COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00315-CV
VALERIE MANTOS APPELLANT
V.
CITY OF MANSFIELD APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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This is an appeal from a summary judgment in favor of appellee the City of
Mansfield in a suit by appellant Valerie Mantos challenging the City’s acquisition
of 105 acres of real property, and subsequent sale of part of that property, on the
ground that the City’s actions violated the Texas Open Meetings Act. Mantos
brings fifteen issues challenging the grounds upon which the City sought
summary judgment. We affirm in part and reverse and remand in part.
1
See Tex. R. App. P. 47.4.
Background Facts
In May 2004, the City bought an approximately 39-acre tract of land in
Mansfield from Stephen and Sally Lockwood; at the same time, the Lockwoods
donated an adjacent 40-acre tract to the City. On the same day, the City also
purchased an adjacent 26-acre tract from Giovanni Homes. The City was
planning to develop a sports complex on 40 acres of the combined 105 acres.
After taking bids to sell a 65-acre piece from the larger 105-acre tract, the
City decided to build the sports complex in a different area; thus, it decided to sell
not only the 65 acres but an additional 16 acres to DCB Properties, the bid
winner. The City entered into a purchase agreement with DCB Properties to sell
81 of the 105 acres on February 2, 2005. The parties simultaneously entered
into agreements affecting the remaining 24 acres owned by the City: (1) a
license agreement allowing DCB Properties to use the northeasternmost 12
acres for drainage purposes and (2) a minimum guaranteed bid agreement in
which DCB agreed that if the City chose to bid the remaining 12 acres (the
Guaranteed Bid Tract), DCB would submit a minimum bid of $3.25 per square
foot.
The City passed a final ordinance on March 14, 2005 approving the sale.
The closing occurred on May 20, 2005. At closing, DCB assigned its rights as
buyer under the contract to Water Street Development Partners, L.P.
The City offered the Guaranteed Bid Tract for bid and declared Water
Street Development the winning bidder on March 13, 2006. The City passed a
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final ordinance authorizing the City manager to execute documents necessary to
convey the Guaranteed Bid Tract on April 10, 2006. But according to the
summary judgment evidence, Water Street Development refused to close under
the contract.
Also in 2006, the City began working on a proposed economic
development agreement for the 81 acres that it had conveyed to Water Street
Development. The City eventually entered into an economic development
agreement affecting the property that included $63,000,000 in tax incentives.
Mantos sued the City on May 1, 2008 contending that all of the
transactions involving the City’s acquisition and subsequent sale of “all or any
part of” the 105-acre tract are void for violations of the Texas Open Meetings Act.
In her second amended petition, she requested a declaratory judgment that (1)
the City’s agendas from May 10, 2004 through August 11, 2008 “were insufficient
to properly apprise the public of the subject matter of its meetings,” (2) the City’s
invocation of exceptions to the Open Meetings Act in executive sessions from
May 10, 2004 to August 11, 2008 “were invalid such that its reliance thereon was
unlawful,” and (3) any actions taken by the City not posted on any agenda are
void. She also requested a writ of mandamus ordering the City “to stop, prevent,
or reverse any and all actions taken in violation of [the Open Meetings Act,]
including but not limited to the acquisition/disposition of the 105-acre land
transaction, or any portion thereof, as well as the development agreement
purporting to grant $63,000,000 in incentives,” and a writ of mandamus ordering
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the City to immediately release for in camera inspection all agendas or tape
recordings for meetings or executive sessions that Mantos claims were held in
violation of the Open Meetings Act. [Emphasis added.]
The City moved for summary judgment, alleging that Mantos’s claims as to
the acquisition and subsequent sale and development of the 105-acre tract are
barred because they were validated by section 51.003 of the government code.
Alternatively, the City argued that Mantos’s claims are barred by laches; that
Mantos lacks standing to challenge the constitutionality of the City’s conveyance
of property to a third-party developer; that if Mantos’s claims are not time-barred,
she is limited to challenging only those actions taken by the City Council; that
even if the City’s actions at the January 24, 2005 meeting violate the Open
Meetings Act, the conveyances are not invalid because they were subsequently
ratified by ordinance in open session according to a properly posted agenda; and
that the January 24, 2005 agenda was proper as a matter of law.
The trial court granted summary judgment to the City but did not specify
the grounds. Because the summary judgment motion did not address Mantos’s
claims about voiding the economic development agreement, the City moved to
sever those claims from the claims about the 105-acre tract. Accordingly, the
trial court severed the economic development agreement claims from Mantos’s
claims “related to [the City’s] acquisition, purchase, sale or other disposition of all
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or a portion of” the 105-acre tract, thus making the summary judgment final and
appealable.2 [Emphasis added.]
Fundamental Error
In her first issue, Mantos contends that the trial court committed
fundamental error by granting the motion for summary judgment because the
disposition of this litigation “directly and adversely affects the public interest
generally.” Fundamental error exists “in those rare instances in which the record
shows the court lacked jurisdiction or that the public interest is directly and
adversely affected as that interest is declared in the statutes or the Constitution
of Texas.” Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993).
