Opinion
10-18-00327-CV
10-26-2022
SHIRLEY DUPRIEST AND FRED DUPRIEST, Appellants v. NIMITZ PROPERTIES, LLC, Appellee
From the 361st District Court Brazos County, Texas, Trial Court No. 17-002326-CV-361
Before Chief Justice Gray, Justice Johnson, and Justice Wright *(Justice Johnson concurring)
The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code §§ 74.003, 75.002, 75.003.
MEMORANDUM OPINION
JIM R. WRIGHT SENIOR CHIEF JUSTICE.
The trial court granted Nimitz's plea to the jurisdiction and dismissed the suit for declaratory judgment that the Dupriests had filed. Because the trial court had subject matter jurisdiction in this case, we reverse and remand this case to the trial court for disposition on the merits.
In 1923, the owners of certain property in College Station formed College Park Subdivision. One of the developers was College Station Housing Corporation. Southside Development Company was another developer of College Park; neither is any longer in existence. The plat of College Park provided for lots, blocks, and streets, but neither contained nor referenced any restrictions as to the use of the property in the subdivision.
The Dupriests and Nimitz own property in College Park. Nimitz owns Lots 4 and 5, Block 1, College Park. On December 1, 1927, College Station Housing Corporation conveyed this property to J.R. McGee. The deed to McGee contained this restriction, among others:
Churches, stores, theatres, school houses, and other central meeting places shall be constructed only on lots provided in the plan for establishments of that kind unless agreed to by the board of directors of the said company.
Nimitz bought this property on October 16, 2016.
The Dupriests own Lot 1, Block 5, College Park. On October 5, 1942, College Station Housing Corporation conveyed this property to L.G. Lapham. The deed to Lapham also contained the above restriction. The Dupriests bought this property on May 7, 2007.
The record shows that Nimitz intends to build a commercial establishment, Aggieland Outfitters, on its property. The Dupriests contend that Nimitz cannot build a "store" on the property because the above-quoted restriction, contained in the deeds to McGee and Lapham, prevents it.
On September 1, 2017, the Dupriests filed a petition for declaratory judgment in which they sought a declaration that the restriction was valid and enforceable as to the Dupriest v. Nimitz Prop., LLC Nimitz property. Ultimately, Nimitz filed an amended plea to the jurisdiction and motion to dismiss the Dupriests' lawsuit.
Nimitz claimed that there were a number of reasons why the trial court should grant its amended plea to the jurisdiction and dismiss the lawsuit: the Dupriests lacked standing to assert the validity and enforceability of the restriction, they had failed to present a justiciable controversy, they were seeking an impermissible advisory opinion, and their declaratory judgment action was not ripe for action by the trial court.
From the record, it appears that the trial court held a hearing on the plea to the jurisdiction and motion to dismiss on August 31, 2018. At the conclusion of the hearing, the trial court announced its ruling that the Dupriests had standing and that it was "not going to grant the plea to the jurisdiction."
Some 18 days later, as it was permitted to do, the trial court changed its mind and sent an e-mail to the attorneys in which it states its opinion that the Dupriests were asking it to issue an impermissible advisory opinion. The trial court also stated its opinion that there was no actual controversy presented to it and that it was not allowed to rule upon hypothetical or contingent issues or matters that were not essential to a decision in an actual controversy. The court wrote: "Because I believe that there is not an actual controversy before the court at this time, the Court must decline to permit the case to proceed."
Then, by written order dated the next day, September 19, 2018, the trial court ruled that "[Nimitz's] Amended Plea to the Jurisdiction and Motion to Dismiss should be GRANTED. It is, therefore, ORDERED, ADJUDGED, AND DECREED that [Nimitz's] Amended Plea to the Jurisdiction and Motion to Dismiss is GRANTED." According to the Dupriests' notice of appeal, it is this order from which they appeal.
Because it found that it did not have subject matter jurisdiction, the trial court did not rule upon competing motions for summary judgment that the parties had filed.
Simply stated, the issue in this appeal is whether the trial court had subject matter jurisdiction to hear and determine the merits of this case. Subject matter jurisdiction must exist before a court has authority to hear and determine a case. The State Bar v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Whether subject matter jurisdiction exists is a matter of law that we review de novo. Tex. DOT & Edinburg v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013). The issue may be raised for the first time on appeal either by the parties to the appeal or the court. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445-446 (Tex. 1993). Therefore, we will address neither waiver arguments nor arguments as to whether the trial court's e-mail constituted findings of fact and conclusions of law.
