City of Houston v. Young Song and Ginger Song D/B/A WheelBurger, Gene Nazlankin D/B/A Silber Road Auto and World Catering, Inc.

Reversed and Rendered and Memorandum Opinion filed January 24, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-00903-CV

CITY OF HOUSTON, Appellant
V.

YOUNG SONG AND GINGER SONG D/B/A WHEELBURGER, GENE
NAZLANKIN D/B/A SILBER ROAD AUTO, AND WORLD CATERING,
INC., Appellees

On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 994712

MEMORANDUM OPINION

In this interlocutory appeal, the City complains that the trial court erred in
denying the City‟s plea to the jurisdiction because appellees have not alleged an
inverse condemnation claim for which governmental immunity has been waived
and do not have standing to seek injunctive relief based on the City‟s construction
of medians within a public roadway near appellees‟ businesses. Because
appellees‟ claims are barred by governmental immunity, we conclude the trial
court erred in denying the City‟s plea to the jurisdiction. We reverse and render
judgment dismissing appellees‟ claims against the City for want of jurisdiction.

Background

Appellees own three businesses located on Silber Road near the intersection
of Northampton Way and across the street from a Walmart store in Houston,
Texas. In August 2010, Walmart submitted a development plan to the City‟s
engineer‟s office proposing to construct medians on Silber Road near the entrance
to the Walmart store. The plan was approved, and the medians were constructed
around May 2011. The medians prohibit northbound traffic from turning left onto
Northampton Way or into appellees‟ driveways. Appellees‟ businesses may no
longer be accessed from that route; however, alternative routes are available to
reach each of appellees‟ businesses.

Symonds Investment Company owns property on Northampton Way.
Symonds filed suit against the City in June 2011, alleging the medians “caus[ed]
partial and permanent restriction of access to [Symonds‟s] properties . . .
result[ing] in a taking of private property for public purpose without
compensation” and seeking injunctive relief or, in the alternative, monetary
damages. The petition filed by Symonds was supplemented six times, and each
appellee joined the lawsuit. The fourth supplemental petition additionally alleged
that construction of the medians “creat[ed] a material and substantial impairment
of access to the [subject] properties.” The sixth supplemental petition added a
nuisance claim. The City filed a plea to the jurisdiction asserting governmental
immunity for the inverse condemnation claim and lack of standing for injunctive
relief. After a hearing, the trial court granted the plea to the jurisdiction only as to

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Symonds, and denied the plea as to appellees.1 The City filed this interlocutory
appeal pursuant to Civil Practice and Remedies Code section 51.014(a)(8). See
Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 515 (Tex. 2012) (“[A]
governmental entity may challenge the denial of a plea to the jurisdiction in an
interlocutory appeal.”) (citing Tex. Civ. Prac. & Rem. Code § 51.014).

Discussion

The City argues that (1) appellees did not allege a compensable inverse
condemnation claim against the City for which governmental immunity would be
waived; (2) undisputed facts establish that the medians did not cause material and
substantial impairment to appellees‟ properties as required for an inverse
condemnation claim; (3) appellees‟ nuisance claim is subsumed into their takings
claim because both claims are based on the same underlying facts; and
(4) appellees lack standing to seek injunctive relief because they assert only a
generalized grievance.

Generally, a governmental entity such as the City of Houston is immune
from tort liability. City of Galveston v. State, 217 S.W.3d 466, 468 (Tex. 2007).
Governmental immunity from suit defeats a trial court‟s subject matter jurisdiction
and thus is properly asserted in a plea to the jurisdiction. See Univ. of Texas M.D.
Anderson Cancer Ctr. v. Baker, 14-11-01037-CV, 2012 WL 6014608, at *2 (Tex.
App.—Houston [14th Dist.] Dec. 4, 2012, no. pet. h.). A plea challenging the trial
court‟s jurisdiction raises a question of law that is reviewed de novo. Johnson v.
City of Bellaire, 352 S.W.3d 260, 263 (Tex. App.—Houston [14th Dist.] 2011, pet.
filed). We first look to the pleadings to determine if the pleader has alleged facts
that affirmatively demonstrate the court‟s jurisdiction to hear the cause. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W. 3d 217, 226 (Tex. 2004). We construe
1
Symonds is not a party to this appeal.

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the pleadings liberally in favor of the plaintiffs, look to the pleader‟s intent, and
accept as true the factual allegations in the pleadings. Id. The allegations found in
the pleadings may affirmatively demonstrate or negate the court‟s jurisdiction.
City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

I. Governmental Immunity from Inverse Condemnation and
Nuisance Claims
In its first issue, the City argues appellees did not allege facts establishing a
valid inverse condemnation claim, for which governmental immunity would have
been waived, and appellees‟ nuisance claim is subsumed within appellees‟ takings
claim because it is dependent on the facts that form the basis for the inverse
condemnation claim.

