Opinion
NO. 01-17-00870-CV
11-21-2019
PEDESTRIAN BEACH, LLC; MERRY PORTER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF BROOKS PORTER, DECEASED; ANGELA MAE BRANNAN, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF BOB ALBERT BRANNAN, DECEASED; RUSSELL AND JUDY CLINTON; RUSSELL CLINTON AS ADMINISTRATOR OF THE ESTATE OF ELIZABETH CLINTON, DECEASED; REG APLIN AND BEAVER APLIN D/B/A BENCHMARK DEVELOPING; LOUISE BULLARD; DIANE LOGGINS CLARK; JOSEPH CORNELL DEWITT; LISA MARIE DEWITT FUKA; MACARIO RAMIREZ AND CHRISSIE DICKERSON; JEFFREY DYMENT; MARVIN JACOBSON FAMILY HOLDING COMPANY; CATHY T. CHARLES; JAMES MEEK AND PATRICIA MEEK; MARK PALMER; JAMES C. PURSLEY; PATRICIA PURSLEY; KENNETH C. REUTZEL; ANDREA REUTZEL; S & S HOLDINGS, LLC; ROGERS THOMPSON, EXECUTOR OF THE ESTATE OF P.E. KINTZ, DECEASED, Appellants v. THE STATE OF TEXAS; TEXAS GENERAL LAND OFFICE; LAND COMMISSIONER GEORGE P. BUSH; ATTORNEY GENERAL KEN PAXTON; THE VILLAGE OF SURFSIDE BEACH; MAYOR LARRY DAVISON IN HIS OFFICIAL CAPACITY, Appellees
On Appeal from the 239th District Court Brazoria County, Texas
Trial Court Case No. 91156-CV
CONCURRING OPINION
I reluctantly concur in the judgment of the Court. The underlying suit seeks to determine the rights of the plaintiff property owners, Pedestrian Beach, LLC, et al., along the shore on the West Beach side of Galveston Island under the Texas Declaratory Judgments Act (TDJA) (codified at Texas Civil Practice and Remedies Code chapter 37), the Open Beaches Act (OBA) (codified at Texas Natural Resources Code chapter 61), and Texas Government Code chapter 2007. These property rights were uncertain when this litigation was originally filed in 2001 and were made more so by the revolutionary opinion of the Texas Supreme Court in Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012), decided during the pendency of these proceedings. Severance upended at least 150 years of settled law regarding the existence and establishment of public beaches, as pointed out by the dissents in that case. The subsequent statutory revisions made by the Legislature to cope with the changes made by Severance have introduced further uncertainty requiring clarification in a proper case. Nevertheless, I must reluctantly conclude that this is not that case.
While I might agree with the plaintiffs on many of the issues they present if they had related those issues to live controversies flowing from actual or threatened government action affecting their own specific property rights that are capable of being cured by the declarations of law they seek, I cannot conclude that they have done so. Nor have they supported their sweeping and multifarious prayer for relief by argument with reference to authorities as the Rules of Appellate Procedure require.
Accordingly, I would hold that the plaintiffs have failed to present a justiciable controversy that can be resolved by the declaratory judgments sought, that they are seeking an improper advisory opinion from this Court, and that they have failed to salvage any claims they might otherwise have had due to inadequate briefing. I therefore respectfully concur in the judgment only.
However, the problem goes beyond the justiciability of these plaintiffs' claims. I would argue that under Severance virtually no owner of property near the shore can establish his rights to ownership of the land or seek to determine where the public beach is, as this case illustrates. The beach changes every time the high tide mark and vegetation line change with an "avulsive event," a non-specific term that applies to every abrupt change due to a storm or even a bull tide, both of which are routine along the Gulf Coast. And, under Severance, the beach does not roll with the changed lines. Consequently, the beach must be reestablished usually by prescription, i.e., by the public's use of the beach. Such use is a trespass on private property under Severance, subjecting each member of the public who enters the beach to suit by the landowner. The State can also bring suit against the landowners to declare a public beach, but it avers that it is not bringing such suits. Nor does the coastline stay stable long enough for any claims to endure throughout the litigation, as this case illustrates. Thus, no owners of land near the beach know or can know what their property rights are. No statute and no case law interpreting a statute should lead to absurd results. Severance should be revisited and clarified or overruled.
