                                                                          ACCEPTED
                                                                      01-13-00865-CV
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                 7/22/2015 2:57:39 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK

                 NO. 01-13-00865-CV

                                                     FILED IN
        IN THE FIRST COURT OF APPEALS         1st COURT OF APPEALS
                                                  HOUSTON, TEXAS
                HOUSTON, TEXAS
                                              7/22/2015 2:57:39 PM
                                              CHRISTOPHER A. PRINE
                                                      Clerk
                DARRELL CHURCH,
                                       Appellant,
                          v.

              CITY OF ALVIN, TEXAS,
                                        Appellee.

     On Appeal from the County Court At Law No. 2
                Brazoria County, Texas
                  Cause No. CI047129

RESPONSE TO APPELLANT’S MOTION FOR REHEARING


                               OLSON & OLSON, L.L.P.

                               Patricia L. Hayden
                               State Bar No. 09269200
                               PHayden@OlsonLLP.com
                               John J. Hightower
                               State Bar No. 09614200
                               JHightower@OlsonLLP.com
                               Wortham Tower, Suite 600
                               2727 Allen Parkway
                               Houston, Texas 77019
                               Telephone: (713) 533-3800
                               Facsimile: (713) 533-3888

                               ATTORNEYS FOR APPELLEE,
                               CITY OF ALVIN, TEXAS
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ..................................................................................................2

INDEX OF AUTHORITIES ..............................................................................................3

ARGUMENT .................................................................................................................4

I.       Court’s Holding is not Based on the “Mistaken Factual Finding” .................. 4

II.      Church Misunderstands the Elements of an Impaired Access Inverse
         Condemnation Claim .......................................................................................6

III.     Uncontroverted Facts Demonstrated that Church’s Access is not Materially
         and Substantially Impaired .............................................................................. 7

IV.      Court did not “Misplace” the Standard of Review .......................................... 9

V.       Court Correctly Decided the Case .................................................................11

CONCLUSION .............................................................................................................12

CERTIFICATE OF COMPLIANCE ..................................................................................14

CERTIFICATE OF SERVICE ..........................................................................................14




                                                            2
                                   INDEX OF AUTHORITIES

CASES                                                                                                    PAGES

Burris v. Metropolitan Transit Authority of Harris County,
      266 S.W.3d 16 (Tex. App.—Houston [1st Dist.] 2008, no pet.) ..................... 7

Church v. City of Alvin, Texas,
     No. 01-13-00865-CV, 2015 WL 3916708 (Tex. App.—Houston [1st Dist.]
     June 25, 2015, no pet. h.) .....................................................................4, 5, 6, 7

State v. Heal,
       917 S.W.2d 6 (Tex. 1996) ..........................................................................6, 7

Strother v. City of Rockwall,
      358 S.W.3d 462 (Tex. App.—Dallas 2012, no pet.) .....................................11

Texas Dept. of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004) ........................................................................... 9




                                                      3
        TO THE HONORABLE FIRST COURT OF APPEALS:

           Appellee, the City of Alvin, Texas (“the City”), respectfully files this

response to Appellant’s (“Church”) motion for rehearing of the Court’s

memorandum opinion in Church v. City of Alvin, Texas, No. 01-13-00865-CV,

2015 WL 3916708 (Tex. App.—Houston [1st Dist.] June 25, 2015, no pet. h.).

                                         ARGUMENT

           Church challenges the Court’s opinion on two grounds, arguing that (1) the

Court mistakenly found that “Church admitted having full, unimpaired access to

his property in its current status,”1 and (2) the Court mistakenly placed the burden

of proof on Church when the Court noted: “Church did not adduce evidence that

the project has prevented him from accessing the roadway along the remaining

frontage of his property.” 2

I.         COURT’S HOLDING IS NOT BASED ON THE “MISTAKEN FACTUAL FINDING”

           Church complains that the Court made a finding of fact that was

unsupported by the record, specifically, that “[v]ia his existing driveway, even with

his trailer, Church can approach the drive from the far lane.” Church, 2015 WL

3916708, at *6. Based on this “mistaken finding of fact,” Church complains that




1
    Appellee’s Motion for Rehearing, p. 1.
2
    Id. at 5.


                                             4
the Court wrongly concluded that “Church has full access to his property...” 3 and

asks that the Court withdraw its June 25, 2015 opinion, reverse the trial court’s

order, and remand the case.

