Whittington v. City of Austin

• Court: Texas Supreme Court
• Writing for the Court: Bob Pemberton
• Citation: Whittington v. City of Austin, 174 S.W.3d 889 (Tex. 2005)
• Decision Date: 30 September 2005
• Docket Number: No. 03-03-00496-CV.,03-03-00496-CV.
• Parties: Harry M. WHITTINGTON; Mercedes B. Whittington; Mercedes Gregg f/k/a Mercedes Whittington, individually and as trustee of the Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust; Sally Whittington May, individually and as trustee of the Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust; and Margaret Whittington Puckett, individually and as trustee of the Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust, Appellants, v. CITY OF AUSTIN, Appellee.

174 S.W.3d 889

Harry M. WHITTINGTON; Mercedes B. Whittington; Mercedes Gregg f/k/a Mercedes Whittington, individually and as trustee of the Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust; Sally Whittington May, individually and as trustee of the Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust; and Margaret Whittington Puckett, individually and as trustee of the Margaret Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth Puckett 1989 Trust, the Michael Erskine May 1989 Trust, the Camille Meriwether May 1989 Trust, and the William Tyndale Puckett, Jr. 1989 Trust, Appellants, v. CITY OF AUSTIN, Appellee.

No. 03-03-00496-CV.

Court of Appeals of Texas, Austin.

September 30, 2005.

Appeal from the County Court at Law No. 1, Travis County, J. David Phillips, J.

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John J. McKetta III, Robert J. Hearson, Jr., William Christian, Graves, Dougherty, Hearon & Moody, PC, Austin, for Appellants.

Kenneth A. Wright, Richard G. Rogers, Rogers & Wright, P.C. Dallas, Chester E. Beaver, Assistant City Attorney, Austin, for Appellee.

Before Justices KIDD, B.A. SMITH and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

Our opinion and judgment issued on June 8, 2005, are withdrawn, and the following opinion is substituted.

This is an appeal in a condemnation case. The trial court¹ granted partial summary judgment that the City of Austin (the "City") had authority to condemn eight lots in downtown Austin owned by appellants, Harry M. Whittington and members of his family (the "Whittingtons"). The issue of compensation was then tried to a jury, which awarded the Whittingtons $7.75 million for their property. The Whittingtons appeal the trial court's partial summary judgment ruling, incorporated in the final judgment, and the trial court's determination of the prejudgment interest accrual date. Concluding that the City failed to meet its summary judgment burden regarding its authority to condemn the Whittingtons' property, we reverse and remand. However, we overrule the Whittingtons' prejudgment interest issue to provide guidance in the event it arises again on remand.

BACKGROUND

The Whittingtons own a city block in downtown Austin near the Austin Convention Center and across Red River street from the new Hilton hotel. On August 9, 2001, the Austin City Council passed a resolution that the Whittingtons' property, "Lots 1-8, inclusive, Block 38 of the Original City of Austin, in the City of Austin, Travis County, Texas should be acquired for a public use" and authorizing the city attorney to file a condemnation suit "and take other appropriate action to acquire the property." While professing that the property should be acquired for a public use, the resolution was silent regarding what public use the city council intended to effectuate by condemning the Whittingtons' property.²

On October 29, 2001, the City filed an original petition against the Whittingtons to condemn the property identified in its resolution. See Tex. Prop.Code Ann. § 21.012(b) (West 2004). In the petition, the City's attorneys assert that the City's proposed "public use" for the property is a parking garage and an Austin Energy chilling plant. The trial court appointed special commissioners, who held a hearing and awarded the Whittingtons $7,650,000. The City deposited the amount of this award into the registry of the trial court, which entitled the City to take possession of the property pending the results of further litigation. Id. § 21.021. Both parties filed objections to the amount of the special commissioners' damages award. Additionally, the Whittingtons contended that the City's intended use of the property was not a permissible "public use."

