                                                                                   ACCEPTED
                                                                              13-15-00494-CV
                                                              THIRTEENTH COURT OF APPEALS
                                                                     CORPUS CHRISTI, TEXAS
                                                                        12/18/2015 1:31:02 PM
                                                                             Dorian E. Ramirez
                                                                                        CLERK

                         NO. 13-15-00494-CV

                    IN THE COURT OF APPEALS FILED IN
                                         13th COURT OF APPEALS
           FOR THE THIRTEENTH DISTRICT  OF
                                      CORPUS TEXAS
                                              CHRISTI/EDINBURG, TEXAS
                  AT CORPUS CHRISTI, TEXAS
                                         12/18/2015 1:31:02 PM
____________________________________________________________
                                           DORIAN E. RAMIREZ
                                                      Clerk

                      THE STATE OF TEXAS,
                          APPELLANT,

                                     v.

           YS & LS & LS PARTNERSHIP, LTD., ET AL.,
                         APPELLEE
___________________________________________________________

           ON APPEAL FROM COUNTY COURT AT LAW 3


                     NUECES COUNTY, TEXAS

____________________________________________________________

                     APPELLEE’S BRIEF
____________________________________________________________

                               Mr. Forrest “Jerry” Dorsey
                               P.O. Box 30084
                               Corpus Christi, TX 78404

                               Christopher Dorsey
                               606 N. Carancahua, Suite 1001
                               Corpus Christi, TX 78401
                               Attorneys for YS & LS & LS Partnership,
                               Ltd.




                                 1
                                         Table of Contents

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 5

Analysis and Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Appelle Properly pleaded inverse condemnation . . . . . . . . . . . . . . . . 7

II. Westgate’s exception applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                      2
                                         Index of Authorities


Cases


Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 640-641 (Tex.
App.--Houston [1st Dist.] 1999, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 8

City of Austin v. Teague, 570 S.W.2d 389, 393-94 (Tex. 1978) . . . . . . . . . 10

Davis v. City of Palestine, 988 S.W.2d 854, 858-859 (Tex. App.--Tyler 1999,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

General Services v. Little-Tex. Insulation, 39 S.W.3d 591, (Tex. 2001) . . 7

Harris County Flood Control Dist. v. Adam, 56 S.W.3d 665, 669-670 (Tex.
App.--Houston [14th Dist.] 2001, pet. dism'd w.o.j.). . . . . . . . . . . . . . . . . . 8

Porretto v. Patterson, 251 S.W.3d 701, 707-710 (Tex. App.--Houston [1st
Dist.] 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Brownlow, 319 S.W.3d 649, 652 (Tex. 2010) . . . . . . . . . . . . . . . . 7

State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) . . . . . . . . . . . . . . . . . 7

Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 551-554 (Tex.
2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Texas S. Univ. v. Cape Conroe Property Owners Ass'n, 245 S.W.3d 626,
630-632 (Tex. App.--Beaumont 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . 8

Westgate, Ltd. v. State of Texas, 843 S.W.2d 448 (Tex. 1992) . . . . . 6, 9, 10




                                                        3
                         Summary of the Argument

    Appellee properly pleaded intentional and bad faith acts by the State to

affirm the trial court’s denial of the plea to jurisdiction. The State’s primary

case provides an exception for intentional and bad faith acts by the State

instead of merely unreasonable acts.




                              Issue Presented

1. Whether YS & LS & LS Partnership, Ltd.’s claims for damages and
other relief in its Counterclaim are barred by Texas’s sovereign immunity.




                                       4
                              NO. 13-15-00494-CV

                    IN THE COURT OF APPEALS
           FOR THE THIRTEENTH DISTRICT OF TEXAS
                  AT CORPUS CHRISTI, TEXAS
____________________________________________________________

                           THE STATE OF TEXAS,
                               APPELLANT,

                                           v.

           YS & LS & LS PARTNERSHIP, LTD., ET AL.,
                         APPELLEE
___________________________________________________________

              ON APPEAL FROM COUNTY COURT AT LAW 3


                          NUECES COUNTY, TEXAS


TO THE HONORABLE COURT OF APPEALS:

      Appellee, YS & LS & LS Partnership, Ltd., submits this brief

requesting that this Honorable Court affirm the trial court’s denial of the

State’s plea to the jurisdiction.

