please the court my name is ray murphy and i'm here today on behalf of the old g d properties in question that this court reversed the finding of the district court which granted a summary judgment against my clients in order a new trial i would remind the court that this is a dyno proceeding and that what we are considering here is whether there is a genuine issue of material fact which should reverse the court's judgment because of that i would like to address equal protection dressed in opposing counsel that is we began with a alleged issue of a culvert that issue was resolved march eighth two thousand and thirteen when there was an agreement entered into between my client l properties and the utility district pursuit of that agreement my client paid fifteen hundred dollars to the utility district agreed it would repair the culvert within thirty days or if it did not l g d i'm sorry utility district agreed that it would repair for some reason this is not never mentioned in opposing councils brief as far as the obligation on the utility district to do the repair and if the court glosses over that with a brief reference to it but not the impact of it from our position that means there is no covert issue in any material time that we are discussing in this matter the constitutional violations that occurred from my clients to my client occurred in april of two thousand and thirteen in may of talk about the equal protection argument i think the equal protection argument is one that's fairly clear here and fairly straightforward you agree don't you there's no protection property interest in an issue permit your honor in this case the permit that was not issued to the court i think actually ruled that was the main application for that permit and i think that's where an error begins there is an agreement between the utility district and the homeowners association to withhold any approval of plans the utility district made that the first step in the application process so my client applies they're denied from even being able to start the application process so yes it would say there was a right to permit in this case so long as we met all the elements and we were ready and able to meet those and second we would say that there is at least the right to go through the application process we were denied even that and so you a question we believe in this case with regard to the permit and so you understand what the permit is is we get our the plans approved by the utility district we submit the necessary funds and this is from the president of the board of utility district testimony we submit the necessary funds and then the utility district issues to us a permit which we sign and one of the employees signs and returns to us that's it and so it is not a discretionary review procedure once you meet those elements you're when you get your perm and you are going to the issue with regard to the application process i would point out that not only did they co opt the h o a process into their process and therefore when we make our requests today to way we're actually are applying for a permit i'd also point out that and i think the court is down on facts far less than this that even if we had to go through it  the application process it was futile at this point we've been told by the president of the board that it wasn't going to be granted we've been told by the h away that there was an agreement with the utility district pursuant to that agreement they were not going to be approving our plans and we had gone to a meeting with the board where the board told us you are not going to be getting a permit and we've received a letter from the utility district telling us you're not going to get a permit i prefer the court to its case in ellison versus connor one fifty three f thirty to forty seven where this court held that a corps of engineer letter to a property owner telling them they were not going to get to a permit made it sufficient to find that there was no need to go any further in the application process because it next i would go to the issue of finally our final point of course there was an agreement between the utility district and the a t o way to deprive my client of any approval of plans my client did submit the plans my client was the civically told we are not going to grant them until the utility district agrees that they be you can be granted and the reason they told you district claims it was withholding approval of the plans is this alleged cover which is resolved by that prior agreement or as a friend to you earlier so judgment but those facts clarified i want to go ahead and get into the equal protection argument and my understanding under the equal protection argument is that we have to show first that we are substantially similar to another comparative or and then we have to show second that there is no rational relation for the difference in treatment between us and our compared to  basis well yeah yeah then then we have met that burden and so they said yeah that's what i'm saying it has to be it is about a deferential as you can be i think you're right i would agree i mean you and you're not going to find here we are and we believe this is a class of one and we have contended that this is a class of one if if i could i would point the court to first identifying who substantially similar to us because there was a difference in the way i think the court's order and what we recognize to be the class what the court's order indicates is that the class is others who have violated the rules of so that's never been adjudicated there's never been any determination that my client violated any rules of slug the first property takes our plans marks our name out on the plains writes their own name on the plans so miss the exact same plans while this covert issue which is supposedly out there this dangerous condition is still out there th o way approved the plans the utility district issued the permanent so there is a distinct substantially similar compared to work and then getting to the issue of it being rationally related your honor i would go then to what i think mis indicated we have to do which is we have to attempt to go through the possible reasons that could be provided in the first one that i come up with in the end the one that they compose in council has come up with is that as i said the covert was dangerous very lot