Bass v. City of Dallas

• Decision Date: 31 August 2000
• Citation: 34 S.W.3d 1
• Parties: (Tex.App.-Amarillo 2000) ELIAS EDWARD BASS, JR. AND BASS AUTOMOTIVE, INC. D/B/A SAFETY BRAKE SERVICE, APPELLANTS v. CITY OF DALLAS, TEXAS, AND ED BELL CONSTRUCTION COMPANY, APPELLEES NO. 07-99-0230-CV
• Court: Texas Court of Appeals

Page 1

34 S.W.3d 1 (Tex.App.-Amarillo 2000)

ELIAS EDWARD BASS, JR. AND BASS AUTOMOTIVE, INC. D/B/A SAFETY BRAKE SERVICE, APPELLANTS v. CITY OF DALLAS, TEXAS, AND ED BELL CONSTRUCTION COMPANY, APPELLEES

NO. 07-99-0230-CV

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D

AUGUST 31, 2000

FROM THE 193RD DISTRICT COURT OF DALLAS COUNTY; NO. 96-11493-L; HONORABLE DAVID EVANS, JUDGE

[Copyrighted Material Omitted]

Before BOYD, C.J., and QUINN and REAVIS, JJ.

BOYD, Chief Justice.

Appellants ("Bass") brought suit on a variety of legal theories, all of which arise out of the reconstruction of the street near Bass' place of business. In the trial court, Bass alleged causes of action for inverse condemnation, negligence, breach of contract, trespass, and violations of their civil rights against the City of Dallas ("City"), as well as causes of action for negligence, breach of contract, and trespass against Ed Bell Construction Company ("Bell"). Bass chose to reserve the civil rights cause of action, in accordance with Guetersloh v. State, 930 S.W.2d 284, 289 (Tex.App.--Austin 1996, writ denied), cert. denied, 522 U.S. 1110, 118 S.Ct. 1040, 140 L.Ed.2d 106 (1998). The City moved for partial summary judgment, and the trial court granted its motion as to the claims for inverse condemnation and breach of contract. Bell moved for partial summary judgment, and the trial court granted its motion as to the claims for breach of contract and negligence. All remaining claims were dismissed. The trial court then entered a final judgment in favor of the City and Bell and Bass appealed, raising three points of error that the trial court erred in holding that: 1) Bass' access rights had not been materially and substantially impaired; 2) Bass was not a third party beneficiary to the contract between the City and Bell, and therefore could not enforce the contract; and 3) Bell was not negligent. For reasons we later recount, we affirm the judgment of the trial court.

Standard of Review

For a party to prevail on a motion for summary judgment, the movant must conclusively establish the absence of any genuine question of material fact and that he or she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). When the defendant is the movant for summary judgment, he or she must conclusively negate at least one of the essential elements of the plaintiff's cause of action to succeed on a motion for summary judgment. Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. See Randall's Food Markets Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

The standards for reviewing a motion for summary judgment are well established and are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Howard v. INA County Mut. Ins. Co., 933 S.W.2d 212, 216 (Tex.App.--Dallas 1996, writ denied).

Background

As a result of the aforementioned standard of review, the facts before this court favoring Bass will be taken as true, and every reasonable inference indulged in its favor. In April of 1995, the City and Bell entered into a public improvement contract for paving, drainage, and improvements to Beckley Avenue from Eighth Street to Zang Boulevard. To accomplish this, Beckley Avenue was barricaded from Zang Boulevard to Ninth Street; the area from Eighth Street to Ninth Street was used as a staging and storage area for the construction project. Bass' business, Safety Brake Service, is on the corner of Beckley Avenue and Melba Street, which is approximately halfway between Eighth Street and Ninth Street. Safety Brake's main entrance was from Beckley Avenue, though access could be attained from Melba Street. Between Eighth Street and Ninth Street, all northbound traffic was barricaded, and the southbound lane was made into a one-lane one-way street. The result of this configuration was to require those that desired access to Bass' shop to turn south on Beckley Avenue from Eighth Street or take Zang Boulevard to Melba Street. The former alternative was blocked, either by closing the intersection of Eighth Street and Beckley Avenue or by construction material and debris, approximately 25% to 50% of the time; however, the second alternative was never blocked or closed off. Access to the shop from Melba Street, though difficult, was not impossible, and required a person to negotiate around a cement island in the middle of the parking lot, while avoiding the cars parked there.¹

These facts gave rise to Bass' suit. As we have noted, the City was granted partial summary judgment as to the claims for inverse condemnation and breach of contract, and Bell was granted partial summary judgment as to the claims for breach of contract and negligence. All other claims were then dismissed.² As a result, the only issue before this court is whether the trial court improperly granted summary judgment on the claims of inverse condemnation, breach of contract, and negligence for the respective defendants.

