City of Victoria, Texas v. Keith Redburn

NUMBER 13-20-00213-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF VICTORIA, TEXAS, Appellant,
v.
KEITH REDBURN, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
This case requires us to examine the contours of the Reata abrogation-of-immunity
rule. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006). Appellant
the City of Victoria intervened in a lawsuit by seeking a declaration that it held a
prescriptive drainage easement across appellee Keith Redburn’s property, and Redburn
filed a conditional counterclaim for injunctive relief against the City. Redburn alleges that
the vast majority of the City’s stormwater drainage system, including on either side of his
property, consists of buried pipes, and that the City’s use of the open ditch across his
property has caused significant damage. To the extent an easement exists, Redburn
contends the City has a duty to use it in a reasonable manner that minimizes the burden
on his property. Thus, Redburn asked the trial court to enjoin the City by ordering it to
extend and bury its drainage pipes under his property, just as it has done elsewhere. The
trial court granted the City’s motion for summary judgment on its easement claim but
denied its plea to the jurisdiction on Redburn’s claim for injunctive relief.
On appeal, the City argues that Redburn’s claim is inconsistent with Reata
because it would require the City to expend public funds to construct a significant
improvement on Redburn’s property even though the City’s claim did not seek monetary
relief. We conclude that Redburn’s claim is barred by governmental immunity. We reverse
and render a judgment dismissing Redburn’s claim for want of jurisdiction.
I. BACKGROUND
This case has a long procedural history as both this Court and the Fifth Circuit
Court of Appeals have previously issued opinions on the dispute. See Redburn v. Garrett,
No. 13-12-00215-CV, 2013 WL 2149699 (Tex. App.—Corpus Christi–Edinburg May 16,
2013, pet. denied) (mem. op.); Redburn v. City of Victoria, 898 F.3d 486 (5th Cir. 2018).
The origins of the dispute trace back to the late 1880s when the City first began
developing its storm water drainage system and dug what would become known as
Philip’s Ditch. City of Victoria, 896 F.3d at 490. As the City expanded, the ditch was
extended across the subject property and integrated into the City’s drainage system. Id.
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Although the City moved its storm-sewer system underground by 1932, for unexplained
reasons, the City continued to rely on the open ditch to carry storm-sewer runoff across
the property and back into the City’s underground pipe system on the other side. Id. At
some point, the City installed concrete culverts on either side of the property to aid the
flow of drainage. Id.
The City contends that when Redburn purchased the property in 2004, the ditch
and the concrete culverts were visible and apparent. Garrett, 2013 WL 2149699, at *2. In
2006, Redburn sent several letters to the City complaining that the storm-water flow was
destroying his property. City of Victoria, 896 F.3d at 491. The City never responded, and
Redburn plugged the drainpipe entering his property with five tons of concrete in 2011.
Id.; Garrett, 2013 WL 2149699, at *2.
After the City notified Redburn that his actions were in violation of a City ordinance,
Redburn filed suit against two City officials, seeking to enjoin the City from entering his
property to remove the plug. Garrett, 2013 WL 2149699, at *2. The City filed a petition in
intervention, requesting a declaration that it holds a drainage easement across Redburn’s
property. Id. Redburn amended his petition to name the City as a defendant and included
his own claim for a declaratory judgment that the City “does not have an easement or
other legal authority to enter [his] property.” Id. at *3, 10.
The City and its officials filed pleas to the jurisdiction based on immunity, and the
trial court granted those pleas. Id. The trial court’s rulings lead to the previous interlocutory
appeal to this Court. We affirmed the dismissal of Redburn’s claims against the officials
based on the Texas Tort Claims Act’s election of remedies provision. Id. at *5 (citing TEX.