Discussion
A. Parties
This suit involves three groups of plaintiffs: the Original Plaintiffs, who filed suit in 2001; the Intervenors, who joined the suit after the bull tides in 2006; and Pedestrian Beach, LLC, which intervened in 2016. Categorized by real property interests asserted, these include:
1. Those of the Original Plaintiffs and Intervenors who currently own littoral real property in the Village of Surfside Beach, Texas;
2. Pedestrian Beach, LLC, which now holds title to 1206-1207 Sargasso Circle in Surfside Beach, previously owned for many years by now deceased Brooks Porter, who had originally pleaded the properties with the first group. Porter then formed the LLC, transferred title to the
properties to it, and, as manager of the LLC, continued to manage them; and
3. Those of the Original Plaintiffs and Intervenors whose properties are located seaward of Beach Drive.
All three groups invoked the jurisdiction of the Texas courts over the defendant state actors under the TDJA, the OBA, and Texas Government Code chapter 2007 (entitled "Government Action Affecting Private Property Rights").
The plaintiffs—appellants in this Court—contend that they are authorized to seek and receive declaratory relief under the TDJA and the OBA, and that the State's sovereign immunity is waived. They also contend that the trial court and this Court have subject matter jurisdiction over this declaratory judgment action on the issues and controversies that all three groups have raised in this case regarding "how the boundaries of public common law easements on the [plaintiffs'] properties should be legally determined, on the scope of those easements on those properties, and the constitutionality and validity of sections of the OBA and a section of the Texas Government Code," specifically section 2007.003(e), regarding takings, which they seek to have declared unconstitutional.
B. Standing
1. The Texas Declaratory Judgments Act
Section 37.004 of the TDJA provides:
(a) A person interested under . . . a contract or whose rights, status, or other legal relations are affected by a statute . . . may have
determined any question of construction or validity arising under the instrument, [or] statute . . . and obtain a declaration of rights, status, or other legal relations thereunder.TEX. CIV. PRAC. & REM. CODE ANN. § 37.004.
(b)A contract may be construed either before or after there has been a breach.
(c) [A] person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties.
Section 37.006 provides that "[w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties." Id. § 37.006(a). Finally, section 37.002 states that chapter 37 "is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered." Id. § 37.002.
Chapter 37 does not define "person" to include state entities. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.001 (defining "person" to mean "an individual, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation of any character").
The plaintiffs in this case argue that they are persons "whose rights, status, or other legal relations are affected by a statute," namely the Open Beaches Act. See id. § 37.004(a). I agree and would, therefore, hold that they have standing to seek a judgment declaring their rights under the Open Beaches Act if they have stated a claim under the Act.
2. The Texas Open Beaches Act
OBA section 61.019 provides that "a littoral landowner whose rights are determined or affected" by the OBA may sue the State for a declaratory judgment. TEX. NAT. RES. CODE ANN. § 61.019(a). A "littoral owner" is statutorily defined as "the owner of land adjacent to the shore." Id. § 61.001(6). To have standing to bring a declaratory judgment action under the OBA, a person must fall into the category of people who fit within the scope of the definitions of the key terms, whose "rights, status, or other legal relations are affected" at the time of suit and throughout the litigation.