           The City agrees that Church did not state that he can approach the drive

from the far lane with his trailer. However, the City disagrees that that particular

observation by the Court is grounds for withdrawal of its opinion and reversal of

the trial court’s order granting the City’s plea because that observation is not the

basis for the Court’s holding. Instead, the Court held:

           Because Church (1) cannot establish a waiver of governmental
           immunity for a violation of the Water Code and (2) failed to adduce
           facts that support either a compensable taking or a substantial
           impairment of his existing access to his property, we conclude that the
           trial court properly granted the City’s plea.

Church, 2015 WL 3916708, at *1. With regard to the element of material and

substantial impairment, an essential element of Church’s taking claim, the Court

held:

           Given that the new bridge (1) does not physically obstruct Church’s
           private drive and (2) does not preclude other access points to the
           roadway from his property, we hold that Church’s testimony that the
           TxDOT-constructed entrance within the public right-of-way is
           narrower than before does not constitute evidence of a “virtually
           impassable obstruction” or a material and substantial impairment of
           access. (citation omitted) Accordingly, we hold that the trial court
           properly granted the City’s plea to the jurisdiction against Church’s
           claim for impaired access.

3
    Id. at 4.


                                             5
Church, 2015 WL 3916708, at *7. The appellate record fully supports the Court’s

holding, and the motion for rehearing should be denied.

II.        CHURCH MISUNDERSTANDS THE ELEMENTS                OF AN    IMPAIRED ACCESS
           INVERSE CONDEMNATION CLAIM

           Church argues on rehearing that the Court should withdraw its June 25, 2015

opinion and reverse the trial court’s order granting the City’s plea to the

jurisdiction because the Court made an incorrect finding of fact resulting in the

conclusion that Church “has the same use of his property as he did before the

City’s action,”4 and that “Church has full access to his property with no such

revision.”5 Church argues that he “never admitted that suitable access exists in the

current situation.”6 However, Church misunderstands the type of access

impairment that is required to maintain an inverse condemnation claim.

           The law question presented for the Court’s consideration was not whether

the claimant had the same (or full) access after the alleged taking as he had prior to

the alleged taking. Instead, the question of law 7 decided by the Court was that the

City’s uncontroverted evidence established that the alleged taking did not result in

a material and substantial impairment of Church’s access to his property. See State


4
    Id. at 3.
5
    Id. at 4.
6
    Id. at 4.
7
  Whether access rights have been materially and substantially impaired is a question of law.
State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996).


                                             6
v. Heal, 917 S.W.2d 6, 11 (Tex. 1996) (absent a material and substantial

impairment of access, the landowners were not entitled to compensation “even if

the remainder of their property has lost some degree of value”); Burris v.

Metropolitan Transit Authority of Harris County, 266 S.W.3d 16, 23 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (“We agree with the appellants that the Property

has been impaired, but impairment alone is insufficient for a compensable taking.

Rather, appellants must show that the impairment of access is material and

substantial.”). Because Church did not present evidence to demonstrate a material

and substantial impairment of access i.e., to raise a fact issue on this claim, the

Court properly concluded that Church had no inverse condemnation claim.

