                                                                           ACCEPTED
                                                                       06-17-00054-CV
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                     5/17/2018 6:48 PM
                                                                      DEBBIE AUTREY
                                                                                CLERK

                    IN THE COURT OF APPEALS
         FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
                                                      FILED IN
                                               6th COURT OF APPEALS
                                                 TEXARKANA, TEXAS
                     NO. 06-17-00054-CV        5/17/2018 6:48:47 PM
____________________________________________________________
                                                   DEBBIE AUTREY
                                                       Clerk
                       CITY OF JUSTIN,

                                         Appellant,

                              vs.

                   TOWN OF NORTHLAKE,

                                         Appellee.

           Appealed from the 367th Judicial District Court
                       Denton County, Texas
____________________________________________________________

        APPELLEE’S MOTION FOR REHEARING
____________________________________________________________

                            WM. ANDREW MESSER
                            State Bar No. 13472230
                            andy@txmunicipallaw.com
                            BRETT D. GARDNER
                            State Bar No. 24078539
                            brett@txmunicipallaw.com
                            MESSER, ROCKEFELLER & FORT, PLLC
                            6371 Preston Rd., Suite 200
                            Frisco, Texas 75034
                            972.668.6400 - Telephone
                            972.668.6414 - Telecopier

                            COUNSEL FOR APPELLEE
                                       TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iii

A.      The trial court granted summary judgmetn in favor of Northlake on
        multiple grounds ..............................................................................................2

B.      This Court must consider all grounds for summary judgment ........................ 4

C.      The Court should affirm the trial court’s summary judgment on
        equitable grounds .............................................................................................5

        1.       Laches Declaratory Judgment ............................................................... 5

        2.       Estoppel Declaratory Judgment ..........................................................11

        3.       Waiver Declaratory Judgment .............................................................13

D.      The Court should affirm the trial court’s summary judgment based on
        validation under Local Governemtn Code § 51.033 .....................................15

CONCLUSION & PRAYER ...................................................................................18

CERTIFICATE OF SERVICE ................................................................................19

CERTIFICATE OF COMPLIANCE .......................................................................19




                                                          ii
                                    TABLE OF AUTHORITIES
Cases
Baker Hughes, Inc. v. Keco R. & D., Inc.,
 12 S.W.3d 1 (Tex. 1999) ..........................................................................................4

Burch v. City of San Antonio,
 518 S.W.2d 540 (Tex. 1975)..................................................................................16

Cincinnati Life Ins. Co. v. Cates,
 927 S.W.2d 623 (Tex. 1996)....................................................................................4

City of Austin v. Garza,
 124 S.W.3d 867 (Tex. App.—Austin 2003, no pet.) .............................................12

City of Corpus Christi v. Nueces County Water Control and Improvement Dist. No.
  3,
 540 S.W.2d 357 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.) .............7

City of Dallas v. GTE Southwest, Inc.,
 980 S.W.2d 928 (Tex. App.—Fort Worth 1998, pet. denied) ...............................14

City of Dallas v. Rosenthal,
 239 S.W.2d 636 (Tex. Civ. App.—Dallas 1951, writ ref’d n.r.e.) ........................12

City of Fort Worth v. Johnson,
 388 S.W.2d 400 (Tex. 1964)....................................................................................6

City of Helotes v. Continental Homes of Tex., LP,
 2016 WL 3085924 (Tex. App.—San Antonio June 1, 2016, no pet.) ...................16

City of Hutchins v. Prasifka,
 450 S.W.2d 829 (Tex. 1970)..............................................................................7, 10

City of Mason v. West Texas Utilities Co.,
 150 Tex. 18, 237 S.W.2d 273 (1951).....................................................................16


                                                         iii
City of White Settlement v. Super Wash, Inc.,
 198 S.W.3d 770 (Tex. 2006)..................................................................................11

Condom Sense, Inc. v. Alshalabi,
 390 S.W.3d 734 (Tex. App.—Dallas 2012, no pet.) ...............................................6

Culver v. Pickens,
 176 S.W.2d 167 (Tex. 1943)....................................................................................7

Gray v. Town of Westlake,
 2-02-173-CV, 2003 WL 22351652 (Tex. App.-Fort Worth Oct. 16, 2003, pet.
  denied)...................................................................................................................16

