Texas Judiciary Online - HTML Opinion

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Opinion issued February 22,=20 2007

In = The

Court of=20 Appeals

For=20 The

First=20 District of Texas

____________

NO. 01-05-00118-CV

____________

HOWETH INVESTMENTS, INC. AND JACK HOWETH, AS TRUSTEE = FOR THE=20 881 BROGDEN TRUST AND THE 901 BROGDEN TRUST, ASSIGNEES OF HOWETH=20 INVESTMENTS, INC., Appellants

S. FRANK WHITE, ROBERT A. WIENER, NORMAN A. WARD, AND = KATHERINE=20 VAZQUEZ, Appellees

On = Appeal=20 from County Civil Court at Law No. 1

Harris County, Texas

Trial Court=20 Cause No. 820925-101

O = P I N I O=20 N

Appellants, Howeth Investments, = Inc. and=20 Jack Howeth, as trustee for the 881 Brogden Trust and the 901 = Brogden=20 Trust, assignees of Howeth Investments, Inc. (collectively, the = "Howeth=20 parties"), appeal from a take-nothing summary judgment rendered = upon the=20 motion of appellees, S. Frank White, Robert A. Wiener, Norman A. = Ward, and=20 Katherine Vazquez (collectively, the "individual defendants"). We=20 determine whether the trial court erred (1) by ruling on federal = claims=20 that the Howeth parties attempted to reserve and (2) by rendering = a=20 summary judgment on the merits of the Howeth parties' claim that = was not=20 reserved. We modify the judgment of the trial court to dismiss the = Howeth=20 parties' claims against the individual defendants without = prejudice, and=20 we affirm the judgment as so modified.

Background

The underlying case is for = compensation=20 for an alleged regulatory taking. Jack Howeth was a real-estate = developer.=20 He was also the president of Howeth Investments, Inc. and the = trustee for=20 the two trusts named above, which in turn were assignees of Howeth = Investments, Inc. Howeth Investments, Inc. was in the business of=20 purchasing and developing real estate.

In March 2000, the Howeth = parties=20 contracted to purchase two properties located on Brogden Street = ("the=20 Brogden properties") in the City of Hedwig Village ("the City"). = In=20 September 2000, the Howeth parties obtained fee title to the = Brogden=20 properties.

The Howeth parties contended = that the=20 only way to subdivide the Brogden properties so that they could = develop=20 them as they intended was to subdivide each piece of property into = two=20 sub-lots, with one of the subdivided lots on each piece of = property having=20 a "flag" configuration. A flag configuration is one in which one = lot is=20 behind the other relative to the street, so that the back lot has = access=20 to the street only by virtue of a long driveway.

In June 2000, the Howeth = parties and the=20 Brogden properties' sellers submitted plat applications ("the June = plat=20 applications") to the City's Planning and Zoning Commission ("the=20 Commission") for subdivision of the Brogden properties.^{=20
(1)} The June plat applications proposed flag = configurations for=20 subdividing each of the two Brogden properties.

The Commission scheduled a = hearing for=20 July 5, 2000 to consider the June plat applications. At the July 5 = hearing, approval of the plat applications was deferred until the=20 Commission's August 2, 2000 meeting, so that further review and = research=20 could be had.

On July 15, 2000, the Howeth = parties=20 sought certificates of "no action" from the Commission because it = had=20 allegedly not acted timely on the June plat applications under the = timelines established by the Texas Local Government Code. See=20 Tex. Loc. Gov't Code Ann. =A7 212.009(a) (Vernon 1999) = ("The=20 municipal authority responsible for approving plats shall act on a = plat=20 within 30 days after the date the plat is filed. A plat is = considered=20 approved by the municipal authority unless it is disapproved = within that=20 period.") (emphasis added). The City's attorney denied the = request,=20 asserting that the cited statute did not control because the June = plat=20 applications were mere preliminary applications not subject to the = statute.

