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In=20 The For=20 The
ASPENWOOD APARTMENT=20
CORP. AND JACK YETIV, Appellants BEATRICE =
LINK AND=20
HELEN HUEY, Appellees
On =
Appeal from the=20
215th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 1994-59707
MEMORANDUM OPINION=20
ON REHEARING We withdraw our opinion of =
April 19,=20
2007, and issue this one in its stead. We grant appellee's, =
Beatrice=20
Link's, motion for rehearing, we deny appellee's, Helen Huey's, =
motion for=20
rehearing, and we also deny appellants' motion for rehearing. =
Appellants, Aspenwood Apartment =
Corporation and Jack Yetiv (collectively "Yetiv") filed claims =
against=20
appellees, Beatrice Link and Helen Huey, alleging various =
constitutional=20
and common law violations. Yetiv's claims against both Link and =
Huey were=20
disposed of before trial when the trial court dismissed Huey =
pursuant to=20
her special exceptions and granted Link summary judgment. In two =
issues,=20
Yetiv argues that the trial court erred in (1) sustaining Huey's =
special=20
exceptions and dismissing his case against her and (2) granting =
Link's=20
motion for summary judgment. We affirm in part and reverse and =
remand in=20
part. According to the pleadings, =
Yetiv is the=20
primary secured-lienholder of apartment properties owned by =
Aspenwood=20
Apartment Corporation ("AAC"). The City of Houston ("the City") =
filed a=20
lawsuit seeking to enjoin Yetiv from making repairs to certain of =
those=20
properties without the necessary building permits. Yetiv =
counterclaimed=20
against the City, joining Huey, a former City Council member, and =
Link,=20
Assistant Director of Neighborhood Protection, as =
counterdefendants. The trial court granted summary =
judgment=20
for Huey on all claims asserted against her individually and for =
Link on=20
all state-law claims asserted against her individually. Yetiv =
non-suited=20
his federal-law claims against Link and proceeded to trial against =
the=20
City only. The jury was charged only on Yetiv's claim against the =
City for=20
First Amendment retaliation, illegal searches, and permit =
withholding. The=20
jury found that the City: 1. did not retaliate against =
Yetiv for=20
asserting his First Amendment rights; 2. did search the apartments =
without a=20
search warrant or beyond the scope of any warrant; and
3. did arbitrarily or =
capriciously deny=20
or withhold permits for work on the apartments. The City appealed the jury's =
verdict, and=20
Yetiv appealed the grant of summary judgment in favor of Huey and =
Link.=20
This Court (1) reversed the verdict against the City and rendered =
judgment=20
that Yetiv take nothing on his claims and (2) reversed the summary =
judgments in favor of Huey and Link and remanded the issues for =
trial.=20
City of Houston v. Aspenwood Apartment Corp., No. =
01-97-01378-CV,=20
1999 WL 681939, at * 1 (Tex. App.--Houston [1st Dist.] Aug. 27, =
1999, pet.=20
denied). On remand, Huey specially =
excepted to=20
Yetiv's pleadings. In her special exceptions, she argued that, =
because=20
Yetiv was collaterally estopped from asserting his claims by both =
the=20
jury's verdict and this Court's opinion, he failed to state a =
viable cause=20
of action. The trial court sustained Huey's special exceptions and =
ordered=20
Yetiv to replead within 30 days. Yetiv did not replead, and Huey =
filed a=20
motion to dismiss based on his failure to do so. Pursuant to that =
motion,=20
the trial court dismissed Yetiv's case against Huey.=20
Link moved for summary judgment =
on the=20
grounds that she had conclusively established each of the elements =
of her=20
affirmative defenses under the Texas Tort Claims Act, the statute =
of=20
limitations, and the doctrines of collateral estoppel and res =
judicata.=20
Without specifying its reasons, the trial court granted Link's =
summary=20
judgment motion and rendered a final judgment that Yetiv take =
nothing on=20
his claims against her. Yetiv now appeals the trial =
court's=20
decisions to (1) sustain Huey's special exceptions and dismiss the =
