                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00452-CV


MICHAEL MCDANIEL                                                     APPELLANT

                                        V.

THE TOWN OF DOUBLE OAK                                                 APPELLEE


                                     ----------

          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                     ----------

                        MEMORANDUM OPINION1
                                     ----------

                                 I. INTRODUCTION

      The primary issue we address in this appeal is whether the trial court erred

by determining that it did not possess jurisdiction over three claims asserted by

Appellant Michael McDaniel against the Town of Double Oak (the Town).

Because we hold that the trial court possesses jurisdiction over McDaniel‘s

claims, we reverse the trial court‘s order dismissing McDaniel‘s claims for want of


      1
       See Tex. R. App. P. 47.4.
jurisdiction, and we remand the case to the trial court for further proceedings

consistent with this opinion.

                      II. FACTUAL AND PROCEDURAL BACKGROUND

       McDaniel owned a fourteen-acre piece of property in the Town.          He

wanted to construct and operate a self-storage facility on the property. Because

the Town‘s zoning ordinance did not permit that use, McDaniel proposed and

obtained approval from the planning and zoning commission for a specific use

permit (SUP). The Town Council then unanimously passed Ordinance No. 04-

07, granting McDaniel‘s SUP. After McDaniel submitted detailed architectural

plans along with the rest of his building permit application, the Town approved

the plans and issued McDaniel a permit. When McDaniel attempted to construct

a monument sign for the self-storage facility as indicated on the SUP, the Town

officials informed McDaniel that he must submit another application, pay another

fee, and obtain another permit to erect the sign. McDaniel complied, and the

Town then refused to grant him a permit to erect the sign. Further disputes arose

between McDaniel and the Town concerning the assessments that he was

required to pay for sewer connection fees at the self-storage facility and the

building permit fees that he was ultimately required to pay after the Town

inspected his facility. McDaniel paid all of the required fees and, subsequently,

filed this lawsuit.

       McDaniel‘s suit sought recoupment of fees he alleged were improperly

charged by the Town for the sewer tap and for building permit fees and also

sought a declaration that he could erect the sign. The Town filed a plea to the

jurisdiction as to the two fee recoupment claims asserted by McDaniel; the Town

expressly conceded that it did not possess immunity for McDaniel‘s declaratory


                                       2
judgment claim concerning the sign.2 The Town sought summary judgment on

that claim. McDaniel also sought summary judgment on the sign claim. The trial

court granted McDaniel summary judgment on his sign claim and denied the

Town‘s plea to the jurisdiction. The Town perfected an interlocutory appeal of

the trial court‘s ruling on its plea to the jurisdiction,3 and this court reversed the

trial court‘s ruling on the Town‘s plea to the jurisdiction; we specifically required,

however, that McDaniel be given an opportunity to replead his claims. 4 Back in

the trial court, the Town filed a second plea to the jurisdiction asserting the same

grounds as its first plea to the jurisdiction, and in accordance with our opinion,

the trial court then entered an order granting the Town‘s plea to the jurisdiction

and permitting McDaniel to replead.

      McDaniel repleaded his two fee claims, adding constitutional challenges to

the sewer tap fee claim and the building permit fee claim.5 The Town filed a third

plea to the jurisdiction, again asserting the same grounds as its other two pleas

      2
      The Town pleaded, ―The sole claim of Plaintiff that is not barred by
immunity is the request that the Court issue a declaration that the Town had
approved his commercial sign when it granted him the specific use permit.‖
      3
      In the interlocutory appeal, we specifically noted that McDaniel‘s sign
claim was not before us. See Town of Double Oak v. McDaniel, No. 02-09-
00046-CV, 2009 WL 2579613, at *3 n.7 (Tex. App.—Fort Worth 2009, no pet.).
      4
        Id. at *4 (remanding McDaniel‘s declaratory judgment claims to the trial
court to afford McDaniel the opportunity to replead).
      5
        McDaniel actually added his constitutional claims to an earlier petition, but
they were not addressed by the Town‘s plea to the jurisdiction and consequently
were specifically not addressed by this court in the Town‘s interlocutory appeal.
See id. at *3 n.3 (noting that ―[i]n McDaniel‘s most recent petition, he adds claims
for violations of the Texas constitution. These claims were not addressed in [the
Town‘s] plea to the jurisdiction‖).


