Opinion issued August 20, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00515-CV
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KOSOCO, INC., Appellant
V.
METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1010709
MEMORANDUM OPINION
Appellant, Kosoco, Inc., challenges the trial court’s order dismissing, for
lack of jurisdiction, its inverse-condemnation claims 1 against appellee,
Metropolitan Transit Authority of Harris County (“Metro”). In three issues,
Kosoco contends that the trial court erred in dismissing its lawsuit.
We affirm.
Background
In its original petition, Kosoco alleged that, since 1980, it has operated a
gasoline station and convenience store at 2102 North Main Street in Houston,
Texas (the “Property”). In 2010, Metro began construction of a light rail line on
North Main Street (the “North Line”). During the first stage of construction, the
relocation of underground utility lines resulted in “numerous water outages lasting
anywhere from hours to days.” Metro also installed an “electric rail pole” in front
of Kosoco’s “fuel price LED sign, preventing customers from seeing it.” And
when Metro subsequently closed portions of North Main Street to conduct
demolition, it “effectively closed off [Kosoco’s] business from all customers that
use North Main,” requiring its “downtown customers” to “travel an additional 28
blocks” to access the Property.
Kosoco further alleged that the “construction caused total, temporary
restrictions of access” to the Property and the “final construction will result in a
1
See TEX. CONST. art. I, § 17.
2
partial, but permanent restriction of access” to the Property. “As a result of these
closures, demolition, and construction[,] the vehicle traffic has been greatly
reduced,” its business has been “destroyed,” and two of its commercial tenants
have gone out of business, resulting in lost rents to Kosoco. Kosoco sued Metro
for inverse condemnation, asserting that Metro’s construction of the North Line
resulted in a “taking, damaging, or destroying” of its Property for public use
without adequate compensation.2
In its Motion to Dismiss for Lack of Jurisdiction, Metro argued that Kosoco
had not alleged a cause of action for which Metro’s governmental immunity had
been waived because the facts underlying Kosoco’s claims did not establish a
“material and substantial impairment of access.” It asserted that to the extent that
“third-party contractors negligently interfered with access to the property or
disrupted water and electric service, such acts [were] not attributable to Metro.”
Metro attached to its motion the affidavit of its representative, Michael Bruce
Krantz, who testified as follows:
• The Property is located at the northeast corner of North Main and
Paschall between Hogan and Quitman. It is on the block bounded
by North Main on the west, Paschall on the south, Freeman on the
east, and Henry on the north.
• Access to the Property is available by means of four driveways:
one that provides access to and from North Main, two that provide
access to and from Paschall, and one that provides access to and
2
See id.
3
from Freeman. The configuration of these driveways was not
altered by the construction of the North Line.
• Prior to the construction of the North Line, portions of North Main,
including the segment between Hogan and Quitman Street,
consisted of three ten-foot-wide southbound lanes and three ten-
foot-wide northbound lanes.
• Following the construction of the North Line, that segment of
North Main generally has a single lane for northbound vehicular
traffic, a single lane for southbound vehicular traffic, and a twenty-
six-foot-wide light rail guideway in the middle of the street.
Between Paschall Street and Henry Street, the lanes for vehicular
traffic are sixteen feet wide.
• Prior to construction of the North Line, vehicular traffic on North
Main, Paschal, and Freeman could access the Property by turning
left or right into the driveways abutting those streets. Following
construction, the only change in access to the Property is that
vehicles traveling southbound on North Main are no longer able to
turn directly into the Property. However, such vehicles can still
travel to the Property by (i) making a u-turn at Hogan and traveling
four blocks north on North Main or (ii) turning left at Hogan and
traveling east for one block, turning left on Freeman, and traveling
four blocks north to the Property.