case=20
against her and (2) grant Link's motion for summary judgment.=20
Huey's =
Special=20
Exceptions - Collateral Estoppel In his first issue, =
Yetiv argues=20
that the trial court erred in granting Huey's special exceptions =
and=20
motion to dismiss. Specifically, Yetiv argues that, because an =
opinion of=20
this Court previously held that a fact issue existed as to Huey's=20
individual liability, it was error for the trial court to grant =
her=20
special exceptions on the grounds that Yetiv was collaterally =
estopped=20
from asserting his claims by the holdings in that same appellate =
opinion.=20
We disagree in part. A. Standard of=20
Review A special =
exception is a=20
proper method to determine whether a plaintiff has pleaded a cause =
of=20
action. See Tex. R. Civ. P. 91; Alpert v. Crain, =
Caton, &=20
James, P.C., 178 S.W.3d 398, 405 (Tex. App.--Houston [1st =
Dist.]=20
2005, pet. denied). When special exceptions are sustained, the =
pleader may=20
either amend the petition or refuse to amend and challenge the =
ruling on=20
appeal. Alpert, 178 S.W.3d at 405. We review a trial court's =
dismissal of a=20
case upon special exceptions for failure to state a cause of =
action as an=20
issue of law, using a de novo standard of review. Id. We =
accept=20
all of the plaintiff's material factual allegations and all =
reasonable=20
inferences from those allegations as true. Sorokolit v. =
Rhodes,=20
889 S.W.2d 239, 240 (Tex. 1994). B. =
Analysis Huey specially =
excepted=20
to Yetiv's causes of action on the grounds that he was =
collaterally=20
estopped from asserting his claims against her because the issues =
set=20
forth in the pleadings were fully and fairly litigated in his =
previous=20
action against the City. The doctrine of collateral estoppel, or =
issue=20
preclusion, prevents the relitigation of particular issues when =
(1) the=20
facts sought to be litigated in the second action were fully and =
fairly=20
litigated in the first action, (2) those facts were essential to =
the=20
judgment in the first action, and (3) the parties were cast as =
adversaries=20
in the first action. Turnage v. JPI Multifamily, Inc., 64 =
S.W.3d=20
614, 617 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (citing =
Sysco=20
Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. =
1994)).=20
Because Yetiv and Huey have been cast as adversaries throughout =
the=20
progression of this case, the third element of the collateral =
estoppel=20
doctrine is satisfied, and we examine the pleadings to determine =
whether=20
the facts sought to be litigated thereunder (1) were fully and =
fairly=20
litigated in Yetiv's action against the City and (2) were =
essential to the=20
judgment in that action. 1. Section 1983=20
Claims Under section =
1983,=20
Yetiv asserted claims against Huey for unconstitutional "taking" =
of his=20
property, retaliation for asserting First Amendment rights, =
illegal=20
searches, and due process violations for arbitrarily withholding =
building=20
permits. To state a claim for relief in an action brought under =
section=20
1983, Yetiv must establish that he was deprived of a right secured =
by the=20
Constitution or laws of the United States, and that the alleged=20
deprivation was committed "under color of state law." The=20
following wrongful conduct was alleged by Yetiv against Huey in =
her=20
individual capacity: campaigning on promises to gentrify the =
residential=20
district in which the apartments at issue were located, =
encouraging=20
neighbors living near the apartment to secretly videotape the =
properties,=20
and misrepresenting information to City Council concerning the =
status of=20
the apartments. Assuming this conduct could be shown to result in =
the=20
deprivation of constitutional rights, Yetiv was required to show =
that=20
Huey's actions were taken "under color of state law" in order to =
prevail.=20
Sullivan, 526=20
U.S. at 50, 119 S. Ct. at 985 The facts surrounding these =
alleged=20
policies and customs were fully litigated in Yetiv's action =
