IN THE COURT OF APPEALS

SECOND DISTRICT OF TEXAS AT FORT WORTH

________________________________

No. 02-15-000119-CV

_________________________________

CITY OF CARROLLTON, TEXAS

V. 

MILAN HAMRLA, PETRA CHUDEJOVA, MICHAEL AND 

LAURA BREWER, DALIA CHAVARRIA, DIANE AND GENE 

HINES, AND KEITH EFFERT

___________________________________

APPELLEES' BRIEF

ORAL ARGUMENT IS REQUESTED

Bruce E. Turner

Texas Bar No. 20310500

bturner@bennettweston.com

J. Michael Weston

Texas Bar No. 21232100

jmweston@bennettweston.com

Bennett Weston LaJone & Turner PC

1603 LBJ Freeway, Suite 280

Dallas, Texas 75234

Telephone: 972-862-2332

Facsimile: 214-373-2570

ORAL ARGUMENT REQUESTED

ACCEPTED

02-15-00119-CV

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

7/10/2015 9:27:36 AM

DEBRA SPISAK

CLERK

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 7/10/2015 9:27:36 AM DEBRA SPISAK Clerk
ii

TABLE OF CONTENTS

Page

Table of Contents ......................................................................... ii

Index of Authorities ..................................................................... iv

Statement Regarding Oral Argument........................................... vii

Statement of Facts........................................................................ 1

The Slope............................................................................. 2

May 2009 ........................................................................... 4

Continuing Global Slope Failure........................................ 5

Carrollton's Warnings About Slope Failure ...................... 7

Missing Records ................................................................. 10

Taking Earth ...................................................................... 12

History................................................................................ 13

Retaining Wall.................................................................... 16

Problems from Slope Failure.............................................. 17

Summary of the Argument........................................................... 18

Argument ..................................................................................... 19

Standard of Review............................................................ 19
iii

Reply to Issue I - Inverse Condemnation..................................... 20

Inverse Condemnation ....................................................... 21

 Taking of Earth .................................................................. 24

Taking By Slope Failure ..................................................... 25

Knowledge of Effects of Actions ......................................... 26

Reply to Issue II - Negligence....................................................... 31

Negligence .......................................................................... 31

Reply to Issue III - Declaratory Judgment................................... 33

Prayer ........................................................................................... 36

Certificate of Compliance ............................................................. 37
iv

INDEX OF AUTHORITIES

Constitution and Statutes Page

Article I, section 17(a) of the Texas Constitution .............................. 18, 21

Tex. Civ. Prac. & Rem. Code § 37.004(a) .......................................... 34

Tex. Civ. Prac. & Rem. Code, § 101.001 et seq................................... 31

Tex. Civ. Prac. & Rem. Code, § 101.021 ............................................. 31

Cases

City of Amarillo v. Burch, 369 S.W.3d 684 (Tex. App. -

Amarillo 2012, no pet.)...................................................................... 23

City of Carrolton v. RIHR Inc., 308 S.W.3d 444

(Tex.App.-Dallas 2010, rev. denied) ................................................. 22, 29

City of Dallas v. Jennings, 142 S.W.3d 310 (Tex.2004) .................24, 28, 30

City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012)..................... 23

 

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ................ 35

City of El Paso v. Mazie's, L.P., 408 S.W.3d 13

(Tex.-El Paso 2012, rev. denied) ....................................................... 24

City of El Paso v. W.E.B. Investments, 950 S.W.2d 166

(Tex. App. - El Paso 1977, rev. denied).............................................. 31

City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014)................. 29

City of Houston v. Wall, 207 S.W.2d 664 (Tex.App.-

Galveston 1947, writ ref'd n.r.e.)....................................................... 23
v

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)...................26-27, 30

City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009)...... 26, 28-30

Cozby v. City of Waco, 110 S.W.3d 32 (Tex.App.-Waco 

2002, no pet.).................................................................................... 23

DuPuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965)........................ 22

Edwards Aquifer Authority v. Day, 

369 S.W.3d 814 (Tex. 2012).............................................................. 24

Hale v. Colorado River Mun. Water Dist., 818 S.W.2d 537 

(Tex.App.—Austin 1991, no writ) ...................................................... 24

Harris Cnty. Flood Control Dist. v. Kerr, --- S.W.3d ---, 

2015 WL 3641517, *2-3 (Tex. June 12, 2015).................................... 20

Hidalgo Cnty. Water Improvement Dist. No. 2 v. 

Holderbaum, 11 S.W.2d 506 (Tex. Comm'n App. 1928, 

judgm't adopted)............................................................................... 24

Hubler v. City of Corpus Christi, 564 S.W.2d 816 

(Tex.App.-Corpus Christi 1978, writ ref'd n.r.e.)............................... 23

Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537

(Tex.Civ.App.—Texarkana 1961, writ ref'd)....................................... 23

Manning v. Embridge Pipelines (East Texas), L.P., 

345 S.W.3d 718 (Tex. App. - Beaumont 2011, rev. denied)............... 34

Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697

(Tex. 2002)........................................................................................ 25

Mayhew v. Town of Sunnyvale, 964 S.W.3d 922 

(Tex. 1998) ........................................................................................ 21-22
vi

Roberson v. City of Austin, 157 S.W.3d 130

(Tex. App.-Austin 2005, pet. denied)................................................ 34

Simon v. Nance, 45 Tex. Civ. App. 480, 100 S.W. 1038

(Tex. Civ. App. - Austin 1907, no hist.) ............................................. 26

State v. Brownlow, 319 S.W.3d 649 (Tex. 2010).............................. 22, 24

Suarez v. City of Texas, --- S.W.3d ---, WL 3802865 

(Tex. June 19, 2015) ......................................................................... 20

Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546

(Tex.2004)......................................................................................... 22, 27

Texas Dept. of Parks & Wildlife v. Miranda, 

133 S.W.3d 217 (Tex. 2004) .............................................................. 21

Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011)............. 35

Texas Parks & Wildlife Depar't v. Callaway, 

971 S.W.2d 145 (Tex.App.-Austin 1998, no pet.)............................... 23

Williams v. Thompson, 152 Tex. 270,

256 S.W.2d 399 (1953)...................................................................... 26
vii

STATEMENT REGARDING ORAL ARGUMENT

The Record is extensive and, in places, quite technical. Oral 

argument could assist the Court by permitting the parties to address 

questions from the Court about the evidence and the applicable law.
-1-

IN THE COURT OF APPEALS

SECOND DISTRICT OF TEXAS AT FORT WORTH

________________________________

No. 02-15-000119-CV

_________________________________

CITY OF CARROLLTON, TEXAS

V.

