Malcomson Road Utility Dist. v. Newsom
| Decision Date | 20 May 2005 |
| Docket Number | No. 01-00-01169-CV.,No. 01-00-01163-CV.,01-00-01163-CV.,01-00-01169-CV. |
| Citation | 171 S.W.3d 257 |
| Parties | MALCOMSON ROAD UTILITY DISTRICT, Appellant, v. Frank George NEWSOM, Appellee. |
| Court | Texas Supreme Court |
C. Charles Dippel, Andrews & Kurth L.L.P., Houston, for appellant.
Michael M. Barron, Stephen I. Adler, Barron, Adler & Anderson, L.L.P., Kent A. Sick, Austin, for appellee.
Panel consists of Justices TAFT, KEYES, and HIGLEY.
Appellant, Malcomson Road Utility District ("the District"), has moved for rehearing. So has appellee, Frank George Newsom. We grant the District's rehearing motion, deny Newsom's, withdraw our opinion of June 5, 2003, and substitute this opinion in its stead.
The District appeals from two final judgments that denied its motions for partial summary judgment; granted Newsom's motions for summary judgment; denied the District the right to condemn Newsom's property; awarded Newsom attorney's fees and possession of and improvements on the property that the District had sought to condemn; and dismissed the causes for want of jurisdiction. We determine if fact issues exist precluding summary judgment for either party on the following matters: (1) whether the property was sought for public uses; (2) whether the District's determinations of public necessity were arbitrary and capricious or were made in bad faith; (3) whether the District and Newsom were unable to agree on damages before filing suit; (4) whether the takings violated due process or equal protection; (5) whether the District improperly "delegated" its eminent domain powers to private developers competing with Newsom; and (6) whether Newsom may raise, for the first time on rehearing, a new challenge to the condemnation. We reverse the judgments and remand the causes.
Newsom owned a northern and a southern tract of undeveloped land outside the District's boundaries. A drainage ditch lay along the eastern boundary of Newsom's northern tract. David Garrett, the vice-president of a corporate landowner that wished to develop its nearby tract into a residential subdivision, tried to purchase 2.6178 acres along the eastern edge of Newsom's northern tract to expand the drainage ditch, which Harris County Flood Control District ("HCFCD") required for development of Garrett's subdivision, called Lakewood Grove. Similarly, John Santasiero, the owner of nearby property that included a residential subdivision, tried to purchase 2.58 acres at the southern end of Newsom's southern tract to build a retention pond that HCFCD required for development of Santasiero's subdivision, called Villagio. Newsom rejected the offers.
After Newsom rejected their offers, the developers asked the District to condemn the portions of Newsom's land that they had tried to purchase. The District's board eventually determined that the taking of Newsom's land in the requested amounts for the retention pond and ditch expansion was a public necessity that would serve the public purpose of drainage. The District made an offer to Newsom for each piece of land. Newsom rejected outright the placement of a pond on his property. He also rejected the amount offered for the land for the ditch expansion and counter-offered with a higher price.
Upon Newsom's rejections and counter-offer, the District filed separate condemnation proceedings in county court for each piece of property. See TEX. PROP.CODE ANN. §§ 21.012, 21.013 (Vernon 2004). We designate these suits the "pond case" (trial court cause number 691,631; appellate cause number 01-00-01163-CV) and the "ditch case" (trial court cause number 691,632; appellate cause number 01-00-01169-CV), denoting the purpose for which the District sought to condemn the land. In each case, the trial court appointed special commissioners, who, after a hearing, awarded damages of $49,021 in the pond case and of $49,739 in the ditch case. See TEX. PROP.CODE ANN. §§ 21.014, 21.015 (Vernon 2004). The District deposited the determined amounts into the court's registry, took possession of those portions of Newsom's land, and began improvements on the property. See TEX. PROP.CODE ANN. § 21.021(a)(2) (Vernon 2004).
