                                                                                     ACCEPTED
                                                                                 14-15-00149-CV
                                                                 FOURTEENTH COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                            4/23/2015 3:54:15 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        No. 14-15-00149-CV
__________________________________________________________________
                                                                FILED IN
                                                         14th COURT OF APPEALS
                       In The Court Of Appeals              HOUSTON, TEXAS
                 For The First District Court Of Appeals 4/23/2015 3:54:15 PM
                             Houston, Texas              CHRISTOPHER A. PRINE
__________________________________________________________________Clerk


                                GLEN SUMNER,

                                   Appellant

                                       V.

   BOARD OF ADJUSTMENTS OF THE CITY OF SPRING VALLEY
VILLAGES, TEXAS, THE CITY OF SPRING VALLEY VILLAGE, TEXAS,
                        ART FLORES

                             Appellees
__________________________________________________________________

 ON APPEAL FROM THE 164TH DISTRICT COURT, HARRIS COUNTY, TX
               TRIAL COURT CAUSE NO. 2013-30178 A
    THE HONORABLE ALEXANDRA SMOOTS-HOGAN, PRESIDING
__________________________________________________________________

                 BRIEF OF APPELLANT, GLEN SUMNER
__________________________________________________________________
Glen Sumner, Pro Se
8306 Leafy Lane
Houston, Texas 77055
Telephone: (713) 873-7285

April 23, 2015




Sumner v City Appeal Brief-R2     Page i
                             PARTIES AND COUNSEL


Plaintiff-Appellant:                        Glen Sumner

Plaintiff-Appellant’s counsel:              Pro Se
                                            8306 Leafy Lane
                                            Houston, Texas 77055
                                            Telephone: (713) 873-7285


Defendant-Appellees:                        Board of Adjustments of the City of
                                            Spring Valley Villages, Texas, The City
                                            of Spring Valley Village, Texas, Art
                                            Flores,


Defendant-Appellees’ counsel:               Andrea Chan
                                            Olson & Olson, L.L.P.
                                            2727 Allen Parkway, Suite 600
                                            Houston, TX 77019
                                            Facsimile: (713) 533-3888




Sumner v City Appeal Brief        Page ii
                                         TABLE OF CONTENTS

PARTIES AND COUNSEL……………………………………………………….ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF THE CASE ..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ...............................................2
ISSUES PRESENTED...............................................................................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE ARGUMENTS ......................................................................7
ARGUMENT AND AUTHORITIES ........................................................................9
     A. Legal Background, Standards of Review ......................................................9
     B. Issues One by One .......................................................................................10
  Issue One Did the trial court err in ordering the case against Appellees to be
  severed from the original cause of action? ...........................................................10
  Issue Two Did Sumner exhaust his remedies before requesting Writ of
  Certiorari pursuant to Texas Local Government code 211.011? ..........................14
  Issue Three Did omissions in Sumner’s prosecution of his request for Writ of
  Certiorari pursuant to . Gov’t Code 211.011 Justify Dismissal for Want of
  Prosecution? ..........................................................................................................18
  Issue Four Does Plaintiff Have a Protected Property Interest? ...........................19
  Issue Five Did Sumner Receive the Necessary Elements Due Course of Law?
             …………………………………………………………………..232
  Issue Six To what extent are the Appellees immune from suit and liability for
  monetary damages? ................................................……………………….33
PRAYER ..................................................................................................................39
CERTIFICATE OF SERVICE…………………………………………………….40
CERTIFICATE OF COMPLIANCE………………………………………….......40

Sumner v City Appeal Brief                         Page iii
                                         TABLE OF AUTHORITIES

Cases
and Fideicomiso de la Tierra v. Fortuno, 604 F.3d 7 ................................... 9, 37, 38
Bennett v. Planning Comm’n, City of Bryant, Ark., No. 4:09-CV-00315, 2010 WL
   1417971, at *1–2 (E.D. Ark. Mar. 31, 2010) .......................................................35
Borden v. Trespalacios Rice& Irrigation Co., 86 S.W. 11, 14 (Tex. 1905) .............35
City of Dallas v. Vanesko, 189 S.W.3d 769, 772 (Tex. 2006). .......................... 10, 26
City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) .......................................33
City of Houston v. Renault, Inc., 431 SW 2d 322, 326 (Tex 1968). ........................21
City Of Wichita Falls, Plaintiff In Error, Vs. W. M. Mauldin, et ux., Defendants in
   Error. 39 S.W.2d 859 at 861; 1931 Tex. App. Lexis 2064 ..................................20
College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
   666, 673, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) .............................................22
Davis v.City of Lubbock, 326 S.W.2d. 699, 704 (Tex. 1959) ...................................35
Develo Concepts 688 S.W.2d 790 (1984) ................................................................19
Duenez I.d. at 693; F.P. Operating Partners, L.P. v. Duenez at 629 .......................12
Duncan v. Calhoun City Nav. Dist., 28 S.W.3d 707, 710-711 (Tex App. –Corpus
   Christie 2000, pet. Denied) .................................................................................. 11
Fideicomiso de la Tierra v. Fortuno, 604 F.3d 7 (1st Cir, 2010) .............................37
Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970)................................9
Horton v. City of Smithville, 117 Fed. Appx. 345 (5th Cir. Tex. 2004) ...............9, 19
In re State, 355 S.W.3d 611, 614 (Tex. 2011); F.F.P. Operating Partners, L.P. v.
   Duenez, 237 S.W.3d 680, 693 (Tex. 2007) .......................................................... 11
James A. Hansen v. The United States of America; 65 Fed. Cl. 76; 2005 U.S.
   Claims LEXIS 93; 60 ERC (BNA) 1141 .............................................................22
Lamar Corp. v. City of Longview, 270 S.W.3d 609 .................................................24
Landers v. East Texas Salt Water Disposal Co., 248 S.W. 2d 731, 731 (Tex 1952).
   ..............................................................................................................................12
Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996) .................... 11
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).............................9
Owens Ryland Grp. v. White, 723 S.W.2d 160, ...................................................9, 12
Owens v. Owens, 228 S.W.3d 721, 726 (Tex App –Houston 14th Dist] 2006, pet
   dism’d) .................................................................................................................13
Pierce v. Reynolds, 329 S.W.2d 76, 78-79 (Tex 1959) ............................................ 11
Private Real Property Rights Preservation Act Guidelines .....................................20
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 .............. 9, 21, 26
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) .......9


Sumner v City Appeal Brief                            Page iv
Resource Investments, Inc. and Land Recovery, Inc v. The United States of
  America, 85 Fed. Cl 447; 2009 US Claims Lexis 11 ...........................................36
Ryland Grp. v. White, 723 S.W.2d 160, 161 (Tex. App.—Houston [1st Dist.] 1986,
  orig. proceeding). ................................................................................................. 11
See Coastal States Gas Producing Co. v. Pate, 309 S.W.2d 828, 833 (Tex. 1958).35
See Southwest Paper Stock, Inc. v. Zoning Bd. of Adjustments of the City of Fort
  Worth, 980 S.W.2d 802, 805 (Tex. App.—Fort Worth 1998, pet. denied)...........10
See Texas Dept. of Heath v. Buckner, 950 S.W. 2d 216, 219 (Tex. Civ. App.–Forth
  Worth 1977, no writ). ...........................................................................................28
Sumner v. Board of Adjustment of City of Spring Valley Village, Civ. A. No H-12-
  12-551, 2013 WL 1336604, slip op. at 5 (S.D.Tex. Mar. 29, 2013) ....................19
Whittington v. City of Austin, 174S.W.3d 889, 897 (Tex. App.—Austin 2005, writ
  ref’d n.r.e.) ...........................................................................................................35




Sumner v City Appeal Brief                          Page v
                                   STATEMENT OF THE CASE1

Statement of the Case:                 This case originates from the appeal to district court of
                                       a decision of the Board to support issuing a certificate
                                       of occupancy and compliance for the lot adjoining
                                       Sumner’s despite Sumner’s claim that the work done
                                       diverted water flowing on his lot in violation of
                                       Section 13.01 of the zoning ordinance and section
                                       11.086 b of the Texas Water Code. The Appellees had
                                       actual and constructive knowledge of Sumner’s
                                       complaint that this would result when they issued the
                                       certificate of occupancy and compliance. By enabling
                                       Prichard to continue this violation without a public
                                       purpose the Appellees deprived Sumner the beneficial
                                       use of portions of his land in for the benefit of Prichard
                                       but not the public in violation of Article 1 sections 17
                                       and 19 of the Texas Constitution.

