                                                                                                               ACCEPTED
                                                                                                          13-15-00175-CV
                                                                                          THIRTEENTH COURT OF APPEALS
                                                                                                 CORPUS CHRISTI, TEXAS
        FILED                                                                                       9/18/2015 10:53:39 AM
                                                                                                         Dorian E. Ramirez
IN THE 13TH COURT OF APPEALS                                                                                        CLERK
        CORPUS CHRISTI
                                           Cause No. 13-15-00175-CV
         9/18/15
                                     IN THE COURT OF APPEALS       RECEIVED IN
                               FOR THE THIRTEENTH DISTRICT OF13thTEXAS
                                                                  COURT OF APPEALS
                                                          CORPUS CHRISTI/EDINBURG, TEXAS
          CLERK                     CORPUS CHRISTI - EDINBURGH
                                                                         9/18/2015 10:53:39 AM
                                                                           DORIAN E. RAMIREZ
                                                                                  Clerk
                    DOYLE WELLS, SEA OATS INVESTMENTS I, L.P. f/k/a LAMKIN
                  PROPERTIES LIMITED PARTNERSHIP, and QUIXOTE DUNES, INC.,
                                                Appellants,
                                            vs.

                                    TOWN OF SOUTH PADRE ISLAND,
                                                   Appellee.

                                 On appeal from the 138th Judicial District Court,
                                             Cameron County, Texas
                                        In Cause No. 2015-DCL-2139-B

                   ====================================================

                                 FIRST AMENDED BRIEF OF APPELLANT

                   ===================================================



                                                             Counsel of Record:

                                                             PRATT, AYCOCK & ASSOCIATES, PLLC
                                                             Michael B. Halla
                                                             State Bar No. 24010082
                                                             18383 Preston Rd.
                                                             Suite 110
                                                             Dallas, Texas 75252
                                                             (214) 473.5551
                                                             (972) 805.0929 Fax


                                                             ATTORNEYS FOR APPELLANTS

                   Oral Argument Requested
                                                         i
                       IDENTITY OF PARTIES AND COUNSEL


Appellants: Doyle Wells, Sea Oats Investments I, L.P., f/k/a Lamkin Properties
Partnership, and Quixote Dunes, Inc. v. Texas Department of Transportation and
Town of South Padre Island, Texas

            Wells’ trial and
            appellate counsel:                  PRATT, AYCOCK & ASSOCIATES, PLLC
                                                Michael B. Halla
                                                State Bar No. 24010082
                                                18383 Preston Rd.
                                                Suite 110
                                                Dallas, Texas 75252
                                                (214) 473.5551
                                                (972) 805.0929 Fax


Appellee: Town of South Padre Island, Texas

            Town of South Padre Island’s
            trial and appellate counsel:        LAW OFFICES OF PAUL Y. CUNNINGHAM,
                                                JR, PC
                                                P.O. BOX 2729
                                                South Padre Island, Texas 75206
                                                (214) 550-0264
                                                214.550.0283 (Fax)




                                           ii
                                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..................................................................... ii

INDEX OF AUTHORITIES.............................................................................................. iv

STATEMENT OF THE CASE............................................................................................2

ISSUES PRESENTED.........................................................................................................2

STATEMENT OF THE FACTS .........................................................................................2

SUMMARY OF THE ARGUMENT ..................................................................................3

ARGUMENT .......................................................................................................................5

           Issue No. 1 ................................................................................................................6

           WHETHER THE TRIAL COURT ERRED IN GRANTING THE TOWN OF SOUTH
           PADRE ISLAND’S MOTION FOR SUMMARY JUDGMENT ON THE BASIS THE
           TOWN SHOWED IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW
           BECAUSE IT ACTED AS A PRIVATE CONTRACTOR OF THE TEXAS
           DEPARTMENT OF TRANSPORTATION.

           Issue No. 2 ..............................................................................................................11

           WHETHER THE TRIAL COURT ERRED IN GRANTING THE TOWN OF SOUTH
           PADRE ISLAND’S MOTION FOR SUMMARY JUDGMENT ON THE BASIS THE
           TOWN SHOWED IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW
           ON THE ISSUE OF WHETHER IT HAD PERFORMED AN INTENTIONAL ACT
           TAKEN PROPERTY IN VIOLATION OF ARTICLE I, SECTION 17 OF THE TEXAS
           CONSTITUTION.


