Opinion issued August 20, 2015




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-14-00515-CV
                         ———————————
                        KOSOCO, INC., Appellant

                                   V.

   METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
                        Appellee


           On Appeal from the County Civil Court at Law No. 4
                         Harris County, Texas
                     Trial Court Case No. 1010709


                       MEMORANDUM OPINION
      Appellant, Kosoco, Inc., challenges the trial court’s order dismissing, for

lack of jurisdiction, its inverse-condemnation claims 1 against appellee,

Metropolitan Transit Authority of Harris County (“Metro”).              In three issues,

Kosoco contends that the trial court erred in dismissing its lawsuit.

      We affirm.

                                      Background

      In its original petition, Kosoco alleged that, since 1980, it has operated a

gasoline station and convenience store at 2102 North Main Street in Houston,

Texas (the “Property”). In 2010, Metro began construction of a light rail line on

North Main Street (the “North Line”). During the first stage of construction, the

relocation of underground utility lines resulted in “numerous water outages lasting

anywhere from hours to days.” Metro also installed an “electric rail pole” in front

of Kosoco’s “fuel price LED sign, preventing customers from seeing it.” And

when Metro subsequently closed portions of North Main Street to conduct

demolition, it “effectively closed off [Kosoco’s] business from all customers that

use North Main,” requiring its “downtown customers” to “travel an additional 28

blocks” to access the Property.

      Kosoco further alleged that the “construction caused total, temporary

restrictions of access” to the Property and the “final construction will result in a


1
      See TEX. CONST. art. I, § 17.

                                          2
partial, but permanent restriction of access” to the Property. “As a result of these

closures, demolition, and construction[,] the vehicle traffic has been greatly

reduced,” its business has been “destroyed,” and two of its commercial tenants

have gone out of business, resulting in lost rents to Kosoco. Kosoco sued Metro

for inverse condemnation, asserting that Metro’s construction of the North Line

resulted in a “taking, damaging, or destroying” of its Property for public use

without adequate compensation.2

      In its Motion to Dismiss for Lack of Jurisdiction, Metro argued that Kosoco

had not alleged a cause of action for which Metro’s governmental immunity had

been waived because the facts underlying Kosoco’s claims did not establish a

“material and substantial impairment of access.” It asserted that to the extent that

“third-party contractors negligently interfered with access to the property or

disrupted water and electric service, such acts [were] not attributable to Metro.”

Metro attached to its motion the affidavit of its representative, Michael Bruce

Krantz, who testified as follows:

      • The Property is located at the northeast corner of North Main and
        Paschall between Hogan and Quitman. It is on the block bounded
        by North Main on the west, Paschall on the south, Freeman on the
        east, and Henry on the north.

      • Access to the Property is available by means of four driveways:
        one that provides access to and from North Main, two that provide
        access to and from Paschall, and one that provides access to and

2
      See id.

                                         3
   from Freeman. The configuration of these driveways was not
   altered by the construction of the North Line.

• Prior to the construction of the North Line, portions of North Main,
  including the segment between Hogan and Quitman Street,
  consisted of three ten-foot-wide southbound lanes and three ten-
  foot-wide northbound lanes.

• Following the construction of the North Line, that segment of
  North Main generally has a single lane for northbound vehicular
  traffic, a single lane for southbound vehicular traffic, and a twenty-
  six-foot-wide light rail guideway in the middle of the street.
  Between Paschall Street and Henry Street, the lanes for vehicular
  traffic are sixteen feet wide.

• Prior to construction of the North Line, vehicular traffic on North
  Main, Paschal, and Freeman could access the Property by turning
  left or right into the driveways abutting those streets. Following
  construction, the only change in access to the Property is that
  vehicles traveling southbound on North Main are no longer able to
  turn directly into the Property. However, such vehicles can still
  travel to the Property by (i) making a u-turn at Hogan and traveling
  four blocks north on North Main or (ii) turning left at Hogan and
  traveling east for one block, turning left on Freeman, and traveling
  four blocks north to the Property.

