NO. 01-13-00865-CV

 

IN THE FIRST COURT OF APPEALS

HOUSTON, TEXAS

 

DARRELL CHURCH, 

 Appellant, 

v.

CITY OF ALVIN, TEXAS, 

 Appellee. 

 

On Appeal from the County Court At Law No. 2

Brazoria County, Texas 

Cause No. CI047129

 

RESPONSE TO APPELLANT’S MOTION FOR REHEARING

 

OLSON & OLSON, L.L.P.

Patricia L. Hayden

State Bar No. 09269200

PHayden@OlsonLLP.com 

John J. Hightower

State Bar No. 09614200

JHightower@OlsonLLP.com 

 Wortham Tower, Suite 600 

 2727 Allen Parkway

 Houston, Texas 77019

 Telephone: (713) 533-3800 

 Facsimile: (713) 533-3888 

 

 ATTORNEYS FOR APPELLEE, 

CITY OF ALVIN, TEXAS

ACCEPTED

01-13-00865-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/22/2015 2:57:39 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/22/2015 2:57:39 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................................2

INDEX OF AUTHORITIES..............................................................................................3

ARGUMENT .................................................................................................................4

I. Court’s Holding is not Based on the “Mistaken Factual Finding”..................4

II. Church Misunderstands the Elements of an Impaired Access Inverse 

Condemnation Claim.......................................................................................6

III. Uncontroverted Facts Demonstrated that Church’s Access is not Materially 

and Substantially Impaired ..............................................................................7

IV. Court did not “Misplace” the Standard of Review..........................................9

V. Court Correctly Decided the Case.................................................................11

CONCLUSION.............................................................................................................12

CERTIFICATE OF COMPLIANCE ..................................................................................14

CERTIFICATE OF SERVICE..........................................................................................14

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INDEX OF AUTHORITIES

CASES PAGES

Burris v. Metropolitan Transit Authority of Harris County, 

266 S.W.3d 16 (Tex. App.—Houston [1st Dist.] 2008, no pet.) .....................7

Church v. City of Alvin, Texas, 

No. 01-13-00865-CV, 2015 WL 3916708 (Tex. App.—Houston [1st Dist.] 

June 25, 2015, no pet. h.).....................................................................4, 5, 6, 7

State v. Heal,

917 S.W.2d 6 (Tex. 1996) ..........................................................................6, 7

Strother v. City of Rockwall,

358 S.W.3d 462 (Tex. App.—Dallas 2012, no pet.).....................................11

Texas Dept. of Parks & Wildlife v. Miranda, 

133 S.W.3d 217 (Tex. 2004) ...........................................................................9

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TO THE HONORABLE FIRST COURT OF APPEALS:

Appellee, the City of Alvin, Texas (“the City”), respectfully files this 

response to Appellant’s (“Church”) motion for rehearing of the Court’s 

memorandum opinion in Church v. City of Alvin, Texas, No. 01-13-00865-CV, 

2015 WL 3916708 (Tex. App.—Houston [1st Dist.] June 25, 2015, no pet. h.). 

ARGUMENT

Church challenges the Court’s opinion on two grounds, arguing that (1) the 

Court mistakenly found that “Church admitted having full, unimpaired access to 

his property in its current status,”1 and (2) the Court mistakenly placed the burden 

of proof on Church when the Court noted: “Church did not adduce evidence that 

the project has prevented him from accessing the roadway along the remaining 

frontage of his property.”2

I. COURT’S HOLDING IS NOT BASED ON THE “MISTAKEN FACTUAL FINDING”

Church complains that the Court made a finding of fact that was 

unsupported by the record, specifically, that “[v]ia his existing driveway, even with 

his trailer, Church can approach the drive from the far lane.” Church, 2015 WL 

3916708, at *6. Based on this “mistaken finding of fact,” Church complains that 

1 Appellee’s Motion for Rehearing, p. 1.

2 Id. at 5.

4

 
the Court wrongly concluded that “Church has full access to his property...”3 and 

asks that the Court withdraw its June 25, 2015 opinion, reverse the trial court’s 

order, and remand the case. 

