CITY OF DALLAS, Appellant v. JOHN BARGMAN, AS TRUSTEE OF THE ANN T. BOVIS PROPERTY TRUST, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-04-00316-CV

Case Date: 11/28/2006

Plaintiff: CITY OF DALLAS, Appellant

Defendant: JOHN BARGMAN, AS TRUSTEE OF THE ANN T. BOVIS PROPERTY TRUST, Appellee

Preview:CITY OF DALLAS, Appellant v. JOHN BARGMAN, AS TRUSTEE OF THE ANN T. BOVIS PROPERTY TRUST, Appellee
AFFIRM and Opinion Filed November 28, 2006

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-04-00316-CV ............................ CITY OF DALLAS, Appellant V. JOHN BARGMAN, AS TRUSTEE OF THE ANN T. BOVIS PROPERTY TRUST, Appellee ............................................................. On Appeal from the 298th District Court Dallas County, Texas Trial Court Cause No. 01-09840-M ............................................................. OPINION ON REHEARING Before Justices FitzGerald, Lang, and Lang-Miers Opinion By Justice FitzGerald This Court's opinion of October 5, 2004 is withdrawn; the following is now the opinion of this Court. City of Dallas brings this interlocutory appeal of the trial court's denial of the City's plea to the jurisdiction. The City asserts that it is immune from the lawsuit brought by John Bargman as trustee of the Ann T. Bovis Property Trust (the Trust) and that the Trust lacks standing to bring the claim against the City. We conclude the Trust has standing and that the City made a limited waiver of its immunity from suit by filing counterclaims against the Trust. Accordingly, we conclude the trial court did not err by denying the City's plea to the jurisdiction, and we affirm the trial court's order. BACKGROUND In 1959, Ann Bovis granted the City an easement for street purposes on a portion of a parcel of her real estate. In 1969, Bovis signed a 99-year lease with The Lincoln Company (Lincoln) giving Lincoln use of some or all of the parcel. Whether the lease included, and was intended to include, the property subject to the City's easement is a disputed issue in the litigation. The lease contained a purchase option. Bovis died in 1993, and in 1998, her interest in the property subject to the lease was transferred to the Ann T. Bovis Property Trust (the Trust). In 1999, Lincoln exercised the purchase option and purchased the property subject to the lease. That same day, Bovis's estate purported to transfer to the Trust the property subject to the City's easement. In 2001, the Trust sued Lincoln and the City asserting that the City had abandoned the street easement and that the City and Lincoln were trespassing on the Trust's property by installing sewers, water lines, and other utilities. The City filed counterclaims against the Trust, including a suit to quiet title and a claim of breach of the warranty in the deed granting the City the easement. Part of the City's prayer for relief included "judgment awarding the City its actual damages arising from Plaintiff's casting a cloud on the City's title to and use and enjoyment of the Easement and/or breaching its warranty to defend the City's title to the easement . . . ." The City filed a plea to the jurisdiction asserting two grounds. First, the City asserted that the Trust lacked standing to bring the suit because the land subject to the easement was included in the lease, and the Trust had sold
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that property to Lincoln in 1999. Second, the City asserted that governmental immunity barred the Trust's claims. The parties moved for summary judgment on the issue of whether the Trust's lease and deed to Lincoln conveyed the property subject to the easement. In June 2002, the trial court granted Lincoln's motion for partial summary judgment, which had asserted that the lease and deed conveyed the property subject to the City's easement. The Trust then amended its pleading to include a claim to reform the deed to Lincoln to exclude the property subject to the easement, alleging that any inclusion of the property subject to the easement was the result of mutual mistake. The trial court granted the City's plea to the jurisdiction on the Trust's cause of action for trespass, but the court denied the plea on the Trust's cause of action for abandonment of the easement. The City then filed this interlocutory appeal. See Footnote 1 Tex. Civ. Prac. & Rem. Code Ann.

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