Opinion filed February 2, 2012




                                            In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-10-00009-CV
                                       __________

                 CITY OF NEW BRAUNFELS, TEXAS, Appellant

                                              V.

             WWGAF, INC. D/B/A ROCKIN “R” RIVER RIDES,
            TEXAS TUBES, AND CORNER TUBES, INC., Appellees


                          On Appeal from the 207th District Court

                                    Comal County, Texas

                             Trial Court Cause No. C2007-0781B


                           MEMORANDUM OPINION

       We withdraw our former opinion and judgment dated December 22, 2011, and substitute
this opinion and judgment therefor. The City of New Braunfels’s motion for rehearing is denied.
       This appeal stems out of two summary judgment orders entered in favor of appellees.
We affirm in part and reverse and remand in part.
       WWGAF, Inc. d/b/a Rockin ―R‖ River Rides, Texas Tubes, and Corner Tubes, Inc. rent
tubes and ice chests in New Braunfels for use on the Comal and Guadalupe Rivers. Appellees
also provide patrons with shuttle access to and from the rivers’ drop-off and exit points.
Initially, appellees, along with an unincorporated association known as ―Stop The Ordinances
Please‖ (STOP), Gruene Home Run Batting Cages and Tubing, and several individuals, brought
suit against the City of New Braunfels.                  The parties challenged four city ordinances by which
the City prohibited the use of certain containers on the Comal and Guadalupe Rivers and one
ordinance by which the City required the businesses to pay a river management fee.1 The City
filed a plea to the jurisdiction and contested the parties’ standing to assert all of their claims
except for the parties’ challenge to the river management fee. The trial court granted the plea,
dismissed those claims, and severed the challenge to the fee from the dismissed claims. The
businesses appealed the trial court’s dismissal order to the Third Court of Appeals in Austin.
The Third Court affirmed in part and reversed and remanded in part. Stop the Ordinances
Please v. City of New Braunfels, 306 S.W.3d 919 (Tex. App.—Austin 2010, no pet.).
          The businesses were parties to the fee claims; the association and individuals were not.
Although Gruene Home Run Batting Cages later took a nonsuit on the fee claims, and although
Gruene is not a party to this appeal, appellees and Gruene moved for partial summary judgment
on their claim that New Braunfels City Ordinance No. 01-32, entitled ―River Management Fee,‖
was an unconstitutional occupation tax. In the alternative, the parties moved for partial summary
judgment on the ground that the ordinance was void because the City adopted it in violation of
its charter. The trial court granted summary judgment in favor of appellees on both grounds.
          Gruene filed a motion to nonsuit without prejudice, and the trial court granted it. Only
appellees remained as named plaintiffs in the suit.
          Appellees filed a motion for final summary judgment in which they claimed they were
entitled to a refund of the prior fees paid to the City, as well as attorneys’ fees and costs. The
trial court again granted summary judgment in favor of appellees and awarded $419,591.75 to
WWGAF, $145,944 to Texas Tubes, and $247,910.50 to Corner Tubes as refunds of prior fees
paid to the City; prejudgment and postjudgment interest; $148,836 in attorneys’ fees; and
$13,410.05 in costs.
          The City raises five issues on appeal. In its first three issues, the City challenges the trial
court’s order in which the trial court granted partial summary judgment regarding the validity of


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           The parties also sought declarations that the Comal and Guadalupe Rivers are ―navigable streams‖ owned by the State
of Texas and held in trust for the people of the State and that the City ―may not exert its police powers against the State of Texas
or on the state-owned property consisting of the water and riverbeds of the Comal and Guadalupe Rivers as they flow through the
City of New Braunfels.‖

