Jon A. Marshall v. Harris County Municipal Utility District 358

Opinion issued January 20, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

———————————

NO. 01-07-00910-CV

———————————

Jon A. Marshall , Appellant

V.

Harris County

Municipal Utility District No. 358 , Appellee

On Appeal from the County Civil Court at Law

No. 3

Harris County, Texas

Trial Court Case No. 810,140

MEMORANDUM

OPINION

This

appeal arises from a condemnation proceeding initiated by appellee, Harris

County Municipal Utility District Number 358 (“MUD 358”), to acquire property

belonging to appellant, Jon A. Marshall, for the construction of an offsite

drainage channel. Marshall filed a

motion to dismiss the condemnation proceeding contesting the authority of MUD

358 to condemn the property and objected to the findings of damages assessed by

the appointed special commissioners. The

trial court denied Marshall’s motion, finding after a hearing that MUD 358 had

authority to condemn the property.

Valuation of the taking and damages to the remaining property caused by

the taking were tried to a jury.

On

appeal, Marshall argues that (1) the trial court erred by denying his plea to

the jurisdiction; (2) the court reporter erred by failing to record the entire

proceeding; (3) the trial court erred by concluding that MUD 358 had the

authority to condemn the property; (4) the trial court erred by excluding

Marshall’s evidence relating to post-construction damages and inverse

condemnation; and (5) the trial court erred by failing to submit certain jury

questions in the trial on damages.

We

conclude that the trial court had jurisdiction and properly denied Marshall’s

plea to the jurisdiction. We also

conclude that the error, if any, in failing to record the entire proceedings is

harmless because the missing portions of the record are not necessary for the

resolution of this appeal. Furthermore,

we conclude that the trial court’s determination that MUD 358 had authority to

condemn Marshall’s property must be upheld because Marshall has not challenged

all the grounds that could support that determination. Finally, we conclude that the trial court did

not err by excluding evidence or by refusing to submit Marshall’s proposed jury

questions. We affirm.

Background

MUD 358 was

created on March 17, 1993 by order of the Texas Water Commission. The order recited that the Water Commission

considered and granted a petition for creation of the municipal utility

district pursuant to Chapter 54 of the Texas Water Code. See Tex. Water Code Ann. C h. 54 (“Municipal Utility

Districts”). MUD 358 covered

85.478 acres of land, described by metes and bounds in the order.

On September

17, 1993, MUD 358 entered into an “interlocal contract” with Harris County

Municipal Utility Districts Numbers 322 and 354. The contract designated MUD 358 as the

“Regional District” for the Fairfield Village Community. The stated purpose for the contract was,

[T]he organization

and operation of [MUD] 358 as a regional district to coordinate the planning,

construction, and maintenance of, and charging for the use of, the regional

water, sanitary sewer, and drainage facilities and services needed to serve

Fairfield Village and other regional facilities and services . . . in order to

(1) fairly and equitably share the cost of the facilities and services, (2)

benefit from the efficiencies resulting from regionalization, and (3) promote

the orderly development of the land within Fairfield Village.

In June

and July 2003 , Harris County Municipal Utility Districts Numbers 396 and

397 accepted the terms of the interlocal contract by each signing a one-page

document incorporating the interlocal contract by reference.

On June 26,

2001, Marshall purchased a 67.988-acre tract of land in northwest Harris County

for $340,000, or $5,000 per acre. It is

undisputed that Marshall’s property is located outside MUD 358’s boundaries.

On February

3, 2004, MUD 358 filed a statutory condemnation suit to acquire 17.473 acres of

Marshall’s property for “a public project relating to the construction,

operation, and maintenance . . . of an offsite drainage channel.” Upon filing of the petition with the trial

court, special commissioners were appointed to assess the damages resulting

from the condemnation. The commissioners

scheduled a hearing for March 18, 2004, but at Marshall’s request the hearing

was reset for April 22, 2004. Neither

Marshall nor a representative on his behalf attended the hearing. The commissioners awarded compensation to Marshall

in the amount of $200,940.

Marshall

filed objections to the award of the special commissioners on May 7, 2004,

converting the proceeding into a judicial case.

Through amended objections to the award and a plea to the jurisdiction,

Marshall contended that MUD 358 lacked the authority or jurisdiction to bring

its condemnation case and that MUD 358 had failed to properly invoke the

jurisdiction of the trial court. Additionally, Marshall contended that MUD 358

failed to negotiate in good faith prior to filing its condemnation petition and

that the amount of compensation awarded was less than that to which Marshall

was entitled. MUD 358 later amended its

pleading to reduce the amount of property to be condemned from 17.473 acres (“the

larger tract”) to 5.927 acres (“the smaller tract”). Marshall argued that MUD 358 abandoned the

condemnation suit by reducing the amount of land and that it failed to comply

with Chapter 21 of the Texas Property Code.

