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Pedestrian Beach, LLC v. State

Court of Appeals of Texas, First District

November 21, 2019


          On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 91156-CV

          Panel consists of Justices Keyes, Kelly, and Goodman.



         The appellants in this case challenge the trial court's dismissal of their declaratory judgment claims regarding properties in the Village of Surfside Beach in Brazoria County. The court issued five separate orders, which together disposed of all claims for lack of jurisdiction. The appellants raise fourteen issues. Five issues challenge the trial court's jurisdictional rulings. Nine issues pose questions of law, seeking answers to their requested legal declarations. The appellants argue that the trial court improperly failed to answer these legal questions.

         We affirm.


         This case has spanned nearly 20 years. It began when a dispute arose between some of the appellants ("the original plaintiffs") and the state and local governmental defendants ("State defendants"). The original plaintiffs owned beach houses in the Village of Surfside Beach ("the Village"), which were landward of the vegetation line of "Pedestrian Beach" when they were built.[1] See Brannan v. State, 365 S.W.3d 1, 6 (Tex. App.-Houston [1st Dist.] 2010), rev'd, 390 S.W.3d 301 (Tex. 2013) (Brannan I). In 1998, Tropical Storm Frances moved the vegetation line landward, leaving the houses between the vegetation line and the water's edge. Id. The Village refused to allow the houses to be repaired, and it denied access to utilities. The State defendants asserted that the houses encroached on a public beach access easement and must be removed.

         In 2001, the original plaintiffs sued the State defendants alleging that these actions amounted to a "constitutionally compensable taking of their property." Brannan v. State, 390 S.W.3d 301, 302 (Tex. 2013) (Brannan II). After the lawsuit was filed, several of the original plaintiffs' neighbors intervened as plaintiffs. See Brannan I, 365 S.W.3d at 6. All the plaintiffs sought declaratory judgment to construe provisions of the Open Beaches Act and determine the existence and scope of easements in favor of the public on their properties. See Tex. Nat. Res. Code §§ 61.001-.254 (Open Beaches Act).

         The plaintiffs conceded that before 1998 an easement had existed that permitted the public to use the dry sand beach adjacent to the wet beach for lateral passage and recreational purposes. Brannan I, 365 S.W.3d at 6-7. The State defendants argued, and the trial court agreed, that the easement rolled onto the plaintiffs' properties after Tropical Storm Frances eroded the beach and shifted the shoreline in 1998. Id. at 26. The trial court ordered the removal of the remaining houses and denied the remainder of the plaintiffs' claims. See id.

         We affirmed the trial court's judgment in part, id. at 27, and while the case was pending on appeal to the Supreme Court of Texas, the high court issued Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012), which held that "avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property." Severance, 370 S.W.3d at 725; see Brannan II, 390 S.W.3d at 302. Severance did not determine "whether a taking would occur if the State ordered removal of Severance's house" because that was not part of the certified question proceeding. 370 S.W.3d at 707, 712-13.

         In light of Severance, the Supreme Court remanded Brannan to us for further consideration, specifically noting the takings issue. See Brannan II, 390 S.W.3d at 302 ("When the Village of Surfside Beach refused to allow the houses to be repaired or to have access to utilities, and the State asserted that the houses encroach on a public access easement and must be removed, petitioners sued, contending among other things that the State's assertion amounts to a constitutionally compensable taking of their property.").

          We remanded the case to the trial court in the interest of justice, concluding that the record was not sufficiently developed to determine the parties' takings claims. See Brannan v. State (Brannan III), No. 01-08-00179-CV, 2014 WL 1778276, at *1-2 (Tex. App.-Houston [1st Dist.] May 1, 2014, no pet.) (mem. op.). By the time the case was remanded to the trial court, several plaintiffs had passed away and most of the plaintiffs' houses were no longer standing, having been removed by forces of nature.