PRAYER ............................................................................................................................15

CERTIFICATE OF SERVICE ..........................................................................................16

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)............................................20

APPENDICES ...................................................................................................................21




                                                                        iii
                                       INDEX OF AUTHORITIES


Cases

Allen Keller Co. v. Foreman,
       343 S.W.3d 420 (Tex. 2011) ..................................................................... 7, 8

City of Dallas v. Jennings,
      142 S.W.3d 310 (Tex.2004) ........................................................................ 13

City of Houston v. Boyle,
       148 S.W.3d 171 (Tex. App. – Houston [14th Dist.] 2004, no pet.) ............... 7

City of Houston v. Clear Creek Basin Auth.,
       589 S.W.2d 671 (Tex. 1979) ......................................................................... 6

City of Keller v. Wilson,
      168 S.W.3d 802 (Tex. 2005) ............................................................. 5, 13, 15

City of San Antonio v. Pollock,
       284 S.W.3d 809, 812 (Tex. 2009) ......................................................... 13, 15

Futerfas v. Park Towers,
       707 S.W.2d 149 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) ............................ 6

Glade v. Dietert,
      156 Tex. 382 (Tex. 1956) .......................................................................... 7, 8

Grace v. Titanium Electrode Prods., Inc.,
      227 S.W.3d 293 (Tex.App.-Houston [1st Dist.] 2007, no pet.) .................... 6

McConnell v. Southside Indep. Sch. Dist.,
     858 S.W.2d 337 (Tex.1993) .......................................................................... 6

M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
      28 S.W.3d 22 (Tex.2000) .............................................................................. 6

Provident Life Accid. & Ins. Co. v. Knott,
      128 S.W.3d 211 (Tex. 2003) ......................................................................... 5
                                                          iv
Rizkallah v. Conner,
       952 S.W.2d 580 (Tex.App.-Houston [1st Dist.] 1997, no pet.) ......................... 6
Sci. Spectrum, Inc. v. Martinez,
       941 S.W.2d 910 (Tex. 1997) ......................................................................... 5

Steele v. City of Houston,
       603 S.W.2d 786 (Tex. 1980) ....................................................... 7, 13, 14, 15

Tarrant Regional Water District v. Gragg,
      151 S.W.3d 546 (Tex. 2004) ....................................................................... 13

Texas Highway Dep’t v. Weber,
      219 S.W.2d 70 (1949) ................................................................................. 13

Valence Operating, Co. v. Dorsett,
      164 S.W.3d 656 (Tex. 2005) ......................................................................... 5




                                                           v
Statutes


TEX. LOC. GOV’T CODE §251.001 ............................................................................ 7

TEX. LOC. GOV’T CODE §251.002 ...................................................................... 7, 10

TEX. PROP. CODE §21………………………………………………………….7, 10

Constitutions

Texas Constitution, Article 3, §52(a)…………………………………………10, 11

Rules

TEX. R. CIV. P. §166a(c)………………………………………………………… .5




                                                         vi
TO THE HONORABLE COURT OF APPEALS:

       Doyle Wells, Sea Oats Investments I, L.P., f/k/a Lamkin Properties

Partnership, and Quixote Dunes, Inc. respectfully submit this brief in support of

their claims.

                        STATEMENT OF THE CASE

       This appeal stems from an original action brought by Doyle Wells, Sea

Oats Investments I, L.P., f/k/a Lamkin Properties Partnership, and Quixote Dunes,

Inc. (collectively “Wells”), seeking damages for inverse condemnation against the

Town of South Padre Island (“SPI”) and the Texas Department of Transportation

(“TXDOT”). (1 CR 5).

       On September 25, 2013, SPI filed a Motion for Summary Judgment. (2 CR

205). A hearing was held on SPI’s Motion for Summary Judgment on November

19, 2013. (2 RR 4). On June 30, 2014, the Honorable Arturo Nelson of the 138th

Judicial District Court signed an order granting SPI’s Motion for Summary

Judgment. (4 CR 34).

       On July 19, 2014, SPI filed a Motion for Severance. (4 CR 58). On

September 30, 2014, a hearing was held on SPI’s Motion for Severance which was

granted orally. (3 RR 19:9-10). On March 24, 2015, Judge Nelson signed an

order granting SPI’s Motion for Severance. (5 CR 256).

       Subsequently, Wells filed a Motion for New Trial on December 22, 2014.

(5 CR 124). At a hearing on the Motion for New Trial on March 26, 2015, this



                                        1
motion was denied. (5 RR 4). The Reporter’s Record was filed with this Court on

July 28, 2015.

                 STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1 and 39.2,

Appellant respectfully requests oral argument before this Thirteenth Court of

Appeals.   This is a meritorious appeal of the erroneous grant of a summary

judgment, and although Appellant represents the facts and legal arguments are

thoroughly presented in this brief and in the record, Appellant also believes that

the decisional process of the Thirteenth Court of Appeals will be significantly

aided by oral argument.

       This appeal includes the complex issue of whether the trial court erred in

holding that Appellee met its burden of proof showing itself entitled to a judgment

on a matter of law as to whether a governmental entity who takes private property

can shield itself from constitutional mandates of providing adequate compensation

by claiming to be a “private contractor” of another governmental entity. This

principle has far-reaching effects across the State and, as such, Appellant believes

oral argument will better help this Court understand the legal arguments Appellant

makes. Appellant, therefore, respectfully requests oral argument.

