                                                                                               ACCEPTED
                                                                                           01-15-00790-CV
                                                                                FIRST COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                     10/16/2015 3:52:49 PM
                                                                                     CHRISTOPHER PRINE
                                                                                                    CLERK

                                No. 01-15-00790-CV

                          IN THE COURT OF APPEALS             FILED IN
                                                       1st COURT OF APPEALS
                  FOR THE FIRST JUDICIAL DISTRICT OF TEXAS HOUSTON, TEXAS
                                 AT HOUSTON            10/16/2015 3:52:49 PM
                                                                  CHRISTOPHER A. PRINE
                                                                         Clerk
         LATTER DAY DELIVERANCE REVIVAL CHURCH AND
       CHRISTIAN FELLOWSHIP MISSIONARY BAPTIST CHURCH,
                                                   Appellants,
                              v.

                        HOUSTON HOUSING AUTHORITY
                                                                             Appellee.

   APPELLANT LATTER DAY DELIVERANCE REVIVAL CHURCH’S
    RESPONSE TO APPELLEE HOUSTON HOUSING AUTHORITY’S
     MOTION TO DISMISS INTERLOCUTORY APPEAL AS MOOT

            Appellant Latter Day Deliverance Revival Church (Latter Day)

respectfully requests that the Appellee Houston Housing Authority’s (HHA) Motion

to Dismiss Interlocutory Appeal As Moot be denied.

             1.      Latter Day filed this action under the Religious Freedom

Restoration Act (RFRA), seeking to prevent HHA from condemning its church

property through eminent domain for use as a targeted public-housing project.

Latter Day moved for a temporary injunction, and the district court held a hearing.

             2.      The district court issued an order denying Appellants’ request for

temporary injunction on September 1, 2015, on the sole basis that Latter Day had

failed to show that HHA’s taking of its church properties would impose a substantial

burden on Latter Day’s religious practice. (Ex. A, Order Denying Temporary
Injunction.)

                    3.     Latter Day filed an interlocutory appeal of that decision on

September 4, 2015.

                    4.     On September 11, 2015, the trial court entered an order granting

the HHA’s plea to the jurisdiction. HHA had argued that the district court lacked

jurisdiction because the County Court at Law has exclusive jurisdiction of

condemnation actions and because Latter Day allegedly failed to provide the 60-day

pre-suit notice usually required by RFRA. 1

                    5.     Latter Day and Christian Fellowship filed a notice of appeal on

September 18, 2015 challenging the jurisdictional dismissal. The appeals from the

denial of temporary injunction and from the plea to the jurisdiction are consolidated

in the above case number. Appellants’ opening brief is due November 18, 2015.

Appellants intend to address both the jurisdictional dismissal and the temporary-

injunction ruling in their opening brief.

                    6.     HHA moves to dismiss the interlocutory appeal from the denial

of temporary injunction because “it is routinely held that the rendition of a final
1
  Latter Day countered that the district courts and county courts at law share concurrent jurisdiction over suits that
are related to condemnation actions but not themselves condemnation actions, see Taub v. Aquila Sw. Pipeline
Corp., 93 S.W.3d 451 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (allowing a landowner’s trespass to title
claim against a condemnor in district court and holding that “the Harris County Civil Courts at Law have
jurisdiction, but not exclusive jurisdiction, over a landowner’s claim . . . when those claims are inherently
intertwined in an eminent domain proceeding”); county court jurisdiction had not attached because HHA had not
served Latter Day with the condemnation action at the time HHA filed its RFRA suit in district court (indeed, it was
not served until October 2, 2015); the pre-suit notice requirement is not jurisdictional, see Barr v. City of Sinton, 295
S.W.3d 287, 292 n.8 (Tex. 2009); and even if the pre-suit notice requirement was jurisdictional, Latter Day satisfies
the exception to the pre-suit notice requirement, and in any event, complied by providing pre-suit notice before
filing its first amended complaint.
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judgment moots an appeal from an order denying a temporary injunction.” (Mot. ¶

4.)

                    7.   The motion should be denied. The rule cited by HHA applies

only when the district court renders final judgment on the merits while an appeal of

the temporary injunction is pending. The reason is obvious: It makes no sense for an

appellate court to review a temporary resolution of the merits when it can instead

review a final resolution of the merits on a complete record. As the Texas Supreme

Court explained, “[t]he rules of law concerning dismissal of an appeal from a

temporary injunction after it has been rendered moot by a final judgment are

necessary to prevent premature review of the merits of the case.” Isuani v. Manske-

Sheffield Radiology Grp., P.A., 802 S.W.2d 235, 236 (Tex. 1991) (emphasis added).