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the fee. In the last two issues, the City challenges the trial court’s order in which it granted
summary judgment on the issue of the fee refund, attorneys’ fees, and costs. First, the City
contends that the appellees’ summary judgment evidence is insufficient to establish that the fee is
an unconstitutional tax as a matter of law. The City also argues that it raised a genuine issue of
material fact regarding the primary purpose of the fee. In its third issue, the City asserts that
appellees failed to challenge the procedural defects of the fee ordinance within the applicable
statute of limitations. Furthermore, the City argues that the trial court erred when it ordered the
City to refund fees paid more than two years before appellees challenged the fee. In its fifth
issue, the City contends that the trial court erred when it ordered the City to pay attorneys’ fees
and costs.
        A trial court must grant a traditional motion for summary judgment if the moving party
establishes that no genuine issue of material fact exists and that the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d
470, 471 (Tex. 1991); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979). The nonmovant is not required to file a response to defeat the movant’s summary
judgment motion; however, once the movant establishes a right to judgment as a matter of law,
the nonmovant must come forward with evidence or law that precludes summary judgment.
Clear Creek, 589 S.W.2d at 678–79. We review a trial court’s grant of summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing
a summary judgment, the appellate court takes as true evidence favorable to the nonmovant. Id.
       We will address each summary judgment separately. In the motion for partial summary
judgment, appellees argued that, although the ordinance was designated as a ―fee,‖ it was actu-
ally a tax because its primary purpose was to raise revenue, not to regulate a business.
Furthermore, appellees asserted that, because the State of Texas had not levied an occupation tax
for using public river exits or for picking up tubers from a public river exit, it was
unconstitutional for the City to levy such a tax. In the alternative, appellees contended that the
ordinance was void because the City did not comply with the requirements of the city charter in
its enactment. Specifically, appellees claimed that the city attorney failed to sign the ordinance
in approval or file objections to the ordinance with the city secretary and that the city secretary
failed to note on the ordinance the dates and medium of its publication.



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       We will first discuss whether the trial court erred when it granted partial summary
judgment in favor of appellees on the ground that the ordinance was void because it did not
comply with the city charter. In passing an ordinance, a city is subject to the provisions of its
charter. Loos v. City of Houston, 375 S.W.2d 952, 956 (Tex. Civ. App.—Houston 1964, writ
ref’d n.r.e.). ―Each act required to be done is essential to the exercise of the jurisdiction, and
each must be rigidly performed. The courts cannot say that the omission of some requirement is
unimportant, or that an act different from that directed is substantially as good.‖ Flewellen v.
Proetzel, 15 S.W. 1043, 1045 (Tex. 1891).
       Appellees attached section 3.10 of the city charter to their motion for summary judgment.
That section provides:
              The City Council shall legislate by ordinance only, and the enacting clause
       of every ordinance shall be, BE IT ORDAINED BY THE CITY COUNCIL OF
       THE CITY OF NEW BRAUNFELS, before any ordinance shall be adopted.

               Each proposed ordinance or resolution shall be introduced in written or
       printed form and shall not contain more than one subject, but general
       appropriation ordinances may contain various subjects and accounts for which
       monies are to be appropriated. All ordinances shall be read in open meeting of
       the City Council on two (2) separate days provided that all readings of any
       ordinance may be by descriptive caption only except that one (1) member of the
       council may require a complete reading of any ordinance upon first reading
       thereof. Any ordinance necessary to protect the public’s peace, health, safety and
       general welfare, may be passed as an emergency and become effective at once
       upon one (1) reading of the City Council, upon the approval of a majority vote of
       the City Council members at said reading.

              The City Attorney shall approve each ordinance in writing or shall file
       with the City Secretary his written legal objections thereto. Every ordinance
       enacted by the City Council shall be signed by the Mayor, Mayor Pro Tem, or by
       two (2) council members, and shall be filed with and recorded by the City
       Secretary before the same shall become effective.

               Except as otherwise provided by law or this Charter, the City Secretary
       shall give notice of the enactment of every penal ordinance and of every other
       ordinance required by law or this Charter to be published, by causing the
       descriptive title or caption of the same to be published at least one time within ten
       (10) days after final passage thereof in some newspaper of general circulation in
       the City. The City Secretary shall note on every ordinance and on the record
       thereof, the dates and medium of its publication, and such notation shall be prima
       facie evidence of compliance with the requirements of this section.



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Appellees also attached the ordinance file obtained from the City in an open records act. This
file shows that the City adopted an ordinance entitled ―River Management Fee‖ on May 14,
2001. Ordinance No. 01-322 provides in part:
          Section 86-99. Public River Exits. Any person, firm, partnership or corporation
          that rents water-oriented recreational equipment for use on the Comal and
          Guadalupe rivers within the city limits of New Braunfels shall pay the City $1.00
          for each rental customer utilizing any public river exit.

                    ....

