The City of Laredo, Texas v. Gerardo Duarte and Wife, Carmen J. Duarte--Appeal from County Court at Law No 2 of Webb County

MEMORANDUM OPINION

No. 04-06-00226-CV

THE CITY OF LAREDO, TEXAS,

Appellant

v.

Gerardo DUARTE and Carmen J. Duarte ,

Appellees

From the County Court at Law No. 2, Webb County, Texas

Trial Court No. 2004-CVQ-002026-C3

Honorable Jesus Garza , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sarah B. Duncan , Justice

Sandee Bryan Marion , Justice

Rebecca Simmons , Justice

Delivered and Filed: July 12, 2006

REVERSED AND DISMISSED

The City of Laredo appeals the trial court's order denying its plea to the jurisdiction. Because the issues in this appeal involve the application of well-settled principles of law, we reverse the trial court's order and dismiss the underlying cause in this memorandum opinion.

Background

Central Power and Light Company acquired an easement across certain property in 1990. In 1993, Gerardo and Carmen Duarte acquired property that was subject to the easement. In October of 2003, Raul Sandoval, the residential plan examiner for the City, reviewed the site plan for the Duartes' property and required modified plans to be submitted to accommodate the easement. In December of 2003, Annabella P. Ramirez, the building inspector for Laredo, inspected the site and issued a stop work order because the structure being built on the site was on the power line easement. After allowing construction to be continued with a modified plan, Ramirez again inspected the site in April of 2004 and rejected the inspection because the structure continued to encroach on the easement. Ramirez explained that a portion of the building would have to be removed to comply with the easement.

In October of 2004, the Duartes sued the City alleging a taking of their property under Article I, Section 17 of the Texas Constitution. The Duartes later filed an amended petition adding a negligence claim and asserting that the City's actions were arbitrary, unreasonable and capricious. The City filed a third plea to the jurisdiction asserting that the damages sought by the Duartes exceeded the jurisdictional limits of the county court at law and that the Duartes failed to show a waiver of immunity. The trial court denied the plea, and the City timely filed this appeal.

Standard of Review

We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In order to establish subject matter jurisdiction, the pleader must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. When reviewing a ruling on a plea to the jurisdiction, we accept the allegations in the petition as true and construe them in favor of the pleader. Bexar County v. Lopez, 94 S.W.3d 711, 713 (Tex. App.--San Antonio 2002, no pet.). In addition to the pleadings, a court may also consider other relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

Negligence

Cities retain immunity for governmental functions unless the Legislature has expressly waived that immunity under the Texas Tort Claims Act. See Texas River Barges v. City of San Antonio, 21 S.W.3d 347, 356 (Tex. App.--San Antonio 2000, pet. denied). Governmental functions are those functions that are enjoined on a municipality by law and are given it by the state as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public. See id. (citing Tex. Civ. Prac. & Rem. Code 101.0215(a)). The Texas Tort Claims Act sets out a nonexclusive list of functions that the Legislature deems governmental. See Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a) (Vernon 2005).

In their petition, the Duartes allege that the City was negligent in approving the use of their property for construction of a residential homestead "in spite of" their knowledge of all plats, rules, and regulations. Building codes and inspections and zoning, planning, and plat approval are all among the functions the Legislature included in the list of governmental functions. See Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a) (28), (29) (Vernon 2005). The Duartes' petition does not allege any facts that affirmatively demonstrate the court's jurisdiction to hear the Duartes' claim or otherwise assert any grounds upon which to base a waiver of the City's immunity for these governmental functions. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (noting plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity); see also City of Houston v. Boyle, 148 S.W.3d 171, 180 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (holding city immune from claim that it improperly issued a building permit for construction where act involved governmental function and pleadings failed to allege a waiver of immunity); City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923, 297 (Tex. Civ. App.--Corpus Christi 1968, writ ref'd n.r.e.) (noting granting of a building permit is a governmental function). Accordingly, the trial court erred in denying the City's plea as to the Duartes' negligence claim.

Article I, Section 17 Taking

The City does not have governmental immunity from a valid claim under Article I, Section 17 of the Texas Constitution. Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.--Dallas 2004, no pet.); Maverick County Water & Improvement Dist. v. Reyes, No. 04-03-00412-CV, 2003 WL 22900914, at *2 (Tex. App.--San Antonio Dec. 10, 2003, no pet.). When, however, a plaintiff does not allege a valid takings claim, government immunity does apply, and the trial court should grant a plea to the jurisdiction. Bell, 146 S.W.3d at 825; Reyes, 2003 WL 22900914, at *2. Whether particular facts are enough to constitute a taking is a question of law. Bell, 146 S.W.3d at 825.

In this case, the pleadings and evidence establish that the City's actions were efforts to enforce an existing easement. The enforcement of an existing easement is not a taking. Weingarten Realty Investors & Haynes Whaley Assocs., Inc. v. Universal Services Co., No. 01-96-01400-CV, 1997 WL 689435, at *3 (Tex. App.--Houston [1st Dist.] Oct. 23, 1997, pet. denied); Bennett v. Tarrant County Water Control & Improvement Dist. No. One, 894 S.W.2d 441, 448 (Tex. App.--Fort Worth 1995, writ denied); Arrington v. Mattox, 767 S.W.2d 957, 958 (Tex. App.--Austin 1989, writ denied). In this case, the prior owner of the property consented to and was compensated for the easement when it was first taken; therefore, the Duartes, who claim title through the former owner, may not assert a takings claim in relation to the enforcement of that easement. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex. 1985) (noting homeowner claiming title through developer not entitled to takings claim where developer consented to any taking in submission of subdivision plat for approval); see also Bennett, 894 S.W.2d at 448 n.8 (noting where prior owner compensated for easement subsequent owners were not entitled to compensation for taking). Accordingly, the trial court erred in denying the City's plea as to the Duarte's takings claim.

Conclusion

The trial court's order is reversed, and the underlying cause is dismissed.

Rebecca Simmons , Justice