Lazarides v. Farris

• Citation: 367 S.W.3d 788
• Decision Date: 17 April 2012
• Docket Number: No. 14–11–00404–CV.,14–11–00404–CV.
• Parties: Ted LAZARIDES, in his official capacity, Appellant, v. Grady FARRIS, Appellee.
• Court: Court of Appeals of Texas

367 S.W.3d 788

Ted LAZARIDES,¹ in his official capacity, Appellant,

v.Grady FARRIS, Appellee.

No. 14–11–00404–CV.

Court of Appeals of Texas, Houston (14th Dist.).

April 17, 2012.

Ramon G. Viada III, Spring, for appellee.

David Lynn Phillips, Houston, Houston, for appellee.

Panel consists of Justices FROST, SEYMORE, and JAMISON.

OPINION

MARTHA HILL JAMISON, Justice.

In this groundwater diversion case, appellant Ted Lazarides appeals the trial court's denial of a motion for summary judgment in which he asserted various challenges to the trial court's subject-matter jurisdiction. In seven issues,² Lazarides contends the trial court erred by refusing to dismiss appellee Grady Farris's claims against Lazarides for conduct in his official capacity. We hold that the trial court should have granted summary judgment based on lack of jurisdiction as to all of the claims, except Farris's claims for prospective declaratory and injunctive relief regarding Lazarides's alleged ultra vires acts. Farris has attempted to allege claims for prospective declaratory and injunctive relief based upon Lazarides's alleged ultra vires acts, but has not properly pleaded those claims or stated facts sufficient to demonstrate that those claims are ripe or not moot. Therefore, we reverse and remand those claims to the trial court to allow Farris an opportunity to cure the pleading defects as to his ultra vires claims. With regard to the remaining official capacity claims against Lazarides, we reverse and render judgment dismissing those claims for lack of subject-matter jurisdiction.

Factual Background

Farris resides in the City of Hilshire Village, south of his next door neighbor Sharon Fink.³ Fink built a new home in 2007, landscaped her property, and installed a swimming pool, all of which Farris claims illegally diverted the flow of water from his property. Before Fink made these changes to her property, surface water accumulated from heavy rain drained from Farris's backyard by flowing across the property line Farris shared with Fink into a trench that directed water into the Spring Branch Creek drainage watershed. Farris asserts that Fink obstructed the natural drainage by piling pool dirt along the common property line between the two lots and along the back of her property, and by adding perimeter fencing, plants, concrete structures, and other materials at and near the boundaries of her property.

Fink was required to obtain permits from the City before making these alterations on her property. A certificate of occupancy also was required before she would be allowed to move into her new home. Before permits were to be issued, Fink also was required to submit drainage and building plans to the City that compliedwith building codes and zoning regulations. The consulting engineers for the City approved an initial drainage plan for Fink's property in 2005 that specified, in compliance with the City's zoning regulations, that “final grading shall be such that this property shall not drain on adjacent properties and existing drainages on adjacent properties is not altered.” Farris alleges that the original drainage plan was rendered moot because of changes to Fink's building and landscaping plans, including the addition of a pool, an eight-foot fence, and dense shrubs and trees.

Farris alleges his property flooded in 2007 because of the combination of heavy rain and alterations on Fink's property, causing damage to Farris's property. After this incident, Farris wrote Lazarides,⁴ the City's building official, concerned that the alterations on Fink's property interfered with the preexisting drainage pattern on Farris's property. Lazarides replied that he would ensure Fink's drainage system would accommodate Farris's runoff to the south and Lazarides would not issue a certificate of occupancy until that goal had been accomplished. Lazarides subsequently issued a certificate of occupancy to Fink. Farris claims that Lazarides prevented restoration of the former drainage pattern off his property by following a “back to front drainage rule” contained in the City's drainage criteria and guidelines.

Farris contends that the back-to-front drainage rule conflicts with the City's zoning regulation that requires a property owner to maintain the drainage of her property without adversely affecting the existing drainage pattern of adjacent properties. Specifically, Farris states that Lazarides told him if he made significant changes to or remodeled his property to repair the damages previously caused by flooding, he would be required to direct drainage from his property to the west (the front of Farris's property) instead of to the south where it previously flowed over the property line between Farris's and Fink's properties. Farris contends that the City, through its building official, favors “redirecting existing drainage to comply with a non-ordinance over enforcing the protections of existing drainage contained in [the City's zoning regulations].”