MILAN HAMRLA, PETRA CHUDEJOVA, MICHAEL AND 

LAURA BREWER, DALIA CHAVARRIA, DIANE AND GENE 

HINES, AND KEITH EFFERT

___________________________________

APPELLEES' BRIEF

Milan Hamrla and Petra Chudejova, Michael and Laura Brewer, Dalia 

Chavarria, Diane and Gene Hines, and Keith Effert file their Appellees' 

Brief.

STATEMENT OF FACTS

Carrollton relies upon its vague and erroneous assertions that it "did 

not know, could not have known, and was not substantially certain, that 

any of its actions would result in specific damage." Appellant's Issue I, 

Brief p. 5. Appellant makes scant mention of the Record. Appellees'
-2-

references to the record1 demonstrate they that have satisfied their burden 

in establishing jurisdiction.2

The Slope

This case involves a slope failure on Dudley Branch Creek in 

Carrollton along the rear of the Appellees' homes.3 Earth from the 

Appellees' properties moved onto Carrollton's Dudley Branch Creek right of 

way.4 Carrollton's Director of Engineering, Cesar Molina, evidenced 

Carrollton's attitude towards the slope failure:

Q. How would you evaluate whether or not or how you would put 

the earth back?

A. I guess they're welcome to go in there and just dig it out. Put it 

back on their property.

Q. So you're going to put it on the Appellees to take back what the 

city now has?

A. The city did not take it from them. It moved there.

Q. Well, you do admit the city has it?

 1 References to the Record will be have the appropriate volume number with the 

type of as follows: Court Record = C.R., Supplemental Court Record = Supp. 

C.R., Reporter's Record = R.R. The reference shall be followed by a page 

reference or for plaintiff or defendant exhibit number in volume 5 of the Report's 

Record to a document. For example, 2 C.R. at 2505, 5 R.R., DX 2.

2 Appellees refer to just a portion of the evidence before the trial court.

3 The common word for a slope failure is landslide.

4 2 C.R. at 2504. 
-3-

A. Something moved it there. I'm sure some of it was dirt that was 

on this side. Now it's on that side.5

The suggestion ignores the warnings of Carrollton's expert regarding the 

caution with which the earth on the landslide slope must be handled.6 

 Geotechnical engineers, particularly Carrollton's geotechnical 

engineer, Terracon Consultants, explained the slope failure.7 In its October 

2, 2009 Report, Terracon noted as probable causes of the slope failure the 

"presence of groundwater and seepage from the heavy rainstorms leading 

up to the slope's failure."8 The soil behind the retaining wall at 1325 

Barclay after the landslide was so wet and unstable that Terracon could not 

drill bore holes in which to place inclinometers to measure the movement 

of the slope.9 

Appellees' expert, Mark Farrow, summarized the causes of the slope 

failure:

The homes were built below the street grade, which . . . meant the 

drainage was extremely poor. The drainage from the lots had to run 

back to the retaining wall, which would create a very poor drainage 

condition in the back of those properties. 

 5 2 C.R. at 2505. 

6 1 C.R. at 1201-1205.

7 1 C.R. at 934, 1193. 

8 1 C.R. at 1200-1201. 

9 1 C.R. at 944, 1197.
-4-

The wall was constructed along a slope that was much too steep 

for a retaining wall. A 3-to-1 slope is much too steep . . . to be placed 

next to a retaining wall, because . . . as [Carrollton's expert] indicated, 

you see slope failures in 3-to-1 slopes routinely in levees and highway 

embankments . . . that is not in proximity to any . . . structure or 

residential improvement is one issue, but when you have a slope 

failure beneath a retaining wall that is supporting residential 

improvements and a residence, that is a much -- much larger concern, 

and so retaining walls are just not constructed on -- on slopes that 

steep. . . . [A]s Terracon concluded in their report, they indicated that 

the failure was due to deterioration of the soil, but when you do a 

global stability study -- as engineers, when we do a global stability 

study, we model -- actually model the soil in a deteriorated condition. 

We determine how -- when we do triaxial testing or direct shear

testing, we actually model how soft the soil will get in a deteriorated 

condition. And from their study, they indicated the factor of safety 

was -- was 1.2 without any water impacts, which is well below a safe 

factor of safety of 1.5.10

Carrollton controlled the "presence of groundwater and seepage from the 

heavy rainstorms" through its retaining wall, its Dudley Branch right of way 

and its drainage system in the addition. Carrollton violated its own 

standards related to the "presence of groundwater and seepage from the 

heavy rainstorms leading up to the slope's failure."

May 2009

 10 1 C.R. at 973-974, see also 1 C.R. at 977-981. Carrollton's in-house engineer only 

disagreed with Terracon's report with regard to the measurement of the slope. 1 

C.R. at 1033. See 2 Supp. C.R. at 1476-1486.
-5-

It rained heavily during the night of May 3-4, 2009.11 In the morning, 

Appellee Hamrla, 1325 Barclay Drive, found that his back fence was 

destroyed, the retaining wall on his property had sunk three feet and moved 

eight to ten feet towards Dudley Branch.12 By July 2013, the drop was 

more than seven feet.13 The landslide was not isolated to 1325 Barclay.14 

Appellees did not cause the landslide.15 Appellees cannot prevent the 

slope failure from continuing.16 The retaining wall failure was caused by,

and not a cause of, the landslide.17 On May 11, 2009, Carrollton's engineer 

stated that repair of the retaining wall would not solve the slope failure.18 

The affected properties cannot be sold without disclosure of the 

landslide. Tex. Prop. Code, § 5.008. The homes have no value.19

Continuing Global Slope Failure

Unless something impedes its movement, gravity will cause a slope to

flatten.20 The likelihood of slope movement is called the factor of safety.21 

 11 1 C.R. at 914-915. 

12 1 C.R. at 914, 923. 

13 1 C.R. at 915.

14 1 C.R. at 1208.

15 1 C.R. at 973-975. 

16 1 C.R. at 974-975, 1357. 

17 1 C.R. at 1449.

18 1 C.R. at 944, 1197,1470.

19 1 C.R. at 899, 928.

20 1 C.R. at 940-941, 2 C.R. at 2144. 