that they denied our permit request for they approved the plans on the very lot with the exact same plans the plans did not change one iota other than scratching out our name and writing in somebody else's name the next a potential option i see is if it's maybe they're trying to prevent someone who and i and again i think this is sort of where they were going accused of wrong what can be alleged you did wrong can we then withhold a permit or pla and your honor if given that it was resolved through our dream and the answer is no we aren't result that we already paid you money it was now your obligation to take care of this cult even if you were to to go a step further than the question becomes we know that's not really the issue our i pods as we know that's not really the way they're proceeding because they've actually issued permits to us conditional conditional permits but they issued permits to us they wouldn't give us water drawn only the other two options are animists and we believe there's ample evidence in this record to band of us not only did they withhold the permits your honor the opposing party also arms are the bigger till the district also issued fees to my client of twelve thousand dollars these are really fines that they're calling fees they refused to provide water service to one of our my clients customers until these fees were paid they issued stop over the work orders with no basis for the stop work order they just simply did it and they clearly indicated that the board meeting that there was and must that they were not happy with my client and that they believe that they have they to repair the covert and again repair been flute use very loosely here is never clear exactly what that meant but repair the clover that the utility district had agreed it would repair so the only other option is they're just trying to force us to do what they have already committed themselves to do and what we have paid them to do repairing the cover just meant it was too high that what they said they did so yes are they did say it was too high but exactly how you repair it was never officially clarified i mean obviously you would lower the entire board hears this agreement the entire board is aware they've received this fifteen hundred dollars the board is aware and in fact one of the board members at the meeting actually i believe asked well why don't we just go out and repaired ourselves and the conclusion was well we've now figured out it's a little bit more than we thought it was and so they're simply trying to pass their obligation to us with no consideration with with no remedy that is animals so we do believe we thought phil fall in the class of  it only two bases we can find that are conceivable here are you don't like this are you trying to ford and you're trying to force us to do what you've agreed to do under remit that you're no longer satisfied you are for that reason we believe we have shown a class of one we believe that we have established that we were treated with animists and therefore we believe the next issue to be addressed is nine hundred eighty three and you are the reason i want to address ninety three briefly and the lower court really doesn't originate day three they indicate we don't find it a constitutional issue therefore we're not going to find anything with regard to ninety three but i would point out that there are some issue as to the policy makers here but i would point out to the court that the board actually ratified this decision the board met about this the board approved this the board kept our money and so we're arguing under st louis first for profit which is a u s supreme court case that there has been eradication by the board of this action and that the board itself indicated the permits were not going to be issued until we went in fix the culvert that they had already agreed to fix it  believe this rises to the level of animals i i can't think of another reason there's no other conceivable reason for them to be doing what they are doing outside of that i would also point out that the decisions by the homeowners association were actually motivated by the instruction from the utility district there's evidence in the record that the utility just the homeowners association actually inform the till the district we will not approve any plans until you indicate there is no other reason for them to have denied us approval of our plans by the time that this matter this lawsuit is filed and everything else has been resolved i think that's been presented to the to the board what is the relief  and i understand that on appeal you want to reverse it but tell me ultimately what relief does your client seek a scam well your honor my client has sued for the deprivation of its right were remanded would you ask mr court to to give my client lost forty thousand dollars on the project for three hundred barong that he had a contract to perform that work and lost it my client also incurred ten thousand dollars in additional expense because they wouldn't give him water and sewer connections and that was on five o two say sluggers edition where as for declaratory relief and we've asked for attorneys what  you know the declared for relief is not really it really was a state action originally this was a state case it was removed those claims in the declarator relief are still really state actions it has to do with the rates and rules the way the rates and rules are written and the fact that they cannot they're not misidentify the final policy making for slow to a final post making authority for slow and it is never identified a policy practice or custom sufficient to impose modo liability on the district second l g properties has not submit that there's a third issue the court if that were so inclined could get to which is that and i think just myth alluded to this earlier odious not have any protective property interest in this case and we believe that fact alone undergirds their entire constitutional theory cakes with respect to our first this year honors this court has taken direction from the united states supreme court's decision in mono versus department of social services to categorically hold that a governmental entity does not bear section nine hundred eighty three liability for its employees or socials on the basis of respondeat spew your stead there must be both an unconstitutional policy which