against the=20
City. There, the jury found the City liable on the grounds that it =
had=20
illegally searched Yetiv's properties and had arbitrarily and =
capriciously=20
withheld building permits. However, this Court reversed those =
findings and=20
held that (1) there was no evidence that "Houston City Council =
executed a=20
policy statement, ordinance, regulation, or decision to demolish =
or=20
illegally search low-income housing or withhold permits" and (2) =
there was=20
no evidence "of a persistent, widespread, permanent, and =
well-settled=20
custom or usage to demolish or illegally search low-income housing =
or=20
withhold building permits . . . ." Aspenwood Apartment =
Corp.,=20
1999 WL 681939, at * 7, 12. This Court's determination of the =
issues was=20
essential to the judgment in Yetiv's action against the City. =
Relitigation=20
of these same issues would be necessary in Yetiv's current action =
against=20
Huey in order to determine whether her actions could be fairly =
attributed=20
to the City so that it may be said that she was acting "under =
color of=20
state law." As a result, Yetiv is collaterally estopped from =
relitigating=20
these issues in the proceedings against Huey. See =
Turnage, 64=20
S.W.3d at 617. Because=20
issues necessary to the resolution of Yetiv's claims against Huey =
were=20
fully and fairly litigated in Yetiv's previous action against the =
City, we=20
conclude that Yetiv was collaterally estopped from asserting his =
section=20
1983 claims, as pleaded, against Huey. The trial court, therefore, =
did not=20
err in granting Huey's special exceptions. We further conclude =
that,=20
because Yetiv failed to replead his claims and allege conduct =
separate and=20
apart from the issues already litigated against the City, the =
trial court=20
did not err in dismissing the section 1983 claims against =
Huey. 2.=20
State Law Claims Yetiv's =
pleadings allege=20
an unlawful taking of property and the deprivation of due process =
property=20
rights under the Texas Constitution. Tex. Const. art. I, =A7=A7 =
17, 19. Huey=20
specially excepted to these claims on the grounds that this Court=20
decided that [Yetiv] did not =
suffer a=20
constitutional deprivation as a result of conduct attributable to =
the=20
legislative body of the City of Houston or through its =
ratification of=20
conduct by employees; therefore, without specific pleadings =
describing a=20
taking by withholding City of Houston building permits involving =
[the=20
property in question], [Huey] cannot adequately prepare a defense =
or=20
assess her liability and a special exception should be granted. =
Like the=20
"under color of state law" requirement in section 1983 claims, to =
prevail=20
on a theory of unconstitutional taking under the Texas =
Constitution, Yetiv=20
must show that Huey was acting "with authority or color of =
authority."=20
See Steele v. City of Houston, 603 S.W.2d 786, 791-92 =
(Tex.=20
1980). As discussed previously, this Court determined that there =
was no=20
evidence that (1) the "Houston City Council executed a policy =
statement,=20
ordinance, regulation, or decision to demolish or illegally search =
low-income housing or withhold permits" or (2) "of a persistent,=20
widespread, permanent, and well-settled custom or usage to =
demolish or=20
illegally search low-income housing or withhold building permits . =
. . ."=20
Aspenwood Apartment Corp., 1999 WL 681939, at * 7, 12. =
These=20
determinations were essential to the judgment in Yetiv's action =
against=20
the City, and relitigation of these same issues would be necessary =
in=20
Yetiv's current action against Huey to determine whether Huey had=20
authority or the color of authority to act. As a result, Yetiv is=20
collaterally estopped from relitigating these issues, and the =
trial court=20
did not err in sustaining Huey's special exceptions. See =
Turnage,=20
64 S.W.3d at 617. Yetiv's =
pleadings assert=20
claims against Huey for tortious interference with a contract, =
malicious=20
prosecution, and abuse of process. Huey's special exceptions to =