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CIV. PRAC. & REM. CODE ANN. § 101.106(f)). However, citing the principles established in
Reata, we held:
[Redburn’s] claim for a declaratory judgment that the City “does not have
an easement or other legal authority to enter [his] property” is sufficiently
connected to the City’s claim that the City has an easement encumbering
[Redburn’s] property. If it were established, [Redburn’s] claim would defeat
the City’s claim and vice versa. Therefore, the trial court has jurisdiction to
hear [Redburn’s] claim for declaratory judgment.
Id. at *9. On the other hand, we concluded that Redburn had failed to establish that his
claim for injunctive relief—originally alleged against the officials—was properly defensive
or would offset any claim asserted by the City. Id. at *10.
On remand, Redburn amended his petition, adding a federal takings claim, and the
City removed the case to federal court. City of Victoria, 896 F.3d at 491. The district court
granted summary judgment in favor of the City, concluding the City had a drainage
easement across Redburn’s property, the City had no duty to accommodate Redburn’s
use of the property, and the City had not taken Redburn’s property by exceeding the
scope of its easement. Id.
The Fifth Circuit Court of Appeals agreed with the City that Redburn’s takings claim
was time-barred because Redburn did not file suit until some five years after he began
complaining to the City. Id. at 496. But the court concluded that genuine issues of material
fact precluded summary judgment on the City’s implied easement and easement by
estoppel claims. Id. at 491–94. Additionally, the court concluded that (1) Texas law
recognizes a “reasonable use” obligation on easement holders to minimize the burden on
the servient estate, and (2) Redburn had presented evidence that the City’s use of the
ditch had caused unreasonable damage to his property. Id. at 494–95. Thus, the court
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gave the following instruction: “[I]f the City can demonstrate that it has an easement on
remand, the district court must consider whether the City’s use of Redburn’s property
comports with Texas state law principles of ‘reasonable use.’” Id. at 495. The court did
not consider whether such a claim would be barred by immunity. See id.
With the only federal claim disposed of, the federal district court remanded the
case to state court. Redburn then amended his petition, removing his claim for declaratory
relief and adding a contingent claim for injunctive relief. Specifically, “[Redburn] seeks an
injunction that the City may not continue its use of any claimed easement unless and until
it utilizes methods and means that are as little burdensome as possible, which [Redburn]
asserts is the use of enclosed pipe.”
The City filed a motion for summary judgment, this time claiming a prescriptive
easement, and a plea to the jurisdiction on Redburn’s amended petition. The trial court
granted the motion for summary judgment but denied the plea, and this appeal ensued.
II. STANDARD OF REVIEW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (citing Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject
matter jurisdiction is a question of law we review de novo. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). A plaintiff must plead facts that
affirmatively demonstrate the trial court’s subject matter jurisdiction. Fleming v. Patterson,
310 S.W.3d 65, 68 (Tex. App.—Corpus Christi–Edinburg 2010, pet. struck) (citing Tex.
Air Control Bd., 852 S.W.2d at 446).
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A plea to the jurisdiction is a procedural vehicle used to challenge the trial court’s
jurisdiction. Blue, 34 S.W.3d at 554. When a plea challenges the sufficiency of the
pleadings, we construe the pleadings liberally, taking all factual assertions as true, and
look to the plaintiff’s intent. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004). Whether a pleader has alleged facts that affirmatively demonstrate a
trial court’s subject matter jurisdiction is a question of law. Id.III. APPLICABLE LAW
A. Immunity
Governmental immunity from suit protects the political subdivisions of the State
from lawsuits for money damages and deprives a trial court of subject matter jurisdiction
over the plaintiff’s claims. Reata Const. Corp., 197 S.W.3d at 374 (citations omitted).
