denied a proper interest in things refusal to continue to provide them with continued grant payments it was an appeal of a temporary injunction without an average a record and at least three times the opinion was is that the statute and the regulations stay ending alone dr bob interest when i want to point out today is that we're not here standing alone we're not here relying just upon the statutes and the implementing regulations with ridgeley the whole debate is it mandatory or discretionary and there they said it was discretionary and only it's maybe really going to argue much by their side but it seems to me here there's another problem the statute in ridgely gave individuals rental assistance that made them eligible with themas discretion but it was an independent fit to individuals here the statute is a benefit to palace so i don't see how it gives a property interest to individual citizens whether it's putting aside whether it's mandatory or discretionary it says will give money to the state in mcalester how did congress give any individual seems to me that argument runs to difficulty that he neither the state nor the city requested the money they did well they didn't draw down until your client provided proof of clear title which required the waiver from the homeowners association right and it seems unclear that that was provided during the time allot d it was provided but as as as the c of galveston says we didn't do it in time we didn't do it by this arbitrary august thirty first two thousand have a deadline saying we didn't do it in time and that we didn't do it all are two different things setting aside the question of the compliance with the deadline because there's a lot in the record that shows that they were your clients were given notice of the deadlines and repeatedly failed to comply with those deadlines but putting that aside the timing issue conditioning the performance under the agreement on getting this waiver from the homeowners association and not requesting the money drawing down the money until that occurred if those two are both established and record then what is the human we got that release so when we come back to what you say is a disputed issue but we are in the record can you point me to exactly where in the record i will find evidence that the release was obtained and when it was obtained and when it was provided to the defendant in our complaint he thought every judgment in the city where in the record well i find that will asking where in the record i'm going to find that when we say we had all we have met all requirements including release on or before august fifth that was your allegation record the summary judgment record of the life find evidence to support the allegation that there was that compliance and when it occurred other than the letter from the city of galveston says you didn't do it by all the state it won't be what do we do with that get in terms of summ the i would argue that there is a fact issue as a second point regarding whether or not that occurred found it was undisputed that we had written agreements that releases not contained in the four corners that agreement which is part of the record from the complaint that was provided on august fifth don't be to a very simple thing to put something in the record or there's an affidavit or proof of a letter that was sent we don't see why we're even trying it's difficult to figure this out but isn't there simple proof that would show that if it if it did in fact happen and the city saying it didn't happen so you viewing the district the city instead its response which is their august eighth letter they just of the said you didn't do it all in time which is which is that which is that which is different than saying for your client well again they they extended it because there was indeed there was an investigation ongoing by the state of texas so with twenty one days left of the first  deadline they request extension the evidence seems to show and this is part of that cost is a question i think that your clients were in a battle for control of the homeowners association there was a lot of enmity was a lot of acrimon and there is some basis to question whether the homeowners association would have given the waiver and no evidence that they did give the waiver so we're sort of stuck with this where in the summary judgment record is there evidence that a waiver was provided provided to the city and when it was obtained and absent that evidence how do we reverse the summary judgment or the summary judgment was based upon a finding by the trial court that there was no property interest and i think that there's a circular true but we have an agreement a contract that is one of the things that are correct that we're back to the performance of the condition precedent and the evidence to support that we would argue that we did in the letter from the from the city of galveston august eighth to say sorry we didn't do it in time and there's not time left it was it was twenty three days but the month before it was twenty one days left if there was your way was required to do that your clients were required to get a waiver from the homeowners association apparently not in the records that they did other than the allegation in your complaint which were done have a question of your disk you claim you weren't given a fair opportunity for discovery from what i can tell there was about eleven months and eleven month period of discovery what happened during that eleven month period that prohibited you from obtaining whatever discovery might have effort to obtain discovery and either that is motions on the board on behalf of your no it was there any identification of the district court of specific discovery that you would have taken had you been given additional opportunity yes what was that where in the crowd what was the question or was there where did you make the request now did you make the showing to the district court with specificity of would additional discover you would have taken if given the opportunity to do so no you know we did not is that a problem i believe so could  e we had what we had so many that we there were so many battles going on in this in this case it's kind of hard to believe if there was there was there was so much going on my clients live with the expectation or seven years that their homes have been damaged by the hurricane we're going to require that when you when you don't take remedial actions to fix your homes as you can't leave them there the damage kind of grows exponentially and so when you realize that well would argue on that we we do have a property interest standing alone the regulations in the statutes do not provide that but our case after going through the entire process and qualifying attorney general in texas here representing the four d p s officials that are named in their facial capacity who are dismissed from this case on a trial be six motions so the discussion i understand has been a lot about the summary judgment motion but  was dismissed on a twelve the six base is essentially on the issue of whether or not the statutes at issue that control the hazard mitigation grant programs actually do create a property right and from what i understand from what palin's counsel just said is that they recognize that the statutes and rule standing alone do not do that and for that reason he would say that the court below is correct in his shooting the motion and or order on the motion to dismiss that essentially recognize that the plaintiffs the appellant's here have failed to cite any statute rule or policy they created any interest on that was protected that entitle them to due process protections and to support their due process claims i will note that it is from the briefing in this court it appeared what the appellant's were saying is that the notice of fema approval of eligibility somehow vested plus the sales agreements that have course doesn't involve the d p a d p s is not a party the state is not a party to those agreements it is unclear in the plaintiffs and the pons of cited no authority that would indicate that that agreement then serves to somehow impose a due process requirements on the state who was that as just to be clear here the state is really the administrators of these funds they're not the  actually is the instigator of the requests for the funds