Trial Court:                           The Honorable Alexandra-Smoots Hogan, 164th
                                       Judicial District Court of Harris County, Texas.

Trial Court Disposition:               The trial court granted Appellees’ Motion for
                                       Summary Judgment, Motion to Dismiss Art Flores and
                                       Motion to Dismiss Sumner’s request for Writ of
                                       Certiorari




1
 Throughout this brief, unless the context indicates otherwise:
Appellant, Glen Sumner, will be referred to as “Sumner”
Appellee, Board of Adjustments of the City of Spring Valley Villages, Texas, will be referred to as “the Board.”
Appellee, The City of Spring Valley Village, Texas, will be referred to as “the City.”
Appellee, Art Flores, will be referred to as “Flores.”
Rickie Prichard will be referred to as “Prichard.”
Board, The City and Flores will be collectively referred to as “Appellees.”
Sumner and Appellees will be collectively referred to as the “Parties.”
Sumner’s property at 8306 Leafy Lane will be referred to as “Sumner’s Lot”
The property at 8302 Leafy Lane will be referred to as “Adjoining Lot”
Citations to the Clerk’s Record are: “CR Page.” For example, CR 2 means Clerk’s Record page 2.
Sumner’s 3rd Amended Petition sh


    Sumner v City Appeal Brief                   Page 1
                      STATEMENT REGARDING ORAL ARGUMENT

Appellant request oral arguments.
                                     ISSUES PRESENTED

Issue One            Did the trial court err in ordering the case against Appellees to be
                     severed from the original cause of action?

Issue Two            Did Sumner exhaust his remedies before requesting Writ of
                     Certiorari pursuant to Texas Local Government Code 211.011?

Issue Three Did errors or omissions in Sumner’s prosecution of his request for
            Writ of Certiorari pursuant to Tex. Loc. Gov’t Code 211.011 justify
            dismissal for want of prosecution?

Issue Four           Is the flow of surface water on Sumner’s lot a property interest that
                     is protected by Article 1 sections 17 and 19 of the Texas Constitution
                     or Texas Water Code 11.086?

Issue Five           Did Sumner receive the necessary elements Due Course of Law for
                     his claims arising in

          Claims arising in the Zoning Ordinance

           Claims arising Texas statues The Texas Constitution

Issue Six            To what extent are the Appellees immune from suit and liability for
                     monetary damages?




Sumner v City Appeal Brief                Page 2
                               STATEMENT OF FACTS

A.       SUMNER’S PROPERTY INTERESTS

          Sumner is a resident owner of his property at 8306 Leafy Lane. His water

rights are inherent in ownership of this real property [CR 171]. The City of Spring

Valley, Texas adopted a zoning ordinance in December 15, 1981 and the ordinance

as repeatedly amended is in force. Regulation 231 § 13:01 (“Drain Regulation 231

§ 13.01”) contained therein and effective at all times material to this lawsuit reads

as follows:

       “PROPERTY OWNER’S RESPONSIBILITY: It shall be the responsibility
       of each owner or developer of property whether individual lot, lots, block or
       development to maintain the drainage patterns of adjacent property owners or
       landowners caused either by direct diversion of water on the land or by failure
       to adequately accommodate new or changed drainage patters as they develop.
       This prohibition shall not in any way effect the construction and maintenance
       of levees and other improvements to control floods and overflows in freshets,
       creeks, streams. This section, however does not authorize any person to
       construct a canal, a lateral canal or ditch that obstructs a creek, bayou, gully,
       slough, ditch or other well-defined natural drainage.” [Id.]

          Sumner’s Petition contains the web address of the City’s Zoning Ordinance

[Id.]. Sections 231 § 01.02.03.02 and 231 § 01.02.03.04 of the Zoning Ordinance

(Compliance Rules 231 §§ 01.02.03.04 & 01.02.03.02) authorize Flores to issue a

Sumner v City Appeal Brief            Page 3
certificate of occupancy and compliance only when he determines property

improvements comply with all other provisions of the Zoning Ordinance.

B.       RELEVANT EVENTS BEFORE PRICHARD ACQUIRED THE ADJOINING PROPERTY

          Clara Kessler (“Prior Owner”) and her husband bought the Adjoining Lot

when the Spring Oaks Section 3 subdivision was developed. The western boundary

of Sumner’s lot and the Adjoining Lot is Leafy Lane; the eastern boundary is

Spring Branch Creek. The boundary of the flood control easement coincides with

the top of a steep slope toward the creek herein after referred to as the “high

bank”[Id.].

           Between Sumner’s house and the high bank his lot gently slopes toward the

Adjoining Lot, on which the high bank had been receding from the creek due to

natural erosion since the Subdivision was created. No similar erosion was

occurring on Sumner’s lot until the Prior Owner hired a contractor to mitigate her

erosion. The contractor raised the Adjoining Lot with fill, thereby diverting surface

water so as to move the erosion to Sumner’s Property. In August, 2009 after several

oral and a written request to correct the problem, her son had a perforated drain

pipe installed on the Adjoining Lot near the boundary. This drain carried surface

water from both properties to beyond the high bank, the damage was repaired and

no further erosion occurred by the beginning of 2013 [CR 172].



Sumner v City Appeal Brief           Page 4
C.       RELEVANT EVENTS AFTER PRICHARD ACQUIRED THE ADJOINING LOT

           On January 11, 2013 after Prichard bought the Adjoining Property Plaintiff

noticed that a construction crew removed the drain installed by the Prior Owner

Plaintiff complained to Daniel O’Brien, the contractor in charge (“Contractor”) and

Bill Sweitzer the Landscape Architect (“Designer”). Designer responded by

declaring that each owner is responsible for disposing of “his own water”. His

interpretation reflects the “Common Enemy Doctrine” of surface water drainage

that does not apply in Texas, not the Natural Flow Rule that does apply. On January

14, 2013 Art Flores (“Flores”) indicated that he shared the Designer's incorrect

interpretation.[CR 173]

          The Adjoining Lot was further elevated with fill dirt, which was purported

by the Designer to be necessary to comply with a requirement imposed by Flores

to drain water to the street. This serves no public purpose and it is inconsistent with

the approval of drainage to the rear of other lots on the creek [CR 173].

          Near the end of January 2013 Flores informed Sumner of an offer

purportedly from Prichard that he described in one oral sentence. As described it

would not bring the Adjoining Property into compliance with Drain Regulation 231

§ 13.01.[CR 173]




Sumner v City Appeal Brief           Page 5
          On February 18, 2013 Flores informed Sumner that the City Attorney told

him that by declining the offer Sumner relieved Flores of any obligation to force

Prichard to comply with Drain Regulation 231 § 13.01, and he would issue a

certificate of occupancy and compliance for the Adjoining Lot. [CR 174].

