      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00232-CV



                                    City of Austin, Appellant

                                                 v.

    Harry M. Whittington; Mercedes B. Whittington; Mercedes Gregg f/k/a Mercedes
 Whittington, Individually and as Trustee of the Margaret Lynn Puckett 1989 Trust, the
Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael
   Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William
Tyndale Puckett, Jr. 1989 Trust; Sally Whittington May, Individually and as Trustee of the
 Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline
     Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille
   Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust; and
Margaret Whittington Puckett, Individually and as Trustee of the Margaret Lynn Puckett
 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989
Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and
                 the William Tyndale Puckett, Jr. 1989 Trust, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
        NO. GN302752, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this case, we are being asked to address a district court’s declaratory judgment

interpreting the judgment of a county court that has been reversed and remanded for completion of

trial. The City of Austin (the “City”) attempted to condemn property owned by Harry Whittington

and the other individuals listed in the style of this case (the “Whittingtons”). A condemnation

proceeding was conducted in a county court at law, and the City obtained title to the property listed

in its resolution. That judgment was later reversed on appeal. Prior to the reversal of the judgment,
the Whittingtons filed a declaratory judgment action in district court and obtained declarations

regarding the effect of the county court’s judgment. However, because the county court’s judgment

was not final when the declaratory judgment action was filed, the declaratory judgment action was

not ripe. Accordingly, we vacate the district court’s judgment and dismiss the appeal due to a

lack of ripeness.


                                         BACKGROUND

               Harry Whittington obtained title to a city block in downtown Austin in 1981 and later

conveyed the property to various trusts benefitting his family. The property consists of eight lots:

four on the north side of the property and four on the south side. The lots are separated by a twenty-

foot wide strip running down the middle of the block.

               In 2001, the City initiated efforts to obtain the property. As part of this effort, the

Austin City Council passed a resolution stating that the Whittingtons’ property “Lots 1-8, inclusive,

Block 38 . . . in the City of Austin . . . should be acquired for public use.” Because the Whittingtons

contested the condemnation, the matter was transferred to a county court for trial. See Tex. Prop.

Code Ann. §§ 21.001 (“District courts and county courts at law have concurrent jurisdiction in

eminent domain cases.”), .012 (condemning entity may begin condemnation proceeding by filing

petition in proper court) (West 2004). In county court, the City filed a motion for partial summary

judgment contending that it had proved, as a matter of law, all the elements necessary to condemn

the property. Two of the elements that must be proved are that the condemnation is for a public use

and that the condemnation is necessary to achieve the public use. See Whittington v. City of Austin,

174 S.W.3d 889, 896 (Tex. App.—Austin 2005, pet. denied); see also Tex. Const. art. I, § 17

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(“No person’s property shall be taken, damaged or destroyed for or applied to public use without

adequate compensation being made . . . .”) (emphasis added).

                  The county court granted the motion for partial summary judgment, and a trial was

conducted regarding the amount of compensation. During the trial, the Whittingtons argued that the

City’s description of the property to be condemned did not include the twenty-foot strip in the middle

of the block and insisted that the City would have to address that issue if it also wanted to obtain title

to the strip. Ultimately, the jury awarded the Whittingtons $7,750,000 as compensation for the

condemnation.1 The final judgment specified that the City obtained title to the property described

in its condemnation petition. However, the county court, recognizing its lack of authority to decide

matters regarding title, stated in its judgment that it made no determination regarding whether the

City’s description included the “twenty-foot strip of land separating Lots 1-4 and Lots 5-8.”

See Tex. Prop. Code Ann. § 21.002 (West 2004) (county court may not decide issues of title).

                  The Whittingtons appealed, arguing that the county court’s summary judgment was

improper because the City had no authority to condemn the property. Specifically, they asserted that

the City did not conclusively establish as a matter of law that the condemnation was necessary or that

the condemnation was for a valid public purpose. This Court agreed and reversed and remanded the

case back to the county court for a trial on the merits regarding whether the City had the authority

to condemn the Whittingtons’ property. Whittington, 174 S.W.3d at 900-01, 904, 906. The trial on

remand has yet to occur.




