Keith Redburn v. Charmelle Garrett, Individually and as City Manager of the City of Victoria, Texas and Lynn Short, Individually and as Director of Public Works of the City of Victoria, Texas and City of Victoria, Texas

NUMBER 13-12-00215-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KEITH REDBURN, Appellant,

v.

CHARMELLE GARRETT,
INDIVIDUALLY AND AS
CITY MANAGER OF THE
CITY OF VICTORIA, TEXAS,
AND LYNN SHORT, INDIVIDUALLY
AND AS DIRECTOR OF
PUBLIC WORKS OF THE
CITY OF VICTORIA, TEXAS,
AND THE CITY OF VICTORIA,
TEXAS, Appellees.

On appeal from the 377th District Court
of Victoria County, Texas.

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Rodriguez and Longoria
 Memorandum Opinion on Rehearing by Justice Longoria

By two issues, which we will address as three, appellant, Keith Redburn, appeals

the trial court’s order granting a plea to the jurisdiction filed by appellees, Charmelle

Garrett, individually and as the City Manager of the City of Victoria, Texas (“the City”),

Lynn Short, individually and as the Director of Public Works for the City, and the City,

and dismissing appellant’s claims against appellees with prejudice. As set forth herein,

we affirm in part and reverse and remand in part.

I. MOTION FOR REHEARING

On February 28, 2013, this Court issued a memorandum opinion reversing the

trial court’s order dismissing appellant’s claims against appellees and remanding the

case for further proceedings consistent with our decision. See Redburn v. Garrett, No.

13-12-00215-CV, 2013 Tex. App. LEXIS 1992 (Tex. App.—Corpus Christi Feb. 28,

2013, no pet. h.) (mem. op.). Subsequently, appellees filed a motion for rehearing,

arguing that this Court should withdraw its opinion and judgment and issue a new

opinion and judgment affirming the order of the trial court. See TEX. R. APP. P. 49.1.

Appellant has filed a response in opposition to the motion. See TEX. R. APP. P. 49.2 (“A

motion will not be granted unless a response has been filed or requested by the court.”).

For the reasons set forth below, we grant the motion for rehearing.

“The granting of a motion for rehearing does not always mean a change in the

court’s decision in the case.” Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d

607, 612 (Tex. 1996). “Appellate courts often grant rehearings to clarify or modify

opinions without changing the outcome of the case.” Id. “There will be instances where

[a motion for rehearing] is a helpful tool for focusing attention on an adverse

2
determination of an issue, and if it draws a responsive opinion from the court so much

the better.” Farrell v. State, 864 S.W.2d 501, 503 n.2 (Tex. Crim. App. 1993). In others

instances, a court may reach a different decision on rehearing. See F.F.P. Operating

Ptnrs., L.P. v. Duenez, No. 02-0381, 2004 Tex. LEXIS 778 (Tex. Sep. 3, 2004)

(affirming our decision), opinion withdrawn and substituted, 2006 Tex. LEXIS 1130 (Tex.

Nov. 3, 2006) (reversing our decision).

Above all, “[o]ur responsibility is . . . to reach the correct decision in each case.”

Leos v. State Employees Workers’ Compensation Div., 734 S.W.2d 341, 343 (Tex.

1987). A correct decision is “the sole aim and desire of the Court.” Port Arthur Rice

Milling Company v. Beaumont Rice Mills, 148 S.W. 283, 283 (Tex. 1912) (op. on reh’g).

“This is not to suggest we are infallible.” Sw. Bell Tel. Co., L.P. v. Mitchell, 276 S.W.3d

443, 450 (Tex. 2008) (Wallace, C.J., dissenting). “When there are compelling reasons

for doing so, we can, and should, reexamine our decisions.” Id. “[M]otions for rehearing

can mean . . . an opportunity to correct a mistake.” Edwards Aquifer Auth. v. Chem.

Lime, Ltd., 291 S.W.3d 392, 409 (Tex. 2009) (Brister, J., concurring). Accordingly,

“[t]his Court considers seriously and with full appreciation every helpful expression

presented in a motion for rehearing.” Anderson v. State, 138 Tex. Crim. 236, 237 (Tex.

Crim. App. 1940) (op. on reh’g).

We have “carefully considered” appellees’ motion and appellant’s response.

