NO. 13-15-00494-CV 

 IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI, TEXAS

____________________________________________________________

THE STATE OF TEXAS,

APPELLANT,

 v.

YS & LS & LS PARTNERSHIP, LTD., ET AL.,

APPELLEE

___________________________________________________________

ON APPEAL FROM COUNTY COURT AT LAW 3

NUECES COUNTY, TEXAS

____________________________________________________________

APPELLEE’S BRIEF

____________________________________________________________

 Mr. Forrest “Jerry” Dorsey

P.O. Box 30084

Corpus Christi, TX 78404

Christopher Dorsey

606 N. Carancahua, Suite 1001

Corpus Christi, TX 78401

Attorneys for YS & LS & LS Partnership, 

Ltd.

1

ACCEPTED

13-15-00494-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

12/18/2015 1:31:02 PM

Dorian E. Ramirez

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/18/2015 1:31:02 PM DORIAN E. RAMIREZ Clerk
Table of Contents 

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 5

Analysis and Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. Appelle Properly pleaded inverse condemnation . . . . . . . . . . . . . . . . 7

II. Westgate’s exception applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2
Index of Authorities 

Cases

Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 640-641 (Tex. 

App.--Houston [1st Dist.] 1999, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 8 

City of Austin v. Teague, 570 S.W.2d 389, 393-94 (Tex. 1978) . . . . . . . . . 10

Davis v. City of Palestine, 988 S.W.2d 854, 858-859 (Tex. App.--Tyler 1999, 

no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

General Services v. Little-Tex. Insulation, 39 S.W.3d 591, (Tex. 2001) . . 7

Harris County Flood Control Dist. v. Adam, 56 S.W.3d 665, 669-670 (Tex. 

App.--Houston [14th Dist.] 2001, pet. dism'd w.o.j.). . . . . . . . . . . . . . . . . . 8

Porretto v. Patterson, 251 S.W.3d 701, 707-710 (Tex. App.--Houston [1st 

Dist.] 2007, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

State v. Brownlow, 319 S.W.3d 649, 652 (Tex. 2010) . . . . . . . . . . . . . . . . 7

State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) . . . . . . . . . . . . . . . . . 7 

Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 551-554 (Tex. 

2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Texas S. Univ. v. Cape Conroe Property Owners Ass'n, 245 S.W.3d 626, 

630-632 (Tex. App.--Beaumont 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . 8 

Westgate, Ltd. v. State of Texas, 843 S.W.2d 448 (Tex. 1992) . . . . . 6, 9, 10 

3
Summary of the Argument

 Appellee properly pleaded intentional and bad faith acts by the State to 

affirm the trial court’s denial of the plea to jurisdiction. The State’s primary 

case provides an exception for intentional and bad faith acts by the State 

instead of merely unreasonable acts.

Issue Presented 

1. Whether YS & LS & LS Partnership, Ltd.’s claims for damages and 

other relief in its Counterclaim are barred by Texas’s sovereign immunity.

4
NO. 13-15-00494-CV 

 IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

AT CORPUS CHRISTI, TEXAS

____________________________________________________________

THE STATE OF TEXAS,

APPELLANT,

 v.

YS & LS & LS PARTNERSHIP, LTD., ET AL.,

APPELLEE

___________________________________________________________

ON APPEAL FROM COUNTY COURT AT LAW 3

NUECES COUNTY, TEXAS

TO THE HONORABLE COURT OF APPEALS: 

Appellee, YS & LS & LS Partnership, Ltd., submits this brief 

requesting that this Honorable Court affirm the trial court’s denial of the 

State’s plea to the jurisdiction.

Statement of Facts 

 The State filed its Original Petition for Condemnation on October 13, 

2013 with the interested parties as YS & LS & LS Partnership, Ltd 

(Appellee), Compass Bank, and First Victoria National Bank. (Clerk’s 

5
Record, hereinafter “CR”, at 5). The Special Commissioners appointed by 

the trial court held a hearing and awarded $150,000 in damages, compared 

to the State’s last offer of $34,1000. (CR 77, 109). The State objected to 

the award. (CR 74-76). 