At the August 2, 2000 = Commission hearing,=20 the Howeth parties again participated in a discussion of the June = plat=20 applications. A divided Commission voted against approving the = June plat=20 applications. On August 13, 2000, the Howeth parties and the = Brogden=20 properties' sellers submitted additional plat applications for the = Brogden=20 properties ("the August plat applications"). Rather than proposing = flag=20 configurations, the August plat applications proposed that the = rear=20 subdivided lots on each of the Brogden properties have ingress and = egress=20 by virtue of permanent easements over the front subdivided lots. = At the=20 Commission's August 30, 2000 meeting, after a discussion including = the=20 Howeth parties, a divided Commission voted against approving the = August=20 plat applications.

The Howeth parties sued the = City, the=20 Commission, and the individual defendants. The individual = defendants are=20 the Commission members who voted against the June and August plat=20 applications. Against the City and the Commission, the Howeth = parties=20 asserted a takings claim under the Texas Constitution,^{=20
(2)} based on allegedly unlawful regulatory takings = arising from=20 the wrongful denial of building permits and of the Howeth parties' = applications, the failure to issue no-action certificates, and the = issuing=20 of a moratorium on flag lots. Against the individual defendants, = the=20 Howeth parties alleged:

6.1 [The individual defendants] = are being=20 sued and are liable for damages in their individual capacities = for all=20 of the claims asserted herein by [the Howeth = parties].

6.2 The Individual Defendants = have no=20 immunity for the claims made herein and are liable = jointly and=20 severally for all of [the Howeth parties'] damages. The failure to = approve=20 the plats was a failure to perform a ministerial act. Public = officials=20 have no immunity for ministerial acts.

(Emphasis added.) Finally, the = Howeth=20 parties attempted to reserve federal takings claims against all of = the=20 defendants for later assertion in federal court:

[The Howeth parties] also aver = that they=20 possess unripe federal Constitutional takings claims against = Defendants^{=20
(3)} but do not plead such claims at this time. = However,=20 [the Howeth parties] hereby expressly reserve the right to bring = such=20 ripened claims in a court of appropriate = jurisdiction.

(Emphasis added.) See = Guetersloh v.=20 State, 930 S.W.2d 284, 289-90 (Tex. App.--Austin 1996, writ = denied)=20 (concluding that plaintiffs in state-court takings suits may = reserve=20 federal takings claims for later adjudication in federal court, so = as to=20 avoid res judicata's application to federal takings claim in later = federal=20 suit, because takings plaintiffs are only involuntarily in state = court in=20 order "to ripen" federal takings claims). But see San Remo = Hotel, L.P.=20 v. City & County of S.F., Cal., 545 U.S. 323, 346, 125 S. = Ct.=20 2491, 2506 (2005) (holding that reservation of federal as-applied = takings=20 claims that have issues that are not distinct from antecedent = state issues=20 does not defeat application of collateral estoppel in later = federal suit);=20 Hallco Tex., Inc. v. McMullen County, No. 02-1176, 2006 = WL=20 3825298, at *9-10 (Tex. Dec. 29, 2006) (applying San Remo = Hotel,=20 L.P. to principle of res judicata).

The individual defendants moved = for=20 traditional summary judgment on the Howeth parties' claim against = them,=20 asserting four grounds: (1) no private cause of action for = monetary=20 damages against individuals existed for violations of the Texas=20 Constitution, such as a taking without just compensation under = article I,=20 section 17; (2) quasi-judicial immunity barred the claim; (3) = official=20 immunity barred the claim; and (4) the Federal Volunteer = Protection Act^{=20
(4)} barred the claim. In their summary-judgment = response, the=20 Howeth parties first argued that the individual = defendants

have prematurely, and in the = wrong forum,=20 moved for summary judgment on a federal claim reserved, but not at = all=20 asserted in this lawsuit. In fact, the Individual Defendants' = liability in=20 this dispute is predicated upon a 42 U.S.C. =A7 1983 = theory,[^{=20
(5)}] which cannot ripen until [the Howeth parties'] = federal=20 takings claim ripens. The venue in which these federal claims will = be=20 litigated is federal court.

. . . .

For the Court to grant summary = judgment,=20 as the Individual Defendants request, would be for the Court to = adjudicate=20 claims that are not even before it and amount to the rendering of = an=20 improper advisory opinion.

. . . .