D.       FACTS RELATING TO PLAINTIFF’S APPEAL TO THE BOARD

          On March 2, 2013 Plaintiff applied for a hearing before the Board to

challenge the Flores’s decision. In the hearing on May 9, 2013.the Board chairman

said the standard of review was that Sumner had to prove the Adjoining Lot did not

comply with Drain Regulation 231 § 13.01.[ Id.].

          Flores presented as evidence an elevation survey of the Adjoining Lot.

Sumner attempted to explain that the elevation of the lot by the time Prichard

purchased the property was not the natural grade and not relevant to the natural

flow of water across the boundary. The Board Chairman interrupted Sumner’s

testimony about the history of the two lots and said the Board members “were only

interested in the present” [CR175].

          Sumner (previously a Registered Professional Engineer in Texas) presented

measurements he made with a surveyor’s level of that show his lot slopes toward

the Adjoining Property. Board members disregarded this on the stated grounds that

Sumner is not a registered surveyor. These are the only measurements in evidence



Sumner v City Appeal Brief            Page 6
that show the natural slope of either lot (direction of flow) near the boundary [CR

176].

          Flores did not attempt to refute Sumner’s testimony, but stated his belief

that no water would overflow from the Adjoining Lot [To Sumner’s]. Flores

evaded a Board member’s question of whether flow from Sumner’s lot to the

Adjoining Lot had been blocked [CR 175].

          The Board denied Sumner’s explicit request to cross examine Flores [CR

179].

E.       DAMAGE TO SUMNER

          In less than six months from the date the certificate of occupancy and

compliance was issued Sumner’s lot significantly eroded where it had not in the

previous four years. Events leading to this damage were almost identical to events

that previously resulted in similar erosion that progressed over time to a more

severe deprivation of the beneficial use of Sumner’s Lot [CR 179-180].

                             SUMMARY OF THE ARGUMENTS

          This case stems from Appellees’ decision to issue a certificate of occupancy

and compliance for the Adjoining Lot while improvements thereon do not comply

with the Zoning ordinance and state law pertaining to surface water. If severance

was improper then the other issues are not otherwise ripe. Severance was improper


Sumner v City Appeal Brief           Page 7
because it divides a single cause of action that applies to all parties, soom claims

are not the proper subject of separate lawsuits and involve the same facts and

issues as the remaining action, the injury is indivisible and severance increases the

chance of injustice and prejudice with no assurance of greater convenience.

Sumner exhausted his remedies. His application for a hearing asks for the Board to

review Flores “approval” of the work on the Adjoining Property”. If he approves it,

then issuing a certificate of occupancy and compliance is a ministerial duty so

Sumner’s appeal was equivalent to appealing a decision to issue a certificate of

occupancy and compliance. Only the court can issue the writ. Any error or

omissions in Sumner’s request are not grounds for dismissal for want of

prosecution. Water rights are constitutionally protected property interests that

inhere in Sumner’s ownership of Sumner’s lot. The Board’s decision was not

supported by evidence, the Board excluded evidence, denied Sumner’s request for

cross examination and applied arbitrary procedures without notice. Certiorari

review of the decision in the limited context of matters that arise solely in the

Zoning Ordinance. A Board decision that conflicts with state law or constitutional

rights is subject to collateral attack. Sumner has a right to trail in court on statutory

and constitutional claims.




Sumner v City Appeal Brief           Page 8
          Flores does not have immunity from suits against him for vires acts in their

official capacity. Governmental immunity does not bar claims for damages

pursuant to Section 11.086 Texas Water Code or Article 1, section 17 of the United

States Constitution because these laws creates an entitlement for payment.

                             ARGUMENT AND AUTHORITIES

A.       LEGAL BACKGROUND, STANDARDS OF REVIEW

a) Standard of Review for Summary Judgment
          In a traditional motion for summary judgment proceeding, summary

judgment is only proper if there is no genuine issue of material fact and movants

are entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548 (Tex. 1985). The question is not whether the summary judgment

proof raises fact issues as to required elements of the movants’ cause or claim, but

whether the summary judgment proof establishes, as a matter of law, that there is

no genuine issue of material fact as to one or more of the elements of the movants’

cause or claim. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). A

traditional summary judgment is subject to de novo review. Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).




Sumner v City Appeal Brief           Page 9
b) Standard for Reviewing Board’s Decisions (Tex. Loc. Govt Code §
   211.011)
          The trial court must have found that the Board abused its discretion if it

acted without reference to any guiding rules or principles or clearly failed to

analyze or apply the law correctly. See City of Dallas v. Vanesko, 189 S.W.3d 769,

772 (Tex. 2006). Otherwise, the only issue is whether the Board’s decision is

supported by some evidence of substantive and probative character. See Southwest

Paper Stock, Inc. v. Zoning Bd. of Adjustments of the City of Fort Worth, 980

S.W.2d 802, 805 (Tex. App.—Fort Worth 1998, pet. denied).

c)    Board’s Standard for Review of Administrative Decisions
           The authority of the Board to review decisions of administrative officials is

described in Tex. Loc. Gov’t Code § 211.009 (a) (1). Tex. Loc. Gov’t Code § 2008

(e) authorized the Board to “adopt rules in accordance with any ordinance adopted

under this subchapter”. Neither Tex. Loc. Gov’t Code § 211.009 (a) (1) nor the

Zoning Ordinance mention a Standard of Review for the Board.

B.       ISSUES ONE BY ONE

Issue One            Did the trial court err in ordering the case against Appellees to be
                     severed from the original cause of action?

a) A Single Cause of Action May not be Divided

          “A motion to sever that divides a single cause of action into two parts is never

proper, and should not be granted for the purpose of enabling the litigants to obtain


Sumner v City Appeal Brief                Page 10
an early appellate ruling on the trial court's determination of one phase of the case”.

See Pierce v. Reynolds, 329 S.W.2d 76, 78-79 (Tex 1959); Duncan v. Calhoun City

Nav. Dist., 28 S.W.3d 707, 710-711 (Tex App. –Corpus Christie 2000, pet. Denied);

Ryland Grp. v. White, 723 S.W.2d 160, 161 (Tex. App.—Houston [1st Dist.] 1986,

orig. proceeding). Sumner’s charges that Flores and the Board acted in concert

with Prichard to violate Water Code § 11.086 a. [CR 13] and his rights pursuant to

Article 1 section 17 [CR 15] are both single causes of action levied jointly against

Prichard, the Board and Flores. Severance was improper.

b) Claims That are not the Proper Subject of Separate Lawsuits Cannot be
   Severed
          A court should deny a motion to sever claims that could not have been

independently asserted in a separate lawsuit. See In re State, 355 S.W.3d 611, 614

(Tex. 2011); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex.

2007); Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996).

Sumner cannot independently assert his request in paragraph 77 of his Petition (CR

17) that the Court mandate Flores’s participation in an action to secure the

injunctive relief. Paragraphs 72 and 73 are requests the court to declare that the

Appellants acted in concert with Prichard to violate section Water Code § 211.086

and Article 1 § 17 of the Texas Constitution respectively. Sumner cannot properly

assert these claims in separate lawsuits because all Parties are necessary parties.



Sumner v City Appeal Brief          Page 11
“Improper severance could effectively terminate the improperly severed claims as

if they had been dismissed.” See Landers v. East Texas Salt Water Disposal Co.,

248 S.W. 2d 731, 731 (Tex 1952).

c)    Claims that Involve the Same Facts and Issues as Remaining Action
      Cannot Be Severed
          A court should deny a motion to sever if the claim to be severed is so

interwoven with the remaining action that it involves the same facts and issues.