Houston Lighting & Power Co. v. City of Wharton,
 101 S.W.3d 633 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ....................7

In re Episcopal Sch. of Dallas, Inc.,
 No. 5:17-CV, ---S.W.3d---, 2017 WL 4533800 (Tex. App.—Dallas Oct. 11, 2017,
  no pet. h.) ................................................................................................................6

In re Laibe Corp.,
 307 S.W.3d 314 (Tex. 2010)....................................................................................6

Inimitable Group, L.P. v. Westwood Group Dev. II, Ltd.,
 264 S.W.3d 892 (Tex. App.—Fort Worth 2008, no pet.) ......................................11

Jernigan v. Langley,
 111 S.W.3d 153 (Tex. 2003)..................................................................................13

Krause v. City of El Paso,
 106 S.W. 121 (Tex. 1907) ............................................................................... 12, 13

Lathan v. Castillo,
 972 S.W.2d 66 (Tex. 1998)......................................................................................5

Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass'n, Inc.,
 1 S.W.3d 108 (Tex. 1999) ......................................................................................14

                                                              iv
Roberts v. Clark,
 188 S.W.3d 204 (Tex. App.—Tyler 2002, pet. denied) ........................................11

Sun Exploration & Prod. Co. v. Benton,
 728 S.W.2d 35 (Tex. 1987)....................................................................................13

Sutor v. International & G.N.R. Co.,
 125 S.W. 943 (Tex. Civ. App.—Austin 1910, writ ref'd) .....................................12

TCI West End, Inc. v. City of Dallas,
 486 S.W.3d 692 (Tex. App.—Dallas 2016, pet. denied) .......................................16

Tenneco, Inc. v. Enter. Prod. Co.,
 925 S.W.2d 640 (Tex. 1996)..................................................................................14

Tex. Disposal Sys., Inc. v. Perez,
 80 S.W.3d 593 (Tex. 2002)......................................................................................5

Trelltex, Inc. v. Intecx, L.L.C.,
 494 S.W.3d 781 (Tex. App.—Houston [14th Dist.] 2016, no pet.).......................15

West v. Robinson,
 180 S.W.3d 575 (Tex. 2005)....................................................................................5

Williams v. Moores,
 5 S.W.3d 334 (Tex. App.—Texarkana 1999, pet. denied) ............................. 14, 15


Statutes
TEX. R. APP. P. 41.3 .................................................................................................14

TEX. R. APP. P. 47.1 ...................................................................................................5

TEX. LOC. GOV'T CODE § 42.022 ...............................................................................3

TEX. LOC. GOV'T CODE § 42.023................................................................................3


                                                            v
TEX. LOC. GOV'T CODE § 43.021..........................................................................3, 18

TEX. LOC. GOV'T CODE § 43.901................................................................................3

TEX. LOC. GOV'T CODE § 245...................................................................................10

TEX. LOC. GOV'T CODE § 51.003...................................................................... passim




                                                      vi
                        IN THE COURT OF APPEALS
             FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA
    ____________________________________________________________

                         NO. 06-17-00054-CV
    ____________________________________________________________

                                 CITY OF JUSTIN,

                                                     Appellant,

                                         vs.

                            TOWN OF NORTHLAKE,

                                                     Appellee.

               Appealed from the 367th Judicial District Court
                           Denton County, Texas
    ____________________________________________________________

               APPELLEE’S MOTION FOR REHEARING
    ____________________________________________________________


      TO THE HONORABLE COURT OF APPEALS:
      The Court’s opinion focused solely on the authority to exchange

extraterritorial jurisdiction (“ETJ”) under the Local Government Code. In so doing,

the Court ignored numerous other bases for the trial court’s judgment in favor of the

Town of Northlake that do not depend upon exchange of ETJ under the Local

Government Code, including the equitable declarations sought and received in the

trial court of laches, estoppel, and waiver as well as validation. The Court thus erred

because it failed to consider all grounds for summary judgment that the trial court


                                          1
ruled on. As a result, the Court should vacate the judgment, withdraw its opinion,

and issue a revised opinion affirming the summary judgment of the trial court in

favor of Northlake. Northlake files this motion for rehearing pursuant to Tex. R.

App. P. 49.