III.   UNCONTROVERTED FACTS DEMONSTRATED THAT CHURCH’S ACCESS IS
       NOT MATERIALLY AND SUBSTANTIALLY IMPAIRED

       In its opinion, the Court noted that (1) TxDOT constructed the bridge wholly

within the public right-of-way; (2) the bridge apron did not enter Church’s

property; (3) the new bridge did not physically obstruct Church’s existing

driveway; (4) Church conceded that he retains access to his property and his

existing driveway, but that driveway access across the bar ditch is 12 feet narrower

when compared with the right-of-way access that existed before the bridge

construction; and (5) the new bridge did not preclude other access points to the

roadway from his property. Church, 2015 WL 3916708, at *6.               Moreover,

additional evidence not mentioned by the Court in its opinion, yet contained in the

                                         7
appellate record, and supportive of the Court’s holding, is Church’s testimony that

he has a total of six trailers on his property, CR 210, and that he can move the little

trailers off and on his property. CR 211. It is only his big trailer that he cannot get

onto the property no matter which direction he comes from. CR 211. However,

significantly, Church testified that it is the arch over his driveway that impairs his

big trailer from getting onto the property, to-wit:

       Q.     Okay. And do I understand you correctly? On the big trailer,
              you’re saying that you can’t get that on the property no matter
              which direction you come from?

       A.     That’s correct.

       Q.     There’s just not a wide enough area to ̶

       A.     Without ripping out the archway and everything.
       …
       Q.     Now, if you move ̶ if you removed your arch, could you get
              your trailer in?

       A.     Possibly.

CR 211.8

       The Court’s conclusion that Church did not have an inverse condemnation

claim for material and substantial impairment of access to his property is proper

and supported by the uncontroverted evidence.




8
 The arch is a metal driveway arch, which was not moved during the bridge construction project.
CR 188-189. The arch is 12 feet wide. CR 207.


                                              8
IV.        COURT DID NOT “MISPLACE” THE STANDARD OF REVIEW

           In his motion for rehearing, Church also complains that the Court

“misplaced the standard of review” because it stated “Church did not adduce

evidence that the project has prevented him from accessing the roadway along the

remaining frontage of his property.” 9 However, the Court did apply the correct

standard of review.

           The standard of review to be applied to an evidentiary plea to the

jurisdiction, and which the Court did apply, was as follows:

           [I]f the plaintiffs’ factual allegations are challenged with supporting
           evidence necessary to consideration of the plea to the jurisdiction, to
           avoid dismissal plaintiffs must raise at least a genuine issue of
           material fact to overcome the challenge to the trial court’s subject
           matter jurisdiction.

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 221 (Tex. 2004)

(emphasis added). The Court correctly pointed out that Church did not present any

evidence to raise a fact issue that controverted his sworn deposition testimony:

           Q.    Okay. If you moved your driveway crossing where it crosses
                 the ditch ̶ if you moved it farther from the bridge, would that
                 solve your problem about being able to turn in and turn out with
                 your trailer?

           A.    That’s what this whole thing is about, is we ̶

           Q.    Sir, please just answer my question.

           A.    Yes.
9
    Id. at 5.


                                              9
           …

           Q.    My question is: Has anyone told you, you can’t move the
                 driveway?

           A.    No, sir.

           Q.    Okay. Is there ̶ as far as you know, there’s nothing that stops
                 you from putting your driveway across the bar ditch anywhere
                 you want to along your property line?

           A.    No, sir.

           Q.    So neither the City, the State, or anybody else has told you that
                 you can’t access County Road 172 from any location on your
                 property you choose?

           A.    No, sir.

CR 148-149. The City carried its burden on the plea by presenting evidence that

Church could access County 172 from any location on his property that he chose,

conclusively proving that Church’s access to his property was not materially and

substantially impaired. Church did not raise a fact issue on that proof. The Court

did not “misplace the standard of review.” 10 Church has shown no error in the

opinion of the Court of Appeals.




10
     Id. at 5.


                                            10
V.    COURT CORRECTLY DECIDED THE CASE

      Although not addressed by the Court in its opinion, there is another, equally

compelling ground that supports the Court’s affirmance of the trial court’s order

granting the plea: the City did not commit an intentional act that resulted in

material and substantial impairment of Church’s access to his property.