 In response, Appellee filed a Verified Original Answer, Plea in 

Abatement, and Counterclaim on July 17, 2014. (CR 77-84). Appellee 

alleges that the State’s acts “constitute an intentional damaging or taking of 

the property . . .in that the State had actual knowledge of the damage or 

taking and that harm would be substantially certain to occur.” (CR 81, 

Counterclaim). 

 In response, the State filed a plea to the jurisdiction (87-92) and an 

amended petition, the current live pleading for the State, removing 

Compass Bank from the Petition and attempting to substitute Prosperity 

Bank for First Victoria National Bank (CR 95-104). Prosperity Bank 

answered with a general denial and requested that Plaintiff “take 

nothing.” (CR 106-108).

 The State then filed a Supplement to its plea to the jurisdiction, 

alleging simply that Appellee’s pleadings are “not recognized as 

recoverable under Texas law.” (CR 113, citing Westgate, Ltd. v. State of 

6
Texas, 843 SW2d 448, 454 (Tex. 1992)). The State based its plea to the 

jurisdiction on the pleadings only and did not attach any evidence to 

support its claim. (Id.). (See also CR 87-92, Plea to Jurisdiction). Appellee 

filed a response. (CR 116-121) and, after a non-evidentiary hearing, the 

trial court denied the State’s motion on September 24, 2015. (CR 122).

ANALYSIS AND ARGUMENT

A. APPELLEE PROPERLY PLEADED INVERSE CONDEMNATION

Without offering any evidence and relying solely on the pleadings, the 

State claims the inverse condemnation or taking counterclaim is barred by 

sovereign immunity. (CR 87-92, 113). However, sovereign immunity from 

suit does not protect the State from a claim under the takings clause. State 

v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). See also State v. Brownlow, 

319 S.W.3d 649, 652 (Tex. 2010). 

 A pleading asserting an unlawful taking of private property must 

allege that (1) the State intentionally performed certain acts (2) that 

resulted in a "taking" of property (3) for public use. General Services v. 

Little-Tex. Insulation, 39 S.W.3d 591, 598 (Tex. 2001). In a similar case, 

the trial court properly denied plea to jurisdiction because even if plaintiff 

alleged mere negligence rather than intent, that pleading failure could be 

corrected by amendment. Harris County Flood Control Dist. v. Adam, 56 

7
S.W.3d 665, 669-670 (Tex. App.--Houston [14th Dist.] 2001, pet. dism'd 

w.o.j.). See also Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 

640-641 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (dismissal for 

lack of jurisdiction was error when failure to plead intent was curable by 

amendment); Davis v. City of Palestine, 988 S.W.2d 854, 858-859 (Tex. 

App.--Tyler 1999, no pet.) (summary judgment on inverse condemnation 

claim was improper even though plaintiff's pleadings were inartful and 

defective in pleading element of intent because city did not specially except 

and summary judgment proof did not negate city's intent).

 Here, Appellee pleaded that (1) it is the owner of property in Nueces 

County; (2) the State’s acts “constitute an intentional damaging or taking of 

the Property” and that the State had actual knowledge of the damage or 

taking and that the harm would be substantially certain to occur; and (3) 

“these acts by the State were intended for public use.” (CR 80-81, 

Counterclaim for Inverse Condemnation). 

 These pleadings are sufficient to confer subject-matter jurisdiction on 

the trial court. Though a plaintiff must plead and ultimately prove the 

requisite governmental intent, an allegation of that intent is sufficient at the 

pleading stage to survive the government's plea to the jurisdiction. Texas 

S. Univ. v. Cape Conroe Property Owners Ass'n, 245 S.W.3d 626, 630-632 

(Tex. App.--Beaumont 2007, no pet.) (allegations that defendant 

8
"obstinately" refused to pay assessments on real property were sufficient to 

state takings claim). Allegation that government conveyed lease on land 

owned by plaintiff was allegation of intentional act and was sufficient to 

state takings claim, so trial court improperly granted plea to jurisdiction. 