Heath v. Layne, 62 Tex. 686, 694 (Tex. 1888) (op. on reh’g). Both were “helpful to the

Court in arriving at a correct decision of the case in hand.” Beaumont Rice Mills, 148

S.W. at 283. Ultimately, we are persuaded that “the ends of justice [will] be best

subserved by setting aside the former judgment and [opinion] of this Court and granting

3
rehearing.” Id. at 283–84. Accordingly, we grant the motion for rehearing, withdraw our

prior memorandum opinion and judgment of February 28, 2013, and issue this

memorandum opinion and accompanying judgment in their place. See TEX. R. APP. P.

49.3.

II. BACKGROUND

This is a property dispute involving what the City alleges is a public improvement.

In 2004, appellant purchased property located at 902 W. Stayton Street, consisting of

two tracts of land with a tributary between Tracts 1 and 2. According to the City, at the

time appellant purchased the property, there was a pre-existing public improvement

(specifically, a concrete culvert) that was visible and apparent. The purported public

improvement is an outlet that conveys water from underground to above ground and

into a naturally-flowing tributary that exists on appellant’s property. The City alleges that

the culvert and the natural tributary are part of the City’s Municipal Separate Storm

Sewer System (“MS4”), which acts as a filter and extracts contaminants and pollutants

before the toxins reach potable water. The City alleges that even without the public

improvement, appellant’s downstream property is burdened by naturally-flowing water.

In 2006, appellant complained to the City about debris and water flowing onto his

property. In 2011, appellant plugged the culvert with five tons of concrete. The City

advised appellant that he was in violation of the City’s MS4 Ordinance, but the plug

remained. Subsequently, appellant filed suit against Garrett and Short for injunctive

relief to enjoin them from entering his property to repair the storm-water culvert on the

basis that the repairs would result in the City’s alleged trespassing by virtue of

discharged storm water.

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 The City filed an answer on behalf of Garrett and Short. The City also filed a

plea to the jurisdiction, requesting dismissal of the individual employees in accordance

with section 101.106 of the Texas Civil Practice and Remedies Code. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.106(e) & (f) (West 2011). In addition, the City filed a

petition in intervention, alleging three cross-claims against appellant: (1) an

enforcement action for statutory penalties in the amount of $5,000 per day pursuant to

Chapter 54 of the Texas Local Government Code, in addition to a request for court

costs and attorney’s fees, see TEX. LOC. GOV’T CODE ANN. §§ 54.012, 54.014, 54.015 &

54.107 (West 2008); (2) a claim for temporary and permanent injunctive relief to require

appellant to remove the plug and to prohibit future plugging; and (3) an action for

declaratory judgment with respect to the City’s easement and the public improvement,

see TEX. CIV. PRAC. & REM. CODE ANN. § 37.003 (West 2008).

The trial court held an evidentiary hearing on the City’s request for a temporary

injunction. Afterward, appellant was ordered to remove the concrete plug within seven

days of the court’s order. The parties were also ordered to mediation. Although

appellant removed the plug, the mediation was unsuccessful.

Subsequently, appellant amended his petition to name the City as a defendant

and to add an action for declaratory judgment. Appellant alleged that the City

constructed the culvert on and next to his property and that, periodically, the culvert

drains large amounts of storm water onto his property, causing significant and

irreparable damage. According to appellant, this constitutes an illegal trespass,

nuisance, and violation of section 11.086 of the Texas Water Code. See TEX. W ATER

CODE ANN. § 11.086 (West 2008).

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 Thereafter, the City supplemented its plea to the jurisdiction, arguing that

appellant could not establish subject matter jurisdiction for four reasons: (1) sovereign

immunity had not been clearly and unambiguously waived under Chapter 11 of the

Texas Water Code and doing so would violate public policy; (2) a declaratory judgment

action could not be used when subject matter jurisdiction does not exist for the claim

under the water code; (3) the City is immune from intentional tort claims pursuant to

section 101.057(2) of the Texas Civil Practice and Remedies Code, see TEX. CIV. PRAC.

& REM. CODE ANN. § 101.057(2) (West 2011); and (4) the Texas Supreme Court’s

decision in Heinrich prohibits claimants, such as appellant, from seeking to use the

judiciary to control governmental functions, see City of El Paso v. Heinrich, 284 S.W.3d

366 (Tex. 2009).

In addition, appellees argued that appellant could not establish subject matter

jurisdiction with regard to the claims against Garrett and Short for two reasons: (1)

claims against governmental employees in their individual capacities are barred by

section 101.106 of the Texas Civil Practice and Remedies Code, see TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(e) & (f); and (2) appellant has not alleged that the

employees committed any act or omission in their individual capacity.