      The elements of a cause of action for inverse condemnation are (1) the City

committed an intentional act; (2) that resulted in property being taken, damaged, or

destroyed; (3) for public use. Strother v. City of Rockwall, 358 S.W.3d 462, 467

(Tex. App. — Dallas 2012, no pet.) (citing City of Dallas v. Jennings, 142 S.W.3d

310, 314 (Tex. 2004)). In the face of the City's evidentiary plea, it was incumbent

upon Church to raise a fact issue to controvert the City’s evidence demonstrating

that the City did not engage in or perform intentional acts that resulted in material

and substantial impairment of Church’s access to his property. Because he failed to

do so, governmental immunity precluded his claim. City of Rockwall, 358 S.W.3d

at 471-72.

      As the City pointed out in its brief on appeal, the uncontroverted evidence

established that the government actor, i.e., the City, did not commit an intentional

act that resulted in material and substantial impairment of Church’s access to his

property. The City did not design or build the Project. CR 31, 73. Instead, TxDOT

contracted with general contractors to perform the general contract work on the


                                         11
project and with engineering firms to perform the engineering on the project. CR

31, 73. Specifically, the Funding Agreement between the City and TxDOT for the

replacement of the bridge over the Drainage Ditch at County Road 172, CR 31,

51-72, provided that:

      (1) “The State is responsible for performance of any required architectural or
      preliminary engineering work,” CR 31, 53 at ¶10;

      (2) the State “shall … award and administer the contract for construction of
      the Project. … includ[ing] the responsibility for construction engineering
      and for issuance of any change orders, supplemental agreements,
      amendments, or additional work orders, which may become necessary
      subsequent to the award of the construction contract.” CR 31, 54 at ¶11; and

      (3) “The parties to this Agreement agree that no party is an agent, servant,
      or employee of the other party and each party agrees it is responsible for its
      individual acts and deeds as well as the acts and deeds of its contractors,
      employees, representatives, and agents.” CR 31, 57 at ¶17.

      Because the City did not do any intentional act that resulted in material and

substantial impairment of access to Church’s property, the trial court’s order

granting the plea was proper, and the Court of Appeals’ affirmance of that order is

appropriate.

                                 CONCLUSION

      The City respectfully requests that the Court deny Church’s motion for

rehearing, except to modify its opinion to remove the sentence, “Via his existing

driveway, even with his trailer, Church can approach the drive from the far lane.”




                                        12
The City further requests that the Court grant it such other and further relief to

which it may show itself to be justly entitled.

                                        Respectfully submitted,

                                        OLSON & OLSON, L.L.P.


                                        By:    /s/ Patricia L. Hayden
                                               Patricia L. Hayden
                                               State Bar No. 09269200
                                               PHayden@OlsonLLP.com
                                               John J. Hightower
                                               State Bar No. 09614200
                                               JHightower@OlsonLLP.com
                                               Wortham Tower, Suite 600
                                               2727 Allen Parkway
                                               Houston, Texas 77019
                                               Telephone: (713) 533-3800
                                               Facsimile: (713) 533-3888

                                        ATTORNEYS FOR APPELLEE,
                                        CITY OF ALVIN, TEXAS




                                          13
                   CERTIFICATE OF COMPLIANCE
               WITH MAXIMUM LENGTH REQUIREMENTS

      I hereby certify that the foregoing Appellee’s Brief contains 1,979 words, as

calculated under Rule 9.4 of the Rules of Appellate Procedure, using the word

count feature of Microsoft Word.

                                       /s/ Patricia L. Hayden
                                       Patricia L. Hayden



                         CERTIFICATE OF SERVICE

      As required by Texas Rule of Appellate Procedure 6.3 and 9.5, I certify that

on July 22, 2015, a true and correct copy of the foregoing document was

electronically served upon all counsel of record.

Mr. Iain G. Simpson                          CMRRR #
iain@simpsonpc.com                           Facsimile No. 281-596-6960
SIMPSON P.C.                                 Hand Delivery
1333 Heights Boulevard, Suite 102            U.S.P.S.
Houston, Texas 77008                         Electronic Service

ATTORNEY FOR APPELLANT,
Darrell Church


                                              /s/ Patricia L. Hayden
                                              Patricia L. Hayden




                                         14