That rule prevents parties from using a temporary-injunction appeal “to obtain an

advance ruling on the merits” and the resulting inefficiency of courts reviewing the

merits twice. Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 208

(Tex. 1981) (emphasis added). In both of these Supreme Court cases, the Court

dismissed a temporary-injunction appeal as moot where the district court had already

rendered final judgment on the merits. Unsurprisingly, every lower-court case cited

by HHA likewise involved the scenario where an appellate court dismissed the

interlocutory appeal of a temporary injunction after the district court had rendered a



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final judgment on the merits.2

                    8.    Neither the mootness rule nor its stated rationale applies here.

The district court did not enter final judgment on the merits. It granted HHA’s plea

to the jurisdiction for reasons that have nothing to do with the merits-based reasons

it had previously denied the temporary injunction. See Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000) (“A plea to the jurisdiction is a dilatory plea,

the purpose of which is to defeat a cause of action without regard to whether the

claims asserted have merit.”); City of Dallas v. Brown, 373 S.W.3d 204, 208 (Tex.

App.—Dallas 2012, pet. denied) (“In our review of both the plea to the jurisdiction

and the temporary injunction, the ultimate merits of the parties’ controversy are not

before us.”). Thus, the appeal of the temporary-injunction denial is in no sense

“moot.” If this Court reverses the district court’s erroneous jurisdictional ruling, the

temporary-injunction ruling would then be ripe for this Court’s review. Reviewing

the temporary-injunction ruling would not present the risk of “reviewing the merits

twice” in the same appeal because the district court has not yet entered final
2
  See Lowe v. Farm Credit Bank, 2 S.W.3d 293, 299-300 (Tex. App.—San Antonio 1999, pet. denied) (upholding
grant of summary judgment on merits and dismissing interlocutory appeal of temporary-injunction denial as moot);
Save Our Springs Alliance, Inc. v. Austin Independent School District, 973 S.W.2d 378, 384 (Tex. App.—Austin
1998, no pet.) (same); Bonilla v. Roberson, 918 S.W.2d 17, 20-21 (Tex. App.—Corpus Christi 1996, no pet.)
(dismissing interlocutory appeal of temporary-injunction denial as moot after final judgment on the merits);
Roadrunner Investments, Inc. v. Texas Utilities Fuel Co., 526 S.W.2d 615, 616-17 (Tex. Civ. App.—Fort Worth
1975, no writ) (upholding grant of summary judgment on merits and dismissing interlocutory appeal of temporary-
injunction denial as moot); City of Corpus Christi v. Cartwright, 281 S.W.2d 343, 343-44 (Tex. Civ. App.—San
Antonio 1955, no writ) (dismissing interlocutory appeal of temporary-injunction denial as moot after final judgment
on the merits); Spencer v. Steele, 132 S.W.2d 146, 146 (Tex. Civ. App.—San Antonio 1939, no writ) (same); Jordan
v. Landry’s Seafood Restaurant, Inc., 89 S.W.3d 737, 741 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)
(upholding grant of summary judgment on merits and dismissing appeal of temporary injunction as moot); EMW
Manufacturing Co. v. Lemons, 741 S.W.2d 212, 214 (Tex. App.—Fort Worth 1987) (remanding for trial on merits
and dismissing appeal of temporary injunction as moot).
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judgment on the merits. Nor would it provide a “premature review of the merits”

because the Court will review the jurisdictional dismissal before it reaches the

temporary-injunction issue, and those issues rest on entirely distinct grounds. The

Court would proceed just as it does on every temporary-injunction appeal—by

reviewing the limited record to determine if the district court abused its discretion.

See Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).

                    9.    Extending the mootness rule to non-merits jurisdictional

dismissals would cause the very duplication of effort the rule is designed to avoid. If

this Court were to dismiss the temporary-injunction appeal as moot before

addressing the district court’s jurisdictional ruling—as HHA requests—it would

create a high risk of duplicating judicial effort and wasting party resources. That is,

if the Court dismisses the temporary-injunction appeal as moot, but reverses the

district court’s jurisdictional dismissal, Latter Day on remand would have to file

another request for temporary injunction in district court. The district court would

have to hold another hearing and render another ruling. Assuming the same result

as before, Latter Day would have to file another interlocutory appeal. There is no

reason to put the courts and parties through this charade when the Court already has

a temporary-injunction appeal with a proper record before it now. Certainly, no case

cited by HHA compels this absurd result.