See Tex. Prop. Code Ann . §§ 21.001–.103 (Vernon 2000, 2004, &

Supp. 2010).

The trial

court held a hearing on Marshall’s motion contesting MUD 358’s authority to

condemn his property and challenging the validity of the condemnation

proceeding. Following the hearing, the

court denied Marshall’s motion to dismiss and issued findings of fact and

conclusions of law.

The court

held a jury trial on the valuation of the property taken and damage to

Marshall’s remaining property caused by the taking. The jury returned a verdict, finding the

market value of the 5.927 acres taken to be $65,197 and the damage to the

market value of the remaining property to be $13,743.

Jurisdiction

Within his

first two issues, Marshall contends that the trial court erred by denying his “Plea

in Abatement, Plea to the Jurisdiction, and Motion to Dismiss.” Within the argument section of his brief

pertaining to these issues, Marshall asserts the trial court erred by denying

his plea to the jurisdiction or simply asserts that the trial court lacked

jurisdiction. However, a review of

Marshall’s brief and of the record of the proceedings below shows that Marshall

is challenging MUD 358’s authority to condemn his property. Marshall cites no statute, case law, or

authority of any kind to support his position that MUD 358’s purportedly

wrongful condemnation of land outside of its boundaries deprives the trial

court of jurisdiction. We have found no

such authority in our independent research.

The one argument

that Marshall makes concerning jurisdiction has been expressly rejected by the

Texas Supreme Court. Marshall contends

that the trial court lost jurisdiction when MUD 358 filed amended pleadings

seeking only the smaller tract instead of the larger tract that the special

commissioners considered. The Texas Supreme

Court has rejected this argument. See FKM P’ship v. Bd. of Regents of the

Univ. of Houston , 255 S.W.3d 619, 626 (Tex. 2008). In FKM

Partnership , the University of Houston’s Board of Regents decided to

condemn approximately 47,008 square feet of FKM’s property. Id.

at 624 . After special commissioner’s

determined FKM’s damages, FKM timely objected to the commissioner’s award and

requested a trial de novo in the county court at law. Id. The University amended its petition twice

before the county court at law; the second amended petition sought

approximately 1,260 square feet. Id. at 625 . FKM contended that when the University filed

an amended pleading, drastically reducing the amount of land sought to be

condemned, it deprived the trial court of jurisdiction because the trial court

is limited to reviewing the issues raised before the special

commissioners. Id. at 626 . The Supreme Court

rejected that view, holding the trial court retained jurisdiction. Id. Because this issue has been decided by the

Texas Supreme Court, we conclude the trial court did not err by denying

Marshall’s plea to the jurisdiction.

We overrule

this portion of Marshall’s first three issues.

Incomplete Reporter’s Record

Within his

first issue, Marshall contends that the court reporter failed to make a full

record of the trial and he is, therefore, entitled to a remand for a new trial. Specifically, Marshall asserts that the trial

court impermissibly restricted his counsel during voir dire and that “many of

the bench conferences and orders” are not part of the record.

Under Texas

Rule of Appellate Procedure 34.6(f), a party is entitled to a new trial if: (1)

it timely requested a reporter’s record; (2) without that party’s fault, a

significant portion of the court reporter’s notes, records, or electronic

recording has been lost or destroyed or is inaudible; (3) the lost, destroyed,

or inaudible portion of the reporter’s record is necessary to the appeal’s

resolution; and (4) the lost, destroyed or inaudible portion of the reporter’s

record cannot be replaced by agreement of the parties. Tex. R. App. P. 34.6(f); see Landry’s Seafood House-Addison, Inc. v.

Snadon , 233 S.W.3d 430, 437 (Tex. App.—Dallas 2007, pet. denied). Here, the portions of the record Marshall

contends are missing are the voir dire and “many bench conferences and orders.” However, Marshall has not raised an issue

concerning reversible error occurring during voir dire or the unspecified “bench

conferences and orders.” Because he has

not raised an issue contending that the trial court committed reversible error

during any portion of the missing record, we conclude that the missing record

is not “necessary to the appeal’s resolution.”

See Tex. R. App. P. 34.6(f)(3).

Accordingly, we overrule this portion of Marshall’s first issue. See

Landry’s Seafood House , 233 S.W.3d at 430 (holding missing testimony not

necessary to resolution of appeal where missing testimony did not relate to purported

errors asserted on appeal).

We overrule this portion of Marshall’s

first issue.

