Opinion

Opinion issued March 10, 2011

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00706-CV

———————————

Cernosek Enterprises, Inc.; CJN Investments,

Inc.; and Anthony Cernosek , Appellants

V.

City of Mont Belvieu;

Enterprise Products Operating, LLC; Mont Belvieu Caverns, LLC; and Enterprise

Texas Pipeline, Inc. , Appellees

On Appeal

from the 344th District Court

Chambers

County, Texas

Trial Court Case No. 24222

O P I N I O N

This

appeal arises out of a prior settlement agreement between appellees, the City

of Mont Belvieu and Enterprise Products Operating, LLC, Mont Belvieu Caverns,

LLC, and Enterprise Texas Pipeline, Inc.

See City of Mont Belvieu v. Enter. Prods. Operating, LP , 222 S.W.3d 515

(Tex. App.—Houston [14th Dist.] 2007, no pet.).

Appellants Cernosek Enterprises, Inc., CJN Investments, Inc., and

Anthony Cernosek, collectively, own Hill Lumber, which is located and does

business in the City of Mont Belvieu. [1]

In 2005, Enterprise began

drilling within the City limits to create an underground hydrocarbon storage

facility. Id. at 517 . Enterprise had a

drilling permit from the Texas Railroad Commission, but did not have City

permits. Id. The City sued Enterprise, and Enterprise filed a plea to the

jurisdiction alleging that the trial court lacked subject‑matter

jurisdiction to overturn the Commission’s decision to issue a permit, which the

trial court granted. Id. at 517–18.

After the Fourteenth Court

of Appeals reversed the trial court, the City and Enterprise entered into a

July 2007 settlement agreement. Among

other things, the settlement agreement required that Enterprise purchase, at

three times the tax value of the most recent tax appraisal, homes of people

located on the salt dome who resided there before an explosion that occurred in

the 1980s and who did not participate in the previous buyout offer. See

Maranatha Temple, Inc. v. Enter. Prods. Co. ,

893 S.W.2d 92 , 95–96 (Tex. App.—Houston [1st Dist.] 1994, writ denied)

(discussing 1980s buyout). Enterprise

also purchased City property such as the old city hall. Excluded from the settlement agreement were

commercial entities and residents who moved to the area after the initial

buyout. Finally, pursuant to the

settlement agreement, the City issued drilling permits to Enterprise for wells

that were previously permitted by the Railroad Commission.

In June 2008, Hill Lumber

sued the City and Enterprise, alleging that they had knowingly violated Mont

Belvieu’s municipal ordinances —specifically, chapter 10 of the City Code,

regarding the issuance of permits, and chapter 25, the City’s zoning ordinance

regulating the drilling and subsequent operation of hydrocarbon storage wells —and

that the City had violated the Open Meetings Act [2] in entering into the settlement

agreement. Hill Lumber claimed that

these violations gave rise to liability on the part of the City for due‑process

violations and inverse condemnation and gave rise to liability in tort on the

part of Enterprise for fraud, conspiracy, and breach of fiduciary duty.

Specifically, Hill Lumber

contended that the City’s ordinances required the written consent of all

property owners within 2,500 feet of

a storage well site before drilling could be permitted and that two of the

wells the City had permitted Enterprise to drill were drilled within 2,500 feet

of Hill Lumber’s location without its written consent. Hill Lumber also contended that the City gave

inadequate notice of the permits. It acknowledges

that the City Council held a special meeting on July 16, 2007 to discuss in

public the City’s settlement agreement with Enterprise and that it gave three‑days

prior notice of that meeting. It also

acknowledges that the City Council subsequently held a public meeting on July

23, 2007 at which the drilling permits were approved. Hill Lumber does not deny that it had actual

notice of these meetings, but it contends that the notice of the drilling

permits was “not sufficient” because not all of the notice requirements in the

ordinances were satisfied.

In its prayer, Hill Lumber

sought revocation of the well permits for the two wells drilled within 2,500

feet of its property, an order requiring Enterprise to remove all structures it

had built as a result of the permits and to shut down and plug the wells, a

declaratory judgment that the City had violated its ordinances, preliminary and

permanent injunctions against the drilling and operation of the wells, and

actual and exemplary damages against Enterprise. However, although Enterprise drilled the two

wells within 2,500 feet of Hill Lumber’s location, the record does not reflect

that Hill Lumber actively pursued injunctive relief to stop the wells.

