                                                                                       ACCEPTED
                                                                                   01-13-00865-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              6/29/2015 4:01:58 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                            No. 01-13-00865-CV

                  IN THE FIRST COURT OF APPEALS           FILED IN
                                                   1st COURT OF APPEALS
                                                       HOUSTON, TEXAS
                         HOUSTON, TEXAS            6/29/2015 4:01:58 PM
     __________________________________________________________
                                                   CHRISTOPHER A. PRINE
                                                           Clerk

                          DARRELL CHURCH,
                              Appellant

                                     v.

                      CITY OF ALVIN, TEXAS,
                             Appellee
    ___________________________________________________________

                Appeal from Cause No. CI047129, in the
          County Court at Law No. 2 of Brazoria County, Texas
    ___________________________________________________________

                    MOTION FOR REHEARING
    ___________________________________________________________

     Appellant Darrell Church submits this Motion for Rehearing, under

TEX. R. APP. P. 49.1, in response to the Opinion issued by the Court June 25,

2015, and requests that the Court consider the following issue:

                   ISSUE PRESENTED FOR REVIEW

     The Court mistakenly construed the evidence in the record,
     finding that Church admitted having full, unimpaired access to
     his property in its current status. No such statement appears in
     the record. The Court’s finding is a mistaken factual finding
     and a misapplication of the standard of review, which requires
     that all evidence be construed in the light most favorable to
      jurisdiction.

                      ARGUMENT & AUTHORITIES

A.    The Applicable Standard of Review

      When a plea to the jurisdiction challenges the existence of

jurisdictional facts, as does the City’s, courts may consider relevant

evidence submitted by the parties to resolve the jurisdictional issues raised,

even where those facts may implicate the merits of the cause of action. Tex.

Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If that

evidence creates a fact issue as to the jurisdictional issue, then it is for the

fact-finder to decide. Id., at 227-28.     Only if the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, can

the trial court rule on the jurisdictional issue as a matter of law. Id., at 228.

In considering the evidence submitted by the parties, the Court must take

as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant's favor. Id.

B.    The Evidence of Record – What Church Did Not Say

      On page 16 of the Opinion, the Court makes the following

observation:



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     Church conceded in his deposition that he retains access to his
     property and his existing driveway, but that driveway access
     across the bar ditch is 12 feet narrower when compared with
     the right-of-way access that existed before the bridge
     construction. Crediting Church’s testimony that the entrance
     across the bar ditch is narrower than it was does not raise a fact
     issue of a taking by impairment, because Church still has access
     to the road. Via his existing driveway, even with his trailer,
     Church can approach the drive from the far lane.

Opinion, at 16. The italicized statement—which, if correct would, indeed,

show that Church has the same use of his property as he did before the

City’s actions—has no support in the record. It simply is not there. Church

made no such admission anywhere in his deposition, and the City never

raised such an admission, even though such an admission would severely

harm Church’s case.

C.   The Evidence of Record – What Church Did Say

     Church described turning into his property while towing his large

horse trailer as “impossible.”   CR 148. When specifically asked about

approaching the property from a different direction, Church was

unequivocal:

     Q:    And do I understand you correctly? On the big trailer,
           you’re saying that you can’t get that on the property no
           matter which direction you come from?

     A:    That’s correct.

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CR 211.

       The sole concession made by Church was to agree with the City’s

counsel that, if he were to move the driveway that allows him to cross the

bar ditch between his property and the roadway to another location, he

could widen it and be able to bring his trailer on to the property. CR 148-

49. Church also agreed that no one has told him that he cannot take such

action. Id.

       But the Court’s statement suggests that Church has full access to his

property with no such revision. Opinion, at 16 (“Via his existing driveway,

even with his trailer, Church can approach the drive from the far lane.”).

Church’s testimony is exactly the opposite—that he cannot access his

property fully by the existing driveway and would have to move it.1

Church never admitted that suitable access exists in the current situation.

D.     Applying the Standard

       Correctly applying the standard of review requires reversal of the

trial court’s Order. Church simply does not make the concession that the

1      In its briefing, the City suggested that this was sufficient to constitute reasonable
access because suitable access could be had if Church were willing to pay for it out of
his own pocket. But this is the entire point of inverse condemnation. A governmental
entity cannot place the onus to pay for a governmental project onto a single landowner.

                                             4
Court cites. Furthermore the Court misplaces the standard of review in the

same way as the City. Again, on page 16 of its Opinion, it states: “Church

did not adduce evidence that the project has prevented him from accessing

the roadway along the remaining frontage of his property.” Opinion, at 16.

This misplaces the burden on a plea to the jurisdiction. The party attacking

jurisdiction has the burden to show there is no jurisdiction. Southwestern

Apparel v. Bullock, 598 S.W.2d 702, 704 (Tex. App.—Austin 1980, no writ)

(“The burden is on the party asserting the plea to the jurisdiction to prove

such a plea.”).

      But the Court’s Opinion places that burden on Church.         Church

argued that he does not have suitable access to his property given the

current status quo. The City never argued that he has suitable access, only

that he can, if he spends his own money to reclaim it. The Court found that

he does have suitable access, despite neither party presenting evidence of

such. Thus, the Court’s Opinion appears based on statements never made,

evidence mistakenly construed, and standards incorrectly applied. Church

requests that the Court reconsider its Opinion.




                                     5
                                 PRAYER

     For the reasons stated in this Motion, Appellant Darrell Church, asks

the Court to grant this Motion for Rehearing, withdraw its June 25, 2015,

Opinion, reverse the trial court’s order granting the City of Alvin’s Plea to

the Jurisdiction, and remand this case to the trial court for further

proceedings.

                                      Respectfully submitted,

                                      SIMPSON, P.C.

                                      /s/ Iain G. Simpson
                                      ______________________________
                                      Iain G. Simpson
                                      State Bar No. 00791667
                                      1333 Heights Boulevard, Suite 102
                                      Houston, Texas 77008
                                      iain@simpsonpc.com
                                      (281) 989-0742
                                      (281) 596-6960 (fax)

                                      APPELLATE COUNSEL FOR APPELLANT
                                      DARRELL CHURCH




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                       CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing Motion for Rehearing
was served this 29th day of June, 2015, via facsimile, hand delivery,
electronic service, or certified U.S. Mail, on the following:

John Hightower
Patricia L. Hayden
Olson & Olson, L.L.P.
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019

COUNSEL FOR APPELLEE
CITY OF ALVIN, TEXAS



                                       /s/ Iain G. Simpson
                                       ____________________________
                                       Iain G. Simpson




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