these=20
claims stated that, [s]ince [this Court] concluded =
that City=20
of Houston decisions leading to search warrants and citations =
involving=20
[the property in question], as well as building permits, were not =
based on=20
inappropriate decisions of Beatrice Link, the Houston City Council =
[Defendant Huey] and/or through a pattern, practice, policy or =
custom in=20
the City . . ., unless the current litigation of Defendant Huey's=20
activities involving Yetiv/AAC involve new issues, collateral =
estoppel=20
appears to bar this suit; therefore without specific pleadings =
describing=20
building permit decisions involving [the property in question], =
Defendant=20
Huey cannot adequately prepare a defense or assess or [sic] her =
liability=20
. . . . We consider each of Yetiv's =
individual=20
tort claims separately to determine whether the doctrine of =
collateral=20
estoppel, as set forth previously, applies. a. Tortious =
Interference with=20
Prospective Contracts The elements =
of a cause=20
of action for tortious interference with a prospective contract =
are: (1)=20
there was a reasonable probability the plaintiff would have =
entered into a=20
contractual relationship, (2) the defendant's malicious and =
intentional=20
act prevented the relationship from occurring, doing harm to the=20
plaintiff, (3) the defendant lacked privilege or justification, =
and (4) as=20
a result, the plaintiff suffered actual damage or loss. =
Winston v. Am.=20
Med. Int'l, Inc., 930 S.W.2d 945, 953 (Tex. App.--Houston =
[1st Dist.]=20
1996, writ denied). Yetiv's tortious interference claim =
specifically=20
asserts that Huey's campaign of harassment . . . =
interfered=20
with the creation of new lease contracts because refusal to issue =
permits=20
prevented the timely remodeling of the apartments at the Property. =
In=20
addition, no leasing occurred (or could have occurred) at all on =
October=20
27, 1994, due to the 'appropriation' of the Property by [Huey and =
Link]=20
during their raid. In addition, by their threats to [Yetiv's] =
workers on=20
October 27, 1994, [Huey and Link] interfered with contractual=20
relationships between [Yetiv] and [his] employees. Yetiv's =
pleadings thus=20
supply three bases for Huey's liability for tortious interference: =
(1) the=20
refusal to issue permits, (2) an illegal search on October 27, =
1994, and=20
(3) threats made to Yetiv's employees during the illegal search.=20
(4)=20
While the jury in Yetiv's =
actions against=20
the City found that the City had both (1) arbitrarily and/or =
capriciously=20
denied or withheld permits from Yetiv and (2) undertook one or =
more=20
searches of [Yetiv's] property without a search warrant and/or =
that=20
searches were beyond the scope of the warrant, those findings were =
reversed on appeal. In resolving the claims against the City, the =
issue of=20
whether refusal to issue a permit and an illegal search caused =
Yetiv=20
injury was fully and fairly litigated. The determination of these =
issues=20
was essential to the judgment against Yetiv in that action, and, =
thus, he=20
is collaterally estopped from relitigating the issue in the =
instant action=20
against Huey. See Turnage, 64 S.W.3d at 617. The trial =
court did=20
not err in sustaining Huey's special exceptions on the grounds of=20
collateral estoppel. Accordingly, we overrule =
Yetiv's first=20
issue with respect to his tortious interference claim. b. Malicious =
Prosecution and=20
Abuse of Process To prevail on =
a claim of=20
malicious prosecution, a plaintiff must establish the following: =
(1)=20
commencement of a criminal prosecution against the plaintiff,=20
(2) initiated or procured by the defendant, (3) termination =
of the=20
prosecution in the plaintiff's favor, (4) the plaintiff's =
innocence, (5)=20
the defendant's lack of probable cause to initiate the =
proceedings, (6)=20
malice in filing the charge, and (7) damages. Burrows v. =
Neiman-Marcus=20
Group, Inc., 976 S.W.2d 784, 787 (Tex. App.--Houston [1st =
Dist.]=20