or the one who actually works with the property owners that is all the local entity sue sue d v s would have no role in that relationship what i will note is  will also say that at the motion to dismiss stage when d p s was involved this issue of the contract being the source of a of a restaurant right in this issue of conditions president was not really argued or pled so it wasn't really discussed by by the court below but i do want to know two things on behalf of my client one beyond what the contract says i will note that the fema rules that govern these programs do impose an affirmative obligation on property owners and if you look at forty four c f r eighty point five d it says that the property owners are required to comply with all requirements that are imposed in or that as conditions of the grant and then if you look at forty four c f r eighty point one seven it makes clear in the rules that clear title is a condition of receiving a buyout in effectuating in a grant under this program so if you look at those two provisions even outside of the contract just on the law the fact that there is no evidence that those conditions were satisfied here would make clear that there has been no centrally satisfaction of the requirements of the property owners have imposed on them under the rules that would have vested any guarantee or entitlement here to to buy out money and so i know most of this focus is i'm going to let my colleague from galveston discuss these issues because he is they are the ones that move to summary judgment i will say this is a little procedurally odd in the sense that we have record evidence uncontroverted wrecked record and so as per that was produced at a summary judgment proceeding and we're here on a a motion to dismiss but i will say if the court does find that based on that summary judgment record that the plaintiff failed to show a fact question as to whether or not a property interest vested then it would simply be futile to send us back for some type to please and for them to replace it we would go through a same summary judgment proceeding and so we would just ask the court if it does reach that issue on the summary judgment point that because it would be futile to repleat any kind of claim involving a contract against d p s they should affirm the dismissal of the claims against us and unless the court has any i think the court put your finger on one of those central reasons why we shouldn't be here and that is there's no evidence in the record that in any time the homeowners did comply with the clear condition precedent they deliver clear title and we spent a lot of time in the briefing and motion practice blow fighting about the waiver but sort of first principles the regulations require clear title summary of lincoln's the city didn't create this problem these homeowners bought a home in a subdivision that had deed restrictions that impose a ses homeowners association that was unhappy about offering a release brought to the city's attention that this was an endemic problem and so when the city did agree to purchase certain homes it made it very clear it was going to have to be relieved of this financial o because the program was entered into in the wake of the hurricane which had a big impact on the city that the homeowners association provide releases to everybody else except the plaintiff this homeowners association to my knowledge provided no one with a release every other homeowner and for every other subdivision obtained a release it was a non issue for every other subdivision who had a homeowner was participating in the program this is a different  association the sands of kahala had a little intermural civil war among its few homeowners some of the homeowners didn't want their neighbors properties bought out they didn't want the houses right they didn't want vacant lots open to the public in their subdivision so there was an intramural dispute but the city was neutral the city did all it could to be a neutral stakeholder here and say if you the homeowners can't comply we will as a city close one comment that i just don't want to go and responded to but i think from the record it's clear it's not correct there's an insistence that this position is the contracts were signed before the city impose this obligation acceptance so they sign these contracts in september but there's no action by the governing body of this and you galveston to accept these contracts the october two thousand and nine minutes which are in the record which show that when the city council agreed purchase some homes it imposed this condition predate the acceptance of the contract even if that were not so and it is the first paragraph of the damaged its property contract requires that the property be sold three of liens whether we ever had a debate about waivers are not unless those homeowners could go to the title company and demonstrate property that is free of the lien that the homeowners association head there would be no close in these were the only homeowners in the only civilization in the city of galveston where this was a problem everybody else complied the only testimony summary judgment evidence in the record comes from city attorney suzy then city attorney susie green explain the process everybody had the same standards everyone else complied except for the combatants in this little subdivision and it is huge when there is an allegation that says we did comply by a consent to date it not within the thirty day deadline that was it is news to me and i and i echo what judge costa said which is how hard have been today i was looking forward i'd seen it in their pleadings i've never seen it today not sand it didn't happen i'm telling you i've never seen it or your clients never got to my knowledge we never got evidence that they had clear title three of doing all they had to do was go title company and demonstrated in would be off to the races it wouldn't be here this might just be a meaningless semantic distinction but it is your position that the contract didn't create a property interest reduce it there was no deprivation of the property interest because you comply with the contract and they didn't meet which box would you fit that into you under texas law for their under texas law for do be a vested property interest in mind or standing a federal law generally as we look to state law when there is not a statutory entitlement to see if there is a vested right under texas law when there are discretionary actions that are conditions there's not a vested property right in this instance at the grant level we've already dealt with the discretion issue at the contract level the obligation in the contract that they deliver title three of liens meant that the discretion about whether or not this property could be conveyed rested with a third party it rested with the other homeowners in the homeowners association so the city's position is under texas law in the state court judge candidly when he dismissed the two state court cases going on on jurisdictional grounds concluded that there's no  property right can't be implemented without the conduct of a third party in the discretion of the homeowners association precluded them from having this degree so the judge our position is it that contract doesn't give rise to a vested right it also wasn't performed if you're arguing that it couldn't be wrong or that at that until compliance was demonstrated it didn't give rise it's it is hypothetical but my position probably would have been if they had showed performance then the ri would have matured because then there were no longer be any discretion at issue that would foreclose the ability of the homeowner to tender the contract for closing so this whole notion of clear title runs through out the regs the contract the city council authorization it's rampant and it was never complied with i mean that's in a nutshell and and as the court has concluded has heard there was no attempt on the part of the homeowners to was specific evidence that if they only had the opportunity to do discreet discovery they could come back and provide that evidence to the court that would have changed the result they made no attempt in as we mentioned in our brief even to have a state made  the contract didn't deal with a release of any covenants that obligation was not within the four corners of our agreement