the City fails to perform those obligations, citizens can petition for disannexation.
This Court's ruling in 2004 does not exempt the City from fulfilling those
obligations in subsequent years.
Resjudicata (claim preclusion) is not abar to this disannexation suit. The
trial court erred in granting summary judgment for the City based on resjudicata.
Point 2: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on collateral estoppel.
The City raises the defense ofcollateral estoppel again citing this Court's
ruling in Hall I. (3 CR58). Aparty seeking to assert the bar of collateral estoppel
must establish that (1) the facts sought to be litigated in the second action were
fully and fairly litigated in the first action, (2) those facts were essential to the
13
judgment in the first action, and (3) the parties were cast as adversaries in the first
action. Sysco FoodServices, Inc. v. Trapnell, 890 S.W.2d 801 (Tex. 1994). See
Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 818 (Tex. 1984). Under state law,
collateral estoppel only precludes the relitigation of identical issues of fact or law
which were actually litigated and essential to the prior judgment. Eagle
Properties, Ltd. v. Scharbauer, 807 S.W.2d 722 (Tex. 1990). The determining
issue before this court in 2004 was the City's claim that it complied with the
service plan because it followed City policy to have developers or property owners
pay for services. That policy has changed.
For collateral estoppel to bar relitigation of an issue, that issue must have
been "necessarily determined" in the priorlitigation. Id. The capital improvement
policy no longer requires only developers or property owners to pay for
wastewater line extensions and to be responsible for the installation of fire
hydrants. Discovery evidence clearly shows areas similar to Area 6A-1 that have
sewer and fire hydrants installed and paid for with bond funds or other City
controlled monies. Area 6A-1 is being treated differently from similar areas of the
City. This conflicts with the service plan requirement that, "Under this plan, the
City ofBryan will provide the newly annexed areas with the same type, kind and
14
quality of services currently enjoyed by the citizens of Bryan who reside in areas
with similar physical and development characteristics."
In order to prevail under collateral estoppel, the case must have been "fairly
and fully litigated." This is not a retrial ofthe facts of 2004 but a trial ofthe facts
in 2012. Collateral estoppel cannot be applied to a case when there is a change of
material facts. Because the service plan is a continuous contract, each failure
confers new rights. The same arguments and cases cited above in resjudicata
establishing new facts conferring new rights and creating a new cause of action are
incorporated here by reference.
Collateral estoppel (issue preclusion) is not a bar to this disannexation suit.
The trial court erred in granting summary judgment for the City based on collateral
estoppel.
Point 3: The trial court erred in granting the City's Motion for Summary
Judgment as supplemented based on a statute of limitations.
The City raised a statute of limitations defense citing TEX. LOC. GOV'T
CODE §43.901. (3 CR 59). The wording ofthis statute, although not exactly the
model ofclarity, makes it inappropriate to apply to this or any disannexation suit.
By reading the bill analysis it becomes very clear that it only applies to
15
challenging an ordinance. Challenges to an ordinance can only be done by a
municipality or an individual when the error is ab initio. (3 CR 1602-1603).
The City ofBryan made no such error. Acopy of§43.901 and the bill analysis is
attached.l (Appendix F, G). An excellent explanation ofab initio errors can be
found inthe Court of Appeals ruling inAlexander Oil v. City ofSeguin, 823
S.W.2d 312 (Tex. App.—San Antonio 1989).
This explains why the only two cases offered to the court—City ofMurphy
v. City ofParker, 932 S.W.2d 479 (Tex. 1995) and City ofCelina v. City ofPilot
Point, 2009 Tex. App. LEXIS 6932, *11, 2009 WL 2750978 (Tex. App. Fort
Worth Aug. 31, 2009, pet. refd)—deal with one municipality annexing into
another municipality's ETJ. An ab initio error. Exactly the purpose of§43.901.
A disannexation suit brought under § 43.141 is not the same as a challenge to the
actual annexation ordinance. It is very misleading to cite §43.901 as a limitation
statute in a disannexation suit.
The statute of limitations for contracts is four years. See Tex. Civ. Prac. &
Rem. Code ANN. § 16.004 (Vernon 2002). However, in a contract that has
continuing obligations, the following rule applies:
1Tex. H.B. 1264, 77th Leg., R.S. (2001) through Legislative Reference Library ofTexas
(http://www.lrl.state.tx.us/).