Procedural History

Farris and his wife originally sued Lazarides in his individual capacity, Fink, and others, including Robin Border, the mayor of Hilshire Village. ⁵ Farris supplemented his petition twice and, with his second supplemental petition (the live petition), added Lazarides as a defendant in his official capacity. The trial court granted summary judgment dismissing the claims against the mayor and against Lazarides in his individual capacity. Regarding the claims against him in his official capacity, Lazarides sought dismissal of these claims for lack of subject matter jurisdiction by both a plea to the jurisdiction and by a motion for summary judgment. The trial judge denied Lazarides's motion for summary judgment and did not rule on his plea to the jurisdiction. Farris asked the trial court to non-suit other defendants, which was confirmed. Accordingly, when this appeal was filed, Fink and Lazarides in his official capacity were the only remaining defendants in the suit.

In his second supplemental petition, Farris does not differentiate which of his claims were brought against Lazarides in his individual capacity or official capacity; therefore, notwithstanding the trial court's dismissal of claims against Lazarides individually, it is unclear from the record what official capacity claims remain. Farris asserted claims against Lazarides for “violation of the Restatement of Torts,” negligence per se, and violations of the Texas Water Code. Farris seeks (1) a declaration that Lazarides violated his duty to enforce the City's zoning regulations by (a) maintaining the drainage of Fink's property in a manner that adversely affects the drainage pattern on Farris's property, (b) causing overflow of water due to his failure to adequately accommodate new or changed drainage patterns, and (c) failing to require a drainage engineer to supply a drainage plan in compliance with the zoning ordinance; (2) a declaration that Lazarides exceeded his authority by enforcing compliance with the back-to-front drainage rule; (3) a mandatory injunction ordering Lazarides to refrain from requiring compliance with the back-to-front drainage rule; (4) a mandatory injunction requiring Lazarides to perform his alleged ministerial duty of enforcing “Hillshire Village Zoning Ordinance 11:01.07” (hereinafter the “Ordinance”); (5) actual damages; (6) exemplary damages; and (7) attorney's fees and costs.

Lazarides in his official capacity filed a plea to the jurisdiction and motion for summary judgment. He moved for summary judgment on traditional and no-evidence grounds. Farris did not respond. Though the trial court did not rule on the plea to the jurisdiction, the court denied summary judgment, which included grounds challenging the trial court's subject matter jurisdiction. Lazarides filed this interlocutory appeal, seeking reversal of the trial court's denial of summary judgment and dismissal of the claims against him for want of subject-matter jurisdiction.

Discussion

In his petition, Farris alleged claims against Lazarides in his official capacity, including claims for declaratory relief, a prospective injunction, and damages. We address whether Farris exhausted administrative remedies prerequisite to challenging Lazarides's past decisions, whether any claims for declaratory relief are moot, and whether Farris is entitled to damages as part of his official capacity claims against Lazarides. We also determine whether Farris has properly pleaded ultra vires claims and whether the trial court lacks jurisdiction over any such claims due to lack of standing, lack of ripeness, or immunity under Texas Civil Practice and Remedies Code section 101.106(b).

1. Jurisdiction over Interlocutory Appeal

Only the denial of the jurisdictional challenges contained in Lazarides's motion for summary judgment are at issue in this appeal.⁶ We have jurisdiction to hear interlocutory appeals only as authorized by statute. Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 7 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). Even when the parties do not challenge appellate jurisdiction, we must inquire into our jurisdiction to consider an appeal. Id.

Lazarides brings this appeal under section 51.014(a)(8), which provides for interlocutory appeals from the grant or denial of a plea to the jurisdiction filed by a governmental unit. Tex. Civ. Prac. & Rem.Code § 51.014(a)(8). Here, the trial court did not expressly grant or deny Lazarides's plea to the jurisdiction, but it denied a summary-judgment motion in which Lazarides asserted various jurisdictional challenges. When the record does not contain an order granting or denying a plea to the jurisdiction, but does include an order denying a motion for summary judgment in which the movant challenged the trial court's jurisdiction, an interlocutory appeal may be taken under subsection (a)(8) irrespective of the selected procedural vehicle. Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006...