San Antonio River Authority v. Garrett Bros.
| Decision Date | 23 April 1975 |
| Docket Number | No. 15343,15343 |
| Citation | 528 S.W.2d 266 |
| Parties | SAN ANTONIO RIVER AUTHORITY et al., Appellants, v. GARRETT BROTHERS, Appellee. |
| Court | Texas Court of Appeals |
Harvey L. Hardy, Ralph Brown, Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellants.
Paul M. Green, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.
This is an appeal by defendant governmental agencies, San Antonio River Authority (referred to in this opinion as 'SARA') and the City of San Antonio (identified in this opinion as 'City'), from a judgment based on a jury verdict, awarding plaintiff, Garrett Brothers, a partnership consisting of Charles E. Garrett and Thomas S. Garrett, III, recovery of actual and exemplary damages as a result of the action of City officials, allegedly acting in pursuance of a joint venture with SARA, in halting development of plaintiff's subdivision.
Plaintiff owns approximately 100 acres of land in Bexar County which it acquired for the purpose of subdividing into residential and commercial lots. After plaintiff had obtained appropriate zoning of the land, it submitted the plat and master plan of the proposed subdivision to City's planning Commission, as required by Articles 970a and 974a. 1
For some time prior to the date on which plaintiff submitted its plat for approval, SARA, in conjunction with other governmental agencies, had been engaged in the execution of a watershed protection and flood control project which called for the erection of some 15 dams. According to the plans, one of the dam sites, referred to in the record as site 15, was to be located on the land which plaintiff was proposing to subdivide. There had been discussions between officials of SARA and City concerning this particular dam, since, in connection with the construction of the dam, it was proposed to create a reservoir or lake, and City intended to use the lake as a part of the recreational facilities in a City park which adjoined, or was near to, plaintiff's proposed subdivision. Because of the plans for construction of the dam and lake, consideration was given by City officials to rejection of the proposed plat and master plan in order to prevent development would increase the cost of acquisition of the land required for the project. However, City's legal department advised the planning officials that the fact that it was proposed to acquire plaintiff's land at some future date and that development of the land by plaintiff would increase the cost of such acquisition was not a valid reason for withholding approval of the plat. As a reuslt, the Planning Commission, on August 11, 1971, approved the plat and master plan of the proposed subdivision.
Plaintiff then entered into contracts with various persons, including the municipallyowned utilities, for development of its property in accordance with the plat and master plan. After final engineering work was completed, equipment required for the construction of subdivision improvements, including the construction of street, the installation of sanitary sewers, and the laying of electric, gas and water lines, was moved onto the subdivision site, and construction of the streets called for by the approved plat was begun.
Meanwhile, discussions between SARA and City officials continued in connection with the construction of the proposed dam and lake. The purpose of these discussions was to achieve cooperation between SARA and City in the acquisition of the land required for the public improvement. One of the problems discussed was the increase in land acquisition costs which would result from plaintiff's development of the subdivision, and there was expressed concern that continued development of plaintiff's land might increase the value of such land to the extent that construction of the dam and lake would become economically unfeasible. These discussions were had between administrative or executive officials of the two agencies, and there is no evidence to indicate that, prior to October 20, 1971, the attention of the governing body of either agency was directed to the site 15 project as presenting a special problem.
On October 20, 1971, SARA officials communicated their concern to SARA's governing body and recommended, for the purpose of accelerating acquisition of the required land, the execution of a cooperation agreement between SARA and City. On that date, SARA's governing body authorized the execution of the cooperation agreement .
On October 28, 1971, some members of City's governing body met in what the record discloses was an informal session. City's governing body consists of nine members, but the record does not disclose how many were present at this gathering, although the evidence does disclose the presence of three members. SARA's chief executive officer explained the entire watershed protection and flood control project, and stated that much of the land required for the proposed dams had been acquired by SARA. He then directed attention to the proposed site for dam 15 and the lake and, after pointing out that plaintiff had already begun development of the subdivision, urged that City enter into the cooperation agreement with SARA as soon as possible, since delay would mean that the price of the required land would increase as a result of plaintiff's development and there was a danger that, because of such enhancement in the value of the land, the entire project would 'go out the window.' City's chief executive officer also stressed the need for prompt action in order to prevent further development of plaintiff's land. At the conclusion of the discussion, a member of City's governing body instructed City's chief executive officer to 'prepare whatever is necessary for this and let's go.'
One week later, on November 4, 1971, City's governing body, meeting in formal session, adopted an ordinance authorizing execution of the cooperation agreement on behalf of City.
On November 18, 1971, City's director of planning, in writing, informed various municipal departments and agencies, including the gas and electric and water utilities, of the proposed project and requested that the installation of utilities in the subdivision be discontinued. At the time he took this action, the director of planning knew that the city attorney had given an opinion to the effect that City had no authority to halt further development of plaintiff's subdivision merely because continued development would result in an increase in the cost of acquiring the land in the future.
As a result of the action of City's planning director, plaintiff was told to halt installation of utility lines in the subdivision, and City's director of public works refused to issue permits authorizing plaintiff to install sanitary sewers.
Plaintiff discontinued further development and sought information from SARA concerning the exact location of the proposed dam and reservoir. It was not until some time in December, 1971, that SARA officials were able to furnish this information to plaintiff. Plaintiff's engineers determined that the site chosen for the dam was not the best available site in the area, due to the contours of the land. Plaintiff made the decision of its engineers known to SARA and urged reconsideration of the decision establishing the location of the dam. A re-study of the project by SARA resulted in a modification of the plans for the project, including a relocation of the dam site. On May 22, 1971, SARA informed City officials of the modification and stated that, in view of the change in plans, the continued development of plaintiff's subdivision presented no problem. Plaintiff was then allowed to resume development, although the change in plans did require some modification of plaintiff's planned development.
Neither SARA nor City challenges the sufficiency of the evidence to support the jury's finding relating to actual damages suffered by plaintiff as a result of the interruption of plaintiff's development of its land.
SARA's brief contains 25 points of error, while City's brief contains 19 points. Some points are common to both briefs. City's points are grouped under various headings for the purpose of argument, and plaintiff's brief is substantially similar in organization. To a substantial degree, in discussing the points, we will adopt the same general format, although the points are not necessarily discussed in the order in which they are presented in the briefs.
Under this heading we will consider City's contentions that it is not liable because (1) the acts of which plaintiff complains were Ultra vires as far as City is concerned; (2) the acts of the various municipal officials were neither authorized nor ratified by the city council, City's governing body; (3) the acts of which plaintiff complains were performed in the exercise of a governmental function and, therefore, in no event can City be held liable for the injury suffered by plaintiff; and (4) plaintiff's suit cannot be maintained because plaintiff failed to give the written notice of his claim which is required by City's charter. Since SARA also invokes the doctrine of ultra vires, this point will be discussed first.
(1). Ultra vires. Sometimes, the term 'ultra vires' is used in a broad sense including not only an act which is not within the power of a municipal corporation to perform, but also an act which is within the powers of the governmental agency but which is done by its officials or employees who were not authorized to engage in such conduct. See City of Waco v. Thompson, 127 S.W.2d 223 (). This extended meaning of the term can only result in confusing questions of governmental power with questions of an agent's authority. We will restrict use of the term to its strict and primary meaning, that is, an act which is beyond the power of a municipality to...
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