Harris County v. Clear Channel Outdoor, Inc., No. 14-07-00226-CV (Tex. App. 4/29/2008)

• Decision Date: 29 April 2008
• Docket Number: No. 14-07-00226-CV.,14-07-00226-CV.
• Citation: Harris County v. Clear Channel Outdoor, Inc., No. 14-07-00226-CV (Tex. App. 4/29/2008), No. 14-07-00226-CV. (Tex. App. Apr 29, 2008)
• Parties: HARRIS COUNTY, TEXAS, Appellant, v. CLEAR CHANNEL OUTDOOR, INC., Appellee.
• Court: Texas Court of Appeals

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HARRIS COUNTY, TEXAS, Appellant, v. CLEAR CHANNEL OUTDOOR, INC., Appellee.

No. 14-07-00226-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Substitute Memorandum Opinion filed April 29, 2008.

Opinion of April 22, 2008.

On Appeal from the County Court at Law No. 2, Harris County, Texas, Trial Court Cause No. 824011.

Affirmed.

Panel consists of Justices ANDERSON, BOYCE and SENIOR CHIEF Justice MURPHY.^*

SUBSTITUTE MEMORANDUM OPINION

JOHN S. ANDERSON, Justice.

Appellant, Harris County, Texas, appeals a final judgment rendered in favor of appellee, Clear Channel Outdoor, Inc. We affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This is a condemnation case initiated by appellant to take property for a road project at FM 1960 at Kuykendahl Road. The road project was a joint project between the Texas Department of Transportation (TxDOT) and appellant. The federal government partially funded the project. Under the agreement between appellant and TxDOT, appellant was responsible for the acquisition of the right of way for the project. Because the federal government was providing funding for the project, appellant was required to comply not only with TxDOT policies, but also with all federal laws in handling those acquisitions.

Located within a portion of the property sought by appellant was a billboard owned by appellee. While the sign was considerably older, appellee had executed a twenty-year lease with the property owners in 2003. Prior to December 2004, both TxDOT policy and federal law considered billboards removed for transportation projects to be real property and required that the billboard owner be compensated for the loss of the sign or the cost of relocating the sign. However, in late 2004, for reasons not disclosed in the record, TxDOT initiated changes in the regulations addressing how billboards affected by transportation projects should be handled. These changes, which took effect in December 2004, dictated that billboards affected by transportation projects would no longer be treated as real property and the sign owners would no longer be offered compensation for the loss of the sign.

The road project, as well as appellee's billboard, were located within the City of Houston. City of Houston ordinances generally prohibit the construction of new off-premise billboards such as the one owned by appellee. However, the City of Houston created an exception for billboards affected by transportation projects. Under this exception, the City of Houston allows a billboard affected by a transportation project to be relocated to a new location within the City of Houston for a maximum period of ten years. In addition to the time limit, the new location must comply with other restrictions such as the billboard cannot be within 1,500 feet of another billboard or within a designated scenic or historic district.

Although appellant notified appellee it had to remove the sign for the road project, appellant took the position, in line with TxDOT's billboard policy, it did not have to pay appellee compensation for the sign structure, only for the loss of the leasehold itself. The Special Commissioners awarded appellee a total sum of $60,000.00 for appellee's property interests affected by the project. Appellee filed objections to the Special Commissioners' award and filed an inverse condemnation counterclaim to seek compensation for the loss of the billboard as well as the leasehold estate.

Appellee eventually filed a motion for partial summary judgment in which it argued appellant's action in forcing appellee to remove its billboard was a taking under both the federal and Texas constitutions for which the payment of just and adequate compensation is required. In response, appellant argued appellee's billboard was personal property and, under Texas law, personal property was not compensable. The trial court agreed with appellee and granted appellee's motion for partial summary judgment.