Both the City and Enterprise filed special exceptions, claiming Hill

Lumber had not alleged facts sufficient to show that the trial court had

jurisdiction over its claims. The City

and Enterprise alleged that Hill Lumber had not shown that the ordinances Hill

Lumber claimed they had violated created a private cause of action. Nor had it stated facts showing that it had

any particular individual interest in the issuance of the permits apart from a

general community interest. The City and

Enterprise also alleged that Hill Lumber had not pleaded facts that showed the

City was not allowed to use the exceptions and waivers found in the ordinances,

which permitted the City Council to grant exceptions to its permitting

requirements at the request of an applicant “upon such conditions it determines

necessary to protect public health and safety.”

They also pointed out that the City’s ordinances required that the City

consider the application at a city‑council meeting at which “anyone may

speak out for or against granting the application” for a permit and that Hill

Lumber had not stated facts showing that the July 16 and July 23 meetings were

not open meetings or that notice of the meetings was inadequate. The City and Enterprise further alleged that

Hill Lumber had failed to show that it had standing to challenge the settlement

agreement on contract or tort grounds.

The City also specially excepted to Hill Lumber’s pleadings of

violations of due process on the ground that Hill Lumber had not shown how it

had been deprived of due process, and it specially excepted to Hill Lumber’s

inverse­‑condemnation claim on the ground that it had failed to allege

how the well permits interfered with its use and enjoyment of its property

economically or how they affected the value of Hill Lumber or caused the severe

economic impact Hill Lumber claimed.

Enterprise filed a plea to

the jurisdiction, contending that Hill Lumber had no standing to use the

lawsuit to enforce the municipal ordinances.

The City filed a similar plea to the jurisdiction based on standing, and

it also asserted its immunity from suit.

In November 2008, the trial court granted the City’s plea to the

jurisdiction and special exceptions, except on Hill Lumber’s claims for alleged

violations of the Open Meetings Act. On

December 18, 2008, the trial court granted Enterprise’s plea to the

jurisdiction and special exceptions, holding that Hill Lumber could not amend

its petition to assert any valid claims or causes of action. After Hill Lumber dismissed its remaining

Open Meetings Act claim against the City, the trial court signed a final

judgment in July 2009 dismissing with prejudice all of Hill Lumber’s claims.

The City’s Governmental Immunity

In

issue one, Hill Lumber contends that the trial court erred in granting the

City’s plea to the jurisdiction based on governmental immunity. [3] Governmental immunity from suit defeats a

trial court’s subject‑matter jurisdiction. Tex.

Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). Whether a trial court has jurisdiction is a

question of law subject to de novo review.

See Tex. Natural Res. Conservation Comm’n v. IT-Davy , 74 S.W.3d 849,

855 (Tex. 2002).

Sovereign

immunity protects the State, its agencies, and its officials from lawsuits for

damages. See Tooke v. City of Mexia ,

197 S.W.3d 325 , 331 n.11 (Tex. 2006); IT-Davy ,

74 S.W.3d at 853–54; Gen. Serv. Comm’n v.

Little‑Tex Insulation Co., Inc. , 39 S.W.3d 591, 594 (Tex. 2001); Fed. Sign v. Tex. S. Univ. , 951 S.W.2d

401, 405 (Tex.1997). Under this

centuries‑old common-law doctrine, the sovereign is immune from liability

and also from lawsuits. See IT-Davy ,

74 S.W.3d at 853 ; Little‑Tex ,

39 S.W.3d at 594 ; Fed. Sign , 951

S.W.2d at 405 . Immunity from liability

shields the State from judgments. IT-Davy , 74 S.W.3d at 853 ; Little‑Tex , 39 S.W.3d at 594 ; Fed. Sign , 951 S.W.2d at 405 . Immunity from suit prohibits a suit against