21 1 C.R. at 941-2, 2 C.R. at 2145. 
-6-

The higher the factor of safety, the more stable the slope.22 A factor of 

safety of 1.5 or more indicates a stable slope.23 The International Building 

Code adopted by Carrollton requires a factor of safety of 1.5 for retaining 

walls.24 According to the Terracon report, the slope's existing factor of 

safety at the retaining wall before heavy rainfall lead to the slope failure was 

of 1.013, which signifies imminent failure.25 A factor of safety of one 

designates an occurring landslide or slope failure.26 

Carrollton's expert described the slope failure as "continuing global 

failure" and stated that "the failure wasn't just in the yard, it went under the 

retaining wall and the retaining wall didn't actually fail. You had a global 

landslide that impacted the retaining wall."27 The scarp of the failed slope 

continues to move towards and then under the Appellees' homes.28 

Carrollton governs drainage in Rosemeade 14, on Barclay Drive, and 

into Dudley Branch all of which contributed to the slope failure.29 The 

retaining wall is part of Carrollton's drainage infrastructure, as are the 

 22 1 C.R. at 943, 2 C.R. at 2147. 

23 4 R.R. at 1120. 

24 1 R.R. at 1115, 2 C.R. at 1982. 

25 1 C.R. at 942, 1291, 1221. 

26 1 C.R. at 1222, 2 C.R. at 2147. 

27 2 C.R. at 2090. 

28 1 C.R. at 950, 976.

29 Carrollton Ordinance 2581, 1 C.R. at 1228-1339.
-7-

Dudley Branch right of way and the sanitary sewer line easement on which 

the retaining wall was constructed.30 

Carrollton's Warnings About Slope Failure

Carrollton has adopted ordinances and standards to deal with 

drainage and the problems of erosion.31 Those ordinances and standards 

set standards that are to be met to avoid the problems experienced with the 

Barclay slope. Carrollton violated its own standards with regard to 

drainage on Barclay Drive and Dudley Branch Creek and retaining wall. 

Carrollton's Ordinance No. 2581, "Stormwater and Flood Protection 

Ordinance,"32 states a purpose of the Ordinance to be "Control and manage 

all stormwater runoff and drainage from points and surfaces within 

subdivisions."33 The Stormwater Ordinance applies to all areas of land 

within Carrollton, including, with certain exceptions, property owned by 

Carrollton.34 In this case, Dudley Branch, Barclay Drive and the retaining 

wall are part of Carrollton's drainage infrastructure.35 

 30 2 Supp. C.R. at 932.

31 2 C.R. at 1503. 

32 1 C.R. at 1228. 

33 1 C.R. at 1229. 

34 1 C.R. at 1241. 

35 1 C.R. at 1271, 2 C.R. at 1563.
-8-

In its requirements for the Design of Local Drainage Systems, Section 

C Street and Alley Capacities, the Stormwater Ordinance provides in 

paragraph 3: 

The first floor elevations of all residential and other structures shall 

be set at a minimum elevation of the lower of either 1.5 feet above the 

alley invert or one foot above the top of the street curb elevation, and 

with positive drainage provided away from the structure.36

Appellees' homes on the creekside of Barclay Drive are below the elevation 

of Barclay Drive and do not drain on to Barclay Drive. Water at the front of 

the homes flows to the homes and then towards Dudley Branch.37

In its report, Terracon found that the Dudley Branch Creek slope was

three feet horizontal to one foot vertical.38 This slope, maintained by 

Carrollton, violates the Stormwater Ordinance which requires a 4 to 1 

slope.39 

In its December 1992 Erosion Control Master Plan Carrollton makes 

a number of comments directly relevant to the allegations regarding 

Carrollton's obligations for the landslide.40 A significant concern in the 

 36 1 C.R. at 1261, 2 C.R. at 1571. 

37 1 C.R. at 973.

38 1 C.R. at 1219. 

39 1 C.R. at 1268, 2 C.R. at 1562 (Ordinance No. 1375 enacted in December 1986).

40 1 C.R. at 1340.
-9-

Erosion Control Master Plan was the stability of sideslope.41 Regarding the 

erosion process, the Erosion Control Master Plan states:

Many of the channel areas in the City of Carrollton are located in clay 

soils. Clay soils have high cohesive properties and under dry 

conditions will exist with steep banks. Under high rainfall and 

flooding conditions the clay soils become saturated and lose their 

cohesive strength. The loss of cohesive strength results in unstable 

slopes and sideslope failures. A frequently experienced erosion 

process includes the following conditions: 

7. Steep channel sideslopes become saturated and unstable.

8. Sideslopes fail in unstable planes and continue to become 

wider and deeper.42 (Emphasis added) 

The erosion process causes a three fold problem, the second of which is 

"Channel sideslopes are unstable and are subject to sloughing or rotational 

failures.43 

Regarding the specific area in which the slope failure occurred, 

Carrollton's December 1992 Erosion Control Master Plan states "This 

erosion is undermining the concrete channel section and resulting in slope 

failures. The slope failures are in danger of impacting retaining walls, 

fences, and residences.44 (Emphasis added).

 41 1 C.R. at 1342, 1343. 

42 1 C.R. at 1344.

43 1 C.R. at 1344. 

44 1 C.R. at 1335.
-10-

Understanding that Terracon's October 2009 report described the 

earth at the slope failure as various forms of clay,45 the following statement 

from the Erosion Control Master Plan is particularly important:

The worst case condition for slopes, which consisted of

predominantly clay soils, occurs when the slopes become saturated 

from frequent rainfall and flooding. Under these conditions the clay 

soils loose their cohesive strength and develop internal water 

pressure which result in slope failures. Retention systems must be 

designed to prevent these soils from movement under these 

conditions.46

(Emphasis added). The quoted excerpts show Carrollton knew that its 

failure to follow its own standards would result in slope failure.

Missing Records

Carrollton's failure to maintain legally mandated records,47 some of 

which once existed and others of which were never maintained complicated 

the presentation of evidence.48 

As an example of the impact of the missing documents, Appellees 

direct the Court to testimony from Michael McKay, the Carrollton engineer 

in charge of "review of development plans, . . . construction inspection, and 

 45 1 C.R. at 1199-1200.

46 1 C.R. at 1358.

47 1 C.R. at 2223-2228. 

48 2 C.R. at 2216, 2223-2234.
-11-

. . . drainage,"49 regarding the retaining wall that is central to this case.50 

The exhibit being discussed states that Carrollton "approved the 

construction plans for the wall, inspected the wall during construction and 

accepted the improvements on completion." Carrollton also received a 

maintenance bond for the wall.51 Looking at the exhibit, McKay testified:

Q. Okay. Then the next sentence says, the City approved the 

construction plans for the wall. Do you see that?