         In October 2015, the plaintiffs filed a supplemental pleading alleging that storms had washed away all but two of their beach houses. They alleged that the status of the two remaining houses presented "a host of complex legal issues." They maintained that they had standing based on their prior ownership and their ownership of other littoral land in the Village, specifically: 1206-07 Sargasso Lane (the Porters), 1215 Sargasso Circle (Russell Clinton), 510 Beach Drive (Ramirez and Dickerson), 125 Driftwood Drive (S&S Holdings), and other unspecified property in the Village (the Porters, Brannan, and S&S Holdings). The following year, Pedestrian Beach, LLC intervened asserting ownership of 1206-1207 Sargasso Lane and alleging that Brooks and Merry Porter had created Pedestrian Beach, LLC for the purpose of owning the Sargasso Lane duplex, which was transferred to the LLC in December 2007.

          In August 2017, the trial court severed the declaratory judgment claims into one suit, Cause No. 91156-v, leaving the takings claims in the original suit, Cause No. 15802. The trial court later abated the takings claims pending funding of a possible settlement by the Legislature in its 2019 session.

         The severed declaratory judgments case concerned the following properties and appellants:

         Table 1: Properties & Appellants in Severed Declaratory Judgments Case.


211 Beach Drive

Dianne Loggins Clark

303 Beach Drive

Angela Mae Brannan, individually and as independent executrix of the Estate of Bob Albert Brannan.

Marvin Jacobson Family Holding Company

307 Beach Drive

Cathy T. Charles, James Meek, Patricia Meek

319 Beach Drive

S&S Holdings LLC

405 Beach Drive

Patricia Pursley, individually and as community survivor of James C. Pursley, deceased

407 Beach Drive

Mark Palmer

411 Beach Drive

Louise Bullard

415 Beach Drive

Rogers Thomson, Executor of the Estate of P.E. Kintz

507 Beach Drive

Macario Ramirez and Chrissie Dickerson

510 Beach Drive

Macario Ramirez and Chrissie Dickerson

511 Beach Drive

Macario Ramirez and Chrissie Dickerson

603 Beach Drive

Reg Aplin and Beaver Aplin d/b/a Benchmark Developing

619 Beach Drive

Merry Porter, individually and as Independent Executor of the Estate of Brooks Porter, deceased

701 Beach Drive

Joseph Cornell DeWitt and Lisa Marie DeWitt Fuka

705 Beach Drive

Jeffrey Dyment

809 Beach Drive

Merry Porter, individually and as Independent Executor of the Estate of Brooks Porter, deceased

819 Beach Drive

Judy A. Clinton

907 Beach Drive

Russell Clinton as administrator of the Estate of Elizabeth

Clinton, deceased

Kenneth C. Reutzel & Andrea Reutzel

919 Beach Drive

Russell Clinton

1206-07 Sargasso Ln.

Brooks Porter (Merry Porter, as Independent Executor of the Estate of Brooks Porter, deceased)

Pedestrian Beach LLC

1215 Sargasso Cir.

Russell Clinton

125 Driftwood Dr.

S&S Holdings

Other properties in Surfside

Merry Porter, individually and as Independent Executor of the Estate of Brooks Porter, deceased; Angela Mae Brannan, individually and as independent executrix of the Estate of Bob Albert Brannan; S&S Holdings

         The plaintiffs sought declaratory judgment on dozens of legal questions generally pertaining to: (1) constitutional takings claims;[2] (2) easements;[3] (3) provisions of the Open Beaches Act;[4] (4) future, speculative, or hypothetical situations;[5] and (5) questions of fact.[6]

         The State defendants sought dismissal of some claims by filing pleas to the jurisdiction. They filed a plea to the jurisdiction regarding the properties added in October 2015, arguing that claims regarding the newly added properties were not justiciable because they were speculative, theoretical, and unripe.[7] In light of Severance, the State defendants nonsuited counterclaims that relied on the doctrine of rolling easement, and they conceded that there was no claim for an easement on any of the plaintiffs' properties, stating: "Now, the State Defendants cannot and do not rely upon any rolling easement theory nor do they base any defense or counterclaim on the relative locations of a line of vegetation." Clerk's Record at 876. The State defendants also filed a plea to the jurisdiction on Brannan's declaratory judgment claims on the grounds that she lacked standing because she sold the Beach Drive property before the lawsuit was filed in 2001.[8]