                                          3
to the jurisdiction except incorporating claims that the trial court also lacked

jurisdiction over McDaniel‘s constitutional claims.       The trial court denied the

Town‘s third plea to the jurisdiction, and McDaniel‘s two fee claims proceeded to

a two-day nonjury trial. At the conclusion of the bench trial, the trial court signed

an order of dismissal, specifically finding that it lacked jurisdiction and ordering

―all claims herein be and are hereby dismissed.‖ The trial court also signed

findings of fact and conclusions of law.

      McDaniel perfected this appeal from the order of dismissal. In two issues,

McDaniel claims that the trial court does possess jurisdiction over all three of his

claims: the sign claim, the sewer tap fee claim, and the building permit fee claim.

The Town responds that it possesses immunity from all of McDaniel‘s claims

under various theories; the Town also argues that McDaniel lost his standing

after he filed suit by selling the storage facility and that, therefore, the trial court

properly dismissed all of McDaniel‘s claims.

                              III. STANDARD OF REVIEW

      The parties disagree on the applicable standard of review. McDaniel urges

us to apply the standard of review applicable to pleas to the jurisdiction, arguing

that by signing an order that dismissed his ―case and all claims‖ and that

expressly stated that ―the Court finds that it does not have jurisdiction,‖ the trial

court granted the Town‘s third plea to the jurisdiction and did not reach the merits

of any of McDaniel‘s claims. The Town, on the other hand, urges us to apply the

legal and factual sufficiency standards of review applicable to findings of fact and

conclusions of law, arguing that McDaniel‘s claims were tried in a two-day bench

trial, that the trial court signed findings of fact and conclusions of law, and that




                                           4
the order of dismissal must be upheld on any theory supported by the findings of

fact and conclusions of law, whether merit-based or related to jurisdiction.

      McDaniel and the Town are both partially correct. We agree with McDaniel

that, because the trial court signed an order dismissing all of his claims for want

of jurisdiction, the trial court ruled only on the jurisdictional issue and did not

reach the merits of his claims except to the extent necessary to resolve the

jurisdictional issues. See, e.g., Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555

(Tex. 2002) (explaining that in reaching a decision on jurisdiction, the trial court

does not weigh merits of claims). We agree with the Town that because the trial

court resolved the jurisdictional issue at the trial on the merits, acting as the

factfinder to resolve disputed jurisdictional facts implicating the merits of

McDaniel‘s claims, see Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 225–26 (Tex. 2004) (recognizing that in some cases the jurisdictional facts

implicated in the sovereign‘s plea to the jurisdiction are so intertwined with the

underlying merits that the factfinder must resolve the disputed facts concerning

jurisdiction at a trial on the merits), its unchallenged jurisdictional-related findings

of fact are binding on this court unless the contrary is established as a matter of

law. Id.; McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). Because

the appellate record contains a complete reporter‘s record of the trial, the trial

court‘s jurisdictional-related findings of fact may be challenged for and reviewed

for legal and factual sufficiency of the evidence. See Ortiz v. Jones, 917 S.W.2d

770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).


                                           5
The trial court‘s nonjurisdictional-related findings of fact, however, are not

relevant to our review of whether the trial court properly dismissed all of

McDaniel‘s claims for want of jurisdiction. See Miranda, 133 S.W.3d at 226, 228

(recognizing trial court reviews only jurisdictional-related evidence in determining

jurisdiction); Cnty. of Cameron, 80 S.W.3d at 555 (limiting jurisdictional inquiry to

review of evidence related to jurisdiction).

      Thus, in summary, as set forth above, because the trial court ruled on the

jurisdictional issues following a bench trial, we review the trial court‘s findings of

fact related to jurisdiction that are challenged on appeal for legal and factual

sufficiency; we review the trial court‘s legal conclusions regarding jurisdiction de

novo; and we do not review at all the trial court‘s findings of fact or conclusions of

law that are related only to the merits of McDaniel‘s claims and not to jurisdiction.

See Miranda, 133 S.W.3d at 226, 228.