A. Yes.

Q. Did you find anything in the records of the City of Carrollton 

improving -- approving the construction plans for the wall?

A. No, I did not.

Q. The next section says, inspected the wall during construction. 

Did you find anything that related to inspection of the wall 

during construction?

A. I found no documentation of that.

Q. And that the City accepted the improvements on completion. 

Do you see that?

A. I see that, yes.

 49 2 R.R. at 31.

50 According to McKay, Carrollton has no standards for retaining walls in private 

property other than have to be signed and sealed by a professional engineer. 2 

R.R. at 44. However, Carrollton adopted the International Building Code with 

regard to retaining walls which requires a factor of safety of 1.5. 1 C.R. at 1044. 51 1 C.R. at 1225.
-12-

Q. Did you find anything that says that they accepted the 

documents -- the retaining wall?

A. I saw no specific documents that said that they had accepted 

it.52 

Documents once existed related to the first retaining wall include (a) 

a proposal and contract for a reinforced concrete retaining wall, (b) a 

"Preliminary Engineering Observation Report" on the retaining wall failure, 

(c) letters from Carrollton regarding review of retaining wall repairs, (d) a 

letter from engineers revising plans for retaining wall repair, (e) a letter 

requesting city fill in eroded areas along retaining wall, and (f) documents 

related to decision of builder not to develop lots between 1319 and 1331 

"because they were deemed to be undesirable."53 Carrollton provided no 

explanation for the failure to produce the documents in discovery other 

than the documents do not exist.

The Motion for Sanctions details more problems with documents.54 

Taking Earth

Carrollton is taking earth from both the surface of and under 

Appellees’ properties.55 The slope failure occurs underground.56 The earth 

 52 2 Supp. C.R. at 1581, 2 R.R. at 63-67. 

53 1 C.R. at 1226-1227.

54 2 C.R. at 2216.

55 2 C.R. at 2088-2089. 
-13-

movement damaged and damages the surface and surface structures, 

including to the retaining wall and the subsurface.57 

History

In 1981, Carrollton accepted a 15 feet wide sanitary sewer easement 

along what became the rear of the affected Barclay properties.58 The 

property owners subject to the easement, including all of Appellees, cannot 

construct anything on the easement without Carrollton's permission.59

Carrollton approved the Rosemeade 14 final plat in September 

1986.60 The retaining wall was built on the sewer easement.61 On July 21, 

1987, Carrollton accepted the retaining wall and a maintenance bond 

stating that the retaining wall had been correctly installed.62 The retaining 

wall is part of Carrollton's storm water drainage infrastructure.63 

Stormwater in Rosemeade 14, other than for the odd side of Barclay Drive, 

drains on to the roads and alleys of the subdivision. Barclay Drive is higher 

 56 1 C.R. at 951-952. 

57 1 C.R. at 952, 2 C.R. at 2089.

58 1 C.R. at 1103. 

59 2 R.R. at 51.

60 5 R.R. DX 2.

61 5 R.R. DX 2, Rosemeade010.

62 1 C.R. at 1225.

63 Tumulty Deposition, 2 C.R. at 2340-2341, Molina Deposition, 2 C.R. at 2442, 

2446-2448, 2450.
-14-

than the affected Barclay properties.64 The Dudley Branch slope is too 

steep.65 

The retaining wall had problems in 1987 behind 1317 and 1319 

Barclay Drive. Documents related to the problems once existed.66 In 

February 2007, Carrollton declared that the retaining wall located at 1317 

and 1319 Barclay:

has been found in a state of disrepair and appears structurally 

unsound and is in danger of collapse causing an obstruction of the 

drainage channel and possible severe damage to the homes located at 

both 1317 Barclay and 1319 Barclay. The conditions of the retaining 

wall render the structure and premises as a "Dangerous Building."67 

Other than the notices, no documents exist.

In the 1990's an event occurred which evidences slope failure.68 

Carrollton has no geotechnical engineer report explaining the "wall 

failure."69 In 1993, Carrollton's Engineering Department issued warnings 

about construction on affected Barclay Drive properties.70 Nine of the 

 64 1 C.R. at 973. 

65 1 C.R. at 973.

66 2 Supp. C.R. at 392. 

67 1 C.R. at 1429-1431.

68 1 C.R. at 964-965.

69 1 C.R. at 1103, 2 C.R. at 2220, 2230-2233.

70 1 C.R. at 1099-1102. "These addresses are empty lots that back up to Dudley 

Branch. There is a retaining wall on the back of the lots. This wall has failed in 

several areas (1341-1343 & 1347) where either the house or the pool/spa is within 

10 feet of the retaining wall. To avoid anymore possible wall failures, I would 

suggest that the builder place the house as close to the street as legally allowed."
-15-

houses on the affected Barclay properties were constructed after the 1990's 

event, including homes located at 1323-1329 Barclay Drive.71 

After the 1990's problems with the slope and retaining wall, 

Carrollton conducted no investigation of the slope or the retaining wall. 

Carrollton continues to maintain and repair Dudley Branch, Barclay Drive 

and the retaining wall so as to continue the factors that caused the slope 

failure. 

In 2008, Carrollton, responding to information about a crack in the 

retaining wall, inspected the retaining wall and took photographs. The 

photographs evidence an on-going slope failure.72 Before the May 2009

landslide, adjacent to Dudley Branch a large water filled hole developed in 

the Dudley Branch channel due to erosion.73 The hole and water may have 

changed the factor of safety of the slope.74 Carrollton filled the hole after 

the May 2009 slope failure.75

When faced with accumulating water on their lots, some Barclay 

residents attempted to alleviate the accumulation of water by installing 

 71 1 C.R. at 1109-1110.

72 1 C.R. at 965.

73 1 C.R. at 465 (photograph after repair), 1441.

74 1 C.R. at 964-965. 

75 1 C.R. at 736-737.
-16-

French drains to move the water to Dudley Branch. 76 Accepted 

engineering standards and Carrollton's standards require French drains for 

lots with retaining walls.77 French drains were not installed as part of the 

retaining wall or of the drainage system.