                            ISSUES PRESENTED

       WHETHER THE TRIAL COURT ERRED IN GRANTING THE TOWN OF
       SOUTH PADRE ISLAND’S MOTION FOR SUMMARY JUDGMENT ON
       THE BASIS THE TOWN SHOWED IT WAS ENTITLED TO JUDGMENT AS
       A MATTER OF LAW IT ACTED AS A PRIVATE CONTRACTOR OF THE
       TEXAS DEPARTMENT OF TRANSPORTATION.

                                         2
       WHETHER THE TRIAL COURT ERRED IN GRANTING THE TOWN OF
       SOUTH PADRE ISLAND’S MOTION FOR SUMMARY JUDGMENT ON
       THE BASIS THE TOWN HAD NOT PERFORMED AN INTENTIONAL ACT
       SHOWING IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW
       ON THE ISSUE OF WHETHER IT HAD TAKEN PROPERTY IN VIOLATION
       OF ARTICLE I, SECTION 17 OF THE TEXAS CONSTITUTION.

                               STATEMENT OF FACTS

       Plaintiffs filed suit against the State and SPI for their compensable taking of

Plaintiffs’ property, namely, the valuable sand that exists on the property owned

by Plaintiffs, specifically, the two hundred (200) foot wide easement known as

“Park Road 100.” (1 CR 5). This easement crosses seven (7) tracts of property,

all of which are owned by the Plaintiffs. (1 CR 5). The easement is for the benefit

of the State to use solely for purposes of repair and roadway maintenance while

the legal ownership of the land remains with Plaintiffs.          (1 CR 42).     The

compensable removal of the sand by the State and SPI resulted in the loss of large

amounts of the Plaintiffs’ property, and also caused the dunes to collapse. Further,

this compensable taking by SPI and the State was for the benefit of the public,

namely, the beaches of the Town of South Padre island where it was used to

prevent erosion. (2 RR 10:5-6).

                          SUMMARY OF THE ARGUMENT

       The trial court erred in holding that SPI showed itself entitled to judgment

as a matter of law that there was no fact that SPI performed an intentional act so as

to be liable for a taking of Wells’ property as the evidence, in fact, showed, as a




                                          3
matter of law, SPI acted intentionally with knowledge the damage that did occur

was substantially certain to occur at the time SPI acted.

       Texas law holds that an intentional act which the government would have

to perform to be held liable for a taking in Texas has been determined to be

affirmative conduct which causes damage, destruction or a taking of property and

covers situations where the government knows that a specific act is causing

identifiable harm or that specific property damage is substantially certain to result

from authorized government action.

       In this instance, SPI was on notice the sand on Park Road 100 was owned

by Wells. They proceeded anyway. The evidence showed, and SPI’s attorney

provided statements helpful to Wells, SPI performed the intentional taking. They

provided the trucks for their own beach renovation project which (literally) took

the sand off Park Road 100 to their own beach to be used to prevent erosion.

       SPI is a home rule municipality in the State of Texas. It is imbued with

eminent domain authority by statute. It may not take property without due process

being satisfied. The trial court erred in granting SPI’s summary judgment as an

entity imbued with eminent domain authority may not take property without due

process being satisfied and adequate compensation, as a matter of law. The fact

SPI argues it was a private contractor would allow the conclusion that any

municipality working with TXDOT may just claim “private contractor” and take

property without due process and the Texas constitution being satisfied.



                                          4
       In the alternative, and only in the alternative, that an entity vested with

eminent domain authority may still be a private contractor, the trial court erred in

granting SPI judgment as a matter of law as SPI failed to meet its burden and

show, as a matter of law, that it was, in fact, a private contractor in this instance.

                       ARGUMENT AND AUTHORITIES

                                           I.

                                 Standard of Review

       A trial court’s grant of summary judgment is reviewed de novo. Valence

Operating, Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life

Accid. & Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).                 Under the

traditional standard for summary judgment, the movant has the burden to show

that no genuine issue of material fact exists and that the trial court should grant a

judgment as a matter of law. TEX. R. CIV. P. 166a(c).

       When reviewing a summary judgment, the reviewing court should take as

true all evidence favorable to the nonmovant and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Dorsett, 164 S.W.3d

at 661; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). A

defendant must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an affirmative

defense. Sci. Spectrum, Inc., 941 S.W.2d at 911. Evidence is conclusive only if

reasonable people could not differ in their conclusions. City of Keller v. Wilson,

168 S.W.3d 802, 816 (Tex. 2005). Once the defendant establishes its right to

                                           5
summary judgment as a matter of law, the burden shifts to the plaintiff to present

evidence raising a genuine issue of material fact. City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

       A summary judgment motion also must stand or fall on its own merits; the

movant is not entitled to judgment by default. See McConnell v. Southside Indep.

Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993); see also Futerfas v. Park Towers,

707 S.W.2d 149, 155 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) (non-movant's lack

of response cannot supply by default summary-judgment proof necessary to

establish movant's right). Further, because a summary judgment motion must

stand on its own merits, the nonmovant may argue on appeal that the movant's

summary judgment proof is insufficient as a matter of law. Grace v. Titanium

Electrode Prods., Inc., 227 S.W.3d 293 (Tex.App.-Houston [1st Dist.] 2007, no

pet.) (citing M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22

(Tex.2000) and Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex.App.-Houston [1st

Dist.] 1997, no pet.).

           A. WHETHER THE TRIAL COURT ERRED IN GRANTING THE TOWN
              OF SOUTH PADRE ISLAND’S MOTION FOR SUMMARY
              JUDGMENT ON THE BASIS THE TOWN SHOWED IT WAS
              ENTITLED TO JUDGMENT AS A MATTER OF LAW IT ACTED AS
              A PRIVATE CONTRACTOR OF THE TEXAS DEPARTMENT OF
              TRANSPORTATION.

                                 Applicable Law

       The governing bodies of municipalities in Texas have been specifically

imbued with the right of eminent domain to acquire public or private property for



                                        6
a public purpose. TEX. LOC. GOV’T CODE §251.001. Further, any municipality

exercising the power of eminent domain under said section must do so in

accordance with Chapter 21 of the Texas Property Code. TEX. LOC. GOV’T CODE

§251.002. A landowner whose property had been taken, damaged, destroyed for,

or applied to public use without adequate compensation may bring an inverse

condemnation claim pursuant to article I, section 17 of the Texas Constitution.

City of Houston v. Boyle, 148 S.W.3d 171, 177 (Tex. App. – Houston [14th Dist.]

2004, no pet.). The Texas Constitution therefore waives governmental immunity

from suit and liability “for the taking, damaging or destruction of property for

public use.”   Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980).

Consequently, the Texas Supreme Court has recognized “taking,” “damaging,”

and “destruction” of property as three distinct claims arising under Article I,

Section 17 of the Texas Constitution. Id.

                                   Application to Facts

       In its Motion for Summary Judgment (2 CR 210) and in arguing against

Wells’ Motion for New Trial on the granting of the summary judgment (5 RR 13),

SPI relies on Glade v. Dietert, 295 S.W.2d 642 (Tex. 1956) for the proposition

that their “position in this case is analogous to that of the contractor in Glade.” (2

CR 210).

       This reliance is grievously misplaced and their rationale inapposite. The

Supreme Court stated the holding of Glade is to be interpreted very narrowly. In

Allen Keller Co. v. Foreman, 343 S.W.3d 420, 424 (Tex. 2011), the Court stated:

                                          7
“Our holding in Glade stands for the limited proposition that to the extent it

operates with the parameters of the governing contract, a contractor is justified in

assuming that the governmental entity has procured the necessary right-of-way.”

(Emphasis added). On two different occasions, the Glade Court pointed out the

basis of Glade’s relief, and the deciding factor for them to grant his requested

relief, was his contractual relationship with the City of Fort Worth. Glade 295

S.W.2d at 643, 644.

       In analyzing the Court’s statement in Allen Keller, two factors immediately

become apparent which distinguish Glade from the position of SPI. Initially, SPI

never offered into evidence a copy, or even referenced the existence of, a written

contract with TXDOT. As noted, the entire basis of the relief granted to Glade,

was the contract he had with Fort Worth. Without a contract, there would be no

basis for relief. As also noted above, this was reiterated by the Allen Keller court.

       Not only did SPI fail to allege or argue the existence any kind of oral

contract or claim for quantum meruit, it failed to argue the existence of any

contractual relationship with TXDOT. By failing to establish it had a contract with

TXDOT, or that any contractual relationship of any kind existed, SPI failed to

meet its burden and show itself entitled to judgment as a matter of law on this

issue. Consequently, there was no basis to conclude as a matter of law that SPI

was a private contractor of TXDOT and the trial court’s grant of summary

judgment should be reversed.



                                          8
      Further, the evidence existing on record raises a fact issue for whether a

contractual relationship existed. In a discourse with TXDOT initiated by SPI, it’s

Public Works Director, Scott Fry, states: “This letter is to request your agency’s

help with our beach re-nourishment efforts….I am hereby requesting that your

agency allow the Town to utilize the sand that is removed, by TXDOT from the

PR 100 right-of-way, for beach re-nourishment purposes” (1 CR 244).

      Next, the record further reflects there was no business arrangement between

TXDOT and SPI. In a March 5, 2008 letter to Cameron County Judge Carlos H.

Cascos, Mario Jorge, SPI’s Engineer at the time, stated “…the Town of South

Padre Island has requested our assistance in the beach re-nourishment process…”

(1 CR 211). (Emphasis added). There was no mention of a contract. There was

no mention, in fact, of any contractual obligation owed by either side. The words

“assistance” means to “help”, “aid”, or “support”. (Dictionary.com). It is not a

term generally, typically or normally used by a party who is owed a contractual

duty. Further, Scott Fry, SPI’s Public Works Director was “cc’d” on this letter. He

did not attempt to clarify, disagree or in any other manner dispute the mutual

cooperation described by Mr. Jorge.