Newsom timely filed original and amended objections to the commissioners' awards. See TEX. PROP.CODE ANN. § 21.018(a) (Vernon 2004). He simultaneously filed original and amended pleas to the jurisdiction, arguing that the District had not made good-faith offers of damages before filing suit, that his property was being taken for private uses and without public necessity, that the takings were arbitrary and capricious and fraudulent, and that the District improperly "delegated" its eminent-domain powers to the nearby competing developers.
By original and supplemental motions for partial summary judgment, the District argued that (1) under rule 166a(c), it had satisfied all conditions entitling it to condemnation, leaving only the land's value for determination, and that (2) under rule 166a(i), Newsom could produce no evidence supporting his defenses that the District's determinations of public necessity for the condemnations were arbitrary and capricious or unreasonable. See TEX.R. CIV. P. 166a(c), (i). By his own motions for summary judgment under rule 166a(c), Newsom argued in both cases that (1) the District's determinations of public use and necessity were arbitrary and capricious, resulted from fraud or bad faith, or were abuses of discretion; (2) the District did not show that the parties were unable to agree on damages before the District filed suit because the District did not make good-faith offers of damages; (3) the District improperly delegated its eminent-domain powers to the competing developers; and (4) the takings violated equal protection and due process.
Without specifying its reasoning, the trial court denied the District's motions for partial summary judgment, granted Newsom's motions for summary judgment, and dismissed the causes for want of jurisdiction. The District appealed. During the trial court's plenary power, Newsom moved to recover statutory attorney's fees, damages arising from the District's temporary taking of Newsom's property, and possession of the property that the District had temporarily taken. See TEX. PROP.CODE ANN. § 21.019 (Vernon 2004), §§ 21.044(a), 21.062 (Vernon 2000). While appeal was pending, we granted the parties' joint motion to abate the appeal and to remand the cause for the trial court to dispose of Newsom's pending motions. On remand, the trial court entered final judgments in each cause, reaffirming its summary judgment rulings, dismissing the District's condemnation suits for want of jurisdiction, awarding Newsom his attorney's fees from trial and contingent attorney's fees for appeal, awarding Newsom damages for the District's temporary taking of his property, and returning to him possession of the disputed property, including awarding him the improvements made by the District to that property during the District's temporary possession.
Because the parties moved for rule-166a(c) and rule-166a(i) summary judgment, we apply the well-established standards of review applicable to summary judgments. Summary judgment under rule 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. Id.
A party may move for a "no-evidence" summary judgment under rule 166a(i) "if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment is, therefore, like a directed verdict. See id. "The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements." Id. In reviewing either type of summary judgment, we indulge every reasonable inference in favor of the non-movant, resolve any doubts in its favor, and take as true all evidence favorable to it. Johnson, 891 S.W.2d at 644; Flameout Design, 994 S.W.2d at 834.
When both sides move for summary judgment and the trial court grants one motion and denies the other, we can consider both motions, their evidence, and their issues and may render the judgment that the trial court should have rendered. See CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998). When an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm to the extent that any of the summary judgment grounds is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).
On rehearing, Newsom urges us to apply a different standard of review from the one applicable to summary judgments. Specifically, Newsom relies on the standard of review adopted in Hubenak v. San Jacinto Gas Transmission Co., which this Court issued shortly before the District filed a supplemental brief on original submission. See 65 S.W.3d 791, 798 (Tex.App.-Houston [1st Dist.] 2001) ("Hubenak II"), aff'd, 141 S.W.3d 172 (Tex.2004) ("Hubenak III").
In Hubenak II, the landowners appealed from an adverse condemnation judgment, arguing that the trial court lacked subject-matter jurisdiction because the condemnor had failed to show that it was unable to agree with the landowners on damages, which, they argued, was a jurisdictional...
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...opposing summary judgment asserted on appeal were not raised before trial court); see also Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 279 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (declining to reach challenge that was not raised in appellant's opening brief). In this case,......
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