X Land v. Mumford Indep. Sch. Dist.

• Decision Date: 16 November 2010
• Docket Number: No. 14-09-00330-CV.,14-09-00330-CV.
• Citation: 325 S.W.3d 859
• Parties: CIRCLE X LAND AND CATTLE COMPANY, LTD., Appellant, v. MUMFORD INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

325 S.W.3d 859

CIRCLE X LAND AND CATTLE COMPANY, LTD., Appellant,

v.MUMFORD INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 14-09-00330-CV.

Court of Appeals of Texas,Houston (14th Dist.).

Nov. 16, 2010.

COPYRIGHT MATERIAL OMITTED.

Bill Payne, Bryan, Edward C. Small, Austin, for appellant.

William Steven Steele, Bryan, Bryan F. Russ, Jr., Hearne, for Appellee.

Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.

SUBSTITUTE OPINION ON REHEARING

JEFFREY V. BROWN, Justice.

We originally issued our opinion affirming the trial court's judgment on August 31, 2010. Appellant Circle X Land & Cattle Company, Ltd., moved for rehearing. We overrule the motion for rehearing, vacate our August 31 judgment, withdraw our previous opinion, and issue this substitute opinion in its place. Our disposition of the appeal is unchanged.

This case arises out of a school district's condemnation of thirty acres of ranch land in Robertson County. Circle X is appealing the trial court's grant of Mumford Independent School District's motion for partial summary judgment. Circle X contends the school district failed to meet its burden to prove as a matter of law it was entitled to the summary judgment because it did not establish there was a public purpose for the condemnation or that the condemnation of all thirty acres was necessary. Circle X argues that its response to the motion for partial summary judgment raised fact issues about whether the school district acted arbitrarily or capriciously in condemning the land. Finally, Circle X complains the trial court erred in including in its judgment a clause stating Circle X does not have the right to ingress and egress on the condemned property for the purpose of exploring, developing, drilling, or mining for oil and gas. We affirm.

I

In 2002, Mumford Independent School District and Robertson County expressed their desire to acquire thirty acres of land to develop a sports and recreation complex. When the county decided to withdraw from the deal, the school district did not proceed with the acquisition. But the school district revisited the idea three years later, and on August 11, 2005, its board of trustees voted to start condemnation proceedings. A panel of three special commissioners reviewed the district's petition and approved the condemnation of thirty acres of Circle X's land. Circle X sued in district court claiming the school district had acted arbitrarily and capriciously in deciding to condemn the land.

The school district filed a motion for partial summary judgment, which the trial court denied. But after the district moved for reconsideration, the trial court granted the motion. After the partial summary judgment was granted, the school district and Circle X agreed on the amount of just compensation for the thirty acres. The trial court then signed a final judgment in favor of the district. This appeal followed.

II

We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Here, the appellee moved for a traditional summary judgment. See Tex.R. Civ. P. 166a(c). The party moving for a traditional summary judgment has the burden to show that no material fact issue exists and that it is entitled to summary judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). We will assume that all evidence favorable to the non-movant is true and indulge every reasonable inference in favor of the non-movant. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A non-movant has the burden to respond to a traditional summary-judgment motion if the movant conclusively (1) establishes each element of its cause of action or defense, or (2) negates at least one element of the non-movant's cause of action or defense. See Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984).

Although the school district claims in its brief that it moved for both a traditional and a no-evidence summary judgment, the motion itself is ambiguous. Compare Tex.R. Civ. P. 166a(c), with Tex.R. Civ. P. 166a(i). Circle X contends that because the district's motion was ambiguous, we should construe it as a traditional motion for summary judgment. The two summary-judgment standards are distinct; therefore, we must determine which type of summary judgment is at issue. Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In Grimes v. Reynolds, we held “[s]ince a motion that does not clearly and unambiguously state it is being filed under Rule 166a(i) does not give the non-movant notice that the movant is seeking a no-evidence summary judgment, we will construe it as a traditional motion under Rule 166a(c).” Id. Here, as in Grimes, we will construe the summary judgment to be a traditional motion. ¹ Additionally, when a motion for reconsideration or new trial is filed after a summary-judgment motion is heard and ruled upon, the trial court may ordinarily consider only the record as it existed before hearing the motion the first time. See Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex.App.-Houston [14th Dist.] 2006, no pet.); Chapman v. Mitsui Eng'g & Shipbuilding Co., 781 S.W.2d 312, 315 (Tex.App.-Houston [1st Dist.] 1989, writ denied). However, the trial court may consider evidence submitted with a motion for reconsideration so long as it affirmatively indicates in the record that it accepted or considered the evidence. Auten, 209 S.W.3d at 702; see also Tex.R. Civ. P. 166a(c) (summary-judgment evidence must be timely filed, “except on leave of court”).