      A.        The trial court granted summary judgment in favor of Northlake
                on multiple grounds

      The trial court’s summary judgment granted, among other things, Northlake’s

traditional and no-evidence motion for summary judgment. [2 CR 2509]. As part

of the judgment, the trial court permanently enjoined the City of Justin from

enforcing, exercising, or applying any jurisdiction involving the property at dispute

in this case. [2 CR 2510]. In addition, the trial court entered the following

declarations:

           1. The 1997 City of Fort Worth/Town of Northlake resolution number
              2341, and 1997 ETJ boundaries are valid;

           2. The City of Justin Ordinance 592-15 adding the property at dispute in
              this litigation to Justin’s ETJ is void ab initio and invalid and that the
              Development Agreement and preliminary plat as to the property are
              void ab initio and invalid;

           3. The City of Justin is barred by limitations from contesting the Town of
              Northlake’s 1999 ordinances and boundaries;

           4. The Town of Northlake’s 1997 joint resolution ETJ area exchange and
              the 1997 ETJ boundary are validated;

           5. The City of Justin is estopped and barred by the doctrines of laches and
              waiver from denying the validity of the 1997 ETJ boundary between
              the Town of Northlake and the City of Justin.
                                           2
[2 CR 2510]. The latter two declarations involve validation and equitable principles

that do not implicate whether Northlake and Fort Worth could statutorily exchange

area under the Local Government Code.

      Northlake pled for the validation and equitable relief granted by the trial court.

In its second amended petition, Northlake requested injunctive relief and the

following declarations:

      1.     The 1997 Fort Worth/ Northlake resolution and 1997 ETJ boundary is
             valid pursuant to Section 43.021 of the Local Government Code;

      2.     the City of Justin Ordinance 592-15 adding the Property to its ETJ is
             void ab initio and invalid, and that the Development Agreement and
             preliminary plat are void ab initio and invalid pursuant to Sections
             42.022 and 42.023 of the Local Government Code;

      3.     Section 43.901 of the Local Government Code validates, and acts as a
             bar to Justin’s contest of, Northlake Ordinances and boundaries;

      4.     Section 51.003 of the Local Government Code validates Northlake's
             1997 joint resolution, ETJ area exchange, and 1997 ETJ boundary;

      5.     Justin is estopped and barred by laches from denying the validity of the
             1997 ETJ boundary between Northlake and Justin.

[2 CR 230-31]. Northlake briefed these equitable and validation issues in its

traditional and no-evidence summary judgment motion and prayed for summary

judgment on its declaratory judgment claims. [2 CR 921-925; 932]. In short, the

equitable and validation issues were pled, briefed, argued, and ruled upon by the trial




                                           3
court, based on uncontested evidence, and the equitable and validation bases do not

rely upon the application of former Local Government Code § 43.021.

      B.     This Court must consider all grounds for summary judgment

      The Texas Supreme Court has directed courts of appeals to consider all

summary judgment grounds that the trial court rules on and the movant preserves for

appellate review that are necessary for final disposition of the appeal when reviewing

a summary judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.

1996); Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex. 1999) (holding

that appellate courts must review all of the summary judgment grounds on which the

trial court actually rules, whether granted or denied, and which are dispositive of the

appeal). In Cates, the Supreme Court reversed the court of appeals because “the trial

court specifically ruled on all of the [defendant’s] grounds,” and thus the appellate

court should have considered all grounds on appeal. Id.

      There is no dispute that the equitable declarations sought by Northlake

regarding estoppel, waiver, laches, and validation were pled, briefed, argued, and

preserved for appeal in the trial court and briefed as an issue on appeal. The Court’s

opinion however does not address estoppel, waiver, laches, or validation. In fact,

the Court’s opinion suggests that Justin’s contention that “the 1997 Joint Resolution

violated various sections of the Local Government Code” was “dispositive.”




                                          4
Opinion, p. 11. The Court thus only addressed the validity of the ETJ exchange

between Northlake and Fort Worth under the Local Government Code.

      This constitutes error. The Court failed to address all the issues necessary to

disposition of the appeal, as required by Texas Rule of Appellate Procedure 47.1.