In his response, appellant made three arguments. First, a governmental unit that

voluntarily intervenes in a suit waives immunity. Second, the City lacks immunity under

the Uniform Declaratory Judgment Act. And third, Garrett and Short can be sued

without the City because the threatened acts were illegal and therefore not official acts

of the City.

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 After holding a hearing, the trial court found in favor of appellees. The court

dismissed appellant’s claims against Garrett, Short, and the City, leaving the City’s

cross-claims against appellant as the only claims pending in the suit. Thereafter, the

City supplemented its cross-claims to allege a claim for easement by implied dedication

to the extent the culvert extends onto appellant’s property and the tributary. This

interlocutory appeal ensued. See id. § 51.014(a)(8) (West Supp. 2011).

III. STANDARD OF REVIEW

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction.

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000), overruled on other

grounds, Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). We

review the record de novo to determine whether the trial court has subject matter

jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). “We

consider only the evidence pertinent to the jurisdictional inquiry and do not weigh the

merits.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Also, we

construe the pleadings in favor of the plaintiff, accepting all his allegations as true.

Bland Indep. Sch. Dist., 34 S.W.3d at 555. To prevail, the defense must show that,

even accepting all of the plaintiff’s allegations as true, an incurable jurisdictional defect

remains on the face of the pleadings that deprives the trial court of subject matter

jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston

[14th Dist.] 2005, no pet.).

IV. APPLICABLE LAW

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction

over lawsuits in which the State or certain governmental units have been sued unless

7
the State consents to suit. Miranda, 133 S.W.3d at 224. In a suit against a

governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by

alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged in the

pleadings unless the defendant presents evidence to negate their existence. Miranda,

133 S.W.3d at 226–27. If a plea to the jurisdiction challenges the jurisdictional facts, we

consider relevant evidence submitted by the parties to resolve the jurisdictional issues

raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133

S.W.3d at 227); see Bland Indep. Sch. Dist, 34 S.W.3d at 555. If that evidence creates

a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco, 298

S.W.3d at 622; Miranda, 133 S.W.3d at 227–28. “However, if the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules

on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228. After

the defendant “asserts and supports with evidence that the trial court lacks subject

matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits

and subject matter jurisdiction are intertwined, to show that there is a disputed material

fact regarding the jurisdictional issue.” Id. This standard “generally mirrors” that of a

traditional motion for summary judgment. Id. When reviewing a plea to the jurisdiction

in which the pleading requirement has been met and evidence has been submitted to

support the plea that implicates the merits of the case, we take as true all evidence

favorable to the non-movant. Id.

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 V. CLAIMS AGAINST GARRETT AND SHORT

In his first issue, appellant contends that the trial court erred in dismissing his

claims against Garrett and Short. Appellees maintain that dismissal was mandatory

pursuant to subsection (f) of section 101.106 of the Texas Civil Practice and Remedies

Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). For the reasons set forth

below, we agree with appellees.

A. Applicable Law

“Section 101.106 is an immunity statute.” Newman v. Obersteller, 960 S.W.2d

621, 623 (Tex. 1997). Section 101.106’s election scheme provides as follows:

(a) The filing of a suit under this chapter against a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject matter.

(b) The filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against the
governmental unit regarding the same subject matter unless the
governmental unit consents.

(c) The settlement of a claim arising under this chapter shall immediately
and forever bar the claimant from any suit against or recovery from any
employee of the same governmental unit regarding the same subject
matter.

(d) A judgment against an employee of a governmental unit shall
immediately and forever bar the party obtaining the judgment from any
suit against or recovery from the governmental unit.

(e) If a suit is filed under this chapter against both a governmental unit and
any of its employees, the employees shall immediately be dismissed
on the filing of a motion by the governmental unit.

(f) If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if
it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in

9
 the employee’s official capacity only. On the employee’s motion, the
suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the
date the motion is filed.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. The Texas Supreme Court has explained

as follows:

Under the Tort Claims Act’s election scheme, recovery against an
individual employee is barred and may be sought against the
governmental unit only in three instances: (1) when suit is filed against
the governmental unit only, id. § 101.106(a); (2) when suit is filed against
both the governmental unit and its employee, id. § 101.106(e); or (3) when
suit is filed against an employee whose conduct was within the scope of
his or her employment and the suit could have been brought against the
governmental unit, id. § 101.106(f).

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008).

B. Discussion

In this case, appellant originally sued Garrett and Short both individually and in

their official capacities for injunctive relief to enjoin them from allegedly trespassing.