• Prior to construction of the North Line, vehicles could exit the
Property by turning right or left out of any of the driveways onto
the abutting street. Following construction, the only change in
access from the Property is that vehicles are not able to turn
directly into the southbound lane of North Main. However,
vehicles can still access that lane by (i) heading north three blocks
on North Main to Quitman and making a u-turn or (ii) going south
on Freeman to Hogan, turning right and heading west on Hogan for
one block, and making a left turn into the southbound lane of
North Main.
4
Metro also attached to its motion the affidavit of Michelle Solomon, an
investigator it had hired to “observe and record” traffic patterns and “the types and
numbers of vehicles entering and exiting” the Property; Solomon’s daily logs and
photographs; a copy of the deposition transcript of Louis Namgoong, Kosoco’s
corporate representative; roadway engineering diagrams; and a copy of the contract
governing construction of the North Line.
In its response to Metro’s motion, Kosoco asserted that “[t]he doctrine of
sovereign immunity does not apply to inverse condemnation cases.” It also
asserted that the “undisputed facts relevant to [the trial court’s] jurisdiction” were
that before construction of the North Line began, North Main Street had “three
lanes, each 30 [sic] feet wide, northbound and another three lanes, each 30 [sic]
feet wide southbound.” And, after construction of the North Line, the section of
North Main Street adjacent to the Property now “consists of a single lane, 16 feet
wide,” which has rendered access to the Property “difficult.”
Kosoco attached to its response a copy of the deposition transcript of its
corporate representative, Namgoong, who testified that the “rail structure in the
middle of North Main Street” has caused a “reduced amount of navigable area
for . . . delivery drivers, delivery trucks, grocery trucks, [and] beer trucks.”
Kosoco also attached a report from David Hall, a traffic engineer, who opined that
since the “final construction of the center median on North Main Street for the
5
[North Line],” access to the Property, although “not impossible,” has been
rendered “difficult.” Hall also noted that the “[i]ntersection and driveway access
to/from North Main Street has been blocked, which impairs and makes site access
movements difficult.”
Standard of Review
A motion to dismiss for lack of jurisdiction is the “functional equivalent” of
a plea to the jurisdiction. Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.—
Houston [14th Dist.] 2004, no pet.); see Willie v. Comm’n for Lawyer Discipline,
No. 01-11-00428-CV, 2012 WL 761241, at *3 (Tex. App.—Houston [1st Dist.]
Mar. 8, 2012, no pet.) (mem. op.). A plea to the jurisdiction is a dilatory plea that
seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cnty. v.
Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Villarreal v. Harris Cnty., 226 S.W.3d
537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We review de novo a
trial court’s ruling on a jurisdictional plea. See Ben Bolt-Palito Blanco Consol.
Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212
S.W.3d 320, 323 (Tex. 2006); City of Hous. v. Vallejo, 371 S.W.3d 499, 501 (Tex.
App.—Houston [1st Dist.] 2012, pet. denied).
A plea to the jurisdiction may be utilized to challenge whether the plaintiff
has met its burden of alleging jurisdictional facts or to challenge the existence of
jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
6
217, 226–27 (Tex. 2004). When a plea to the jurisdiction challenges the pleadings,
we determine whether the pleader has alleged facts that affirmatively demonstrate
the trial court’s jurisdiction. Id. Review of a plea challenging the existence of
jurisdictional facts mirrors that of a matter-of-law summary-judgment motion.
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);
City of Hous. v. Guthrie, 332 S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.]
2009, pet. denied) (“[T]his standard generally mirrors that of a summary judgment
under Texas Rule of Civil Procedure 166a(c). . . . By requiring the [political
subdivision] to meet the summary judgment standard of proof . . . , we protect the
plaintiffs from having to put on their case simply to establish jurisdiction.”); see
also TEX. R. CIV. P. 166a(c). A court may consider evidence as necessary to
resolve a dispute over the jurisdictional facts, even if the evidence “implicates both
the subject matter jurisdiction of the court and the merits of the case.” Miranda,
133 S.W.3d at 226. We take as true all evidence favorable to the nonmovant and
we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Id. at 227; see also Heckman v. Williamson Cnty., 369 S.W.3d 137, 150
(Tex. 2012). If the defendant meets its burden to establish that the trial court lacks
jurisdiction, the plaintiff is then required to show that there is a disputed material
fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228. If the
evidence raises a fact issue regarding jurisdiction, the plea cannot be granted and a
7
fact finder must resolve the issue. Id. at 227–28. On the other hand, if the
evidence is undisputed or fails to raise a fact issue, the plea must be determined as
a matter of law. Id.