See Tex. Disposal Sys., Inc. v. Perez, 80 S.W.3d 593, 594 (Tex. 2002) (holding that

the court of appeals erred in failing to consider alternative basis asserted by the

appellee to support its attorney’s fees award); Latham v. Castillo, 972 S.W.2d 66,

70 (Tex. 1998) (the court of appeals erred in remanding the appellant’s fraud and

breach of contract claims without discussion). “[T]his provision is mandatory, and

the courts of appeals are not at liberty to disregard it.” West v. Robinson, 180 S.W.3d

575, 576-77 (Tex. 2005). The Court did not address the extensive and undisputed

evidence in the record that Justin knew of, recognized, and adopted the corporate

and ETJ boundaries established after the 1997 Joint Resolution between Northlake

and Fort Worth and stayed silent on a challenge to those established boundaries for

nearly 18 years. The Court also did not address whether the ETJ boundaries have

been validated by the Legislature. These issues must be addressed by the Court.

      C.     The Court should affirm the trial court’s summary judgment on
             equitable grounds

      1.     Laches Declaratory Judgment

      Laches is a type of estoppel that consists of unreasonable delay by one having

legal or equitable rights and a good faith change of position by another to his
                                          5
detriment due to the delay. See City of Fort Worth v. Johnson, 388 S.W.2d 400, 403

(Tex. 1964). It is “an equitable remedy that prevents asserting a claim due to the

lapse of time.” In re Episcopal Sch. of Dallas, Inc., No. 5:17-CV, ---S.W.3d---, 2017

WL 4533800, at *10 (Tex. App.—Dallas Oct. 11, 2017, no pet. h.). The doctrine

“embodies the principle that equity aids the vigilant and not those who slumber on

their rights.” Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 758 (Tex. App.—

Dallas 2012, no pet.) (internal citations and quotations omitted).

      The movant asserting laches must demonstrate that the non-moving party

unreasonably delayed in asserting its rights. See In re Laibe Corp., 307 S.W.3d 314,

318 (Tex. 2010). Moreover, “[u]nlike statutes of limitations, laches is not . . . a mere

matter of time; but principally a question of inequity of permitting the claim to be

enforced.” Condom Sense, 390 S.W.3d at 758 (internal citations and quotations

omitted). A party seeking the doctrine's protection must therefore demonstrate its

good faith and detrimental change in position because of the nonmoving party's

delay. See In re Laibe, 307 S.W.3d at 318. In Culver v. Pickens, the Texas Supreme

Court defined laches as follows:

      Laches, in legal significance, is not mere delay but delay that works a
      disadvantage to another. So long as parties are in the same condition, it
      matters little whether one presses a right promptly or slowly, within the
      limits allowed by law; but when knowing his rights, he takes no steps
      to enforce them until the condition of the other party has, in good faith,
      become so changed that he cannot be restored to his former state, if the
      right be then enforced, delay becomes inequitable, and operates as
      estoppel against the assertion of the right.
                                           6
Culver v. Pickens, 176 S.W.2d 167, 170–71 (Tex. 1943).

      Municipalities are not generally subject to laches or estoppel, but the Texas

Supreme Court has recognized an exception where “the circumstances clearly

demand [estoppel’s] application to prevent manifest injustice.” See City of Hutchins

v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970). In Houston Lighting & Power Co. v.

City of Wharton, the court held that laches prevailed against a city that “unreasonably

delay[ed] asserting its rights” when it accepted franchise tax payments for over 30

years before questioning the basis and amount of the payments. Houston Lighting

& Power Co. v. City of Wharton, 101 S.W.3d 633, 638-39 (Tex. App.—Houston [1st

Dist.] 2003, pet. denied).

      In City of Corpus Christi v. Nueces County Water Control and Improvement

Dist. No. 3, a conservation and reclamation district owned rights to certain water

from the Nueces River for irrigation purposes and began diverting water from the

river in 1911 in order to provide water to the City of Robstown. City of Corpus

Christi v. Nueces County Water Control and Improvement Dist. No. 3, 540 S.W.2d

357, 361-63 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.). From 1913 to

1923, the district did not divert any water, and so in 1964, the City of Corpus

Christi—another entity that took water from the Nueces River—challenged the

district’s rights to divert the water on the basis of abandonment. See id. at 364. The

court of appeals noted that:
                                          7
        The City has stood by for over 40 years while the Robstown District
        has continuously diverted water . . . [i]f the City had any claim of
        abandonment, it had to have been made in 1923, it is obviously unjust
        and unfair for the City to stand idly by, watching the Robstown
        District become dependent upon the validity of C.F. 70 and then 40
        years later claim that such right was lost due to the alleged
        abandonment by the District prior to 1923. Id. at 378 (emphasis
        added).