        1
            The description of the property condemned mirrored the City’s description in its resolution.


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               Shortly before appealing the county court’s judgment, the Whittingtons filed a

declaratory judgment action in district court. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011

(West 1997 & Supp. 2006) (declaratory judgment actions). The Whittingtons, pleading their case

as if the county court judgment was a final judgment, asked the district court to interpret the county

court’s judgment and determine whether the City obtained title to the twenty-foot strip as a result of

the judgment. In their petition, the Whittingtons asserted that as a result of the condemnation

proceeding:


        the City obtained fee simple title to Lots 1-8, inclusive, Block 38, of the Original
        City of Austin. The City did not seek or obtain title to the 20-foot strip separating
        Lots 1-4 from Lots 5-8. . . . The Whittingtons thus continue to own in fee simple
        the 20-foot strip of land through the center of Block 38 . . . . A controversy thus
        exists between the City and the Whittingtons requiring judicial resolution.


               The Whittingtons requested the following declarations in their petition:


       18. Pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code, the
       Whittingtons respectfully request judgment declaring, under the deed attached as
       Exhibit A and the 1929 Act, that the Whittingtons are the owners in fee simple of the
       20-foot strip of land running across the center of Block 38 of the Original City of
       Austin, as depicted on the plat on file with the General Land Office.

       19. In the alternative, the Whittingtons respectfully request judgment declaring that
       the City of Austin has abandoned, or is estopped from asserting, any right and title
       to the 20-foot strip of land running across the center of Block 38 of the Original City
       of Austin, as depicted on the plat on file with the General Land Office, and that the
       Whittingtons are therefore the owners in fee simple of said land under the deed
       attached as Exhibit A.

       20. In the further alternative, the Whittingtons respectfully judgment [sic] declaring,
       under the deed attached as Exhibit A, that the Whittingtons are the owners in fee
       simple of the 20-foot strip of land running across the center of Block 38 of the
       Original City of Austin, as depicted on the plat on file with the General Land Office,

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       because their predecessors in title acquired title by limitations through possession,
       use, and enjoyment of the 20-foot strip for a period of ten years prior to 1939 that was
       exclusive and adverse to any claim by the City to the 20-foot strip.


               In response, the City filed an answer arguing that the Whittingtons’ declaratory

judgment action was not ripe for adjudication because the Whittingtons were appealing the county

court’s condemnation judgment and that “the disposition of the condemnation proceeding on appeal

shall, in all likelihood, render this cause of action moot.” The City also filed a counterclaim asking

the court to declare, among other things, that it obtained title to the entire block in the condemnation

proceeding.

               In its final judgment, the district court made the following declarations:


       (1) [The Whittingtons] are owners in fee simple of the 20-foot strip of land separating
       lots 1-4 and 5-8 of Block 38, . . . .

       (2) There is no public easement across the 20-foot strip of land . . . .

       (3) [The City] has no right, title, or interest in the 20-foot strip . . . .

       [(4)] [The City] did not condemn the entirety of Block 38 in [the county court
       condemnation proceeding], and the legal description in the Final Judgment did not
       include the 20-foot strip . . . .

       [(5)] The [county court’s reservation of judgment] in such Final Judgment is a
       meaningful and proper reflection of the limited jurisdiction of the [county court], is
       an express reservation of a legal issue, and is not mere surplusage . . . .

       [(6)] The [county court’s] Final Judgment . . . is not void or fraudulent.

       [(7)] [The Whittingtons’] causes of action in [the district court] is not a collateral
       attack upon the Final Judgment in the [county court].




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In addition, the district court awarded the Whittingtons $197,000 in attorney’s fees: $102,000 for

fees incurred during the proceeding in district court, $45,000 for an appeal to this Court, $20,000 if

either party appeals to the supreme court, and an additional $30,000 if the supreme court grants

review. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997) (court may award attorney’s

fees in declaratory judgment action).

                The City appeals the judgment of the district court.


                                            DISCUSSION

                The City raises two issues on appeal. First, it argues that the district court erred when

it declared that the City does not own the twenty-foot strip. In raising this issue, the City essentially

asks this Court to interpret the county court’s judgment and determine whether the strip would have

been included in the condemnation if the county court’s judgment had not been reversed. Second,

the City contends that the attorney’s fee award should be reversed. Because the county court’s

judgment was not final, we conclude that the district court did not have jurisdiction to issue

declarations regarding the interpretation and effect of the county court’s original judgment and

should have dismissed the case.