is condoned or authorized by the final policymaking authority that adopted  zero four one of the record which is the slowed the next supreme slug by laws and which states quote the board establishes policies in the interest of the districts residents and customers to aid in the process of managing the district's assets and quote the board of directors shall have control in management of all of the affairs of the district also cite the court to the controlling legislation that controls a district such as slug and chapter forty nine of the texas water co which says that district the board of the district sets sail set all matters of policy for the district and the record here the facts bear that conclusion output pretty pretty p there was any kind of a constitutional violation notice that mr maritz has only reserved five minutes so i hope you're here you're the one that's going to go extensively into the into the facts and wiring in your view there was no violation one one of the possible actions that can be taken by sludge is quote disconnection or withholding of water service furthermore section two point one of the rates and rules specifies that the district is not required to extend a retail service to an applicant in a subdivision where voted no in that case i think this might hopefully address just taken bottoms concern which is that in that case the court held the economic development of the municipalit drainage and flooding to be an issue and so our position and i think it's well received in the record is that they have a rational basis to protect the drainage and control of water within their  has some time i don't know that the lines are exactly coterminous with with the boundaries of city of lucas but they're within that and they're the sole love this is the sole controller of the drainage and water issues in that case i honestly know for agree with the arguments and law cited by the slug there were there were some questions directed to mr gardner about about salient facts that you all need to consider in rendering your decision in this case one of those facts that you did not emphasize but i think deserves some consideration it's pointed out by one house with a colbert running into the driveway which is less than a foot to hide the whole thing is under a five thousand dollars issue but nevertheless the sludge in the homeowners associations is charged with being sure that building codes are followed and that led to this issue today but that the point another important point is that the district judge points out that it was  week when that happened that it does not rise to the level of the even the scintilla of evidence the way i see it and i think that's the way the district court looked at it as well  nevertheless the court at page ten of this decision says the plaintiffs federal claims under the united states constitution in forty two u s c nine hundred forty three are dismissed with i believe that there is an internal inconsistency is in the court's order first page and page to be says our motion for summary judgment is designed there were the night nevertheless the court does find that all the federal claims are dismissed think it's the clear intent of the district judge to dismiss all the federal claims otherwise he wouldn't have remanded the hope case back to the state court thank you donna i'm i would point out as i believe that you've done of the opposing counsel can't come up with a conceivable reason for the denial of this permit it just simply isn't there the only reason they offer or fluffy we're going to protect people reasons in reality they did issue this permit while this dangerous culvert is still out there to someone else same plans same property same time period there's simply nothing different between us and there's no conceivable  us to replace or repair the covert they did not repair the basically about april i believe of two thousand and fourteen they actually went out there and repaired the culvert themselves and i think that's a salient point that you're making it and so when talk about nobody's contesting we did eventually repair the covert that's true they eventually repaired the covert but the agreement was you were going to take our fifteen hundred dollars and government her not to take our fifteen hundred dollars and go harass us until we simply refused to do it is a very short period but i do want to read from it in the record two five zero five and this is the section to the posing council leaves out their brief they repeat them but they never points out their brief in this the last paragraph says this is to be completed within thirty days from the date of notice when what this referencing is ltd repairing the call for if this repair has not been done then say sluggers utility district will take the necessary steps to complete the project and keep the money to cover the costs and that  will necessary steps to complete the project done we are finished and so when they keep coming back to this covert issuing we want you to go out and fix the covert they're simply trying to force us to do something they no longer have any means to force us to do by unconstitutional removed this court does not have jurisdiction to rip to review that and again that is in my motion to dismiss that that has been addressed by this court or the yes but let me say this the way the meeting began was we're going to deny all permits to you going forward you will have no permits if you do not agree to do these things and so my clients in that situation where he can't get any projects going he has a project that is already so he's already got committed on the owners have told him they're going to terminate if you can't get this going so he was at that point under duress and was going to say just about anything so you get that conditional  so did he say that yeah it was the agreement already resolved yes was there any consideration offered to him for doing that not of there's no consideration they don't have discretion to deny this permit once he meets those criteria once he does the things he supposed to do they're supposed to issue get your client your build your own or to terminate your contract that you are in had they lived up to their runners specifically the reasons he put forth in his letter to us of why he was terminating his contract was because you can't get approval of case under submission thank you