Governmental Immunity
In its first and second issues, Kosoco argues that the trial court erred in
dismissing its inverse-condemnation claims because Metro, temporarily, “totally
impaired” access to the Property during its construction of the North Line and,
permanently, “partial[ly] impair[ed]” access to the Property by “chang[ing] the
configuration” of North Main Street, rendering access to the Property “difficult.”
And Kosoco asserts that the doctrine of governmental immunity “does not apply to
inverse condemnation cases.”
The Texas Constitution prohibits a governmental unit from taking private
land for public use as follows: “No person’s property shall be taken, damaged or
destroyed for, or applied to public use, without adequate compensation being
made, unless by the consent of such person.” TEX. CONST. art. I, § 17. A
landowner whose property has been taken may bring an inverse condemnation
proceeding to recover compensation for his loss. Hearts Bluff Game Ranch, Inc. v.
State, 381 S.W.3d 468, 476 (Tex. 2012); City of Hous. v. Mack, 312 S.W.3d 855,
861 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Generally, the doctrine of
governmental immunity shields a governmental entity from suit, and, in the
8
absence of a waiver of immunity, a trial court has no subject matter jurisdiction
over a suit against a governmental entity. See Tex. Dep’t of Transp. v. Jones, 8
S.W.3d 636, 638 (Tex. 1999); City of Hous. v. Hous. Firefighters’ Relief &
Retirement Fund, 196 S.W.3d 271, 277 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). However, as asserted by Kosoco, the doctrine of governmental immunity
does not shield governmental entities from valid takings claims. Guthrie, 332
S.W.3d at 591–92 (citing TEX. CONST. art. I, § 17; Gen. Servs. Comm’n v. Little
Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)). Determining whether a
taking has occurred is a question of law. Hearts Bluff, 381 S.W.3d at 477.
“To demonstrate that a constitutional inverse condemnation has occurred, [a]
landowner must show that (1) the State intentionally performed certain acts in the
exercise of its lawful authority (2) that resulted in a taking of property (3) for
public use.” Burris v. Metro. Transit Auth. of Harris Cnty., 266 S.W.3d 16, 20
(Tex. App.—Houston [1st Dist.] 2008, no pet.) (citations omitted). To show a
compensable taking, a landowner must establish that a “material and substantial
impairment” of access to the property occurred. State v. Heal, 917 S.W.2d 6, 10
(Tex. 1996). A landowner shows a material and substantial impairment of access
by establishing (1) a total, temporary restriction of access; (2) a partial, permanent
restriction of access; or (3) a partial, temporary restriction of access due to illegal
or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); Burris,
9
266 S.W.3d at 20. Whether there has been a material and substantial impairment
to property as a result of a taking is a question of law. Schmidt, 867 S.W.2d at 777.
Metro, in its motion, argued that Kosoco had not alleged a material and
substantial impairment of access to the Property because a “landowner is not
entitled to compensation simply because a public improvement project results in
decreased traffic volume adjacent to its property”; “modifications that result in
drivers having to take a more circuitous route to reach a property do not give rise
to a taking”; and “Kosoco has not been denied reasonable access” since “customers
and vendors remain able to access the Property for its intended use.”
Here, Krantz testified that access to the Property is available by means of
four driveways and the configuration of these driveways “was not altered by the
construction of the North Line.” Following construction, the only change in access
to the Property is that vehicles traveling southbound on North Main are no longer
able to turn directly into the Property and vehicles at the Property are not able to
turn directly into the southbound lane of North Main. And Krantz noted that
vehicles traveling southbound on North Main can still access the Property by
traveling an alternative route.