Accordingly, the court applied laches to Corpus Christi’s claims. Id.

        There is undisputed evidence in the record that Justin unreasonably delayed

in asserting its rights, and this evidence does not depend upon the validity of the ETJ

exchange between Northlake and Fort Worth. Justin recognized Northlake’s ETJ

as it was after the 1997 exchange with Fort Worth in the following official Justin

maps:

   • both of Justin’s Official Zoning maps dated 2002. [1 CR 998-1000].
   • Justin’s Master Thoroughfare Plan, adopted by ordinance in 2003. [1 CR
     1002-06].
   • Justin’s Official Zoning Map, Future Land Use Plans, and Water Supply Map
     from 2004. [1 CR 1012-18, 1026-32].
   • Justin’s Official Zoning Map, Master Thoroughfare Plan, Future Land Use
     Plan, and Sanitary Sewer Maps from 2007. [1 CR 1034-52].
   • Justin’s Water System and Official Zoning Map from 2008. [1 CR 1054-60].
   • Justin’s Official Zoning Map and Master Thoroughfare Plan in 2010. [1 CR
     1062-72].
   • Justin’s Official Zoning Map dated 2012. [1 CR 1074-78].
   • Justin’s Master Thoroughfare Plan from 2013. [1 CR 1080-84].
   • Justin’s Official Zoning Maps, Future Land Use Plan Map, and Master
     Thoroughfare Plan from 2014. [1 CR 1086-1100].

        Justin has known about the Fort Worth and Northlake ETJ area exchange since

at least 2002. Since that time, it has consistently recognized the ETJ boundaries as

                                          8
they existed after the 1997 ETJ exchange. Justin’s planner admitted that the

Southern tract is in Northlake’s ETJ. [1 CR 870]. Justin’s city manager recognized

the Northlake ETJ, and it was not until September 29, 2015 (the date Justin was

served with this lawsuit) that she requested Justin change all of its maps to ignore

the previous acknowledgment of the Northlake ETJ. [1 CR 871]. She wanted the

maps changed “ASAP” and stated that it did not matter how much it cost. [Id.].

There is not a scintilla of evidence in the record that Justin ever asserted any rights

to the Southern tract at issue before August 10, 2015, when Justin adopted Ordinance

591-15 purporting to expand its ETJ to invade Northlake’s established ETJ and also

approved a preliminary plat and development agreement for the Legacy Ranch

development. [1 CR 893-900; 1 CR 1212-65].

       On the other hand, there is undisputed evidence in the record that Northlake

relied on Justin’s silence.1 Northlake has approved three plats in its ETJ in reliance

on the recognized boundary. [1 CR 1111-33]. These plats are held by Alliance

Speedway, Rickey Perry, and Michael Nyikos; the plats have been filed of record in

the Denton County deed records. [Id.]. Further, Northlake has issued three permits

in its ETJ in reliance on the recognized boundary. [Id.]. The permits are held by

Quicksilver Resources and The Sign Company. [Id.]. These property owners relied


1
  The evidence is conclusive. And as the Court correctly noted in its opinion, none of Justin’s
proffered evidence is properly considered in this appeal, Opinion, p. 10; accordingly, Justin has no
dispute to Northlake’s evidence.
                                                 9
and continue to rely on the recognized 1997 boundary for their vested property

rights. See TEX. LOC. GOV’T CODE ch. 245.

      And the Texas Motor Speedway is dependent upon the recognized ETJ

boundary: in 2002, Fort Worth paid Northlake approximately $40,000 under the

revenue sharing agreement for payments from 1997 through 2002; from 2003 until

2015, Northlake has received $81,171.17 pursuant to the agreement and the revenue

stream is to continue indefinitely. [1 CR 894]. Northlake plans and adopts its annual

budget with this revenue stream anticipated from Fort Worth. [Id.]. Finally, the area

exchanged with Fort Worth is included in Northlake’s sanitary sewer master plan

and so is included in Northlake’s planned service area. [1 CR 1109].