The City agrees that Church did not state that he can approach the drive 

from the far lane with his trailer. However, the City disagrees that that particular 

observation by the Court is grounds for withdrawal of its opinion and reversal of 

the trial court’s order granting the City’s plea because that observation is not the 

basis for the Court’s holding. Instead, the Court held: 

Because Church (1) cannot establish a waiver of governmental 

immunity for a violation of the Water Code and (2) failed to adduce 

facts that support either a compensable taking or a substantial 

impairment of his existing access to his property, we conclude that the 

trial court properly granted the City’s plea. 

Church, 2015 WL 3916708, at *1. With regard to the element of material and 

substantial impairment, an essential element of Church’s taking claim, the Court 

held:

Given that the new bridge (1) does not physically obstruct Church’s 

private drive and (2) does not preclude other access points to the 

roadway from his property, we hold that Church’s testimony that the 

TxDOT-constructed entrance within the public right-of-way is 

narrower than before does not constitute evidence of a “virtually 

impassable obstruction” or a material and substantial impairment of 

access. (citation omitted) Accordingly, we hold that the trial court 

properly granted the City’s plea to the jurisdiction against Church’s 

claim for impaired access. 

3 Id. at 4.

5

 
Church, 2015 WL 3916708, at *7. The appellate record fully supports the Court’s 

holding, and the motion for rehearing should be denied.

II. CHURCH MISUNDERSTANDS THE ELEMENTS OF AN IMPAIRED ACCESS 

INVERSE CONDEMNATION CLAIM

Church argues on rehearing that the Court should withdraw its June 25, 2015 

opinion and reverse the trial court’s order granting the City’s plea to the 

jurisdiction because the Court made an incorrect finding of fact resulting in the 

conclusion that Church “has the same use of his property as he did before the 

City’s action,”4 and that “Church has full access to his property with no such 

revision.”5 Church argues that he “never admitted that suitable access exists in the 

current situation.”6 However, Church misunderstands the type of access 

impairment that is required to maintain an inverse condemnation claim. 

The law question presented for the Court’s consideration was not whether 

the claimant had the same (or full) access after the alleged taking as he had prior to 

the alleged taking. Instead, the question of law7 decided by the Court was that the 

City’s uncontroverted evidence established that the alleged taking did not result in 

a material and substantial impairment of Church’s access to his property. See State 

4 Id. at 3. 

5 Id. at 4. 

6 Id. at 4.

7 Whether access rights have been materially and substantially impaired is a question of law. 

State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). 

6

 
v. Heal, 917 S.W.2d 6, 11 (Tex. 1996) (absent a material and substantial 

impairment of access, the landowners were not entitled to compensation “even if 

the remainder of their property has lost some degree of value”); Burris v. 

Metropolitan Transit Authority of Harris County, 266 S.W.3d 16, 23 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (“We agree with the appellants that the Property 

has been impaired, but impairment alone is insufficient for a compensable taking. 

Rather, appellants must show that the impairment of access is material and 

substantial.”). Because Church did not present evidence to demonstrate a material 

and substantial impairment of access i.e., to raise a fact issue on this claim, the 

Court properly concluded that Church had no inverse condemnation claim.