The State argues that the term "littoral owner" should be construed narrowly to exclude present parties to this case. In the lead opinion, Justice Kelly agrees. He concludes that Ramirez and Dickerson "lacked standing to seek declarations under the Open Beaches Act regarding [their] property" because they "are not littoral owners of 510 Beach Drive." See, e.g., Slip Op. at 21. The opinion explains that their property is "presently landward of the State's rock revetment and the asphalt topping of Beach Drive," i.e., "on the landward side of the road, not adjacent to the shore." Id. That conclusion of course assumes that the definition of a littoral owner as someone whose property touches the shore and is not merely "nearby" it, which is also a meaning of "adjacent." But the commonly accepted definition of the "littoral zone" is the "shore zone," or "the part of a sea, lake, or river that is close to the shore," and it extends in coastal environments "from the high-water mark, which is rarely inundated, to shoreline areas that are permanently submerged." WIKIPEDIA, https://en.wikipedia.org/wiki/Littoral_zone (last visited Sept. 16, 2019) (emphasis added). The word, having "no single definition," always includes this "intertidal zone," and "can extend well beyond" it. Id. Therefore, I would not conclude that Ramirez and Dickerson are not littoral owners as a matter of law based solely on a highly restrictive definition of "littoral owner." See TEX. CIV. PRAC. & REM. CODE ANN. § 37.002 (providing that chapter 37 "is to be liberally construed and administered"). Nevertheless, I agree with Justice Kelly that these property owners have not shown any specific harm to themselves caused by state action, nor have they argued for or cited authority in support of a definition of "adjacent to the shore" that would qualify them as littoral owners.
Justice Kelly and the State juxtapose this situation with that of the plaintiffs who are presently seeking declaratory relief pertaining to easements, stating that "after Severance, [the state defendants asserted that] their rolling easement argument was unavailing, and they had abandoned all claims for easements," so that these claims were moot. Slip Op. at 12. If by this statement the State is averring that it will no longer seek to declare new easements for public beaches, in addition to possibly violating the public policy of the State of Texas, this deprives littoral property owners of a case or controversy giving them standing to use the OBA to have their rights declared by a court of law. Who then will ultimately hold the State to its obligation to honor its open beaches policy other than members of the public who might bring suit against landowners who forbid them the opportunity to establish public easements on their land by prescription—the beaches having ceased to roll—or landowners who might sue anyone who tries to prescribe a public easement on their land. Whereas before Severance the location of the public beach was well-defined, now it is uncertain.
The rules of statutory construction require that the courts construe the relevant statutes, specifically the OBA, so as to facilitate—not block—those declaratory judgment actions that can bring clarity to the law to assure the consistent interpretation and application of the OBA in assuring public access to beaches while, at the same time, assuring the protection of the rights of littoral property owners whose ownership rights are affected by the shifting shore line. But, under Severance, such an action is difficult to sustain. Correctly construing and applying the terms of the governing statutes requires that we have before us a specific case or controversy, and the plaintiffs have not told us what those specific live controversies are. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) ("Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable.").
Instead, in their prayer for relief, the plaintiffs seek the following general declarations of law from this Court, corresponding roughly to the issues stated in their briefs:
(1) The common law principle of sustained public use during the time in which the public is creating a public easement determines the area and boundaries of public common law easements on plaintiffs' littoral real properties at Surfside;
(2) The landward boundary of a public common law easement of use for beach recreation is the landward limit of sustained public use of the land during the period in which the public is creating its easement;
(3) The vegetation line determined by the Land Commissioner or local government agents under the OBA is not the legal landward boundary of a common law easement; sections 61.016, 61.017, 61.0183, 61.084, and 61.020 of the OBA, which give the Commissioner the power to designate a vegetation line do not give him the power to determine the landward boundary of a public common law easement;
(4) The scope of any public common law easement of way or use on the plaintiffs' properties is limited to the public's reasonable and necessary use of the surface of the land for the purpose of the easement and must be "as little burdensome as possible" on the plaintiff's estate; and the public lacks the right in a public common law easement to deny repair, deny access, deny reconnection to utilities, or to deny a plaintiff the use and enjoyment of his existing structure or the right to remove or obtain a court order to remove the structure;