Thereafter, Garrett and Short invoked section 101.106(f) and sought dismissal of all

claims asserted against them. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).

The Texas Supreme Court has explained that there are two conditions to

subsection (f). Franka v. Velasquez, 332 S.W.3d 367, 381 (Tex. 2011). First, the

employee acted within the general scope of his employment. Id. Second, “suit could

have been brought under the Texas Tort Claims Act — that is, [the] claim is in tort and

not under another statute that independently waives immunity.” Id. If both conditions

are met, the suit “is considered to be against the employee in the employee’s official

capacity only, and the plaintiff must promptly dismiss the employee and sue the

government instead.” Id.

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 With respect to the first condition, Garrett and Short maintain that they were

“acting within the general scope of [their] employment.” TEX. CIV. PRAC. & REM. CODE

ANN. § 101.106(f); see Univ. of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d

544, 551 (Tex. 2010) (“The employee must show that the suit was filed against him

based on conduct within the general scope of his employment.”). However, trespass is

an intentional tort. See Hidalgo County v. Dyer, 358 S.W.3d 698, 704 (Tex. App.—

Corpus Christi 2011, no pet.) (“The intentional tort of trespass involves the intent to

commit an act which violates a property right or is practically certain to have that effect,

although the actor may not know the act he intends to commit is a violation of a property

right.”). And the Texas Supreme Court has cautioned that “[w]hether an employee’s

intentional tort is within the scope of employment is a more complex issue.” Franka,

332 S.W.3d at 381 n.63. In Franka, the Texas Supreme Court cited section 7.07 of the

Restatement (Third) of Agency with regard to the issue of whether an employee’s

intentional tort is within the scope of employment. Id. (citing RESTATEMENT (THIRD) OF

AGENCY § 7.07 (2006)). Under section 7.07(2) of the Restatement (Third) of Agency,

“[a]n employee’s act is not within the scope of employment when it occurs within an

independent course of conduct not intended by the employee to serve any purpose of

the employer.” RESTATEMENT (THIRD) OF AGENCY § 7.07(2).

In this case, although appellant’s suit involves allegations of trespass, appellant

did not allege any independent course of conduct not intended by Garrett and Short to

serve any purpose of the City. See id. Rather, according to appellant’s original petition,

Garrett and Short were carrying out the business of the City through the power and

authority of their respective offices of employment with the City when they allegedly

11
committed, attempted to commit, or threatened to commit a trespass injurious to

appellant. There is no dispute that the alleged trespass involved conduct by Garrett and

Short that was authorized by the City and done for the benefit of the City.

Appellant maintains that suit was nonetheless proper against Garrett and Short in

their individual capacities because their acts were ultra vires. We disagree. First, the

Texas Supreme Court has held that section 101.106(f) “foreclose[s] suit against a

government employee in his individual capacity if he was acting within the scope of

employment.” Franka, 332 S.W.3d at 381. Second, an ultra vires suit must be brought

against the employee in his official capacity, not his individual capacity. See Heinrich,

284 S.W.3d at 373. Third, appellant’s trespass allegations do not amount to ultra vires

conduct because appellant does not allege that Garrett or Short acted without the legal

authority of the City or failed to perform a purely ministerial act they were required to

perform. See id. Appellant’s suit seeks to alter an existing policy of the City that Garrett

and Short are responsible for carrying out. See TEX. CIV. PRAC. & REM. CODE ANN. §

101.001(5) (West Supp. 2011) (defining “scope of employment” as “the performance for

a governmental unit of the duties of an employee’s office or employment and includes

being in or about the performance of a task lawfully assigned to an employee by

competent authority”). Accordingly, we conclude that for purposes of section

101.106(f), appellant’s suit was against Garrett and Short “acting within the general

scope of [their] employment.” Id. § 101.106(f).

Under subsection (f), Garrett and Short were “entitled to dismissal only if the

[appellant’s] suit could have been brought under the Act against the [City].” Franka, 332

S.W.3d at 375. “[T]hat is, [the] claim [must be] in tort and not under another statute that

12
independently waives immunity.” Id. As noted above, appellant originally sued Garrett

and Short to enjoin them from trespassing onto his property or directing other City

employees to do so. “An injunction is an equitable remedy, not a cause of action.”

Brown v. Ke Ping Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied). “However, a party can obtain an injunction only by showing a probable right to

recovery through a claim or cause of action.” Id. In this instance, the underlying claim

was trespass, a tort, which brings this matter within the scope of the Texas Tort Claims

Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (West 2008 & West Supp.

