City of Houston, Candlelight Development Joint Venture and J.E. Fischer Investments, L.C. v. Felix Grudziecke, and Florence Grudziecke, John McReynolds and Barbara McReynolds, Cheryl L. Howard, Ilge E. Gann, William R. Williams and Sandra K. Williams, James F. Cox Jr., and Mary Ruth Cox--Appeal from 157th District Court of Harris County

Dismissed in Part, Reversed and Rendered in Part and Memorandum Opinion filed April 24, 2003

Dismissed in Part, Reversed and Rendered in Part and Memorandum Opinion filed  April 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00947-CV

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CITY OF HOUSTON, CANDLELIGHT DEVELOPMENT JOINT VENTURE, AND J.E. FISCHER INVESTMENTS, L.C., Appellants

V.

FELIX GRUDZIECKE AND FLORENCE GRUDZIECKE, JOHN McREYNOLDS AND BARBARA McREYNOLDS, CHERYL L. HOWARD, ILGE E. GANN, WILLIAM R. WILLIAMS AND SANDRA K. WILLIAMS, JAMES F. COX, JR. and MARY RUTH COX, Appellees

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On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 02-30158

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M E M O R A N D U M O P I N I O N

Appellees, homeowners in Harris County, brought suit for injunctive relief against the City of Houston ( the City ), Candlelight Development Joint Venture and J.E. Fischer Investments, L.C. ( the Developers ). The district court denied appellants pleas to the jurisdiction. We dismiss in part and reverse and render in part.

 

Factual Background

Appellees are homeowners in the Candlelight Estates subdivision in Harris County. Bisecting the subdivision into Sections One and Two is Rossyln Road, on which the City of Houston owns a right-of-way. The Harris County Flood Control District ( the District ) owns a drainage easement running perpendicular to Rossyln Road. To make a new subdivision accessible, the Developers planned to build a bridge in the City s right-of-way and on the District s easement. Before proceeding with plans to construct the bridge, the Developers sought approval from the District, which they received in 2001 when the District sent them a No Objection letter. The City approved the plat and granted a permit for the bridge.

Appellees filed suit against both the Developers and the City. In their Original Petition and Request for Permanent Injunctive Relief, appellees contend that the Developers submitted plans for an even larger bridge to the City of Houston and that it will cause an increase in flood waters upstream of the bridge on [appellees ] properties and interfere with the use and enjoyment of their property thereby causing a nuisance.

Appellees petition sets forth four causes of action, including the torts of trespass and nuisance as well as a violation of section 11.086 of the Texas Water Code against the Developers.[1] Against the City, appellees brought an inverse condemnation claim alleging the City had unconstitutionally taken their property without consent or adequate compensation.

Appellees did not seek monetary damages from the City or the Developers. Rather, they sought a mandatory permanent injunction compelling the Developer[s] and the City of Houston to (1) remove and/or prevent any portion of the bridge to be located solely within the Harris County Flood Control District s drainage easement, (2) prevent any bridge from being constructed that will cause increased flooding of [Appellees ] property, and (3) compelling the Developer[s] to construct detention ponds on [their] property to control the surface water from its development and prevent it from flooding the [Appellees.]

Both the City and the Developers filed pleas to the jurisdiction, which the district court denied. After the district court denied both pleas to the jurisdiction, this interlocutory appeal ensued. Appellant s each present one issue on appeal, challenging the trial court s denial of their respective pleas to the jurisdiction. The Developers claim appellees did not have standing and their claims were not ripe as they had not been injured. The City, in addition to arguing the issue of sovereign immunity, contends that appellees have not suffered a taking as defined by the Texas Constitution. Appellees filed with this Court a Motion for Dismissal of Appellants Appeal and Request for Damages for Frivolous Appeal, in which they argue the Developers interlocutory appeal was not authorized by statute.

