                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00315-CV


VALERIE MANTOS                                                       APPELLANT

                                        V.

CITY OF MANSFIELD                                                      APPELLEE


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          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION1
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      This is an appeal from a summary judgment in favor of appellee the City of

Mansfield in a suit by appellant Valerie Mantos challenging the City’s acquisition

of 105 acres of real property, and subsequent sale of part of that property, on the

ground that the City’s actions violated the Texas Open Meetings Act. Mantos

brings fifteen issues challenging the grounds upon which the City sought

summary judgment. We affirm in part and reverse and remand in part.
      1
       See Tex. R. App. P. 47.4.
                                 Background Facts

        In May 2004, the City bought an approximately 39-acre tract of land in

Mansfield from Stephen and Sally Lockwood; at the same time, the Lockwoods

donated an adjacent 40-acre tract to the City. On the same day, the City also

purchased an adjacent 26-acre tract from Giovanni Homes.              The City was

planning to develop a sports complex on 40 acres of the combined 105 acres.

        After taking bids to sell a 65-acre piece from the larger 105-acre tract, the

City decided to build the sports complex in a different area; thus, it decided to sell

not only the 65 acres but an additional 16 acres to DCB Properties, the bid

winner. The City entered into a purchase agreement with DCB Properties to sell

81 of the 105 acres on February 2, 2005. The parties simultaneously entered

into agreements affecting the remaining 24 acres owned by the City:             (1) a

license agreement allowing DCB Properties to use the northeasternmost 12

acres for drainage purposes and (2) a minimum guaranteed bid agreement in

which DCB agreed that if the City chose to bid the remaining 12 acres (the

Guaranteed Bid Tract), DCB would submit a minimum bid of $3.25 per square

foot.

        The City passed a final ordinance on March 14, 2005 approving the sale.

The closing occurred on May 20, 2005. At closing, DCB assigned its rights as

buyer under the contract to Water Street Development Partners, L.P.

        The City offered the Guaranteed Bid Tract for bid and declared Water

Street Development the winning bidder on March 13, 2006. The City passed a

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final ordinance authorizing the City manager to execute documents necessary to

convey the Guaranteed Bid Tract on April 10, 2006.           But according to the

summary judgment evidence, Water Street Development refused to close under

the contract.

      Also in 2006, the City began working on a proposed economic

development agreement for the 81 acres that it had conveyed to Water Street

Development.     The City eventually entered into an economic development

agreement affecting the property that included $63,000,000 in tax incentives.

      Mantos sued the City on May 1, 2008 contending that all of the

transactions involving the City’s acquisition and subsequent sale of “all or any

part of” the 105-acre tract are void for violations of the Texas Open Meetings Act.

In her second amended petition, she requested a declaratory judgment that (1)

the City’s agendas from May 10, 2004 through August 11, 2008 “were insufficient

to properly apprise the public of the subject matter of its meetings,” (2) the City’s

invocation of exceptions to the Open Meetings Act in executive sessions from

May 10, 2004 to August 11, 2008 “were invalid such that its reliance thereon was

unlawful,” and (3) any actions taken by the City not posted on any agenda are

void. She also requested a writ of mandamus ordering the City “to stop, prevent,

or reverse any and all actions taken in violation of [the Open Meetings Act,]

including but not limited to the acquisition/disposition of the 105-acre land

transaction, or any portion thereof, as well as the development agreement

purporting to grant $63,000,000 in incentives,” and a writ of mandamus ordering

                                         3
the City to immediately release for in camera inspection all agendas or tape

recordings for meetings or executive sessions that Mantos claims were held in

violation of the Open Meetings Act. [Emphasis added.]

      The City moved for summary judgment, alleging that Mantos’s claims as to

the acquisition and subsequent sale and development of the 105-acre tract are

barred because they were validated by section 51.003 of the government code.

Alternatively, the City argued that Mantos’s claims are barred by laches; that

Mantos lacks standing to challenge the constitutionality of the City’s conveyance

of property to a third-party developer; that if Mantos’s claims are not time-barred,

she is limited to challenging only those actions taken by the City Council; that

even if the City’s actions at the January 24, 2005 meeting violate the Open

Meetings Act, the conveyances are not invalid because they were subsequently

ratified by ordinance in open session according to a properly posted agenda; and

that the January 24, 2005 agenda was proper as a matter of law.

      The trial court granted summary judgment to the City but did not specify

the grounds. Because the summary judgment motion did not address Mantos’s

claims about voiding the economic development agreement, the City moved to

sever those claims from the claims about the 105-acre tract. Accordingly, the

trial court severed the economic development agreement claims from Mantos’s

claims “related to [the City’s] acquisition, purchase, sale or other disposition of all




                                          4
or a portion of” the 105-acre tract, thus making the summary judgment final and

appealable.2 [Emphasis added.]

                               Fundamental Error

       In her first issue, Mantos contends that the trial court committed

fundamental error by granting the motion for summary judgment because the

disposition of this litigation “directly and adversely affects the public interest

generally.” Fundamental error exists “in those rare instances in which the record

shows the court lacked jurisdiction or that the public interest is directly and

adversely affected as that interest is declared in the statutes or the Constitution

of Texas.” Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993).