Porretto v. Patterson, 251 S.W.3d 701, 707-710 (Tex. App.--Houston [1st 

Dist.] 2007, no pet.). 

 The requisite intent to take the property is present when a 

governmental entity knows that specific acts are causing identifiable harm, 

or knows that the harm is substantially certain to result from those acts. 

Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 551-554 (Tex. 

2004). Here, Appellee has properly pleaded the State knew the specific 

acts were causing identifiable harm or knew the harm is substantially 

certain to result from those acts. (CR 81). 

II. WESTGATE’S EXCEPTION APPLIES 

 In its pleadings and Brief, the State almost exclusively relies on a 

single case in support of its plea to the jurisdiction- Westgate, Ltd. v. State 

of Texas, 843 S.W.2d 448, 454 (Tex. 1992). The Westgate exception 

applies to the pleadings here. 

 The Westgate opinion provided an exception to the general rule when 

the government acts intentionally or in bad faith. The Westgate court 

stated, “Westgate's legal theory in the trial court and on appeal has been 

9
that the government acted unreasonably, not that the government acted in 

bad faith in delaying the condemnation proceedings. The policy reasons 

that support our decision today might not be applicable where the 

condemning authority is accused of intentionally injuring a landowner. As 

the issue is not before us, however, we do not now address whether a 

landowner may state a cause of action for inverse condemnation where the 

condemning authority acts in bad faith to cause economic damage to the 

landowner.” Westgate, 843 S.W.2d at 452 (emphasis added). In other 

words, Westgate argued negligence, not intentional acts by the 

government, as is the case here. 

 In the case at hand, Appellee has pleaded intentional acts by the 

State, not mere negligence or unreasonable delays. (CR 81). Accordingly, 

Westgate supports a finding against the State’s plea to the jurisdiction 

based on the pleadings alone. Where courts have found direct 

governmental actions in which the governmental defendant had regulatory 

authority over the matter causing the plaintiff's harm, they have generally 

found a taking. See, e.g., City of Austin v. Teague, 570 S.W.2d 389, 393-94 

(Tex. 1978). Those cases generally involve current, direct restrictions on 

the property and may be combined with facts tending to show bad faith. 

See, e.g., Westgate, 843 S.W.2d at 452, 454; see also Teague, 570 S.W.2d 

at 393. 

10
 Here, the State Department of Transportation had direct regulatory 

authority over the condemnation proceedings and, combined with its 

intentional acts, supports jurisdiction in this case. 

PRAYER 

 Appellee respectfully prays that the Honorable Court affirm the trial 

court’s denial of the State’s plea to the jurisdiction. 

 Respectfully submitted, 

 By:_/s/ Jerry Dorsey_______

Mr. Forrest “Jerry” Dorsey 

Attorney at Law 

Texas Bar No. 0601600

P.O. Box 30084

Corpus Christi, TX 78404

Tel: (361) 882-6547

Fax: (361) 882-2769

Christopher Dorsey 

Texas Bar No. 24036493 

606 N. Carancahua, Suite 1001 

Corpus Christi, TX 78401 

Tel. (361) 882-9991 

Fax. (866) 926-1982 

Attorneys for YS & LS & LS Partnership, 

Ltd.

 

11
CERTIFICATE OF COMPLIANCE

 Pursuant to Texas Rule of Appellate Procedure 9.4, I certify this 

Appellee Brief contains 1,610 total words. This is a computer-generated 

document created in Pages, using 14-point typeface for all text, except 

footnotes which are in 12-point typeface (if any). In making this certificate 

of compliance, I am relying on the word count provided by the software 

“Pages” used to prepare the document. 

_/s/ Christopher Dorsey____________ 

CHRISTOPHER A. DORSEY

Certificate of Service

I certify that a true copy of the above was served on each attorney of 

record or party in accordance with the Texas Rules of Civil Procedure on 

December 18, 2015.

_/s/ Christopher Dorsey____________ 

CHRISTOPHER A. DORSEY

12