                    10.   To be sure, if this Court affirms the district court’s jurisdictional

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dismissal, the case is over and the temporary-injunction appeal is moot. But the

temporary-injunction appeal is not moot until that happens. For if the Court reverses

the district court’s jurisdiction ruling—Issue One in Latter Day’s appeal—it will

then properly turn to the district court’s denial of the temporary injunction—Issue

Two in this appeal.

                    11.   That is what happened in the most analogous case located by the

parties. In Harris v. Moore, 912 S.W.2d 860 (Tex. App.—Austin 1995, no pet.), the

trial court denied a temporary injunction and then immediately dismissed the case

based on “pleading defects” in the bill of review Id. at 861-62. The plaintiff

appealed both rulings. The court of appeals held that the trial court procedurally

erred in abruptly “dismissing for pleading defects” without full opportunity for the

plaintiff to make his case. Id. at 862. The court recognized the “ordinar[y]” rule

that a final judgment moots a temporary-injunction appeal. Id. at 863. But it also

recognized that its reversal of the district court’s procedurally erroneous dismissal

may have “revive[d]” the interlocutory appeal of the temporary-injunction denial.

Id. The court thus reached the merits of the temporary-injunction ruling, and

affirmed the trial court because there was no abuse of discretion. Id.

                    12.   While Harris is not directly on point, it helpfully illustrates the

limits of the mootness rule. Where a trial court has not finally disposed of the merits

in a procedurally sound way, nothing prevents the appellate court from reviewing

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the denial of a temporary injunction. And the case for declining to extend the

mootness rule is far stronger here, for in Harris the ground for dismissal was merits-

related, while here it is purely jurisdictional.

                    For these reasons, Appellants respectfully request that the Court deny

Appellee’s Motion to Dismiss Interlocutory Appeal as Moot and for such other relief

that the Court may grant.




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                        Respectfully submitted,

                        BAKER BOTTS L.L.P.


                        By: /s/ Aaron Streett

                        Aaron Streett
                        State Bar No. 24037561
                        Sam Burk
                        State Bar No. 24064974
                        Shane Pennington
                        State Bar No. 24080720
                        Jonathan Havens
                        State Bar No. 24087686
                        910 Louisiana Street
                        Houston, Texas 77002-4995
                        Telephone: (713) 229-1234
                        Facsimile: (713) 229-7847
                        aaron.streett@bakerbotts.com
                        sam.burk@bakerbotts.com
                        shane.pennington@bakerbotts.com
                        jonathan.havens@bakerbotts.com

                        Hiram S. Sasser, III
                        State Bar No. 24039157
                        Justin E. Butterfield
                        State Bar No. 24062642
                        LIBERTY INSTITUTE
                        2001 W. Plano Parkway, Suite 1600
                        Plano, Texas 75075
                        hsasser@libertyinstitute.org
                        jbutterfield@libertyinstitute.org

                        ATTORNEYS FOR APPELLANTS
                        LATTER DAY DELIVERANCE
                        REVIVAL CHURCH AND
                        CHRISTIAN FELLOWSHIP
                        MISSIONARY BAPTIST CHURCH

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                            C ERTIFICATE     OF   S ERVICE

             I certify that a true and correct copy of this motion was served on all
counsel of record listed below by electronic service on October 16, 2015.

Counsel for Houston Housing Authority:

STRASBURGER & PRICE
P. Michael Jung
State Bar No. 11054600
Kevin J. Maguire
State Bar No. 12827900
Kimberly H. Murphy
State Bar No. 24075619
901 Main Street, Suite 4400
Dallas, Texas 75202
michael.jung@strasburger.com
kevin.maguire@strasburger.com
kim.murphy@strasburger.com
Tel: 214.651.4300
Fax: 214.659.4330

Samuel J. Louis
State Bar No. 12588040
909 Fannin Street, Suite 2300
Houston, Texas 77010
sam.louis@strasburger.com
Tel: 713.951.5604
Fax: 832.397.3503

                                      /s/Jonathan Havens
                                      Jonathan Havens




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