Standard of Review

Appellate courts review a district court s ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The purpose of a dilatory plea is not to force the plaintiff to preview his case on the merits but to establish a reason why the merits of his claims should never be reached. Id. Throughout this inquiry, we are mindful that subject matter jurisdiction is never presumed and cannot be waived. Tex. Ass n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 44 (Tex. 1993).

Here, both the City and the Developers filed interlocutory appeals challenging the district court s denial of their pleas to the jurisdiction. Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides appellate jurisdiction. See Stary v. DeBord, 967 S.W.2d 352, 353 (Tex. 1998); Dallas County Cmty. Coll. Dist. v. Bolton, 990 S.W.2d 465, 467 (Tex. App. Dallas 1999, no pet.). The Texas Legislature determines, by statute, whether a particular type of pretrial ruling is appealable before a final judgment is rendered. See Bolton, 990 S.W.2d at 467. The Texas Civil Practice and Remedies Code permits interlocutory appeals only in certain specified instances, including the appeal of an order that grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001. Tex. Civ. Prac. & Rem. Code 51.014(a)(8). Governmental unit is defined to include political subdivisions of this state, including any city. Id. 101.001(3)(b). Because the statute authorizing interlocutory appeals is a narrow exception to the general rule that only final judgments and orders are appealable, we must give it a strict construction. See Tex. Dep t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730 (Tex. App. Austin 1999, no pet.); Am. Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex. App. Houston [14th Dist.] 1997, no pet.).

The Developers Plea to the Jurisdiction

The Developers claim the district court has no jurisdiction because appellees have no standing and their causes of action are not yet ripe for review. We need not address the Developers specific arguments as their appeal is improperly before this court. In their notice of appeal, the Developers stated theirs was an accelerated interlocutory appeal filed pursuant to the provisions of Section 51.014(a)(8), Texas Civil Practices and Remedies Code and pursuant to the provisions of Tex. R. App. P. 28.1. [2] However, the Developers, as private business entities, are not governmental units falling within the ambit of the statute. See Tex. Civ. Prac. & Rem. Code 101.001. It is fundamental error for this Court to assume jurisdiction over an interlocutory order when not expressly authorized by statute to do so. Scherr v. Oyedokum, 889 S.W.2d 546, 549 (Tex. App. Houston [14th Dist.] 1994, no writ).

In their notice of appeal, the Developers cite Brown v. Todd, 53 S.W.3d 297, 301 (Tex. 2001), for the proposition that jurisdiction properly invoked on one issue bestows upon the court jurisdiction of the entire case. We find Brown distinguishable because it dealt with the jurisdiction of the Texas Supreme Court to hear cases appealed from the courts of appeals. In Brown, the Texas Supreme Court was addressing its own jurisdiction over interlocutory appeals where the justices of the courts of appeals disagree on a question of law material to the decision. See Tex. Gov t Code 22.225(c). Two plaintiffs, one a citizen and the other a city councilman, sued the City of Houston and its mayor seeking a declaration that a city ordinance was invalid and an injunction against its enforcement. Brown, 53 S.W.3d at 299. While the district court found that the citizen did not have standing to pursue the relief requested, it enjoined the enforcement of the executive order after finding that the councilman did have standing. Id. at 299 300. The City of Houston appealed from the granting of the temporary injunction, while the citizen appealed from the district court s dismissal of his claim. Id. at 300. The court of appeals affirmed the judgment, but on the issue of standing, the opinion drew a dissent Id. Both appellants filed petitions for discretionary review with the Texas Supreme Court. Id. While the citizen sought to invoke the supreme court s jurisdiction on the basis of the dissent, the City argued that the issues presented were important to the jurisprudence of the State. Id. The Supreme Court found the City s jurisdictional argument to be without merit, although it held that it acquired jurisdiction over the City s claim by virtue of the citizen s proper invocation of jurisdiction. Id. at 300 01. Thus, Brown stands only for the proposition that the Texas Supreme Court, when reviewing a court of appeals opinion which has drawn a dissent, may

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acquire jurisdiction to consider claims over which it would otherwise lack jurisdiction so long as they are raised with a claim that is within its jurisdiction. Id. In the case at bar, we are not called upon to interpret Tex. Gov t Code 22.225(c), and thus, Brown is inapplicable.