Retaining Wall

Retaining walls are supposed to permit the drainage of water along 

and under a slope, and to impede movement of the slope and objects (earth 

and improvements) down the slope.78 

The Rosemeade 14 developer submitted an "as-built" drainage plan 

dated June 1986.79 The as-built drainage plan merely states "construct" a 

retaining wall and provides no drawings of the retaining wall.80

Carrollton’s drainage system resulted in the affected Barclay properties 

draining to the back of the lots where ponding occurred adjacent to the 

 76 1 C.R. at 419, 910.

77 1 C.R. at 2688, Carrollton General Design Standards, page 24, Section 3G-2 

"French Drain System: A french drain system, composed of a minimum six inch 

diameter perforated PVC pipe, will be installed between the back of curb and 

right-of-way line whenever adjoining lot elevations necessitate the use of 

retaining walls to maintain lot grades. French drain system must be connected to 

the storm sewer system."

78 2 C.R. at 1982.

79 5 R.R. DX 2, Rosemeade010.

80 5 R.R. DX 2, Roll031-TS000170. Note that the other "plans" are detailed 

drawings.
-17-

retaining wall.81 The affected Barclay properties become saturated which 

lowers the slope's factor of safety, which contributed to the slope failure. 

Carrollton violated accepted engineering standards and its standards 

with regard to the retaining wall and the drainage of the affected Barclay 

properties.82

Problems from Slope Failure

The surface effect of the slope failure can be seen in February 2008, 

May 2009, 2011 and 2013-2014 photographs of the backyard at 1325 

Barclay Drive.83 The Brewer Appellees abandoned their swimming pool for 

safety concerns.84 Adjacent properties have similar but less severe 

problems. Appellee Effert (1329 Barclay Drive), David Wozniak (1343 

Barclay Drive) and other owners of property behind the reconstructed

retaining wall have seen the anchored retaining wall sinking, the earth 

moving towards Dudley Branch and the retaining wall breaking. 85 The 

Effert property sinks so much that Effert spreads 200 forty pound bags of 

dirt on his backyard each year.86

 81 2 C.R. at 2376-2380.

82 2 R.R. at 76-77.

83 1 C.R. at 1086, 1088, 1453-1454, 5 R.R., PX 16, 18, 27 and 30.

84 1 C.R. at 892, 902.

85 3 R.R. at 87-88, 91.

86 3 R.R. at 87.
-18-

All of Carrollton actions with regard to drainage, maintenance of 

Barclay Drive, and erosion control were accomplished with motor driven 

vehicles and motor driven equipment.87 Carrollton's actions constitute 

negligence and proximately caused the injuries and damages of which 

Appellees complain.

SUMMARY OF THE ARGUMENT

Issue I

Carrollton established standards to be followed for stormwater and 

drainage infrastructure in its territory. Carrollton justified its standards by 

noting the consequences of failing to adhere to the standards, including 

specific references of resulting slope failure. Carrollton did not follow its 

standards with regard to Appellees' properties. The warned of 

consequences occurred in the form of a continuing global slope failure.

Carrollton's actions constituted a taking under Article I, Section 17(a) 

of the Texas Constitution.

Issue II

 87 1 Supp. C.R., 30-31, 2 Supp. C.R., 880-881, 945-949.
-19-

Carrollton's actions with regard to Appellees' breached Carrollton's 

obligations to Appellees as established by Carrollton. The breaches 

proximately caused Appellees injuries and damages.

Issue III

The court has jurisdiction over Appellees' damages claims against 

Carrollton and that jurisdiction includes jurisdiction needed to assert 

claims for Declaratory Judgment relief. Appellees seek a declaration of 

Carrollton's duties and obligations regarding stormwater and drainage 

under its standards and ordinances with regard to Appellees' properties.

ARGUMENT

Standard of Review

This is the standard of review of the denial of Carrollton's Plea to 

Jurisdiction: 

Whether subject-matter jurisdiction exists is a question of law that 

can be challenged, as it was here, by a plea to the jurisdiction. Bland 

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). We review 

de novo the disposition of Texas City's jurisdictional plea. Miranda, 

133 S.W.3d at 226. Because we address a plea to the jurisdiction in 

which disputed evidence implicates both the court's subject-matter 

jurisdiction and the merits of the case, we consider relevant evidence 

submitted by the parties to determine if a fact issue exists. Id. at 227. 

We take as true all evidence favorable to the nonmovant, indulge 

every reasonable inference, and resolve any doubts in the 

nonmovant's favor. Id. at 228. If the evidence creates a fact question 

regarding jurisdiction, the plea must be denied pending resolution of 
-20-

the fact issue by the fact finder. Id. at 227–28. If the evidence fails to 

raise a question of fact, however, the plea to the jurisdiction must be 

granted as a matter of law. Id. at 228.

Suarez v. City of Texas, --- S.W.3d ---, 2015 WL 3802865, *6 (Tex. June 19, 

2015); also Harris Cnty. Flood Control Dist. v. Kerr, 2015 WL 3641517, *2-

3 (Tex. June 12, 2015). Appellees met their burden to sustain jurisdiction 

over this matter. 

Reply to Issue I.

Whether the trial court has subject-matter jurisdiction over 

Appellees’ takings claim when the evidence shows the City did not 

know, could not have known, and was not substantially certain, that 

any of its actions would result in specific damage to Appellees’ 

property.

Carrollton violated the standards it imposed to control stormwater 

and drainage and caused the injuries Carrollton used to justify the 

imposition of its requirements. This fact alone establishes the requisite 

knowledge and intent. Harris Cnty. Flood Control Dist. v. Kerr, 2015 WL 

3641517 at *3:

In a takings case, “the requisite intent is present when a 

governmental entity knows that a specific act is causing identifiable 

harm or knows that the harm is substantially certain to result.” 

Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004). 

It is not enough that the act causing the harm be intentional–there 

must also be knowledge to a substantial certainty that the harm will 

occur. City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 

(Tex.2004). Intent, in takings cases as in other contexts, may be 
-21-

proven by circumstantial evidence. See Spoljaric v. Percival Tours, 

Inc., 708 S.W.2d 432, 435 (Tex.1986). 

Carrollton warned of the consequences of not complying with its drainage 

requirements. Carrollton did not comply with its standards. The warned of 

consequences occurred.

The district court has jurisdiction over Appellees' claims for taking 

private property for public use without just compensation. Tex. Const. Art.

I, § 17. Sovereign immunity has been waived under the Texas Tort Claims 

Act. Because jurisdiction exists for Appellees' taking and tort claims, 

jurisdiction exists over Appellees' Declaratory Judgment Act claims to 

determine Carrollton's obligations to remedy the slope failure and maintain 

the property in its control so as to avoid a recurrence of the slope failure.