Authority to

Condemn Marshall’s Property

In

his first three issues, Marshall generally asserts that the trial court erred

in concluding that MUD 358 had the authority to condemn his property. Specifically, Marshall asserts that the trial

court erred by denying his “Plea in Abatement, Plea to the Jurisdiction, and

Motion to Dismiss.” Within these three

issues, Marshall asserts: (1) section 54.201(b)(3) of the Texas Water Code does

not allow a district to condemn land outside of its boundaries; (2) MUD 358

impermissibly delegated its power of eminent domain; (3) the taking was not

permitted because there was no “public use,” and (4) MUD 358 violated the Texas

Open Meetings Act because it did not pass a separate resolution authorizing the

condemnation of the smaller tract.

In

his first two issues, Marshall presents legal arguments, primarily concerning

interpretation of statutes. We review

matters of statutory construction de novo.

City of San Antonio v. City of

Boerne , 111 S.W.3d 22, 25 (Tex. 2003).

In construing a statute, our objective is to determine and give effect

to the Legislature’s intent. State v. Gonzalez , 82 S.W.3d 322 , 327

(Tex. 2002). “If a statute’s meaning is

unambiguous, we generally interpret the statute according to its plain meaning.”

Id.

In determining legislative intent, we

look at the entire act as a whole, rather than isolated portions. Id.

In

his third issue, Marshall contends that the evidence is legally and factually

insufficient to support the trial court’s findings of fact. We review a trial

court’s findings of fact for legal and factual sufficiency of the evidence by

the same standards applied to a jury verdict. Ortiz v.

Jones , 917 S.W.2d 770, 772 (Tex. 1996). We review a trial court’s conclusions of law de

novo. BMC Software Belgium, N.V. v.

Marchand ,

83 S.W.3d 789, 794 (Tex. 2002).

1. Authority to Condemn

Marshall

first contends that the language of the Water Code does not authorize MUD 358

to condemn his property because it is outside of MUD 358’s boundaries and it is

not necessary for MUD 358’s use. MUD

358 responds that the Interlocal Cooperation Contracts Act (“the Act”),

Chapter 791 of the Government Code, to support its actions as a regional

district [1] acting on behalf of MUDs

396 and 397. See Tex. Gov’t Code Ann. §§ 791.001–.033 (Vernon 2004

& Supp. 2010). The Act “allows

political subdivisions to contract with one another to more efficiently share

resources and responsibilities.” Ben Bolt-Palito Blanco Consol. Indep. Sch.

Dist. v. Tex. Political Subdiv. Prop./Cas. Joint Self-Ins. Fund , 212 S.W.3d

320, 322 (Tex. 2006) (citing Tex. Gov’t

Code Ann. § 791.001

(“The purpose of this chapter is to increase the efficiency and effectiveness

of local governments by authorizing them to contract, to the greatest possible

extent, with one another and with agencies of the state.”)). “Under the Act, a local government may

contract with another local government to perform authorized governmental

functions and services.” Id. (citing Tex. Gov’t Code Ann. § 791.011(a), (b)). “Local governments under the Act include

municipalities, special districts, counties, and other political subdivisions,

as well as combinations of such entities.”

Id. (citing Tex. Gov’t Code Ann. § 791.003(4)).

Here,

the trial court made specific findings of fact relating to the interlocal

contract. The court found:

4. That on March 1, 1992, the District

entered into the Contract for Financing, Operation, and Maintenance of Regional

Water, Sanitary Sewer, and Drainage Facilities for the Fairfield Village

Community (the “Regional Contract”) through which the District agreed to act as

“Regional District’ for the other municipal utility districts within Fairfield.

Pursuant to the Regional Contract, the District is obligated to lease, acquire,

construct and extend Regional

Facilities for providing water, sanitary sewer, and drainage facilities, within

the Service Area of the Regional District.

. . . .

11. On June 17, 2003, Harris County Municipal

Utility District No. 397 accepted the Contract for Financing, Operation, and

Maintenance of Regional Water, Sanitary Sewer, and Drainage Facilities for the

Fairfield Village Community.

12. On July 29, 2003, Harris County Municipal

Utility District No. 396 accepted the Contract for Financing, Operation, and

Maintenance of Regional Water, Sanitary Sewer, and Drainage Facilities for the

Fairfield Village Community.

The trial

court also made the following conclusion of law:

4. The District was authorized to enter into

the Contract for Financing, Operation, and Maintenance of Regional Water,

Sanitary Sewer, and Drainage Facilities for the Fairfield Village Community and

to file this condemnation action as Regional District under this contract on

behalf of Harris County Municipal Utility District No. 396 and Harris County

Municipal Utility District No. 397.

Marshall does

not challenge these findings or conclusions on appeal. Marshall’s opening brief does not mention

these findings and conclusions or the Act at all. MUD 358’s engineer, Cindy Albers,

testified that the condemned property would be used to create an outfall

drainage channel that would “serve properties within Harris County MUD No. 396

and Harris County MUD No. 397.” An

appellant must challenge all the bases for a trial court’s ruling or judgment

complained of on appeal. See Britton v. Tex. Dep’t of Crim. Justice ,

95 S.W.3d 676, 682 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Midway Nat’l Bank v. W. Tex. Wholesale

Supply Co. , 453 S.W.2d 460 , 460–61 (Tex. 1970)). Marshall has not done so in this appeal. Accordingly, we must uphold the trial court’s

determination that MUD 358 had the authority to condemn Marshall’s property

under the Act.

