                                  No. 01-14-00515-CV
                             In the Court of Appeals for the                  FILED IN
                                  First District of Texas              1st COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                       1/14/2015 6:09:34 PM
                                                                       CHRISTOPHER A. PRINE
                                    KOSOCO, INC.,                              Clerk


                                                                 Appellant,
                                             vs.

     METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
                                                                 Appellee.


                             On Appeal from Cause No. 1010709
                In the County Civil Court at Law No. 4 of Harris County, Texas
                                  ______________________


      METRO'S SUPPLEMENTAL BRIEF IN RESPONSE
         TO THE REPLY BRIEF OF APPELLANT
                                      Frederick D. Junkin
                                      State Bar No. 11058030
                                      fredjunkin@andrewskurth.com
                                      Kathryn K. Ahlrich
                                      State Bar No. 24063686
                                      katieahlrich@andrewskurth.com
                                      Andrews Kurth LLP
                                      600 Travis Street, Suite 4200
                                      Houston, Texas 77002
                                      (713) 220-4200
                                      (713) 238-7387 (Facsimile)

                                      ATTORNEYS FOR APPELLEE
                                      METROPOLITAN TRANSIT AUTHORITY
                                      OF HARRIS COUNTY, TEXAS




HOU:3513185.3
                                            TABLE OF CONTENTS
                                                                                                                     Page

TABLE OF CONTENTS ................................................................................................. ii
INDEX OF AUTHORITIES............................................................................................. iii

PRELIMINARY STATEMENT ..........................................................................................1
ARGUMENT AND AUTHORITIES ...................................................................................3

I.     Arguments first raised in a reply brief are waived. ...........................................3

II.    The Reply Brief does not cite any relevant authority or
       competent evidence supporting the construction impairment
       argument. ...........................................................................................................4

III. Access to the Kosoco property was not materially and
     substantially impaired during the construction of the North Line.....................6
CONCLUSION .............................................................................................................10

CERTIFICATE OF SERVICE ..........................................................................................12

SERVICE LIST ............................................................................................................12

CERTIFICATE OF COMPLIANCE ..................................................................................12




HOU:3513185.3                                                ii
                                         INDEX OF AUTHORITIES
                                                                                                              Page(s)

                                                        Cases
City of Austin v. Avenue Corp., 704 S.W.2d 11 (Tex. 1986)................................. 6, 7

City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969)....................................... 4
County of Bexar v. Santikos, 144 S.W.3d 455 (Tex. 2004) ....................................... 6

Dailey v. Dailey, No. 01-13-00923-CV, 2014 WL 4260543 (Tex.
  App.–Houston [1st Dist.] Aug. 28, 2014, no pet.) ................................................ 3

Dallas County v. Crestview Corners Car Wash, 370 S.W.3d 25 (Tex.
  App.–Dallas 2012, pet. denied) ........................................................................ 7, 8

Onyung v. Onyung, No. 01-10-00519-CV, 2013 WL 3875548 (Tex.
  App.–Houston [1st Dist.] July 25, 2013, pet. denied) .......................................... 3
Pennysavers Oil Co. v. State, 334 S.W.2d 546 (Tex. Civ. App.–San
  Antonio 1960, writ ref'd) .................................................................................... 10

Priddy v. Rawson, 282 S.W.3d 588 (Tex. App.–Houston [14th Dist.]
   2009, pet. denied).............................................................................................. 3, 6
State v. Bristol Hotel Asset Co., 293 S.W.3d 170 (Tex. 2009) .................................. 7
State v. Heal, 917 S.W.2d 6 (Tex. 1996) ................................................................... 6
State v. Schmidt, 867 S.W.2d 769 (Tex. 1993) .................................................... 7, 10

                                                        Rules
Tex. R. App. P. 38.1(i) ............................................................................................... 6




HOU:3513185.3                                              iii
                                    PRELIMINARY STATEMENT
        In its Reply Brief — for the first time in any filing related to METRO's

Motion to Dismiss for Lack of Jurisdiction (the "Motion") — Kosoco appears to

contend that the trial court had jurisdiction over its takings claim because "access

to its business was materially and substantially impaired during construction" of

the North Line.1

        Kosoco did not raise this argument in its response to METRO's Motion in

the trial court.         The sole focus of that response was the post-construction

configuration of North Main.2

        In its initial brief in this appeal, Kosoco asserted in its Statement of the Case

that there were periods of time during construction when access to its property was

"totally cut off," "practically impossible," and "completely impossible for gasoline

delivery trucks."3 Kosoco also alluded to construction impacts in the portions of its

brief addressing the Issues Presented.4 None of these passages was supported by

citation to the appellate record, and Kosoco did not present any authority or

argument suggesting that any such impacts were sufficient to vest the trial court



        1
            Reply Brief of Appellant 4.
        2
            See CR 182-211 (no mention of construction impacts).
        3
            Brief of Appellant 2.
        4
            Id. 4, 11.