In their response to appellees motion to dismiss and at submission, the Developers relied on Letson v. Barnes for the proposition that to the extent the subject matter of a non-appealable interlocutory order may affect the validity of an appealable interlocutory order, the non-appealable order may be considered on interlocutory appeal. 979 S.W.2d 414 (Tex. App. Amarillo 1998, pet. denied). In Letson, private gaming companies sought an injunction against law enforcement authorities to prevent them from seizing, confiscating, forfeiting, or initiating forfeiture proceedings against any . . . machines for which the state occupation tax had been paid. Id. at 416. After the district court imposed a temporary injunction, the authorities filed an interlocutory appeal. Id. In three points of error, the authorities argued the court lacked jurisdiction to issue the injunction, the injunction was an unconstitutional suspension of law, and the district court abused its discretion in issuing the injunction without hearing any evidence. Id. Before reviewing the points on interlocutory appeal, the court noted:

[I]n conducting its review, we must be chary against considering matters other than those integral to the temporary injunction. That is, an appeal of a temporary injunction is not a vehicle which imbues the court with jurisdiction to address interlocutory matters outside the scope of section 51.014 of the Texas Civil Practice and Remedies Code. Yet, to the extent that the subject matter of a [sic] the non-appealable interlocutory order may affect the validity of the appealable order, the non-appealable order may be considered. This, therefore, permits us to address the issue of subject matter jurisdiction over the cause even though that topic is not within those enumerated under section 51.014 of the Civil Practice and Remedies Code. Indeed, it could be said that the absence of jurisdiction to adjudicate the cause could result in characterizing the court s decision to issue an injunction as an act of abused discretion. Simply put, if the court has no authority to act, it can hardly be said that the court s action is valid.

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Id. at 417 (footnotes and citations omitted). Ultimately, the Letson court reversed the order granting the temporary injunction, dissolved that injunction, and remanded the cause to the district court with instructions to dismiss it for want of jurisdiction. Id. at 419.

In relying on this case, the Developers do not articulate how the validity of the appealable order in this case would be affected by the matter of the non-appealable interlocutory order. When a litigant challenges both appealable and unappealable interlocutory orders, we review the portion of an order which is appealable and refuse to consider the portion which is not-appealable. Waite v. Waite, 64 S.W.3d 217, 224 n.6 (Tex. App. Houston [14th Dist.] 2001, pet. denied) (quoting Markel v. World Flight, Inc., 938 S.W.2d 74, 78 (Tex. App. San Antonio 1996, no writ)). In the instant case, we have two sets of claims asserted against two separate and distinct parties. We find no authority which allows a party to bootstrap an unappealable interlocutory order to a governmental entity s statutory interlocutory appeal of a denial of a plea to the jurisdiction. To accept the Developers arguments would require a holding which grants the right of interlocutory appeal to any co-defendant of a governmental unit filing a plea to the jurisdiction. Strictly construing the interlocutory appeal statute, we cannot say that it permits such an overly broad interpretation. See Williams, 958 S.W.2d at 271. Accordingly, we overrule the Developers issue on appeal and grant appellees motion to dismiss the Developers appeal as we are without jurisdiction to consider it.

 

The City s Plea To The Jurisdiction

The City contends the district court improperly denied its plea to the jurisdiction. Through a plea to the jurisdiction, a movant may raise any ground on which the movant claims the court has no subject matter jurisdiction. See City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750, 752 (Tex. App. Austin 1998, no pet.). In so doing, the City maintains the appellees did not suffer a taking under the Texas Constitution and they have suffered no injury. We need not address the specific arguments advanced by the City, as we find that the district court had no discretion to entertain this suit because it did not have subject matter jurisdiction. See State v. John R. Phenix & Assocs., Inc., 6 S.W.3d 288, 290 (Tex. App. Houston [14th Dist.] 1998, no pet.)