We overrule

this portion of Marshall’s first three issues.

2. MUD 358 Impermissibly Delegated its Eminent

Domain Power

Marshall’s

brief on this issue states, in its entirety, as follows:

Further the suit and engineering work are underwritten by

Exxon Land Development, Inc./Friendswood for their private use for

Fairfield. Marshall submits the

substance over form of this pre-funding agreement, means this taking is a sale

or impermissible delegation of the power and authority of [MUD 358] (see Burch v. City of San Antonio , 518 S.W.2d

[540,] 543–45 [(Tex. 1975]), in violation of the Texas Constitution, enabling

Order of the Water Commission Order [sic], Water Code, and Property Code. This pre-funding agreement, paying all costs

and expenses coupled with appointing the Board essentially vested in Exxon Land

Development, Inc./Friendswood the decision and discretion on what to take, what

to build, what to offer to pay, who will offer to pay, what to pay, and when to

proceed.

(Record references omitted.)

In Burch , the Texas Supreme Court held that

the City of San Antonio could not delegate its power of eminent domain to its

Water Works Board of Trustees without an express Legislative grant of the power

to do so. Burch , 518 S.W.2d at 545. In

the words of the Supreme Court, “[T]he city council is the authority to exercise

the power of eminent domain and must itself officially express the intention

and necessity to condemn the land in question for the City’s water

system.” Id. Here, it is undisputed that

the Board, not “Exxon Land Development, Inc./Friendswood,” passed a resolution

declaring a public necessity to acquire Marshall’s property for public use. The trial court made findings of fact, which

are not challenged by Marshall in this appeal, that the Board determined that

there was a public necessity to acquire Marshall’s land for drainage

purposes. MUD 358 filed the condemnation

proceedings, not some other entity. In

unchallenged findings, of fact, the trial court found that the Board authorized

its agents to file the condemnation proceeding.

Here, the Board itself took the necessary actions, unlike the situation

in Burch , where the city council

delegated the authority to the board of trustees for the city’s water system. See id. We, therefore, conclude that MUD 358 did not

impermissibly delegate its power of eminent domain. [2]

We

overrule this portion of Marshall’s first three issues.

3. The Taking was not Authorized Because there

was no Public Use

Within

this portion of his first three issues, Marshall contends that the taking of

the smaller tract was not for a public use and that there was no public

necessity for taking the smaller tract.

A. Public

Use

Whether

a use is a “public use” is a question of law for the court. Malcomson

Rd. Util. Dist. v. Newsom , 171 S.W.3d 257, 263 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied). However, a

legislative declaration that a use is public is binding on this Court unless

the use is “clearly and palpably” a private use. Id.

at 266 (quoting Hous.

Auth. of the City of Dallas v. Higginbotham , 143 S.W.2d 79, 83 (Tex. 1940)). The Legislature has declared drainage

activities engaged in by a municipal utility district a public use. Id.

(citing Tex. Water Code Ann . § 54.201(a), (b)(3)).

Here, Marshall does not dispute that

drainage is a public use, but instead asserts that MUD 358 can only serve the

“public” located within its geographical boundaries. However, we have already held that under the

interlocal contract, which Marshall has not challenged on appeal, MUD 358 was

authorized to act on behalf of MUD 396 and MUD 397. MUD 358’s engineer, Albers, testified that the

condemned property would be used for drainage of property within MUD 396 and

MUD 397. Furthermore, MUD 358 owned

and operated retention and drainage lakes within the boundaries of MUDs 396 and

397, and the overflow from these lakes would drain over the condemned property. Condemnation for drainage under these

circumstances is a public use. Id.

B. Public

Necessity

“When

the use is public, the necessity or expediency of appropriating any particular

property is not a subject of judicial cognizance.” Higginbotham ,

143 S.W.3d at 89, quoted in FKM P’ship ,

255 S.W.3d at 630 . A government agency’s

determination of public necessity is “presumptively correct, absent proof by

the landowner of the agency’s fraud or proof that the condemning authority

acted arbitrarily or capriciously.” FKM P’ship , 255 S.W.3d at 629 .