Because [the Howeth parties] = have yet to=20 assert a live cause of action against [the] Individual Defendants, = it=20 would be improper for the Court to assert summary adjudication = upon a=20 claim not before it.

. . . .

Once [the Howeth parties'] = federal=20 takings claim ripens, they will have a 42 U.S.C. =A7 1983 = claim based=20 upon the Individual Defendants['] actions with respect to the = federal=20 takings claim.

That is, in their = summary-judgment=20 response, the Howeth parties asserted that the only claim alleged = against=20 the individual defendants was reserved and thus "was not even = before" the=20 trial court, so that the trial court could not render summary = judgment on=20 that claim without rendering an improper advisory opinion. = Alternatively,=20 the Howeth parties asserted substantive arguments on each of the = three=20 affirmative defenses that the individual defendants' motion had=20 raised.

The trial court rendered a = take-nothing=20 summary judgment in favor of the individual defendants without = specifying=20 grounds. Within that order, the trial court severed the claim = against the=20 individual defendants from the remaining claims in the suit, = thereby=20 making the summary-judgment order final. The Howeth parties=20 appeal.

Standard of Review

The individual defendants moved = for=20 traditional summary judgment, attacking the cause of action = directly and=20 also raising affirmative defenses. See Tex. R. Civ. P. = 166a(c).=20 Summary judgment under rule 166a(c) is proper only when a movant=20 establishes that there is no genuine issue of material fact and = that it is=20 entitled to judgment as a matter of law. Randall's Food Mkts., = Inc. v.=20 Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant is = entitled to=20 summary judgment if the evidence disproves as a matter of law at = least one=20 element of each of the plaintiff's causes of action or if it = conclusively=20 establishes all elements of an affirmative defense.=20 Id.

In our review, we indulge every = reasonable inference in favor of the nonmovant, resolve any doubts = in its=20 favor, and take as true all evidence favorable to it. Id. = When,=20 as here, an order granting summary judgment does not specify the = grounds=20 upon which the trial court ruled, we must affirm to the extent = that any of=20 the summary judgment grounds is meritorious. See = Star-Telegram, Inc.=20 v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

Whether the Trial Court Rendered Judgment on = Reserved=20 Federal Claims

In their first and second = issues, the=20 Howeth parties argue that "the trial court erred in granting = summary=20 judgment in favor of the Individual Defendants on the merits of a = federal=20 [42 U.S.C. section 1983] claim reserved, but not at all asserted = in this=20 lawsuit." The Howeth parties' issues rest entirely on the = assumption that=20 they alleged no claims against the individual defendants that they = did not=20 also reserve for federal court. That is, the Howeth parties argue = that=20 they alleged only an unripe section-1983 claim, which they = reserved for=20 adjudication in federal court and which was based on an unripe = federal=20 takings claim.

In their petition, the Howeth = parties=20 alleged that they were suing the individual defendants in their = individual=20 capacities "for all of the claims asserted herein" against the = City and=20 the Commission. The claim that the Howeth parties asserted against = the=20 City and the Commission was a regulatory-takings claim under the = Texas=20 Constitution. The petition thus asserted only a regulatory-takings = claim=20 under the Texas Constitution against the individual = defendants.

We also note that, in the = portion of=20 their petition in which they attempted to reserve for federal = court=20 "unripe federal Constitutional takings claims" against all = defendants, the=20 Howeth parties specifically represented that they were not=20 "plead[ing] such [federal] claims at this time." Section 1983 = provides a remedy for violations of federal rights = committed by=20 persons acting under color of state law. 42 = U.S.C.S. =A7 1983=20 (LexisNexis 2002) (speaking = in terms=20 of violations, etc., of federal Constitution and laws); = Parratt v.=20 Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913 (1981) = (establishing=20 that one of two essential inquiries under section 1983 is "whether = this=20 conduct deprived a person of rights, privileges, or immunities = secured by=20 the Constitution or laws of the United States") (emphasis = added),=20 overruled on other grounds, Daniels v. Williams, = 474=20 U.S. 327, 330-31, 106 S. Ct. 662, 664 (1986). Any section 1983 = claims=20 would thus have fallen under the heading of "unripe federal = Constitutional=20 takings claims," so that they would have been reserved, rather = than=20 offered for adjudication in state court. By expressly reserving an = "unripe=20 federal Constitutional takings claim[]"--i.e., a = section-1983=20 claim--against the individual defendants, the Howeth parties' = pleading=20 expressly excluded that section-1983 claim from consideration by = the trial=20 court. For these reasons, we hold that the trial court's summary = judgment=20 adjudicated the only claim against the individual defendants that = the=20 petition had asserted for adjudication--the regulatory-takings = claim=20 asserted under the Texas Constitution. More specifically, because = no=20 pleading asserted against the individual defendants asserted a=20 section-1983 claim that was not also reserved from the trial = court's=20 consideration, we hold that the trial court could not have = rendered, and=20 that it did not render, summary judgment on the reserved = section-1983=20 claim.