the State unless the legislature grants consent. Little‑Tex ,

39 S.W.3d at 594 .

The

State’s sovereign immunity extends to various divisions of state government,

including agencies, boards, hospitals, and universities. Tooke ,

197 S.W.3d at 331 ; Wichita Falls Hosp. v.

Taylor , 106 S.W.3d 692 , 694 n.3 (Tex. 2003). The appurtenant common‑law doctrine of

governmental immunity similarly protects political subdivisions of the State,

including counties, cities, and school districts. Taylor ,

106 S.W.3d at 694 n.3; see also Harris Cnty. v. Sykes , 136 S.W.3d 635,

638 (Tex. 2004). A political subdivision

enjoys governmental immunity from suit to the extent that immunity has not been

abrogated by the legislature. See IT-Davy ,

74 S.W.3d at 853 .

A

political subdivision may contest a trial court’s subject‑matter

jurisdiction by filing a plea to the jurisdiction. Jones ,

8 S.W.3d at 638 . While a plea to the

jurisdiction is a procedural means for a political subdivision to contest

jurisdiction, the party suing the governmental entity has the burden to

establish consent to be sued. Id.

Hill

Lumber claims that the City is not entitled to governmental immunity from suit

for the following reasons: (1) the City acted ultra vires by not following its

own ordinances; [4]

(2) the City’s actions constitute a taking under Texas Constitution article I,

section 17; and (3) Local Government Code section 245.006 and Civil Practice

and Remedies Code section 37.006 expressly waive the City’s immunity from

suit. See Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. § 37.006 (West 2008); Tex. Loc. Gov’t Code Ann. § 245.006 (West 2005).

1. Ultra‑Vires

Actions

Hill

Lumber first argues that governmental immunity does not apply to the City

because it did not follow its own ordinances in issuing the permits. It is true that when an official acts without

legal authority or fails to perform a purely ministerial act, the official’s

acts are ultra vires and a suit to require the official to comply with

statutory or constitutional provisions is not prohibited by sovereign

immunity. City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009). We need not decide whether the ultra vires

doctrine applies in this case, however, because Hill Lumber has not sued the

proper parties.

Ultra

vires claims cannot be brought against the state, but must be brought against

officials in their official capacity. Id. at 373 ; Dillard v. Austin Indep. Sch. Dist. , 806 S.W.2d 589 , 596–98 (Tex.

App.—Austin 1991, writ denied) (discussing ultra vires exception and

differentiating between cases in which officials are sued and cases in which

state or governmental units are sued).

Hill Lumber has sued the City directly, not the members of the City Council. Accordingly, governmental immunity prohibits

the suit Hill Lumber has brought against the City.

2. Taking

Under Texas Constitution Article I, Section 17

Hill

Lumber next argues that governmental immunity does not bar its inverse‑condemnation

claim under Texas Constitution article I, section 17. See

Steele v. City of Houston , 603 S.W.2d

786, 791 (Tex. 1980) (article I, section 17 constitutes waiver of governmental

immunity for the taking, damaging, or destruction of property for public

use). Because this is a regulatory‑taking

claim, rather than a physical‑taking claim, Hill Lumber must show that

the governmental action denies use of the property, renders the property

valueless, or unreasonably interferes with the property owner’s right to use

and enjoy the property. Sheffield Dev. Co. v. City of Glenn Heights ,

140 S.W.3d 660 , 671–73 (Tex. 2004); City

of Dallas v. Blanton , 200 S.W.3d 266, 274 (Tex. App.—Dallas 2006, no pet.).

Hill

Lumber’s appellate briefing does not cite to any specific allegations in the

record stating why it cannot use its property or stating how the City has

unreasonably interfered with its right to use and enjoy the property by issuing

a drilling permit. Instead, Hill

Lumber’s live pleading merely alleges its “property value has been seriously

diminished, [its] property and lives (as well as the lives of employees and

customers) are at serious risk, [it] has lost business, and [its] general

welfare and ability to enjoy a peaceable community [has] been seriously

harmed.” These allegations do not state

specific facts evincing a taking by the City, and thus the trial court properly

granted the plea to the jurisdiction on this ground. City of

Dallas , 200 S.W.3d at 274, 279 (discussing level of evidence necessary to

demonstrate regulatory taking).