16
Limitations begins to run on a continuing contract at the earlier of the
following: (1) when the work [under the contract] is complete; (2) when
the contract is terminated in accordance with its terms; or (3) when the
contract is anticipatorily repudiated by one party and this repudiation is
adopted by the other party. City ofCorpus Christi, 126 S.W.3d at 725.
Because the obligations imposed by the service plan are still in effectand
the service plan contract has not been terminated or repudiated, no statute of
limitations applies.
Where a claim for work, labor, or materials performed or furnished is
the outgrowth of an entire contract for continuous work, labor or
materials (until the work project has been completed), the claim will be
treated and considered as an entire demand and limitations will not
commence to run until the contract has been finished. Godde v. Wood,
509 S.W.2d 441 (Tex. App.—Corpus Christi 1974).
Also, there does not appear to be any statute of limitations on filing a
disannexation suit. In one case, the area was annexed in 1971 and the
disannexation suit was filed in 2013. City ofDallas v. D.R. Horton, No. 05-14-
01414-CV (Tex. App.—Dallas, July 10, 2015). Pet. filed.
The statute of limitations is not a bar to this disannexation suit. The trial
court erred in granting summary judgment for the City based on any statute of
limitations.
17
Point 4: The trial court erred in denying appellant's Motion for Summary
Judgment.
Code Construction Act
The Texas Government Code sections were written to assist courts in
determining legislative intent. Plaintiff asks this Court to take specific notice of
§312.006(a), §311.011(a), §311.016(1-3), §311.023(1-7), and §312.005. (3 CR
1308).
Tex. Gov't Code §312.006. LIBERAL CONSTRUCTION, (a) The Revised
Statutes are the law of this state and shall be liberally construed to achieve
their purpose and to promote justice.
Tex. Gov't Code §311.011. COMMON AND TECHNICAL USAGE OF
WORDS, (a) Words and phrases shall be read in context and construed
according to the rules of grammar and common usage.
Tex. Gov't Code §311.016. "MAY," "SHALL," "MUST," ETC.. The
following constructions apply unless the context in which the word or phrase
appears necessarily requires a different construction or unless a different
construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a
power.
(2) "Shall" imposes a duty.
(3) "Must" creates or recognizes a condition precedent
Tex. Gov't Code §311.023. STATUTE CONSTRUCTION AIDS. In
construing a statute, whether or not the statute is considered ambiguous
on its face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
18
(3) legislative history;
(4) common law or former statutory provisions,
including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision
Tex. Gov't Code §312.005. LEGISLATIVE INTENT. In interpreting a
statute, a court shall diligently attempt to ascertain legislative intent and shall
consider at all times the old law, the evil, and the remedy.
In examining the history of the annexation statutes, there is virtually no "old
law" because prior to 1912, onlythe Texas Legislature had the legal authority to
expand a city's boundaries through annexation. With the passage of the
Constitution Amendment Article XI section 5 creating the Home Rule
Amendment, cities obtained to power of annexation with few restrictions.
Essentially, between 1912 until the passage of the 1963 Municipal Annexation
Act, there was still no "old law". There was, however, a great deal of "the evil" as
cities annexed enormous amounts of land with little or no regard to providing
municipal services. "The remedy" came in 1963 with the passage of the
Municipal Annexation Act. The Act required that an annexing municipality
provide certain services to the residents ofthe annexed area within three years or
face the possibility of having to disannex the area. The legislative intent that
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services be provided to newly annexed areas is still in effect today under TEX.
LOC. GOV'T CODE §43.056 and TEX. LOC. GOV'T CODE §43.141.
Legislative History of TEX. Loc. Gov't CODES §43.056 and §43.141
In 1912 a constitutional amendment created home rule municipalities.2
This amendment allowed cities to annex without legislative approval.3 In 1963,
the 58th Texas Legislature enacted the Municipal Annexation Act (hereinafter
referred to as "Act").4 The Act regulated numerous aspects of municipal
annexation including the requirement to furnish services. The Act also allowed
areas to be disannexed when those services were not timely provided.
In 1981 the 67th Legislature amended the Act by passing House Bill ("HB"
hereinafter) 1952.5 ( Appendix H). This amendment added the requirement that
cities must write a service plan. The legislative intent of the service plan is to force
2Tex. Const, art. XI, §5.