Appellees filed sufficient pleadings and provided extensive evidence

that precludes the granting of Carrollton's plea to jurisdiction. Texas Dept. 

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). 

Inverse Condemnation

Article I, section 17(a) of the Texas Constitution provides that: "No 

person's property shall be taken, damaged, or destroyed for or applied to 

public use without adequate compensation being made, unless by the

consent of such person . . . ." See Mayhew v. Town of Sunnyvale, 964 
-22-

S.W.3d 922, 933 (Tex. 1998); City of Carrolton v. RIHR Inc., 308 S.W.3d 

444, 448-449 (Tex.App.-Dallas 2010, rev. denied) (dispute over payment 

for retaining wall repairs and city's demand for payment before issuance of 

a building permit was an unconstitutional exaction). 

Whether particular facts constitute an unconstitutional taking is a 

question of law for the court. Mayhew v. Town of Sunnyvale, 964 S.W.3d 

at 937. The Supreme Court wrote in State v. Brownlow, 319 S.W.3d 649, 

652 (Tex. 2010):

The essence of an inverse condemnation proceeding is that the 

government has intentionally taken or unreasonably interfered with 

an owner’s use of property and the property owner is attempting to 

recover compensation for the lost or impaired rights. (citations 

omitted)

A “taking, damaging, or destruction” for purposes of inverse condemnation 

is defined as the physical appropriation or invasion of property, or 

unreasonable interference with a landowner’s right to use and enjoy the 

property. See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 

(Tex. 2004); DuPuy v. City of Waco, 396 S.W.2d 103, 108 -109 (Tex. 1965). 

The evidence is that earth from the surface and below the Appellees' 

properties is on or under Carrollton's Dudley Branch right of way. 

Carrollton's apparent objection to the inverse condemnation is not to the 
-23-

fact of the taking but how the taking of the earth occurred.

A "taking, damaging or destruction" constituting inverse 

condemnation can occur in a variety of ways:

a. declaration of a nuisance and the demolition of the property. City of 

Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012). 

b. requirement to lower and encasing pipe line under streets 

established after area incorporated. Magnolia Pipe Line Co. v. City 

of Tyler, 348 S.W.2d 537, 540 (Tex.Civ.App.—Texarkana 1961, writ 

ref'd).

c. diversion of water through streets and other city "infrastructure" 

onto landowner's property. City of Amarillo v. Burch, 369 S.W.3d 

684 (Tex. App. - Amarillo 2012, no pet.). 

d. drainage in excess of natural drainage. Hubler v. City of Corpus 

Christi, 564 S.W.2d 816 (Tex.App.-Corpus Christi 1978, writ ref'd 

n.r.e.). 

e. change in drainage flow. City of Houston v. Wall, 207 S.W.2d 664 

(Tex.App.-Galveston 1947, writ ref'd n.r.e.).

f. build up of dirt adjacent to alley constructed which impaired access 

to garage and parking. Cozby v. City of Waco, 110 S.W.3d 32 

(Tex.App.-Waco 2002, no pet.). 

g. opening canal over landowner's property to public use in 

contravention of terms of easement. Texas Parks & Wildlife Dep't v. 

Callaway, 971 S.W.2d 145 (Tex.App.-Austin 1998, no pet.). 
-24-

h. construction of public works or their subsequent maintenance and 

operation. Hale v. Colorado River Mun. Water Dist., 818 S.W.2d 

537, 539 (Tex.App.—Austin 1991, no writ); Hidalgo Cnty. Water 

Improvement Dist. No. 2 v. Holderbaum, 11 S.W.2d 506, 507 (Tex. 

Comm'n App. 1928, judgm't adopted). 

i. construction, operation and maintenance of drainage system. City 

of El Paso v. Mazie's, L.P., 408 S.W.3d 13, 23 (Tex.-El Paso 2012, 

rev. denied).

Carrollton knows that its actions with regard to its Barclay Drive and 

Dudley Branch Creek and the retaining wall caused an identifiable harm -

slope failure. Carrollton's implemented standards for the construction, 

maintenance and repair of its drainage system, slopes and retaining walls 

identify slope failure as a consequence of failing to follow its standards 

proves intent. See City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 

2004)

Taking of Earth

Carrollton's chief engineer agrees that on or under Carrollton's 

Dudley Branch right of way, there is now earth that once was on or under 

Appellees' property. Taking earth from Appellees' properties is a taking. 

Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832 (Tex. 2012) (taking 

groundwater beneath property), State v. Brownlow, 319 S.W.3d at 653 
-25-

(earth taken from easement to construct mitigation pond). 

Carrollton has the right to build a sewer line on the sewer easement

and may have had the right to place the retaining wall on the sewer 

easement. Carrollton has not claimed the right to take earth from the 

affected Barclay properties. Carrollton's rights are limited to what is 

necessary to exercise the right of placing and utilizing the sewer line on the 

easement. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701-

702 (Tex. 2002).

A significant amount of earth has been taken since the initial slope 

failure in May 2009. Carrollton knew that a continuing slope failure was 

manifested by the May 2009 events. Immediately after the May 2009 slope 

failure at 1325 Barclay Drive, there was a scarp of roughly three feet, which 

reflects how much the surface of the backyard of 1325 Barclay Drive had 

sunk because earth was moving onto the Dudley Branch right of way. At 

the time of the hearing, the scarp was in excess of seven feet. A lesser 

damaged property requires 200 40 pound bags of dirt each year to fill in 

sunken areas.

Taking By Slope Failure

If Carrollton changed the Dudley Branch slope outside the retaining 
-26-

wall and that removal of earth caused a slope failure, there would be a 

taking by removing the lateral support of the property. Williams v. 

Thompson, 152 Tex. 270, 277-278, 256 S.W.2d 399, 403 (1953), Simon v. 

Nance, 45 Tex. Civ. App. 480, 483-484, 100 S.W. 1038, 1040 (Tex. Civ. 

App. - Austin 1907, no hist.). In this case, the removal of lateral support 

comes from a combination of circumstances, all of which are in the 

exclusive control of Carrollton.

Appellees' properties are falling in to Dudley Branch as a result of the 

global slope failure. Carrollton's ordinances and standards warn of slope 

failure and provide standards to be followed to prevent slope failure.