We overrule the Howeth parties' = first and=20 second issues.^{=20
(6)}

Whether the Trial Court Erred in Rendering Summary=20 Judgment

on the Merits of the State-Law Claim Actually=20 Asserted

In their=20 third issue, the Howeth parties argue alternatively that the trial = court=20 erred in rendering summary judgment because (1) they did not plead = a=20 state-law, constitutional-takings cause of action against the = individual=20 defendants, so that the individual defendants' summary-judgment = ground=20 that no private cause of action for damages existed for such = claims was=20 superfluous, and (2) the individual defendants did not carry their = summary-judgment burden on their three affirmative defenses = because either=20 fact issues existed on them or the defenses did not apply as a = matter of=20 law.

We have=20 already determined that the Howeth parties pleaded a state-law,=20 constitutional-takings cause of action for damages against the = individual=20 defendants. Accordingly, at the time that the summary-judgment = motion was=20 filed, its ground attacking the validity of such a claim was not=20 superfluous or inapposite. Subsequently, however, the Howeth = parties in=20 effect abandoned that state-law claim in their summary-judgment = response=20 by judicially admitting that such a claim had never been = asserted.^{=20
(7)} See Stephens v. Dolcefino, 126 S.W.3d 120, = 130-31=20 (Tex. App.--Houston [1st Dist.] 2003) (concluding that plaintiff = limited=20 cause of action by judicial admission made in summary-judgment = response),=20 pet. denied, 181 S.W.3d 741 (Tex. 2005). The state-law, constitutional-takings = claim for=20 damages was the only non-reserved claim asserted against the = individual=20 defendants. Because the Howeth parties abandoned their sole claim = against=20 the individual defendants, the trial court should have dismissed = that=20 claim without prejudice. Cf. Cullinan v. Cullinan, 154 = Tex. 247,=20 253, 275 S.W.2d 472, 475 (1955) (dictum) (indicating that judgment = of=20 dismissal, not on merits, was proper disposition after abandonment = of suit=20 for failure to put on evidence in support); Thompson v. = Kirkland,=20 422 S.W.2d 258, 261 (Tex. Civ. App.--Texarkana 1967, no writ) = (following=20 Cullinan).

However, the trial court = instead rendered=20 a take-nothing summary judgment on this claim. A take-nothing = judgment is=20 one on the merits. See, e.g., De La Garza v. = Express-News Corp., 722 S.W.2d 251, 253 (Tex. App.--San = Antonio 1986,=20 no writ). An adjudication on the merits of a claim is improper = after the=20 claim has been abandoned. Cf. Cullinan, 154 Tex. at 253, = 275=20 S.W.2d at 475; Thompson, 422 S.W.2d at 261. Summary = judgment=20 cannot be rendered on the merits of a claim that has been = abandoned before=20 the summary-judgment ruling. Cf. Taliaferro v. Smith, 804 = S.W.2d=20 548, 550 (Tex. App.--Houston [14th Dist.] 1991, no writ) = (in=20 concluding that trial court erred in rendering summary judgment = against=20 non-movant plaintiff who had filed non-suit immediately before=20 summary-judgment hearing, holding that "in the context of a = summary=20 judgment proceeding, a plaintiff may take a nonsuit at any time = prior to=20 the time the court renders judgment."); Extended Servs. Prog., = Inc. v.=20 First Extended Serv. Corp., 601 S.W.2d 469, 471 (Tex. Civ.=20 App.--Dallas 1980, writ ref'd n.r.e.) (holding same, when non-suit = filed=20 after summary-judgment hearing, but before rendition of summary=20 judgment).