                The Uniform Declaratory Judgment Act (“UDJA”) allows a claimant to petition the

court for a declaration regarding his or her rights under a written instrument. See Tex. Civ. Prac.

& Rem. Code Ann. § 37.004(a) (West 1997). The UDJA does not expand the scope of a trial court’s

subject matter jurisdiction but merely authorizes a court “to declare rights, status, and other legal

relations” when subject matter jurisdiction is already present. Tex. Civ. Prac. & Rem. Code Ann.

§ 37.003(a) (West 1997) (court may act “within its jurisdiction”); Texas Ass’n of Bus. v. Texas Air

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Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). In order for a court to issue a declaratory judgment,

there must be a “justiciable controversy as to the rights and status of” the parties, and the requested

declaration “must actually resolve the controversy.” Brooks v. Northglen Ass’n, 141 S.W.3d 158,

163-64 (Tex. 2004). “A justiciable controversy is one in which a real and substantial controversy

exists involving a genuine conflict of tangible interests and not merely a theoretical dispute.” Texas

Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.—Austin 1998, no pet.).

                Ripeness is a necessary component of subject matter jurisdiction. Atmos Energy

Corp. v. Abbott, 127 S.W.3d 852, 857 (Tex. App.—Austin 2004, no pet.); see also Aguilar v. Weber,

72 S.W.3d 729, 731 (Tex. App.—Waco 2002, no pet.) (subject matter jurisdiction may be addressed

for first time on appeal, and court may make this inquiry on its own accord). The requirement that

a claim be ripe for review is based on the prohibition against courts’ issuing advisory opinions.

Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998); see also Tex. Const. art. II, § 1

(separation of powers); Northglen Ass’n, 141 S.W.3d at 164 (separation of powers provision bars

issuance of advisory opinions). A claim is ripe if the facts involved demonstrate that “an injury has

occurred or is likely to occur.” Patterson, 971 S.W.2d at 442. In other words, there must be a

concrete injury for the claim to be ripe. See Atmos Energy Corp., 127 S.W.3d at 858. A claim is

not ripe if it is based on hypothetical or contingent facts that may not occur as anticipated or may not

occur at all. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000).

                By requiring a concrete injury, the ripeness doctrine prevents a claim from being

prematurely adjudicated. See Patterson, 971 S.W.2d at 442. In addition to considering the

timeliness of the case, a court must also consider whether it should decide the issue and not simply



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whether it can decide the issue when determining if a claim is ripe.               Perry v. Del Rio,

66 S.W.3d 239, 249-50 (Tex. 2001); Atmos Energy Corp., 127 S.W.3d at 857. When making this

decision, courts must consider (1) the fitness of the issues for judicial decision and (2) the hardship

occasioned to a party by the court’s denying judicial review. Perry, 66 S.W.3d at 250.

                A plaintiff has the burden to affirmatively demonstrate the trial court’s subject matter

jurisdiction over the case. Texas Ass’n of Bus., 852 S.W.2d at 446. The Whittingtons requested a

declaration that they own the 20-foot strip in fee simple, arguing three different theories in their

petition. A controversy concerning whether the Whittingtons owned the strip in fee simple only

existed because of the county court’s judgment.

                Six of the seven declarations obtained, by their terms, are inextricably tied to the

county court’s original judgment in the condemnation proceeding. When viewed in light of the

parties’ petitions, which tie the existence of a live controversy to the condemnation proceeding, the

seventh, whether there exists a public easement across the strip, was also issued solely in response

to the county court’s judgment.2 However, the declaratory judgment action at issue was filed in the

district court prior to the deadline for filing an appeal from the county court’s judgment. See Tex. R.

App. P. 26.1 (time to perfect appeal in civil cases). In addition, it was the Whittingtons who initiated

both the declaratory judgment action and the appeal from the county court’s judgment. By filing the


        2
          Additionally, the easement issue was not raised by the Whittingtons’ petition, which asked
only for a declaration that the Whittingtons own the strip in fee simple. The issue was only arguably
tried by consent during a trial that never should have occurred because the pleadings did not confer
subject matter jurisdiction on the trial court. Subject matter jurisdiction “exists by operation of law
only, and cannot be conferred upon any court by consent.” Dubai Petroleum Co. v. Kazi, 12 S.W.3d
71, 76 (Tex. 2000) (quoting Federal Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598,
600 (Tex. 1943)).