Carrollton consistently violated its rules. If Carrollton had obtained expert 

advice to violate its standards, Carrollton might not be subject to the claim 

of inversely condemned Appellees' properties. See City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005). If Carrollton had perceived problems and 

attempted to remedy the problems, albeit unsuccessfully, Carrollton might 

not have inversely condemned Appellees' properties. See City of San 

Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009); City of Keller v. 

Wilson, 168 S.W.3d at 828–830. 

Knowledge of Effects of Actions
-27-

Carrollton knew that its actions and policies with regard to the 

affected Barclay properties would or were substantially certain to result in 

the slope failure. Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d at 551–

554. The Supreme Court 's opinion in City of Keller v. Wilson illustrates an 

important point. In City of Keller v. Wilson, Keller, like Carrollton, 

established standards and violated its standards which caused flooding. 

The property owners based their claims on the violation of the Keller's 

standards. Regarding the issue of knowledge or culpability of Keller, the 

Supreme Court noted:

Here, it was uncontroverted that three sets of engineers certified that 

the revised plans met the City’s codes and regulations—and thus 

would not increase downstream flooding.

City of Keller v. Wilson, 168 S.W.3d at 829. Carrollton established 

standards, ignored its standards in creating and maintaining drainage for 

the affected Barclay properties, and ignored its engineer's 

recommendations of how to avoid future wall failures. The Supreme Court 

noted that:

The missing piece in the evidence here is proof that the City knew the 

plans it approved were substantially certain to increase flooding on 

the Wilsons’ properties. 

Id. The piece is not missing in this case. Carrollton's standards were 
-28-

written to prevent slope failure. Carrollton received no recommendations 

from experts that it should ignore its standards. 

In City of Dallas v. Jennings, the Appellees sued for damages after a 

sewer line backed up and flooded their home with raw sewage, the Court

noted:

Nor do we believe, however, that the City must necessarily intend to 

cause the damage; if the government knows that specific damage is 

substantially certain to result from its conduct, then takings liability 

may arise even when the government did not particularly desire the 

property to be damaged.

City of Dallas v. Jennings, 142 S.W.3d. at 315. In this case, Appellees rely 

on Carrollton's' statements implementing its standards to establish "that 

[Carrollton] believes that the consequences are substantially certain to 

result from [violations of its standards]." Carrollton violated its standards.

In City of San Antonio v. Pollock, property owners sued because of 

gases coming from a closed landfill. When the city found pockets of 

methane gas near the landfill, it drilled a system of ventilation wells to draw 

the gases back into the landfill, established monitoring facilities, surveyed 

water quality, hired a consulting firm, improved the methane collection 

system, and, ultimately, installed a new system. City of San Antonio v. 

Pollock, 284 S.W.3d at 813-814. The Court noted that the knowledge of the 
-29-

City cannot be determined in hindsight:

The Pollocks contend that the City knew its management of the 

West Avenue landfill was damaging their property, or knew at least 

that damage to their property was a necessary result. But the evidence 

is all to the contrary. Whenever the City was aware that gas was 

migrating from the landfill, it took steps to prevent damage. It 

monitored gas generation, monitored leachate, and installed methane 

collection systems.

Id. at 821. Even when Carrollton replaced a portion of the retaining wall in 

the 1990's it (a) did nothing to determine the causes and scope of the 

problem and solve it, or destroyed or discarded documents reflecting its 

efforts, (b) did not follow its engineer's recommendations that might have 

reduced the problems, and (c) ignored future signs of problems. 

In February 2008, Carrollton declared a portion of the retaining wall 

a "dangerous building" which enabled it to take actions to remedy the 

situation. See City of Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014). 

Carrollton did nothing. Compare City of Carrolton v. RIHR Inc., 308 

S.W.3d at 447. After the May 2009 slope failure, in the face of a continuing 

slope failure, Carrollton did nothing to determine the causes and scope of 

the problem, ignored numerous warnings of a global slope failure, and 

falsely denied responsibility for drainage of Appellees' lots and Dudley 

Branch Creek, and for the retaining wall. Carrollton took steps to conceal 
-30-

the true problem.

In City of Dallas v. Jennings, City of San Antonio v. Pollock and City 

of Keller v. Wilson, the cities obtained professional advice and followed that 

advice. Based on the lack of documentation, we must assume that 

Carrollton either failed to get outside professional advice until the May 

2009 slope failure or obtained advice and ignored that advice. Carrollton

ignored the in-house engineering advice after the "wall failure" in the 

1990's. In February 2008, Carrollton declared a portion of the retaining 

wall a dangerous building. Carrollton did nothing to resolve the situation 

or even investigate the cause of the retaining wall being a "dangerous 

building." In May 2009, when Carrollton received the warning of a 

continuing, global slope failure along Barclay Drive, Carrollton (a) did not

determine the scope of the slope failure, (b) did not determine the source of 

water that lead to the slope failure, (c) denied responsibility, and (d) 

concealed its responsibility for the slope failure. Carrollton continued its 

actions with regard to Barclay Drive storm water drainage and Dudley 

Branch that caused the slope failure.

There is no question that the slope failure resulted in earth previously 

located on and under Appellees' properties moving so that the earth is now 
-31-

located under Carrollton's Dudley Branch channel. That is a taking. 

Appellees are entitled to the cost of either returning the earth to its proper 

location, rebuilding the properties to the condition they enjoyed before the 

taking or the value of the properties if the problem cannot be remedied.

Reply to Issue II

Whether the trial court has subject-matter jurisdiction over 

Appellees’ negligent-property-damage claim when they have failed to 

plead and the evidence negates a City-employee use of motor-drivenvehicle or equipment sufficient for a waiver of governmental 

immunity from suit under the Texas Tort Claims Act.

Negligence

Under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code § 

101.001 et seq., Carrollton can be held liable for property damage 

proximately caused by the wrongful act or omission or the negligence of an 

employee acting within the scope of his employment if the property damage 

arises from the operation or use of a motor-driven vehicle or motor-driven 

equipment, and the employee would be personally liable under Texas law. 

Tex. Civ. Prac. & Rem. Code, § 101.021. 

It is not contested that Carrollton used motor-driven vehicles and 

motor-driven equipment to construct, maintain and repair its drainage 

system. See City of El Paso v. W.E.B. Investments, 950 S.W.2d 166, 170 
-32-

(Tex. App. - El Paso 1977, rev. denied). As discussed above, Carrollton 

established the duties and standards that it applied and applies to the 

construction, maintenance and report of its drainage systems. Carrollton's 

Department of Public Works maintained and repaired the drainage system, 

Barclay Drive and Dudley Branch Creek, in a manner that water did not and 

does not drain from Appellees' properties, causing the water to pond and 

accumulate on the property, thereby reducing the factor of safety of such 

properties with the result that the slope failed. Carrollton required specific 

slopes and factors of safety and French drains for retaining walls. The 

Barclay Drive retaining wall, part of Carrollton's infrastructure does not 

meet those requirements. 