      These letters alone are sufficient to reasonably raise a fact issue as to

whether a contractual relationship existed between SPI and TXDOT. The fact is

SPI initiated contact with TXDOT. The fact SPI requested TXDOT’s help to

“allow” it (SPI) to “utilize the sand that is removed” smacks it’s own “private

contractor” argument in the face.

                                        9
       As a governmental entity, SPI is specifically mandated that the only way in

which it can condemn property is after it has followed the procedures as detailed

in Texas Property Code section 21. TEX. LOC. GOV’T CODE §251.002. Among

other things, the condemnor must make both a preliminary and final offer to

purchase the property, file a petition for condemnation, have a special

commissioners appointed and a hearing set, conduct the hearing, and then take

possession of the property. TEX. PROP. CODE §21, et. seq. What SPI attempts to

do is evade liability by hiding behind its argument of being a “private contractor”.

The trial court erroneously agreed with this reasoning. What this rationale does, in

effect, is cause the Texas Constitution to be impotent. Taking this rationale to its

logical conclusion would have the legal effect of allowing any governmental entity

to use TXDOT for their public use projects and claim “private contractor” status,

thereby escaping its duties and responsibilities under the law. As Texas law

unequivocally demands adequate compensation and compliance with the Texas

Property Code when a governmental entity effects a taking, the trial court erred in

concluding SPI showed itself to be entitled to judgment as a matter of law that it

should not be held liable because it was a private contractor.

       Additionally, SPI’s line of reasoning, taken to its logical conclusion, would

cause potential conflicts with the Texas Constitution. Article 3, section 52 (a)

states: “(a) Except as otherwise provided by this section, the Legislature shall have

no power to authorize any county, city, town or other political corporation or

subdivision of the State to lend its credit or to grant public money or thing of value

                                         10
in aid of, or to any individual, association or corporation whatsoever, or to become

a stockholder in such corporation, association or company. However, this section

does not prohibit the use of public funds or credit for the payment of premiums on

nonassessable property and casualty, life, health, or accident insurance policies

and annuity contracts issued by a mutual insurance company authorized to do

business in this State.” If SPI was truly a private contractor of TXDOT, it is

axiomatic to conclude they would have immediately offered a contract showing

same. The rationale is simple: if they did this work as a private contractor for

TXDOT, then such action would violate Article 3, section 52(a). Further, if it is

permissible under law for SPI to be a private contractor of TXDOT, the logical

conclusion is a municipal corporation which engages in business just like a private

sector corporation with one shining exception: taxpayer money is being spent. If

SPI can be a private contractor of TXDOT, nothing would stop SPI from

contracting out its engineer, its attorney, its police, etc., to the private sector. At

no point in the record does SPI limit its being a private contractor to another

governmental entity. Even then, such would be in violation of the Texas

Constitution as taxpayer resources are being used while getting nothing in return.

       Based upon the evidence contained in the record, the trial court erred in

granting judgment for SPI as a matter of law because a fact issue existed as to

whether SPI was a private contractor of TXDOT and this Court of Appeals should

reverse that decision.



                                          11
       Finally, it is undisputed this is SPI’s project alone, a fact which was also

acknowledged by the trial court. (1 RR 10:22-11:6; 5 RR 14:8-10; 1 CR 26-27; 1

CR 206). In fact, in a Project Cooperation Agreement SPI signed with the Texas

General Land Office (“GLO”), SPI, solely, is listed as their “Qualified Project

Partner”. (2 CR 80). SPI argues it was a private contractor of TXDOT on SPI’s

own project. It defies logic to argue that one can be a private contractor of one’s

own project. Regardless, it was SPI’s burden to prove, as a matter of law, SPI

could be a private contractor of its own beach re-nourishment project, and offered

no evidence of same. Despite the opportunity to respond, SPI suggested there “is

an appellate court that they can listen to all those arguments…” (5 RR 14:24-25).

Consequently, the trial court erred in granting summary judgment on the issue that

SPI showed itself to be a private contractor of TXDOT on its own project.

          B. WHETHER THE TRIAL COURT ERRED IN GRANTING THE TOWN
             OF SOUTH PADRE ISLAND’S MOTION FOR SUMMARY
             JUDGMENT ON THE BASIS THE TOWN HAD NOT PERFORMED
             AN INTENTIONAL ACT SHOWING IT WAS ENTITLED TO
             JUDGMENT AS A MATTER OF LAW ON THE ISSUE OF WHETHER
             IT HAD TAKEN PROPERTY IN VIOLATION OF ARTICLE I,
             SECTION 17 OF THE TEXAS CONSTITUTION.