Other than authority about the purpose and important public policy underpinning

the Open Meetings Act, Mantos has cited nothing indicating that summary

judgment is a procedure unavailable to a defendant in an Open Meetings Act

case. See, e.g., Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304

S.W.3d 871, 888–91 (Tex. App.––Austin 2010, pets. denied) (affirming summary

judgment on Open Meetings Act claims). Accordingly, we overrule appellant’s

first issue.

                               Validation Statute

       In her third through fifth issues, Mantos claims the trial court erred by

granting summary judgment on the ground that all of the City’s actions

       2
       See Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz,
P.C., 63 S.W.3d 795, 795 (Tex. 2001).

                                        5
complained of in her petition are validated by section 51.003 of the local

government code.3

      Section 51.003 of the local government code provides as follows:

            (a) 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.

            (b) This section does not apply to:

            (1) an act or proceeding that was void at the time it occurred;

            (2) an act or proceeding that, under a statute of this state or
      the United States, was a misdemeanor or felony at the time the act
      or proceeding occurred; [or]

            ....

            (4) an ordinance that, at the time it was passed, was
      preempted by a statute of this state or the United States, including
      Section 1.06 or 109.57, Alcoholic Beverage Code.

Tex. Loc. Gov’t Code Ann. § 51.003 (Vernon 2008).



      3
       Mantos’s second issue complains that the trial court erred by failing to
sustain her objections to the City’s summary judgment evidence; however,
because our disposition of the third issue would be the same even if the trial
court sustained all of the objections––and because our determination of the
propriety of the summary judgment is based almost entirely on the application of
the law to Mantos’s pleadings––we need not address that issue. See Tex. R.
App. P. 47.1; Reynolds v. Murphy, 188 S.W.3d 252, 259 (Tex. App.––Fort Worth
2006, pet. denied), cert. denied, 549 U.S. 1281 (2007).
                                        6
      The legislature has the power to ratify any act that it had the power to

authorize. City of Murphy v. City of Parker, 932 S.W.2d 479, 481 n.1 (Tex.

1996); City of Alton v. City of Mission, 164 S.W.3d 861, 868 (Tex. App.––Corpus

Christi 2005, pet. denied). “[C]urative statutes are liberally construed only to

effectuate the intent of the legislature in enacting them and not to other ends.”

City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex. 1975); City of

Alton, 164 S.W.3d at 868.

      According to the City, section 51.003 applies without exception to Mantos’s

claims about the sale or disposition of the 105 acres. If none of the exceptions

apply, because Mantos’s suit was filed on May 1, 2008, any act or proceeding of

the City occurring before May 1, 2005 would be conclusively presumed valid.

See Tex. Loc. Gov’t Code Ann. § 51.003.

Acquisition of 105 Acres and Sale of 81 Acres

      The summary judgment record shows that the events leading to the City’s

acquisition of the 105 acres occurred in 2003 and 2004; those transactions

closed on May 12, 2004. The City began reviewing alternate sites for the sports

complex in 2004 and 2005.      The City entered into the contract with DCB in

February 2005 and authorized the sale by final ordinance in March 2005. Thus,

the only event occurring within three years of the date of the filing of Mantos’s

suit was the actual closing of the sale on May 20, 2005.




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      Closing after May 1, 2005

      Mantos contends that because the actual closing occurred after May 1,

2005, the sale of the 81 acres is not validated by section 51.003. However, the

ordinance authorizing the City staff to sign the closing documents was passed on

March 14, 2005. The Open Meetings Act applies to a proceeding or meeting

only if it involves “formal action or deliberation between a quorum of members.”

Beasley v. Molett, 95 S.W.3d 590, 606 (Tex. App.––Beaumont 2002, pet.

denied); see Tex. Gov’t Code Ann. § 551.001(4) (Vernon Supp. 2010), § 551.002

(Vernon 2004). Here, there is no evidence that the closing involved any formal

action or deliberation beyond what had already been authorized in the ordinance,

which is presumed valid by operation of section 51.003 if no exceptions apply.

See City of Cresson v. City of Granbury, 245 S.W.3d 61, 69 (Tex. App.––Fort

Worth 2008, pet. denied).      Accordingly, we will review whether any of the

exceptions apply here.

      Void at time it occurred

      Mantos argues that this first exception applies so that the City’s actions

prior to May 1, 2005 are not validated pursuant to section 51.003(a). See Tex.

Loc. Gov’t Code Ann. § 51.003(b)(1).4 Mantos’s claims, however, are based on

violations of the Open Meetings Act, which are voidable, not void or void ab initio.


      4
       Mantos had the burden to produce summary judgment evidence raising a
fact issue as to any exceptions to the validation statute she contends are
applicable. See Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.––Austin
2010, no pet.).
                                         8
Tex. Gov’t Code Ann. § 551.141 (Vernon 2004); Argyle ISD ex rel. Bd. of

Trustees v. Wolf, 234 S.W.3d 229, 247 (Tex. App.––Fort Worth 2007, no pet.).