For a court to have subject matter jurisdiction, the party who brings the lawsuit must have standing. Gomez, 891 S.W.2d at 245. There must also be a live controversy between the parties and the case must be justiciable. Id. If any of these are absent, then the court lacks subject matter jurisdiction, and its decision would not be binding on the parties. Id. If a decision would not be binding on the parties, then the decision amounts to an advisory opinion and is not permitted under Texas law. Id.; see Texas Ass'n of Business, 852 S.W.2d at 444 (citing Article II, Section 1, of the Texas Constitution).
In cases that involve a declaratory judgment, a justiciable controversy must exist as to the rights and status of the parties and the controversy must be one that will be resolved by the declaration. Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 681 (Tex. App.-Austin 2004, no pet.). To be justiciable, the controversy must be a real and substantial one that involves "a genuine conflict of tangible interests and not merely a theoretical dispute." Save Our Springs, 149 S.W.3d at 681. A declaratory judgment provides a way to determine the rights of the parties "when a controversy has arisen but before a wrong has been committed." Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011).
Ripeness is a justiciability doctrine that finds its origin in the prohibition against a court's issuing advisory opinions. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). A case is ripe when its resolution does not depend "on contingent or hypothetical facts or upon events that have not yet come to pass." Id. at 443.
When we consider the issue of ripeness, we focus on whether "the facts are sufficiently developed 'so that an injury has occurred or is likely to occur, rather than being contingent or remote.'" Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (quoting Patterson, 971 S.W.2d at 442) (emphasis added). Although the issue of standing focuses on who may bring an action, ripeness is concerned with when an action may be brought. Id. at 851.
This case is ripe for decision by the trial court. The deed restriction contained in the deed to one of Nimitz's predecessors in title, as well as one of the Dupriests' predecessors in title, provided, among other things, that no stores could be erected on the properties. All the restrictions are common to both the Dupriests' chain of title and Nimitz's chain of title.
The court noted in Ski Masters, "[s]tanding essentially depends on two things: (1) the existence of a general plan or scheme of development (2) that was part of the inducement for purchasers to obtain land within the restricted area . . . ." Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 669 (Tex. App.-San Antonio 2008, no pet.). By reference to the deeds to McKee and to Lapham and to the plat of College Park, the Dupriests' pleadings contain allegations that show the existence of a general plan or scheme of development of the property as residential. "This forms an inducement to each purchaser to buy, and it may be assumed that he pays an enhanced price for the property purchased." Id. (citing Hooper v. Lottman, 171 S.W. 270, 272 (Tex. Civ. App.-El Paso 1914, no writ).
There seems to be little question, if any, that Nimitz intends to build a store on its property. The property was originally zoned as residential. Nimitz filed a detailed application for a zoning change from the City of College Station that would allow for the construction of a store on the Nimitz property; the City of College Station approved that zoning change request. The property is now zoned to accommodate a store.
By way of their action for declaratory judgment, the Dupriests asked the trial court to determine whether the deed restriction was valid and enforceable as to the property in College Park owned by Nimitz. The Dupriests did not seek to enforce the restriction. We hold that, as common owners of property in the platted College Park subdivision and whose chains of title contain the same deed restrictions appear, the Dupriests were more than members of the general public, and had standing to question the validity and enforceability of the common deed restriction.
The case of Bitgood v. Harkness, No. 09-20-00263-CV, 2021 WL 2371252 (Tex. App.-Beaumont June 10, 2021, pet. denied) (mem. op.), has been called to our attention. That case is distinguishable. There, there was a hodge-podge of restrictions set out in various deeds. Further, some deeds contained no restrictions at all and others contained a mere reference to restrictions "if any." Also, it does not appear that the property in Bitgood was a part of any platted subdivision.
The original panel on oral argument was Chief Justice Gray, Justice Neill, and Justice Johnson. Justice Neill retired from this Court on May 31, 2021. Justice Smith joined the Court on September 1, 2021, and recused himself from participation in this case on September 2, 2021.
Further, we hold that a present controversy exists between the parties in this case in that an injury (the construction of the store) is likely to occur. See Etan Industries, Inc. 359 S.W.3d at 624; see also Gibson 22 S.W.3d at 851-52 ("the facts are sufficiently developed 'so that an injury has occurred, or is likely to occur, rather than being contingent or remote.'" (quoting Patterson, 971 S.W.2d at 442) (emphasis added). The controversy is ripe for determination by the trial court.