Immunity’s core function is to protect the public from the improvident actions of their
governments. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Without this
protection, public funds would be used to defend lawsuits and pay judgments instead of
providing public services, leading to “governmental paralysis.” Hughes v. Tom Green
County, 573 S.W.2d 212, 218 (Tex. 2019). The judiciary generally defers to the
Legislature to waive immunity because the Legislature is better suited to address the
conflicting policy concerns associated with allowing suits to proceed against the
government, including the management of fiscal matters through the appropriations
process. Reata Const. Corp., 197 S.W.3d at 375. As a creature of the common law,
however, the judiciary determines the existence of immunity in the first instance,
delineating its boundaries where immunity’s purposes are not implicated. Id. at 374. If
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immunity applies to a claim, “then the judiciary defers to the legislature to waive such
immunity.” Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 435 (Tex.
2016) (citations omitted).
When a governmental entity seeks affirmative relief in a trial court, it does so of its
own volition, making a calculated decision to spend public funds to prosecute its claims.
Reata Const. Corp., 197 S.W.3d at 375. Moreover, “[i]f the opposing party’s claims can
operate only as an offset to reduce the government’s recovery, no tax resources will be
called upon to pay a judgment, and the fiscal planning of the governmental entity should
not be disrupted.” Id. Therefore, because it is both fundamentally fair and consistent with
immunity’s purpose of protecting public funds, “adverse parties [may] assert, as an offset,
claims germane to, connected with, and properly defensive to those asserted by the
governmental entity.” Id. at 375, 377. However, absent a legislative waiver, the
governmental entity “continues to have immunity from affirmative damage claims against
it for monetary relief exceeding amounts necessary to offset the [government’s] claims.”
Id. at 377.
“Reata’s application is not dependent on the assertion of monetary damages but
rather on the relationship of the parties’ adverse claims.” Hughes, 573 S.W.2d at 218. For
example, in Hughes, the Supreme Court of Texas found that where a county and heirs at
law both claimed superior title to mineral interests under a will, the heirs’ adverse claim
was properly defensive because it “served to inferentially rebut the County’s affirmative
claim for relief.” Id. at 219; see also City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex.
2011) (“[T]he Officers’ claims were properly defensive to the City’s counterclaim because
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a finding that an officer had been underpaid would at least inferentially rebut the City’s
claims that the officer had been paid correctly or overpaid for the particular period for
which the underpayment was made.”). Additionally, because neither party in Hughes
sought monetary relief, the supreme court concluded that allowing the heirs’ competing
claim to proceed against the county would not offend immunity’s purpose. Hughes, 573
S.W.2d at 219–20 (“Litigation over a gift does not implicate taxpayer dollars or otherwise
threaten the public treasury.”)
B. Easements
An easement “is a nonpossessory interest that authorizes its holder to use the
property for only particular purposes.” Lance v. Robinson, 543 S.W.3d 723, 736 (Tex.
2018) (quoting Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002)).
“Because the easement holder is the dominant estate owner and the land burdened by
the easement is the servient estate, the property owner may not interfere with the
easement holder’s right to use the servient estate for the purposes of the easement.”
Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012) (citing Drye v. Eagle Rock
Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1963)). However, “[t]he holder of a general
easement must utilize the land in a reasonable manner and only to an extent that is
reasonably necessary.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 690 (Tex. 2020)
(citing Severance, 370 S.W.3d at 721). This reasonable-use requirement “provides a
vehicle for the servient land owner to pursue recourse if the grantee utilizes the servient
land in an unreasonable or unnecessary manner.” Id. A claimant that seeks to establish
an easement by prescription must show that its use of the land was: (1) open and
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notorious, (2) adverse to the owner’s claim of right, (3) exclusive, (4) uninterrupted, and
(5) continuous for a period of ten years. McClung v. Ayers, 325 S.W.3d 723, 727 (Tex.
App.—Texarkana 2011, no pet.); Wilson v. McGuffin, 749 S.W.2d 606, 610 (Tex. App.—
Corpus Christi–Edinburg 1988, writ denied).
