                             Fourth Court of Appeals
                                   San Antonio, Texas
                                        September 5, 2018


                                      No. 04-18-00275-CV

                                  CITY OF MASON, TEXAS,
                                         Appellant

                                                 v.

           William Robin LEE as Trustee of Lee Descendants Trust; William Harold Zesch
            and Amy Daviss Zesch; and Dennis Evans and Kay Evans (Cross-Appellant),
                                            Appellees

                       From the 452nd District Court, Mason County, Texas
                                     Trial Court No. 185789
                       The Honorable Robert Rey Hofmann, Judge Presiding

                                               ORDER

Sitting:         Rebeca C. Martinez, Justice
                 Luz Elena D. Chapa, Justice
                 Irene Rios, Justice

        This is an interlocutory appeal of the trial court’s order partially granting and partially
denying a plea to the jurisdiction. In the underlying lawsuit, appellees alleged claims against the
City of Mason, Texas, City officials, Cathie Tyler, and Jaime Reyes and Mari Heisler-Reyes.
The City appealed the portion of the trial court’s order denying the plea to the jurisdiction as to
the regulatory takings claim against the City. The appellees appealed the portion of the trial
court’s order granting the plea to the jurisdiction as to the other claims asserted against the City
and the City officials.

        In its second supplemental plea, the City noted the appellees settled their claims against
the Reyeses and asserted the settlement “effectively moots all claims relating to the Reyes’s [sic]
plans to build a house on the property and any issues relating to the City’s issuance of a building
permit.” In their response to the City’s plea, the appellees acknowledged they reached a
settlement with the Reyeses (which is included in the clerk’s record filed in this appeal), stating,
“Once this settlement is finalized, the issue over the permit issued to the Reyeses will be moot.
However, the unlawfully approved Minor Plat is still at issue” and “[t]he remaining Tyler
property is also non-compliant with the Ordinance, as was the initial Minor Plat when it was
filed by the City Building Official.”
       In their appellees’ brief, however, the appellees state:

       [T]he Appellees have settled their claims with both the Tyler Defendant and the
       Reyes Defendants. This settlement now makes the Granting of the Appellant’s
       Plea to the Jurisdiction as to Appellees’ Count 1 & Count 2 of their Second
       Amended Petition moot. Accordingly, Appellees will not be submitting a Brief on
       their Cross Appeal and will only be submitting a Brief in response to the
       Appellant’s Brief. Mainly, the propriety of the Denial of the Appellant’s Plea to
       the Jurisdiction regarding Count-3 of the Appellees’ Second Amended Petition, or
       their Regulatory Taking Claim against the City of Mason.

In response to this statement, the City asserts in its reply brief, “Lee’s takings claims against the
City (though never legitimate) are now moot under Appellees’ pleadings because they own the
property in question and any ‘excessive noise, traffic, dusts, water intrusion, unreasonable risk
of fire and other hazards’ come from conditions that Appellees may create, not from anything the
City has done or can do.”

       As the Texas Supreme Court has recently recognized:

       A case becomes moot when there ceases to be a justiciable controversy between
       the parties or when the parties cease to have a legally cognizable interest in the
       outcome. Mootness occurs when events make it impossible for the court to grant
       the relief requested or otherwise affect the parties' rights or interests. A case can
       become moot at any time, including on appeal. When a case becomes moot, the
       court loses jurisdiction and cannot hear the case, because any decision would
       constitute an advisory opinion that is outside the jurisdiction conferred by Texas
       Constitution article II, section 1.

State ex rel. Best v. Harper, No. 16-0647, 2018 WL 3207125, at *2 (Tex. June 29, 2018)
(internal quotations and citations omitted). It is therefore ORDERED that the appellees show
cause in writing no later than two weeks from the date of this order why this court should not
issue an opinion recognizing that their regulatory takings claim is moot and dismissing this
appeal for lack of jurisdiction.

       It is so ORDERED this 5th day of September, 2018.

                                                              PER CURIAM



       ATTESTED TO: _____________________________
                    Keith E. Hottle,
                    Clerk of Court