HOU:3513185.3
with jurisdiction over its takings claim. As in the trial court, the sole focus of

Kosoco's argument was the post-construction configuration of North Main.5

        To the extent Kosoco now contends that its claim should not have been

dismissed because at various times the construction activities associated with the

development of the North Line impacted the routes by which vehicles could access

its property, the argument should be rejected for three reasons:

        1. It has been waived, because it was not raised in Kosoco's initial brief;
        2. Kosoco's Reply Brief does not cite any competent evidence or relevant
           authorities supporting the argument; and

        3. Even if the Court were to consider the argument, the relevant evidence
           and authorities establish that the construction of the North Line did not
           materially and substantially impair access to the Kosoco property.

        The Reply Brief also includes arguments relating to issues that were raised

in Kosoco's initial brief and addressed in METRO's Brief of Appellee. As they

have already been briefed, this reply does not include further discussion of those

issues. The absence of further briefing should not be construed as agreement with

the assertions and arguments in the Reply Brief.                     To the contrary, Kosoco

continues to mischaracterize METRO's arguments, the facts of this case as

established in the evidence accompanying the Motion, and the authorities to which

Kosoco refers.6

        5
            Id. 12-17 (presenting no argument or authority relating to access during construction).
        6
            See Brief of Appellee 4-5, 6-7, 11, 20-22, 27, 30-34.


HOU:3513185.3                                      2
                          ARGUMENT AND AUTHORITIES
I.      Arguments first raised in a reply brief are waived.

        This Court recently noted that "[a]n appellant is not allowed to raise new

issues in a reply brief—even in reply to matters addressed in the appellee's

response—and issues raised for the first time in a reply brief are waived and need

not be considered by the appellate court." Dailey v. Dailey, No. 01-13-00923-CV,

2014 WL 4260543, at *1 (Tex. App.–Houston [1st Dist.] Aug. 28, 2014, no pet.);

see also Onyung v. Onyung, No. 01-10-00519-CV, 2013 WL 3875548, at *21

(Tex. App.–Houston [1st Dist.] July 25, 2013, pet. denied) (declining to consider

issues first raised in a reply brief); Priddy v. Rawson, 282 S.W.3d 588, 597-98

(Tex. App.–Houston [14th Dist.] 2009, pet. denied) (same).

        Kosoco's initial brief did not refer to any evidence or authorities supporting a

claim that construction activities materially and substantially impaired access to its

property. It likewise did not present any argument supporting reversal on the basis

of impaired access during construction. The passing references to construction

impacts, without supporting evidence, authority, or argument, should not be

deemed sufficient to preserve the issue for review.

        Kosoco has waived any argument for reversal on the ground that access to

its property was impaired during the construction of the North Line. See Dailey,

2014 WL 4260543, at *1.



HOU:3513185.3                               3
II.     The Reply Brief does not cite any relevant authority or competent
        evidence supporting the construction impairment argument.

        Kosoco does not cite a single case addressing the proof required to establish

a material and substantial impairment of access during the construction of a public

improvement project. The only case it references in connection with its argument

is City of Waco v. Texland Corp., 446 S.W.2d 1 (Tex. 1969).                      But Texland

involved takings claims based on post-construction access; the opinion did not

concern or discuss the proof required to establish a taking based on a claim that

construction activities impacted the routes by which vehicles could access the

claimants' properties. See id.

        Kosoco's argument is equally lacking in evidentiary support. On page 2 of

the Reply Brief, Kosoco cites to the Affidavit of Louis Namgoong as support for

the assertion that "Kosoco's business was shut down for days at a time" during

construction.7 Kosoco's reliance on the affidavit is misplaced for several reasons.

        First, the affidavit was not presented to the trial court in support of or

opposition to METRO's Motion.8 Kosoco had filed the affidavit in support of its

response to a previously filed No-Evidence Motion for Summary Judgment.9 In


        7
            Reply Brief of Appellant 2.
        8
            See CR 5-211.
        9
        See CR 226-40. METRO passed the hearing on that motion and subsequently deposed
Mr. Namgoong in order to investigate the claims in the affidavit. Based on his deposition
testimony and other evidence, METRO filed its Motion seeking dismissal for lack of jurisdiction.