2011). Furthermore, “any tort claim against the government is brought ‘under’ the Act

for purposes of section 101.106, even if the Act does not waive immunity.” Franka, 332

S.W.3d at 375; see also Romero v. Jacob Lieberman ex rel. Estate of Lieberman, 332

S.W.3d 403, 404 (Tex. 2011) (per curiam) (“[F]or purposes of section 101.106(f), a tort

action is brought ‘under’ the Texas Tort Claims Act, even if the government has not

waived its immunity for such actions.”). Thus, for purposes of section 101.106(f),

appellant’s request for an injunction based on an alleged trespass is a tort claim that

could have been brought under the Act against the City. See Franka, 332 S.W.3d at

375. Therefore, because both conditions for dismissal under section 101.106(f) were

met, the trial court properly dismissed appellant’s claims against Garrett and Short. See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).

Appellant’s first issue is overruled.

VI. CLAIMS AGAINST THE CITY

In his second issue, appellant contends that the trial court erred in dismissing his

claims against the City. In his live petition, appellant alleged causes of action against

13
the City for declaratory judgment and injunctive relief. See Heinrich, 284 S.W.3d at 377

(“[c]onsidering the nature of the liability sought to be imposed, and construing [plaintiff’s]

pleadings liberally”). The “real substance” of appellant’s claims involves a suit for land.

See Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 390 (Tex. 2011)

(“The central test for determining jurisdiction is whether the ‘real substance’ of the

plaintiff’s claims falls within the scope of a waiver of immunity from suit.”). Appellant

seeks to quiet title to his property and to establish his exclusive right of possession.

See id. at 389–90 (holding that plaintiff's claims to establish ownership of property

through an action for declaratory judgment and to obtain injunctive relief to prevent a

governmental entity from entering the property are “in substance [a suit] to determine

title to land”). Appellant also seeks injunctive relief to enjoin the City from trespassing,

which is an intentional tort. Dyer, 358 S.W.3d at 704. Thus, appellant’s claims against

the City are barred by immunity. See Sawyer Trust, 354 S.W.3d at 389–90 (“[This] suit

in substance is one to determine title to land. Such a suit against the State is barred by

sovereign immunity absent legislative consent.”); Dyer, 358 S.W.3d at 704–05 (“The

Department and the County argue that immunity from suit has not been waived for

Dyer’s trespass claim because Dyer has alleged an intentional tort for which the Texas

Tort Claims Act does not waive immunity. We agree.”); Harris County v. Cypress, 50

S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“Appellee’s Second

Amended Petition clearly asserts that appellant's dumping of hazardous materials on its

property was intended[; thus, it] states a cause of action for intentional trespass[ for

which immunity has not been waived.]”).

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 However, as set forth above, the City asserted four cross-claims against

appellant: (1) an enforcement action for statutory penalties in the amount of $5,000 per

day pursuant to Chapter 54 of the Texas Local Government Code, in addition to a

request for court costs and attorney’s fees, see TEX. LOC. GOV’T CODE ANN. §§ 54.012,

54.014, 54.015 & 54.107; (2) a claim for temporary and permanent injunctive relief to

require appellant to remove the plug and to prohibit future plugging; (3) an action for

declaratory judgment with respect to the City’s easement and the public improvement,

see TEX. CIV. PRAC. & REM. CODE ANN. § 37.003; and (4) a claim for easement by

implied dedication to the extent the culvert extends onto appellant’s property and the

tributary. Appellant contends that the City, “by voluntarily intervening into the suit has

now waived immunity and opened itself up to a declaratory judgment action by

appellant.”

The Texas Supreme Court has explained that “when an affirmative claim for relief

is filed by a governmental entity, . . . cases indicate that under such circumstances

immunity from suit no longer completely exists for the governmental entity.” Reata

Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 376 (Tex. 2006). The Texas Supreme

Court has held that under such circumstances, the trial court must “allow[] adverse

parties to assert, as an offset, claims germane to, connected with, and properly

defensive to those asserted by the governmental entity.” Id. at 377. “Accordingly, when

the City filed its affirmative claims for relief as an intervenor, the trial court acquired

subject-matter jurisdiction over claims made against the City which were connected to,

germane to, and properly defensive to the matters on which the City based its claim[s]

for [relief].” Id. “Absent the Legislature’s waiver of the City’s immunity from suit,

15
however, the trial court did not acquire jurisdiction over a claim for damages against the

City in excess of damages sufficient to offset the City’s recovery, if any.” Id.

