       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-19-00323-CV



                                Stephen Sakonchick II, Appellant

                                                 v.

                                 Travis County, Texas, Appellee


          FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-006114, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING


                             MEMORANDUM OPINION


                Stephen Sakonchick II appeals from a district court’s order sustaining a plea to the

jurisdiction and dismissing with prejudice his constitutional challenge to a construction permit

Travis County issued to the owners of a commercial property near Sakonchick’s home. See Tex.

Civ. Prac. & Rem. Code § 51.014(a)(8) (allowing accelerated interlocutory review of trial

court’s disposition of governmental unit’s jurisdictional plea). We will affirm the order as

modified herein.


                                         BACKGROUND

                The dispositive facts of this dispute are largely uncontested. For more than

25 years, Sakonchick has owned a home on in a neighborhood known as the Bee Creek Hills

Addition (“Bee Creek”) in western Travis County and within the City of Austin’s extra-territorial

jurisdiction.   See Tex. Gov’t Code       42.001–.904 (defining and governing extra-territorial
jurisdictions). Bee Creek’s only means of vehicular ingress and egress is along Canon Wren Drive,

a cul-de-sac accessible from westbound Bee Cave Road (also known as FM 2244) just west of the

Capital of Texas Highway (also known as State Highway Loop 360).

                The Overlook at Rob Roy (“The Overlook”) is a real estate development featuring

a four-story mixed-use office building on the northeast corner of Bee Cave Road and Canon Wren

Drive. The office building fronts on Bee Cave Road but is accessible from both Bee Cave Road

and Canon Wren Drive, and The Overlook’s land abuts some of Bee Creek’s residential lots. Like

Bee Creek, The Overlook is in an unincorporated area of Travis County but within the City of

Austin’s extra-territorial jurisdiction.

                The Overlook’s owners applied for a basic development permit to construct a

parking garage and a second driveway on Canon Wren Drive. Travis County apparently did not

notify the homeowners in Bee Creek of the pending permit application, but Sakonchick and his

neighbors eventually learned of the application. Concerned about the possibility of increased

traffic, Sakonchick began calling Travis County to voice his objections to the proposed

construction and subsequently submitted his concerns in writing. Travis County ultimately issued

basic development permit No. 16-12039 on August 14, 2018, to allow the “[a]ddition of a 65 space

[sic] parking garage and associated water quality and stormwater detention ponds” at The

Overlook. The County then sent notice of the issued permit to the residents of Bee Creek.

                Unhappy that Travis County failed to address his concerns before issuing the

permit, Sakonchick sued Travis County and The Overlook’s owners in Travis County district

court, pleading various theories under state and federal law and seeking to enjoin construction of

the garage. He subsequently named the City of Austin as an additional defendant. When the

defendants removed the case to federal court, see 28 U.S.C. § 1441 (allowing removal of any suit

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over which the federal courts would have original jurisdiction), Sakonchick successfully moved to

remand the case back to state court after amending his complaint to delete all federal claims, see

id. § 1447(c) (governing remand of removed cases). His live petition for relief alleges that Travis

County violated his right to due course of law, see Tex. Const. art. I, §19, by issuing the permit

without first providing Sakonchick with notice and a hearing. Travis County filed a plea to the

jurisdiction, which the district court sustained after an evidentiary hearing. Sakonchick filed

timely appeal.


                                          DISCUSSION

                 Sakonchick presents three issues on appeal: first, he contends the district court

erred by sustaining Travis County’s plea to the jurisdiction; second, he argues in the alternative

that the district court erred by denying him an opportunity to amend his pleadings to cure any

jurisdictional defect; and third, he argues that even if his claim against Travis County is properly

dismissed for want of jurisdiction, the district court erred by dismissing the claim with prejudice.


Plea to the Jurisdiction

                 In his first issue, Sakonchick contends the district court erred by finding no

jurisdiction over his claim. Travis County disagrees, arguing that Sakonchick cannot overcome

its immunity from suit and that the district court therefore properly sustained its plea. We review

the district court’s disposition of a plea to the jurisdiction de novo. City of New Braunfels

v. Carowest Land, Ltd., 432 S.W.3d 501, 512 (Tex. App.—Austin 2014, no pet.).

                 As a political subdivision of the state, Travis County benefits from governmental

immunity. See Tooke v. City of Mexia, 197 S.W.3d 325, 330 & n.11 (Tex. 2006). “In Texas,

governmental immunity has two components: immunity from liability, which bars enforcement of

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a judgment against a governmental entity, and immunity from suit, which bars suit against the

entity altogether.” Id. at 332. Immunity from suit does not extend to claims arising from an

unconstitutional act. See City of Houston v. Downstream Envtl., L.L.C., 444 S.W.3d 24, 38, 39–

40 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (reversing district court’s denial of plea to

the jurisdiction after concluding plaintiffs had not alleged viable due process theory). Yet a trial

court may exercise jurisdiction over the political subdivision “only to the extent the plaintiff has

pleaded a viable constitutional claim.” See id. at 38.