(5) The concept of the creation of a public common law easement by presumption does not exist under Texas common law; the proponent of an easement must prove its creation by prescription,
dedication, or custom when challenged; and section 61.025 of the OBA, which advises a buyer that the public has acquired an easement by presumption on any beach in close proximity to the Gulf of Mexico is invalid and unconstitutional, as is section 61.001(8), the definition section of the OBA, which states that the public may acquire an easement by presumption;
(6) Section 61.025 of the OBA, which provides for the removal of a plaintiff's existing structure without payment of compensation, is invalid and unconstitutional;
(7) The Commissioner's exercise of his authority under OBA section 61.011(d)(8) to promulgate rules on construction on an area landward of the public beach, to promulgate rules and regulate repairs on existing structures located on the privately-owned portion of the public beach exceeds his authority and is ultra vires;
(8) Sections 61.081-.084 of the OBA, authorizing the Commissioner to remove an existing structure he finds to be on the public beach without proving in court that the public has created an easement on the land under the structure and without paying compensation, and employing an administrative process he controls are invalid, violate due process of law, and promote an unconstitutional taking of private property without payment of just compensation; and
(9) When the OBA is enforced or implemented against them, section 2007.003(e) of the Texas Government Code denies the plaintiffs the rights and benefits afforded other Texas landowners under the Private Real Property Rights Preservation Act, denying the plaintiffs equal protection of the law in violation of Article I, Section 3 of the Texas Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, rendering section 2007.003(e) invalid and unconstitutional.
None of these declarations is tied to an actual action or threatened action against the plaintiffs' property, that is, to a live controversy. Rather, the plaintiffs plainly seek prohibited advisory opinions on numerous wide-ranging issues of law. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) ("Under article II, section 1 of the Texas Constitution, courts have no jurisdiction to issue advisory opinions."); Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) ("The courts of this state are not empowered to give advisory opinions."); Gomez, 891 S.W.2d at 245 (stating that "[s]ubject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable," and that "[i]f the district court lacks jurisdiction, in any of these senses, then its decision would not bind the parties" and is, therefore, prohibited advisory opinion) (citations omitted); see also Hebner v. Reddy, 498 S.W.3d 37, 41 (Tex. 2016) (knowing what specific conduct is called into question is critical to court's ability to evaluate viability of claim).
Moreover, none of the plaintiffs' requests for declaratory judgment is supported by an argument for the relief sought by that plaintiff with respect to any specific actual or threatened act by any defendant. The plaintiffs ask this Court to invalidate and hold unconstitutional numerous statutory provisions, but without making any legal argument in support of their requests. Rather, virtually the entirety of the briefs filed by the plaintiffs is given over to a procedural history of the litigation rather than to the statement of specific errors of the trial court, specific acts or threatened acts of the defendants giving rise to the plaintiffs' complaints, and authority in support of legal arguments for the specific relief sought by each plaintiff and the grounds upon which it is sought. Therefore, their briefs fail to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." See TEX. R. APP. P. 38.1(i). This is a mandatory requisite for appeal of error in the trial court. Id. Accordingly, whatever specific claims for relief the plaintiffs may have had are waived by inadequate briefing.
As the Texas Supreme Court stated in Brooks v. Northglen Association,
A declaratory judgment requires a justiciable controversy as to the rights and status of parties actually before the court for adjudication, and the declaration sought must actually resolve the controversy. A judicial decision reached without a case or controversy is an advisory opinion, which is barred by the separation of powers provision of the Texas Constitution.141 S.W.3d 158, 163-64 (Tex. 2004) (citations omitted). Here, the sweeping declarations sought by the appellant plaintiffs would not resolve any specific identified controversies.
Despite the urgency of bringing clarity to the law that is missing in the wake of Severance, I must reluctantly concur in the holding of the panel that the plaintiffs' claims are non-justiciable. Moreover, to the extent there may have been any justiciable claims, they have been inadequately briefed. Accordingly, I agree with Justice Kelly that any opinion this Court could give interpreting the law as plaintiffs seek would be an improper advisory opinion barred by the separation of powers provision of the Texas Constitution.
Conclusion
I join in the judgment affirming the trial court's dismissal of this case.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Kelly, and Goodman. Keyes, J., concurring in the judgment. Goodman, J., concurring.