See In re State I.d. at 614; F.F.P. Operating Partners, L.P. v. Duenez I.d. at 693;

F.P. Operating Partners, L.P. v. Duenez at 629, Owens Ryland Grp. v. White, 723

S.W.2d 160, 161. All of Sumner’s claims against Appellees are interwoven with

Flores’ arbitrary requirement that Prichard drain her property to the street, and

subsequent issuance of a certificate of occupancy and compliance without which

there would be no claims against the Appellees. Severance was improper because

these claims are so interwoven that the facts and issues are identical.

d) Claims Should Not Be Severed if The Injury is Indivisible
          A court should deny a motion to sever claims against multiple defendants if

the injury is indivisible. See Landers v. East Texas Salt Water Disposal Co., 248

S.W. 2d 731, Id. at 734. The motion to sever must be denied because the

prospective injury to Sumner is indivisible, in fact identical. Sumner argues later

herein that Appellees can be held liable for retrospective as well as prospective



Sumner v City Appeal Brief          Page 12
liability in this case, so the question arises as to how the monetary costs are

allocated if Sumner prevails. If trial on the merits reveals that Flores’ improperly

required Prichard to drain her property to the street (CR 173 paragraph 14)2 so as

to increase her cost and make it impossible to prevent harm to Sumner, then

Prichard is not a beneficiary but a casualty of Flores’ ultra vires acts. Severance in

that case would be prejudicial to both Prichard and Sumner.

e)        Severance is Improper is it Creates Injustice, Prejudice or Inconvenience
              The court should deny a motion to sever if granting the motion will not do

justice, avoid prejudice, or further the convenience of the parties or the court. See

In re State, 355 S.W.3d 611, 613 (Tex. 2011); F.F.P. Operating Partners, L.P. v.

Duenez, 237 S.W.3d 680, 693 (Tex. 2007); Owens v. Owens, 228 S.W.3d 721, 726

(Tex App –Houston 14th Dist] 2006, pet dism’d). “…improper severance could

effectively terminate the improperly severed claims as if they had been dismissed.”

Landers I.d. at 731” Sustaining severance could thereby make the rest of this

appeal moot, it would also prejudice Sumner’s case against Prichard. If the trial

substantiates that Flores required her to drain her lot to the street, she could well

argue that this required her at considerable cost to raise her lot to create necessary

slope while making impossible to carry water from Sumner’s unraised lot. The


2
  Plaintiff hopes it is understood in the context of the paragraph that it is Sweitzer (DESIGNER) who claimed Flores
required the lot be drained to the street.


    Sumner v City Appeal Brief                   Page 13
Jury will see two victims of a faceless government official, one of whom (Prichard)

has already paid for her injury, and the other (Sumner) who wants her to pay for his

as well. Severance would not do justice or avoid prejudice it would very likely do

the opposite. While it could theoretically be more convenient the reverse could

easily be true for the following reasons:

                         a. PLAINTIFF’S decision to appeal could be influenced by how the

                             trial in the case against Prichard proceeds

                         b. Settlement with Prichard could moot some claims

                         c. Some identical legal questions will be decided in the pending

                             appeal of Sumner’s cause of action number 2010-45239.

Severance was improper because the chance it would be more convenient is less in

likelihood and importance than the chance that it would cause injustice and

prejudice. Because severance is improper it should be reversed, in which case it

would no longer be final. The remaining issues in this appeal would not be ripe.

Issue Two            Did Sumner exhaust his remedies before requesting Writ of
                     Certiorari pursuant to Texas Local Government code 211.011?
          Appellees claims that Sumner did not exhaust his remedies because the

“Board made no decision regarding the issuance of a Building Permit or an

Occupancy and Compliance Permit” [CR 64, 116 – 117]. Sumner’s Petition



Sumner v City Appeal Brief                  Page 14
includes a web address for the Zoning Ordinance [CR 171]. An application for a

building permit is approved when Flores finds that the building plans comply with

all zoning regulations [See *Zoning Ordinance § 01:02.02]. Issuing a certificate of

occupancy and compliance is based on a separate section, Zoning Ordinance §

01.02.04 which says in relevant part that

       ……..such certificate shall not be issued until the structure is in compliance
       with the requirements stated below as to Issuance.

                   01.
                   Issuance: The Office of the Building Official shall promptly issue a
                   Certificate of Occupancy and compliance when it is determined that
                   the building, structure, structural alteration or addition has been
                   completed in such a manner as to comply with the provisions of this
                   Comprehensive Zoning Ordinance.

          So Flores is without authority to issue either the building permit or a

certificate until he determines that the plans or the work complies with all

regulations, but issuing the certificate of occupancy and compliance is a ministerial

duty once he determines the property is in compliance. Therefore, any appeal of

any decision by Flores that the Adjoining Lot complies with any single provision

of the Zoning Ordinance is inherently an appeal to the legality of issuing a building

permit or a certificate of occupancy and compliance while the violation exists.


Sumner v City Appeal Brief               Page 15
From the court reporter’s record it appears that the trial Court’s decision to dismiss

Sumner’s request for writ of certiorari was based the belief that Sumner’s failure to

separately appeal the issuance of certificate of occupancy and compliance after the

act of issuing it constituted a failure to exhaust his remedies.

       MR. SUMNER… But the fact is I did appeal the building – the issuance of the
       permit. [ referring to certificate of occupancy and compliance] I just appealed
       it before they --they actually issued it. To go back and –

       THE COURT: That wouldn't be right. It just absolutely wouldn't be right. And
       there's no -- there's lots of law on that. [RR 21].

          Sumner finds no such law, and hereby challenges the Appellees to cite it if

such exists. Zoning Ordinance § A1:03.03 says, in relevant part that “appeals shall

be taken from the decisions of Administrative officials within a reasonable time not

to exceed 90 days….” So it is the administrative decision, not the act itself that is

appealed. This is consistent with the language of Tex. Loc. Gov’t. Code § 211.009

(a). “Appellants say there is no evidence Sumner appealed the issuance of the

building permit or the occupancy permit” [CR 64]. Sumner’s application for a to

the Board review concludes with this: “I, therefore appeal the Building Official’s

decision to approve the alternation of water flow and the drain on the property at

8302 Leafy Lane”[CR 125]. How does Flores “approve” the alteration of water



Sumner v City Appeal Brief            Page 16
flow and the drain on the property if not by issuing a certificate of occupancy and

compliance? Is this not just another way of saying the same thing; especially given

that Sumner’s Petition shows that his decision to appeal was predicated on learning

of Flores’ decision to issue a certificate and compliance [CR 174]? These are

questions of fact that preclude Summary judgment on whether Sumner exhausted

his remedies. Furthermore, Sumner’s Petition shows that he learned of Flores’

decision to issue a certificate and compliance on February 18, 2013 [CR 174], yet

the certificate was not actually issued until May 19, 2013 [CR 116] more than 90

days later. So to appeal of the act of issuing the certificate less than 90 days after

learning of Flores decision to comply with Zoning Ordinance § A1:03.03 was

literally impossible. Had Sumner been required to file his application in ten days

according to the new Board’s rules [CR 154-155] and then file again after the

certificate was actually issued, the entre approach would be unworkable in any real

case. In summary, the only way Sumner could overturn Flores’ decision to issue a

certificate of occupancy and compliance at the local level was for the Board to

decide to reverse Flores decision the subject property complies with all provisions

of the Zoning Ordinance. Flores would then have been without authority to issue

the certificate. Because the Board decided otherwise, Flores could only presume it

was his ministerial duty to issue the certificate under Zoning Ordinance §

01.02.04.01. Sumner therefore believes the trial court erred if it dismissed the Writ

Sumner v City Appeal Brief         Page 17
of Certiorari on grounds that Sumner did not exhaust his remedies and asks this

court to so rule.