      In sum, the undisputed evidence establishes that Justin was aware of

Northlake’s claimed ETJ boundaries for at least 13 years before Justin made any

objection. Not only that, but Justin affirmatively represented to the world that it

agreed with and accepted the Northlake ETJ boundaries by adopting and approving

numerous official maps and official plans that were published and made available to

citizens. Some of these maps hung in the chambers of the Justin city council

chambers to be observed at every council meeting for years. Northlake submits that

these facts and this undisputed evidence make this case one where “the

circumstances clearly demand [estoppel’s] application to prevent manifest

injustice.” See Prasifka, 450 S.W.2d at 835. Because the declaratory judgment


                                         10
involving laches was not addressed by the Court’s opinion and is an independent

ground upon which summary judgment should be affirmed, Northlake requests that

the Court withdraw its opinion and enter an order affirming the summary judgment

of the trial court.

       2.     Estoppel Declaratory Judgment

       Estoppel is generally defined as conduct that causes another party to

materially alter its position in reliance on that conduct. Roberts v. Clark, 188 S.W.3d

204, 213 (Tex. App.—Tyler 2002, pet. denied). Equitable estoppel requires a false

representation or concealment of material facts, made with actual or constructive

knowledge of those facts, with the intention that it should be acted upon to a party

without knowledge or means of obtaining knowledge of the facts, who detrimentally

relies on the representation. Inimitable Group, L.P. v. Westwood Group Dev. II,

Ltd., 264 S.W.3d 892, 902 (Tex. App.—Fort Worth 2008, no pet.).

       Ordinarily, municipalities are not subject to estoppel in the exercise of their

governmental functions. See City of White Settlement v. Super Wash, Inc., 198

S.W.3d 770, 773 (Tex. 2006). But Super Wash and its progeny involve a private

individual or entity attempting to estop a municipality; the cases do not address and

are completely silent as to the applicability of estoppel when two municipalities are

both attempting to perform competing governmental functions. The trial court

appropriately held that Northlake was entitled to summary judgment on its


                                          11
declaration that estoppel prevented Justin from exercising jurisdiction over the

Southern tract.

      Exceptional circumstances do exist to estop municipalities. In City of Dallas

v. Rosenthal, a landowner obtained a building permit for renovations on his property,

discussed the renovation work with a city inspector, and continued renovations on

his property for 18 months when the city attempted to enjoin the use of the property

as a violation of the city’s zoning ordinance. The city was estopped from applying

its zoning ordinance to the landowner’s property. See City of Dallas v. Rosenthal,

239 S.W.2d 636, 645 (Tex. Civ. App.—Dallas 1951, writ ref’d n.r.e.); see also City

of Austin v. Garza, 124 S.W.3d 867, 875 (Tex. App.—Austin 2003, no pet.) (city

that received a direct donation of land in exchange for land subject to an erroneous

plat note could be estopped from later denying the validity of the plat note); Sutor v.

International & G.N.R. Co., 125 S.W. 943, 945 (Tex. Civ. App.—Austin 1910, writ

ref'd) (city was estopped to seek destruction of building blocking access to claimed

public easement over private property, where construction of building was openly

visible yet city waited ten years from construction to assert purported easement). In

Krause v. City of El Paso, a landowner brought suit to prevent the City of El Paso

from damaging the owner’s house when the house stood on property for over 20

years before the city attempted to enforce a boundary stating that the house was




                                          12
actually along the path of a highway. Krause v. City of El Paso, 106 S.W. 121, 123

(Tex. 1907). The Texas Supreme Court held that:

       Why should a municipal corporation, which has led a citizen into error
       and caused him to expend large sums of money in the erection of
       permanent improvements upon a portion of the highway, after 20 years'
       occupancy, be permitted to destroy the improvements without
       compensation, simply to assert a legal right? A sense of justice common
       to all civilized people revolts at such a rule of legalized wrong.

Id.

       Likewise, Justin should not be permitted to represent to Northlake and the

world through its official maps and plans that the ETJ boundaries from the 1997 ETJ

exchange were valid and recognized for nearly 20 years before pulling the rug out

from under Northlake. In that nearly two-decade interim, Northlake approved plats

and issued permits in its ETJ received by exchange with Fort Worth. The Texas

Motor Speedway was built and developed based on the recognized ETJ exchange.