3Texas House ofRepresentatives, House Committee on Land and Resource Management, Interim
Report, 80th Leg., R.S. (May 5, 2008), p. 86 through Legislative Reference Library ofTexas
(http://www.lrl.state.tx.us/).
4Municipal Annexation Act, Vernon 970a, 1963. Certification attached.
5Tex. H.B. 1952, 67th Leg., R.S. (1981). Certification attached.
6House Study Group, Bill Analysis, Tex. H.B. 1952,67th Leg., R.S. (1981) through Legislative
Reference Library of Texas (http://www.lrl.state.tx.us/).
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cities to list the required services and then provide those services.6 ( Appendix I).
The Intergovernmental Affairs Committee Bill Analysis for HB 1952 states that
"'...failure to provide...governmental and proprietary services to an annexed
territory is grounds for disannexation."7 Clearly, the Legislature intended
disannexation to be the remedy when a municipality fails to provide all
legislatively required services.
In 1987 and 1989, the 70th and 71st legislative sessions respectively,
recodified statutes governing annexation including Vernon's Texas Civil Statute
970a.8 (Appendix J). Inthe old civil statute labeled CITIES, TOWNS and
VILLAGES, Vernon's Texas Civil Statute 970a contained both the annexation and
disannexation requirements. The 70th Legislature first created the Local
Government Code Chapter 43 title MUNICIPAL ANNEXATION. The service
requirements were then placed in the newly formed TEX. LOC. GOV'T CODE
§43.056 titled Provision of Services to Annexed Area. The disannexation
requirements were placed inthe newly formed Tex. Loc. Gov't Code §43.141
titled Disannexation For Failure To Provide Services. (3 CR 1091) (3 CR 1324-
1327).
7Intergovernmental Affairs Committee, Bill Analysis, Tex. H.B. 1952, 67th Leg., R.S. (1981)
through Legislative Reference Library ofTexas (http://www.lrl.state.tx.us/).
8Tex. S.B. 896, 70th Leg., R.S. (1987) through Legislative Reference Library of Texas
(http://www.lrl.state.tx.us/).
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City's Failure To Meet Service Plan Requirements
A. Sanitary Sewer
The City of Bryan's service plan states on page 1, "Under this plan, the City
ofBryan will provide the newly annexed areas with the same type, kind and
quality ofservices currently enjoyed by the citizens ofBryan who reside in areas
with similar physical and development characteristics." (Appendix K).
Information obtained from a Discovery Request shows many similar areas within
the Bryan city limits that enjoy access to sewer lines that were installed by the City
and paid for with either bond funds orother City controlled monies. (3 CR 1134-
1256). This occurred both prior to 2004 and after 2004.
The service plan, under Capital Improvements states onpage 4, "Within two
years after the effective date ofannexation, the City is also obligated to acquire or
begin constructing any additional capital improvements that are necessary to
provide the required levels ofservice in the annexed areas. Such acquisition or
construction must be substantially completed within four-and-one-half years after
the annexation...." Basically, similar services for similar areas. Area 6A-1 is a
fully developed mixed use area ofresidents and businesses and is similar to
numerous other areas of the city.
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The placement of sewer lines throughout the City is shown on a map. (3 CR
1265). (Appendix L). Sewer projects are identified with a 411 CIP (Capital
Improvement Project) number. (3 CR 1134-1256). (Appendix D).
B. Fire Hydrants
Besides the general "similar services for similar areas" statement in the
service plan, the requirements for fire hydrants is more specific. Bryan's service
plan states on page 2, "Immediately upon annexation the City ofBryan will
provide fire suppression comparable to similar areas inthe rest ofthe City." Area
6A-1 does not have fire hydrants (except those at the City owned Coulter
Airfield). (3 CR 1590-1592). Information obtained from Discovery shows many
similar areas within the Bryan city limits that have access to fire hydrants that
were installed by the City and paid for with either bond funds or other City
controlled monies. This occurred both prior to 2004 and after 2004.
The placement of fire hydrants throughout the City is shown on a map. (3
CR 1264). (Appendix M). Water line projects with fire hydrants are identified
with a 611 CIP (Capital Improvement Project) number. (3 CR 1134-1256).
(Appendix E).