          Section 86-100. Water Recreation Shuttles. Any City water recreation shuttle
          permit holder shall pay the City $1.00 for each passenger, who is not a rental
          customer, transported from locations on the Comal River and Guadalupe River
          down river from the Gruene Road bridge within the city limits of New Braunfels.

                    ....

          Section 86-102. Penalty. Any person, firm, partnership or corporation failing to
          submit fees and the monthly report by 15 calendar days following each monthly
          reporting period will be prohibited from using any public river exit and will have
          their water recreation shuttle permit suspended until the required reports and fees
          are submitted and accepted by the City Secretary’s Office.

The ordinance was signed by the mayor and city secretary but was not signed by the city attorney
and did not contain any notations made by the city secretary regarding publication.                                           No
objections by the city attorney appear in the ordinance file. Appellees expressly identified these
omissions in their motion for summary judgment and argued that, due to the omissions, the
ordinance was void because it was adopted in violation of the city charter. The summary
judgment evidence was sufficient to show the alleged omissions. Thus, the summary judgment
proof conclusively shows that the City failed to enact the ordinance in compliance with the city
charter.
          Although the nonmovant is not required to file a response to defeat the movant’s
summary judgment motion, once the movant establishes a right to judgment as a matter of law,
the nonmovant must come forward with evidence or law that precludes summary judgment.
          2
           In 2008, the City repealed Ordinance No. 01-32 by enacting Ordinance No. 2008-29. The new ordinance requires
rental companies and shuttle permit holders to collect $1.25 from each of its rental customers or shuttle passengers, if not also a
rental customer, and then remit the collected fees to the City on a monthly basis. Appellees filed a motion for partial summary
judgment challenging the constitutionality of the new ordinance on the same grounds that appellees had challenged the repealed
ordinance. The City filed a plea to the jurisdiction claiming that only the rental customers and shuttle passengers had standing to
challenge the new ordinance. The court granted the City’s plea to the jurisdiction. Ordinance No. 2008-29 is not at issue in this
appeal.

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Clear Creek, 589 S.W.2d at 678–79. Here, the appellees established their right to judgment as a
matter of law. In its response to appellees’ motion, the City did not attach any summary
judgment evidence to raise a fact issue on whether the ordinance complied with the charter. The
City mentioned the allegation that the ordinance was void for failing to comply with the charter
only twice in its response: once to state that appellees had alleged that the City did not comply
with the charter and once to state that the City disputed that allegation. However, the City did
not discuss in any detail why it disputed that allegation, nor did it attach any evidence to raise a
fact issue regarding compliance with its charter.
       On appeal, the City contends that appellees were barred from challenging the validity of
the ordinance more than three years after the ordinance was enacted under Section 51.003(a) of
the Local Government Code and, thus, that the court erred when it granted appellees’ motion for
summary judgment. Section 51.003(a) provides:
              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

                       (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 ANN. § 51.003(a) (West 2008). But the City failed to raise this defense
in its response to appellees’ motion. Rule 166a(c) of the Texas Rules of Civil Procedure
provides: ―Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal.‖ The City argues that it
preserved this argument because it expressly presented its affirmative defense of limitations in its
original answer as well as its motion for new trial. However, ―[p]leadings do not constitute
summary judgment proof.‖ Clear Creek, 589 S.W.2d at 678 (citing Hidalgo v. Sur. Sav. & Loan
Ass’n, 462 S.W.2d 540 (Tex. 1971)). The term ―answer‖ in Rule 166a(c) refers to an answer to a
motion for summary judgment, not an answer filed in response to a petition. Id. ―The written
answer or response to the motion must fairly apprise the movant and the court of the issues the
non-movant contends should defeat the motion.‖ Id. Raising the affirmative defense in an
original answer or in a motion for new trial as the city did here is insufficient to raise a defense to