                              Statement of Facts

    The State filed its Original Petition for Condemnation on October 13,

2013 with the interested parties as YS & LS & LS Partnership, Ltd

(Appellee), Compass Bank, and First Victoria National Bank.            (Clerk’s



                                       5
Record, hereinafter “CR”, at 5). The Special Commissioners appointed by

the trial court held a hearing and awarded $150,000 in damages, compared

to the State’s last offer of $34,1000. (CR 77, 109). The State objected to

the award. (CR 74-76).

    In response, Appellee filed a Verified Original Answer, Plea in

Abatement, and Counterclaim on July 17, 2014.         (CR 77-84). Appellee

alleges that the State’s acts “constitute an intentional damaging or taking of

the property . . .in that the State had actual knowledge of the damage or

taking and that harm would be substantially certain to occur.”       (CR 81,

Counterclaim).

    In response, the State filed a plea to the jurisdiction (87-92) and an

amended petition, the current live pleading for the State, removing

Compass Bank from the Petition and attempting to substitute Prosperity

Bank for First Victoria National Bank (CR 95-104).          Prosperity Bank

answered with a general denial and requested that Plaintiff “take

nothing.” (CR 106-108).

    The State then filed a Supplement to its plea to the jurisdiction,

alleging simply that Appellee’s pleadings are “not recognized as

recoverable under Texas law.” (CR 113, citing Westgate, Ltd. v. State of


                                      6
Texas, 843 SW2d 448, 454 (Tex. 1992)). The State based its plea to the

jurisdiction on the pleadings only and did not attach any evidence to

support its claim. (Id.). (See also CR 87-92, Plea to Jurisdiction). Appellee

filed a response. (CR 116-121) and, after a non-evidentiary hearing, the

trial court denied the State’s motion on September 24, 2015. (CR 122).

                       ANALYSIS AND ARGUMENT

A. APPELLEE PROPERLY PLEADED INVERSE CONDEMNATION

     Without offering any evidence and relying solely on the pleadings, the

State claims the inverse condemnation or taking counterclaim is barred by

sovereign immunity.    (CR 87-92, 113). However, sovereign immunity from

suit does not protect the State from a claim under the takings clause. State

v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). See also State v. Brownlow,

319 S.W.3d 649, 652 (Tex. 2010).

     A pleading asserting an unlawful taking of private property must

allege that (1) the State intentionally performed certain acts (2) that

resulted in a "taking" of property (3) for public use. General Services v.

Little-Tex. Insulation, 39 S.W.3d 591, 598 (Tex. 2001).    In a similar case,

the trial court properly denied plea to jurisdiction because even if plaintiff

alleged mere negligence rather than intent, that pleading failure could be

corrected by amendment. Harris County Flood Control Dist. v. Adam, 56


                                      7
S.W.3d 665, 669-670 (Tex. App.--Houston [14th Dist.] 2001, pet. dism'd

w.o.j.). See also Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637,

640-641 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (dismissal for

lack of jurisdiction was error when failure to plead intent was curable by

amendment); Davis v. City of Palestine, 988 S.W.2d 854, 858-859 (Tex.

App.--Tyler 1999, no pet.) (summary judgment on inverse condemnation

claim was improper even though plaintiff's pleadings were inartful and

defective in pleading element of intent because city did not specially except

and summary judgment proof did not negate city's intent).

      Here, Appellee pleaded that (1) it is the owner of property in Nueces

County; (2) the State’s acts “constitute an intentional damaging or taking of

the Property” and that the State had actual knowledge of the damage or

taking and that the harm would be substantially certain to occur; and (3)

“these acts by the State were intended for public use.”            (CR 80-81,

Counterclaim for Inverse Condemnation).

      These pleadings are sufficient to confer subject-matter jurisdiction on

the trial court.   Though a plaintiff must plead and ultimately prove the

requisite governmental intent, an allegation of that intent is sufficient at the

pleading stage to survive the government's plea to the jurisdiction. Texas

S. Univ. v. Cape Conroe Property Owners Ass'n, 245 S.W.3d 626, 630-632

(Tex. App.--Beaumont 2007, no pet.) (allegations that defendant

                                       8
"obstinately" refused to pay assessments on real property were sufficient to

state takings claim). Allegation that government conveyed lease on land

owned by plaintiff was allegation of intentional act and was sufficient to

state takings claim, so trial court improperly granted plea to jurisdiction.