IV. ANALYSIS
The City does not dispute that Redburn’s claim for injunctive relief is germane to
and connected with its prescriptive easement claim. Instead, the City argues that
Redburn’s claim for injunctive relief is effectively a claim for monetary damages because
it would require the City to expend public funds to construct a significant improvement on
Redburn’s property. Because it did not recover monetary relief, the City reasons that such
an expenditure cannot serve as an offset, and therefore Redburn’s claim is inconsistent
with Reata. We agree.
The supreme court has explained that a counterclaim is “germane” when it is
relevant to the government’s claims. Albert, 354 S.W.3d at 375 (citing BLACK’S LAW
DICTIONARY 756 (9th ed. 2009)). The term has also been defined as “closely akin,” “being
at once relevant and appropriate,” “closely or significantly related,” and “pertinent.”
Sweeny Comm. Hosp. v. Mendez, 226 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (citing MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 525 (11th ed. 2003));
see Tex. Dep’t of Transp. v. Crockett, 257 S.W.3d 412, 415 (Tex. App.—Corpus Christi–
Edinburg 2008, pet. denied). Additionally, the term “connected” means “united, joined or
linked” and “joined together in sequence; linked coherently” and “having parts or elements
logically linked together.” Mendez, 226 S.W.3d at 592 (citing MERRIAM-WEBSTER’S
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COLLEGIATE DICTIONARY 525 (11th ed. 2003)). Redburn’s counterclaim is both relevant
and logically linked to the City’s claim: they both concern the extent of the City’s right, if
any, to use the open ditch across Redburn’s property for drainage purposes. See Lynch,
595 S.W.3d at 690.
Yet, Redburn’s counterclaim is not properly defensive to the City’s claim. The
supreme court has explained that a counterclaim is “properly defensive” when it
inferentially rebuts the government’s claim. Hughes, 573 S.W.3d at 219; Albert, 354
S.W.3d at 375. Indeed, that is why we previously held—before Hughes or Albert—that
Redburn’s dueling claim for declaratory relief was properly defensive. Garrett, 2013 WL
2149699, at *10 (explaining that “[Redburn’s] claim would defeat the City’s claim and vice
versa”). But Redburn has now abandoned his claim for declaratory relief, and his new
claim for injunctive relief does not rebut, inferentially or otherwise, any element of the
City’s claim. To the contrary, as Redburn acknowledges, his claim is conditioned on the
City prevailing on its claim—if the City has an easement, then it has a duty to use the
easement in a reasonable manner, which, according to Redburn, includes extending and
burying drainage pipes across his property.
Even if Redburn’s claim is properly defensive, “the principles that informed the
boundaries of sovereign immunity in Reata dictate a different result here.” Hughes, 573
S.W.3d at 219. If Redburn prevails on his claim, then, unlike Hughes, the City’s fiscal
planning will be disrupted because it will be required to allocate tax resources to construct
significant improvements on Redburn’s property. See id. at 219–20 (“The litigation thus
does not invoke the primary policy concerns supporting immunity from suit—the payment
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of tax dollars subject to legislative discretion or judicial intrusion on exercising that
discretion.”); see also Reata, 197 S.W.3d at 375 (“If the opposing party’s claims can
operate only as an offset to reduce the government’s recovery, no tax resources will be
called upon to pay a judgment, and the fiscal planning of the governmental entity should
not be disturbed.”). On the other hand, the City’s affirmative claim for relief only seeks a
declaration of its right to use Redburn’s property for drainage purposes—i.e.,
nonmonetary relief. Therefore, the City did not “step[] outside of the sphere of its
immunity” from adverse claims that reach into the public coffers. Nazari v. State, 561
S.W.3d 495, 507 (Tex. 2018) (citing Reata, 197 S.W.3d at 375–76). Because Redburn’s
contingent counterclaim does not fall within the ambit of Reata, we sustain the City’s
issue.
V. CONCLUSION
We reverse and render a judgment dismissing Redburn’s claim for want of
jurisdiction.
GINA M. BENAVIDES
Justice
Delivered and filed on the
1st day of April, 2021.
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