Here,

MUD 358’s Board determined that there was a public necessity to condemn Marshall’s property. The resolution passed by the Board concerning

the condemnation of Marshall’s property states, in pertinent part,

[T]the Board of Directors of the District has determined

that, in order to accomplish the public purposes for which the District was

created and in order for the Regional District to effectively provide drainage

services to the Service Area (as defined in the Regional Facilities Contract),

it is necessary and in the best interests of the Regional District to construct

an offsite drainage channel to drain stormwaters from within the Service Area

to Little Cypress Creek; and

[T]he District’s Board of Directors has determined that

there is a public necessity to acquire certain property on the north side of

Schiel Road for such offsite drainage channel, specifically [Marshall’s

property], described in Exhibit “A” attached to this Resolution and

incorporated for all purposes (the “Tract”); and

[T]the District has been unable to negotiate the purchase

of the Tract, and the public necessity requires that the Tract be acquired through

the exercise of the District’s power of eminent domain as provided in § 49.222,

Texas Water Code . . . .

Once Again,

Marshall does not dispute these facts, but instead argues that, because his

property is 2.65 miles outside MUD 358’s boundaries, the condemnation of his

property is not necessary to drain the land of the public located inside MUD

358’s boundaries. However, as noted

above, the trial court determined that MUD 358 was authorized to act on behalf

of MUD 396 and MUD 397 under the interlocal contract, and Marshall does

challenge that determination on appeal. Nor

does Marshall dispute that MUD 358 owned and operated retention lakes within

the boundaries of MUD 396 and 397.

Marshall also generally asserts that MUD 358’s determination of public

necessity was fraudulent, arbitrary or capricious. However, Marshall does not identify any

evidence that supports this argument.

We, therefore, presume MUD 358’s determination of public necessity is

correct. See FKM P’ship , 255 S.W.3d at 629 .

4. Violation of the Texas Open Meetings Act

Marshall

also contends that MUD 358 did not have authority to condemn the smaller tract

because at the time it filed its amended petition seeking the smaller tract

instead of the larger tract, MUD 358’s Board had not passed a resolution in

accordance with the Texas Open Meetings Act authorizing the taking of the

smaller tract. Specifically, Marshall

contends that because MUD 358’s Board did not pass a separate resolution

authorizing the condemnation of the smaller tract and did not give notice of

intent to reduce the taking from the larger tract to the smaller tract, MUD 358

lacked authority to condemn the smaller tract.

Marshall

does not cite any provision of the Texas Open Meetings Act that he claims was

violated. According to his brief, he

complains that the Board of MUD 358 decided to take the smaller tract instead

of the larger tract—“an action taken without a corresponding posted Agenda

item.” See Tex. Gov’t Code Ann. § 551.041 (Vernon 2004) (“A governmental body shall give written

notice of the date, hour, place, and subject of each meeting held by the

governmental body.”). However,

the Board was not required to hold a meeting and pass a separate resolution

reducing the amount of the taking. Although

it was not addressing the Texas Open Meetings Act, the Texas Supreme Court addressed

this issue in FKM Partnership . See

FKM P’ship , 255 S.W.3d 619 at 630 .

In that case, the property owner asserted that the Board of Regents for

the University of Houston “did not pass a separate resolution specifically

authorizing condemnation of the smaller tract.”

Id. The Texas Supreme Court stated,

We do not agree with FKM, however, that a separate Board

resolution is necessary every time a condemnor decides to acquire less property

than it originally sought. FKM does not

reference a statutory or procedural requirement for its position, and a

resolution authorizing condemnation of a whole tract of land necessarily

authorizes condemnation of the separate parts that comprise the whole. We see no reason that the Board could not

vote to condemn a tract of land for public use then depend on and allow its

agents, subject to the Board’s supervision and approval, to determine that less

than the whole tract would suffice to fulfill the Board’s purposes or would fit

within the University’s budget. And if

the Board does so, then it could reasonably depend on the agents to negotiate

for less than the whole tract or, if suit has been filed as in this case, amend

its condemnation petition to seek a smaller tract.

Id. Because a separate action at a Board meeting

was not required, no separate notice was required. See Tex. Gov’t Code Ann. § 551.041 (requiring notice of “each meeting”);

see also id. § 551.001(4)(a) (Vernon

supp. 2010) (defining “ meeting” to include “a deliberation . . . during

which public business or public policy over which the governmental body has supervision

or control is discussed or considered or during which the governmental body

takes formal action”).

We overrule

this portion of Marshall’s first three issues.

Exclusion of Evidence

In his fifth

and sixth issues, Marshall contends that the trial court erred by excluding evidence

relevant to his counterclaim for inverse condemnation, his affirmative defenses

to MUD 358’s condemnation claim, and his post-construction damages.

1. Standard

of Review

Evidentiary rulings are committed

to the trial court’s sound discretion . Bay Area

Healthcare Group, Ltd. v. McShane , 239 S.W.3d 231, 234 (Tex. 2007). We review a trial court’s decision to admit or exclude evidence for

an abuse of that discretion . In re J.P.B. , 180 S.W.3d 570, 575

(Tex. 2005). “A trial court abuses its discretion

when it acts without reference to any guiding rules and principles.” G arcia v. Martinez , 988 S.W.2d

219, 222 (Tex. 1999). We must uphold the

trial court’s evidentiary ruling if there is any legitimate basis for the ruling.

