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City of Fort Worth v. Alvarez

Court of Appeals of Texas, Second District, Fort Worth

May 17, 2018

THE CITY OF FORT WORTH APPELLANT
v.
CYNTHIA AND ROBERT ALVAREZ, TRACY ARSENAULT, JOHNATHAN AND MICHELLE BAKER, MICHAEL AND KATHY BARTON, STEVE AND LEAH BERRY, MICKY AND KIM BLACKBURN, LINDA AND DONALD BLYTHE, JASON AND JEANNE BORGHESI, ROBERT AND BEVERLY CARDINAL, DOUG CARR, KENDAL AND VICKI CODDINGTON, BILL AND BECKY COOKSEY, STEPHEN AND JENNIFER CZECH, KENNETH AND JEAN DAVIS, OTIS AND HOLLY ANNA DEBOARD, BOBBY AND TINA DOMBROWSKI, KEVIN AND KATHY ELLIS, GERALD AND SUSAN EVANS, JAMES AND KATRINA FLING, STACY AND BENJAMIN FRITCHEN, DANIEL AND SHERRY HALLUM, WILMA AND ERMEL HARDIN, JEREMY AND DEBRA HAYNES, SEAN AND TARA HEADY, MATTHEW AND ANNA HICKS, ELIZABETH AND JASON HIGGINS, CHRIS AND GINA HOLLINGSWORTH, JAMES APPELLEES AND BEVERLY HUDDLESTON, ROYCE AND LESLEY HURST, QUENTON HYTER, JONATHAN AND ERIN INGOLS, JULIE AND ROCKY JACKSON, JAMES AND HEATHER KING, ROGER AND CINDY MACON, PHILIP LONG, BART AND CHRISTINA MCCLUNG, DIANA AND TIM MCCLURE, CONNIE AND RONNIE MCCRARY, BECKY AND MATT MCMASTER, COREY AND JENNIFER MOONEY, BARRY AND CAROLE MOORE, LAURA MOORE, DEREK AND BETH MUELLER, CHARLIE AND JOANIE MYERS, JAMES AND BARBARA NORMAN, KWANG AND HYE PAK, KEITH AND KATHY PATTERSON, JEREMIAH AND AUDREY PATTON, LAND AND JILL PENDLETON, MARTINE PEREZ, SARA AND CHAD POYNTER, JASON AND KRISTIN ROUFF, MIKE AND SHIRLEY SNODGRASS, JEFF AND COURTNEY SPARKS, JAMES AND JIMALEE SPLAWN, BECKY SPURLOCK, ANNIE AND JAMES STELLATO, HEATHER AND SPENCER STROH, SCOTT AND LILITH SUTHERLAND, PAUL AND LYDIA SZYMANKSKI, TOMMY AND KANDY TINE, JAMES AND TABITHA TUCCIARONE, JOSEPH AND CHARLOTTE ULAKOVIC, RICK AND PATRICIA VANDERVEEN, TIM AND PAULA VANNAMAN, EMILY AND JOHN VASEL, CONNIE AND DALTON WHARTON, STEVEN AND REBECCA WOLVERTON, JAMES AND BONNIE WORD, DEB YOUNG, AND DAVID AND DELILAH ZEIGLER

          FROM 141ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 141-286802-16 [1]

          PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

          MEMORANDUM OPINION

          BONNIE SUDDERTH CHIEF JUSTICE

         I. Introduction

         This case involves a suit against Appellant City of Fort Worth, among others, to prevent the connection of a street to a new subdivision development. The suit was filed by Appellees Cynthia and Robert Alvarez, Tracy Arsenault, Johnathan and Michelle Baker, Michael and Kathy Barton, Steve and Leah Berry, Micky and Kim Blackburn, Linda and Donald Blythe, Jason and Jeanne Borghesi, Robert and Beverly Cardinal, Doug Carr, Kendal and Vicki Coddington, Bill and Becky Cooksey, Stephen and Jennifer Czech, Kenneth and Jean Davis, Otis and Holly Anna Deboard, Bobby and Tina Dombrowski, Kevin and Kathy Ellis, Gerald and Susan Evans, James and Katrina Fling, Stacy and Benjamin Fritchen, Daniel and Sherry Hallum, Wilma and Ermel Hardin, Jeremy and Debra Haynes, Sean and Tara Heady, Matthew and Anna Hicks, Elizabeth and Jason Higgins, Chris and Gina Hollingsworth, James and Beverly Huddleston, Royce and Lesley Hurst, Quenton Hyter, Jonathan and Erin Ingols, Julie and Rocky Jackson, James and Heather King, Roger and Cindy Macon, Philip Long, Bart and Christina McClung, Diana and Tim McClure, Connie and Ronnie McCrary, Becky and Matt McMaster, Corey and Jennifer Mooney, Barry and Carole Moore, Laura Moore, Derek and Beth Mueller, Charlie and Joanie Myers, James and Barbara Norman, Kwang and Hye Pak, Keith and Kathy Patterson, Jeremiah and Audrey Patton, Land and Jill Pendleton, Martine Perez, Sara and Chad Poynter, Jason and Kristin Rouff, Mike and Shirley Snodgrass, Jeff and Courtney Sparks, James and Jimalee Splawn, Becky Spurlock, Annie and James Stellato, Heather and Spencer Stroh, Scott and Lilith Sutherland, Paul and Lydia Szymankski, Tommy and Kandy Tine, James and Tabitha Tucciarone, Joseph and Charlotte Ulakovic, Rick and Patricia Vanderveen, Tim and Paula Vannaman, Emily and John Vasel, Connie and Dalton Wharton, Steven and Rebecca Wolverton, James and Bonnie Word, Deb Young, and David and Delilah Zeigler (collectively, the homeowners), who live in the Newark Ranch subdivision and object to the connection of Edgemon Way from the Newark Ranch subdivision to the Chisholm Springs development.[2]

         The City filed a partial plea to the jurisdiction on some of the homeowners' claims, arguing that the claims were not yet ripe because the subject of the homeowners' lawsuit was a preliminary, not final, plat.[3] The trial court denied the City's plea to the jurisdiction, and this accelerated interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). We affirm in part and reverse in part.