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declaratory judgment action, the Whittingtons essentially asked the district court to construe the

judgment rendered in the county court even though that judgment was not final. The validity of the

district court’s declarations was necessarily contingent on the judgment’s being affirmed on appeal

in all respects. As a result, the Whittingtons’ declaratory judgment action was not ripe when filed.

               Because the county court’s judgment was reversed and because a trial on the merits

has not yet commenced, the Whittingtons currently have title to the entire property. See In re S.S.G.,

No. 07-04-0496-CV, 2006 Tex. App. LEXIS 1544, *6 (Tex. App.—Amarillo Feb. 27, 2006, pet.

denied) (designated for publication) (effect of reversal is to nullify trial court’s judgment, “leaving

it as if it had never been rendered”); Culligan Soft Water Service v. State, 385 S.W.2d 613, 615

(Tex. Civ. App.—San Antonio 1964, writ ref’d n.r.e.) (until court makes decree, title is not

transferred to condemning authority). Given that the district court’s declarations are specifically

limited to the now nonexistent county court judgment, there is no justiciable controversy for this

Court to resolve.

               Despite the reversal of the county court’s condemnation judgment, the parties ask this

Court to issue an opinion to aid in a future condemnation proceeding. We decline the parties’

invitation to issue what amounts to an impermissible advisory opinion.

               Any opinion by this Court regarding whether the strip would be included in a

condemnation proceeding would amount to an impermissible advisory opinion because it would be

based on hypothetical or contingent facts. See Perry, 66 S.W.3d at 249 (claim not ripe if involves

“uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at

all.”). First, although the original county court’s judgment was reversed and remanded for a trial on



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the merits, there is no guarantee that a trial will actually occur. The City may abandon its attempts

to condemn the property, or the parties may settle their dispute prior to trial.

               Second, it is unclear whether an opinion by this Court concerning a county court

judgment that no longer exists would have any binding effect on a future judgment. Our opinion

would arguably have an effect only if certain contingencies were met. For example, the City would

have to prevail in a future trial on the merits. In other words, a future judgment would have to

confirm that the City has the authority to condemn the property. If the Whittingtons ultimately

prevail on this issue, meaning that a judgment is entered stating that the City does not have the

authority to condemn the property, then the issue of whether the City acquired title to the twenty-foot

strip by condemnation would be moot. Moreover, the validity of the judgment would also depend

on the use of an identical condemnation description in the future trial. If the description is not

identical to the one originally used in the county court, then the construction of the county court’s

judgment would have no effect on the subsequent judgment.

               By asking this Court to address the merits of the case, the parties have asked us to

engage in an impermissible short-cut through the appellate process. This we cannot do. Any

hardship to the parties resulting from this Court’s failure to address the issues on appeal only

amounts to a requirement that the parties go through the normal appellate process: a burden equally

imposed on all litigants. Although the parties may still quarrel over whether the City can condemn

the property, that dispute is not before us today.

               For all the reasons previously given, we conclude that the Whittingtons’ claims

regarding the county court’s original judgment in the condemnation proceeding were not ripe when



                                                  10
the Whittingtons filed this declaratory judgment action. Therefore, we conclude that the district

court did not have jurisdiction to issue its judgment. Because the district court did not have

jurisdiction over these claims, we vacate the district court’s judgment and dismiss the case. Tex. R.

App. P. 43.2(e); see also City of Keller v. Wilson, No. 2-00-183-CV, 2007 Tex. App. LEXIS 1459,

*23 (Tex. App.—Fort Worth Mar. 1, 2007, no pet. h.) (because trial court lacked jurisdiction, court’s

judgment must be vacated). Accordingly, we do not reach the issues raised by the City.




                                      David Puryear, Justice




Before Chief Justice Law, Justices Puryear and Henson

Vacated and Dismissed for Want of Jurisdiction

Filed: April 26, 2007




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