3. Express

Waiver of Immunity

Finally,

Hill Lumber claims that the City is not entitled to governmental immunity

because two statutes expressly waive immunity—Local Government Code section

245.006 and Civil Practice and Remedies Code section 37.006. Local Government Code chapter 245 generally

requires regulatory agencies to determine permit applications solely on the

basis of any orders, regulations, ordinances, rules, expiration dates, or other

properly adopted requirements in effect at the time the original permit

application is filed. Tex. Loc. Gov’t Code Ann. § 245.002(a) (West 2005). Chapter 245 (1) allows enforcement through

mandamus or declaratory or injunctive relief and (2) waives a political

subdivision’s immunity from suit for action under the chapter. Tex.

Loc. Gov’t Code Ann. § 245.006 (West 2005).

Even

were we to assume that chapter 245 applies to the specific permits in this

case, Hill Lumber is not entitled to the waiver of immunity from suit because

it is not the permit applicant. Section

245.006 itself does not specify who may bring a suit, but section 245.002

discusses “[r]ights to which a permit applicant is entitled under this

chapter.” Tex. Loc. Gov’t Code Ann. § 245.002(a–1) (West 2005). Unless a statute is ambiguous, we construe a

statute as written, using the literal text.

Alex Sheshunoff Mgmt. Servs., L.P.

v. Johnson , 209 S.W.3d 644 , 651–52 (Tex. 2006). Nothing in chapter 245 suggests that section

245.006 waives governmental immunity and allows anyone other than a permit

applicant to have the right to file suit.

Hill

Lumber last relies on the Uniform Declaratory Judgments Act to waive

governmental immunity from suit: “In any proceeding that involves the validity

of a municipal ordinance or franchise, the municipality must be made a party .

. . .” Tex. Civ. Prac. & Rem. Code

Ann. §

37.006(b) (West 2008). Here, no one

challenges the validity of Mont Belvieu’s ordinances, but rather the City’s

actions under the ordinances. See City

of El Paso , 284 S.W.3d at 373 n.6.

We

hold that the trial court did not err in granting the City’s plea to the

jurisdiction based on governmental immunity, and we overrule issue one. Because the City’s plea to the jurisdiction

was properly granted on governmental immunity, we do not reach Hill Lumber’s

remaining claims against the City in issues two and three concerning standing.

Hill Lumber’s Standing to Allege Its Claims

Against Enterprise

In

issues two and three, Hill Lumber contends that the trial court erred in

granting the City’s plea to the jurisdiction based on lack of standing. Issue two relates solely to Hill Lumber’s

statutory standing to sue the City, and we do not reach it. In issue three, Hill Lumber asserts it has

common‑law standing to sue Enterprise for negligence, gross negligence,

fraud by nondisclosure, and nuisance claims.

The

general test for standing requires that there be a real controversy between the

parties which will actually be determined by the judicial declaration

sought. Tex. Ass’n of Bus. v. Tex.

Air Control Bd. , 852 S.W.2d 440, 447 (Tex. 1993). Standing is a component of subject‑matter

jurisdiction, which requires a pleader to allege facts that affirmatively

demonstrate the court’s jurisdiction to hear the case. Id. at 446. Standing also requires

some interest peculiar to the person individually and not as a member of the

public. Hunt v. Bass , 664 S.W.2d

323, 324 (Tex. 1984); Lobrado v. Cnty. of El Paso , 132 S.W.3d 581 ,

586–87 (Tex. App.—El Paso 2004, no pet.). [5] The general rule applies unless standing has

been statutorily conferred on the plaintiff.

Williams v. Lara , 52 S.W.3d 171, 178 (Tex. 2001); Labrado ,

132 S.W.3d at 587 . When a private

cause of action is alleged to derive from a constitutional or statutory

provision, the duty of the courts is to ascertain the drafters’ intent. Brown

v. De La Cruz , 156 S.W.3d 560, 563 (Tex. 2004). In

such a case, the statute itself serves as the basis for the analysis. Everett v. TK-Taito, L.L.C. , 178

S.W.3d 844, 850 (Tex. App.—Fort Worth 2005, no pet.). The courts will not imply that a

constitutional or statutory provision gives rise to a private cause of action

unless the drafters’ intent is clear from the language. See

Brown , 156 S.W.3d at 566 .

