ACCEPTED
13-15-00494-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/18/2015 1:31:02 PM
Dorian E. Ramirez
CLERK
NO. 13-15-00494-CV
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF
CORPUS TEXAS
CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI, TEXAS
12/18/2015 1:31:02 PM
____________________________________________________________
DORIAN E. RAMIREZ
Clerk
THE STATE OF TEXAS,
APPELLANT,
v.
YS & LS & LS PARTNERSHIP, LTD., ET AL.,
APPELLEE
___________________________________________________________
ON APPEAL FROM COUNTY COURT AT LAW 3
NUECES COUNTY, TEXAS
____________________________________________________________
APPELLEE’S BRIEF
____________________________________________________________
Mr. Forrest “Jerry” Dorsey
P.O. Box 30084
Corpus Christi, TX 78404
Christopher Dorsey
606 N. Carancahua, Suite 1001
Corpus Christi, TX 78401
Attorneys for YS & LS & LS Partnership,
Ltd.
1
Table of Contents
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 5
Analysis and Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Appelle Properly pleaded inverse condemnation . . . . . . . . . . . . . . . . 7
II. Westgate’s exception applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2
Index of Authorities
Cases
Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 640-641 (Tex.
App.--Houston [1st Dist.] 1999, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 8
City of Austin v. Teague, 570 S.W.2d 389, 393-94 (Tex. 1978) . . . . . . . . . 10
Davis v. City of Palestine, 988 S.W.2d 854, 858-859 (Tex. App.--Tyler 1999,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
General Services v. Little-Tex. Insulation, 39 S.W.3d 591, (Tex. 2001) . . 7
Harris County Flood Control Dist. v. Adam, 56 S.W.3d 665, 669-670 (Tex.
App.--Houston [14th Dist.] 2001, pet. dism'd w.o.j.). . . . . . . . . . . . . . . . . . 8
Porretto v. Patterson, 251 S.W.3d 701, 707-710 (Tex. App.--Houston [1st
Dist.] 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Brownlow, 319 S.W.3d 649, 652 (Tex. 2010) . . . . . . . . . . . . . . . . 7
State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) . . . . . . . . . . . . . . . . . 7
Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 551-554 (Tex.
2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Texas S. Univ. v. Cape Conroe Property Owners Ass'n, 245 S.W.3d 626,
630-632 (Tex. App.--Beaumont 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . 8
Westgate, Ltd. v. State of Texas, 843 S.W.2d 448 (Tex. 1992) . . . . . 6, 9, 10
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Summary of the Argument
Appellee properly pleaded intentional and bad faith acts by the State to
affirm the trial court’s denial of the plea to jurisdiction. The State’s primary
case provides an exception for intentional and bad faith acts by the State
instead of merely unreasonable acts.
Issue Presented
1. Whether YS & LS & LS Partnership, Ltd.’s claims for damages and
other relief in its Counterclaim are barred by Texas’s sovereign immunity.
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NO. 13-15-00494-CV
IN THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI, TEXAS
____________________________________________________________
THE STATE OF TEXAS,
APPELLANT,
v.
YS & LS & LS PARTNERSHIP, LTD., ET AL.,
APPELLEE
___________________________________________________________
ON APPEAL FROM COUNTY COURT AT LAW 3
NUECES COUNTY, TEXAS
TO THE HONORABLE COURT OF APPEALS:
Appellee, YS & LS & LS Partnership, Ltd., submits this brief
requesting that this Honorable Court affirm the trial court’s denial of the
State’s plea to the jurisdiction.
Statement of Facts
The State filed its Original Petition for Condemnation on October 13,
2013 with the interested parties as YS & LS & LS Partnership, Ltd
(Appellee), Compass Bank, and First Victoria National Bank. (Clerk’s
5
Record, hereinafter “CR”, at 5). The Special Commissioners appointed by
the trial court held a hearing and awarded $150,000 in damages, compared
to the State’s last offer of $34,1000. (CR 77, 109). The State objected to
the award. (CR 74-76).
In response, Appellee filed a Verified Original Answer, Plea in
Abatement, and Counterclaim on July 17, 2014. (CR 77-84). Appellee
alleges that the State’s acts “constitute an intentional damaging or taking of
the property . . .in that the State had actual knowledge of the damage or
taking and that harm would be substantially certain to occur.” (CR 81,
Counterclaim).
In response, the State filed a plea to the jurisdiction (87-92) and an
amended petition, the current live pleading for the State, removing
Compass Bank from the Petition and attempting to substitute Prosperity
Bank for First Victoria National Bank (CR 95-104). Prosperity Bank
answered with a general denial and requested that Plaintiff “take
nothing.” (CR 106-108).
The State then filed a Supplement to its plea to the jurisdiction,
alleging simply that Appellee’s pleadings are “not recognized as
recoverable under Texas law.” (CR 113, citing Westgate, Ltd. v. State of
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Texas, 843 SW2d 448, 454 (Tex. 1992)). The State based its plea to the
jurisdiction on the pleadings only and did not attach any evidence to
support its claim. (Id.). (See also CR 87-92, Plea to Jurisdiction). Appellee
filed a response. (CR 116-121) and, after a non-evidentiary hearing, the
trial court denied the State’s motion on September 24, 2015. (CR 122).
ANALYSIS AND ARGUMENT
A. APPELLEE PROPERLY PLEADED INVERSE CONDEMNATION
Without offering any evidence and relying solely on the pleadings, the
State claims the inverse condemnation or taking counterclaim is barred by
sovereign immunity. (CR 87-92, 113). However, sovereign immunity from
suit does not protect the State from a claim under the takings clause. State
v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). See also State v. Brownlow,
319 S.W.3d 649, 652 (Tex. 2010).
A pleading asserting an unlawful taking of private property must
allege that (1) the State intentionally performed certain acts (2) that
resulted in a "taking" of property (3) for public use. General Services v.