Issue Three Did omissions in Sumner’s prosecution of his request for Writ of
            Certiorari pursuant to Tex. Loc. Gov’t Code 211.011 Justify
            Dismissal for Want of Prosecution?

          Appellees claim Sumner’s request for Writ of Certiorari should be

dismissed for want of prosecution because “no Writ of Certiorari has been directed

to the BOA to review the BOA decision” [CR 115]. Sumner is under the

impression that it is the Court that issues the order for Writ of Certiorari since he

has no authority to force the Board to submit its record the Court. Sumner did not

attach a proposed order to his original petition, but he did attach an order to his

Third Amended Original Petition (Sumner’s Petition) that he filed with his reply to

Appellees’ motions. It must be clear from that and from Sumner’s reply to

Appellees’ Motion to Dismiss Sumner’s Writ of Certiorari [CR 201] that any errors

and omissions in Sumner’s prosecution of this request this was unintentional, and

Sumner will make necessary corrections as directed. That said, Sumner has no

indication that the trial Court based its decision to order dismissal on the grounds

of want of prosecution, and the Court Reporters Record indicates that dismissal

was based at least in part on the Appellants claim that Sumner did not exhaust his

remedies [RR 21].



Sumner v City Appeal Brief         Page 18
Issue Four           Does Plaintiff Have a Protected Property Interest?
          ln their Motion for Summary Judgment Appellees cite Horton v. City of

Smithville, 117 Fed. Appx. 345 (5th Cir. Tex. 2004), Sumner v. Board of Adjustment

of City of Spring Valley Village, Civ. A. No H-12-12-551, 2013 WL 1336604, slip

op. at 5 (S.D.Tex. Mar. 29, 2013) and Develo Concepts 688 S.W.2d 790 (1984)

[CR 63] to support their assertion that “Sumner has no property interest in the

application of the City’s building ordinances to Sumner’s property”. That turn of

phrase does not address Sumner’s actual claims that the Appellants’ illegal and

ultra vires miss-application of the Zoning Ordinance violated his property interests

that do not arise not in the zoning ordinance, but in the Texas Water Code and the

Texas Constitution. In Horton Id. the court’s explanation that discretionary statues

do not give rise to constitutionally protected interests (Id. at 347-348) was relevant

because the plaintiffs asserted property interest (investment value and peaceful use

and enjoyment of their home Id. at 347) arose only in the City’s alleged failure to

enforce its own ordinance, where the City officials have broad discretion, not from

any constitutional or statutory entitlement where City officials have no more

discretion. Board of Adjustment of City of Spring Valley Village, Id. is inapposite




Sumner v City Appeal Brief               Page 19
for the same reason.3 Develo Concepts 688 S.W.2d 790 (1984) is inapposite

because the court found that the appellants had no ownership or contractual interest

in the property. Id. at 792.

              Water rights do not arise in the Zoning Ordinance, and they are

constitutionally protected Under Texas law. See City Of Wichita Falls, Plaintiff In

Error, Vs. W. M. Mauldin, et ux., Defendants in Error. 39 S.W.2d 859 at 861; 1931

Tex. App. Lexis 2064, holding as follows:

           Section 17, Art. 1 of the Constitution provides that "no person's property shall
           be taken, damaged, or destroyed for or applied to public use without adequate
           compensation being made, unless with the consent of such person."…The
           diverting of water from its natural channel, and throwing it upon the property
           of another, to his prejudice, creates a liability for damage against him who
           does so, in favor of the party so prejudiced

               In his Private Real Property Rights Preservation Act Guidelines4 Texas

Attorney General Greg Abbott, wrote in relevant part, the following:




3
 After Sumner amended his complaint to more clearly assert that his Deed Restrictions were his
constitutionally property interest the court set an oral hearing on that question. Sumner moved
for dismissal for other unstated and unrelated reasons so the court never ruled on that.
4

https://www.texasattorneygeneral.gov/AG_Publications/txts/propertyguide2005.sht
ml

    Sumner v City Appeal Brief           Page 20
       “End Note 1: "Private real property" means an interest in real property
       recognized by common law, including a groundwater or surface water right of
       any kind that is not owned by the federal government, this state, or a political
       subdivision of this state.”

       End Note 8: Physical invasions of property, as distinguished from physical
       occupancies, may also give rise to a "taking" where the invasions are of a
       recurring or substantial nature. Examples of physical invasions include,
       among others, flooding and water related intrusions and overflight or aviation
       easement intrusions.

          In Texas the law controlling surface water generally derives from the Civil

Law Rule5 See City of Houston v. Renault, Inc., 431 SW 2d 322, 326 (Tex 1968).

In that case the plaintiff based his claims on violations Article 1 § 17 and Vernon’s

Ann. St. 7589a, the predecessor of Texas Water Code 11.086. Arguments centered

on the factual circumstances under which liability would exist. The constitutional

property interest was taken for granted by the court. The decision reveals that

interfering with the flow of surface water is considered to be a physical invasion of

one’s property Id at *325. “The hallmark of a protected property interest is the


5
  See “D. H. Cole, Liability Rules for Surface Water Drainage A Simple Economic Analysis”
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1863&context=facpub This
rule is expressed by the maxim, aqua currit, et debet curerer, ut solebat es juie natural (water runs
and should run, as it is wont to do by natural right) See Sheldon J. and Maloney, Frank E.,
"Diffused Surface Water: Scourge or Bounty?" (1968).
http://lawlibrary.unm.edu/nrj/8/1/04_maloney_diffused.pdf

Sumner v City Appeal Brief               Page 21
right to exclude others” See, College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 527 U.S. 666, 673, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).

Also see Dennis Davis, et al. v. Steven L. Johnston, et. al; NO. 03-10-00712-CV

2012 Tex. App. LEXIS 5249, HN5. Holding

       “Similarly, those who grant easements should be assured that their
       conveyances will not be construed to undermine private-property rights, like
       the rights to exclude others or to obtain a profit, any more than what was
       intended in the grant. …..A property owner's right to exclude others from his
       or her property is recognized as one of the most essential sticks in the bundle
       of rights that are commonly characterized as property”

          “Water rights are long recognized as a form of property protected by the

Fifth Amendment and other laws”. See James A. Hansen v. The United States of

America; 65 Fed. Cl. 76; 2005 U.S. Claims LEXIS 93; 60 ERC (BNA) 1141 [see

HN24].

          Sumner raised genuine issues of material fact that suggest the issuance of a

certificate of occupancy and compliance was an ultra vires act without which the

violations of his property rights that arise in the Texas statues and the constitution

that would not have been permitted to continue. See for example these passages in

Sumner’s Petition. See for example paragraphs 13 [CR 172-3], 35 [CR 179], 43

[CR 181], 54 [CR 183] and 66 [CR 185].


Sumner v City Appeal Brief           Page 22
              These genuine issues of fact preclude a Summary Judgment on grounds that

he has no protected property interest.

Issue Five               Did Sumner Receive the Necessary Elements Due Course of
                         Law?
              The fundamental requirement of due process is the opportunity to be heard

and it is an "opportunity which must be granted at a meaningful time and in a

meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 552 (1965).6. Appellees

attempt to frame Sumner’s right to due process for all claims to his right for

Certiorari review pursuant to Tex. Loc. Gov’t. Code § 211.011. Because trial court

terminated the hearing on the Board’s motions with her conclusion that Sumner did

not exhaust his remedies [RR 21] Sumner wonders if it accepted this at face value.