      In reviewing the trial court‘s findings of fact related to jurisdiction that are

challenged on appeal, we utilize the same standards that we apply in reviewing

jury findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991); Ahmed v. Ahmed, 261 S.W.3d 190, 193–94 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). When reviewing the legal sufficiency of the evidence to

support a finding of fact, we determine whether the evidence would enable

reasonable and fair-minded people to reach the finding under review. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In conducting this review, we

credit favorable evidence if reasonable factfinders could and disregard contrary


                                          6
evidence unless reasonable factfinders could not. Id. We consider the evidence

in the light most favorable to the finding under review and indulge every

reasonable inference that would support it. Id. at 822. We must, and may only,

sustain no-evidence points when either the record reveals a complete absence of

evidence of a vital fact, the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact, the evidence

offered to prove a vital fact is no more than a mere scintilla, or the evidence

establishes conclusively the opposite of the vital fact. Id. at 810.

                      IV. THE TOWN’S ALTERNATIVE THEORIES

      Before addressing McDaniel‘s challenges to the trial court‘s dismissal of

his claims, we address the Town‘s contentions that, regardless of the propriety of

the trial court‘s ruling on the Town‘s plea to the jurisdiction, the trial court properly

dismissed all of McDaniel‘s claims because (1) although McDaniel may have

possessed standing when he filed suit, he ―lost‖ standing to assert all of his

claims when he sold the property during litigation; (2) McDaniel did not challenge

the validity of the sewer tap fee ordinance or the building permit fee ordinance;

and (3) the trial court found that McDaniel voluntarily paid the fees without protest

and without duress.

                              A. McDaniel’s Standing

      The Town asserts that the trial court properly dismissed all of McDaniel‘s

claims because McDaniel ―lost‖ standing to assert them when, in 2008 during the

course of the litigation, he sold the self-storage facility property to MeMc I, LLC.


                                           7
In Texas, the standing doctrine requires that there be (1) ―a real controversy

between the parties‖ that (2) ―will be actually determined by the judicial

declaration sought.‖ Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849

(Tex. 2005). The cause of action for an injury to property belongs to the person

owning the property at the time of the injury. Vial v. Gas Solutions, Ltd., 187

S.W.3d 220, 226–27 (Tex. App.—Texarkana 2006, no pet.); Glover v. Union Pac.

R.R. Co., 187 S.W.3d 201, 209 (Tex. App.—Texarkana 2006, pet. denied); see

also Denman v. Citgo Pipeline Co., 123 S.W.3d 728, 732 (Tex. App.—Texarkana

2003, no pet.) (holding plaintiff property owners lacked standing when injury to

property occurred before plaintiffs purchased the property and their deeds

contained no assignment of any cause of action).        Only the person whose

primary legal right has been breached has standing to seek redress for an injury.

Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976); Glover, 187 S.W.3d at 209.

      Here, the Town contends that McDaniel possessed standing when he filed

suit because he owned the property but that his sale of the property during the

litigation deprived him of standing. To the extent ownership of the property is

relevant to McDaniel‘s standing, he owned the property at the time of the

payment of the building permit fees and sewer tap fees that he claims were

improperly calculated, and he paid them personally. He also owned the property

when the Town decided that the SUP did not authorize him to erect a monument

sign and denied him the right to do so. Thus, McDaniel possesses standing

regardless of any subsequent sale of the property. Vial, 187 S.W.3d at 226–27;


                                       8
Glover, 187 S.W.3d at 209; see also Denman, 123 S.W.3d at 732. And, more

importantly, despite the sale of the property, McDaniel pleaded and proved for

jurisdictional purposes that he suffered a particularized injury distinct from that

suffered by the general public. See, e.g., Bland ISD v. Blue, 34 S.W.3d 547,

555–56 (Tex. 2000); Glover, 187 S.W.3d at 209.            We reject the Town‘s

contention that McDaniel‘s sale of the self-storage facility in 2008 after he had

personally paid the building permit fees and sewer tap fees and after the Town

had denied him the right to erect a monument sign caused him to lose standing.