Justin cannot un-ring every municipal development bell over the last 20 years.

Because the Court’s opinion did not address the declaratory judgment of estoppel,

the Court should withdraw its opinion and issue a new order affirming the judgment

of the trial court on this basis.

3.     Waiver Declaratory Judgment

       Waiver is an intentional relinquishment of a known right or intentional

conduct inconsistent with claiming that right. Jernigan v. Langley, 111 S.W.3d 153,

156 (Tex. 2003) (citing Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37
                                         13
(Tex. 1987)). Waiver is largely a matter of intent, and for implied waiver to be found

through a party's actions, intent must be clearly demonstrated by the surrounding

facts and circumstances. Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass'n,

Inc., 1 S.W.3d 108, 111 (Tex. 1999). Waiver is ordinarily a question of fact, but

when the surrounding facts and circumstances are undisputed, the question becomes

one of law. Motor Vehicle Bd., 1 S.W.3d at 111. Waiver can be established by

silence, inaction, or other conduct misleading another party into believing waiver

was asserted. See Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 643 (Tex.

1996) (silence or inaction may establish waiver if it is for so long a period that it

shows an intent to yield the known right).

       The Fort Worth Court of Appeals, in binding precedent,2 has held that a city’s

silence for six years was enough to establish waiver as a matter of law. City of Dallas

v. GTE Southwest, Inc., 980 S.W.2d 928, 937 (Tex. App.—Fort Worth 1998, pet.

denied). In that case, the City of Dallas was held to have waived its right to collect

a percentage of franchise fees after six years of failing to request those fees. See id.

Other cases have also established that silence may create waiver. See Williams v.


2
  See Tex. R. App. P. 41.3 (“In cases transferred by the Supreme Court from one court of appeals
to another, the court of appeals to which the case is transferred must decide the case in accordance
with the precedent of the transferor court under principles of stare decisis if the transferee court's
decision otherwise would have been inconsistent with the precedent of the transferor court. The
court's opinion may state whether the outcome would have been different had the transferee court
not been required to decide the case in accordance with the transferor court's precedent.”). This
case was transferred by the Supreme Court from the Fort Worth Court of Appeals to the Texarkana
Court of Appeals.
                                                 14
Moores, 5 S.W.3d 334, 337 (Tex. App.—Texarkana 1999, pet. denied) (holding that

party waived right to claim ownership in property when she had knowledge of its

existence for 8 years following probate proceedings but was silent in asserting any

claim); Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 791-92 (Tex. App.—

Houston [14th Dist.] 2016, no pet.) (holding that party’s acceptance of commission

payments of five percent for 6 years without complaint waived right to enforce

contractual commission rate of nine percent).

      The undisputed evidence here is that Justin was silent as to the alleged

invalidity of Northlake’s ETJ boundaries after the 1997 ETJ exchange with Fort

Worth and actually affirmatively represented that the opposite was true—that the

1997 ETJ exchange was valid and Northlake’s ETJ boundaries were recognized.

Justin should not be permitted to toss aside the position it took for at least 13 years.

Justin waived its right to ignore the 1997 ETJ exchange and waived its right to

expand its ETJ into the Southern tract. This is true even if, as the Court’s opinion

suggested, the Local Government Code did not authorize the 1997 ETJ exchange

between Northlake and Fort Worth.

      D.     The Court should affirm the trial court’s summary judgment based
             on validation under Local Government Code § 51.003

      The Court’s opinion does not mention validation or Local Government Code

§ 51.003, which conclusively presumes governmental acts to be valid if there is no

legal challenge within three years.      This was error, because validation is an
                                          15
independent ground upon which the trial court granted summary judgment and does

not depend upon the authority of Northlake and Fort Worth to exchange ETJ area.

In fact, the point of the validation statute is to establish a statute of limitations to the

challenge of city actions in order to prevent the kind of instability that Justin’s

position (and the Court’s opinion) would create. See Gray v. Town of Westlake, 2–

02–173–CV, 2003 WL 22351652, at *3 (Tex. App.–Fort Worth Oct. 16, 2003, pet.

denied); City of Helotes v. Continental Homes of Tex., LP, 2016 WL 3085924, at *3

(Tex. App.—San Antonio June 1, 2016, no pet.).