               Where, as here, “[the] plea to the jurisdiction challenges the existence of

jurisdictional facts,” and those facts implicate the merits of the plaintiff’s claims, “we consider

relevant evidence submitted by the parties” to the extent “necessary to resolve the jurisdictional

issues raised.” Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)

(citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). In doing so, “we take as

true all evidence favorable to the nonmovant,” id. at 228 (citing Scientific Spectrum, Inc.

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)), and “indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor,” id. “If the evidence creates a fact question regarding

the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact

issue will be resolved by the fact finder.” Id. at 227–28.

       Sakonchick’s live petition for relief alleges:


       Plaintiff has been denied his Right to Procedural Due Process in the Issuance of the
       Site Plan Permit by the [City of Austin] and Basic Development Permit by Travis
       County Approving the use of TDRs,1 and the Construction of the Proposed Garage


       1
         Sakonchick uses the acronym TDR to refer to “transferrable development rights,” a cap-
and-trade system used by the City of Austin to regulate the installation of impervious groundcover
by real estate developers. The City of Austin is named as a defendant but is not party to this
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        and the Drives onto Canon Wren Drive that Support It Since the TDRs Constitute
        a Variance and/or Special Exception for Which the [City of Austin] and Travis
        County Failed to Provide Public Notice and a Hearing.


Essentially, Sakonchick claims that Travis County denied him due process when it issued the basic

development permit without first affording him notice or hearing, which he construes as required

by certain sections of the Travis County Code.

                The United States Constitution provides that no state shall “deprive any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Similarly, the

Texas Constitution guarantees that “[n]o citizen of this State shall be deprived of life, liberty,

property, privileges or immunities, or in any manner disfranchised, except by the due course of the

law of the land.” Tex. Const. art. 1, § 19. “Though textually different, Texas courts generally

construe the due course of law provision in the same manner as its federal counterpart, the Due

Process Clause.” Lakey v. Taylor, 435 S.W.3d 309, 317 (Tex. App.—Austin 2014, no pet.) (citing

Texas Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 658 (Tex. 2004)).

                The constitutional guarantee of due process includes procedural and substantive

elements. Sakonchick alleges a violation of procedural due process, but “[t]he requirements of

procedural due process apply only to the deprivation of interests protected under Article I,

Section 19.” See University of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

Thus, our assessment of the viability of Sakonchick’s claim “requires a two-part analysis: (1) we

must determine whether [the plaintiff] has a liberty or property interest that is entitled to procedural

due process protection; and (2) if so, we must determine what process is due.” See id. (citing




interlocutory appeal. Except where noted, all grammar, spelling and punctuation reflect the count
as pleaded in his live petition, the 2nd Amended Petition for Relief.
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Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982), and Board of Regents of State Colls.

v. Roth, 408 U.S. 564, 569–70 (1972)).

               Our review of the pleadings, the record, and the briefing reveals that Sakonchick

has not identified any property interest that might entitle him to due process of law with respect to

the disputed permit application.     As an ostensible property interest, Sakonchick alleges an

“ownership of an appurtenant easement” in “the Canon Wren Drive right of way.” Although

Sakonchick’s pleading does not explain the nature or source of this alleged easement, generally

speaking an appurtenant easement is “[a]n easement created to benefit another tract of land, the

use of [that] easement being incident to the ownership of that other tract.” See Easement

Appurtenant, Black’s Law Dictionary (11th ed., 2019). Thus, as best as we can construe this

assertion, Sakonchick is claiming a vested right to use Canon Wren Drive to access the property

he owns in Bee Creek. He alleges that Travis County, through issuance of the basic development

permit, will “deprive[] plaintiff of the right to use and enjoy his easement in Canon Wren Drive

without the undue burden it places on the easement.” This allegedly “undue burden,” he pleads,

is in the increased “congestion” along that road and in the “unreasonable safety hazard[s]” that

Bee Creek’s residents might encounter when entering and exiting their neighborhood.

               But a vested property right is “more than a unilateral expectation” or an “abstract

need or desire” on the part of the individual asserting the right. See Lee v. Texas Workers’ Comp.

Comm’n, 272 S.W.3d 806, 817 (Tex. App.—Austin 2008, no pet.). Instead, a vested property right

exists when its claimant has “a legitimate claim of entitlement” to the right asserted. See id. Here,

Sakonchick is correct that he has a vested property right in access to his home, see State v. Delany,

197 S.W.3d 297, 299 (Tex. 2006), and no one argues otherwise. He and his neighbors do not,

however, have an exclusive right to use Canon Wren Drive to access the neighborhood without

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encountering traffic or any other inconvenience typically associated with suburban life. See

Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 671–72 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied).

