Opinion
No. 06-17-00119-CV
08-30-2018
RICKY J. SHUGART, Appellant v. DAVID THOMPSON, AND SHERIFF'S DEPARTMENT OF FANNIN COUNTY (FCSD), Appellees
On Appeal from the 336th District Court Fannin County, Texas
Trial Court No. CV-15-42338 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley MEMORANDUM OPINION
In this case, we consider the pro se appeal of Ricky J. Shugart, an inmate in a Texas Department of Criminal Justice prison, from the trial court's dismissal of his civil suit against Fannin County (the County). In a prior appeal, we considered the trial court's dismissal, pursuant to the County's plea to the jurisdiction and motion to dismiss under Chapter 14 of the Texas Civil Practice and Remedies Code, of Shugart's petition without holding a hearing. Shugart v. Thompson (Shugart I), No. 06-15-00101-CV, 2017 WL 117331, at *1 (Tex. App.—Texarkana Jan. 12, 2017, no pet.) (mem. op.). As relevant here, we affirmed the trial court's dismissal of Shugart's claim asserted against the County under the Texas Tort Claims Act, but reversed the trial court's dismissal of Shugart's takings claim against the County brought under the Texas Constitution. Id. at *5, 12. In addition, we reversed the trial court's dismissal of Shugart's request for declaratory judgment challenging the constitutionality, as applied to him, of Sections 481.002(17) and 481.153 of the Texas Health and Safety Code. Id. at *12. On remand, the trial court granted the County's plea to the jurisdiction and motion for summary judgment, but did not specify the grounds for its judgment.
Although Shugart filed suit against the Fannin County Sheriff's Department (FCSD), Fannin County answered the suit as the real party in interest. The trial court's final judgment also dismissed, without prejudice, Shugart's claims against David Thompson, Game Warden McGee, and the City of Bonham, who had not been served with citation. In this appeal, Shugart does not challenge the dismissal of Thompson, McGee, or the City of Bonham. In our opinion, we will only discuss those parts of the pleadings, motions, and documents filed in the trial court that are necessary to the resolution of this appeal.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.108 (West 2011 & West Supp. 2017).
See TEX. CONST. art. I, §17.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(17), 481.153 (West 2017).
In five issues on appeal, Shugart challenges the trial court's grant of the County's plea to the jurisdiction and motion for summary judgment and its denial of his motions for summary judgment, complains of the trial court's lack of enforcement of the discovery rules, and complains that the trial court ruled on motions without reading them. We find that the trial court properly granted the plea to the jurisdiction and that Shugart's other issues are moot. Consequently, we will affirm the trial court's judgment.
I. Background
In Shugart I, we set forth the basic facts and allegations underlying Shugart's claims:
According to Shugart's allegations, in September 2013, several officers with the FCSD illegally entered onto his property and into his home without a warrant, handcuffing him and his family. Shugart admitted to the officers that he had a small bag of marihuana in a drawer next to a chair in the living room. He was arrested and escorted outside, where he saw agents going in and out of a greenhouse—described by Shugart as a "large dome building built & designed to house avocado trees"—behind his residence. One of the deputies commented about the large quantity of marihuana located in the greenhouse. Shugart later pled guilty to possession of over fifty, but under 2,000, pounds of marihuana and was sentenced to ten years' imprisonment.Id. at *1 (footnotes omitted). On remand, Shugart filed a first amended petition in which he reasserted his takings claim against the County under the Texas Constitution and again sought a declaratory judgment on the constitutionality of Sections 481.002(17) and 481.153, as applied to him. Shugart also filed a first amended motion for summary judgment in which he sought judgment as to the liability of the County on his takings claim and a declaration that Section 481.153 was unconstitutional as applied to him. In an affidavit in support of his motion, Shugart averred, inter alia, that there were over twenty support beams for the greenhouse, which had been cemented into the ground and that had been chain-sawed by the FCSD deputies.
Shugart also describes the greenhouse as "a three (3) story tall, 55 ft. diameter dome."
Although he had previously filed several other motions for summary judgment, Shugart represented to the trial court that this was his only live summary judgment both in filings with the trial court and at a status hearing.
The County filed its response to Shugart's motion for summary judgment, and, in support of its response, filed affidavits and other documents showing that Cheryl Brinlee owned the real property on which the greenhouse was built, evidence that Brinlee had consented to the destruction of the greenhouse, and evidence showing the size of the greenhouse. After a hearing, the trial court denied Shugarts' motion for summary judgment by order dated September 14, 2017.
Shugart did not object to any of the County's summary judgment evidence.