1998, no pet.). An abuse of process occurs where: (1) the =
defendant made=20
an illegal, improper, perverted use of the process; (2) the =
defendant had=20
an ulterior motive or purpose in exercising such illegal, =
perverted, or=20
improper use of process; and (3) that damage resulted to the =
plaintiff=20
from the irregularity. Detenbeck v. Koester, 886 S.W.2d =
477, 480=20
(Tex. App.--Houston [1st Dist.] 1994, no writ). In this context, Yetiv alleged =
that he=20
was required to hire an attorney when building officials wrote him =
21=20
criminal citations in order to advance the wrongful purposes =
alleged in=20
his pleadings. In his=20
second issue, Yetiv argues that it was error for the trial court =
to grant=20
summary judgment in favor Link because she failed to conclusively=20
establish her affirmative defenses. We disagree. A.=20
Standard of Review The=20
standard of review in a summary judgment proceeding is well =
settled. When=20
a defendant moves for summary judgment on an affirmative defense, =
she is=20
entitled to a summary judgment if she conclusively establishes =
each of the=20
essential elements of her affirmative defense as a matter of law.=20
Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. =
1984);=20
Marshall v. Sackett, 907 S.W.2d 925, 930 (Tex. =
App.--Houston [1st=20
Dist.] 1995, no writ). Evidence is conclusive only if reasonable =
persons=20
could not differ in their conclusions. City of Keller v. =
Wilson,=20
168 S.W.3d 802, 816 (Tex. 2005). If the defendant produces =
sufficient=20
evidence to establish the right to a summary judgment, the =
plaintiff must=20
present contradictory evidence that gives rise to a fact issue in =
order to=20
avoid summary judgment. Marshall, 907 S.W.2d at 930. =
On appeal,=20
evidence favorable to the nonmovant will be taken as true. Id. =
In=20
addition, every reasonable inference from the evidence must be =
indulged,=20
and any doubts resolved, in the nonmovant's favor. Id. =
When, as=20
here, a summary judgment does not specify the grounds on which it =
was=20
granted, we will affirm the judgment if any one of the theories =
advanced=20
in the motion is meritorious. Joe v. Two Thirty Nine Joint=20
Venture, 145 S.W.3d 150, 157 (Tex. 2004). B.=20
Analysis Yetiv=20
asserted the same section 1983, state constitutional, and =
intentional tort=20
claims against Link that he asserted against Huey. In her motion =
for=20
summary judgment, Link argued, as affirmative defenses, (1) that =
all of=20
Yetiv's claims were barred by section 101.106 of the Texas Tort =
Claims=20
Act, as well as by the doctrines of collateral estoppel and res =
judicata=20
and (2) that Yetiv's section 1983 claims were barred by the =
statute of=20
limitations. For the reasons set forth in our analysis of the =
doctrine of=20
collateral estoppel as it applied to Yetiv's claims against Huey, =
we hold=20
that Yetiv is collaterally estopped from asserting his section =
1983=20
claims, state constitutional claims, and tortious interference =
with a=20
contract claims against Link. The only claims remaining against =
Link are=20
Yetiv's intentional tort claims for malicious prosecution and =
abuse of=20
process. On rehearing, Link argues that Yetiv may not assert these =
claims=20
against her because they were not a part of the live pleadings at =
the time=20
the trial court granted summary judgment in her favor. We agree. =
Link's=20
motion for summary judgment was filed in March of 2005. At that =
time,=20
Yetiv's second amended petition, filed on January 28, 2005, was =
the live=20
pleading. No subsequent pleadings were filed by Yetiv prior to the =
trial=20
court's rendition of its final judgment granting Link's motion for =
summary=20
judgment. Yetiv's second amended petition does not contain any =
claims for=20
malicious prosecution or abuse of process. Because Yetiv failed to =
include=20
his claims for malicious prosecution and abuse of process in his =
second=20
amended petition, he abandoned those claims with respect to Link. =
See=20
Tex. R. Civ. P. 65. We overrule=20
Yetiv's second issue.