III. UNCONTROVERTED FACTS DEMONSTRATED THAT CHURCH’S ACCESS IS 

NOT MATERIALLY AND SUBSTANTIALLY IMPAIRED

In its opinion, the Court noted that (1) TxDOT constructed the bridge wholly 

within the public right-of-way; (2) the bridge apron did not enter Church’s 

property; (3) the new bridge did not physically obstruct Church’s existing 

driveway; (4) Church conceded that he retains access to his property and his 

existing driveway, but that driveway access across the bar ditch is 12 feet narrower 

when compared with the right-of-way access that existed before the bridge 

construction; and (5) the new bridge did not preclude other access points to the 

roadway from his property. Church, 2015 WL 3916708, at *6. Moreover, 

additional evidence not mentioned by the Court in its opinion, yet contained in the 

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appellate record, and supportive of the Court’s holding, is Church’s testimony that 

he has a total of six trailers on his property, CR 210, and that he can move the little 

trailers off and on his property. CR 211. It is only his big trailer that he cannot get 

onto the property no matter which direction he comes from. CR 211. However, 

significantly, Church testified that it is the arch over his driveway that impairs his 

big trailer from getting onto the property, to-wit:

Q. Okay. And do I understand you correctly? On the big trailer, 

you’re saying that you can’t get that on the property no matter 

which direction you come from? 

A. That’s correct.

Q. There’s just not a wide enough area to ̶ 

A. Without ripping out the archway and everything. 

...

Q. Now, if you move ̶ if you removed your arch, could you get 

your trailer in? 

A. Possibly. 

CR 211.

8

The Court’s conclusion that Church did not have an inverse condemnation 

claim for material and substantial impairment of access to his property is proper

and supported by the uncontroverted evidence.

8 The arch is a metal driveway arch, which was not moved during the bridge construction project. 

CR 188-189. The arch is 12 feet wide. CR 207.

8

 
IV. COURT DID NOT “MISPLACE” THE STANDARD OF REVIEW

In his motion for rehearing, Church also complains that the Court 

“misplaced the standard of review” because it stated “Church did not adduce 

evidence that the project has prevented him from accessing the roadway along the 

remaining frontage of his property.”9 However, the Court did apply the correct 

standard of review. 

The standard of review to be applied to an evidentiary plea to the 

jurisdiction, and which the Court did apply, was as follows: 

[I]f the plaintiffs’ factual allegations are challenged with supporting 

evidence necessary to consideration of the plea to the jurisdiction, to 

avoid dismissal plaintiffs must raise at least a genuine issue of 

material fact to overcome the challenge to the trial court’s subject 

matter jurisdiction. 

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 221 (Tex. 2004)

(emphasis added). The Court correctly pointed out that Church did not present any 

evidence to raise a fact issue that controverted his sworn deposition testimony:

Q. Okay. If you moved your driveway crossing where it crosses 

the ditch ̶ if you moved it farther from the bridge, would that 

solve your problem about being able to turn in and turn out with 

your trailer?

A. That’s what this whole thing is about, is we ̶ 

Q. Sir, please just answer my question. 

A. Yes. 

9 Id. at 5. 

9

 
... 

Q. My question is: Has anyone told you, you can’t move the 

driveway?

A. No, sir.

Q. Okay. Is there ̶ as far as you know, there’s nothing that stops 

you from putting your driveway across the bar ditch anywhere 

you want to along your property line?

A. No, sir.

Q. So neither the City, the State, or anybody else has told you that 

you can’t access County Road 172 from any location on your 

property you choose?

A. No, sir. 

CR 148-149. The City carried its burden on the plea by presenting evidence that 

Church could access County 172 from any location on his property that he chose, 

conclusively proving that Church’s access to his property was not materially and 

substantially impaired. Church did not raise a fact issue on that proof. The Court 

did not “misplace the standard of review.”10 Church has shown no error in the 

opinion of the Court of Appeals.

10 Id. at 5.

10

 
V. COURT CORRECTLY DECIDED THE CASE

Although not addressed by the Court in its opinion, there is another, equally 

compelling ground that supports the Court’s affirmance of the trial court’s order

granting the plea: the City did not commit an intentional act that resulted in 

material and substantial impairment of Church’s access to his property. 