Here, after the trial court originally denied the school district's motion for partial summary judgment, it granted the motion to reconsider and rendered partial summary judgment. The court's order reflects that in so doing, it “considered the affidavits and exhibits submitted by Condemnor and Condemnee on the [motion for reconsideration] and the arguments and authority of counsel.” The trial court, therefore, considered the arguments and evidence presented in the motion to reconsider and response. Thus, we may review the same to determine whether the trial court erred in ultimately granting the school district's motion for partial summary judgment. ² See Stephens v. Dolcefino, 126 S.W.3d 120, 133-34 (Tex.App.-Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex.2005).

A Condemnation

The school district's eminent-domain powers are statutorily derived from section 11.155 of the Texas Education Code. See Tex. Educ.Code § 11.155. Section 11.155(a) provides that “[a]n independent school district may, by exercise of the right of eminent domain, acquire the fee simple title to real property for the purpose of securing sites on which to construct school buildings or for any other purpose necessary for the district.” Id. § 11.155(a). A district court may determine all issues, including the authority to condemn property and assess damages, in any proceeding for eminent domain involving a political subdivision of the state. Tex. Prop.Code Ann. § 21.003 (Vernon 2004). ³

The Texas Supreme Court has held that private property may be taken only for public use. Borden v. Trespalacios Rice & Irrigation Co., 98 Tex. 494, 86 S.W. 11, 15 (1905). What is public use is a question of law. ⁴ Tenngasco Gas Gathering Co. v. Fischer, 653 S.W.2d 469, 474 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). But when the legislature delegates to an entity the power to condemn, and the entity condemns the property for public use, the extent to which the property is taken is a legislative question. Block House Mun. Util. Dist. v. City of Leander, 291 S.W.3d 537, 541 (Tex.App.-Austin 2009, no pet.); see Hous. Auth. of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 85-86 (1940); Harris County Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303, 316 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In other words, the legislative declaration that the use is presumptively public is binding on courts unless the use is “clearly and palpably” private. Higginbotham, 143 S.W.2d at 83. The entity's power to condemn is subject to judicial review, however, when there is a showing of bad faith, arbitrary or capricious action, or abuse of discretion. Block House Mun. Util. Dist., 291 S.W.3d at 541; see Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 268-69 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

The Texas Supreme Court also has held that when a statute vests a governmental agency with discretionary authority to condemn, the agency's determination of public necessity is presumptively correct. FKM P'ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 629 (Tex.2008). The condemnor generally determines how much land to take. Zboyan v. Far Hills Util. Dist., 221 S.W.3d 924, 930 (Tex.App.-Beaumont 2007, no pet.) If a statute delegating the eminent-domain power does not require proof of necessity, as is the case here, the condemnor need only show that its governing authority determined that the taking was necessary. See Pizzitola v. Houston Indep. Sch. Dist., No. 13-05-249-CV, 2006 WL 1360838, at *5 (Tex.App.-Corpus Christi May 18, 2006, no pet.) (mem.op.); Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex.App.-San Antonio 1999, pet. denied).

As with the “public use” requirement, this determination is conclusive unless there is a showing of bad faith, arbitrary or capricious action, or abuse of discretion. See FKM P'ship, Ltd., 255 S.W.3d at 629; Coastal Indus. Water Auth. v. Celanese Corp., 592 S.W.2d 597, 600 (Tex.1979). It is the nonmovant's burden, as the objecting party, to demonstrate that the school district's action was arbitrary and capricious. Pizzitola, 2006 WL 1360838, at *5 ...