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C. Police Patrols
On page 2 of Bryan's service plan, it states, "Immediately upon annexation,
the City of Bryan Police Department will provide regular and routine preventive
patrols...." (1 CR 20-25) (3 CR 1293-1298). (Appendix K). In 2005 one hundred
thirty (130) continuous hours of video recordings on a side road in Area 6A-1
shows only one Bryan police car. (3 CR 1086) (3 CR 1258-1263) (1 RR 14-16).
One patrol car every 130 hours is not "regular and routine preventive patrols." A
2-lane side street directly off Highway 21 was chosen because Highway 21 is a
four-lane 70 mph highway with a left turn lane. It is impossible to view all
vehicles in all lanes as they pass in front of the camera. Appellant made the
assumption that any patrol car on Hwy. 21 would also patrol the side streets.
Lieutenant Patterson states in his affidavit that, "Highway 21 has a
consistent police presence with patrol officers driving different sections of
Highway 21 multiple times per day." (3 CR 1585-1587). This statement is
controverted by one hundred (100) hours (various days/times) of personal
observation by several different individuals (backed by video recordings) at 6111
Hwy. 21 E. in Area 6A-1 in October 2015. Only one Bryan police car was
observed during that time. (3 CR 1260-1263) (1 RR 14-16). A chart listing all law
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enforcement vehicles observed with the days, times, and observer's name is
attached. (Appendix N). Each observer signed an affidavit stating the day and
time any law enforcement vehicle (sheriff, DPS, constable, or Bryan PD) was
observed. (3 CR 1260-1263) (3 CR 1274-1286). When this evidence is added to
the 130 continuous hours of video recordings in 2005, it proves a consistent lack
of "regularand routine preventive patrols."
Amended Pleadings Allowed
The City challenges appellant's amended Petition and her Motion for
Summary Judgment for raising issues besides police patrols. The City's Motion-
for Summary Judgment states, "Essentially, the opinion [Hall III] holds this court
has no jurisdiction to hear any ofMs. Hall's claims, save the police services claim.
All such claims must be dismissed." (1CR 63). On remand, appellant is not
limited to the single issue of police patrols but can amend her pleadings to include
other issues. In Hall v. City ofBryan, No. 10-12-00248-CV (Tex. App.—Waco
2014), at footnote 5, the 10th Court Opinion states "...our holding does not
necessarily mean there are no other claims that Hall can pursue in this proceeding
by amending her petition."
There are numerous instances when a higher court has issued instructions
25
that a pleading may be amended. "A plaintiff deserves 'a reasonable opportunity
to amend' pleadings unless the pleadings demonstrate incurable defects or negate
the existence of jurisdiction." Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d
839 (Tex. 2007). Unless the opinion includes limiting language, appellant is"free
to amend its pleadings to add new claims." Simulis, LLC v. Gen. Elec. Capital
Corp., 392 S.W.3d 735 (Tex. App.—Houston 14th 2011). Emphasis added. "[The]
court's opinion and mandate did not prevent appellant from amending its pleadings
on remand to add new causes of action not substantially the same as those
originally considered on appeal...." Id. This Court's opinion and mandate did not
prevent appellant from amending its pleading to add new causes of action
following remand. Creative Thinking Etc. v. Creative Thinking, 74 S.W.3d 511
(Tex. App.—Corpus Christi 2002). See Reynolds v. Murphy, 266 S.W.3d 147
(Tex. App.-Fort Worth 2008).
Therefore, the City is in error in stating that Hall is limited, on appeal, to the
issue of police patrols.
Examples ofOther Disannexations
Directly on point is City ofHeath v. King, 665 S.W.2d 133 (Tex. App. -
Dallas 1983, no writ). (1 CR 10) (3 CR 1088) (1 RR 26-27). In Heath the
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Appellate Court affirmed that the City ofHeath should disannex the five tracts of
land pursuant to TEX. REV. ClV. STAT, article 970a § 10 [older version of TEX.
Loc. GOV'T CODE §43.141] because "the city failed to furnish services to the five
areas in question comparable to services furnished other areas of the city with
similar characteristics of topography, patterns of land utilization, and population
density...." (3 CR 1088) (1 RR26-27). The Refund of Taxes statute TEX. Loc.
GOV'T CODE §43.148—effective date September 1, 2000—was not available in
1983.