Owens-Corning Fiberglas Corp. v.

Malone , 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek Fin. Corp. v.

Richwood Invs. II, Inc. ,

176 S.W.3d 307, 317 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). “[I]n addition to showing

an abuse of discretion , a party complaining of

error in the exclusion

of evidence

must also show that the trial court’s error was reasonably calculated to cause,

and probably did cause, the rendition of an improper judgment.” Madison v. Williamson , 241 S.W.3d 145, 151 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied) (quoting City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995) and

citing Tex. R. App. P.

44.1(a)(1)).

2. Inverse

Condemnation Evidence

“Inverse

condemnation occurs when (1) a property owner seeks (2) compensation for (3)

property taken for public use (4) without process or a proper condemnation

proceeding.” Villarreal v. Harris County , 226 S.W.3d 537, 542 (Tex. App.—Houston

[1st Dist.] 2006, no pet.); see also City

of Houston v. Texan Land & Cattle, Co. , 138 S.W.3d 382, 387 (Tex. App.—Houston

[14th Dist.] 2004, no pet.) The

proceedings is called “inverse” because the property owner, rather than the

government, brings the suit. Texan Land & Cattle, Co. , 138 S.W.3d

at 387 .

Here,

Marshall’s theory concerning inverse condemnation is that after the special

commissioner’s award of damages and MUD 358’s deposit of those damages with the

court, and during the pendency of the trial de novo in the trial court, MUD 358

constructed drainage facilities on the smaller tract. The construction impaired the drainage of

Marshall’s remaining property and amounted to a taking of his property for

public use without adequate compensation.

Marshall’s

specific argument is that the trial court abused its discretion

in denying Marshall the opportunity to establish . . .

his Counter-claim and violated his constitutional right to his full jury trial,

Vernon’s Ann. Tex. Constit. art. 1, Sec. 15.

The Bill of Rights to our Constitution recites and it has been long

held, that Marshall is entitled to trial by jury, Cockrill v. Cox , 65 Tex. 669 , 672–73, [sic] [(]Tex. 1886).

Although Marshall contends that the trial court abused its

discretion, Marshall does not address the trial court’s expressed reason for

not allowing evidence of Marshall’s inverse condemnation claim before the jury. Marshall,

in asking the trial court to allow his inverse condemnation claim to go forward,

explained to the trial court that MUD 358 filed the condemnation suit in

February 2004. After the commissioner’s

hearing, MUD 358 deposited the commissioner’s award with the court. Marshall objected and the proceedings in the

trial court began. Marshall further

explained that it was not until June 2005 that MUD 358 amended its pleadings to

reduce the amount of land sought to be condemned. In October 2005, MUD 358 presented Marshall

with the preliminary construction plans.

After the hearing on Marshall’s “Plea in Abatement, Plea to the

Jurisdiction and Motion to Dismiss” in March 2006, MUD 358 informed Marshall

that construction began on July 31, 2006 and presented Marshall with the final

plans in August 2006. Marshall filed his

counterclaim for inverse condemnation on August 8, 2006. Marshall was unable to inform the trial court

if the construction had been finished.

The trial court ruled that it would not allow the inverse condemnation

claim to proceed. The next day, Marshall

asked the trial court to reconsider. The

trial court explained, “[A]s a matter of law, given the nature of when the

events occurred, which were outlined extensively by your co-counsel yesterday,

there is no constitutional takings claim that is [ripe] at this time.” Marshall does not contend that the trial

court erred in concluding that, because construction was not complete, no

inverse condemnation claim could proceed.

Both the trial court’s statements and MUD 358’s representations to the

trial court leave open the possibility for Marshall to bring a separate inverse

condemnation suit for the change in conditions on his property due to the

construction. The trial court

specifically stated that the inverse condemnation claim could not go forward

“at this time.” MUD 358 pointed out that

Marshall’s experts had only prepared reports concerning his damages as of May

2004, long before the construction began.

Based on the record before us, we cannot conclude that Marshall has

shown that the trial court abused its discretion in limiting the issues in this

case to the damages caused by the taking of the smaller tract.

3. Affirmative Defense Evidence

Within his

argument for his fifth and sixth issues, Marshall asserts, “Landowners are

still allowed an opportunity to prove the taking is fraudulent, arbitrary, and

capricious, FKM Partnership , 225

S.W.3d at 629–30.” Marshall further

states,

Marshall is entitled to invoke his Constitutional right,

art. 1 Sec. 17 and Sec. 19, to contest the takings and submit evidence that the

taking is not for a public purpose, that this taking is fraudulent, arbitrary,

or capricious, FKM Partnership , 225

S.W.3d at 629–30. The court refused to

allow his evidence, this was harmful error and he was denied these rights.