               More than a decade ago, one of our sister courts in Houston soundly rejected the

argument Sakonchick raises here. See generally id. A real estate developer had obtained a

municipal permit authorizing the construction of a bridge that would connect two otherwise

discontinuous sections of a road in northwest Houston. See id. at 669. By spanning these two

sections, the proposed bridge would allow continuous travel along the road and facilitate additional

retail and residential development. See id. A group of nearby residents objected to the permit and

ultimately sued the City of Houston and the developer, alleging, inter alia, that by issuing the

permit without a public hearing on the proposed construction, the city’s public works division had

violated their rights to due process and due course of law. See id. at 669–70. The district court

denied the requested injunction, id. at 670, and the court of appeals affirmed, explaining:


       Rights, constitutional [or] otherwise, do not exist in a vacuum. . . . Streets and
       highways are primarily for the benefit of the traveling public, and only incidentally
       for the benefit of property owners along its way. . . . Here, there is no evidence
       that the bridge will be constructed on the land of any private person; that any
       property owner will be denied access to his property; or that any property owner
       will be restricted in the use of his property. It may well be that property owners
       along Rosslyn Road will suffer a diminution in the value of their property due to
       increased traffic, noise, et cetera. However, it is well established that “[t]he benefits
       which come and go from the changing currents of travel are not matters [with]
       respect to which any individual has any vested right against the judgment of the
       public authorities.”


Concerned Community, 209 S.W.3d at 671–72 (quoting State Highway Comm’n v. Humphreys,

58 S.W.2d 144, 145 (Tex. Civ. App.—San Antonio 1933, writ ref’d), and citing Wilson v. Taylor,

658 F.2d 1021, 1032 (5th Cir. 1981)).


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               In the present matter, as with the aggrieved residents in Concerned Community,

Sakonchick has not produced any evidence—or even alleged—that construction of the proposed

parking garage and driveway will jeopardize his ability to access the real property he owns in Bee

Creek. Nor has he alleged or produced evidence that the proposed structures will encroach on

private property or restrict use of the residential real estate in the Bee Creek neighborhood. And

to whatever extent Sakonchick is correct in anticipating that he and others will suffer a loss of

convenience as a result of the construction or the structures, that deprivation is not one that

implicates the due course protections afforded by the Texas Constitution. See id. Even reading

his pleadings liberally, see Miranda, 133 S.W.3d at 226, and viewing all evidence in his favor, see

id. at 228, we conclude Sakonchick’s claim fails as a matter of law. Because Sakonchick has not

pleaded a viable constitutional theory, Travis County retains its immunity from suit, see

Downstream Envtl., 444 S.W.3d at 38, and the district court did not err in sustaining its plea to the

jurisdiction. We overrule Sakonchick’s first issue.


Repleading

               Having concluded that Sakonchick failed to establish the district court’s jurisdiction

over his dispute with Travis County, we turn to his second issue: whether he should have an

opportunity to amend his petition for relief in an attempt to cure the jurisdictional defect. “[A]

plaintiff must be given ‘a reasonable opportunity to amend’ his pleadings to attempt to cure the

jurisdictional defects found’ unless the pleadings are incurably defective.” Texas A&M Univ. Sys.

v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (quoting Texas A&M Univ. Sys. v. Koseoglu,

167 S.W.3d 374, 383 (Tex. App.—Waco 2005, pet. granted), and citing Harris County v. Sykes,

136 S.W.3d 635, 639 (Tex. 2004), and Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867–68


                                                 8
(Tex. 2002)). We afford a plaintiff this opportunity “only if it is possible to cure the pleading

defect,” see id. at 840, which “typically arises when the pleadings fail to allege enough

jurisdictional facts to demonstrate the trial court’s jurisdiction.” Ramirez, 74 S.W.3d at 867.

               In this case, the record affirmatively negates the existence of jurisdiction over

Sakonchick’s claim against Travis County. On this record, Sakonchick cannot allege a vested

property interest that entitles him to due course of law. Thus, because amendment of his claim is

futile, the district court did not err in denying Sakonchick an opportunity to amend. See Clint

Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016) (dismissing rather than remanding

for repleading where party failed to establish jurisdiction over existing claim but asked for remand

“to plead new claims” in an attempt to establish the district court’s jurisdiction over the dispute).

We overrule the issue.


Dismissal with Prejudice

               In his final issue on appeal, Sakonchick argues the district court erred by dismissing

his claims with prejudice instead of without prejudice. We agree. “Dismissal with prejudice

constitutes adjudication on the merits and operates as if the case had been fully tried and decided.”

Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [ 1st Dist. 1998, no pet.) (citing

Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991)). “Judgment on the merits precludes a second

action by the parties on causes of action that arise out of the same subject matter.” Id. at 723

(citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630–31 (Tex. 1992)). Thus, dismissal

with prejudice will “act as a bar to any lawsuit arising out of the same facts” brought by Sakonchick

against Travis County. See id. (punctuation revised). Although Sakonchick’s due process and due

course theories fail as a matter of law, on this record we cannot conclusively say that Sakonchick


                                                 9
has no viable cause of action against the county. We therefore sustain his third issue, delete the

words “with prejudice” from the order sustaining Travis County’s plea to the jurisdiction, and

affirm that order as modified. See Tex. R. App. P. 43.2(b).


                                        CONCLUSION

               For the reasons set forth above, we affirm the district court’s order as

modified herein.



                                             __________________________________
                                             Edward Smith, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Modified and, as Modified, Affirmed

Filed: October 30, 2019




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