                         B. Challenges to Ordinances

      The Town claims that McDaniel failed to challenge the validity of the

ordinances at issue. But the record reflects that McDaniel does not complain of

the invalidity of the ordinances; he instead complains that the way in which the

Town applied the valid ordinances to him was unconstitutional. McDaniel claims

that the Town miscomputed the sewer tap fees he owed under the sewer tap

ordinance, resulting in an overcharge,6 and misapplied portions of the building

fee permit ordinance to his property, also resulting in an overcharge, not that the

ordinances themselves are invalid. McDaniel‘s fifth amended petition pleaded in

part, ―Plaintiff is, inter alia, requesting that this Honorable Court declare the

      6
        The Town concedes that it did miscalculate the sewer tap fees and that
McDaniel proved the miscalculation at trial; the Town‘s appellate brief states, ―It
is important to note that in this appeal the Town does not maintain that the sewer
tap fee was calculated correctly. The language of the ordinance and the proof
regarding the way in which the fee was calculated suggest that the Town erred in
its calculation.‖


                                        9
application of the Ordinance to be violative of Plaintiff‘s rights guaranteed to them

by the Texas Constitution.‖ [Emphasis added]. McDaniel specifically pleaded

that the illegal fees imposed by the Town under its sewer tap fee ordinance and

its building fee permit ordinance amounted to a taking without due process of

law.   Thus, contrary to the Town‘s contention, McDaniel did challenge the

ordinances to the extent he challenged the way, and the constitutionality of the

way, that the Town applied them to him; the Town has not cited, and we have not

located, case law supporting the proposition that anything more is required when

a plaintiff challenges the legality or constitutionality of fees based on the way a

municipality computed the fees owed by the plaintiff under a particular ordinance.

                           C. Payment Under Protest

       The trial court‘s findings of fact 10 and 11 state, respectively, that ―[a]ll

building permit fees and sewer connection or tap fees were paid voluntarily with

full knowledge and awareness of all facts, and without mutual mistake of fact,

fraud or duress,‖ and ―[a]ll building permit fees and sewer connection or tap fees

were paid without protest.‖    McDaniel pleaded that all fees were paid under

protest7 and on appeal challenges the legal sufficiency of the evidence to support


       7
        Specifically, McDaniel pleaded concerning the sewer tap fee that he paid
―the fee under duress so that he could complete his development on time‖;
concerning the building permit fee, he pleaded that he ―paid these fees under
duress. Both the Town and its attorney made it clear that if McDaniel did not pay
the fees he would not be permitted to construct his project and could also face
significant penalties‖; and concerning both fees generally, he pleaded that ―the
financially crippling over-invoicing . . . has left McDaniel unable to maximize the
commercial property‘s value, resulting in significant financial harm[,]‖ that he

                                         10
findings of fact 10 and 11.     McDaniel argues that the evidence conclusively

establishes the opposite of findings of fact 10 and 11; that is, that he paid the

fees under business compulsion, duress, or implied duress.

      Charles Wright, the building official and the director of public works for the

Town, testified:

      Q. Did -- Mr. McDaniel ultimately paid the amounts that are
      represented in Exhibit 18, correct?

      A. Yes.

      Q. And if he had not paid that amount that you specified, would he
      have been able to build the project that had been approved by the
      SUP?

      A. No, he would not.

      Q. He would not have been able to go forward at all?

      A. Not at all, not without being fined.

      Q. And not only not -- not being fined, but it‘d be a criminal violation
      wouldn‘t it?

      A. It could be.

      Q. And this Town could prosecute him?


―paid the fees under protest and under the continued duress of the Town‘s
comply or close your business mentality[,]‖ that ―McDaniel continues to suffer
damages as a result of Double Oak‘s persistent refusal to properly apply its own
city ordinance[,]‖ that the illegal portion of the fees constituted a taking that was
―completed without McDaniel‘s voluntary consent[,]‖ and that ―McDaniel protested
the amount of fees before paying; however, Double Oak refused to return the
excess permit fee amounts he was forced to pay.‖ Likewise, on appeal,
McDaniel argues that the evidence conclusively established he paid the fees
under protest.