On October 26, 2017, the County filed its plea to the jurisdiction and motion for summary judgment (the County's plea and motion). The County sought both a traditional and no-evidence summary judgment, and a dismissal for want of jurisdiction, contending that there was no evidence of any of the elements of a taking under Article I, Section 17, of the Texas Constitution and no evidence that Shugart was the owner of the greenhouse. In addition, the County contended, inter alia, that there was not a justiciable controversy justifying Shugart's declaratory judgment action. In support of the County's plea and motion, the County again filed affidavits and other documents showing that Brinlee owned the real property on which the greenhouse was built, evidence that Brinlee had consented to the destruction of the greenhouse, and evidence showing the size of the greenhouse. By order dated October 26, 2017, the trial court set the hearing on the County's plea and motion.
This evidence included a copy of the tax records from Fannin County identifying Brinlee as the owner of twenty acres located at 5120 CR 2025, Ivanhoe, TX.
Although he objected to some aspects of one affidavit, Shugart did not object to this evidence.
On November 16, 2017, Shugart filed his counter/cross motion for summary judgment (the November 16 cross motion), without leave of court. Although the document's title indicated it was a counter/cross motion for summary judgment, the body of the document indicated that it was also filed as a response to the County's plea and motion. On that same date, Shugart also filed two affidavits. In his first affidavit, Shugart stated that Brinlee was the landowner, that he and Brinlee had a "verbal contract agreement" for him to maintain and improve the place in exchange for tenancy, and that the greenhouse was "built on verbal agreement that the building could be used by [Shugart] indefinitely so long as it produced vegetables & fruit for [Brinlee and Shugart]." In his second affidavit, Shugart stated that the "dome greenhouse [was] behind the residence [Shugart] rented from . . . Brinlee. . . . at 5120 C.R. 2025, Ivanhoe, Texas."
At the hearing on the County's plea and motion, the trial court refused to hear the November 16 cross motion because Shugart had not filed it at least twenty-one days before the hearing. However, the trial court did hear Shugart's response to the County's plea and motion. At the conclusion of the hearing, the trial court granted the County's plea and motion.
II. The Dismissal of Shugart's Claims Was Proper
In four of his issues, Shugart complains of the trial court's grant of the County's plea and motion, its denial of his motion for summary judgment, and the trial court's perceived mishandling of the motions. Because we find that the trial court properly granted the County's plea and motion, we overrule these issues.
Since the trial court did not state the basis of its judgment, we will affirm the judgment if any grounds are meritorious. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
A. Shugart's Takings Claim
Since attacking the plaintiff's standing challenges the court's authority to decide a case, it is properly brought by a plea to the jurisdiction. Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012). When the "plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); see Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013). Whether a plaintiff has standing is a question of law that we review de novo. A.P.I. Pipe & Supply, 397 S.W.3d at 166.
"A trial court lacks jurisdiction and should grant a plea to the jurisdiction where a plaintiff 'cannot establish a viable takings claim.'" Id. (quoting Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 491 (Tex. 2012)). "Further, '[i]t is fundamental that, to recover under the constitutional takings clause, one must first demonstrate an ownership interest in the property taken.'" Id. (quoting Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 644 (Tex. 2004)). Thus, if Shugart does not have an ownership interest in the greenhouse sufficient to support a takings claim, the trial court lacks jurisdiction. See id.
In the County's plea and motion, the County challenged Shugart's ownership interest in the greenhouse, asserting and producing evidence that Brinlee was the owner of the real property on which the greenhouse was constructed. In takings cases, improvements to land are generally considered part of the realty. State v. Clear Channel Outdoor, Inc., 274 S.W.3d 162, 165 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing State v. Carpenter, 89 S.W.2d 979, 980 (1936)). In his response and supporting affidavits, Shugart admitted that Brinlee owned the real property and averred (1) that he had an oral tenancy agreement with Brinlee for as long as he maintained and improved the property and (2) that he had an oral agreement to use the greenhouse as long as it produced fruits and vegetables for Brinlee's and his use.