These two excerpts

are the entirety of Marshall’s briefing on this issue. Marshall does not cite to any authority

discussing what showing may be required to establish that a taking is

“fraudulent, arbitrary, or capricious.”

Although his fifth and sixth issues deal with erroneously excluded

evidence, Marshall does not identify the evidence that he contends was excluded

nor attempt any analysis of how the excluded evidence is relevant to the issue

of a “fraudulent, arbitrary, or capricious” taking. When an appellant cites to no authority, or

only one or two irrelevant or inapposite authorities, and fails to provide any

analysis or argument to support the contentions made on appeal, any error is

waived due to inadequate briefing. See Izen

v. Comm’n for Lawyer Discipline , 322 S.W.3d 308 , 321­–22 (Tex. App.—Houston [1st

Dist.] 2010, pet. filed) (citing Tex.

R. App. P. 38.1(i);

Woodside v. Woodside ,

154 S.W.3d 688, 691 (Tex. App.—El Paso 2004, no pet.) (holding issue waived

when only authorities cited were “a few irrelevant cases and statutes”)); see also Brock v. Sutker , 215 S.W.3d 927, 929 (Tex.

App.—Dallas 2007, no pet.) (holding issue is waived by brief that makes no

attempt to analyze trial court’s purported error within context of cited authority) .

4. Damages

Evidence

The evidence

that Marshall identifies as being erroneously excluded is actually evidence

concerning his inverse condemnation claim, that is, evidence of the impaired

drainage after the construction. For

example, in “Defendant’s Bill Exhibit 27,” Marshall submitted photographs

showing standing water, debris, and other damages from the drainage on his

property. In his brief, Marshall asserts

that these photographs show that the drainage channel “ as built . . . has berms and barriers that prevent drainage and

have turned Marshall’s property as it adjoins the channel, into a mess, with

standing water and debris.” [3] (Emphasis added.) Similarly, Marshall asserts

the trial court erred by striking testimony of his expert witness concerning

the value of the property. The trial

court, in sustaining MUD 358’s objections, instructed the jury to disregard

“the witness’[s] testimony regarding drainage

of the property .” (Emphasis added).

Marshall has

not identified any excluded evidence of damages from the condemnation apart

from evidence concerning drainage after construction. [4] Because we have already held that Marshall

failed to show the trial court abused its discretion concerning the inverse

condemnation claim caused by the construction, we conclude the trial court did

not abuse its discretion in excluding the evidence identified by Marshall.

We overrule

Marshall’s fifth and sixth issues.

Failure to Submit Marshall’s Jury Charge

In his fourth

issue, Marshall contends that the trial court erred by refusing to submit his

proposed charge to the jury.

“The court shall submit such

instructions and definitions as shall be proper to enable the jury to render a

verdict.” Tex. R. Civ. P. 277.

“The court shall submit the questions, instructions and definitions in

the form provided by Rule 277, which are raised by the written pleadings and

the evidence.” Tex. R. Civ. P. 278. “Failure

to submit a question shall not be deemed a ground for reversal of the judgment,

unless its submission, in substantially correct wording, has been requested in

writing and tendered by the party complaining of the judgment . . . .” Id. “Failure to submit a definition or

instruction shall not be deemed a ground for reversal of the judgment unless a

substantially correct definition or instruction has been requested in writing

and tendered by the party complaining of the judgment.” Id. In addition to the requirement that a party

tender questions, definitions, or instructions it wishes to submit to the jury,

the party must secure a ruling from the trial court on his proposed

submissions. See Tex. R. Civ. P. 276

(providing trial court’s endorsement of “refused” or “modified” on proposed

question, definition, or instruction results in conclusive presumption party

presented issue to trial court and preserved issue for appellate review). Although these rules contain technical

requirements for preserving error concerning the charge, the Texas Supreme

Court has explained that the preservations is generally determined by

“whether the party made the trial court aware of the complaint, timely and

plainly, and obtained a ruling.” Ford Motor Co. v. Ledesma , 242 S.W.3d

32, 43 (Tex. 2007) (quoting State Dep’t

of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992)).

Marshall

filed a proposed jury charge with the trial court. Beneath each requested instruction,

definition, or question there was a space for the trial court to endorse “given,”

“refused,” or “modified.” However, the

trial court did not endorse any of the questions. Therefore, error with respect to the charge

was not preserved in accordance with rule 276.