HOU:3513185.3                                  4
responding to the Motion, however, Kosoco did not attach the affidavit as an

exhibit, incorporate it by reference, or otherwise rely on it.10

        Second, the affidavit does not state that Kosoco's business was ever

completely shut down, as the Reply Brief implies. Rather, it states: "As a result

Kosoco, Inc.'s business was substantially shut down for days at a time . . . ."11 As

the deposition testimony of Mr. Namgoong subsequently revealed, even this

conclusory assertion was overstated.              During his deposition, Mr. Namgoong

admitted that (i) Kosoco never closed due to construction activities12 and (ii) there

were always routes by which vehicles could gain access to the property.13

        In the Argument and Authorities section of the Reply Brief, the only

evidence Kosoco cites that is potentially relevant to a construction impairment

argument is an excerpt from Mr. Namgoong's deposition, in which he discussed a

fuel truck that had entered onto the Kosoco property and damaged a pylon and

fence.14 Mr. Namgoong did not recall the specific date of the incident, and he did

not indicate whether it occurred while there were ongoing construction activities




        10
             See CR 182-211.
        11
             CR 239 (emphasis added).
        12
             CR 39-40 (depo 45-46).
        13
             CR 40-42 (depo 49-53, 55-56).
        14
             See Reply Brief of Appellant at 5.


HOU:3513185.3                                     5
adjacent to the Kosoco property.15 He did testify that the fuel truck was not

delivering fuel to Kosoco, apparently "had gotten lost," and utilized a driveway

that was not the typical point of entry or exit for fuel delivery trucks.16 The fact

that a single "lost" fuel truck, at some unspecified time, had difficulty maneuvering

on the property provides no basis for concluding that access to the property was

materially and substantially impaired during the construction of the North Line.

        Arguments lacking any legal or evidentiary foundation are waived. Tex. R.

App. P. 38.1(i) ("The brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.");

Priddy, 282 S.W.3d at 595-96, 598.        As Kosoco's argument is premised on

conclusory assertions lacking evidentiary support and precedential foundation, it

has been waived and should be disregarded.

III.    Access to the Kosoco property was not materially and substantially
        impaired during the construction of the North Line.

        A claimant alleging that its property has been "taken" due to an impairment

of access must prove that the impairment is material and substantial. Cnty. of

Bexar v. Santikos, 144 S.W.3d 455, 460 (Tex. 2004); State v. Heal, 917 S.W.2d 6,

9 (Tex. 1996). With respect to an alleged temporary impairment, the claimant

must show that the impairment resulted in a total restriction of access. City of

        15
             CR 39 (depo 42-43).
        16
             CR 38-39 (depo 41-42).


HOU:3513185.3                            6
Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986). Texas courts have

consistently held that routine construction inconveniences, including inconvenient

or difficult access, are a normal and expected consequence of public improvement

projects, do not constitute material and substantial impairments of access, and are

not evidence of a taking. See State v. Bristol Hotel Asset Co., 293 S.W.3d 170, 173

(Tex. 2009); State v. Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); Avenue Corp.,

704 S.W.2d at 12-13; Dallas Cnty. v. Crestview Corners Car Wash, 370 S.W.3d

25, 45-47 (Tex. App.–Dallas 2012, pet. denied).

        In City of Austin v. Avenue Corp., the claimant contended that the

reconstruction of the sidewalk in front of its business created a partial temporary

restriction of access for nine months.       The Texas Supreme Court denied

compensation, noting that "[t]he inconvenience and damage which a property

owner suffers from these temporary obstructions are incident to city life and must

be endured." Avenue Corp., 704 S.W.2d at 12; see also Schmidt, 867 S.W.2d at

775. More recently, the Dallas Court of Appeals considered whether occasional

utility disruptions, construction dust, and blocking of access by construction

workers, construction vehicles, and construction materials constitute material and

substantial impairments of access. Crestview Corners Car Wash, 370 S.W.3d at

45. The court concluded they do not, explaining that such occurrences "fall along




HOU:3513185.3                            7
the lines of the normal inconvenience from construction activities the supreme

court has routinely rejected as recoverable damages." Id. at 47.

        The Reply Brief does not address these authorities. Instead, it misstates

facts, confuses the legal standard for establishing a takings claim, and intertwines

alleged construction and post-construction impacts in an effort to cobble together

an argument that the construction inconveniences Kosoco experienced rose to the

level of a taking.

        For example, the Reply Brief states: "Metro does not deny that there were

periods of time during construction when some or all of the entrances to Kosoco's

business were cut off during periods of construction."17 To the contrary, METRO

has denied and does deny that there was ever an occasion when all of the entrances

to Kosoco's business were inaccessible.18 In fact, Mr. Namgoong admitted that

Kosoco was never denied vehicular access to the Property,19 and it never closed its

business during construction.20 Mr. Namgoong also testified that he could not

remember one of the driveways ever being obstructed and that the reports Kosoco




        17
             Reply Brief of Appellant 4 (with no citation to the record for this bald assertion).
        18
             See CR 18.
        19
             CR 40-42 (depo 49-53, 55-56).
        20
             CR 39-40 (depo 45-46).


