By Matt Smith/msmith@trcle.com

A court case involving the city of Keene and whether a resident has to pay for water service may go before the Texas Supreme Court, said Cleburne attorney Scott Cain.

The case involves the city and Bret “Doc” Berkman, owner of Doc’s City RV Park.

Cain represents Berkman.

The controversy involves a 1986 agreement between Keene and the previous owners of Berkman’s property, Laszlo and Amine Varga.

The Vargas operated Odyssey Harbor, a home for children, on the property at the time of the agreement, Cain said.

Keene entered an agreement to buy a portion of Varga’s land to be used to drill city water wells.

In consideration for the land, the city agreed to provide water and sewer service free of charge for a period of time, Cain said.

That period was to be 30 years, so long as the land was used as a home for children, or 20 years should the land be used for another purpose, Cain said.

Keene later began charging Berkman for water several years before they should have, Berkman claimed in his lawsuit filed in 2007.

That same year, Berkman and Keene reached an agreement that Keene would continue paying for water on his property until settlement of the dispute.

Berkman doesn’t dispute that the 20-year agreement term has passed, Cain said.

He is not seeking future free water service but wants reimbursement for the months he was charged.

Keene argued that the original agreement was personal to the Varga family, Cain said.

Cain argues that Berkman, as a successor to the property, retains rights to the agreement.

The controversy has wound a long road through the court system.

When it was originally filed in the 249th District Court in Cleburne, Keene filed a motion of summary judgment, which Judge Wayne Bridewell granted.

On appeal, the 10th Circuit Court of Appeals, by a 2-1 verdict, reversed the summary judgment ruling and sent the matter back to the 249th for trial.

Keene appealed the circuit court’s decision. That court recently dismissed the matter for want of jurisdiction, Cain said.

Cain is now preparing an appeal he plans to file with the Texas Supreme Court in early December.

“There’s a split of opinion in appeals courts across Texas on whether the government’s sovereign immunity is waived in cases like this,” Cain said. “It’s also an issue of just fundamental fairness. A governmental entity, city, shouldn’t be able to enter an agreement to buy land over time, then not pay. Not paying what they bargained for is tantamount to a taking. They shouldn’t be allowed to hide behind government immunity as a means of taking without paying.”

The issue, Cain said, should be broadly, not narrowly, construed.

The circuit court’s dismissal of the case tightens the noose on matters of property rights and contracts between individuals and governmental entities, Cain said.

The ramifications of the questions reach far beyond Keene, Cain said, illustrated by the fact that the city of Houston filed an amicus curiae brief in Keene’s appeal to the circuit court.

Amicus curiae refers to someone not a party to the lawsuit who petitions the court because they have a strong interest in the subject matter.

Cain said he would not be surprised to see Houston, and possibly other Texas cities, file similar briefs once he files with the Texas Supreme Court.

The Texas Supreme Court declines to accept most cases appealed to it, Cain said.

“They tend to take cases in which the justices think the issue is significant enough to affect all of Texas, or in issues where the lower courts need guidance on settling the matter,” Cain said. “That there’s a split of decisions among the appellate courts works in our favor.”

There would be no further legal appeal if the Texas Supreme Court declines to hear the case, Cain said.

“They’re the court of last appeal,” Cain said. “If they say no, the only thing left to do would be to push the Legislature to clarify the law on the matter.”