                                  Applicable Law

       To properly assert an inverse-condemnation claim against a governmental

entity, a party must plead that the governmental entity (1) engaged in a specific act

that resulted in the taking or damaging, or destroying of private property; (2)

engaged in the act intentionally, i.e., either knowing that the specific act was

causing identifiable harm or knowing that specific property damage was

                                         12
substantially certain to result; and (3) took the property for a public use. City of

Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005); Tarrant Regional Water

District v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004); see also City of San Antonio

v. Pollock, 284 S.W.3d 809, 812 (Tex. 2009) (Holding the government must know

that “a specific act is causing identifiable harm” or know that “specific property

damage is substantially certain to result from an authorized government action”).

       In evaluating the objective indicia of a city’s intent, a court must evaluate

any evidence regarding what the city was told about the consequences of the

action before the city took the complained-of action. Wilson, 168 S.W.3d at 829.

A city’s intent is determined at the time it acted and is not looked at through the

distorting effect of later-acquired knowledge. City of San Antonio v. Pollock, 284

S.W.3d 809, 821 (Tex.2009). See also City of Dallas v. Jennings, 142 S.W.3d

310, 314 (Tex.2004) (“We therefore hold that when a governmental entity may be

liable under Article I, Section 17 if it (1) knows that a specific act is causing

identifiable harm; or (2) knows that the specific property damage is substantially

certain to result from an authorized government action – that is, that the damage is

‘necessarily an incident to, or necessarily a consequential result of’ the

government’s action.”) (citing Texas Highway Dep’t v. Weber, 219 S.W.2d 70, 71

(1949)).

       “Taking,” “damaging,” and “destruction of one’s property are three distinct

claims arising under Article I, Section 17 of the Texas Constitution. Steele v. City

of Houston, 603 S.W.2d 786, 789-791 (Tex.1980).

                                        13
                                Application to Facts

       The record before this Court of Appeals for the Thirteenth District

establishes that not only did SPI fail to meet its burden of showing itself entitled to

judgment as a matter of law, but proved the reciprocal was true. The record shows

that SPI and TXDOT, as a matter of law, performed specific and intentional acts

which resulted in a taking of Wells’ property.

       Specifically, the issue of intent (i.e., knowing that specific property damage

was substantially certain to result from SPI’s actions) was at the heart of the

argument during this hearing.       SPI freely and eagerly admitted to operating

vehicles which took the sand belonging to Wells to their beach. SPI’s attorney

eloquently states: “All we did was haul the sand away.” (2 RR 4:17-18). At no

point does SPI argue driving a vehicle is not an intentional act (nor is it suggested

it should so argue). Wells’ property suffered damage on two fronts: 1) the removal

of the sand off the property; and 2) the taking of the sand to the beaches. As

noted, “taking,” “damaging,” and “destruction of one’s property are three distinct

claims arising under Article I, Section 17 of the Texas Constitution. Steele v. City

of Houston, 603 S.W.2d 786, 789-791 (Tex.1980). Taking is defined as “carrying

off without permission”. (Dictionary.com) (5 RR 14:19-20). The damage to

Wells’ property was the actual taking of the sand by SPI. SPI was the actor who

intentionally took the sand from Wells’ property to the beach. This taking by SPI

was one of the causal connections Wells’ damage. When one takes property from

                                          14
another and deprives them of a thing of value, it is a fact that loss of a thing of

value is a substantial certain result.

       Consequently, when a governmental entity acts intentionally, here by

operating a vehicle which carries away property (i.e., sand) which that

governmental entity has been put on notice belongs to a private person or persons

for the sole purpose of renovating its beaches, that entity has effected a taking in

violation of the Texas Constitution. Operating the vehicle is an intentional act,

and driving off with the sand owned by Wells is a “taking” which is a separate

and distinct claim under Article I, Section 17 of the Texas Constitution, which

caused the damage to Wells, and which was substantially certain to result from

SPI’s action. Steele, 603 S.W.2d at 789-791.

       As noted, when evaluating the objective indicia of a city’s intent, a court

must evaluate any evidence regarding what the city was told about the

consequences of the action before the city took the complained-of action. Wilson,

168 S.W.3d at 829. A city’s intent is determined at the time it acted and is not

looked at through the distorting effect of later-acquired knowledge. Pollock, 284

S.W.3d at 821. It was SPI’s burden to establish as a matter of law that it did not

perform an intentional act which resulted in a taking of Wells’ property. SPI

attempts to obfuscate this matter and putting the burden on Wells by claiming SPI

must, in effect, “intentionally know” the sand belonged to Wells. (2 RR 6). In

addition to attempting to improperly shift the burden to Wells, the error in this

argument is that SPI is unable to claim it “did not know” and only “relied upon

                                         15
that [TXDOT’s] authority.” 2 RR 5:17-18. SPI was put on notice by two items

which are part of the Clerk’s Record. The continued action of SPI to drive away

with sand belonging to Wells, after being put on notice that Wells was the owner

of the sand, was a cause-in-fact and a proximate cause of Wells’ damage, namely,

the loss of his valuable property.