The elements of a cause of action for inverse condemnation are (1) the City 

committed an intentional act; (2) that resulted in property being taken, damaged, or 

destroyed; (3) for public use. Strother v. City of Rockwall, 358 S.W.3d 462, 467 

(Tex. App. — Dallas 2012, no pet.) (citing City of Dallas v. Jennings, 142 S.W.3d 

310, 314 (Tex. 2004)). In the face of the City's evidentiary plea, it was incumbent 

upon Church to raise a fact issue to controvert the City’s evidence demonstrating 

that the City did not engage in or perform intentional acts that resulted in material 

and substantial impairment of Church’s access to his property. Because he failed to 

do so, governmental immunity precluded his claim. City of Rockwall, 358 S.W.3d 

at 471-72. 

As the City pointed out in its brief on appeal, the uncontroverted evidence 

established that the government actor, i.e., the City, did not commit an intentional 

act that resulted in material and substantial impairment of Church’s access to his 

property. The City did not design or build the Project. CR 31, 73. Instead, TxDOT 

contracted with general contractors to perform the general contract work on the 

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project and with engineering firms to perform the engineering on the project. CR 

31, 73. Specifically, the Funding Agreement between the City and TxDOT for the 

replacement of the bridge over the Drainage Ditch at County Road 172, CR 31,

51-72, provided that:

(1) “The State is responsible for performance of any required architectural or 

preliminary engineering work,” CR 31, 53 at ¶10;

(2) the State “shall ... award and administer the contract for construction of 

the Project. ... includ[ing] the responsibility for construction engineering 

and for issuance of any change orders, supplemental agreements, 

amendments, or additional work orders, which may become necessary 

subsequent to the award of the construction contract.” CR 31, 54 at ¶11; and 

(3) “The parties to this Agreement agree that no party is an agent, servant, 

or employee of the other party and each party agrees it is responsible for its 

individual acts and deeds as well as the acts and deeds of its contractors, 

employees, representatives, and agents.” CR 31, 57 at ¶17.

Because the City did not do any intentional act that resulted in material and 

substantial impairment of access to Church’s property, the trial court’s order 

granting the plea was proper, and the Court of Appeals’ affirmance of that order is 

appropriate.

CONCLUSION

The City respectfully requests that the Court deny Church’s motion for 

rehearing, except to modify its opinion to remove the sentence, “Via his existing 

driveway, even with his trailer, Church can approach the drive from the far lane.” 

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The City further requests that the Court grant it such other and further relief to 

which it may show itself to be justly entitled. 

Respectfully submitted,

OLSON & OLSON, L.L.P.

By: /s/ Patricia L. Hayden

Patricia L. Hayden

State Bar No. 09269200

PHayden@OlsonLLP.com 

John J. Hightower

State Bar No. 09614200

JHightower@OlsonLLP.com 

Wortham Tower, Suite 600 

2727 Allen Parkway

Houston, Texas 77019

Telephone: (713) 533-3800 

Facsimile: (713) 533-3888

ATTORNEYS FOR APPELLEE,

CITY OF ALVIN, TEXAS

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CERTIFICATE OF COMPLIANCE

WITH MAXIMUM LENGTH REQUIREMENTS

I hereby certify that the foregoing Appellee’s Brief contains 1,979 words, as 

calculated under Rule 9.4 of the Rules of Appellate Procedure, using the word 

count feature of Microsoft Word.

/s/ Patricia L. Hayden

Patricia L. Hayden

CERTIFICATE OF SERVICE

As required by Texas Rule of Appellate Procedure 6.3 and 9.5, I certify that 

on July 22, 2015, a true and correct copy of the foregoing document was 

electronically served upon all counsel of record.

Mr. Iain G. Simpson

iain@simpsonpc.com

SIMPSON P.C.

1333 Heights Boulevard, Suite 102

Houston, Texas 77008

ATTORNEY FOR APPELLANT, 

Darrell Church











CMRRR # 

Facsimile No. 281-596-6960

Hand Delivery

U.S.P.S.

Electronic Service

/s/ Patricia L. Hayden

Patricia L. Hayden

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