         The State defendants moved to strike the intervention of Pedestrian Beach LLC.[9] First, they argued that because Pedestrian Beach, LLC's claim differed from the original claims regarding properties on Beach Drive, intervention was not necessary to protect its interests and would excessively complicate the issues in the case. Second, the State defendants argued that Pedestrian Beach, LLC had no justiciable interest in the case because its property was not part of the original lawsuit and was not part of what was remanded after appeal. Third, the State defendants argued that the petition in intervention was untimely as it was filed 15 years after the original suit was filed and two years after remand to the trial court.

         Finally, the State defendants filed a plea to the jurisdiction and alternative motion for summary judgment on the plaintiffs' claim for attorneys' fees. Among other things, they argued that there was no live case or controversy regarding their claims for declaratory relief that could serve as the basis for attorney's fees.[10]

         The plaintiffs also filed a motion regarding jurisdiction. They asked the court to determine that it had jurisdiction to consider their declaratory judgment claims. They argued that, after the original trial, the trial court denied their petitions to repair their houses, ordered them to remove their houses without compensation, and enjoined them from future construction on their land. On remand, they asked the trial court to reconsider its prior declaration that the State could "compel removal of an existing lawfully built house without payment." However, the plaintiffs also stated: "No plaintiff is prosecuting a takings claim for the removal of his house."

         The State defendants responded that there was no justiciable issue relating to the requested declaratory relief, which pertained to easements. They conceded that after Severance, their rolling easement argument was unavailing, and they had abandoned all claims for easements on the plaintiffs' properties. They noted that the plaintiffs' former "upland" properties had become submerged in the Gulf of Mexico during the years between the original filing of the lawsuit and remand to the trial court. They argued that the plaintiffs' claims for declaratory judgment were thus moot. In addition to their assertions of mootness and the lack of a justiciable controversy, the State defendants also asserted sovereign immunity. They reasoned that the plaintiffs' claims could arise only under the declaratory judgment provisions of the Open Beaches Act, not the Declaratory Judgments Act.[11]

         The trial court granted the State defendants' plea to the jurisdiction and alternative motion for summary judgment on the plaintiffs' claims for attorney's fees, and it dismissed the plaintiffs' claims for attorney's fees. The trial court later (1) granted the State defendants' plea to the jurisdiction concerning the properties added in the October 2015 supplemental pleading; (2) denied the plaintiffs' motion regarding jurisdiction on their claims for declaratory judgment and denied all the declarations that were sought; (3) granted the State defendants' plea to the jurisdiction on the declaratory judgment claims of Angela Mae Brannan; and (4) granted the State defendants' motion to strike the petition in intervention of Pedestrian Beach, LLC.


         I. Standards of review for a plea to the jurisdiction mirror the standards of review for traditional summary judgments.

         A party may challenge a trial court's subject matter jurisdiction by filing a plea to the jurisdiction or a motion for summary judgment. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review a trial court's ruling on a plea to the jurisdiction or a motion for summary judgment de novo. Univ. of Texas M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019) (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)) (plea to the jurisdiction); Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2710089, at *2 (Tex. June 28, 2019) (citing Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010) (citation omitted), and Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)) (summary judgment).

         Ordinarily a plea to the jurisdiction challenges the plaintiff's pleadings, asserting that the alleged facts do not affirmatively demonstrate the court's jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). We "construe the plaintiff's pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent." Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012).

         A plea to the jurisdiction may also challenge the existence of jurisdictional facts, and when it does, the parties may present evidence. Id. "In those situations, a trial court's review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion." Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635. The movant must present summary-judgment proof demonstrating that the court lacks jurisdiction. Id. The burden then shifts to the nonmovant to show that there is a material question of disputed fact on the jurisdictional issue. Id.; see Tex. R. Civ. P. 166a(c) (to prevail on a traditional summary judgment motion, the movant must establish that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law).