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the motion for summary judgment. See, e.g., Davenport v. Harrison, 711 S.W.2d 340, 341 (Tex.
App.—Texarkana 1986, no writ) (―Such a pleading fails to present any issue in response to the
summary judgment motion.‖) (citing Toler v. Harbour, 589 S.W.2d 529, 531 (Tex. Civ. App.—
Amarillo 1979, writ ref’d n.r.e)). Thus, if the nonmovant fails to raise an affirmative defense of
limitations in its response to the motion, the argument is waived and cannot be considered as a
ground for reversal on appeal. Rule 166a(c).
        Appellees proved as a matter of law that the ordinance did not comply with the charter
and, thus, was void. The City failed to raise a fact issue or allege any legal defense to appellees’
motion in its response. Therefore, the trial court did not err in granting the motion for partial
summary judgment on the ground that the ordinance was void for failure to comply with the city
charter. We overrule the City’s third issue.
        Because we find that the trial court did not err when it granted appellees’ motion for
partial summary judgment on the ground that the ordinance failed to comply with the city
charter, we do not need to consider whether the trial court erred when it granted the motion on
the ground that the ordinance was an unconstitutional occupation tax. Therefore, we do not
reach Issues One and Two.
        In its fourth and fifth issues, the City contends that the trial court erred when it awarded
appellees a full refund of all river management fees paid from 2001 to 2007 and attorneys’ fees
under the Texas Declaratory Judgments Act. Specifically the City argues that appellees are
barred by the statute of limitations under TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West
Supp. 2011) from receiving a refund of any fees paid prior to two years before appellees filed
suit.
        Appellees alleged in their motion for summary judgment that they were entitled to a full
refund of all fees paid to the City since 2001, the year the City enacted the ordinance. To prove
the amount of fees that each appellee had paid since 2001, appellees attached city records
showing the amounts paid by each appellee for years 2001 to 2007. In addition, appellees
attached an affidavit from a representative of each business swearing to the totals paid by each as
stated in their motion: $145,944 by Texas Tubes; $419,591.75 by WWGAF; and $247,910.50
by Corner Tubes. In its response, the City contended that appellees were barred from receiving a
full refund and were only entitled to a refund for fees paid within two years prior to May 30,
2007, when appellees filed their Second Amended Petition raising the claim that the fee was an

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unconstitutional tax or void for failing to comply with the city charter. We note, however, that
appellees did not seek a refund of the fees until September 14, 2007, when appellees filed their
Fourth Amended Petition.
       The Texas Supreme Court has held that the applicable statute of limitations for pursuing a
refund of a void tax or fee is two years after the day the cause of action accrues. Lowenberg v.
City of Dallas, 168 S.W.3d 800, 801 (Tex. 2005) (per curiam) (citing Section 16.003(a); Lubbock
County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002)). A cause of
action for pursuing a refund of a void tax or fee accrues when payment of the tax or fee is made
to the city. Id. Thus, each payment made to the city is a separate cause of action. Although a
taxpayer is not required to refuse to make payment of a tax in order to receive a refund after the
tax or fee is declared illegal, ―[t]he taxpayer is still responsible for pursuing the adjudication of
the fee or tax in a timely manner.‖ Camacho v. Samaniego, 954 S.W.2d 811, 828 (Tex. App.—
El Paso 1997, pet. denied). The Lowenberg court cited to Camacho as one of several courts that
had also held that the accrual date for a refund claim was from the date the fee was paid.
Lowenberg, 168 S.W.3d at 802 n.1.
       The City raised the statute of limitations defense in its response to appellees’ motion for
summary judgment.       By raising the limitations defense, the City created a fact issue that
precluded the court from granting summary judgment on behalf of appellees. Thus, the trial
court erred when it granted appellees’ motion for summary judgment and ordered the City to
refund all fees paid between the years 2001 and 2007. We sustain the City’s fourth issue.
Because the City did not file a motion for summary judgment conclusively proving its
affirmative defense of limitations, we reverse and remand this portion of the case to allow the
trial court to determine the appropriate refund due under the two-year statute of limitations.
       Because we reverse and remand the portion of the summary judgment order granting a
full refund of all fees paid to the City since 2001, we also reverse and remand the award of
attorneys’ fees and costs so that the trial court can determine the appropriate amount of fees and
costs under the Texas Declaratory Judgments Act that should be awarded with respect to the
revised refund amount. Appellant’s fifth issue is sustained.
       We affirm in part and reverse and remand in part the trial court’s judgment. The portion
of the judgment ordering a full refund of all fees paid by appellees to the City for years 2001 to
2007 and awarding attorneys’ fees and costs is reversed. In all other respects, the judgment of

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the trial court is affirmed. This cause is remanded to the trial court for further proceedings
consistent with this opinion.




                                                         JIM R. WRIGHT
                                                         CHIEF JUSTICE


February 2, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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