Because we are liberally to = construe=20 appellate briefing,^{=20
(8)} we construe the Howeth parties' challenge discussed=20 here--that the summary-judgment ground asserting that no private = cause of=20 action for damages existed for their state constitutional claim = was=20 superfluous because no such claim had been pleaded--also to = subsume an=20 argument that the take-nothing judgment could not have been = rendered on=20 that claim because it had been abandoned by the time of judgment's = rendition. Having so interpreted this portion of the third issue, = we=20 sustain it. We hold that the trial court erred in rendering a = take-nothing=20 summary judgment on the state-law, constitutional-takings claims = for=20 damages asserted against the individual defendants. Accordingly, = we need=20 not reach the remaining portions of the third issue, in which the = Howeth=20 parties assert that the individual defendants did not carry their=20 summary-judgment burden on their three affirmative defenses to = that=20 claim.

Conclusion

We modify the judgment of the = trial court=20 to dismiss the Howeth parties' claims against the individual = defendants=20 without prejudice, and we affirm the judgment as so=20 modified.

Tim Taft

Justice

Panel consists of Justices = Taft, Alcala,=20 and Hanks.

1. The parties appear to have disputed below = whether=20 the June plat applications were only preliminary or, in contrast, = were=20 complete.=20

2. See Tex. Const. art. I, =A7 17 = ("No person's=20 property shall be taken, damaged or destroyed for or applied to = public use=20 without adequate compensation being made, unless by the consent of = such=20 person; . . . .").=20

3. The Howeth parties did not specify = against which=20 "Defendants" they were reserving federal takings claims, but given = the use=20 of this term elsewhere in the petition, we conclude that they = meant all of=20 the defendants, even the individual ones.=20

4. See 42 U.S.C.S. =A7=A7 = 14501-14505 (LexisNexis=20 2004).=20

5. Section 1983 provides:

Every person who, under color = of any=20 statute, ordinance, regulation, custom, or usage, of any State or=20 Territory or the District of Columbia, subjects, or causes to be=20 subjected, any citizen of the United States or other person within = the=20 jurisdiction thereof to the deprivation of any rights, privileges, = or=20 immunities secured by the Constitution and laws, shall be liable = to the=20 party injured in an action at law, suit in equity, or other proper = proceeding for redress . . . .

42 U.S.C.S. =A7 1983 = (LexisNexis 2002).=20

6. Given our disposition and the posture of = the case,=20 we need not determine whether the Howeth parties' reservation of=20 section-1983 claims against the individual defendants, based on = the=20 individuals' participation in an alleged regulatory taking, was = effective.=20 See San Remo Hotel, L.P. v. City & County of S.F., = Cal., 545=20 U.S. 323, 346, 125 S. Ct. 2491, 2506 (2005) (holding that = reservation of=20 federal as-applied takings claims that have issues that are not = distinct=20 from antecedent state issues does not defeat application of = collateral=20 estoppel in later federal suit); Hallco Tex., Inc. v. McMullen = County, No. 02-1176, 2006 WL 3825298, at *9-10 (Tex. Dec. 29, = 2006)=20 (applying San Remo Hotel, L.P. to principle of res=20 judicata). That = issue is not=20 before us because it does not ripen until the claims are asserted = in a=20 later federal suit and because the issue was not the subject of = the=20 individual defendants' summary-judgment motion.=20

7. At oral argument, counsel for the Howeth = parties=20 conceded that, if their petition is interpreted as having alleged = a=20 state-law, constitutional-takings claim against the individual = defendants,=20 then the Howeth parties abandoned that claim in their = summary-judgment=20 response.=20

8. See Tex. R. App. P. 38.1(e), = 38.9;=20 Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. = 1989)=20 ("[I]t is our practice to construe liberally points of error in = order to=20 obtain a just, fair and equitable adjudication of the rights of = the=20 litigants.").

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FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0046_01C7AD3C.C9D80910--