       Initially, as noted in an uncontroverted affidavit from Doyle Wells, which

was part of Wells’ Interlocutory Motion for Summary Judgment filed on or about

July 29, 2009, Wells’ informed SPI and TXDOT both verbally and in writing that

they were removing sand that belonged to him. (1 CR 62-63).

       Next, the attorney for Wells sent a letter to both SPI and TXDOT on or

about February 28, 2008, while the takings were occurring, advising them to cease

and desist taking the sand as it belonged to Wells and the other Plaintiffs. (1 CR

11-12 and 1 CR 215-216). It is simply the height of mendaciousness for SPI to

argue it merely “relied on” the authority of TXDOT when it was put on notice

repeatedly that such actions by it were in violation of the rights of Wells.

       This letter was also part of Plaintiff’s Original Petition. (1 CR 11-12).

Perhaps most interestingly, this letter which SPI fought so hard to exclude was

actually part of their own evidence, as it was included as an exhibit to the Affidavit

of SPI’s Public Works Director, which SPI filed in its Response to Plaintiffs’

Motion for Interlocutory Summary Judgment. (1 CR 215-217).

       Additionally, this letter was brought to the attention of the trial court, who

stated: “I actually remember reading the letter before in previous hearings. The

                                          16
issue is whether it is part of the file.” (1 RR 16:12-14). As cited above, the letter

is part of the Court’s file. However, inexplicably, the trial court concluded SPI

met its burden of proof and was entitled to judgment as a matter of law on the

issue of whether SPI performed an intentional act that effectuated a taking.

         Therefore, the trial court erred in granting judgment for SPI as a matter of

law. The record establishes as a matter of law that SPI performed an intentional

act by “driving off” with property owned by Wells and knowing with substantial

certainty that such a taking would deprive Wells of his property and this Court of

Appeals should reverse that decision, and render judgment for Wells regarding this

issue.

         Lastly, SPI by virtue of its arguments before the trial court on two

occasions and by its own evidence created a fact issue which precluded summary

judgment, which was erroneously granted by the trial court.

         At both the summary judgment hearing in November of 2013 and the

Motion for New Trial, SPI maintained they merely relied on the authority TXDOT

had when arguing they did not commit any intentional act which caused damage.

However, on or about June 30, 2009, Reuben Trevino, the Coastal Resources

Manager, for SPI, completed the Project Goal Summary Application Form. (2 CR

43). On this application, Mr. Trevino completed the following section “2. Owner

of sand source: TX DOT(?)” (2 CR 43). From its own employee, SPI admits it

has no idea who owns the sand and so states. It seems incredulous the trial court

could conclude SPI met its burden of proving there was no issue of material fact

                                          17
when SPI, all on its own, creates a fact issue on the ownership of the property

which was taken.

       Consequently, the trial court erred in granting SPI’s summary judgment on

the basis that SPI met its burden of establishing, as a matter of law, it was entitled

to judgment on the issue of whether it had performed an intentional act, and Wells

respectfully requests this Court to reverse the decision of the trial court and render

judgment in favor of Wells that SPI performed an intentional act which was the

causal connection to Wells’ damages.

                                     PRAYER

       WHEREFORE, Wells respectfully prays that this Court reverse and vacate

the trial court’s Order granting a summary judgment for SPI, render judgment in

favor of Wells as a matter of law that SPI performed an intentional act which

resulted in a taking of and award Wells any and all costs and attorney’s fees.

                                           Respectfully submitted,

                                           PRATT, AYCOCK & ASSOCIATES, PLLC
                                                                     Digitally signed by Michael B. Halla

                                                  Michael B. Halla   DN: cn=Michael B. Halla, o, ou,
                                                                     email=mhalla@hallalawfirm.com, c=US

                                           By:____________________________
                                                                     Date: 2015.09.18 10:49:23 -05'00'



                                                  Michael B. Halla
                                                  Texas Bar No. 24010082
                                                  18383 Preston Rd., Suite 110
                                                  Dallas, Texas 75379
                                                  (972) 805.0919
                                                  (972) 805.0929 (Facsimile)
                                                  Mhalla@TxTnLaw.com

                                              ATTORNEYS FOR APPELLANTS



                                         18
                        CERTIFICATE OF SERVICE

      This is to certify that on the 18th day of September, 2015, a true and correct

copy of the foregoing document was served upon the following counsel in

compliance with Texas Rules of Appellate Procedure 25.1(e) via Facsimile and

Certified Mail and addressed as follows:

                                   Paul Cunningham
                                   Attorney for South Padre Island
                                   lawofficepyc@sbcglobal.net
                                                                   Digitally signed by Michael B. Halla

                                                Michael B. Halla   DN: cn=Michael B. Halla, o, ou,
                                                                   email=mhalla@hallalawfirm.com, c=US
                                            ________________________________
                                                                   Date: 2015.09.18 10:49:28 -05'00'


                                            Michael B. Halla




                                           19
    CERTIFICATE OF COMPLIANCE WITH RULE 9.4(I)(3) OF THE
           TEXAS RULES OF APPELLATE PROCEDURE

      I certify that this document brief was prepared with Microsoft Word 2010,

and that, according to that program’s word-count function, the sections covered by

TRAP 9.4(i)(1) contain 6,124 words.