Other than authority about the purpose and important public policy underpinning
the Open Meetings Act, Mantos has cited nothing indicating that summary
judgment is a procedure unavailable to a defendant in an Open Meetings Act
case. See, e.g., Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304
S.W.3d 871, 888–91 (Tex. App.––Austin 2010, pets. denied) (affirming summary
judgment on Open Meetings Act claims). Accordingly, we overrule appellant’s
first issue.
Validation Statute
In her third through fifth issues, Mantos claims the trial court erred by
granting summary judgment on the ground that all of the City’s actions
2
See Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz,
P.C., 63 S.W.3d 795, 795 (Tex. 2001).
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complained of in her petition are validated by section 51.003 of the local
government code.3
Section 51.003 of the local government code provides as follows:
(a) A governmental act or proceeding of a municipality is
conclusively presumed, as of the date it occurred, to be valid and to
have occurred in accordance with all applicable statutes and
ordinances if:
(1) the third anniversary of the effective date of the act or
proceeding has expired; and
(2) a lawsuit to annul or invalidate the act or proceeding has
not been filed on or before that third anniversary.
(b) This section does not apply to:
(1) an act or proceeding that was void at the time it occurred;
(2) an act or proceeding that, under a statute of this state or
the United States, was a misdemeanor or felony at the time the act
or proceeding occurred; [or]
....
(4) an ordinance that, at the time it was passed, was
preempted by a statute of this state or the United States, including
Section 1.06 or 109.57, Alcoholic Beverage Code.
Tex. Loc. Gov’t Code Ann. § 51.003 (Vernon 2008).
3
Mantos’s second issue complains that the trial court erred by failing to
sustain her objections to the City’s summary judgment evidence; however,
because our disposition of the third issue would be the same even if the trial
court sustained all of the objections––and because our determination of the
propriety of the summary judgment is based almost entirely on the application of
the law to Mantos’s pleadings––we need not address that issue. See Tex. R.
App. P. 47.1; Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.––Fort Worth
2006, pet. denied), cert. denied, 549 U.S. 1281 (2007).
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The legislature has the power to ratify any act that it had the power to
authorize. City of Murphy v. City of Parker, 932 S.W.2d 479, 481 n.1 (Tex.
1996); City of Alton v. City of Mission, 164 S.W.3d 861, 868 (Tex. App.––Corpus
Christi 2005, pet. denied). “[C]urative statutes are liberally construed only to
effectuate the intent of the legislature in enacting them and not to other ends.”
City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex. 1975); City of
Alton, 164 S.W.3d at 868.
According to the City, section 51.003 applies without exception to Mantos’s
claims about the sale or disposition of the 105 acres. If none of the exceptions
apply, because Mantos’s suit was filed on May 1, 2008, any act or proceeding of
the City occurring before May 1, 2005 would be conclusively presumed valid.
See Tex. Loc. Gov’t Code Ann. § 51.003.
Acquisition of 105 Acres and Sale of 81 Acres
The summary judgment record shows that the events leading to the City’s
acquisition of the 105 acres occurred in 2003 and 2004; those transactions
closed on May 12, 2004. The City began reviewing alternate sites for the sports
complex in 2004 and 2005. The City entered into the contract with DCB in
February 2005 and authorized the sale by final ordinance in March 2005. Thus,
the only event occurring within three years of the date of the filing of Mantos’s
suit was the actual closing of the sale on May 20, 2005.
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Closing after May 1, 2005
Mantos contends that because the actual closing occurred after May 1,
2005, the sale of the 81 acres is not validated by section 51.003. However, the
ordinance authorizing the City staff to sign the closing documents was passed on
March 14, 2005. The Open Meetings Act applies to a proceeding or meeting
only if it involves “formal action or deliberation between a quorum of members.”
Beasley v. Molett, 95 S.W.3d 590, 606 (Tex. App.––Beaumont 2002, pet.
denied); see Tex. Gov’t Code Ann. § 551.001(4) (Vernon Supp. 2010), § 551.002
(Vernon 2004). Here, there is no evidence that the closing involved any formal
action or deliberation beyond what had already been authorized in the ordinance,
which is presumed valid by operation of section 51.003 if no exceptions apply.
See City of Cresson v. City of Granbury, 245 S.W.3d 61, 69 (Tex. App.––Fort
Worth 2008, pet. denied). Accordingly, we will review whether any of the
exceptions apply here.
Void at time it occurred
Mantos argues that this first exception applies so that the City’s actions
prior to May 1, 2005 are not validated pursuant to section 51.003(a). See Tex.
Loc. Gov’t Code Ann. § 51.003(b)(1).4 Mantos’s claims, however, are based on
violations of the Open Meetings Act, which are voidable, not void or void ab initio.
4
Mantos had the burden to produce summary judgment evidence raising a
fact issue as to any exceptions to the validation statute she contends are
applicable. See Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.––Austin
2010, no pet.).
8
Tex. Gov’t Code Ann. § 551.141 (Vernon 2004); Argyle ISD ex rel. Bd. of
Trustees v. Wolf, 234 S.W.3d 229, 247 (Tex. App.––Fort Worth 2007, no pet.).