Inverse Condemnation

In the first point of error, Bass alleges the trial court erred in granting the summary judgment motion of the City as to the inverse condemnation issue.

Article 1, section 17 of the Texas Constitution provides, in pertinent part:

No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made. . . .

In an inverse condemnation action, the complainant's property must be taken or damaged, within the meaning of the Texas Constitution. See City of Dallas v. Ludwick, 620 S.W.2d 630, 632 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.). To recover on an inverse condemnation claim, a property owner must establish that (1) the State or other governmental entity intentionally performed certain acts (2) that resulted in the taking, damaging, or destruction of the owner's property (3) for public use. See Steele v. City of Houston, 603 S.W.2d 786, 788-91 (Tex. 1980); City of Houston v. Crabb, 905 S.W.2d 669, 673 (Tex.App.--Houston [14th Dist.] 1995, no writ). In the present case, neither element one or three is at issue. The crux of the appeal is whether or not Bass' property has been damaged under the Texas Constitution.

Whether property has been "damaged" under the constitution is a question of law. See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). To be damaged under the Texas Constitution, access rights must have been materially and substantially impaired. See Heal, 917 S.W.2d at 9; City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex. 1969). Whether access rights have been materially and substantially impaired is also a question of law. See State v. Schmidt, 867 S.W.2d 769, 777 (Tex. 1993), cert. denied, 512 U.S. 1236, 114 S.Ct. 2741, 129 L.Ed.2d 861 (1994) and 513 U.S. 812, 115 S.Ct. 64, 130 L.Ed.2d 21 (1994). As a general rule, mere impairment of access caused by construction activity is not compensable. See id. at 774. The underlying principle for this general rule is:

The inconvenience and damage which a property owner suffers from these temporary obstructions are incident to city life and must be endured. The law gives him no right to relief, recognizing that he recoups his damage in the benefit which he shares with the general public in the ultimate improvement which is being made. . . .

City of Austin v. Avenue Corp., 704 S.W.2d 11, 12 (Tex. 1986) (quoting L.M.S., Inc. v. Blackwell, 149 Tex. 348, 233 S.W.2d 286, 289 (1950), quoting in turn Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498 (1930)).

However, there are limited circumstances in which the general rule is not applicable. It has been held that ". . . in order to show a material and substantial interference with access to one's property, it is necessary to show that there has been: 1) a total but temporary restriction of access; or 2) a partial but permanent restriction of access; or 3) a temporary limited restriction of access brought about by an illegal activity or one that is negligently performed or unduly delayed." See Schmidt, 867 S.W.2d at 775; Avenue Corp., 704 S.W.2d at 13.

Bass alleged that its property was damaged by: 1) a total but temporary restriction of access; 2) a temporary limited restriction of access brought about by an illegal activity; and 3) a temporary limited restriction of access brought about by undue delay. However, Bass fails to acknowledge that the threshold inquiry is whether or not there has been a material and substantial impairment. See Heal, 917 S.W.2d at 9. Schmidt and Avenue Corp. hold that to have a material and substantial interference, it is necessary to show one of three elements. However, we do not read this to mean that showing one of those elements, in and of itself, establishes that a material and substantial interference has occurred. See also City of San Antonio v. Guidry, 801 S.W.2d 142, 148 (Tex.App.--San Antonio 1990, no writ) ("Such restrictions do not rise to the level of compensable takings unless they are material and substantial . . . . In the passage . . quoted earlier . . ., the court did not say that undue delay by itself suffices to establish a material and substantial interference").

The City contends that their actions did not cause a material and substantial interference with Bass' property rights; rather, the City contends that their actions merely resulted in a diversion of traffic. "It is well settled that damages to a condemnee's business which result merely from traffic being required to...