Nevertheless, Mantos contends that the City’s actions are void as violative of

chapter 272 of the local government code (the competitive bidding statute),

Article III, section 52 and Article XI, sections 5 and 6 of the Texas Constitution,

the Public Charitable Trust doctrine, the Mansfield City Charter, and sections

3.13 and 12.05 of the penal code. But Mantos provides no argument, authority,

or evidence supporting her contention that the City’s actions violated any of these

provisions such that they are void or otherwise outside the scope of the validation

statute; thus, she has waived any complaint that the City’s pre-May 1, 2005

actions are void for any other reason. See Tex. R. App. P. 38.1(i); Clifton v.

Walters, 308 S.W.3d 94, 99 (Tex. App.––Fort Worth 2010, pet. denied).

Accordingly, we conclude and hold that, as to the City’s acquisition of the 105

acres and subsequent sale of 81 of those acres, the trial court did not err by

granting summary judgment on the ground that those actions were validated by

section 51.003 of the local government code.         We overrule Mantos’s third

through fifth issues as to the complaints in her second amended petition related

to the City’s acquisition of the 105 acres and subsequent sale of the 81 acres.

Contract to Sell Guaranteed Bid Tract

      Mantos filed her second amended petition while the City’s motion for

summary judgment was pending.         In her second amended petition, Mantos

claims that the City violated the Open Meetings Act on March 13, 2006, March

                                        9
27, 2006, and April 10, 2006 by posting insufficient agenda items and by

improperly breaking into executive sessions to discuss matters related to the sale

of the Guaranteed Bid Tract to Water Street Development.             Because these

complained-of actions relate to the “sale or other disposition of all or a portion of”

the 105-acre tract––and because these actions occurred after May 1, 2005 and

thus are not validated by section 51.003––we must determine whether any of the

City’s other grounds for summary judgment are valid as to Mantos’s claims

regarding these actions.

      Laches

      In her sixth and seventh issues, Mantos challenges the summary judgment

on laches grounds. The City claimed that Mantos waited too long to file her suit

and, thus, the City as well as third parties were harmed because they changed

their positions in reliance on the delay.

      Two essential elements of laches are (1) unreasonable delay by one

having legal or equitable rights in asserting them and (2) a good faith change of

position by another to his detriment because of the delay. Rogers v. Ricane

Enters. Inc., 772 S.W.2d 76, 80 (Tex. 1989). In the absence of some element of

estoppel, the doctrine of laches does not bar an action before the statute of

limitations has run. Delta County Levee Improvement Dist. No. 2 v. Leonard, 516

S.W.2d 911, 913 (Tex. 1974), cert. denied, 423 U.S. 829 (1975); Rivera v. City of

Laredo, 948 S.W.2d 787, 793 (Tex. App.––San Antonio 1997, pet. denied).

Mantos filed suit less than two years after the March and April 2006 meetings

                                            10
that she complains of; thus, at least as to those alleged Open Meetings Act

violations, she did not wait an unreasonable amount of time to sue. See Rivera,

948 S.W.2d at 793. We sustain Mantos’s sixth and seventh issues but only as

they relate to Mantos’s claims regarding the City’s March and April 2006 Council

meetings about the sale of the Guaranteed Bid Tract.

         Remaining Grounds for Summary Judgment

         In her eighth through fifteenth issues, Mantos challenges the remaining

grounds upon which the City sought summary judgment.

         First, the City alleged that to the extent Mantos was asserting a taxpayer

standing claim as to the constitutionality of the conveyance of any of the property

to a third party, she had no standing to do so. However, Mantos states in her

brief that there is no such claim in her second amended petition, and the City

agrees. Therefore, summary judgment on the City’s claims related to the sale of

the Guaranteed Bid Tract would not have been proper on that ground.

         The City also argued that to the extent Mantos was complaining about

actions taken that were not posted on any agenda, she could only complain

about City Council actions and not actions by any particular individual or third

party.     Because Mantos’s claims about the March and April 2006 Council

meetings concern allegedly insufficient agenda items and improper executive

sessions, the City’s summary judgment ground regarding actions by parties other

than the City Council as a whole likewise does not apply to those claims.



                                         11
      The City’s remaining grounds for summary judgment apply only to the

January 24, 2005 City Council meeting and were alternative grounds to the

validation statute ground.   Accordingly, they likewise cannot apply to alleged

violations at the March and April 2006 meetings complained of in the second

amended petition. We therefore sustain Mantos’s eighth through fifteenth issues

in part, but solely as to her claims pertaining to the March and April 2006 Council

meetings.

                                   Conclusion

      Having determined that none of the grounds raised by the City support the

trial court’s summary judgment as to Mantos’s claims of alleged Open Meetings

Act violations in the March and April 2006 City Council meetings, and having

sustained her third through fifteenth issues in part as to those claims only, we

reverse and remand the summary judgment solely as to those claims. Having

overruled all of Mantos’s remaining dispositive issues, we affirm the remainder of

the summary judgment as to her complaints about the City’s acquisition of the

105 acres and subsequent sale of 81 of those acres.




                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DELIVERED: February 10, 2011


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