                                                                           Digitally signed by Michael B. Halla

                                                        Michael B. Halla   DN: cn=Michael B. Halla, o, ou,


                                                      ______________________
                                                                           email=mhalla@hallalawfirm.com, c=US
                                                                           Date: 2015.09.18 10:49:34 -05'00'



                                                       Michael B. Halla
                                   APPENDIX A

                                    STATUTES

                       THE TEXAS CONSTITUTION
                  ARTICLE 3. LEGISLATIVE DEPARTMENT

         Sec. 52. COUNTIES, CITIES OR OTHER POLITICAL
CORPORATIONS OR SUBDIVISIONS; LENDING CREDIT; GRANTS;
BONDS. (a) Except as otherwise provided by this section, the Legislature shall
have no power to authorize any county, city, town or other political corporation or
subdivision of the State to lend its credit or to grant public money or thing of value
in aid of, or to any individual, association or corporation whatsoever, or to become
a stockholder in such corporation, association or company. However, this section
does not prohibit the use of public funds or credit for the payment of premiums on
nonassessable property and casualty, life, health, or accident insurance policies
and annuity contracts issued by a mutual insurance company authorized to do
business in this State.


                    LOCAL GOVERNMENT CODE
        TITLE 8. ACQUISITION, SALE, OR LEASE OF PROPERTY
      SUBTITLE A. MUNICIPAL ACQUISITION, SALE, OR LEASE OF
                            PROPERTY

         CHAPTER 251. MUNICIPAL RIGHT OF EMINENT DOMAIN

          § 251.001. RIGHT OF EMINENT DOMAIN. (a) When the
governing body of a municipality considers it necessary, the
municipality may exercise the right of eminent domain for a public
purpose to acquire public or private property, whether located
inside or outside the municipality, for any of the following
purposes:
                    (1) the providing, enlarging, or improving of a city
hall; police station; jail or other law enforcement detention
facility; fire station; library; school or other educational
facility; academy; auditorium; hospital; sanatorium; market
house; slaughterhouse; warehouse; elevator; railroad terminal;
airport; ferry; ferry landing; pier; wharf; dock or other
shipping facility; loading or unloading facility; alley, street,
or other roadway; park, playground, or other recreational
facility; square; water works system, including reservoirs, other
water supply sources, watersheds, and water storage, drainage,
treatment, distribution, transmission, and emptying facilities;
sewage system including sewage collection, drainage, treatment,
disposal, and emptying facilities; electric or gas power system;
cemetery; and crematory;
                    (2) the determining of riparian rights relative to the
municipal water works;
                    (3) the straightening or improving of the channel of
any stream, branch, or drain;
                    (4) the straightening, widening, or extending of any
alley, street, or other roadway; and
                    (5) for any other municipal purpose the governing body
considers advisable.




                    LOCAL GOVERNMENT CODE
        TITLE 8. ACQUISITION, SALE, OR LEASE OF PROPERTY
      SUBTITLE A. MUNICIPAL ACQUISITION, SALE, OR LEASE OF
                            PROPERTY

        CHAPTER 251. MUNICIPAL RIGHT OF EMINENT DOMAIN


§ 251.002. PROCEDURE. An exercise of the power of
eminent domain granted by this chapter is governed by Chapter 21 of
the Property Code.
                                  APPENDIX B

                                      RULES


Texas Rules of Civil Procedure, Rule 166a:

(c) Motion and Proceedings Thereon. The motion for summary judgment shall
state the specific grounds therefor. Except on leave of court, with notice to
opposing counsel, the motion and any supporting affidavits shall be Filed and
served at least twenty-one days before the time specified for hearing. Except on
leave of court, the adverse party, not later than seven days prior to the day of
hearing may File and serve opposing affidavits or other written response. No oral
testimony shall be received at the hearing. The judgment sought shall be rendered
forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the
pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on File at the time of the hearing, or Filed
thereafter and before judgment with permission of the court, show that, except as
to the amount of damages, there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion or in an answer or any other response. Issues not expressly
presented to the trial court by written motion, answer or other response shall not
be considered on appeal as grounds for reversal. A summary judgment may be
based on uncontroverted testimonial evidence of an interested witness, or of an
expert witness as to subject matter concerning which the trier of fact must be
guided solely by the opinion testimony of experts, if the evidence is clear, positive
and direct, otherwise credible and free from contradictions and inconsistencies,
and could have been readily controverted.
     APPENDIX C

ORDER OF TRIAL COURT