Pursuant to ordinance, Barclay Drive was to provide drainage for the 

Appellees' properties, which it does not. Barclay Drive was repaired and 

maintained with motor vehicles and motor driven equipment in such a 

manner that Appellees' properties cannot drain on to Barclay Drive. 

Dudley Branch was repaired and maintained contrary to Carrollton's

standards with improper slopes and no provision for drainage of Appellees' 

properties even though the properties contained Carrollton's retaining wall. 

All repair and maintenance was done with motor driven vehicles and motor 
-33-

driven equipment.

Carrollton is liable for its negligence. 

As quoted above, in its final report dated October 2, 2009 Terracon, 

Carrollton's expert, noted regarding the cause of the slope failure the 

presence of groundwater on the Barclay Drive side of 1325 Barclay Drive. 

Groundwater that did not drain from Appellees' properties which, if for no 

other reason, did not drain from Appellees' properties because of the way 

Carrollton maintained and repaired Barclay Drive and the retaining wall.88

Reply to Issue III - Declaratory Judgment

Whether the trial court has subject-matter jurisdiction over 

Appellees’ requests for declaratory relief and related attorney’s fees 

when Appellees are not seeking to challenge the validity of any City 

ordinance or franchise.

In their claims for inverse condemnation and negligence, Appellees 

seek relief for injuries and damages suffered due to the slope failure. In 

their declaratory judgment action, Appellees seek a judicial resolution of 

issues related to the future maintenance and repair of Dudley Branch

Creek, Barclay Drive and the retaining wall. Appellees particularly seek a 

declaration of Carrollton's obligations under its standards and ordinances.

 88 C.R. at Vol 1, 1200.
-34-

A declaratory judgment action is the proper vehicle to determine 

issues relating to easements. Manning v. Embridge Pipelines (East Texas), 

L.P., 345 S.W.3d 718, 727 (Tex. App. - Beaumont 2011, rev. denied), 

Roberson v. City of Austin, 157 S.W.3d 130, 137 (Tex. App.-Austin 2005, 

pet. denied). Appellees' action is exactly the sort of action that the 

Declaratory Judgment Act was written to address, 

A person interested under a deed, will, written contract, or other 

writings constituting a contract or whose rights, status, or other legal 

relations are effected by a statute, municipal ordinance, contract, or 

franchise may have determined any question of construction or 

validity arising under the instrument, statute, ordinance, contract, 

or franchise and obtain a declaration of rights, status, or other legal 

relations thereunder.

Tex. Civ. Prac. & Rem. Code 37.004(a) (Emphasis added).

Appellees seek specific declaratory relief under the Texas Declaratory 

Judgment Act, requesting that declarations that Carrollton employees in its 

Engineering Department failed to perform ministerial acts under 

Carrollton's ordinances, rules, regulations and standards and the laws of 

the State of Texas by failing to 

a. determine that the retaining wall is part of Carrollton's 

infrastructure.

b. complying with ordinances, rules, regulations and standards 

regarding retaining walls in connection with the retaining wall 

on the affected Barclay properties.
-35-

c. complying with its ordinances, rules, regulations and standards 

with regard to slope stability.

d. complying with ordinances, rules, regulations and standards 

with regard to retaining walls.

e. complying with ordinances, rules, regulations and standards 

with regard to drainage.

See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-373 (Tex. 2009) 

Regarding jurisdiction, Appellees accept that sovereign immunity 

would not be waived for the Declaratory Judgment Act claims if they were 

seeking to establish jurisdiction through the Declaratory Judgment Act. 

See Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (plaintiff 

only sought declaratory relief challenging the denial of a permit), City of El 

Paso v. Heinrich (plaintiff sought declaratory relief and an injunction 

against state officials). The Declaratory Judgment Act does not enlarge the 

trial court's jurisdiction, but is "merely a procedural device for deciding 

cases already in a court's jurisdiction." Tex. Dep't of Transp. v. Sefzik, 355 

S.W.3d at 621-622 (quoting Tex. Parks & Wildlife Dep't v. Sawyer Trust, 

354 S.W.3d 384, 388 (Tex.2011)). 

Appellees have established jurisdiction independent of the 

Declaratory Judgment Act claims. Appellees' claims for declaratory relief 
-36-

seek to have a determination of their "rights, status, or other legal relations 

. . . effected by a . . . municipal ordinance . . . and obtain a declaration of 

rights, status, or other legal relations thereunder." The issues raised by 

Appellees for declaratory relief all relate to claims over which this Court has 

jurisdiction independent of the Declaratory Judgment Act.

PRAYER

Appellees pray that the District Court's order denying Carrollton's 

Motion to Dismiss be in all things affirmed.

Respectfully submitted,

s/ Bruce E. Turner

__________________________

Bruce E. Turner

Texas Bar No. 20310500

bturner@bennettweston.com

J. Michael Weston

Texas Bar No. 21232100

jmweston@bennettweston.com

Bennett Weston LaJone & Turner PC

1603 LBJ Freeway, Suite 280

Dallas, Texas 75234

Telephone: 972-862-2332

Facsimile: 214-373-2570
-37-

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of Appellees' 

Brief was served on all counsel of record by electronic service under Tex. R. 

App. P. 9.2 on the 10th day of July 2015, in accordance with the 

requirements of the Texas Rules of Appellate Procedure. The persons 

served are:

Fredrick "Fritz" Quast Meredith A. Ladd, City Attorney

George A. Staples, Jr. City of Carrollton, Texas

Counsel for Appellant 1945 East Jackson Road

Taylor, Olson, Adkins, Sralla Carrollton, Texas 75006

& Elam, LLP

6000 Western Place, Suite 200

Fort Worth, Texas 76107

/s/ Bruce E. Turner

___________________

Bruce E. Turner, Esq.

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(3) of the Texas Rules of Appellate Procedure, 

the undersigned authority hereby certifies that according to the word 

processing software used to prepare this filing, the word count of this 

document is 7,438.

/s/ Bruce E. Turner

___________________

Bruce E. Turner, Esq.