                             NUMBER 13-13-00445-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

CITY OF CORPUS CHRISTI,                                                       Appellant,


                                             v.

SCORPIO DEVELOPMENT, LLC.,                                                    Appellee.


              On appeal from the County Court at Law No. 2 of
                          Nueces County, Texas.


                          MEMORANDUM OPINION
                Before Justices Garza, Benavides and Perkes
                  Memorandum Opinion by Justice Garza
       In this inverse condemnation case, appellant, the City of Corpus Christi (“the City”),

challenges the trial court’s order denying its plea to the jurisdiction. See TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(a)(8) (West, Westlaw through 2013 3d C.S.). Appellee,

Scorpio Development, L.L.C. (“Scorpio”), contends that the City waived its immunity from

suit by taking Scorpio’s property for public use without adequate compensation. See TEX.
CONST. art. I, § 17. By a single issue, the City contends that it retains its immunity because

Scorpio consented to the alleged taking by dedicating the property at issue to the City.

We affirm.

                                      I. BACKGROUND

       In 2006, the City approved a subdivision plat of property owned by Morteza

Shafinury and located on the north side of Yorktown Boulevard in Corpus Christi, Texas.

The plat showed three lots, including lots four and five, which are at issue in this lawsuit.

Lots four and five are each shown on the plat as having a depth of 275 feet and as

containing 40,000 square feet. The plat also depicted, outside the southern boundary of

the property, dedication of an additional fifty feet of right-of-way on Yorktown Boulevard.

       In December 2007, Shafinury sold lots four and five to Scorpio. When the City

rejected Scorpio’s building permit in March 2008, Scorpio learned that the plat had not

been recorded. Shafinury finally recorded the plat on April 1, 2008. Shafinury gave

deposition testimony that he had Scorpio’s authorization through its president, Massoud

Rad, to record the plat. Rad also gave deposition testimony that he authorized Shafinury

to record the plat and that the unrecorded plat that he was shown when Scorpio

purchased the property reflected the fifty-foot dedication of right-of-way.

       Scorpio’s petition alleged that around June 2010, the City took, without

compensation, over thirty feet of Scorpio’s property fronting on Yorktown Boulevard as

part the City’s widening of Yorktown Boulevard. Scorpio’s pleadings alleged that the City

waived its immunity by taking Scorpio’s property without adequate compensation in

violation of article 1, section 17 of the Texas Constitution. See id.      In its plea to the

jurisdiction, the City argued that it has not waived its immunity because Scorpio

consented to the alleged takings when it dedicated (through Shafinury) the fifty-foot right-
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of-way. As evidence, the City attached to its plea to the jurisdiction, among other things,

Shafinury’s deposition testimony that Yorktown Road is located within the fifty-foot right-

of-way.

        In its response to the City’s plea, Scorpio argued that: (1) Shafinury could not have

dedicated any portion of lots four and five when he recorded the plat in April 2008 because

he no longer owned the property; and (2) Shafinury was not authorized to dedicate any

portion of lots four and five. Scorpio attached to its response excerpts from Shafinury’s

deposition testimony, in which he stated that: (1) the fifty-foot dedicated right-of-way

shown on the plat is not within lots four and five; and (2) after the City widened Yorktown

Boulevard, lots four and five lost approximately thirty feet in depth. Scorpio also attached

Rad’s affidavit, in which he stated that in June 2010, the City took a thirty-foot strip out of

lots four and five fronting on Yorktown Boulevard.1

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

        A plea to the jurisdiction challenges the court's subject matter jurisdiction. Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). On appeal, we review a trial

court’s ruling on a plea to the jurisdiction de novo. See Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction can make two types

of challenges: to the pleadings or to the existence of jurisdictional facts. See id. at 226–

28 (Tex. 2004).

        When a plea to the jurisdiction challenges the sufficiency of the plaintiff's pleadings,

we determine if the pleader has alleged facts that affirmatively demonstrate the court's



         1 We note that Shafinury’s deposition testimony refers to “Exhibit 8,” described as a “depiction of

the location of the widened right-of-way for Yorktown Boulevard in comparison to both the property as
planned, which is overlaid, and the property as constructed, which is an aerial photograph underlay[.]”
“Exhibit 8” is not included in the record before us.
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jurisdiction to hear the cause. Id. at 226. We construe the pleadings liberally in favor of

the plaintiff and look to the pleader's intent. City of Waco v. Kirwan, 298 S.W.3d 618, 622

(Tex. 2009).    If the pleadings neither affirmatively demonstrate nor negate jurisdiction,

the plaintiff should be given an opportunity to amend the pleadings. Id. at 622.