The City argues that “this case does not present the necessary germaneness

between appellant’s and the City’s claims.” The City notes that this Court has

previously held that claims lack the necessary germaneness when “the claims arise

from distinct conduct at different times and under very different circumstances.” Tex.

Dept. of Transportation v. Crockett, 257 S.W.3d 412, 416 (Tex. App.—Corpus Christi

2008, pet. denied). The City points out that “the City’s claim for enforcement arises

from appellant’s act of plugging a component of the City’s storm sewer system with

concrete.” The City also points out that “appellant [has] not cite[d] to . . . any authority

for the proposition that this ‘self help’ remedy was somehow germane to appellant’s

assertion of title to the land and trespass against the City.” See TEX. R. APP. P. 38.1(i).

Furthermore, according to the City, “the culvert at issue was constructed by the City in

the late 1940s after the City relied on a deed from appellant’s predecessors in title.” It

was not until many years later that appellant purchased the property. Appellant plugged

the culvert seven years after he purchased the property. According to the City, “[t]he

wide disparity of time and circumstances surrounding the City’s and appellant’s

competing claims compels a finding that the claims are not sufficiently connected or

germane.”

Appellant argues that his claims have the requisite nexus to the City’s claims.

According to appellant, the “claims are competing claims which cannot exist as an

award.” By their claims, both parties are seeking to establish the superiority of their

respective ownership and access rights to appellant’s land. Appellant argues that the

16
trial court therefore has jurisdiction over his claims for declaratory judgment and

injunctive relief.

As set forth above, the City “does not have immunity from suit for claims

germane to, connected with, and properly defensive to its [cross-claims] to the extent

[appellant’s] claims act as an offset against the City’s recovery.” City of Irving v. Inform

Constr., Inc., 201 S.W.3d 693, 694 (Tex. 2006) (per curiam). We conclude that

appellant’s claim for a declaratory judgment that the City “does not have an easement

or other legal authority to enter [appellant’s] property” is sufficiently connected to the

City’s claim that the City has an easement encumbering appellant’s property. If it were

established, appellant’s claim would defeat the City’s claim and vice versa. Therefore,

the trial court has jurisdiction to hear appellant’s claim for declaratory judgment. See id.

The other claim asserted by appellant is a trespass claim for which appellant

seeks injunctive relief but not an award of damages. The City has not asserted any

claim against appellant that would be obviously offset by appellant’s trespass claim.

Moreover, in his appellate brief, appellant has not made any argument to establish how

his trespass claim is germane to, connected with, and properly defensive to any of the

claims asserted by the City. See TEX. R. APP. P. 38.1(i). Appellant has not provided the

Court with a substantive analysis on this particular issue. See PopCap Games, Inc. v.

MumboJumbo, LLC, 350 S.W.3d 699, 722 (Tex. App.—Dallas 2011, pet. denied)

(“Failure to provide substantive analysis waives an issue on appeal.”). We conclude

that appellant has not demonstrated that the trial court committed reversible error with

respect to the dismissal of his trespass claim. See TEX. R. APP. P. 44.1.

17
 Accordingly, appellant’s second issue is sustained with respect to appellant’s

claim for declaratory judgment, but it is overruled with respect to appellant’s trespass

claim.

VII. OPPORTUNITY TO RE-PLEAD

In his third issue, appellant argues that the trial court erred in dismissing his

claims against Garrett, Short, and the City without affording appellant an opportunity to

re-plead those claims. “It is true that a plaintiff deserves a reasonable opportunity to

amend unless the pleadings affirmatively negate the existence of jurisdiction.” Tex.

A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). However, appellant

“has made no suggestion as to how to cure the jurisdictional defect” with respect to

these claims. Id. at 840. “[A] pleader must be given an opportunity to amend in

response to a plea to the jurisdiction only if it is possible to cure the pleading defect.” Id.

In this case, there is no basis for the Court to conclude that appellant “may be able to

state a cause of action for which sovereign immunity has been waived.” Id. We

conclude that affording appellant an opportunity to re-plead “would serve no legitimate

purpose.” Id. Accordingly, appellant’s third issue is overruled.

VIII. CONCLUSION

As set forth herein, the order of the trial court is affirmed in part and reversed in

part. The case is remanded for further proceedings consistent with this opinion.

_______________________
NORA L. LONGORIA
Justice

Delivered and filed the
16th day of May, 2013.

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