Opinion issued May 1, 2014




                                   In The

                             Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                             NO. 01-08-00179-CV
                        ———————————
  ANGELA MAE BRANNAN, INDIVIDUALLY AND AS INDEPENDENT
     EXECUTRIX OF THE ESTATE OF BOB ALBERT BRANNAN,
DECEASED, BROOKS PORTER, MARY PORTER, RUSSELL CLINTON,
INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE
 OF ELIZABETH CLINTON, DECEASED, JUDY CLINTON, REG APLIN
 AND BEAVER APLIN, PARTNERS D/B/A BENCHMARK DEVEOPING,
  LOUISE BULLARD, DUANE LOGGINS CLARK, JOSEPH CORNELL
    DEWITT, LISA MARIE DEWITT FUKA, MACARIO RAMIREZ,
  CHRISSIE DICKERSON, JEFFREY DYMENT, MARVIN JACOBSON
 FAMILY HOLDING COMPANY, CATHY T. CHARLES, JAMES MEEK,
 PATRICIA MEEK, MARK PALMER, JAMES C. PURSLEY, PATRICIA
    PURSLEY, KENNETH C. REUTZEL, ANDREA REUTZEL, S&S
HOLDINGS, LLC, ROGERS THOMPSON, EXECUTOR OF THE ESTATE
              OF P.E. KINTZ, DECEASED, Appellants
                                     V.
THE STATE OF TEXAS, THE VILLAGE OF SURFSIDE BEACH, MAYOR
    LARRY DAVISON, AND SURFRIDER FOUNDATION, Appellees
                     On Appeal from the 239th District Court
                            Brazoria County, Texas
                          Trial Court Case No. 15802


                           MEMORANDUM OPINION

      This is a beach-access dispute involving application of the Texas Open

Beaches Act (OBA) to the appellants’ beach houses on Pedestrian Beach in

Surfside after storms moved the vegetation line landward of the houses. TEX. NAT.

RES. CODE ANN. §§ 61.001 – .254 (Vernon 2011 & Supp. 2013). After the

Supreme Court of Texas decided Severance v. Patterson, 370 S.W.3d 705 (Tex.

2012), the court vacated this court’s prior judgment and remanded the case for

reconsideration.

      In a new round of briefing, the appellants now argue that they are entitled to

judgment that the State committed an unconstitutional taking of their property

without just compensation, an award of damages, and an injunction against

enforcement of a public easement. In response, the State concedes that the

previously entered summary judgment must be reversed in light of Severence, but

argues that additional arguments are still available to it in light of the unavailability

of its previously asserted rolling-easement theory of the case. The State therefore

contends that a remand to the trial court is necessary for further proceedings.

Appellees the Village of Surfside Beach and Mayor Larry Davison ask us to render


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judgment in their favor or, alternatively, remand to the trial court for further

development of the record. Intervenor Surfrider Foundation did not previously

participate in this appeal, but now has filed a brief arguing that we should interpret

Severance narrowly, and that “factual determinations are needed before any

judgment may be made on” the property owners’ takings claim.

      Following a holding that there is error in the trial court’s judgment, remand

to the trial court in the interest of justice is appropriate in several situations,

including when (1) “we overrule existing precedents on which the losing party

relied at trial,” (2) “it appears from the record that the losing party might be able to

recover under some other established legal theory that was not developed at the

first trial,” and (3) on appeal, “we announce a new standard of recovery in the case

under consideration.” Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992).

“As long as there is a probability that a case has, for any reason, not been fully

developed, an appellate court has discretion to remand for a new trial. . . .” Ahmed

v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

(citing Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex.

App.—Houston [1st Dist.] 2008, no pet.)). “Moreover, remand is appropriate if a

case needs further development because it was tried on an incorrect legal theory or

to establish and present evidence regarding an alternate legal theory.” Id.




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      The parties focused their summary-judgment briefing and arguments in the

trial court on the state of the law before Severance clarified the law as it relates to

public-beach access and expressly rejected the rolling-easement theory when the

vegetation line is altered by an avulsive event. We conclude that the factual record

and legal arguments are not sufficiently developed to facilitate a complete review

of the parties’ competing claims under the appropriate Severance analysis.

      Accordingly, we reverse the trial court’s grant of summary judgment in

favor of the State on the rolling-easement theory, and remand to the trial court for

reconsideration of the parties’ claims guided by the principles announced in

Severance.

                                   PER CURIAM




Panel consists of Chief Justice Radack and Justices Massengale and Huddle.




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