The City filed a motion for partial summary judgment asserting that there was no genuine issue of material fact regarding its right to condemn the property. See Tex.R. Civ. P. 166(a). The trial court granted the motion. The case proceeded to trial on the issue of compensation and the jury awarded the Whittingtons $7.75 million. The trial court rendered a final judgment incorporating its partial summary judgment and the jury verdict on damages. The judgment further ascertained that the accrual date for prejudgment interest was January 24, 2002, the date the City had deposited the amount of the special commissioners' award. This appeal ensued.

DISCUSSION

The Whittingtons present two issues on appeal. First, they contend that the trial court erred in granting partial summary judgment that the City had authority to condemn their property. Specifically, the Whittingtons argue that the City did not meet its summary judgment burden to establish either the necessity for the condemnation or that the condemnation was for a valid public purpose. In the alternative, the Whittingtons assert that their summary judgment evidence raised genuine issues of material fact regarding whether the condemnation was necessary, whether it furthered private rather than public purposes, and whether the City's decision to condemn the property was fraudulent, arbitrary and capricious, and in bad faith. To raise a fact issue, the Whittingtons rely on the corporate representative deposition testimony of Robert Hodge, who admitted that: (1) the City could have met all of its projected convention center parking needs for a fraction of the cost merely by non-renewing contract parking leases in the City's existing parking garage at Second and Brazos; (2) at the time the Austin City Council approved exclusive negotiations with Hilton to develop the convention center hotel project, the City had been assured that the project would include dedicated convention center parking sufficient to meet the projected needs; and (3) the City began to target the Whittingtons' property only after convention center parking in the hotel project fell through, and did not conceive the idea to place a chilling plant on the property until still later.

In their second issue, the Whittingtons contend that if we uphold the summary judgment, we should modify the final judgment to award prejudgment interest accruing from July 22, 2000, 180 days after the Whittingtons represent that the City first gave them notice of intent to condemn their property.

Summary judgment

Standard of review

A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166 a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999); see also Voice of the Cornerstone Church Corp. v. Pizza Prop. Ptnrs, 160 S.W.3d 657, 667-68 (Tex.App.-Austin 2005, no pet.). The nonmovant has no burden to respond to a traditional summary judgment motion unless the movant conclusively establishes its cause of action or defense. See Willrich, 28 S.W.3d at 23; Rhone-Poulenc, Inc., 997 S.W.2d at 222-23. Summary judgments must stand on their own merits. Willrich, 28 S.W.3d at 23. Accordingly, the nonmovant need not respond to a traditional summary judgment motion to contend on appeal that the movant's summary judgment proof is insufficient as a matter of law to support summary judgment. Id.; see Rhone-Poulenc, Inc., 997 S.W.2d at 223. For the same reasons, we do not consider evidence tendered by the non-movant in response to a traditional summary judgment motion when evaluating whether the movant met his or her initial burden. Willrich, 28 S.W.3d at 23.

The standard for reviewing a summary judgment is well established: (I) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law; (ii) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (iii) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 645-46 (Tex.2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 502 (Tex.App.-Austin 2004 pet. dism'd by agr.). The propriety of summary judgment is a question of law; therefore, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

Texas condemnation law

While the procedural framework of condemnation actions differs from other civil actions, the filing of the condemnation petition and special commissioners' hearing has been described by the supreme court as an "administrative proceeding" which "converts into a normal pending cause when objections to the commissioners' award are filed." Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 179 (Tex.2004) (internal citations and quotations omitted); see generally Tex. Prop.Code Ann. §§ 21.011-.016. Thus, upon the filing of objections to the special commissioners' award, the City had the burden of proving, in the normal manner of a judicial proceeding, the essential elements of its condemnation claim. Accordingly, on summary judgment, the City had the burden of conclusively negating the existence of a genuine issue of material fact with regard to each element. Willrich, 28 S.W.3d at 23.

Broadly speaking, the City had to prove three essential elements to prevail on its condemnation claim. First, the City had to establish that it satisfied...