Inverse Condemnation Claim. The Texas Constitution provides a clear
and unambiguous waiver of immunity from suit for inverse condemnation claims
under article I, section 17 (Takings Clause).2 Tex. Const. art. I, § 17(a); City of

2
Article I, section 17(a) of the Texas Constitution provides 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, and only if the taking, damage, or destruction is for:
(1) the ownership, use, and enjoyment of the property, notwithstanding an
incidental use, by:
(A) the State, a political subdivision of the State, or the public at
large; or
(B) an entity granted the power of eminent domain under law; or
(2) the elimination of urban blight on a particular parcel of property.
Tex. Const. art. I, § 17(a). The italicized language was added to this provision by a 2009
amendment. Compare Tex. Const. art. I, § 17 (2007) (amended 2009) with Tex. Const. art. I,
§ 17. Though the amended version applies to the case under review, the amendment did not
change the language in effect prior to this amendment; instead, the amendment added new
language. Compare Tex. Const. art. I, § 17 (2007) (amended 2009) with Tex. Const. art. I, § 17.
Because we conclude that plaintiffs have not pleaded an inverse condemnation claim under the
requirements of the prior language, we need not and do not address the effect, if any, of the
addition of the new language on the essential elements of an inverse condemnation claim.

4
Dallas v. Stewart, 361 S.W.3d 562, 568 (Tex. 2012). Therefore, governmental
immunity does not shield the City from an action for compensation under the
Takings Clause. See Tex. Const. art. I, § 17; State v. Holland, 221 S.W.3d 639,
643 (Tex. 2007). Generally, governmental entities compensate property owners
before appropriating their property, either by paying a mutually agreed price or by
paying the value as determined in a statutory condemnation proceeding. Westgate,
Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). If, however, these entities
appropriate property without paying adequate compensation, the property owner
may recover the resulting damages through an inverse condemnation claim.3
Stewart, 361 S.W.3d at 567; Westgate, 843 S.W.2d at 452. To properly assert an
inverse condemnation claim against a governmental entity, a party must plead that
the governmental entity intentionally performed an act in the exercise of its lawful
authority that resulted in the taking, damaging, or destruction of the party‟s
property for public use.4 Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39
S.W.3d 591, 598 (Tex. 2001); Steele v. City of Houston, 603 S.W.2d 786, 790B91
(Tex. 1980). Whether alleged facts are enough to constitute an inverse
condemnation is a question of law. Gen. Servs. Comm’n, 39 S.W.3d at 598.
Appellees do not allege the City has physically taken appellees‟ property. Instead,
appellees seem to argue that, because their northbound customers are now unable
to turn west from Silber Road onto their property, the City has taken their property
without just compensation.

3
Condemnation proceedings are initiated by the government to acquire property. See
Stewart, 361 S.W.3d at 567. Inverse condemnation suits are initiated by a landowner seeking
adequate compensation for the property. See id.
4
Physical takings occur when a governmental authority physically occupies, destroys, or
damages an individual‟s property. Westgate, 843 S.W.2d at 452; Grunwald v. City of Castle
Hills, 100 S.W.3d 350, 353 (Tex. App.—San Antonio 2002, no pet.) A taking may also occur
when the government undertakes some physically non-intrusive action which may have an
unconstitutional impact on real property rights. See Westgate, 843 S.W.2d at 452.

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 The Texas Supreme Court has acknowledged that “an abutting property
owner does not have a vested interest in the traffic that passes in front of his
property.” State v. Schmidt, 867 S.W.2d 769, 774 (Tex. 1993) (citing State
Highway Comm’n v. Humphreys, 58 S.W.2d 144, 145 (Tex. Civ. App.—San
Antonio 1933, writ ref‟d)); see also Dupuy v. City of Waco, 396 S.W.2d 103, 109
(Tex. 1965) (citing same). Thus, a property owner who has reasonable access to
his property after construction of a public improvement has no right to
compensation. State v. Heal, 917 S.W.2d 6, 10 (Tex. 1996); see also Schmidt, 867
S.W.2d at 774-75. However, diminished value resulting from impaired access is
compensable when access is materially and substantially impaired.5 State v.
Dawmar Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008) (citing City of Waco v.
Texland Corp., 446 S.W.2d 1, 2 (Tex. 1969)).

