City of Weslaco v. Borne

• Decision Date: 14 December 2006
• Docket Number: No. 13-05-126-CV.,13-05-126-CV.
• Parties: CITY OF WESLACO, Texas, et al., Appellants, v. Carl L. BORNE, et al., Appellees.
• Court: Texas Court of Appeals

210 S.W.3d 782

CITY OF WESLACO, Texas, et al., Appellants, v. Carl L. BORNE, et al., Appellees.

No. 13-05-126-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

December 14, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Drinkard, Ricardo J. Navarro, Denton, Navarro, Rocha & Bernal, Harlingen, Javier Gonzalez, Royston, Rayzor, Vickery & Williams, Brownsville, Carroll S. Barbour, San Antonio, Nicholas A. Parma, Royston, Rayzor, Vickery & Williams, Houston, Will W. Pierson, Royston, Rayzor, Vickery & Williams, Corpus Christi, for appellants.

Daniel G. Gurwitz, Lisa Powell, Atlas & Hall, McAllen, for appellees.

Before Justices YAÑEZ, CASTILLO, and GARZA.

OPINION

Opinion by Justice GARZA.

On August 22, 2005, we issued a memorandum opinion dismissing this case for lack of jurisdiction. See City of Weslaco v. Borne, No. 13-05-126-CV, 2005 WL 2000842, 2005 Tex.App. LEXIS 6783 (Corpus Christi, August 22, 2005, no pet. h.). Appellees filed a motion for rehearing on September 6, 2005. Shortly thereafter, appellants filed a motion for correction of judgment, asking the Court to change its judgment to indicate that their issues challenging the trial court's subject matter jurisdiction had been sustained. On January 11, 2006, while appellees' motion for rehearing was still pending, appellees filed an "emergency motion for temporary injunctive order or for remand to consider interim relief." Subsequently, this Court withdrew its prior opinion and ordered a rehearing. We now issue the following opinion reversing the trial court's order denying appellants' pleas to the jurisdiction. In doing so, we dismiss as moot appellees' emergency motion and appellants' motion for correction of judgment.

Background

This case is essentially a landlord-tenant dispute. It involves a mobile home park known as the Lakeview Senior Mobile Home Park ("Lakeview Park"). Appellants own and operate Lakeview Park. Appellees are current and former residents of Lakeview Park who claim that appellants are wrongfully forcing them from their homes.

The dispute began when appellees learned of appellants' plans to transfer ownership of Lakeview Park to the Texas Parks and Wildlife Department for development as a birding center. Appellees are against the proposal because Texas Parks and Wildlife will not accept the property for development if people continue to reside there. Appellees understand this condition to mean that appellants will ultimately force them from their homes to carry out their plan of developing a birding center.

Before any transfer of ownership could occur, appellees sued appellants for fraud, negligent misrepresentation, violations of the Texas Deceptive Trade Practices Act, breach of contract, statutory fraud in a real estate transaction, statutory violations of Chapter 94 of the Texas Property Code, and permanent injunctive relief preventing appellants from "selling, transferring, encumbering, leasing, or otherwise disposing of the Lakeview property without protecting or allowing for the plaintiffs' legal rights to remain in the park for as long as they can care for themselves."

Appellants answered the lawsuit and filed special exceptions. They also filed pleas to the jurisdiction, raising ripeness and governmental immunity as grounds for dismissing appellees' claims without a trial on the merits. The trial court denied the pleas to the jurisdiction and this interlocutory appeal ensued. See Tex. Civ. Prac. & Rem Code Ann. § 51.014(a)(8) (Vernon 2006).

Before addressing the merits of the appeal, we pause to specify the identities and roles of the three appellants before this Court: (1) the City of Weslaco owns Lakeview Park; (2) the Weslaco Development Committee, Inc. ("WDC") previously owned and operated Lakeview Park; and (3) and the Economic Development Corporation of Weslaco ("EDC") is a successor corporation to WDC and currently operates Lakeview Park in behalf of the City of Weslaco. Wherever possible, we will refer to appellants collectively; however, at times, it will be necessary to discuss their roles in this litigation individually.