See Tex. R. Civ. P. 276 . During the charge conference, Marshall stated

to the trial court that he agreed to the charge the trial court gave to the

jury, but “reserved the right to make objections to the issues that weren’t

submitted to the jury.” Concerning the

objections, the record shows the following:

THE COURT: Anybody who has anything to say about

the charge, now come forth and do so because this is the charge that I intend

to give to the jury.

My

understanding is that it is agreed to, but it is not exactly agreed to because

there are some things that were omitted that Mr. Marshall’s attorneys would

like admitted.

So

at this time, go ahead and submit what you think should be in the charge and we’ll

look at it.

. . . .

[Marshall’s Counsel]: We had submitted post questions

regarding the taking and in the underlying case, there are certain things that

the jury is entitled to hear. The questions on Page 7 of our submission was

Harris County Municipal Utility District 358’s decision to take the Marshall property

was in bad faith or fraudulent.

We

were not allowed to present evidence to that effect, so I don’t know that there’s

any evidence to present to the jury. So that

question may well be moot

. . . .

THE COURT: I’m not going to submit your proposed

question for all the reasons we talked about. There’s no evidence submitted to the jury on that

issue anyway, and this is going to be the charge of the Court.

As shown by

the record excerpt above, Marshall’s counsel identified a single page from his

proposed jury charge. The submission Marshall brought to the trial

court’s attention asked whether MUD 358’s decision to take Marshall’s property

was “arbitrary and capricious, made in bad faith, or fraudulent.” On this page, Marshall also included proposed

definitions for “arbitrary and capricious,” “bad faith,” and “fraudulent.” The trial court responded stating it

would not submit Marshall’s “proposed question.” Neither Marshall nor the trial court made any

reference to other questions or proposed definitions or instructions. There is nothing in the record to show that

the Marshall called any other questions, definitions, or instructions to the

trial court’s attention or that the trial court ruled upon any other proposed

questions, definitions, or instructions.

Therefore, with the exception of the single question specifically

brought to the trial court’s attention, any error in failing to submit

Marshall’s proposed questions, definitions, or instructions is not preserved

for our review. See Ford Motor Co. , 242

S.W.3d at 43 .

With respect to the questions and

definitions Marshall did bring to the trial court’s attention, Marshall

generally asserts that the trial court erred by refusing to submit them. Here, it is undisputed that the trial court did not

allow any evidence concerning fraud, arbitrariness, and capriciousness, which Marshall

raised as a separate complaint on appeal.

See Tex. R. Civ. P. 278.

Furthermore, Marshall does not assert or cite any authority to show that

his requested question and definitions were “substantially correct.” See id. Therefore, we hold that Marshall has not

shown that the trial court abused its discretion in refusing his requested

question and definitions concerning a fraudulent, arbitrary, or capricious

determination of public necessity.

We overrule Marshall’s fourth issue.

Conclusion

We

affirm the judgment of the trial court.

Sam

Nuchia

Justice

Panel consists of Chief Justice Radack,

Justice Massengale, and Justice Nuchia. [5]

[1] In his brief, Marshall asserts that

MUD 358 never received Water Commission approval to act as a statutory regional

district under chapter 59 of the Water Code.

However, “Regional District” is also the term used in the interlocal

contract entered into by MUD 358 and the other MUDs servicing Fairfield. The trial court’s findings of fact and

conclusions of law only mention the interlocal contract, not chapter 59 of the

Water Code. Furthermore, in its

appellee’s brief, MUD 358 does not purport to have authority as a “regional

district” under chapter 59. We therefore

address only the authority under the Interlocal Cooperation Contracts Act.

[2] At oral argument, Marshall raised the

issue of whether MUD 358 could exercise the power of eminent domain on behalf

of MUD 396 or MUD 397. However, as noted

above, Marshall did not challenge the trial court’s findings of fact or

conclusions of law pertaining to MUD 358’s authority under the Act. Furthermore, in Marshall’s, argument quoted

above, he asserts that MUD 358 impermissibly delegated its power of eminent

domain to the developer, not that MUD 396 and MUD 397 delegated their power of

eminent domain to MUD 358. Because it

was not raised in Marshall’s brief, we decline to address this argument. See

Walling v. Metcalfe , 863 S.W.2d 56,

58 (Tex. 1993) (“We have held repeatedly that the courts of appeals may not

reverse the judgment of a trial court for a reason not raised in a point of

error.”).

[3] Marshall also asserts “[Witnesses]

were precluded by the Judge, from giving the jury testimony on the damages resulting from the construction .”

(Emphasis added.)

[4] In addition to the evidence mentioned

above, Marshall contends the trial court erred in striking some of his

testimony. The testimony that Marshall

identifies was his statement that there was no agreement between MUD 358 and

himself allowing him to drain into the channel.

Marshall also identifies testimony from his engineer, Atkinson, that was

struck by the trial court. However, this

testimony concerned drainage after construction.

[5]

The

Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District

of Texas, sitting by assignment.