The “materially and substantially impaired test” acknowledges situations in
which “normal access remained reasonably available, but access for which the
property was specifically intended was rendered unreasonably deficient.” Heal,
917 S.W.2d at 10; Wilbert Family Ltd. P’ship v. Dallas Area Rapid Transit, 371
S.W.3d 506, 510 (Tex. App.—Dallas 2012, pet. dism‟d). However, access to
property is not materially and substantially impaired merely because the remaining
access points are less convenient. Heal, 917 S.W.2d at 11; Schmidt, 867 S.W.2d at
780; see also City of San Antonio v. TPLP Office Park Props., 218 S.W.3d 60,
66-67 (Tex. 2007) (“Closing an access point and merely causing diversion of
traffic or circuity of travel does not result in a compensable taking.”). We
determine as a matter of law whether appellees have alleged a material and

5
To show material and substantial impairment, the property owner must establish (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. Schmidt, 867 S.W.2d at 775
(citing City of Austin v. Ave. Corp., 704 S.W.2d 11, 13 (Tex. 1986)).

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substantial impairment of access. Heal, 917 S.W.2d at 9.

Appellees alleged in their first supplemental petition6:

In May of 2011, against the will of [appellees, the City] willfully and
negligently commenced construction of curbed medians within Silber
Road alongside [appellees‟] properties, preventing and causing partial
and permanent restriction of access to [appellees‟] properties. Such
restriction has resulted in a taking of private property for public
purpose without compensation.

Appellees supplemented their petition to complain that the City violated article I,
section 17 of the Texas Constitution by “intentionally tak[ing], damag[ing], or
destroy[ing] a private property right for public purpose without
compensation[,] . . . creating a material and substantial impairment of access to the
properties.” Appellees did not allege that any access points to their properties were
blocked or closed as a result of the City constructing medians “within Silber
Road.” Nor did they allege that the road abutting their properties was closed. See
Schmidt, 867 S.W.2d at 780 (citing Lee v. City of Stratford, 81 S.W.2d 1003, 1004
(Tex. Comm‟n App. 1935) (noting plaintiff was not entitled to damages due to
city‟s abandonment of streets near his property when road abutting his property
was not closed and plaintiff retained direct access to road from his property, even
though routes away from his property were “more circuitous and difficult”). In
substance, appellees complain only of the City‟s construction of medians within a
public roadway.

The American Heritage Dictionary defines “median strip” as “[t]he dividing
area, either paved or landscaped, between opposing traffic on some highways.”
The American Heritage Dictionary 751 (2d coll. ed. 1991). It similarly defines
“median,” among other things, as “located in . . . the middle.” Id. As alleged, the
6
This petition added the Songs as plaintiffs. Subsequently filed supplemental petitions
added the other appellees as plaintiffs.

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“curbed medians” are “within Silber Road,” and, as defined, a median is located in
the middle of the road. As a matter of law, the medians could not restrict access by
blocking the entrances to appellees‟ properties. Thus, appellees did not allege the
intended access to their properties was rendered unreasonably deficient as a result
of the City‟s construction of the medians. See Heal, 917 S.W.2d at 10; see also
Wilbert Family Ltd. P’ship, 371 S.W.3d at 510. Appellees have not alleged a
compensable material and substantial impairment of access to their properties. See
Heal, 917 S.W.2d at 11. Appellees‟ pleadings thus affirmatively negate the trial
court‟s jurisdiction over this issue.7

Nuisance Claim. The City also argues it retains immunity from appellees‟
nuisance claim because the claim is dependent on the same facts that form the
basis of appellees‟ inverse condemnation claim. Nuisance liability against a
municipality “arises only when governmental immunity is clearly and
unambiguously waived.” City of Dallas v. Jennings, 142 S.W.3d 310, 316 (Tex.
2004). “[A] city may be held liable for a nuisance that rises to the level of a
constitutional taking” under article I, section 17 of the Texas Constitution.8 Id.
We already have concluded that appellees failed to allege facts that constitute an
inverse condemnation under article I, section 17 for purposes of waiving
7
Because we conclude the pleadings affirmatively negate the trial court‟s jurisdiction and
that these defects are incurable, we do not remand for an opportunity to replead. See Johnson,
352 S.W.3d at 264. Likewise, we do not consider the evidence submitted by the parties because
it is not necessary to do so in resolving the jurisdictional issues. See id.
8
Appellees‟ Sixth Supplemental Petition added the nuisance claim as follows in relevant
part:
[T]he City of Houston‟s violation of [sic] [Article I, Section 17] in that the actions
of the City of Houston have intentionally taken, damaged or destroyed a private
property right for public purpose without compensation. And, [appellees]
supplement their previous petitions with their claim for the nuisance created by
the City of Houston in removing the yellow stripes on Silber [Road], and
replacing them with a curb capable of turning automobile traffic directly to Wal-
Mart and away from [appellees‟] businesses.