On

appeal, Hill Lumber does not substantively brief any of the common‑law

elements of its negligence, gross negligence, fraud by nondisclosure, and

nuisance claims. Instead, it argues that

these are “common law claims based on the duties created in the ordinances,”

that it has suffered “actual harm caused by [Enterprises’] violations of

statutes and ordinances,” and that it “seeks recovery of damages caused by the

City and Enterprise’s tortious permitting, drilling and operating of [the two

wells], contrary to the direct, clear, and unambiguous requirements set forth

in the City Code.” Enterprise argues,

and we agree, that whether the City’s ordinances create duties that can be the

basis of private causes of action, regardless of whether they sound in tort, is

a question of law. See Brown , 156 S.W.3d at 563

(discussing private cause of action based on statute); Perry v. S.N. , 973 S.W.2d 301, 309 (Tex. 1998) (discussing

application of negligence per se based on criminal statute).

Although

Hill Lumber cites cases discussing other statutes, [6] the only substantive legal

argument directly related to the City ordinances that Hill Lumber makes on

appeal is the following from its reply brief:

The proper test to see if a

duty can be established by statute is set forth in Perry v. S.N. , where the Supreme Court noted six factors to use in

determining if implementation of a statutory duty is proper. Perry

v. S.N. , 973 S.W.2d 301, 305 (Tex. 1998).

Here, each of the factors supports implementation of a statutory duty

against Enterprise: (1) the statute simply supplies the standard of care

regarding fraud, negligence, and nuisance by imposing an absolute distance

restriction not only for permit issuance, but also for the existence of any

wellhead of any storage well, see

City Code § 10‑14; (2) the City Code states clearly and unambiguously

that the location cannot be within 2,500 feet of Hill Lumber’s commercial

property without Hill Lumber’s prior written consent, see City Code § 10‑14; (3)

because the statute is narrowly drawn to only effect [sic] hydrocarbon storage

wells in the City, it is highly unlikely than an unsophisticated party could be

subject to liability without first checking the statutory requirements; (4)

Enterprise’s unauthorized wells expose them to relatively small liability

compared to the value of drilling a hydrocarbon storage well, and the potential

damage to the surrounding land; and (5) Enterprise’s unauthorized drilling and

operation of the well directly caused Hill Lumber’s injuries, as contemplated

by the statute, see City Code § 10‑63(A) (“drilling or operation of a well . . .

might be injurious or disadvantageous to the City or to its inhabitants,

especially adjacent property owners.”).

Each Perry factor supports the conclusion that the ordinances are the

proper ground to create statutory duties with which Enterprise is required to

conform its actions.

We hold that Hill Lumber has not

adequately briefed this issue, and we decline to undertake a detailed de novo

examination of each of the city ordinances to determine whether they create

duties that can be the basis of private causes of action. See

Tex. R. App. P. 38.1(h) (“The

brief must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”).

We observe, however, that Hill Lumber

has utterly failed to show that the ordinances it alleges were violated were

intended to provide a person in its position with a private cause of action,

nor could it. See Brown , 156 S.W.3d at 563 .

The City’s general purpose in setting out the permitting procedures and

zoning ordinances, stated with specificity in several places in both chapter 10

and the zoning ordinance, is to regulate drilling operations, site

requirements, and land use in the public interest. The City enforces these requirements and

provides penalties, including criminal penalties in the case of zoning

violations, for their abuse. See Mont

Belvieu, Tex., Code §§ 10‑11, 10‑14, 10‑62, 10‑64,

10‑66, 10‑68, 25‑1 to 25-100.

Nowhere do the ordinances cited by Hill Lumber express the legislative

intent to provide a private cause of action to citizens for a violation of

either the permitting regulations or the zoning provisions. Therefore, Hill Lumber has failed to establish

that it has standing to pursue a claim against Enterprise under the language of

these ordinances. See Everett , 178 S.W.3d at 850 .