• Prior to construction of the North Line, vehicles could exit the
  Property by turning right or left out of any of the driveways onto
  the abutting street. Following construction, the only change in
  access from the Property is that vehicles are not able to turn
  directly into the southbound lane of North Main. However,
  vehicles can still access that lane by (i) heading north three blocks
  on North Main to Quitman and making a u-turn or (ii) going south
  on Freeman to Hogan, turning right and heading west on Hogan for
  one block, and making a left turn into the southbound lane of
  North Main.




                                   4
Metro also attached to its motion the affidavit of Michelle Solomon, an

investigator it had hired to “observe and record” traffic patterns and “the types and

numbers of vehicles entering and exiting” the Property; Solomon’s daily logs and

photographs; a copy of the deposition transcript of Louis Namgoong, Kosoco’s

corporate representative; roadway engineering diagrams; and a copy of the contract

governing construction of the North Line.

      In its response to Metro’s motion, Kosoco asserted that “[t]he doctrine of

sovereign immunity does not apply to inverse condemnation cases.”             It also

asserted that the “undisputed facts relevant to [the trial court’s] jurisdiction” were

that before construction of the North Line began, North Main Street had “three

lanes, each 30 [sic] feet wide, northbound and another three lanes, each 30 [sic]

feet wide southbound.” And, after construction of the North Line, the section of

North Main Street adjacent to the Property now “consists of a single lane, 16 feet

wide,” which has rendered access to the Property “difficult.”

      Kosoco attached to its response a copy of the deposition transcript of its

corporate representative, Namgoong, who testified that the “rail structure in the

middle of North Main Street” has caused a “reduced amount of navigable area

for . . . delivery drivers, delivery trucks, grocery trucks, [and] beer trucks.”

Kosoco also attached a report from David Hall, a traffic engineer, who opined that

since the “final construction of the center median on North Main Street for the



                                          5
[North Line],” access to the Property, although “not impossible,” has been

rendered “difficult.” Hall also noted that the “[i]ntersection and driveway access

to/from North Main Street has been blocked, which impairs and makes site access

movements difficult.”

                               Standard of Review

      A motion to dismiss for lack of jurisdiction is the “functional equivalent” of

a plea to the jurisdiction. Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.—

Houston [14th Dist.] 2004, no pet.); see Willie v. Comm’n for Lawyer Discipline,

No. 01-11-00428-CV, 2012 WL 761241, at *3 (Tex. App.—Houston [1st Dist.]

Mar. 8, 2012, no pet.) (mem. op.). A plea to the jurisdiction is a dilatory plea that

seeks dismissal of a case for lack of subject matter jurisdiction. Harris Cnty. v.

Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Villarreal v. Harris Cnty., 226 S.W.3d

537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We review de novo a

trial court’s ruling on a jurisdictional plea. See Ben Bolt-Palito Blanco Consol.

Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212

S.W.3d 320, 323 (Tex. 2006); City of Hous. v. Vallejo, 371 S.W.3d 499, 501 (Tex.

App.—Houston [1st Dist.] 2012, pet. denied).

      A plea to the jurisdiction may be utilized to challenge whether the plaintiff

has met its burden of alleging jurisdictional facts or to challenge the existence of

jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d



                                         6
217, 226–27 (Tex. 2004). When a plea to the jurisdiction challenges the pleadings,

we determine whether the pleader has alleged facts that affirmatively demonstrate

the trial court’s jurisdiction. Id. Review of a plea challenging the existence of

jurisdictional facts mirrors that of a matter-of-law summary-judgment motion.

Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012);

City of Hous. v. Guthrie, 332 S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.]