Whereas a lease for years creates a sufficient ownership interest to support a takings claim, a tenancy at will does not. See Nitschke v. Doggett, 489 S.W.2d 335, 337 (Tex. Civ. App.—Austin 1972), judgment vacated on other grounds by Doggett v. Nitschke, 498 S.W.2d 339 (Tex. 1973); Fort Worth Concrete Co. v. State, 416 S.W.2d 518, 521 (Tex. Civ. App.—Fort Worth 1967, writ ref'd n.r.e.). "To create an estate for years, or for any definite term, the lease must be certain, or capable of being made certain, as to the beginning, duration, and termination of the term." Haley v. GPM Gas Corp., 80 S.W.3d 114, 118 (Tex. App.—Amarillo 2002, no pet.) (quoting Willis v. Thomas, 9 S.W.2d 423, 424 (Tex. Civ. App.—San Antonio 1928, writ dism'd w.o.j.)). A lease for an indefinite period creates a tenancy at will, which may be terminated by either party at will. Pensive Props. LP v. Barnhart, No. 03-15-00463-CV, 2016 WL 3610930, at *1 (Tex. App.— Austin June 28, 2016, pet. dismissed) (mem. op.) (citing Holcombe v. Lorino, 79 S.W.2d 307, 310 (Tex. 1935); Providence Land Servs., LLC v. Jones, 353 S.W.3d 538, 542 (Tex. App.—Eastland 2011, no pet.)). Shugart's affidavits established that both his tenancy and the use of the greenhouse were for indefinite periods, i.e., for so long as he maintained and improved the property, or for so long as fruits and vegetables were produced. Thus, Shugart's interest in the greenhouse was (at best) a tenancy at will. See id. (holding that even if the tenant had an oral lease for life or for so long as he maintained the yard, both of those periods of time are indefinite, and the oral agreement created a lease terminable at will). Consequently, Shugart does not have an ownership interest in the greenhouse sufficient to support a takings claim, and the trial court lacked jurisdiction over his takings claim. See A.P.I. Pipe & Supply, 397 S.W.3d at 166.
B. Shugart's Claim for Declaratory Judgment
Shugart's lack of standing to assert his takings claim also adversely affects his request for a declaratory judgment regarding the constitutionality of Sections 481.002(1) and 481.153 of the Texas Health and Safety Code. A plaintiff who seeks a declaratory judgment must show an actual or threatened injury and that the declaration sought will resolve the controversy. See Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004); M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex. 2001). If the plaintiff cannot show an actual or threatened injury, he lacks standing, and his claims for a declaratory judgment must be dismissed. Novak, 52 S.W.3d at 707-08.
Shugart's declaratory judgment action is based on his contention that the County impermissibly used Section 481.153 as a justification for summarily destroying the greenhouse. However, since Shugart lacks an ownership interest in the greenhouse sufficient to assert a takings claim regarding its destruction, he cannot show an actual or threatened injury that will be resolved by the court's declaration. See id. at 707-08. Therefore, he lacks standing, and the trial court properly dismissed this claim.
Section 481.153 provides:
(a) Controlled substance property that is manufactured, delivered, or possessed in violation of this chapter is subject to seizure and summary forfeiture to the state.TEX. HEALTH & SAFETY CODE ANN. § 481.153.
(b) If an item of controlled substance property is seized and forfeited under this section, a court may order the disposition of the property under Section 481.159, or the department or a peace officer may summarily destroy the property under the rules of the department.
Because the trial court properly dismissed Shugart's claims for lack of jurisdiction, we overrule his issues challenging the dismissal of his claims.
Our resolution of these issues moots Shugart's other issues, and we need not address them. In his first issue, Shugart complains that the trial court did not consider his cross motion for summary judgment and his response to the County's plea and motion and the affidavits attached thereto. Since he lacked standing to assert his claims, his cross motion for summary judgment and any complaint regarding it would have no effect on the disposition of this appeal. Therefore, they are moot. We agree that the trial court should have considered his affidavits attached to his response since the affidavits contained evidence relevant to the consideration of the County's plea to the jurisdiction. However, it is not clear from the record that the trial court did not consider those affidavits. Further, in our de novo review, we have considered the affidavits, so Shugart's assertion that the trial court failed to do so is also moot. His lack of standing also moots his second issue, which complains of the trial court's denial of his motion for summary judgment. In his fifth issue, Shugart asserts that the trial court ruled on the summary judgment motions without reading them. While we do not think the record supports this complaint, it is rendered moot by our de novo review and our determination that he lacks standing to assert his claims. In his third issue, Shugart complains that the trial court failed to enforce the discovery rules by not requiring the County to respond to his discovery requests. However, Shugart never secured a hearing or an order on his motions to compel. See TEX. R. APP. P. 33.1(a). Even if Shugart had preserved this complaint on appeal, none of his discovery requests related to the issue of his ownership interest in the greenhouse, and consequently, resolution of this complaint would not affect our disposition of this appeal.
For the reasons stated, we affirm the trial court's judgment.
Bailey C. Moseley
Justice Date Submitted: August 15, 2018
Date Decided: August 30, 2018