         II. The Open Beaches Act includes a declaratory judgment provision.

         The Legislature has expressly declared that the "public policy of this state" is that

the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.

Tex. Nat. Res. Code § 61.011(a).

         Under the Open Beaches Act, for a beach to be considered a public beach, (1) it must border the Gulf of Mexico and (2) the public must have a right to use it. Severance, 370 S.W.3d at 714. "The area from mean low tide to mean high tide is called the 'wet beach,' because it is under the tidal waters some time during each day. The area from mean high tide to the vegetation line is known as the 'dry beach.'" Id. "The wet beaches are all owned by the State of Texas, which leaves no dispute over the public's right of use." Id.; see Poretto v. Tex. Gen. Land Office, 448 S.W.3d 393, 395 (Tex. 2014) ("The State owns the coastal land submerged by the Gulf of Mexico."). Dry beaches may be privately owned, and the public's right to use those beaches depends on whether an easement in favor of the public has been established by "prescription, dedication, presumption," or the retention of "a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom." Tex. Nat. Res. Code § 61.001(8) (defining public beach). Establishment of the existence of an easement or retained public right of use may require examination of the original Spanish or Mexican land grants. See Severance, 370 S.W.3d at 717-18.

         The State bears the burden to establish the existence of an easement in favor of the public on privately owned dry beach. See id. at 714-15 ("The Legislature recognized that the existence of a public right to an easement in the privately owned dry beach area of West Beach is dependent on the government's establishing an easement in the dry beach or the public's right to use of the beach 'by virtue of continuous right in the public since time immemorial . . . .'" (emphasis added) (citation omitted)). The Open Beaches Act prohibits beachfront property owners from denying access to the public beach by posting a sign or otherwise communicating that "the public beach is private property." Tex. Nat. Res. Code § 61.014.

         These two principles have the potential to create a conundrum for the private owner of beachfront property who wishes to exclude the public from a portion of the beach that he contends is not the "public beach." This is particularly true considering the Supreme Court's holdings that "sovereign immunity bars UDJA [Uniform Declaratory Judgment Act] actions against the state and its political subdivisions absent a legislative waiver." Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011); see City of El Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009)); see also Tex. Civ. Prac. & Rem. Code §§ 37.001-.011 (Uniform Declaratory Judgments Act). The Open Beaches Act addresses this hypothetical conundrum by expressly permitting a littoral owner to seek declaratory judgment: "A littoral owner whose rights are determined or affected by this subchapter may bring suit for a declaratory judgment against the state to try the issue or issues."[12] Tex. Nat. Res. Code § 61.019.

         III. Justiciability is a necessary component of subject matter jurisdiction in all cases, including declaratory judgment actions.

         "A declaratory judgment is available only when there is a justiciable controversy between the parties." Houston Chronicle Pub. Co. v. Thomas, 196 S.W.3d 396, 401 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004)). The statutory provision of the Open Beaches Act that permits a littoral owner to seek declaratory relief "does not supplant the constitutional requirement" that the court have subject matter jurisdiction. McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231 (Tex. 2001).

         Subject matter jurisdiction is essential to the authority of a court to decide a case." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). "Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable." The State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (citing Tex. Ass'n of Bus., 852 S.W.2d at 443). "If the district court lacks jurisdiction, in any of these senses, then its decision would not bind the parties." Id. A decision that does not bind the parties is a prohibited advisory opinion. Id.; see Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) ("Under article II, section 1 of the Texas Constitution, courts have no jurisdiction to issue advisory opinions."); Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) ("The courts of this state are not empowered to give advisory opinions."); see also Tex. Const. art. II, § 1 (separation of powers).