Moreover, Solomon testified that during her visits to the Property, she
observed “[p]assenger cars, trucks, sport utility vehicles, delivery trucks, trucks
pulling trailers, a full-sized fire truck, and small and mid-sized buses enter[ing] and
10
exit[ing] the Property.” “No vehicles experienced any difficulty entering or
exiting” the Property. And Solomon noted that the “majority of vehicles entering
and exiting the Property use the North Main and Paschall driveways.”
It is well-settled that diversion of traffic, diminished exposure to traffic, or
altered accessibility to a roadway does not constitute a material and substantial
impairment of access. See State v. Petropoulos, 346 S.W.3d 525, 532 (Tex. 2011).
“[A]n abutting property owner does not have a vested interest in the traffic that
passes in front of his property.” Schmidt, 867 S.W.2d at 774 (quoting DuPuy v.
City of Waco, 396 S.W.2d 103, 109 (Tex. 1965)); see also State Highway Comm’n
v. Humphreys, 58 S.W.2d 144, 145 (Tex. Civ. App.—San Antonio 1933, writ
ref’d) (noting “highways are primarily for the benefit of the traveling public, and
are only incidentally for the benefit of those who are engaged in business along its
way” and holding business owners necessarily assume risk new roads, which may
“largely take away the traveling public,” may be built). If one access point to a
property is closed, access is not materially and substantially impaired if another
access point on a public street remains unaffected. City of San Antonio v. TPLP
Office Park Props., 218 S.W.3d 60, 66 (Tex. 2007); Burris, 266 S.W.3d at 22–23
(although property owner may suffer diminished property value due to adjacent
road closure, compensable taking has not occurred if property owner retains
reasonable access to remaining adjacent road).
11
The uncontroverted evidence in this case shows that Metro’s construction of
the North Line did not change the four driveways providing access to the Property.
Both ingress and egress remain available via the northbound lane of North Main
Street, along with two driveways accessing Paschall Street and one accessing
Freeman Street. The only change is that customers and vendors are no longer able
to enter the Property directly from, or exit directly onto, the southbound lane of
North Main. But the Property is still accessible via alternative routes. Thus,
Kosoco cannot establish that it has been affected by a “material and substantial”
impairment of access to its Property. See TPLP Office Park, 218 S.W.3d at 66;
Burris, 266 S.W.3d at 24; see also City of Waco, 396 S.W.2d at 109 (explaining
landowner entitled to compensation if public improvement destroys “all reasonable
access” to property; however, no compensable taking exists if landowner has
reasonable access to property after construction of public improvement).
In support of its assertion that Metro materially and substantially impaired
access to the Property by rendering access “difficult,” Kosoco relies on City of
Waco v. Texland Corporation, 446 S.W.2d 1 (Tex. 1969). Texland sued the City
of Waco for inverse condemnation, alleging that the City’s construction of a
viaduct had materially and substantially impaired access to its commercial
warehouse. Id. at 2. The viaduct was supported by piers, one of which was
located “almost directly” in front of Texland’s loading dock and doors. Id. at 4.
12
Witness testimony showed that although it was “not impossible” for the large
transport trucks serving Texland to maneuver in the area in front of the docks, it
was “difficult,” and in “some places” it was “almost impractical to get to.” Id.
The Texas Supreme Court held that these facts established a material and
substantial impairment of access. Id.
In Burris, however, this Court considered, in light of Texland, whether
Metro’s construction of a light rail line on San Jacinto Street in Houston resulted in
a material and substantial interference with access to an adjacent commercial
property. 266 S.W.3d at 18–19. Prior to construction of the rail line, customers
had access to the plaintiffs’ property via two driveways. Id. at 18. After
construction, Metro closed one driveway and changed the other driveway to egress
only. Id. The plaintiffs sued Metro for inverse condemnation, arguing that it had
materially and substantially impaired access to their property because there was no
longer ingress from San Jacinto Street, as it was completely blocked by the rail
line, and the only ingress was from a side street. Id. at 20. The plaintiffs, based in
part on the reasoning of the supreme court in Texland, asserted that the “fact that
some access to the Property remained from the side street . . . [was] immaterial.”