Hill Lumber’s argument, to the extent

it makes one—that its satisfaction of the Perry

factors justifies this Court’s determination that it is entitled to a permanent

injunction enjoining Enterprise’s drilling and operation of the two wells

permitted to be drilled within 2,500 feet of its property, requiring plugging

of the wells and removal of all structures, and awarding both actual and

exemplary damages against Enterprise because of injuries allegedly resulting

from the failure of the City and Enterprise to follow the City’s permitting and

zoning ordinances—is likewise unavailing.

In Perry , parents brought

negligence per se actions under Family Code section 261.109(a), which requires

the reporting of child abuse, against persons who had failed to report child

abuse they had allegedly witnessed at a day‑care center. Perry ,

973 S.W.2d at 302–04; see Tex. Fam. Code Ann. § 261.109(a) (West Supp. 2010). The supreme court pointed out that the

existence of a legally cognizable duty is a prerequisite to all tort

liability. Perry , 973 S.W.2d at 304 . It

held that the threshold questions in every negligence per se action seeking to

impose liability for the defendant’s violation of a statute are (1) whether the

plaintiff belongs to the class the statute was intended to protect and (2)

whether his injury is of a type the statute was designed to prevent. Id .

at 305. The court further held that

although the plaintiffs were within the class of persons the child‑abuse‑reporting

statute was meant to protect and suffered the kind of injury the Legislature

intended the statue to prevent, this did not end the inquiry. Id .

at 305.

The Perry court set out a number of factors to aid courts in

determining whether tort liability should be imposed for the violation of a

statute. See id . at 305–06. The factors the Perry court stated should be considered in deciding to apply

negligence per se are: (1) whether the statute merely codifies a pre-existing

common‑law duty “so that the statute’s role is merely to define more

precisely what conduct breaches that duty”; (2) whether the statute puts the

public on notice by clearly defining the required conduct; (3) whether applying

negligence per se would create liability without fault; (4) whether negligence

per se would result in ruinous damages disproportionate to the seriousness of

the statutory violation, a result it found particularly troubling when

“combined with the likelihood or ‘broad and wide‑ranging liability’ by

collateral wrongdoers”; and (5) whether the plaintiff’s injury is a direct or

indirect result of the violation of the statute by a third party. Id .

at 306–09.

Here, while Hill Lumber, as a

property‑owner within the City, is among the persons the City intended to

protect by regulating storage‑well drilling and operation, its claims

satisfy none of the Perry factors for

applying the law of negligence per se: (1) there is no common‑law duty running

from either the City or Enterprise to Hill Lumber not to drill a well within

2,500 feet of its property, rather such a duty is purely statutory; (2) while

the ordinances clearly define the requirements for obtaining drilling permits,

the same ordinances that Hill Lumber claims were violated clearly provide for

the City to make exceptions in the public interest; (3) extending Hill Lumber’s

claims of negligence per se beyond the City, which allegedly violated its

ordinances by permitting Enterprise to drill, to Enterprise, which drilled

wells pursuant to permits granted it by the State and by the City pursuant to

the settlement agreement, would create liability to Hill Lumber on Enterprise’s

part without Enterprise’s fault; (4) allowing a single property‑owner in

the municipality with property within 2,500 feet of a storage well to hold a

publicly approved drilling operation hostage to that property owner’s written

consent to the well on pain of the permit holder’s being permanently enjoined

from drilling and operating the permitted wells and being required to cease

operations, plug the wells, remove all structures, and pay that property owner

actual and exemplary damages because of the City’s and the permit holder’s

violation of municipal ordinances would plainly result in ruinous damages

disproportionate to any damage suffered by Hill Lumber (none of which was

specifically identified) and would create “‘broad and wide-ranging liability’

by collateral wrongdoers”; and (5) any damage caused to Hill Lumber’s property

values by the City’s or Enterprise’s violation of municipal ordinances would be

an indirect result of the violation of the ordinances. As in Perry

itself, Enterprise’s alleged conspiracy with the City to violate municipal

ordinances fails to justify the imposition on Enterprise of tort liability to

Hill Lumber under the Perry factors.

