Roberson v. City of Austin

• Citation: 157 S.W.3d 130
• Decision Date: 21 January 2005
• Docket Number: No. 03-03-00457-CV.,03-03-00457-CV.
• Parties: Kenneth A. ROBERSON, Jr., Appellant, v. CITY OF AUSTIN and Jester Development Corporation, Appellees.
• Court: Texas Court of Appeals

157 S.W.3d 130

Kenneth A. ROBERSON, Jr., Appellant, v. CITY OF AUSTIN and Jester Development Corporation, Appellees.

No. 03-03-00457-CV.

Court of Appeals of Texas, Austin.

January 21, 2005.

Brandon W. Beasley, Travis R. Phillips, Law Office of Travis R. Phillips, P.C., Austin, for appellant.

Nancy K. Matchus, Asst. City Atty., Austin, for appellee.

Before Justices B.A. SMITH, PURYEAR and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

This case involves a dispute between Kenneth A. Roberson, the City of Austin, and Jester Development Corporation regarding an unrecorded sanitary sewer easement. We decide whether Roberson's suit under the Uniform Declaratory Judgment Act ("UDJA")¹ was a proper means of determining the validity of the easement. We also decide whether the trial court abused its discretion in including "proximate cause" and "new and independent cause" definitions and instructions in takings-claim jury questions regarding remainder damages and whether the trial court properly granted summary judgment against Roberson's claim that the City's failure to notify him of an unrecorded easement's existence violated his constitutional rights. For the reasons stated below, we affirm in part, reverse in part, and remand for a determination of whether attorney's fees are warranted.

BACKGROUND

In 1979, Jester Development Corporation ("Jester") began development of the Jester Estates subdivision in the City of Austin. Under the development plan approved by the City, Jester was responsible for designing and constructing sewer lines for the subdivision. City policy then required Jester to dedicate sanitary sewer easements to the City. See Austin City Code § 41-29 (Mun.Code Corp.1967).

In 1980, Jester's engineering subcontractor, Espey, Huston & Associates, Inc. ("Espey"), designed and installed a sewer line running along a portion of the north side of what would later become appellant Kenneth A. Roberson's property. Although the subdivision's plat correctly indicated that there was a utility easement on the east boundary of the subject property, it did not reflect that there was a sanitary sewer easement along the north edge of the property. On March 26, 1980, Jester separately dedicated to the City a sanitary sewer easement along the north side of the subject property, allowing the City to perpetually maintain the sewer line. The executed easement was forwarded to the City but was not recorded in the Travis County deed records.² On July 1, 1982, the City accepted ownership and responsibility for maintaining the sewer line.

A home builder then constructed a house on the subject property. Roberson purchased the property and the house on March 1, 1983. The purchase documents did not reflect the presence of the sanitary sewer easement located on Roberson's northern lot line.

The sewer line under Roberson's property also ran beneath the property of his rear neighbor, Johnny Paul. In 1985, Paul had sued the City for damages allegedly caused by settling of the fill covering the buried sewer line. In response to the lawsuit, the City investigated and confirmed that it did not have recorded easements for the sewer lines running through Jester Estates. The Assistant Director of Engineering for the City's Water and Wastewater Utility considered a plan to have Espey contact affected Jester homeowners and inform them of the easements. Although the assistant director contacted Espey, the other residents of the subdivision were not notified of the easement problem by either Espey or the City. The City settled the lawsuit with Paul in 1988.

In 1997, Roberson noticed problems with his deck support and cracks in concrete flatwork on the northern side of the property. He also saw evidence of soil subsidence on the north and east side of his property.³ Roberson asked Paul if he had also experienced problems on his adjacent property. Paul referred Roberson to his attorney, who then informed Roberson that an unrecorded sewer main ran beneath their properties.⁴ According to Roberson, this was when he first learned of the easement and sewer line.

On May 29, 1998, Roberson sued the City under the UDJA seeking a declaration that the easement was invalid and that he owned the portion of the sewer line and sanitary sewer easement within his property boundaries. He sought attorney's fees and an injunction to bar the City from preventing his removal of the line. Roberson also brought alternative inverse condemnation and bad-faith taking claims. See Tex. Const. art I, § 17. In addition to these state law claims, Roberson brought six claims alleging violation of his rights under the United States Constitution. See 42 U.S.C. § 1983. Among these claims were alleged violations of his equal protection, substantive due process, and procedural due process rights. See U.S. Const. amend. XIV, § 1. In response, the City filed a general denial and sought a declaration under the UDJA that, by either express dedication or by implication, the City owned the wastewater line and associated easement. The City also asserted an alternative counterclaim for condemnation. See Tex. Prop.Code Ann. § 21.017 (West 2004).