Nimitz also maintains that the deed restriction is personal to the original grantor and original grantee in the deeds that contained the restriction and that the restriction does not run appurtenant to the land. Therefore, according to Nimitz, subsequent owners are not bound by them. Nimitz also contends that the deed restriction does not provide that the heirs, successors or assigns of the "company" mentioned can enforce or waive the deed restriction. Nimitz takes the position that the result of the dissolution of the "company" named in the original deeds was that the deed restriction became unenforceable by anyone. Further, Nimitz takes the position that because the language of the deed restriction does not express a mutuality of intent, neither the Dupriests nor any other lot owner in College Park has standing to seek a declaratory judgment concerning whether the deed restriction is valid or enforceable against the Nimitz property.
Nimitz also raises defenses of waiver, acquiescence, abandonment, change in character of the neighborhood, laches, estoppel, quasi-estoppel, and failure to satisfy conditions precedent. These issue go directly to the merits of the case and do not involve the subject matter jurisdiction of the trial court. See Wagoner v. Rainbow Group, LTD, No. 03-03-00478-CV, 2004 WL 1685831, at *5 (Tex. App.-Austin July 29, 2004, pet. denied) (mem. op.). Any decision on those issues would be tantamount to a decision on the merits. A party is not required to prove that it will ultimately succeed in a lawsuit for it to have standing to pursue it. Teal Trading & Development, LP v. Champee Springs Ranches Prop. Owners Ass'n, 593 S.W.3d 324, 331 (Tex. 2020); Andrade v. NAACP of Austin, 345 S.W.3d 1, 10 (Tex. 2011) ("It is not necessary to decide whether the voters' claims will, ultimately, entitle them to relief, in order that they have standing to seek it."). The purpose of a plea to the jurisdiction, is, generally, to defeat an action "without regard to whether the claims asserted have merit." Bland Ind. Sch. District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
Because the Dupriests had standing, and because the controversy is ripe for determination, and because the trial court could resolve that controversy in a manner that would bind the parties, we hold that the trial court was not asked to deliver an advisory opinion and that it has subject matter jurisdiction in this case.
The Dupriests may or may not be able to succeed in a determination on the merits of their case, but they are entitled to try.
We reverse the ruling of the trial court and remand this case for consideration on its merits.
Reverse and remand.
CONCURRING OPINION
MATT JOHNSON JUSTICE.
I concur only in the Court's judgment reversing and remanding but do not join the majority opinion that is being issued in this matter.
The notice of appeal was filed with this Court on October 19, 2018, some two years and two months before I joined this Court. On the day the notice of appeal was filed, this matter was assigned to Chief Justice Gray. Briefing was completed on September 13, 2019, and oral arguments in this matter occurred on April 20, 2021.
Nimitz, after having waited almost four years for resolution of this appeal, then filed a supplemental brief on September 1, 2022, requesting that the case be re-submitted "so that a disposition may be achieved in due course." Nimitz asserts in its supplemental brief that the Dupriests have "initiated new proceedings in the trial court despite the pendency of this appeal." In its supplemental brief, Nimitz argues that it is not addressing the merits of the Dupriests' new trial court proceedings but is "raising the issue because it amplifies the need for resolution of this appeal."
The parties' frustration with the inordinate delay by this Court in issuing a decision was again evidenced by the Dupriests when they filed an ancillary original proceeding, No. 10-22-00292-CV. In the Dupriests' original proceeding, they request injunctive relief to enjoin Nimitz from constructing a store on a residential lot pending resolution of this appeal.
On September 20, 2022, this case was set for submission on October 12, 2022, before a new panel.1
For years the parties have been left without a resolution of the issues before this Court. And now here we are, five years after this litigation began in the trial court, four years after the case was filed in this Court, and eighteen months after oral argument.
"Justice delayed is justice denied." William Gladstone.
"To delay justice is injustice." William Penn.
"The delay of justice, is great injustice." John Musgrave.
"The parties want to know. The public wants to know." See Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 643 (Tex. 2021) (Chief Justice Hecht, joined by Justice Guzman, Justice Lehrmann, and Justice Devine, dissenting). "One of our principal missions is to decide cases of statewide importance, and the public always benefits when we do our job." Id. at 650 (Justice Guzman, joined by Justice Lehrmann and Justice Devine, dissenting).
The majority opinion is authored, not by the Chief Justice to whom it was assigned in ordinary rotation, but by a visiting justice. Chief Justice Gray has joined the majority opinion. I believe, however, that for purposes of transparency, clarity, efficiency, and accountability, the majority opinion in these circumstances should be issued and signed by the Chief Justice to whom this matter was long ago assigned. For the reasons stated above, I cannot join in the majority opinion. I respectfully concur.