City of Mason, Texas (Cross-Appellee) v. William Robin Lee, as Trustee of Lee Descendants Trust William Harold Zesch and Amy Daviss Zesch And Dennis Evans and Kay Evans (Cross-Appellant) ( 2018 )


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  •                              Fourth Court of Appeals
    San Antonio, Texas
    September 5, 2018
    No. 04-18-00275-CV
    CITY OF MASON, TEXAS,
    Appellant
    v.
    William Robin LEE as Trustee of Lee Descendants Trust; William Harold Zesch
    and Amy Daviss Zesch; and Dennis Evans and Kay Evans (Cross-Appellant),
    Appellees
    From the 452nd District Court, Mason County, Texas
    Trial Court No. 185789
    The Honorable Robert Rey Hofmann, Judge Presiding
    ORDER
    Sitting:         Rebeca C. Martinez, Justice
    Luz Elena D. Chapa, Justice
    Irene Rios, Justice
    This is an interlocutory appeal of the trial court’s order partially granting and partially
    denying a plea to the jurisdiction. In the underlying lawsuit, appellees alleged claims against the
    City of Mason, Texas, City officials, Cathie Tyler, and Jaime Reyes and Mari Heisler-Reyes.
    The City appealed the portion of the trial court’s order denying the plea to the jurisdiction as to
    the regulatory takings claim against the City. The appellees appealed the portion of the trial
    court’s order granting the plea to the jurisdiction as to the other claims asserted against the City
    and the City officials.
    In its second supplemental plea, the City noted the appellees settled their claims against
    the Reyeses and asserted the settlement “effectively moots all claims relating to the Reyes’s [sic]
    plans to build a house on the property and any issues relating to the City’s issuance of a building
    permit.” In their response to the City’s plea, the appellees acknowledged they reached a
    settlement with the Reyeses (which is included in the clerk’s record filed in this appeal), stating,
    “Once this settlement is finalized, the issue over the permit issued to the Reyeses will be moot.
    However, the unlawfully approved Minor Plat is still at issue” and “[t]he remaining Tyler
    property is also non-compliant with the Ordinance, as was the initial Minor Plat when it was
    filed by the City Building Official.”
    In their appellees’ brief, however, the appellees state:
    [T]he Appellees have settled their claims with both the Tyler Defendant and the
    Reyes Defendants. This settlement now makes the Granting of the Appellant’s
    Plea to the Jurisdiction as to Appellees’ Count 1 & Count 2 of their Second
    Amended Petition moot. Accordingly, Appellees will not be submitting a Brief on
    their Cross Appeal and will only be submitting a Brief in response to the
    Appellant’s Brief. Mainly, the propriety of the Denial of the Appellant’s Plea to
    the Jurisdiction regarding Count-3 of the Appellees’ Second Amended Petition, or
    their Regulatory Taking Claim against the City of Mason.
    In response to this statement, the City asserts in its reply brief, “Lee’s takings claims against the
    City (though never legitimate) are now moot under Appellees’ pleadings because they own the
    property in question and any ‘excessive noise, traffic, dusts, water intrusion, unreasonable risk
    of fire and other hazards’ come from conditions that Appellees may create, not from anything the
    City has done or can do.”
    As the Texas Supreme Court has recently recognized:
    A case becomes moot when there ceases to be a justiciable controversy between
    the parties or when the parties cease to have a legally cognizable interest in the
    outcome. Mootness occurs when events make it impossible for the court to grant
    the relief requested or otherwise affect the parties' rights or interests. A case can
    become moot at any time, including on appeal. When a case becomes moot, the
    court loses jurisdiction and cannot hear the case, because any decision would
    constitute an advisory opinion that is outside the jurisdiction conferred by Texas
    Constitution article II, section 1.
    State ex rel. Best v. Harper, No. 16-0647, 
    2018 WL 3207125
    , at *2 (Tex. June 29, 2018)
    (internal quotations and citations omitted). It is therefore ORDERED that the appellees show
    cause in writing no later than two weeks from the date of this order why this court should not
    issue an opinion recognizing that their regulatory takings claim is moot and dismissing this
    appeal for lack of jurisdiction.
    It is so ORDERED this 5th day of September, 2018.
    PER CURIAM
    ATTESTED TO: _____________________________
    Keith E. Hottle,
    Clerk of Court
    

Document Info

Docket Number: 04-18-00275-CV

Filed Date: 9/5/2018

Precedential Status: Precedential

Modified Date: 9/11/2018