Appellees cite Tex. Loc. Govt. Code Ann § 211.001 and 211.009 (a) to support

their assertion that “the only judicial remedy to challenge a BOA decision is a writ


6
 . The Court usually has held that the Constitution requires some kind of a hearing before the
State deprives a person of liberty or property See, e. g., Cleveland Board of Education v.
Loudermill, 470 U. S. 532, 542 (1985) (" `[T]he root requirement' of the Due Process Clause" is
" `that an individual be given an opportunity for a hearing before he is deprived of any significant
protected interest' "; hearing required before termination of employment (emphasis in original));
Parham v. J. R., 442 U. S. 584, 606-607 (1979) (determination by neutral physician whether
statutory admission standard is met required before confinement of child in mental hospital);
Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 18 (1978) (hearing required before
cutting off utility service); Goss v. Lopez, 419 U. S. 565, 579 (1975) (at minimum, due process
requires "some kind of notice and . . . some kind of hearing" (emphasis in original); informal
hearing required before suspension of students from 128*128 public school); Wolff v.
McDonnell, 418 U. S. 539, 557-558 (1974) (hearing required before forfeiture of prisoner's
goodtime credits); Fuentes v. Shevin, 407 U. S. 67, 80-84 (1972) (hearing required before
issuance of writ allowing repossession of property); Goldberg v. Kelly, 397 U. S. 254, 264 (1970)
(hearing required before termination of welfare benefits).

    Sumner v City Appeal Brief            Page 23
of certiorari [CR 65]. The Board makes the same argument to defeat Sumner’s

request for Declaratory Judgment [CR 119-120], but what Tex. Loc. Gov’t Code

211.009 (a) actually says “The zoning board of adjustment may hear and decide an

appeal that alleges error in an order, requirement, decision, or determination made

by an administrative official in the enforcement of this subchapter or an

ordinance adopted under this subchapter [emphasis added]. “This subchapter”

means Local Government Code, Title 7, Subtitle A, Chapter 211, subchapter A.

“General Zoning Regulations”. So the Board’s authority and Flores’ authority is

limited to Zoning Regulations. Appellants assert that “This court lacks subject

matter jurisdiction to issue a declaratory judgment that challenges the decision of

the BOA” [CR 65]. To support that assertion they cite Lamar Corp. v. City of

Longview, 270 S.W.3d 609, 613 to, but the very next page of that same decision

says “A party may obtain judicial review of an administrative action if it adversely

affects a vested property right or otherwise violates a constitutional right.” Id. at

*614. Also see W. Tex. Water Refiners, Inc. v. S & B Beverage Co., 915 S.W.2d

623, 626 (Tex. App.—El Paso 1996, no writ) holding that:

       A ZBA must act only within its specifically granted authority. . A city's board
       of adjustment derives its power both from the statute and the city ordinance
       establishing it and defining its local function and powers. See
       TEX.LOC.GOV'T CODE ANN. § 211.008-.009; cf. Board of Adjustment v.


Sumner v City Appeal Brief           Page 24
       Stovall, 218 S.W.2d 286, 288 (Tex.Civ.App.-Fort Worth 1949, no writ). A
       board of adjustment must act within the strictures set by the legislature and
       the city council and may not stray outside its specifically granted authority.
       Any action exceeding this authority is null and void and subject to collateral
       attack.

          More broadly, the due course of law for overturning a ruling of an

administrative agency (the Board for example) that violates the constitutional

rights of a private party was addressed in Marrs v. R.R. Comm’n, 142 Tex 293, 303

(Tex 1944) which says in relevant part:

       It appears to be well settled that in suits brought to set aside an order, rule, or
       regulation of an administrative agency on the ground that it violates one's
       constitutional rights, such as the confiscation of his property or the denial of
       equal protection of the law, the law contemplates an independent review of
       the facts by the court as in other civil actions. Lone Star Gas Co. v. State, 137
       Tex. 279, 153 S.W.2d 681, 696; Crowell v. Benson, 285 U.S. 22, 60, 52
       Sup.Ct. 285, 598; Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287,
       64 L.Ed. 908, 52 Sup.Ct. 527. Id at 303 “We hold that in such a case our
       Constitution guarantees a trial of such issues as in other civil cases…. The
       orders heretofore entered will be held to be illegal; and, of course, the
       Commission will have to enter substantially different orders which will not
       arbitrarily discriminate between the parties and will not unlawfully deprive
       petitioners of their property.” Id. at 307

Sumner v City Appeal Brief            Page 25
           “We perceive no legislative intent to exclude municipalities from section

11.086(a) of the Water Code” Abbott v. City of Princeton Id. As described above,

much of the discussion in the decision in City of Houston v. Renault, Inc. Id.

centered on the factual circumstances under which a government entity would be

liable to a private party. The court cited City of Waco v. Roberts, 121 Tex. 217, 48

S.W.2d 577 where the Jury found the City to be negligent after being instructed by

the court that "to be a proximate cause of an event it must have been reasonably

anticipated by a person of ordinary prudence, in the exercise of ordinary care, that

the injury or some similar injury would occur”

a) Due Course Of Law, Zoning
         1. The Court must find that the Board abused its discretion if it acted

without reference to any guiding rules or principles or clearly failed to analyze or

apply the law correctly. See City of Dallas v. Vanesko, 189 S.W.3d 769, 772 (Tex.

2006). Our abuse-of-discretion review is necessarily less deferential [than with

respect to a zoning board’s factual findings] when considering any legal

conclusions made by the zoning board and is similar in nature to a de novo review.

City of Dallas v. Vanesko, I.d. The Board in this case acted without reference to

any guiding rules or principles and clearly failed to analyze or apply the law

correctly. Sumner’s Petition and his reply to Appellees’ motions [CR 201-217]

describe the elements procedural due process deprived to Sumner in the Board


Sumner v City Appeal Brief          Page 26
hearing. Sumner claims the standard of review used by the Board was improper

(CR 175). Sumner’s complaint in this regard is not that the Board applied the

wrong standard of review in the abstract7 it is that the chairwoman’s instruction

that Sumner had to prove the property violates section the Zoning Ordinance §

13.01 [CR 175] when Sumner’s application for a Board review says “I, therefore

appeal the Building Official’s decision to approve the alternation of water flow and

the drain on the property at 8302 Leafy Lane.” [CR 125] As pointed out in Issue

Two above, Tx. Loc. Gov’t Code § 211.009 (a) (1) and Zoning Ordinance § A1:

03.03 authorize the Board to review administrative decisions, not the actions that

ensue from those decisions. The difference in this and the charwoman’s charge, is

the difference between proving that Flores’ did not meet his responsibility under

Zoning Ordinance § 01.02.04.01 for determining whether the property complies

with the Zoning Ordinance § 13.01 and proving it does not comply. This is not just

word play. Sumner’s Petition says “That decision cannot have been properly made



7
 Tx. Loc. Gov’t Code § 2008 (e) authorizes the Board to “adopt rules in accordance with any
ordinance adopted under this subchapter”. Standards of review for Board hearings are not
mentioned in the Zoning Ordinance or in the Tex. Loc. Govt Code. Since the Board “may not
stray outside its specifically granted authority” (see W. Tex. Water Refiners, Inc. v. S & B
Beverage Co Id. at 626), one must presume the normal standard is the one used in civil trials;
preponderance of the evidence. All Article 4, section 7 of the Board’s purported rules [CR 156]
says says about standard of review is that “The applicant must present evidence to support the
action requested by the Board…….” This suggests “some credible evidence standard” which is
lower than “preponderance of the evidence. [See
http://en.wikipedia.org/wiki/Legal_burden_of_proof].