Porretto v. Patterson, 251 S.W.3d 701, 707-710 (Tex. App.--Houston [1st

Dist.] 2007, no pet.).

      The requisite intent to take the property is present when a

governmental entity knows that specific acts are causing identifiable harm,

or knows that the harm is substantially certain to result from those acts.

Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 551-554 (Tex.

2004). Here, Appellee has properly pleaded the State knew the specific

acts were causing identifiable harm or knew the harm is substantially

certain to result from those acts. (CR 81).

II.   WESTGATE’S EXCEPTION APPLIES

      In its pleadings and Brief, the State almost exclusively relies on a

single case in support of its plea to the jurisdiction- Westgate, Ltd. v. State

of Texas, 843 S.W.2d 448, 454 (Tex. 1992).          The Westgate exception

applies to the pleadings here.

      The Westgate opinion provided an exception to the general rule when

the government acts intentionally or in bad faith.       The Westgate court

stated, “Westgate's legal theory in the trial court and on appeal has been

                                      9
that the government acted unreasonably, not that the government acted in

bad faith in delaying the condemnation proceedings. The policy reasons

that support our decision today might not be applicable where the

condemning authority is accused of intentionally injuring a landowner. As

the issue is not before us, however, we do not now address whether a

landowner may state a cause of action for inverse condemnation where the

condemning authority acts in bad faith to cause economic damage to the

landowner.”   Westgate, 843 S.W.2d at 452 (emphasis added).        In other

words, Westgate argued negligence, not intentional acts by the

government, as is the case here.

     In the case at hand, Appellee has pleaded intentional acts by the

State, not mere negligence or unreasonable delays. (CR 81). Accordingly,

Westgate supports a finding against the State’s plea to the jurisdiction

based on the pleadings alone.            Where courts have found direct

governmental actions in which the governmental defendant had regulatory

authority over the matter causing the plaintiff's harm, they have generally

found a taking. See, e.g., City of Austin v. Teague, 570 S.W.2d 389, 393-94

(Tex. 1978). Those cases generally involve current, direct restrictions on

the property and may be combined with facts tending to show bad faith.

See, e.g., Westgate, 843 S.W.2d at 452, 454; see also Teague, 570 S.W.2d

at 393.

                                    10
      Here, the State Department of Transportation had direct regulatory

authority over the condemnation proceedings and, combined with its

intentional acts, supports jurisdiction in this case.

                                    PRAYER

      Appellee respectfully prays that the Honorable Court affirm the trial

court’s denial of the State’s plea to the jurisdiction.

                                      Respectfully submitted,


                                      By:_/s/ Jerry Dorsey_______

                                      Mr. Forrest “Jerry” Dorsey
                                      Attorney at Law
                                      Texas Bar No. 0601600
                                      P.O. Box 30084
                                      Corpus Christi, TX 78404
                                      Tel: (361) 882-6547
                                      Fax: (361) 882-2769

                                      Christopher Dorsey
                                      Texas Bar No. 24036493
                                      606 N. Carancahua, Suite 1001
                                      Corpus Christi, TX 78401
                                      Tel. (361) 882-9991
                                      Fax. (866) 926-1982
                                      Attorneys for YS & LS & LS Partnership,
                                      Ltd.




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                    CERTIFICATE OF COMPLIANCE

        Pursuant to Texas Rule of Appellate Procedure 9.4, I certify this

Appellee Brief contains 1,610 total words. This is a computer-generated

document created in Pages, using 14-point typeface for all text, except

footnotes which are in 12-point typeface (if any). In making this certificate

of compliance, I am relying on the word count provided by the software

“Pages” used to prepare the document.

                                   _/s/ Christopher Dorsey____________
                                   CHRISTOPHER A. DORSEY




                           Certificate of Service

      I certify that a true copy of the above was served on each attorney of
record or party in accordance with the Texas Rules of Civil Procedure on
December 18, 2015.

                                   _/s/ Christopher Dorsey____________
                                   CHRISTOPHER A. DORSEY




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