         The requirements of standing, the existence of a live controversy, and justiciability are interrelated. "A court has no jurisdiction over a claim made by a plaintiff who lacks standing to assert it." Heckman, 369 S.W.3d at 150. Standing "focuses on the question of who may bring an action." Patterson, 971 S.W.2d at 442. "[S]tanding requires a justiciable injury that gives rise to a real controversy which judicial action can resolve." Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 590-91 (Tex. 2013) (citing Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995)). The open courts provision of the Texas Constitution "contemplates access to courts only for persons who have suffered an injury." Norwood, 418 S.W.3d at 590-91 (citing Tex. Const. art. I, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.")). Standing requires the existence of a controversy between the parties "at every stage of the legal proceedings." Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

         While standing concerns who may bring an action, the requirement that there be a live controversy-that the case be ripe and not moot-concerns when the action may be brought. See Patterson, 971 S.W.2d at 442. The ripeness doctrine avoids "premature adjudication" of issues. Id. "An issue is ripe when it presents a fully developed controversy." McAllen Med. Ctr., 66 S.W.3d at 234. Stated another way, an issue is ripe when "the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote." Patterson, 971 S.W.2d at 442. The "ripeness analysis focuses on whether a case involves uncertain or contingent future events that may not occur as anticipated or may not occur at all." Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69, 78 (Tex. 2015).

         "The mootness doctrine applies to cases in which a justiciable controversy exists between the parties at the time the case arose, but the live controversy ceases because of subsequent events." Matthews, on behalf of M.M. v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016). Like the doctrines of ripeness and standing, the mootness doctrine prevents the rendition of advisory opinions. "A declaratory-judgment action does not give a court jurisdiction 'to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication.'" Tesco Corp. (US) v. Steadfast Ins. Co., No. 01-13-00091-CV, 2015 WL 456466, at *2 (Tex. App.-Houston [1st Dist.] Feb. 3, 2015, pet. denied) (mem. op.) (quoting Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 130-31 (Tex. App.-Austin 2007, no pet.)).

         "Justiciability is a matter of concern in every civil case and remains a live concern from the first filing through the final judgment." Heckman, 369 S.W.3d at 147. For an issue to be justiciable, "there must be a real controversy between the parties that will be actually resolved by the judicial relief sought." Gomez, 891 S.W.2d at 245.

         IV. The trial court correctly determined that it lacked jurisdiction over the declaratory judgment claims.

         1. Some appellants lack standing because they sold the subject properties before filing suit or they were not littoral owners of the subject property.

         This appeal arises solely from the severed declaratory judgment action, which requested numerous declarations regarding each plaintiff's rights regarding his or her properties. However, when the trial court dismissed the claims, some plaintiffs no longer owned the properties at issue. Angela Mae Brannan sold 303 Beach Drive to the Marvin Jacobson Family Holding Company in 2000, the year before the original lawsuit was filed. Similarly, Russell Clinton, acting as administrator of the Estate of Elizabeth Clinton, his deceased mother, sold 907 Beach Drive to Kenneth C. Reutzel and Andrea Reutzel in 2000. Both successors-the Marvin Jacobson Family Holding Company and Kenneth C. and Andrea Reutzel-are parties to the underlying case and this appeal. Without a showing that a plaintiff is acting in a representative capacity, he or she ordinarily may assert only his or her own rights, "not somebody else's." See Garcia, 893 S.W.2d at 518. We hold that the trial court lacked jurisdiction to make declarations regarding the rights of Brannan to 303 Beach Drive and Russell Clinton, acting as administrator of the estate of his mother, Elizabeth Clinton, to 907 Beach Drive.

         Upon remand in 2015, Macario Ramirez and Chrissie Dickerson added a claim regarding 510 Beach Drive. They alleged that this property was "presently landward of the State's rock revetment and the asphalt topping of Beach Drive." That is, accepting their factual pleading as true, the property was adjacent to the landward side of the road, not adjacent to the shore. The Open Beaches Act provides that a "littoral owner whose rights are determined or affected" by the subchapter regarding public access to beaches, may seek a declaratory judgment. Tex. Nat. Res. Code § 61.019. A littoral owner is an owner of "land adjacent to the shore." Id. § 61.001(6). Ramirez and Dickerson are not littoral owners of 510 Beach Drive. Therefore, they lacked standing to seek declarations under the Open Beaches Act regarding that property, and the trial court had no jurisdiction to render them.

         2. Some claims are not ripe or present no ...

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