Because Lago Vista did not provide sewer to the Poe's property within the 4
V2 years required by TEX. LOC. GOV'T CODE §43.056 and the service plan, Bobby
Poe filed for disannexation under §43.141. Poe v. The City ofLago Vista Cause
No. D-l-GN-05-002184, 345th District Travis County (August 2, 2006). Judge
Yelenosky ordered the area disannexed and "ordered the return oftaxes paid by
the plaintiffs." 9 This case was not appealed. (3 CR 1089) (3 CR 1303-1307) (1
RR 27-29).
In 2002 after receiving a petition from annexed residents, the San Marcos
City Council ordered 330 homes disannexed because the city failed to provide full
9Certified Opinion Poe v. City ofLago Vista Cause No. D-l-GN-05-002184, 345th District Travis
County (August 2,2006). (Appendix O).
27
municipal services. This information is in the public domain and can be found at
the Austin-American Statesman's website www.statesman.com. (3 CR 1090) (3
RR 25-27).
In 2006 the City of Greenville disannexed over 1000 acres after residents
submitted a petition requesting disannexation because the City failed to provide
the area with the required services. This information is in the public domain and
can be found at the Greenville Herald Banner's website www.heraldbanner.com.
(3 CR 1090) (1RR 25-27).
Conclusion
Appellant has met all the requirements for disannexation under TEX. LOC.
Gov't Code §43.141. A valid petition was filed with the municipality on
September 1, 2009. (3 CR 1096-1132). More than 60 days have passed since the
City received the petition. The Bryan City Council, by a vote of 5-2, denied the
request on October 27, 2009. (3 CR 1085). Appellant is one ofthe signers ofthe
petition (3 CR 1085) (3 CR 1111). The Bryan City Council adopted Ordinance
NO. 1175 on July 27, 1999 which annexed over 6000 acres including Area 6A-1.
(3 CR 1085). It has been more than 4 V2 years from the date ofthe annexation, and
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the City has failed to provide, in good faith or under its service plan, full
municipal services to Area 6A-1. On February 13, 2012, appellant filed for
disannexation pursuant to §43.141 (1 CR 7) ( CR 1085) (1 RR 67-68). This
lawsuit is a snapshot of Area 6A-1 on February 13, 2013.
As of the filing of this lawsuit, the City of Bryan has failed to perform its
obligations in accordance with the service plan or failed to perform in good faith.
The businesses and residents of Area 6A-1 do not have, as required by the service
plan, the same type, kind and quality of services currently enjoyed by the citizens
of Bryan who reside in areas with similar physical and development
characteristics. The businesses and residents of Area 6A-1 do not have sewer
service as do similar areas as proven by the Discovery information and the map
showing sanitary sewer lines throughout the city. (3 CR 1134-1256) (3 CR 1265)
(Appendix D, L). The businesses and residents of Area 6A-1 do not have fire
suppression with fire hydrants as do similar areas as proven by the Discovery
information and the map showing fire hydrants throughout the city (3 CR 1134-
1256) (3 CR 1265) (Appendix E, M). The businesses and residents of Area 6A-1
do not have regular and routine preventive police patrols as proven by the 130
continuous hours of video in 2005 and the 100 hours of observation (and video) in
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2015. (3 CR 1084-1086) (3 CR 1258) (1 RR 14-16).
On the issue of providing services to annexed areas, the City has blatantly
disregarded its own service plan, the letter ofthe law, and the spirit of the law.
Therefore, Area 6A-1 is ripe for disannexation as a matter of law.
Prayer
Wherefore, premises considered, Appellant, Karen Hall, respectfully prays
for the following relief:
(1) that the judgment ofthe trial court be reversed and render judgment that
Area 6A-1 be disannexed from the City of Bryan for a period often (10) years
pursuant to TEX. Loc GOV'T CODE §43.141(c),
(2) order the landowners be refunded the property taxes and fees collected by
the City during the period that the area was part of the City pursuant to TEX.
Loc. Gov't Code §43.148,
(3) The Plaintiff recover the costs ofthis suit, and such other and further
relief to which Plaintiff may be justly entitled.
Respectfully submitted,
Karen Hall
P.O.Box 13
Kurten, TX 77862
979/589-2920
Karen Hall, pro se
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing was
served by CMRRR onthis &3/U day ofJune 2016 as follows:
Ryan Henry
1380 Pantheon Way, Ste. 110
San Antonio, TX 78232
fliu^ PJf-
Karen Hall
31
Appendix
Appendix A. January 28,2016 Order
32