Little-Tex. Insulation, 39 S.W.3d 591, 598 (Tex. 2001). In a similar case,
the trial court properly denied plea to jurisdiction because even if plaintiff
alleged mere negligence rather than intent, that pleading failure could be
corrected by amendment. Harris County Flood Control Dist. v. Adam, 56
7
S.W.3d 665, 669-670 (Tex. App.--Houston [14th Dist.] 2001, pet. dism'd
w.o.j.). See also Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637,
640-641 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (dismissal for
lack of jurisdiction was error when failure to plead intent was curable by
amendment); Davis v. City of Palestine, 988 S.W.2d 854, 858-859 (Tex.
App.--Tyler 1999, no pet.) (summary judgment on inverse condemnation
claim was improper even though plaintiff's pleadings were inartful and
defective in pleading element of intent because city did not specially except
and summary judgment proof did not negate city's intent).
Here, Appellee pleaded that (1) it is the owner of property in Nueces
County; (2) the State’s acts “constitute an intentional damaging or taking of
the Property” and that the State had actual knowledge of the damage or
taking and that the harm would be substantially certain to occur; and (3)
“these acts by the State were intended for public use.” (CR 80-81,
Counterclaim for Inverse Condemnation).
These pleadings are sufficient to confer subject-matter jurisdiction on
the trial court. Though a plaintiff must plead and ultimately prove the
requisite governmental intent, an allegation of that intent is sufficient at the
pleading stage to survive the government's plea to the jurisdiction. Texas
S. Univ. v. Cape Conroe Property Owners Ass'n, 245 S.W.3d 626, 630-632
(Tex. App.--Beaumont 2007, no pet.) (allegations that defendant
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"obstinately" refused to pay assessments on real property were sufficient to
state takings claim). Allegation that government conveyed lease on land
owned by plaintiff was allegation of intentional act and was sufficient to
state takings claim, so trial court improperly granted plea to jurisdiction.
Porretto v. Patterson, 251 S.W.3d 701, 707-710 (Tex. App.--Houston [1st
Dist.] 2007, no pet.).
The requisite intent to take the property is present when a
governmental entity knows that specific acts are causing identifiable harm,
or knows that the harm is substantially certain to result from those acts.
Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 551-554 (Tex.
2004). Here, Appellee has properly pleaded the State knew the specific
acts were causing identifiable harm or knew the harm is substantially
certain to result from those acts. (CR 81).
II. WESTGATE’S EXCEPTION APPLIES
In its pleadings and Brief, the State almost exclusively relies on a
single case in support of its plea to the jurisdiction- Westgate, Ltd. v. State
of Texas, 843 S.W.2d 448, 454 (Tex. 1992). The Westgate exception
applies to the pleadings here.
The Westgate opinion provided an exception to the general rule when
the government acts intentionally or in bad faith. The Westgate court
stated, “Westgate's legal theory in the trial court and on appeal has been
9
that the government acted unreasonably, not that the government acted in
bad faith in delaying the condemnation proceedings. The policy reasons
that support our decision today might not be applicable where the
condemning authority is accused of intentionally injuring a landowner. As
the issue is not before us, however, we do not now address whether a
landowner may state a cause of action for inverse condemnation where the
condemning authority acts in bad faith to cause economic damage to the
landowner.” Westgate, 843 S.W.2d at 452 (emphasis added). In other
words, Westgate argued negligence, not intentional acts by the
government, as is the case here.
In the case at hand, Appellee has pleaded intentional acts by the
State, not mere negligence or unreasonable delays. (CR 81). Accordingly,
Westgate supports a finding against the State’s plea to the jurisdiction
based on the pleadings alone. Where courts have found direct
governmental actions in which the governmental defendant had regulatory
authority over the matter causing the plaintiff's harm, they have generally
found a taking. See, e.g., City of Austin v. Teague, 570 S.W.2d 389, 393-94
(Tex. 1978). Those cases generally involve current, direct restrictions on
the property and may be combined with facts tending to show bad faith.
See, e.g., Westgate, 843 S.W.2d at 452, 454; see also Teague, 570 S.W.2d
at 393.
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Here, the State Department of Transportation had direct regulatory
authority over the condemnation proceedings and, combined with its
intentional acts, supports jurisdiction in this case.
PRAYER
Appellee respectfully prays that the Honorable Court affirm the trial
court’s denial of the State’s plea to the jurisdiction.
Respectfully submitted,
By:_/s/ Jerry Dorsey_______
Mr. Forrest “Jerry” Dorsey
Attorney at Law
Texas Bar No. 0601600
P.O. Box 30084
Corpus Christi, TX 78404
Tel: (361) 882-6547
Fax: (361) 882-2769
Christopher Dorsey
Texas Bar No. 24036493
606 N. Carancahua, Suite 1001
Corpus Christi, TX 78401
Tel. (361) 882-9991
Fax. (866) 926-1982
Attorneys for YS & LS & LS Partnership,
Ltd.
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I certify this
Appellee Brief contains 1,610 total words. This is a computer-generated
document created in Pages, using 14-point typeface for all text, except
footnotes which are in 12-point typeface (if any). In making this certificate
of compliance, I am relying on the word count provided by the software
“Pages” used to prepare the document.
_/s/ Christopher Dorsey____________
CHRISTOPHER A. DORSEY
Certificate of Service
I certify that a true copy of the above was served on each attorney of
record or party in accordance with the Texas Rules of Civil Procedure on
December 18, 2015.
_/s/ Christopher Dorsey____________
CHRISTOPHER A. DORSEY
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