       The validation statute is to be liberally construed. TCI West End, Inc. v. City

of Dallas, 486 S.W.3d 692, 697 (Tex. App.—Dallas 2016, pet. denied). In fact,

curative or remedial legislation is to be “given the most comprehensive and liberal

construction possible.” Burch v. City of San Antonio 518 S.W.2d 540, 544 (Tex.

1975); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 280

(1951).

       Local Government Code § 51.003 provides in part:

       § 51.003 Municipal Act or Proceeding Presumed Valid

                 (a) A governmental act or proceeding of a municipality is
                     conclusively presumed, as of the date it occurred, to be
                     valid and to have occurred in accordance with all
                     applicable statutes and ordinances if:

                        (1) the third anniversary of the effective date of the act
                            or proceeding has expired; and


                                            16
                        (2) a lawsuit to annul or invalidate the act or proceeding
                            has not been filed on or before that third
                            anniversary.

TEX. LOC. GOV’T CODE § 51.003. The validation act of § 51.003 covers the 1997

ETJ boundary and 1999 Northlake boundary ordinances. And it is uncontested that

Justin did not file suit to annul or invalidate the 1997 Joint Resolution, the 1997 ETJ

boundary or the 1999 Northlake boundary ordinances until this suit in 2015. The

1997 ETJ Joint Resolution, 1997 ETJ boundary, and 1999 Northlake ordinances are

therefore conclusively valid.

       The Court’s opinion did not address this issue.3 Validation under § 51.003

does not depend upon Northlake’s receipt of ETJ area from Fort Worth. The trial

court correctly granted summary judgment in favor of Northlake based on a

validation declaration. Accordingly, the Court should address the validation statute

and because it is undisputed that Justin did not challenge the ETJ exchange, the ETJ

boundary, or the Northlake ordinances establishing official maps until 18 years after

the ETJ exchange and 16 years after the Northlake map ordinances, the Court should

withdraw its opinion and enter an order affirming the judgment of the trial court on

this basis.




3
  In fact, the Court noted that “[w]e make no finding as to whether the agreement between
Northlake and Fort Worth violated any portion of the Local Government Code.” Opinion, p. 17
n. 22. Thus, the Court did not hold that Northlake’s ETJ exchange or ordinances were void.
                                            17
                          CONCLUSION & PRAYER

      The equitable and validation declarations upon which Northlake was granted

summary judgment were not addressed by this Court’s opinion. This constitutes

error. Whether the former Local Government Code § 43.021 authorized the ETJ

exchange between Fort Worth and Northlake does not bear on whether equity

requires upholding the ETJ exchange and preventing Justin’s disruption of

boundaries nearly 20 years after the fact. The Court should grant the motion for

rehearing, vacate its opinion, withdraw its judgment, and issue a revised opinion and

judgment affirming the judgment of the trial court in favor of the Town of Northlake.

The Town requests all other relief to which it may be entitled.

                                       Respectfully submitted,

                                       /s/ Wm. Andrew Messer
                                       WM. ANDREW MESSER
                                       STATE BAR NO. 13472230
                                       andy@txmunicipallaw.com
                                       BRETT D. GARDNER
                                       State Bar No. 24078539
                                       brett@txmunicipallaw.com
                                       MESSER ROCKEFELLER & FORT, PLLC
                                       6371 PRESTON ROAD, SUITE 200
                                       FRISCO, TEXAS 75034
                                       972.668.6400 - TELEPHONE
                                       972.668.6414 - FACSIMILE

                                       COUNSEL FOR APPELLEE




                                         18
                         CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing instrument has
been sent via electronic service to all attorneys of record, in compliance with Rule
6.3 of the TEXAS RULES OF APPELLATE PROCEDURE, on May 17, 2018.


                                              /s/ Wm. Andrew Messer
                                              WM. ANDREW MESSER


                      CERTIFICATE OF COMPLIANCE

      This is to certify that, according to the computer program used to prepare this
document, the document contains 4,414 words in compliance with Texas Rule of
Appellate Procedure 9.4(i)(3), excluding those items that are not to be included in
the word count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1).


                                              s/ Wm. Andrew Messer
                                              WM. ANDREW MESSER




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