Finally,

we note that Hill Lumber has not demonstrated that it has standing to sue

either Enterprise or the City because it has not shown that it has an interest peculiar to it individually and not

as a member of the public. See Hunt , 664 S.W.2d at 324 . In its live pleadings, Hill Lumber contends

that the wells “destroy the peace and general welfare of the nearby community”

and “decrease the property values of the businesses and residences near

them.” While Hill Lumber alleges damage

to the community, it has not demonstrated that this injury affects it in some

special or unique way that is different from the injury suffered by the

community at large. Lobrado , 132

S.W.3d at 586–87.

We

hold that the trial court did not err in granting Enterprise’s plea to the

jurisdiction based on standing, and we overrule issue three.

Enterprise’s Special Exceptions

In

issue four, Hill Lumber argues that the trial court erred in granting

Enterprise’s special exceptions. In

light of our holding that the trial court did not err in granting Enterprise’s

plea to the jurisdiction based on standing, the trial court’s grant of special

exceptions is relevant only to the extent that the order stated, “Nor can [Hill

Lumber] amend the petition to assert any valid causes of action against

[Enterprise].” See Tex. Ass’n of Bus. , 852 S.W.2d at 447 (“A review of only

the pleadings to determine subject matter jurisdiction is sufficient in the

trial court because a litigant has a right to amend to attempt to cure pleading

defects if jurisdictional facts are not alleged. See

Tex. R. Civ. P. 80.”). Hill Lumber’s argument on this issue is that

its pleadings were not defective, an argument we have determined to the contrary. It does not argue on appeal that the trial

court erred in not allowing it to replead.

Accordingly, we overrule issue four.

Conclusion

We

affirm the trial court’s judgment.

Evelyn

V. Keyes

Justice

Panel consists of Justices Keyes, Higley, and Bland.

[1] In this opinion, we will

refer to the parties as follows: (1) Enterprise Products Operating, LLC, Mont

Belvieu Caverns, LLC, and Enterprise Texas Pipeline, Inc. collectively as

“Enterprise”; (2) Cernosek Enterprises, Inc., CJN Investments, Inc., and

Anthony Cernosek collectively as “Hill Lumber”; and (3) the City of Mont

Belvieu as “the City.”

[2] Tex.

Gov’t Code Ann. §§ 551.001–.146 (West

2004 & Supp. 2010).

[3]

The

parties use the term “sovereign immunity,” as opposed to the proper term

“governmental immunity.” The doctrines

of sovereign and governmental immunity are related but distinguishable. Sovereign immunity protects the State itself

and various divisions of state government, while governmental immunity protects

political subdivisions, including counties, cities, and school districts. See

Ben Bolt–Palito Blanco Consol. Indep.

Sch. Dist. v. Tex. Political Subdivs. Prop./Cas. Joint Self-Ins. Fund , 212

S.W.3d 320, 324 (Tex. 2006)

[4] Mont

Belvieu, Tex., Code §§ 10‑11, 10‑14, 10‑62, 10‑64,

10‑66, 10‑68. The ordinances

were not introduced into the trial‑court record, but were merely attached

to pleadings. See Metro Fuels, Inc. v. City

of Austin , 827 S.W.2d 531, 532 (Tex. App.—Austin 1992, no writ) (discussing

how to take judicial notice of municipal or county ordinance and make ordinance

part of appellate record). The fact that a document is physically present in

the clerk’s record as an attachment to another document does not make the

attached document a proper part of the appellate record. See

Atchison v. Weingarten Realty Mgmt. Co. ,

916 S.W.2d 74, 77 (Tex. App.—Houston [1st Dist.] 1996, no writ).

[5] S ee also Wilkinson v.

Dallas/Fort Worth Int’l Airport Bd. , 54 S.W.3d 1, 13 (Tex. App.—Dallas 2001,

no pet.) (holding that allegation that governmental activity caused diminution

in value or marketability of property is insufficient to state claim for

inverse condemnation under Texas Constitution; only special injuries to

property not suffered by community in general are compensable).

[6] E.g. , SCI Tex. Funeral

Servs., Inc. v. Hijar , 214 S.W.3d 148,

153 (Tex. App.—El Paso 2007, pet. denied) (discussing alleged violations of

Federal Trade Commission rules adopted pursuant to 15 U.S.C. § 57a(a)(1)

2006) ).