       When a plea to the jurisdiction challenges the existence of jurisdictional facts, as

here, we consider relevant evidence submitted by the parties when necessary to resolve

the jurisdictional issues raised. Id. (citing Miranda, 133 S.W.3d at 227); see Bland Indep.

Sch. Dist., 34 S.W.3d at 555. If that evidence creates a fact issue as to jurisdiction, then

it is for the fact-finder to decide. City of Waco, 298 S.W.3d at 622; Miranda, 133 S.W.3d

at 227–28. “However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a

matter of law.” Miranda, 133 S.W.3d at 228. After the defendant “asserts and supports

with evidence that the trial court lacks subject matter jurisdiction, we simply require the

plaintiffs, when the facts underlying the merits and subject matter jurisdiction are

intertwined, to show that there is a disputed material fact regarding the jurisdictional

issue.” Id. This standard “generally mirrors” that of a traditional motion for summary

judgment. Id. When reviewing a plea to the jurisdiction in which the pleading requirement

has been met and evidence has been submitted to support the plea that implicates the

merits of the case, we take as true all evidence favorable to the non-movant. Id. We do

not “weigh the claims’ merits but must consider only the plaintiffs’ pleadings and the

evidence pertinent to the jurisdictional inquiry.” County of Cameron v. Brown, 80 S.W.3d

549, 555 (Tex. 2002).

       The Texas Supreme Court has long recognized that sovereign immunity, unless

waived, protects the State of Texas, its agencies, and its officials from lawsuits for
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damages, absent legislative consent to sue the State. Miranda, 133 S.W.3d at 224.

“Sovereign immunity includes two distinct principles, immunity from suit and immunity

from liability.” Id. “Immunity from liability is an affirmative defense, while immunity from

suit deprives a court of subject matter jurisdiction.” Id.

       The Texas Constitution provides a limited waiver of the government's immunity

when property is taken, damaged, or destroyed for public use without adequate

compensation. See TEX. CONST. art. I, § 17; MBP Corp. v. Bd. of Trustees of Galveston

Wharves, 297 S.W.3d 483, 488 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In other

words, immunity does not protect a governmental entity from a plaintiff's constitutional-

takings claim. MBP Corp., 297 S.W.3d at 488–89. Whether the government's action in

a particular case is sufficient to constitute a “taking” is a question of law. Id. at 489. To

prove a constitutional-takings claim, a plaintiff must demonstrate that (1) the government

intentionally performed certain acts (2) that resulted in a “taking” of property (3) for public

use. Id. Consent is an affirmative defense to a landowner’s takings claim. City of Emory

v. Lusk, 278 S.W.3d 77, 85 (Tex. App.—Tyler 2009, no pet.).

                                       III. DISCUSSION

       Here, the City’s plea to the jurisdiction challenges the existence of jurisdictional

facts, not the sufficiency of Scorpio’s pleadings. In its plea, the City disputes the facts

underlying Scorpio’s inverse condemnation claim. Specifically, the City disputes that it

engaged in an intentional act that resulted in the taking of Scorpio’s property. The City

submitted evidence—in the form of Shafinury’s deposition testimony—that the expansion

of Yorktown Boulevard lies within the fifty feet of dedicated right-of-way. In response,

Scorpio submitted evidence—again, in the form of Shafinury’s deposition testimony and



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in Rad’s affidavit—that after the City widened Yorktown Boulevard, Scorpio’s property lost

approximately thirty feet in depth.2

        The evidence before us raises a fact issue as to whether the City’s expansion of

Yorktown Boulevard occurred within the dedicated fifty-foot right-of-way. This issue will

ultimately determine whether Scorpio will succeed on the merits of its claims. Because

there is disputed evidence in this case creating fact issues regarding whether the

expansion of Yorktown Boulevard occurred within dedicated right-of-way and whether a

taking occurred, the fact issues must be resolved by the fact-finder. See Miranda, 133

S.W.3d at 227–28.

        Taking as true all evidence favorable to the nonmovant, we conclude that there is

disputed jurisdictional evidence raising a fact issue as to whether the City engaged in an

intentional taking under article 1, invoking subject matter jurisdiction over Scorpio’s

inverse condemnation claim. See City of Waco, 298 S.W.3d at 622. Accordingly, we

hold that the trial court did not err in denying the City’s plea to the jurisdiction.

                                          IV. CONCLUSION

        We affirm the trial court’s judgment and remand for further proceedings.




                                                        DORI CONTRERAS GARZA,
                                                        Justice

Delivered and filed the
13th day of March, 2014.




         2 We also note that Shafinury’s deposition testimony reflects that there was an “error” on the

subdivision plat that Shafinury learned of several months after the plat was complete. The record before
us provides no further explanation, and we decline to speculate regarding how any alleged “error” may be
related to the parties’ dispute.
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