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governmental immunity. Because appellees do not assert any other potential
waiver of liability, we conclude the City is immune from appellees‟ nuisance
claim. See id.; see also City of Arlington v. State Farm Lloyds, 145 S.W.3d 165,
168 (Tex. 2004) (holding governmental immunity was not waived when plaintiff
had not demonstrated a valid takings claim or alleged any applicable waiver of
immunity for its nuisance claim); City of Van Alstyne v. Young, 146 S.W.3d 846,
851 (Tex. App.—Dallas 2004, no pet.) (“As in Jennings, the sole waiver of
immunity asserted by the [plaintiffs] in this case is under Article I, section 17 of
the Texas Constitution. . . . Because the City showed it was not liable under
Article I, section 17, the City retains its immunity from the [plaintiffs‟] claim for
non-negligent nuisance.”).

For the foregoing reasons, we sustain the City‟s first issue.

II. Standing to Seek Injunctive Relief

In its second issue, the City alleges appellees lack standing to seek injunctive
relief because they have not demonstrated a particularized injury distinct from any
sustained by the general public.9 “The general test for standing in Texas requires
that there „(a) shall be a real controversy between the parties, which (b) will be
actually determined by the judicial declaration sought.‟” Tex. Ass’n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Concerned Cmty. Involved
Dev., Inc. v. City of Houston, 209 S.W.3d 666, 670 (Tex. App.—Houston [14th
Dist.] 2006, pet. denied). Unless standing is conferred by statute, 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.

9
Appellees counter that, since the trial court did not grant injunctive relief, this issue is
not before us. However, standing, as a component of subject matter jurisdiction, may be raised
for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46
(Tex. 1993).

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2007); Concerned Cmty., 209 S.W.3d at 670. It is the plaintiff‟s burden to allege
facts affirmatively demonstrating the trial court‟s jurisdiction to hear the case. Tex.
Ass’n of Bus., 852 S.W.2d at 446; Concerned Cmty., 209 S.W.3d at 670. Standing
is a question of law subject to de novo review. Heckman v. Williamson County,
369 S.W.3d 137, 150 (Tex. 2012); Concerned Cmty., 209 S.W.3d at 670.

All enhancements, whether public or private, are rarely achieved without
some inconvenience. Concerned Cmty., 209 S.W.3d at 671. If public authorities
could never build, repair, enhance, or alter a street or highway without consulting
all “affected” property owners, permitting them to alter the design of the project, or
paying all persons along such thoroughfares for the inconvenience and disruption
occasioned by the construction, no public improvements would ever be made. Id.
at 671-72. Streets and highways are primarily for the benefit of the traveling
public, and only incidentally for the benefit of property owners along the way. Id.
at 672. The benefits which come and go from the changing currents of travel are
not matters in respect to which any individual has any vested right against the
judgment of the public authorities. Id.; see also Schmidt, 867 S.W.2d at 781 (“The
diversion of traffic [and] inconvenience of access . . . are, by their nature . . .
shared by the entire area . . . . [Certain landowners] may be impacted more
severely than some others in the area, but the difference is one of degree and not of
kind.”).

Here, appellees alleged that they were entitled to an injunction to prevent the
City from “continued construction of curbed medians within Silber Road and
alongside [appellees‟ p]roperties and to enjoin the City . . . to make curb cuts as
prior to May 8, 2011” on the grounds that the City (1) has “no right to prevent
access to [appellees‟ p]roperties,” (2) “is depleting the assets and estate of
[appellees] by preventing access to [appellees‟] propert[ies],” and (3) has “shown

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no regard whatsoever for the property rights of [appellees].” Appellees do not
identify any property interest other than an alleged unconstitutional inverse
condemnation of property prohibited by article I, section 17 of the Texas
Constitution. See Concerned Cmty., 209 S.W.3d at 672. As set forth above,
appellees have failed to allege facts that constitute an inverse condemnation under
article I, section 17. Therefore, appellees have failed to allege any particularized
injury distinct from that suffered by the public at large. Id. Accordingly, we
sustain the City‟s second issue.

The trial court‟s order denying the City‟s plea to the jurisdiction is reversed,
and judgment is rendered dismissing appellees‟ suit for lack of jurisdiction.

/s/ Martha Hill Jamison
Justice

Panel consists of Justices Frost, Christopher, and Jamison.

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