2009, pet. denied) (“[T]his standard generally mirrors that of a summary judgment

under Texas Rule of Civil Procedure 166a(c). . . . By requiring the [political

subdivision] to meet the summary judgment standard of proof . . . , we protect the

plaintiffs from having to put on their case simply to establish jurisdiction.”); see

also TEX. R. CIV. P. 166a(c). A court may consider evidence as necessary to

resolve a dispute over the jurisdictional facts, even if the evidence “implicates both

the subject matter jurisdiction of the court and the merits of the case.” Miranda,

133 S.W.3d at 226. We take as true all evidence favorable to the nonmovant and

we indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Id. at 227; see also Heckman v. Williamson Cnty., 369 S.W.3d 137, 150

(Tex. 2012). If the defendant meets its burden to establish that the trial court lacks

jurisdiction, the plaintiff is then required to show that there is a disputed material

fact regarding the jurisdictional issue.       Miranda, 133 S.W.3d at 228.     If the

evidence raises a fact issue regarding jurisdiction, the plea cannot be granted and a



                                           7
fact finder must resolve the issue. Id. at 227–28. On the other hand, if the

evidence is undisputed or fails to raise a fact issue, the plea must be determined as

a matter of law. Id.

                            Governmental Immunity

      In its first and second issues, Kosoco argues that the trial court erred in

dismissing its inverse-condemnation claims because Metro, temporarily, “totally

impaired” access to the Property during its construction of the North Line and,

permanently, “partial[ly] impair[ed]” access to the Property by “chang[ing] the

configuration” of North Main Street, rendering access to the Property “difficult.”

And Kosoco asserts that the doctrine of governmental immunity “does not apply to

inverse condemnation cases.”

      The Texas Constitution prohibits a governmental unit from taking private

land for public use as follows: “No person’s property shall be taken, damaged or

destroyed for, or applied to public use, without adequate compensation being

made, unless by the consent of such person.”        TEX. CONST. art. I, § 17.      A

landowner whose property has been taken may bring an inverse condemnation

proceeding to recover compensation for his loss. Hearts Bluff Game Ranch, Inc. v.

State, 381 S.W.3d 468, 476 (Tex. 2012); City of Hous. v. Mack, 312 S.W.3d 855,

861 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Generally, the doctrine of

governmental immunity shields a governmental entity from suit, and, in the



                                         8
absence of a waiver of immunity, a trial court has no subject matter jurisdiction

over a suit against a governmental entity. See Tex. Dep’t of Transp. v. Jones, 8

S.W.3d 636, 638 (Tex. 1999); City of Hous. v. Hous. Firefighters’ Relief &

Retirement Fund, 196 S.W.3d 271, 277 (Tex. App.—Houston [1st Dist.] 2006, no

pet.). However, as asserted by Kosoco, the doctrine of governmental immunity

does not shield governmental entities from valid takings claims. Guthrie, 332

S.W.3d at 591–92 (citing TEX. CONST. art. I, § 17; Gen. Servs. Comm’n v. Little

Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001)). Determining whether a

taking has occurred is a question of law. Hearts Bluff, 381 S.W.3d at 477.

      “To demonstrate that a constitutional inverse condemnation has occurred, [a]

landowner must show that (1) the State intentionally performed certain acts in the

exercise of its lawful authority (2) that resulted in a taking of property (3) for

public use.” Burris v. Metro. Transit Auth. of Harris Cnty., 266 S.W.3d 16, 20

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (citations omitted). To show a

compensable taking, a landowner must establish that a “material and substantial

impairment” of access to the property occurred. State v. Heal, 917 S.W.2d 6, 10

(Tex. 1996). A landowner shows a material and substantial impairment of access

by establishing (1) a total, temporary restriction of access; (2) a partial, permanent

restriction of access; or (3) a partial, temporary restriction of access due to illegal

or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); Burris,



                                          9
266 S.W.3d at 20. Whether there has been a material and substantial impairment

to property as a result of a taking is a question of law. Schmidt, 867 S.W.2d at 777.

      Metro, in its motion, argued that Kosoco had not alleged a material and

substantial impairment of access to the Property because a “landowner is not

entitled to compensation simply because a public improvement project results in

decreased traffic volume adjacent to its property”; “modifications that result in

drivers having to take a more circuitous route to reach a property do not give rise

to a taking”; and “Kosoco has not been denied reasonable access” since “customers

and vendors remain able to access the Property for its intended use.”