HOU:3513185.3                                       8
received regarding inconvenient access were from customers who had made their

way to the property to purchase fuel and other items.21

        The Reply Brief also repeatedly asserts that Kosoco has lost half of its

business due to the North Line project.22 That assertion is based on a passage in

Mr. Namgoong's summary judgment affidavit.23 Contrary to the suggestion in the

Reply Brief, however, the affidavit did not include any information regarding the

gross income, net income, or profits of the business.24

        Even if there were competent evidence of a loss of revenues during

construction, the Texas Supreme Court has recognized that a decrease in the

profitability of a business is not relevant to the determination of whether access has

been materially and substantially impaired.

        If the public authorities could never change a street or highway
        without paying all persons along such thoroughfares for their loss of
        business, the cost would be prohibitive. The highways primarily are
        for the benefit of the traveling public, and are only incidentally for the
        benefit of those who are engaged in business along its way.



        21
             CR 41-42 (depo 53-55).
        22
             Reply Brief of Appellant 2-4, 7.
        23
       Id. 2 n.6. As noted above, that affidavit was not made a part of the record on
METRO's Motion. See supra 4-5.
        24
          Although the affidavit did assert that there was a decrease in the gallons of fuel sold
between 2009 and "2011 to the present," when Mr. Namgoong was questioned about this
passage, he admitted that he did not know how much fuel Kosoco sold in 2012 and 2013. See
CR 43 (depo 58-59). This testimony negated any evidentiary foundation for the suggestion that
Kosoco has experienced a post-construction decrease in fuel sales.


HOU:3513185.3                                   9
Schmidt, 867 S.W.2d at 773 (quoting State Highway Comm'n v. Humphreys, 58

S.W.2d 144, 145 (Tex. Civ. App.–San Antonio 1933, writ ref'd)); see also

Pennysavers Oil Co. v. State, 334 S.W.2d 546, 547, 548-49 (Tex. Civ. App.–San

Antonio 1960, writ ref'd).

        In his deposition, Mr. Namgoong acknowledged that the activities that

impacted access to the Kosoco property during the construction of the North Line

amounted to "the normal construction process of a project like this."25           Such

activities may have made access to the Kosoco property more difficult and less

convenient, and may even have contributed to a decrease in business during the

construction period.        However, such impacts do not constitute a material and

substantial impairment of access. As Mr. Namgoong acknowledged, there were

always routes by which it was possible for customers to travel to the property.

                                      CONCLUSION
        Kosoco has waived any argument based on an alleged impairment of access

to its property during the construction of the North Line by failing to raise the issue

in its initial brief and by failing to provide adequate legal or evidentiary support for

the argument. Accordingly, the Court should disregard the portions of the Reply

Brief relating to alleged impacts arising from construction activities.




        25
             CR 37 (depo 35).


HOU:3513185.3                              10
        Even if the Court does consider the construction impairment argument, the

relevant evidence and applicable authorities establish that access to Kosoco's

property was not materially and substantially impaired.

        The trial court's Order dismissing Kosoco's takings claim should be

affirmed.

                                   Respectfully submitted,

                                   By: /s/ Frederick D. Junkin
                                      Frederick D. Junkin
                                      State Bar No. 11058030
                                      fredjunkin@andrewskurth.com
                                      Kathryn K. Ahlrich
                                      State Bar No. 24063686
                                      katieahlrich@andrewskurth.com
                                      Andrews Kurth LLP
                                      600 Travis, Suite 4200
                                      Houston, Texas 77002
                                      (713) 220-4200
                                      (713) 238-7387 (fax)
                                   ATTORNEYS FOR APPELLEE
                                   METROPOLITAN TRANSIT AUTHORITY
                                   OF HARRIS COUNTY, TEXAS




HOU:3513185.3                           11
                           CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of the foregoing METRO's
Supplemental Brief in Response to the Reply Brief of Appellant was forwarded to
all counsel of record by electronic service on this 14th day of January, 2015.
                                          /s/ Frederick D. Junkin
                                          Frederick D. Junkin

                                  SERVICE LIST
Michael D. Sydow
The Sydow Firm, LLP
5020 Montrose Boulevard, Suite 450
Houston, Texas 77006
michael.sydow@thesydowfirm.com

Counsel for Appellant Kosoco, Inc.

                        CERTIFICATE OF COMPLIANCE
       Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the
undersigned certifies that this brief complies with the word limits of Rule
9.4(i)(2)(B) because, exclusive the parts of the brief exempted by Rule 9.4(i)(1), it
contains 2,316 words (and this brief and the Brief of Appellee combined contain a
total of 9,452 words).
                                        /s/ Frederick D. Junkin
                                       Frederick D. Junkin
                                       Attorney for Appellee
                                       Metropolitan Transit Authority of
                                       Harris County, Texas

                                       Dated: January 14, 2015




HOU:3513185.3                            12