    Sumner v City Appeal Brief          Page 27
if Flores incorrectly interpreted or applied the regulation in question [CR 173]. So

this really comes down to whether there was any evidence to support Flores

decision. Appellees claim that “Sumner does not contend that there was no

evidence to support the BOA's decision (CR 119). What Sumner says is “It is

prima facie that he cannot have determined that the lot was in compliance with

Drain Regulation 231§ 13.01 if Plaintiff’s [Sumner’s] charge that he did not

consider flow in both directions is true. This unrebutted charge is the essence of

Plaintiff’s complaint” [CR 179]. The definition of “prima facie” is that the charge

is sufficient to be deemed true unless it is rebutted. Flores failure to rebut the

Sumner’s claim, even when directly questioned about this and the Board’s failure

to press him on this question [CR 175-176] is tantamount to saying there was no

evidence to support the Board’s decision on what was “the essence of Sumner’s

complaint” [CR 179]. The law requires that some evidence is required to support

the Board’s decisions. See In re Barber, 982 S.W.2d 364, 368 (Tex. 1998). Sumner

has also claimed evidence was excluded without a rational basis (CR 175). Under

an abuse of discretion standard, legal and factual insufficiency are relevant factors

in assessing whether the trial court abused its discretion. See Texas Dept. of Heath

v. Buckner, 950 S.W. 2d 216, 219 (Tex. Civ. App.–Forth Worth 1977, no writ). The

improper exclusion of evidence can therefore be fatal to an argument. Appellees

acknowledge Sumner complaint of the “presiding officer’s ‘improper exclusion of

Sumner v City Appeal Brief         Page 28
evidence” [CR 118], but they then redefine this as “conflicting evidence” [CR

119], and go on to say “some evidence supports its decision” [Id.]. So, there are

real disagreements about a) whether evidence was “conflicting” or “excluded”, and

b) whether or not there is any evidence that supports the Board’s decision. The

purpose of Certiorari Review is to decide such fact questions, so these

disagreements are genuine issues of material fact that preclude summary judgment.

           Sumner also claims his request to cross examine Flores was denied. [CR

179]. He has a right to cross examination under Texas law. In Richardson v. City of

Pasadena, 513 S.W.2d 1, 4 (Tex. 1974), the Texas Supreme Court explained: “The

right to cross examination is a vital element in a fair adjudication of disputed facts.

The right to cross examine adverse witnesses and to examine and rebut all

evidence is not confined to court trials, but applies also to administrative hearings.”

          In City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 250–251 (Tex.

App.––Fort Worth 2007, writ ref’d n.r.e.), the Court of Appeals further explained

the “rudiments of fair play” required in administrative proceedings, stating:

       “In almost every setting where important decisions turn on questions of fact,
       due process requires an opportunity to confront and cross-examine adverse
       witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25
       L.Ed.2d 287 (1970). Cross-examination is a safeguard essential to a fair trial
       and a cornerstone in the quest for truth; longstanding principles of our

Sumner v City Appeal Brief           Page 29
       jurisprudence recognize the right and necessity of full and complete cross-
       examination. Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314
       (Tex.1987). The right to cross-examine a witness is a substantial one, and it is
       error to so restrict it as to prevent the cross-examining party from going fully
       into all matters connected with the examination in chief. Id. “The right to
       cross[-] examine adverse witnesses and to examine and rebut all evidence is
       not confined to court trials, but applies also to administrative hearings.”
       Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex.1974) (emphasis
       added). See also J. B. Advertising, Inc. v. Sign Board of Appeals of City of
       Carrollton, 883 S.W.2d 443, 448–49 (Tex. App.––Eastland 1994, writ
       denied); Board of Adjustment of the City of San Antonio v. Willie, 511 S.W.2d
       591, 594 (Tex. Civ. App.––San Antonio 1974, writ ref’d n.r.e.).

          Appellees attempt to apply the Board’s previously undisclosed “Rules of

Procedure” [CR 100-107] to defeat Sumner at every turn. For example, they

attempt to deflect Sumner’s charge of gross negligence, bad faith or malice by

claiming they were just following these rules [CR 119]. However the very fact this

is the first time these rules appeared even though Sumner has already complained

of three different violations in a separate lawsuit [CR 177] suggests that they may

be deliberately concealing these to defeat appeals. The Board’s letter to applicants

[CR 197-198] show acts as a decoy to dissuade applicants from looking further for

procedures. Inherent in raising this issue is the question of intent. Was this


Sumner v City Appeal Brief           Page 30
deliberate, and if so was the Board is more interested in protecting its ability to be

arbitrary than serving the public interest? This is a genuine question of material

fact.

          Tx. Loc. Gov’t Code § 2008 (e) authorizes the Board to “adopt rules in

accordance with any ordinance adopted under this subchapter”, so any procedures

the Board adopts must find support in the Standards of review for Board hearings

are not mentioned in the Zoning Ordinance. The Court must find that the Board

abused its discretion if it acted without reference to any guiding rules or principles.

See City of Dallas v. Vanesko Id. 772. The Board “may not stray outside its

specifically granted authority” (see W. Tex. Water Refiners, Inc. v. S & B Beverage

Co Id. at 626). Article 4, Section 6, of these “Rules of Procedure” [CR 100-107]

assigns the presiding officer the power to arbitrarily decide whether cross

examination will be indirect and in writing or direct, and which questions will be

allowed. Traditional cross examination includes, and in federal court is limited to

questioning based on prior testimony of witness for the adverse party [CR 103].

Requiring a complaining party to create and submit written questions and motions

during an oral hearing is impossible in advance, completely unnecessary and

unduly burdensome to do live, especially given time limits set out elsewhere in

these procedures. The Board’s purpose is to review the legality of decisions of



Sumner v City Appeal Brief         Page 31
administrative officials, but in Article 6 the Board effectively grants itself the

power to legislate and create contracts [CR 104]. Article V. Section 4 [CR 103]

gives the Board power to set arbitrary and unreasonable time limits as does Article

2, section 3 [CR 100-101]. All of the above are arbitrary and abusive, and none are

supported in the Zoning Ordinance as required by Tex. Loc. Govt. Code 211.008 e..

or “any other guiding principles. Even if these Rules of Procedure are deemed

valid, Sumner raised a genuine issue of material fact as to whether he had notice of

such rules. It is likely that anyone contemplating administrative review would look

first to the Zoning Ordinance and very unlikely anyone who read it would discover

in ten days what it took years to disclose to Sumner. Due process at a minimum

requires notice and an opportunity to be heard at a meaningful time and in a

meaningful manner. See Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d

926, 930 (Tex. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893,

902, 47 L.Ed.2d 18 (1976); Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Calvert, 394 S.W.2d at 657. Another

implicit question of fact is whether the Board’s acceptance of Sumner’s fee and

conduct of the hearing at the expense of taxpayers, the time of everyone involved

nullify any complaint that that Sumner’s application was untimely. As the City’s

top zoning official, he would surely be one of the first to know if his decisions are

challenged, and he would know when he informed Sumner of his decisions. Does

Sumner v City Appeal Brief         Page 32
he or the Board have some obligation to inform Sumner that his application is

untimely before it ends up in court? Whether the Board’s Procedures are arbitrary

or unreasonable are questions of law, and if this court finds that to be true, it has

the power to overrule any decision on that basis.