      Here, Krantz testified that access to the Property is available by means of

four driveways and the configuration of these driveways “was not altered by the

construction of the North Line.” Following construction, the only change in access

to the Property is that vehicles traveling southbound on North Main are no longer

able to turn directly into the Property and vehicles at the Property are not able to

turn directly into the southbound lane of North Main. And Krantz noted that

vehicles traveling southbound on North Main can still access the Property by

traveling an alternative route.

      Moreover, Solomon testified that during her visits to the Property, she

observed “[p]assenger cars, trucks, sport utility vehicles, delivery trucks, trucks

pulling trailers, a full-sized fire truck, and small and mid-sized buses enter[ing] and



                                          10
exit[ing] the Property.”   “No vehicles experienced any difficulty entering or

exiting” the Property. And Solomon noted that the “majority of vehicles entering

and exiting the Property use the North Main and Paschall driveways.”

      It is well-settled that diversion of traffic, diminished exposure to traffic, or

altered accessibility to a roadway does not constitute a material and substantial

impairment of access. See State v. Petropoulos, 346 S.W.3d 525, 532 (Tex. 2011).

“[A]n abutting property owner does not have a vested interest in the traffic that

passes in front of his property.” Schmidt, 867 S.W.2d at 774 (quoting DuPuy v.

City of Waco, 396 S.W.2d 103, 109 (Tex. 1965)); see also State Highway Comm’n

v. Humphreys, 58 S.W.2d 144, 145 (Tex. Civ. App.—San Antonio 1933, writ

ref’d) (noting “highways are primarily for the benefit of the traveling public, and

are only incidentally for the benefit of those who are engaged in business along its

way” and holding business owners necessarily assume risk new roads, which may

“largely take away the traveling public,” may be built). If one access point to a

property is closed, access is not materially and substantially impaired if another

access point on a public street remains unaffected. City of San Antonio v. TPLP

Office Park Props., 218 S.W.3d 60, 66 (Tex. 2007); Burris, 266 S.W.3d at 22–23

(although property owner may suffer diminished property value due to adjacent

road closure, compensable taking has not occurred if property owner retains

reasonable access to remaining adjacent road).



                                         11
      The uncontroverted evidence in this case shows that Metro’s construction of

the North Line did not change the four driveways providing access to the Property.

Both ingress and egress remain available via the northbound lane of North Main

Street, along with two driveways accessing Paschall Street and one accessing

Freeman Street. The only change is that customers and vendors are no longer able

to enter the Property directly from, or exit directly onto, the southbound lane of

North Main. But the Property is still accessible via alternative routes. Thus,

Kosoco cannot establish that it has been affected by a “material and substantial”

impairment of access to its Property. See TPLP Office Park, 218 S.W.3d at 66;

Burris, 266 S.W.3d at 24; see also City of Waco, 396 S.W.2d at 109 (explaining

landowner entitled to compensation if public improvement destroys “all reasonable

access” to property; however, no compensable taking exists if landowner has

reasonable access to property after construction of public improvement).

      In support of its assertion that Metro materially and substantially impaired

access to the Property by rendering access “difficult,” Kosoco relies on City of

Waco v. Texland Corporation, 446 S.W.2d 1 (Tex. 1969). Texland sued the City

of Waco for inverse condemnation, alleging that the City’s construction of a

viaduct had materially and substantially impaired access to its commercial

warehouse. Id. at 2. The viaduct was supported by piers, one of which was

located “almost directly” in front of Texland’s loading dock and doors. Id. at 4.



                                        12
Witness testimony showed that although it was “not impossible” for the large

transport trucks serving Texland to maneuver in the area in front of the docks, it

was “difficult,” and in “some places” it was “almost impractical to get to.” Id.

The Texas Supreme Court held that these facts established a material and

substantial impairment of access. Id.