Nevertheless, Mantos contends that the City’s actions are void as violative of
chapter 272 of the local government code (the competitive bidding statute),
Article III, section 52 and Article XI, sections 5 and 6 of the Texas Constitution,
the Public Charitable Trust doctrine, the Mansfield City Charter, and sections
3.13 and 12.05 of the penal code. But Mantos provides no argument, authority,
or evidence supporting her contention that the City’s actions violated any of these
provisions such that they are void or otherwise outside the scope of the validation
statute; thus, she has waived any complaint that the City’s pre-May 1, 2005
actions are void for any other reason. See Tex. R. App. P. 38.1(i); Clifton v.
Walters, 308 S.W.3d 94, 99 (Tex. App.––Fort Worth 2010, pet. denied).
Accordingly, we conclude and hold that, as to the City’s acquisition of the 105
acres and subsequent sale of 81 of those acres, the trial court did not err by
granting summary judgment on the ground that those actions were validated by
section 51.003 of the local government code. We overrule Mantos’s third
through fifth issues as to the complaints in her second amended petition related
to the City’s acquisition of the 105 acres and subsequent sale of the 81 acres.
Contract to Sell Guaranteed Bid Tract
Mantos filed her second amended petition while the City’s motion for
summary judgment was pending. In her second amended petition, Mantos
claims that the City violated the Open Meetings Act on March 13, 2006, March
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27, 2006, and April 10, 2006 by posting insufficient agenda items and by
improperly breaking into executive sessions to discuss matters related to the sale
of the Guaranteed Bid Tract to Water Street Development. Because these
complained-of actions relate to the “sale or other disposition of all or a portion of”
the 105-acre tract––and because these actions occurred after May 1, 2005 and
thus are not validated by section 51.003––we must determine whether any of the
City’s other grounds for summary judgment are valid as to Mantos’s claims
regarding these actions.
Laches
In her sixth and seventh issues, Mantos challenges the summary judgment
on laches grounds. The City claimed that Mantos waited too long to file her suit
and, thus, the City as well as third parties were harmed because they changed
their positions in reliance on the delay.
Two essential elements of laches are (1) unreasonable delay by one
having legal or equitable rights in asserting them and (2) a good faith change of
position by another to his detriment because of the delay. Rogers v. Ricane
Enters. Inc., 772 S.W.2d 76, 80 (Tex. 1989). In the absence of some element of
estoppel, the doctrine of laches does not bar an action before the statute of
limitations has run. Delta County Levee Improvement Dist. No. 2 v. Leonard, 516
S.W.2d 911, 913 (Tex. 1974), cert. denied, 423 U.S. 829 (1975); Rivera v. City of
Laredo, 948 S.W.2d 787, 793 (Tex. App.––San Antonio 1997, pet. denied).
Mantos filed suit less than two years after the March and April 2006 meetings
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that she complains of; thus, at least as to those alleged Open Meetings Act
violations, she did not wait an unreasonable amount of time to sue. See Rivera,
948 S.W.2d at 793. We sustain Mantos’s sixth and seventh issues but only as
they relate to Mantos’s claims regarding the City’s March and April 2006 Council
meetings about the sale of the Guaranteed Bid Tract.
Remaining Grounds for Summary Judgment
In her eighth through fifteenth issues, Mantos challenges the remaining
grounds upon which the City sought summary judgment.
First, the City alleged that to the extent Mantos was asserting a taxpayer
standing claim as to the constitutionality of the conveyance of any of the property
to a third party, she had no standing to do so. However, Mantos states in her
brief that there is no such claim in her second amended petition, and the City
agrees. Therefore, summary judgment on the City’s claims related to the sale of
the Guaranteed Bid Tract would not have been proper on that ground.
The City also argued that to the extent Mantos was complaining about
actions taken that were not posted on any agenda, she could only complain
about City Council actions and not actions by any particular individual or third
party. Because Mantos’s claims about the March and April 2006 Council
meetings concern allegedly insufficient agenda items and improper executive
sessions, the City’s summary judgment ground regarding actions by parties other
than the City Council as a whole likewise does not apply to those claims.
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The City’s remaining grounds for summary judgment apply only to the
January 24, 2005 City Council meeting and were alternative grounds to the
validation statute ground. Accordingly, they likewise cannot apply to alleged
violations at the March and April 2006 meetings complained of in the second
amended petition. We therefore sustain Mantos’s eighth through fifteenth issues
in part, but solely as to her claims pertaining to the March and April 2006 Council
meetings.
Conclusion
Having determined that none of the grounds raised by the City support the
trial court’s summary judgment as to Mantos’s claims of alleged Open Meetings
Act violations in the March and April 2006 City Council meetings, and having
sustained her third through fifteenth issues in part as to those claims only, we
reverse and remand the summary judgment solely as to those claims. Having
overruled all of Mantos’s remaining dispositive issues, we affirm the remainder of
the summary judgment as to her complaints about the City’s acquisition of the
105 acres and subsequent sale of 81 of those acres.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DELIVERED: February 10, 2011
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