                                         11
       A. It‘d be a -- to my knowledge, it would be a Class C misdemeanor.

       Concerning the sewer tap fees, McDaniel testified:

       Q. If you hadn‘t paid the sewer tap fee, would you have been able
       to tap into the sewer line?

       A. I don‘t believe so.

       Q. Did you need the sewer line to operate your business?

       A. Yes.

       The supreme court has repeatedly recognized that business compulsion

constitutes duress and defeats a claim of voluntary payment of an illegal tax or

fee.   See Lowenberg v. City of Dallas, 261 S.W.3d 54, 59–60 (Tex. 2008)

(holding that payment of city fee implemented through city ordinance and

assessed against commercial buildings to generate funds for fire protection

services was not voluntary when nonpayment of the fee constituted a Class C

misdemeanor); Miga v. Jensen, 96 S.W.3d 207, 211 (Tex. 2002) (holding

compulsion implied by the threat of statutory penalties and interest for failure to

pay the governmental exaction); Highland Church of Christ v. Powell, 640

S.W.2d 235, 237 (Tex. 1982) (holding that duress may be implied from a statute

that imposes a penalty and interest for failure to timely pay a tax); State v. Akin

Prods. Co., 286 S.W.2d 110, 111–12 (Tex. 1956) (holding that if a reasonably

prudent man finds that in order to preserve his property or protect his business

interest it is necessary to make a payment of money which he does not owe, the

taxes are paid under duress); Crow v. City of Corpus Christi, 146 Tex. 558, 563,

209 S.W.2d 922, 925 (1948) (holding city ordinance requiring payment of illegal

cab operator‘s license fee under threat of forfeiting the right to do business



                                        12
constituted payment under duress or business compulsion as a matter of law).

The evidence in the record before us conclusively establishes that McDaniel‘s

payment of the fees was not voluntary; we need not decide whether he paid the

fees under the theory of business compulsion, the theory of duress, or the theory

of implied duress. The record conclusively establishes that McDaniel‘s payment

of the fees was not voluntary because payment was necessary to avoid

committing a Class C misdemeanor, to preserve his property, to protect his

business interest, and to avoid forfeiting his right to do business as a self-storage

facility.

        Findings of fact numbers 10 and 11 are supported by legally insufficient

evidence. In fact, the evidence conclusively establishes the opposite of these

findings; that is, the evidence conclusively establishes that McDaniel did not

voluntarily pay the fees. See City of Keller, 168 S.W.3d at 810 (explaining that

appellate court must sustain no-evidence challenge when the evidence

conclusively establishes the opposite of the challenged fact). So, to the extent

findings of fact 10 and 11 may be intertwined with the jurisdictional issue,

because they are supported by legally insufficient evidence, they provide no

factual basis for the trial court‘s legal ruling that it lacked jurisdiction over all of

McDaniel‘s claims.

        Having determined that each of the three alternative theories propounded

by the Town for affirming the trial court‘s dismissal order are not meritorious, we

next address McDaniel‘s two issues challenging the order dismissing his claims

for want of jurisdiction.




                                          13
      V. THE TRIAL COURT POSSESSES JURISDICTION OVER MCDANIEL’S CLAIMS

                                 A. The Sign Claim

      The Town never asserted immunity concerning McDaniel‘s sign claim. To

the contrary, the Town pleaded that McDaniel‘s sign claim was not barred by

immunity by pleading: ―The sole claim of Plaintiff that is not barred by immunity

is the request that the Court issue a declaration that the Town had approved his

commercial sign when it granted him the specific use permit.‖ And prior to the

Town‘s interlocutory appeal, McDaniel pleaded for––and after the interlocutory

appeal he obtained––a February 5, 2009 declaratory judgment summary

judgment that the SUP granted by the Town to McDaniel authorized him to erect

a monument sign.      Specifically, the summary judgment granted to McDaniel

provided:

      Therefore, it is hereby:

           ORDERED, ADJUDGED AND DECREED that Plaintiff
      Michael McDaniel‘s Partial Motion for Summary Judgment is
      GRANTED;

             It is further ORDERED, ADJUDGED AND DECLARED that
      Defendant The Town of Double Oak (―Double Oak‖) approved
      Plaintiff Michael McDaniel‘s (―McDaniel‖) monument sign when
      Double Oak granted McDaniel‘s Specific Use Permit application
      (―SUP‖) and adopted an ordinance granting the SUP;

             It is further ORDERED, ADJUDGED AND DECLARED that
      McDaniel is entitled to install a monument sign as set forth in the plat
      approved and adopted during the SUP process, the architectural
      review process[,] and the Ordinance Amendment, and shall be
      installed as specifically designated in Exhibit ―A‖, attached hereto[.]