Having determined appellant's action was a taking and appellee was therefore entitled to compensation for the loss of the billboard, the issue on the amount of compensation owed to appellee was tried to the court. The stipulations included the prerequisites of the right to take, the procedural posture of the case, the parties' opinions of value, and the authenticity of their respective appraisal reports. Because appellant instructed its appraiser to exclude the value of the billboard structure from his valuation, the only evidence of value for the billboard structure was the valuation prepared by appellee's appraiser. Appellee's appraiser determined the value of the billboard structure was $305,500.00 and placed the bonus value of the lease at $20,000.00. Appellant's appraiser determined the bonus value of the lease was $17,662.00. The trial court entered a final judgment that awarded appellee's property interests, including the billboard, to appellant and $324,331.00 compensation to appellee. Appellee's compensation included $305,500.00 for the billboard and $18,831.00 for the lease bonus value. No findings of fact and conclusions of law were requested or entered. This appeal followed the denial of appellant's Motion to Modify the Judgment and Alternatively, Motion for New Trial.

DISCUSSION

I. The Standard Of Review

On appeal, appellant does not challenge the amount of compensation the trial court awarded appellee for either the loss of the lease or the actual billboard. Instead, appellant, arguing the billboard was non-compensable personal property, contends the trial court erred when it initially determined the forced removal of appellee's billboard was a taking which entitled appellee to just and fair compensation. This issue was resolved when the trial court granted appellee's motion for partial summary judgment. A partial summary judgment becomes appealable after a final judgment is rendered disposing of all issues in a case. Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex. 1998). The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the non-movant's favor. Id. at 548-49. We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, the summary judgment will be affirmed on appeal if any theory advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

II. Waiver

In a single issue on appeal, appellant contends the "trial court erred when it awarded [appellee] non-compensable property damages in addition to the properly awarded damages for the leasehold interest in the real property acquired in this condemnation case." However, within that single issue, appellant makes five independent arguments as to why the trial court erred: (1) state and federal law do not entitle appellee to compensation beyond its leasehold interest and relocation costs; (2) appellee's billboard was not affixed to the real property such that it became a part of the real property and thus was not compensable beyond the value of the leasehold; (3) the billboard was appellee's personal property as determined by appellee's intent and appellant is not required to pay compensation for personal property; (4) appellee's billboard was a trade fixture and, therefore, was not compensable; and (5) there was no inverse condemnation as appellant sought only to condemn appellee's leasehold interest and not appellee's billboard. In response, appellee asserts appellant, with the exception of the third argument above, has waived the remaining arguments as appellant did not include these contentions in its summary judgment response. We agree.

In the context of a summary judgment, a non-movant is required to expressly present to the trial court, by written answer or response, any issues defeating the movant's entitlement to summary judgment. Tello v. Bank One, 218 S.W.3d 109, 118 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (citing Tex. R. Civ. P. 166a(c)). To "expressly" present issues as required by Rule 166a(c), the written answer or response to the motion for summary judgment must fairly apprise the movant and the trial court of the issues the non-movant contends should defeat the motion for summary judgment. Id. at 119. In determining what issues were expressly presented to the trial court, a reviewing court may not rely on the appellate briefs or the summary judgment evidence. Dubose v. Worker's Med., P.A., 117 S.W.3d 916, 920 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Any issues not expressly presented to the trial court in a written response shall not be considered as grounds for reversal. Id. Thus, the failure to present issues to defeat summary judgment in the trial court waives those issues on appeal. Here, appellant presented a single argument in its summary judgment response: (1) compensation is not required for personal property, and (2) application of the Logan test indicates appellee intended the billboard to remain personal property.¹ Appellant did not raise any of the remaining arguments in its response to appellee's motion for partial summary judgment. Therefore, appellant has waived those arguments on appeal.

III. The United States Constitution Requires Appellant To Compensate Appellee For The Taking Of Appellee's Billboard For Public Use

In its motion for partial summary judgment, appellee argued it was entitled to compensation for the loss of the billboard under both the Fifth Amendment to the United States Constitution and Article...