In their Plaintiffs Original Petition and Request for Permanent Injunctive Relief, appellees set forth their sole cause of action against the City as follows:

Constitutional Taking by the City of Houston. Plaintiffs would show that the City of Houston has, by virtue of the above described intentional conduct, and in the exercise of their lawful authority, will cause a taking of Plaintiffs property for application to public use without adequate compensation in violation of 17 of Article 1 of the Constitution of the State of Texas, which provides that no person s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person. No Plaintiffs have permitted or consented to the flooding of their properties, nor have they been compensated for such.

No person s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made. See Tex. Const. art. I, 17. A municipality s wielding of the power of eminent domain is commonly referred to as condemnation. Taub v. Aquila Southwest Pipeline Corp., 93 S.W.3d 451, 456 (Tex. App. Houston [14th Dist.] 2002, no pet h.) (quoting Black s Law Dictionary 523 (6th ed.1990)). Condemnation is the procedure by which a sovereign state exercises its right to take property of a private owner for public use, without consent, but upon the payment of just compensation. Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 861 (Tex. App. Houston [14th Dist.] 2002, no pet.); A.C. Aukerman Co. v. State, 902 S.W.2d 576, 577 (Tex. App. Houston [1st Dist.] 1995, writ denied). Inverse condemnation occurs when a property owner seeks compensation for property taken for public use without process or a proper condemnation proceeding. See A.C. Aukerman Co., 902 S.W.2d at 577. Thus, the appellees claims are properly characterized as inverse condemnation claims. See Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992) ( An inverse condemnation or taking action is thus available to compensate a property owner for a loss resulting when his property has been taken or damaged for public use without compensation or a condemnation proceeding. ).

Appellees brought suit in Harris County district court. By statute, district courts have the jurisdiction provided by Article V, Section 8, of the Texas Constitution, and may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002) (quoting Tex. Gov t Code 24.007 .008)). The jurisdiction of the district courts of Texas consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body. Tex. Const. art. V, 8.

The Texas Legislature has seen fit to bestow upon the Harris County courts at law exclusive jurisdiction over inverse condemnation actions. Taub, 93 S.W.3d at 456.[3] The Texas Government Code provides that [a] county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy. tex. Gov t Code 25.1032(c); Taub, 93 S.W.3d at 456; see also State v. Landry, 793 S.W.2d 281, 284 (Tex. App. Houston [14th Dist.] 1990, orig. proceeding). In Taub, we concluded that a district court in Harris County lacked subject matter jurisdiction to entertain a publicly regulated gas utility s condemnation counterclaims against a landowner because of the exclusive jurisdiction over eminent domain proceedings specifically granted to the civil courts at law in Harris County. Taub, 93 S.W.3d at 456.

Thus, because exclusive jurisdiction over inverse condemnation proceedings in Harris County is vested in the county courts at law, the district court was without subject matter jurisdiction to entertain appellees claim against the City. Appellant City of Houston s sole issue on appeal is sustained.

Conclusion

We reverse the district court s denial of the City s plea to the jurisdiction and render judgment granting the plea to the jurisdiction and dismissing appellees claims against the City. Because the Developers appeal falls within the general rule prohibiting interlocutory appeals, we grant appellees motion to dismiss their appeal for want of jurisdiction. Finding that the appeal is not frivolous, we deny appellees request for attorneys fees.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 24, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

[1] Section 11.086 provides that [n]o person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. Tex. Water Code 11.086. A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. Id.

[2] Rule 28.1 provides that [a]n appeal from an interlocutory order, when allowed, will be accelerated. Tex. R. App. P. 28.1 (emphasis added).

[3] The City of Houston did not cite to this provision of the Government Code in its brief. When lack of subject matter jurisdiction is apparent from the record, it may be raised by the court if not raised by the parties. See Taub, 93 S.W.3d at 456. The Developers did invoke this section, but their reference to it is futile, as appellees claims against them are tortious and statutory and do not sound in inverse condemnation.