      We have thoroughly reviewed the reporter‘s record from the bench trial


                                        14
and the exhibits admitted into evidence.            McDaniel‘s sign claim was not

mentioned in any way during the trial; it was simply not tried in the bench trial

conducted before the court. Indeed, why would it have been since a summary

judgment had been granted on that claim? Instead, during closing arguments,

the Town argued for the first time to the trial court:

      [Y]ou should reconsider the -- the interim summary judgment that --
      that granted them the relief that they‘re asking for in connection with
      the monument sign. I didn’t produce any evidence, and – and the
      only thing that I can do about that -- frankly, there‘s nothing that I
      can do about that unless and until there‘s an appeal of this case.
      That issue was based solely on an interpretation of the actual SUP
      that gave him the right to operate this business in the first place. . . .
      In any event, I could not take an interlocutory appeal on that part of
      the -- of the February 2009 orders because it was -- it was an interim
      summary judgment, not a plea to the jurisdiction. I did not have the
      right to take an interlocutory appeal. . . . If they lack standing to bring
      this lawsuit at all, if -- MeMcI is the real party in interest, and in fact it
      is, and MeMcI has never sued the Town of Double Oak, then this
      case has to be dismissed which means all of it has to be dismissed,
      including the interim orders. [Emphasis added].

The Town conceded in closing argument, as quoted and italicized above, that no

evidence was admitted at trial concerning McDaniel‘s sign claim.

      Although no evidence exists in the record concerning the sign claim, the

trial court‘s finding of fact number 8 nonetheless states that

      [t]he claims of Plaintiff relating to the monument sign are brought
      under the Texas Declaratory Judgment Act, Chapter 37, Texas Civil
      Practice and Remedies Code. The claims assert that a Specific Use
      Permit zoning ordinance adopted by the Town in 2004 granted him
      the right to construct a monument sign in specific dimensions and
      design. This ordinance does not specify the dimensions or design of
      the monument sign and does not authorize the construction of a
      monument sign.



                                           15
No evidence supports finding of fact number 8; and moreover, to the extent

finding of fact number 8 reaches the merits of McDaniel‘s sign claim, it is not

pertinent to our analysis of whether the trial court possessed jurisdiction over

McDaniel‘s sign claim and erred by dismissing the sign claim for want of

jurisdiction. For both of these reasons, we disregard finding of fact number 8.

      In summary, because the Town conceded that it did not possess sovereign

immunity for McDaniel‘s sign claim, because the record reflects and the Town

conceded that it ―didn‘t produce any evidence‖ at trial concerning McDaniel‘s

claim on which summary judgment had already been granted, and because we

have held that McDaniel did not lose standing when in 2008 he transferred or

sold his storage facility to an entity named MeMc I, LLC., we sustain the portion

of McDaniel‘s first issue complaining that the trial court erred by dismissing his

sign claim for want of jurisdiction.

           B. The Sewer Tap Fees and Building Permit Fees Claims

      In his sewer tap fees claim, McDaniel did not challenge the validity of the

City‘s ordinance. Instead, he asserted a declaratory judgment action seeking a

declaration that the Town had miscalculated the fees he owed pursuant to the

ordinance and asserted in a common law and constitutional equitable

recoupment claim that he was entitled to reimbursement for the portion of the

fees that were illegally and unconstitutionally assessed against him. The Town

concedes that it overcharged McDaniel for the sewer tap fees, stating in its brief,

―It is important to note that in this appeal the Town does not maintain that the


                                        16
sewer tap fee was calculated correctly. The language of the ordinance and the

proof regarding the way in which the fee was calculated suggest that the Town

erred in its calculation.‖ In his building permit fees claim, McDaniel likewise did

not challenge the validity of the ordinance, but he sought a declaration that the

Town had miscalculated the fees he owed under the ordinance and asserted a

common law and constitutional equitable recoupment claim that he was entitled

to reimbursement for the portion of the fees that were illegally and

unconstitutionally assessed against him.      Concerning the building permit fee

claim, McDaniel pleaded that ―Double Oak effectively charged $36,930 more

than it was entitled to charge‖ for the building permit fees based on the type of

buildings erected.

      A person who pays government fees and taxes under business

compulsion, duress, or implied duress has a valid claim for their repayment.

Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005) (citing

Union Cent. Life Ins. v. Mann, 158 S.W.2d 477, 479 (Tex. 1941)); see

Lowenberg, 261 S.W.3d at 59 (rendering judgment for plaintiffs in declaratory

judgment tax refund suit and explaining that city ―cannot extract millions in

unlawful fees and fines, decide the whole thing was a mistake, keep the money,

and insist the whole matter is moot‖); Camacho v. Samaniego, 831 S.W.2d 804,

812–14 (Tex. 1992) (holding plaintiffs entitled to refund of preconviction bail bond

fee they had paid and remanding case for trial on damages); Akin Prods. Co.,

286 S.W.2d at 111–12 (holding that plaintiff was entitled to refund of taxes paid


                                        17
under protest); Crow, 209 S.W.2d at 925 (rendering judgment that plaintiff

recover taxes and charges paid to the city per its ordinance); Gatesco, Inc. v.

City of Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010,

no pet.) (holding ―governmental immunity will not defeat a claim for declaratory or

injunctive relief seeking the refund of illegally collected taxes or fees if the plaintiff

alleges ‗that the payments were made as a result of fraud, mutual mistake of fact,

or duress, whether express or implied‘‖) (quoting Nivens v. City of League City,

245 S.W.3d 470, 474 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)); Saturn

Capital Corp. v. City of Houston, 246 S.W.3d 242, 245 (Tex. App.––Houston

[14th Dist.] 2007, pet. denied) (explaining that ―Texas has long recognized . . .

that sovereign immunity does not prevent a party who paid illegal government

taxes and fees under duress from filing a lawsuit to seek their repayment‖);

Appraisal Review Bd. of El Paso Cnty. Cent. Appraisal Dist. v. Fisher, 88 S.W.3d

807, 811–13 (Tex. App.––El Paso 2002, pet. denied)8 (holding that ―courts have

historically asserted jurisdiction over suits where a taxpayer alleges violations of

      8
         Citing Republic Ins. Co. v. Highland Park ISD, 141 Tex. 224, 227–28, 171
S.W.2d 342, 344 (1943); State, Cnty. of Bexar v. Southoaks Dev. Co., 920
S.W.2d 330, 335–36 (Tex. App.––San Antonio 1995, writ denied); Inwood Dad’s
Club, Inc. v. Aldine ISD, 882 S.W.2d 532, 537–38 (Tex. App.—Houston [1st Dist.]
1994, no writ); City of Houston v. Harris Cnty. Outdoor Adver. Ass’n, 879 S.W.2d
322, 334 (Tex. App.––Houston [14th Dist.] 1994, writ denied), cert. denied, 516
U.S. 822 (1995); New v. Dallas Appraisal Review Bd., 734 S.W.2d 712, 714
(Tex. App.––Dallas 1987, writ denied); Garza v. Block Distrib. Co., 696 S.W.2d
259, 262 (Tex. App.––San Antonio 1985, no writ); City of Corpus Christi v.
Arnold, 424 S.W.2d 492, 496 (Tex. Civ. App.––Corpus Christi 1968, writ ref‘d
n.r.e.); and City of El Paso v. Howze, 248 S.W. 99, 100–01 (Tex. Civ. App.—El
Paso 1923, writ ref‘d).


                                           18
his/her constitutional rights‖).

      The reason that these types of claims are not barred by governmental

immunity has been succinctly articulated:

             Governmental immunity from suit defeats a trial court‘s
      subject-matter jurisdiction and is properly asserted in a plea to the
      jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
      1999). Generally, a party suing a governmental entity must establish
      consent to sue, which may be alleged either by reference to a
      statute or to express legislative permission. See Mo. Pac. R.R. Co.
      v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970).