          Sumner has raised genuine issues of material fact that should preclude

Summary judgment based on Sumner’s failure to follow these procedures. Did Tx.

Loc. Gov’t Code § 2008 (e) constitute constructive notice of these Procedures, or

would the Board’s letter to applicants [CR 197-198] work as a decoy, and is this

intentional in view of the Board’s failure to disclose these procedures sooner? Does

the delay in disclosing these procedures support Sumner’s charges of bad faith,

discrimination and malice? Are those charges inherently factual determinations?

Did the holding of a hearing nullify the Board’s right to now complain of Sumner’s

application was untimely?

Issue Six            To what extent are the Appellees immune from suit and liability
                     for monetary damages?
          The Texas Supreme Court reviewed sovereign and governmental immunity

in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) holding in relevant part

as follows:

       “While governmental immunity generally bars suits for retrospective
       monetary relief, it does not preclude prospective injunctive remedies in


Sumner v City Appeal Brief              Page 33
       official-capacity suits against government actors who violate statutory or
       governmental provisions.” Id at *368…… “…..where statutory or
       constitutional provisions create an entitlement to payment, suits seeking to
       require state officers to comply with the law are not barred by immunity
       merely because they compel the state to make those payments.” Id. at *371…
       it is clear that suits to require state officials to comply with statutory or
       constitutional provisions are not prohibited by sovereign immunity, even if a
       declaration to that effect compels the payment of money.. To fall within this
       ultra vires exception, a suit must not complain of a government officer's
       exercise of discretion, but rather must allege, and ultimately prove, that the
       officer acted without legal authority or failed to perform a purely ministerial
       act.” Id. at *372 “For example, a claimant who successfully proves a takings
       claim would be entitled to compensation, and the claim would not be barred
       by immunity even though the judgment would require the government to pay
       money for property previously taken. Gen. Servs. Comm'n v. Little-Tex
       Insulation Co., 39 S.W.3d 591, 598 (Tex.2001) (noting that governmental
       immunity ‘does not shield the State from an action for compensation under
       the takings clause’); cf. WRIGHT & MILLER, FEDERAL PRACTICE &
       PROCEDURE § 3524.3 (‘If the state cannot invoke its immunity, retroactive
       relief against it is allowed.’).” Id. at *376

          Sumner claims that the City took his property and gave it to Prichard in

violation of Article 1 §§ 17 and 19 of the Texas Constitution (CR 183-184). It goes



Sumner v City Appeal Brief             Page 34
without saying that an illegal act cannot serve the “public use” requirement of

Article 1 § 17. There is a long line of jurisprudence holding that the corollary to the

government’s right to take property for public purpose is that it is forbidden from

taking property from one property owner without public purpose or to confer a

benefit on a private party. See Coastal States Gas Producing Co. v. Pate, 309

S.W.2d 828, 833 (Tex. 1958); Marrs v. R.R. Comm’n, 177 S.W.2d 941, 949 (Tex.

1944); Davis v.City of Lubbock, 326 S.W.2d. 699, 704 (Tex. 1959), Borden v.

Trespalacios Rice& Irrigation Co., 86 S.W. 11, 14 (Tex. 1905); Whittington v. City

of Austin, 174S.W.3d 889, 897 (Tex. App.—Austin 2005, writ ref’d n.r.e.). The

legal question of the government’s liability for retrospective damage payments in a

taking with no public purpose was succinctly addressed in Montgomery v. Carter

County, 226 F.3d 758-769 (6th Cir. 2000): “Of course, if a landowner can prove

that her land was taken for a strictly private use, "desist" or "pay" would not be an

either/or proposition for the local government; it would have to do both.”

          In Bennett v. Planning Comm’n, City of Bryant, Ark., No. 4:09-CV-00315,

2010 WL 1417971, at *1–2 (E.D. Ark. Mar. 31, 2010), a case that is conceptually

analogous in several ways to the one before this Court, the plaintiffs brought a

§1983 claim against the City of Bryant, Arkansas city planning commission and

city officials for subdividing, and proposing to approve the rezoning of a lot for



Sumner v City Appeal Brief         Page 35
non-residential use within a platted subdivision that was governed by a bill of

assurance, or deed restrictions that limited the use of all lots to residential uses and

prohibited the further subdivision of lots. The plaintiffs alleged that they were

never given notice of, or the opportunity to oppose the petition for the subdivision

of the lot, in violation of their constitutional procedural and substantive due

process rights because the restrictions and covenants contained in the bill of

assurance (no subdivision of lots; residential use only) created property interests

owned by plaintiffs. Id. at *2. The plaintiffs further alleged that the city officials

had constructive knowledge of the restrictions in the recorded covenants, and

breached those restrictive covenants in approving the re-plating of the lot and in

proposing to approve the rezoning of the lot to commercial use. Id. at *2–3. The

court decided it had jurisdiction to hear the plaintiff’s constitutional claim.

          In Ridge Line Inc, 346 F.3d 1346 -1356 the Federal Circuit addressed the

question of when the government is accountable to a private party for a Public

Taking and instructed the trial court to "determine whether the increased runoff on

the [landowner's] property was the predictable result of the government action [in

constructing a building]." Resource Investments, Inc. and Land Recovery, Inc v.

The United States of America, 85 Fed. Cl 447; 2009 US Claims Lexis 11elaborated

on interpreting that requirement.



Sumner v City Appeal Brief          Page 36
          This sort of predictability was not whether the government had actually

foreseen the harm to the landowner's property, but instead whether the construction

"initiated a series of events all . . . in their natural order, by which the landowner

was deprived of the beneficial use of portions of its land."

          While these two cases concern the circumstances under which the

government is accountable to damaged party in cases of takings for public use, the

same would logically apply in a taking for private use for which the remedy is

different as described in Montgomery v. Carter County Id. at 769.

          In Texas, only the County court has jurisdiction for claims of taking for

public use, but this is because the special questions that arise in determining “just

compensation” In this case, the issue comes down to restoring Sumner to the

condition that existed before the taking occurred. Sumner believes this there is an

analogy to a number of federal case, including federal cases like Samad v. City of

Dallas, 940 F.2d 925 and Fideicomiso de la Tierra v. Fortuno, 604 F.3d 7 (1st Cir,

2010) holding:

       We agree with the vast majority of circuits to address this issue, which have
       held that this ripeness requirement of going through state procedures does not




Sumner v City Appeal Brief          Page 37
           apply to claims that a taking was not for a "public use.8……………That is so
           because "[p]rivate-use takings . . . are unconstitutional regardless of whether
           just compensation is paid," and, unlike just compensation claims, state
           proceedings to determine appropriate compensation would not obviate the
           constitutional question. Montgomery, 226 F.3d at 766-67”.

               The decision in Abbott v. City of Princeton, Id. applies in Sumner’s claims

under section 11.086 of the Texas Water Code “When the water statutes were

codified and the Code Construction Act was adopted, an entire new statutory

scheme was implemented which destroyed the proposition that the sovereign is not

included unless specifically named. Clearly, the Code Construction Act was

calculated to abrogate this rule insofar as section 11.086 is concerned”




8
 see Fideicomiso de la Tierra v. Fortuno, 604 F.3d 7 (1st Cir, 2010); Dhalen v. Shelter House,
No. 09–1909, 2010 WL 1050411, at *3 (8th Cir. March 24, 2010);;Carole Medina LLC v. New
Jersey Transit Corp., 550 F. 3d 302, 308 (3rd Cir, 2008); Montgomery v. Carter County, 226 F.3d
758 (6th Cir. 2000)


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