The plaintiffs noted that in Texland, the court concluded that the access to the
property had been impaired, even though ingress was not totally denied. Id. at 21.
13
The Burris plaintiffs argued that the “taking” in their case was even more
egregious than the taking in Texland because they had “no ingress whatsoever
from their frontage on San Jacinto.” Id. However, this Court noted that the
plaintiffs presented no evidence that their customers and vendors could not access
their property. Id. at 23. In fact, their customers and vendors still had ingress to
the property via a side street and still had egress onto San Jacinto Street. Id. at 24.
We then concluded that the closure of the ingress from San Jacinto Street did not
constitute a material and substantial impairment. Id.
Here, likewise, Kosoco did not present any evidence that its customers and
vendors cannot access the Property. See id. And the uncontroverted evidence
shows that the Property is still accessible via the side streets. See id.; TPLP Office
Park Props., 218 S.W.3d at 66–67 (noting “issue of whether reasonable access
remains should not be fragmented to focus only on the closed access point without
considering remaining access points”). Further, both ingress to and egress from
the Property is available via North Main Street for northbound traffic.
Kosoco asserts that a material and substantial impairment of access is
demonstrated by the fact that southbound traffic on North Main Street is now
forced to travel several blocks to reach the Property. However, as noted by the
supreme court in TPLP Office Park Properties, “[c]losing an access point and
merely causing diversion of traffic or circuity of travel does not result in a
14
compensable taking.” 218 S.W.3d at 66–67; see also State v. Momin Props., Inc.,
409 S.W.3d 1, 8–9 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding
closure of access road at railroad tracks not compensable because closure merely
required traffic to travel more circuitous route to reach gas station or cross railroad
tracks); State v. Bhalesha, 273 S.W.3d 694, 698–99 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (“A property owner cannot recover damages when traffic is
merely required to travel a more circuitous route to reach his property.”). Thus, the
mere change in the circuity of travel for some of the traffic to the Property does not
constitute a material and substantial impairment of access.
Further, difficult or inconvenient access during construction does not
constitute a material and substantial impairment of access. See State v. Bristol
Hotel Asset Co., 293 S.W.3d 170, 173 (Tex. 2009). Thus, the temporary closure of
one of the roads abutting the Property during the construction of the North Line did
not constitute a material and substantial impairment of access. Moreover,
Kosoco’s own representative, Namgoong, testified that there “were no complete
100 percent street closures” during construction.
Taking as true all evidence favorable to Kosoco, as the non-movant, and
indulging every reasonable inference in its favor, we conclude that Kosoco has not
stated a valid takings claim. See Gen. Servs. Comm’n, 39 S.W.3d at 599
(dismissing inverse-condemnation claim for want of jurisdiction because
15
allegations did not state takings claim). Because Kosoco has not stated a valid
takings claim, Metro, as a governmental entity, is immune from Kosoco’s suit and
the trial court had no subject matter jurisdiction over the suit. See Jones, 8 S.W.3d
at 638; Guthrie, 332 S.W.3d at 591–92. Accordingly, we hold that the trial court
did not err in dismissing, for lack of jurisdiction, Kosoco’s claims for inverse
condemnation.
We overrule Kosoco’s first and second issues.
Having concluded that Kosoco has not alleged a valid takings claim, we do
not reach its third issue, in which it argues that Metro is “constitutionally
responsible for the acts of its contractors performing construction work” because it
knew that certain “acts” would result in a “compensable denial of access to private
property.” See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Brown.
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Kosoco, Inc. v. Metropolitan Transit Authority of Harris County
Combined Opinion