             However, where a claim for declaratory or injunctive relief is
      brought seeking the refund of illegally collected tax payments,
      governmental immunity will not apply if the taxpayer alleges that the
      payments were made as a result of fraud, mutual mistake of fact, or
      duress, whether express or implied. See Dallas County Cmty.
      College Dist. v. Bolton, 185 S.W.3d 868, 876–79 (Tex. 2005)
      (holding that a taxpayer cannot bring a suit for the return of illegally
      collected taxes if the payments were made voluntarily); see also
      Camacho v. Samaniego, 954 S.W.2d 811, 822 (Tex. App.—El Paso
      1997, pet. denied). The revenue generated from a tax determined to
      be illegal should not be treated as property of the State or
      municipality to which the principles of sovereign immunity apply, and
      an illegally collected fee should be refunded if paid as a result of
      fraud, mutual mistake of fact, or duress, without respect to waiver of
      sovereign immunity. See Camacho, 954 S.W.2d at 822; Austin Nat’l
      Bank of Austin v. Sheppard, 123 Tex. 272, 71 S.W.2d 242, 246
      (1934). No legislative consent to sue is needed under these
      circumstances.

Nivens, 245 S.W.3d at 474; see also Tara Partners, Ltd. v. City of S. Houston,

282 S.W.3d 564, 576–77 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)

(recognizing claim for repayment of fees not barred by sovereign immunity but

holding plaintiffs did not adequately plead facts necessary to invoke jurisdiction

under this doctrine).



                                        19
      Here, McDaniel pleaded and offered conclusive evidence that he had paid

the invalid, illegal portion of the sewer tap fees and building permit fees under

business compulsion, duress, or implied duress.           The Town concedes it

overcharged McDaniel concerning the sewer tap fees and concedes that

McDaniel paid the amount he was overcharged. The amount of money that the

Town overcharged McDaniel for the sewer tap fees and the amount of money

that the Town allegedly overcharged McDaniel for the building permit fees are

not treated as revenues belonging to the Town because McDaniel paid the fees

under business compulsion or duress or implied duress, and sovereign immunity

does not bar McDaniel‘s declaratory judgment action and suit for their

recoupment. See Bolton, 185 S.W.3d at 877 (holding that ―a person who pays

government fees and taxes under duress has a valid claim for their repayment‖);

see, e.g., Lowenberg, 261 S.W.3d at 59 (rendering judgment for plaintiffs in

declaratory judgment tax refund suit); Akin Prods. Co., 286 S.W.2d at 111–12

(holding that plaintiff was entitled to refund of taxes paid under protest); Crow,

209 S.W.2d at 925 (rendering judgment that plaintiff recover taxes and charges

paid to the city per its ordinance); Gatesco, Inc., 312 S.W.3d at 146 (holding trial

court ―had jurisdiction over appellants‘ claims disputing Rosenberg‘s imposition of

water and sewer service fees, appellants‘ claims for declaratory relief related to

Rosenberg‘s implementation and enforcement of its Code of Ordinances,

appellants‘ claims for prospective injunctive relief related to Rosenberg‘s water

and sewer service fees, and appellants‘ claims for costs and attorney‘s fees‖ and


                                        20
remanding appellants‘ claim for recovery of overcharges because, unlike here,

appellants did not plead that the overcharges were paid under duress, and

appellants needed to be given an opportunity to replead); Saturn Capital Corp.,

246 S.W.3d at 245 (reversing trial court‘s grant of city‘s plea to the jurisdiction on

Saturn‘s claim that city erroneously required Saturn to pay off demolition lien);

Nivens, 245 S.W.3d at 474 (―where a claim for declaratory . . . relief is brought

seeking the refund of illegally collected tax payments, governmental immunity will

not apply if the taxpayer alleges that the payments were made as a result of

fraud, mutual mistake of fact, [or] duress, whether express or implied‖).

McDaniel likewise pleaded an equitable claim for a refund of the fees he was

overcharged by pleading that the overpayment violated his constitutional rights,

and sovereign immunity does not bar this claim. See, e.g., Nivens, 245 S.W.3d

at 474.9

      We sustain McDaniel‘s second issue and the remainder of his first issue

claiming that the trial court erred by dismissing his sewer tap fees claim and his

building permit fees claim for want of jurisdiction.

                                  VI. CONCLUSION

      Having addressed and rejected the independent grounds for affirmance

asserted by the Town, and having sustained McDaniel‘s two issues, we reverse


      9
       Citing cases listed in footnote 8.




                                            21
the trial court‘s order dismissing all of McDaniel‘s claims for want of jurisdiction.

We remand this case to the trial court for further proceedings consistent with this

opinion.



                                                    SUE WALKER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: March 1, 2012




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