         II. Subject Matter Jurisdiction

         A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of the action. Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 387 (Tex. App.-Fort Worth 2008, no pet.) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. Id. (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)).

          The plaintiff has the burden to plead facts affirmatively showing that the trial court has jurisdiction, and we construe those pleadings liberally in favor of the pleader, look to the pleader's intent, and accept as true the factual allegations in the pleadings. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do, taking as true all evidence favorable to the nonmovant and indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id. at 387-88 (citing Miranda, 133 S.W.3d at 228; Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by the factfinder. Id. at 388 (citing Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 555). If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, however, the trial court rules on the plea to the jurisdiction as a matter of law. Id. (citing Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 555).

         A. The Homeowners' Pleadings

         The homeowners alleged that the City had approved a preliminary plat, "PP-16-007, Chisholm Springs, " that was erroneous because it

(1) showed Edgemon Way as connecting to the 70.419-acre tract adjacent to the Newark Ranch subdivision when the street instead ended before reaching the tract and was separated by a .0333-acre strip of land on the north side of Edgemon Way and another gap of 0.0193 acres on the east side of Drain Drive;[4]
(2) showed the entire development as located within the City's extraterritorial jurisdiction (ETJ)[5] when in reality it was not entirely located therein;
(3) contradicted the City's policy and comprehensive plan with regard to the area's rural residential designation for 1 acre single-family lots; and
(4) contained other defects pertaining to drainage, flooding, and human waste.

         The homeowners complained that the preliminary plat had been erroneously placed on the planning commission's consent agenda "because [the planning commission] erroneously believed that Edgemon Way provided a second point for ingress and egress" from the neighborhood[6] and because the preliminary plat erroneously showed that the entire development was within the City's ETJ. The planning commission approved the preliminary plat.[7]

         In their lawsuit against the City and others, [8] the homeowners sought relief from "governmental encroachment by the City of Fort Worth in the form of an unlawful attempt to take Plaintiffs['] private property as well as the City's violation of Plaintiffs['] Constitutional Due Process Rights, negligence and lack of jurisdiction."[9] They also sued the City for negligence in the approval of the preliminary plat and complained that the City lacked jurisdiction over a portion of the platted property, which they claimed was outside the City's ETJ. As to their claims against the City, the homeowners asked for a declaratory judgment and a voiding of the planning commission's approval of the preliminary plat.

         B. The City's Plea to the Jurisdiction

         The City filed a partial plea to the jurisdiction on some of the homeowners' claims, arguing that the following claims were not yet ripe:

• the takings claim;
• the request to void the planning commission's approval;
• the request for declaratory relief regarding the boundary line of Edgemon Way and Drain Drive;
• the contention that Edgemon Way does not extend to the XIA Realty lot;
• the contention that there is no easement or public right-of-way that provides access across the Edgemon Gap;
• the contention that the Edgemon Gap and Drain Gap are privately owned properties; and
• the contention that the gap areas in question were abandoned or adversely possessed. The City argued that these claims were not ripe because no final plat had yet been approved and because dedication instruments for required points of ingress and egress are not required in the preliminary platting process. The City attached no evidence in support of its plea.

         C. The Homeowners' Verified Response to the City's Plea

         The homeowners responded that their claims for declaratory relief were ripe because (1) the "adoption of the preliminary plat was a final determination of the Plans Commission, " (2) they had exhausted all of their administrative remedies, and (3) a determination of the City's jurisdiction over the tracts was ripe for the court to decide. To their response, the homeowners attached the affidavit of Scott Schambacher, Newark Ranch subdivision's original developer, an interlocal agreement between the City and Wise County, and the affidavit of James C. Fling, an attorney and Newark Ranch subdivision resident, who testified in support of the factual allegations in the homeowners' pleadings and sponsored as exhibits an April 2016 email chain between Fling and various City personnel.

         Fling averred that the first preliminary plat for the Chisholm Springs development was denied "for technical reasons, " and that the second one-the one at issue here-was approved by the planning commission only after members of the commission "vocally expressed their disagreement with the requirement that they approve the plat and encouraged the Newark Ranch Homeowners to change the process." Fling further averred that "[t]he properties the subject of this suit are located outside the extraterritorial jurisdiction of the City of Fort Worth."

         The April 2016 email chain began with Fling's complaint to the mayor, among others, about the preliminary plat's placement on the consent agenda and the advice rendered by the city attorney to the planning commission that they had to approve it. It was followed by a response from one of the city attorneys, explaining that state law did not address preliminary plats but that local government code section 212.005 required planning commissions to approve all plats that conformed with the City's subdivision rules and regulations.[10]

         Schambacher stated in his affidavit that he was the managing member of Newark 718, LTD and NRHOA's president, that Newark 718 acquired ownership of the portion of land east of Drain Drive in December 2004, and that Newark 718 conveyed the property to NRHOA in September 2016. Schambacher averred that neither he nor Newark 718 had ever granted any easement, right of way, or other conveyance related to the property in question to the Lapsiwalas, XIA ...


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