      In Burris, however, this Court considered, in light of Texland, whether

Metro’s construction of a light rail line on San Jacinto Street in Houston resulted in

a material and substantial interference with access to an adjacent commercial

property. 266 S.W.3d at 18–19. Prior to construction of the rail line, customers

had access to the plaintiffs’ property via two driveways.         Id. at 18.    After

construction, Metro closed one driveway and changed the other driveway to egress

only. Id. The plaintiffs sued Metro for inverse condemnation, arguing that it had

materially and substantially impaired access to their property because there was no

longer ingress from San Jacinto Street, as it was completely blocked by the rail

line, and the only ingress was from a side street. Id. at 20. The plaintiffs, based in

part on the reasoning of the supreme court in Texland, asserted that the “fact that

some access to the Property remained from the side street . . . [was] immaterial.”

The plaintiffs noted that in Texland, the court concluded that the access to the

property had been impaired, even though ingress was not totally denied. Id. at 21.




                                         13
The Burris plaintiffs argued that the “taking” in their case was even more

egregious than the taking in Texland because they had “no ingress whatsoever

from their frontage on San Jacinto.” Id. However, this Court noted that the

plaintiffs presented no evidence that their customers and vendors could not access

their property. Id. at 23. In fact, their customers and vendors still had ingress to

the property via a side street and still had egress onto San Jacinto Street. Id. at 24.

We then concluded that the closure of the ingress from San Jacinto Street did not

constitute a material and substantial impairment. Id.

      Here, likewise, Kosoco did not present any evidence that its customers and

vendors cannot access the Property. See id. And the uncontroverted evidence

shows that the Property is still accessible via the side streets. See id.; TPLP Office

Park Props., 218 S.W.3d at 66–67 (noting “issue of whether reasonable access

remains should not be fragmented to focus only on the closed access point without

considering remaining access points”). Further, both ingress to and egress from

the Property is available via North Main Street for northbound traffic.

      Kosoco asserts that a material and substantial impairment of access is

demonstrated by the fact that southbound traffic on North Main Street is now

forced to travel several blocks to reach the Property. However, as noted by the

supreme court in TPLP Office Park Properties, “[c]losing an access point and

merely causing diversion of traffic or circuity of travel does not result in a



                                          14
compensable taking.” 218 S.W.3d at 66–67; see also State v. Momin Props., Inc.,

409 S.W.3d 1, 8–9 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding

closure of access road at railroad tracks not compensable because closure merely

required traffic to travel more circuitous route to reach gas station or cross railroad

tracks); State v. Bhalesha, 273 S.W.3d 694, 698–99 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) (“A property owner cannot recover damages when traffic is

merely required to travel a more circuitous route to reach his property.”). Thus, the

mere change in the circuity of travel for some of the traffic to the Property does not

constitute a material and substantial impairment of access.

      Further, difficult or inconvenient access during construction does not

constitute a material and substantial impairment of access. See State v. Bristol

Hotel Asset Co., 293 S.W.3d 170, 173 (Tex. 2009). Thus, the temporary closure of

one of the roads abutting the Property during the construction of the North Line did

not constitute a material and substantial impairment of access.             Moreover,

Kosoco’s own representative, Namgoong, testified that there “were no complete

100 percent street closures” during construction.

      Taking as true all evidence favorable to Kosoco, as the non-movant, and

indulging every reasonable inference in its favor, we conclude that Kosoco has not

stated a valid takings claim.      See Gen. Servs. Comm’n, 39 S.W.3d at 599

(dismissing inverse-condemnation claim for want of jurisdiction because



                                          15
allegations did not state takings claim). Because Kosoco has not stated a valid

takings claim, Metro, as a governmental entity, is immune from Kosoco’s suit and

the trial court had no subject matter jurisdiction over the suit. See Jones, 8 S.W.3d

at 638; Guthrie, 332 S.W.3d at 591–92. Accordingly, we hold that the trial court

did not err in dismissing, for lack of jurisdiction, Kosoco’s claims for inverse

condemnation.

      We overrule Kosoco’s first and second issues.

      Having concluded that Kosoco has not alleged a valid takings claim, we do

not reach its third issue, in which it argues that Metro is “constitutionally

responsible for the acts of its contractors performing construction work” because it

knew that certain “acts” would result in a “compensable denial of access to private

property.” See TEX. R. APP. P. 47.1.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Bland, and Brown.




                                         16