The trial court granted a no-evidence partial summary judgment in favor of the City on Roberson's bad-faith taking and constitutional claims. The case proceeded to jury trial. The jury found the City had neither a valid express easement nor an implied easement. The jury also made findings that the fair market value of the easement as of the date of trial was $6,000, that the damage to the remainder of Roberson's property by reason of the taking was $25,000 as of the date of trial, and that Roberson's reasonable attorney's fees for preparation and trial totaled $111,227.

Following the verdict, Roberson moved for judgment under his UDJA claim, which would have authorized the trial court to award him attorney's fees. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997). He also sought the above damages awarded by the jury as compensation for the City's taking of the easement and damages to the remainder. The trial court denied Roberson's proposed election to recover under the UDJA because it decided that the action should have been brought as a trespass to try title action rather than as a request for a declaration. See Tex. Prop.Code Ann. § 22.001 (West 2004). But it did award Roberson the $31,000 of damages he had sought: $6,000 for the value of the easement and $25,000 for damage to the remainder of the property. As a result of the condemnation, the trial court also awarded the City title to the sanitary sewer easement. This appeal followed.

DISCUSSION

Roberson brings three issues on appeal. First, he contends that the trial court abused its discretion by holding that the UDJA was unavailable and denying him attorney's fees. Second, he asserts that the trial court erred by including "proximate cause" and "new and independent cause" instructions and definitions in the jury questions regarding his remainder damages. Third, he argues that the trial court erred in granting summary judgment to the City on his procedural due process, substantive due process, and equal protection claims. We will address each issue in turn.

Declaratory judgment act and attorney's fees

In his first issue, Roberson argues that the UDJA is a proper vehicle for determining the validity of an easement. We agree.

The body of law regarding the interrelation of trespass to try title, the UDJA, and easements remains contradictory and confused. See Martin v. Amerman, 133 S.W.3d 262, 264 (Tex.2004) (addressing, in boundary dispute case, confusion over applicability of UDJA and trespass to try title, but not mentioning easements or other nonpossessory property interests). The UDJA allows a party to seek a declaration of rights, status, or other legal relations under a deed, will, written contract, or other writings. Tex. Civ. Prac. & Rem.Code Ann. § 37.004 (West 1997). It is to be liberally construed and administered. Id. § 37.002(b).

Texas courts have often applied the UDJA in construing the existence and scope of easements. See, e.g., Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex.App.-Austin 2000, no pet.) (affirming trial court's declaratory judgment that plaintiffs had easement appurtenant to use water and septic lines); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984) (determination under UDJA of whether implied easement by necessity had been established); Jones v. Fuller, 856 S.W.2d 597, 602 (Tex.App.-Waco 1993, writ denied) (declaratory judgment that deed had conveyed to plaintiffs valid easements appurtenant).

Texas courts have also allowed parties to use trespass to try title actions to determine issues involving easements. See, e.g., Ellis v. Jansing, 620 S.W.2d 569, 569 (Tex.1981) (trespass to try title case involving claim of adverse possession of storm sewer easement owned by City of Waco); see also Texas Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 152 (Tex.App.-Austin 1998, no writ) (discussing trespass-to-try-title claim urging court to void State's easement, but dismissing claim on other grounds). "A trespass to try title action is the method of determining title to lands, tenements, or other real property." Tex. Prop.Code Ann. § 22.001 (West 2004). In an action for trespass to try title, the defendant must be the person in possession if the property is unoccupied, or must be a person claiming title thereto if the property is occupied. Tex.R. Civ. P. 784. The trespass to try title cause of action does not allow for the recovery of attorney's fees. Martin, 133 S.W.3d at 264.

In other cases, however, Texas courts have held that trespass to try title is not available where the property interest at issue is an easement or other nonpossessory interest. See, e.g., Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712, 714 (1956) (stating that remedy of trespass to try title is not available to owner of ordinary easement because...