Standard of Review

A trial court's ruling on a plea to the jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In determining whether jurisdiction exists, we accept all allegations in the pleadings as true. See City of San Antonio v. Butler, 131 S.W.3d 170, 174 (Tex.App.-San Antonio 2004, pet. denied). The plaintiff has the burden to plead facts affirmatively demonstrating the court's jurisdiction. Id. Therefore, we may consider evidence presented to the trial court to the extent necessary to determine the jurisdictional facts. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

I. Ripeness

In our prior opinion, we concluded that appellees' claims against appellants were not ripe and accordingly sustained the seventh issues raised in appellants' briefs. See City of Weslaco v. Borne, No. 13-05-126-CV, 2005 WL 2000842, 2005 Tex.App. LEXIS 6783 (Corpus Christi, August 22, 2005, no pet. h.). On rehearing, we begin our analysis by revisiting that holding.

Ripeness is one of several categories of justiciability. Perry v. Del Rio, 66 S.W.3d 239, 249 (Tex.2001). The doctrinal purpose of ripeness is to prevent premature adjudication. See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998). The issue of ripeness thus questions when a particular action may be brought. Id. Ripeness asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur. Id. The focus of the ripeness inquiry is therefore on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all. Id.

Ripeness involves both jurisdictional and prudential concerns. See id. at 442-43. Jurisdictionally, ripeness operates to prevent Texas courts from issuing judicial advisory opinions, which are constitutionally prohibited. See Tex. Const. art. II, § 1 (separation of powers), art. IV, §§ 1, 22 (attorney general is part of the executive department and is empowered to issue advisory opinions to the governor and other officials); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993) (holding that separation of powers prohibits courts from issuing advisory opinions, a function of the executive department). Ripeness also has a pragmatic, prudential aspect that is directed toward conserving judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes. Patterson, 971 S.W.2d at 443.

Appellants have filed two appellate briefs in this case: one for the City of Weslaco and the other for WDC and EDC. The seventh issue raised in the City of Weslaco's appellate brief makes the following argument on ripeness:

The trial court erred in denying the Appellant's Pleas to the Jurisdiction because the matter before the trial court lacked "ripeness" in that Appellees are basing their claims on a contingent or hypothetical event, (i.e. the breach of an alleged oral lease through their eviction), which had not happened at the time the lawsuit was filed, at the time the Pleas were urged or at the time the Pleas were denied.

Appellant City of Weslaco's Appellate Brief p. 20.

The seventh issue in the brief filed by WDC and EDC also argues that appellees' claims are not ripe for review:

Appellees' case is based entirely upon hypothetical facts and events that have not come to pass. Appellees complained that, on December 10, 2003, the mayor of Weslaco informed several of the Appellees of the City's intention to breach purported promises to allow Appellees to live perpetually at the Lakeview Park. The Appellees admit in the [live petition] . . . that the City subsequently took the position that the mayor's statement may not have been an official statement of the City's intentions. No defendant in this case has actually acted to evict any of the Appellees. The alleged announcement by the mayor was subsequently called into question, thus rendering the statement an example of a hypothetical fact: hypothetically the City of Weslaco intends to evict Appellees. Appellees' case is based entirely on what might happen to them at some point in the future.

Appellate Brief of Appellants WDC & EDC p. 15.

The Texas Supreme Court has held that a determination of ripeness should not necessarily be limited to the facts and circumstances of the case as they existed at the time the lawsuit was filed. See Del Rio, 66 S.W.3d at 252; Patterson, 971 S.W.2d at 442. A claim's lack of ripeness when filed is not a jurisdictional infirmity requiring dismissal if the case has subsequently matured. Del Rio, 66 S.W.3d at 252.

In the time between the issuance of our original opinion and the date on which we granted rehearing, appellees supplemented the record with 15 affidavits demonstrating that appellants have taken measures such as disconnecting water and electrical utilities to force appellees from their homes. The supplemented record also shows that eviction proceedings have been commenced by appellants in justice court to remove appellees from Lakeview Park. Based on these facts and circumstances, we conclude that appellants' ripeness arguments to this Court have become untenable. The developments in this case, specifically, the post-appeal efforts to evict appellees from their homes, demonstrate that this case presents a real, live controversy that is not dependent on uncertain or contingent future events. Accordingly, we overrule appellants' issues challenging the ripeness of the claims against them.

II. Governmental Immunity

In their remaining issues, appellants contend that the trial court erred in denying their pleas to the jurisdiction based on governmental immunity.¹ According to appellants, the claims filed by appellees cannot be maintained...