Case of the Day – Thursday, March 16, 2017

WHERE’D THE TREES GO?

The Sanders were promised this ...

The Sanders were promised this …

Don and Susan Sanders loved the beautiful wooded subdivision in Grapevine, Texas, where they had bought their new house. The helpful salesperson had assured them that developer Weekley Homes intended for the subdivision to have a wooded, country atmosphere and “would take ordinary care” to preserve existing trees. After all, the sales flack with treacly sincerity, Weekley planned that the amenities for the subdivision would include wooded home sites. Not to worry, the syrupy agent smarmed them, because even if this weren’t so, everyone knew that the City of Grapevine, Texas, had a very tough tree ordinance which would be enforced strongly against Weekley.

Well, apparently not. The ordinance had teeth like a crocodile, but that’s not much solace unless the city enforces its terms. Here, as soon as the Sanders moved in, the trees started moving out. They complained that Weekley apparently had no intention of complying with the promises to keep the trees standing – they were tipped off by the shriek of the chainsaws – and the City seemed to have no intention of enforcing the tree ordinance. The Sanders tried to resolve the problem by writing a few letters and attending City Council meetings, but all that bought them was harassment by the City and the developer.

... but they ended up with this.

… but they ended up with this.

So they sued, going after the developer for misrepresentation and after the city and a gaggle of city officials for not enforcing the tough tree preservation law they had heard so much about. There’s nothing that’ll wake up a developer and city officials like the robust aroma of a freshly filed lawsuit.

Weekley apparently responded rather weakly, but the City took strong expection to the suit. Grapevine claimed it was immune from liability to its citizens for the City’s failure to enforce its tree laws. In other words, if city officials chose to look the other way when Weekley cut trees down daily, the Sanders had just better get used to the unfiltered Texas sun.

The Court of Appeals agreed, insofar as money damages were concerned. The Texas Tort Claims Act protected Grapevine officials. But the Sanders had asked for a declaratory judgment, too. Although their filings were not all that clear, the Court surmised that the Sanders wanted a judicial finding as to what rights they had, if any, under the City’s tree law.

Grapevine was not immune from a declaratory judgment action, the Court held. And while there are no money damages awarded for a declaratory judgment, a clear judicial finding that that the City fell down on the job of enforcing its ordinances could have substantial political effects. What mayor wants a judicial finding that he or she hasn’t enforced a law that most citizens fully support?

killer150116Sanders v. City of Grapevine, 218 S.W.3d 772 (Ct.App. Tex., 2007). Don and Susan Sanders sued the City of Grapevine, Texas, and a number of individuals over the City’s alleged failure to enforce its tree preservation ordinance. They had bought a home constructed by David Weekley Homes in the Silverlake Estates Subdivision, primarily due to its “wooded” and “country atmosphere.” The Sanders claimed that a sales consultant for Weekley Homes had assured them that Weekley Homes intended for the subdivision to have a wooded, country atmosphere, that Weekley Homes “would take ordinary care” to preserve existing trees, that the City of Grapevine had “an extremely tough tree ordinance,” and that the amenities for the subdivision would include wooded home sites.

But after they moved into their new home, it became clear to them that Weekley Homes had no intention of complying with, and the City had no intention of enforcing, the tree ordinance, after Weekly Homes cut down numerous trees within the subdivision. The Sanders brought claims for breach of contract and local tree preservation act violations against Weekley Homes — and for fraud, negligence, and negligent misrepresentation against all of the defendants — due to Weekley Homes’s failure to comply with, and the City’s failure to enforce, the City’s tree ordinance. They alleged the City was liable under §101.0215 of the civil practice and remedies code for damages arising from its governmental function of enforcing the tree ordinance. The Sanders also asked for a declaratory judgment.

The City argued that the Sanders’ claims against it should be dismissed because the City is entitled to governmental immunity. The individual defendants filed a motion to dismiss the claims against them with prejudice under the election of remedies section of the Texas Tort Claims Act. The trial court agreed, and the Sanders appealed.

Held: The Court of Appeals held that the city was immune from liability to the Sanders for negligence and fraud claims under the Texas Tort Claims Act, but it was not immune to a declaratory judgment action.

lawsuit150116The Court observed that in determining whether a city is subject to suit and liability under the Texas Tort Claims Act, the Court of Appeals must first determine whether the alleged conduct falls within the list of governmental functions listed in the Act, and if it does, the Court must then look to see whether the conduct falls within one of the other provisions of the Act that waives immunity. Here, the Court said, the City’s alleged conduct in failing to enforce a tree preservation ordinance clearly did not fall within the area of conduct for which governmental immunity was waived under the Texas Tort Claims Act. Waivers of immunity for negligence referred to conduct involving property damage, personal injury, or death, not alleged negligence in enforcing a statute on tree preservation. What’s more, the Act did not waive immunity for intentional torts, precluding an immunity waiver as to the fraud claim.

The Sanders also sued for a declaratory judgment determining what rights they had as homeowners under the City’s tree preservation statute. The Court agreed with them that the City was not immune from such an action, holding that a party does not need legislative permission to sue a governmental entity to determine its rights under a statute or ordinance, because the declaratory judgments action did not seek to impose damages or other liability on the city.

– Tom Root
TNLBGray

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