George C.=20
Hanks, Jr. Panel=20
consists of Justices Taft, Alcala, and Hanks.
Huey and Link=20
were sued in their individual and official capacities.=20
2. This same final judgment incorporated the =
trial=20
court's order dismissing Yetiv's claims against Huey.=20
3. Section 1983 provides in pertinent part=20
that: Every=20
person who, under color of any statute, ordinance, regulation, =
custom,=20
or usage, of any State or Territory or the District of =
Columbia,=20
subjects, or causes to be subjected, any citizen of the United =
States or=20
other person within the jurisdiction thereof to the deprivation of =
any=20
rights, privileges, or immunities secured by the Constitution and =
laws,=20
shall be liable to the party injured in an action at law, suit in =
equity,=20
or other proper proceeding for redress, . . . 42 U.S.C. =A7=20
1983 (2000) (emphasis added).=20
4. According to the statement of facts in =
Yetiv's=20
counterclaim, [o]n October 27, . . . an =
illegal raid=20
was mounted by the City of Houston, beginning with an overflight =
by a=20
police helicopter, and then the subsequent appearance of =
approximately 4-5=20
police cruisers, as many as 10 police officers, and perhaps 30 =
City=20
Inspectors and private contractors over the course of the day. . . =
. This=20
"raid" was purportedly conducted pursuant to a search warrant. . . =
. The=20
sworn affidavit which led to the creation of the search warrant . =
. .=20
executed by two City of Houston agents contains several false =
statements.=20
. . . In any case, even if the affidavit had been truthful, =
the=20
City's agents far exceeded the scope of the search warrant, even =
if the=20
search warrant was valid. The statement of facts does not =
indicate=20
what threat to Yetiv's employees, if any, was made by =
Huey. 5. Yetiv's pleadings assert that Huey was =
engaged in a=20
"campaign of harassment" for the purpose of fulfilling her =
promises to=20
area-residents to demolish low-income housing.=20
6. Huey's special exceptions represent that =
this=20
Court's prior holding was that,
City of Houston decisions =
leading to=20
search warrants and citations involving [the property in=20
question], as well as building permits, were not based on =
inappropriate=20
decisions of Beatrice Link, the Houston City Council [Defendant =
Huey]=20
and/or through a pattern, practice, policy or custom in the City . =
.=20
. .=20
(Emphasis added.) However,=20
the Court was considering the more narrow question, as it was =
presented to=20
the jury, whether the [City]=20
undertook one or more searches of [Yetiv's] property without a =
search=20
warrant which was based on a truthful affidavit and/or that such =
searches=20
were beyond the scope of the warrant through decisions of Beatrice =
Link,=20
the Houston City Council and/or through a pattern, practice, =
policy or=20
custom in the City.
See=20
Aspenwood Apartment Corp., 1999 WL 681939, at * 4. That is, =
the=20
citations were not included in either the jury's considerations or =
this=20
Court's earlier analysis or opinion.=20
7. On rehearing, Huey argues that Yetiv's =
malicious=20
prosecution and abuse of process claims were not properly asserted =
against=20
her because (1) in our 1999 opinion, this Court held that those =
claims had=20
been abandoned, and (2) Yetiv conceded that he did not assert =
those claims=20
against Huey in his briefing in the instant matter. We disagree. =
In a=20
footnote in our 1999 opinion, we stated as follows: Huey's=20
summary judgment motion also attacked Yetiv and AAC's malicious=20
prosecution and abuse of process claims and their prayer for =
mental=20
anguish damages. However, by the time summary judgment was =
granted, Yetiv=20
and AAC no longer sought these damages, AAC's counterclaim had =
dropped=20
these same claims, and Yetiv admits that he had abandoned those =
same=20
claims. |