606 S.W.3d 267
Tex. App.2020Background
- In 1973 the original owner dedicated a 40-foot nonexclusive private right-of-way easement across a 12.53-acre tract, expressly terminating if the public ceased using it.
- The tract was later subdivided; Harris County (County), Park at Westcreek, LP (Westcreek), and Public Storage entities each own portions; the Easement runs across County land and PS land and currently covers the County’s driveway, parking, and a fitness/recreation area.
- Westcreek sought permission to build an entrance on the Easement; the County denied the request. Westcreek sued (May 2016) for a declaratory judgment on the existence/status of the Easement (no monetary relief initially).
- The County filed a Cross-Action (Oct. 2016) asserting adverse possession to the Easement (and alternatively value of improvements) and named Westcreek and PS entities; PS entities later asserted inverse-condemnation/takings claims.
- The County later filed a plea to the jurisdiction asserting governmental immunity; the County and PS entities nonsuited their claims against each other; the trial court denied the County’s plea and the County appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court has jurisdiction over Westcreek’s declaratory/boundary/takings claims despite County immunity after the County filed a cross-action for adverse possession | Westcreek: County’s Cross-Action waived immunity under Reata because by asserting affirmative claims the County submitted to ordinary-litigant status for claims germane to its claim | County: No waiver because there is no monetary claim/offset and nonsuit removed any waiver; UDJA does not waive immunity | Held: Court: County’s affirmative Cross-Action subjected it to suit on claims germane/connected to its claim; plea denied; jurisdiction exists |
| Whether the County’s later nonsuit of claims against PS entities or dismissal of its affirmative claims eliminated any waiver of immunity | Westcreek: Nonsuit does not prejudice Westcreek’s pending claims once jurisdiction attached; Albert permits adverse party to proceed | County: Nonsuit and absence of monetary relief mean immunity remains intact | Held: Court: Nonsuit does not defeat jurisdiction once County had asserted affirmative relief; immunity remained abrogated for germane defensive claims |
| Whether Westcreek’s inverse-condemnation (takings) claim is actionable or barred (statute of limitations/no vested interest if easement abandoned) | Westcreek: Takings claim is viable and waives immunity for that claim | County: Takings claim time-barred and not actionable if easement was abandoned; thus immunity should bar it | Held: Court: Merits (including existence/abandonment of easement and any limitations defense) present fact questions; cannot resolve by plea to jurisdiction; claim survives jurisdictional challenge |
Key Cases Cited
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (government waives immunity for claims germane to affirmative monetary claims it asserts)
- City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011) (nonsuit by governmental entity does not prejudice adverse party’s pending claims to the extent jurisdiction already attached)
- Hughes v. Tom Green Cnty., 573 S.W.3d 212 (Tex. 2019) (Reata principles apply to adverse title disputes; governmental immunity limited where government asserts affirmative title claims)
- Hillman v. Nueces Cnty., 579 S.W.3d 354 (Tex. 2019) (overview of governmental-immunity principles and deference to legislature on waivers)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (if evidence raises fact question on jurisdictional issue, plea to jurisdiction should be denied and facts resolved by factfinder)