For=20 The
JAMES R. =
BURRIS AND=20
WHEELCHAIR & SCOOTER EXPRESS, L.L.C.,=20
Appellants METROPOLITAN TRANSIT=20
AUTHORITY OF HARRIS COUNTY, TEXAS, Appellee
On =
Appeal from the=20
County Civil Court at Law No. 1 Harris =
County,=20
Texas Trial =
Court Cause=20
No. 822,749
O P I N =
I O=20
N In this inverse condemnation =
suit,=20
appellants, James R. Burris and Wheelchair & Scooter Express, =
L.L.C.,=20
("WSE") appeal the trial court's order that granted summary =
judgment in=20
favor of appellee, Metropolitan Transit Authority of Harris =
County, Texas=20
("METRO"). In four issues on appeal, =
appellants argue=20
that the trial court erred in (1) granting METRO's motions for =
summary=20
judgment on appellants' claim that access to the property is =
materially=20
and substantially impaired by a METRO project; (2) granting =
METRO's=20
motions for summary judgment on plaintiffs' permanent taking =
claims=20
associated with METRO's taking of appellants' ingress easement=20
appurtenant; (3) denying appellants' motion for partial summary =
judgment=20
claiming that there has been a compensable taking by METRO of the =
ingress=20
easement appurtenant and that access to their property has been =
materially=20
and substantially impaired; (4) granting METRO's motions for =
summary=20
judgment on the claims asserted by WSE because WSE is not an =
independent=20
third party lessee, but rather is Burris's wholly owned business =
which has=20
an ownership interest that has been damaged by METRO's actions; =
and (5)=20
granting METRO's objections to summary judgment evidence. =
We affirm. Burris owns a 17,000 square =
foot parcel=20
of land at 4905 San Jacinto (the "Property") at the corner of =
Wichita=20
Street in Houston, Texas. In 2002, METRO began =
construction of a=20
light rail line (METRORail) on San Jacinto. Before construction of =
METRORail, WSE had two driveways where customers could enter and =
exit the=20
Property by vehicle from San Jacinto. Appellants filed suit against =
METRO for=20
trespass and inverse condemnation based on the allegations that =
METRO had=20
damaged the Property by materially and substantially impairing =
access to=20
it and that METRO had permanently taken a portion of the Property =
without=20
payment of just compensation. METRO filed a no-evidence and =
traditional=20
motion for summary judgment on all of appellants' causes of =
action.=20
Appellants filed a response and a motion for the determination of =
the=20
issue of impairment of access. Appellants attached the affidavit =
of Burris=20
to their motion. Appellants also filed a cross-motion for summary=20
judgment. METRO filed objections to Burris's affidavit on the =
ground that=20
it was not based on personal knowledge. The trial court granted =
METRO's=20
no-evidence and traditional motions for summary judgment in part =
and=20
denied appellants' motion for partial summary judgment in part. =
The trial=20
court sustained METRO's objections to paragraphs 3 and 6 of =
Burris's=20
affidavit. The trial court's order states that METRO is granted =
summary=20
judgment as to: a. Plaintiffs' claim that, =
following the=20
completion of the construction of the METRORail project, access to =
the=20
property located at the northeast corner of San Jacinto Street and =
Wichita=20
Avenue (the "Property") is materially and substantially=20
impaired. b. Plaintiffs' permanent taking =
claims=20
associated with: (i) the relocation of power lines across the =
southwest=20
corner of the Property; (ii) the alleged encroachment of the =
access drive=20
from the Property onto San Jacinto Street; and (iii) the alleged=20
encroachment of the grass strip between the parking lot on the =
property=20
and the sidewalk in the San Jacinto Street =
right-of-way; . . . d. The taking claims asserted =
by=20
Plaintiff Wheelchair & Scooter Express, L.L.C. The trial court granted in part =
appellants' motion for partial summary judgment but otherwise =
denied their=20
motion.
Standard of=20
Review We review a trial court's =
summary=20
judgment de novo. Valence Operating Co. v. Dorsett, 164 =
S.W.3d=20
656, 661 (Tex. 2005); Provident Life Accident Ins. Co. v. =
Knott,=20
128 S.W.3d 211, 215 (Tex. 2003). When reviewing a summary =
judgment, we=20
take as true all evidence favorable to the nonmovant, and indulge =
every=20
reasonable inference and resolve any doubts in the nonmovant's =
favor.=20
Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at =
215;=20
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 =
(Tex. 1997).=20
Under Texas Rule of Civil Procedure 166a(c), the party moving for =
summary=20
judgment bears the burden of showing that no genuine issue of =
material=20
fact exists and that it is entitled to judgment as a matter of =
law. Tex.=20
R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215-16. When =
both=20
parties move for summary judgment and the trial court grants one =
motion=20
and denies the other, the reviewing court considers the summary =
judgment=20
evidence presented by both sides, determines all questions =
presented, and=20
if it determines that the trial court erred, renders the judgment =
the=20
trial court should have rendered. See Dorsett, 164 S.W.3d =
at 661;=20
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, =
872=20
(Tex. 2000). Inverse=20
Condemnation In their first three issues, =
appellants=20
argue that the trial court erred in granting summary judgment on =
(1)=20
appellants' claim that the Property was materially and =
substantially=20
impaired, (2) appellants' permanent taking claims associated with =
Metro's=20
taking of appellants' ingress easement appurtenant from San =
Jacinto into=20
the Property, and (3) the claim contending that METRO made a =
compensable=20
taking of the ingress easement appurtenant to appellants' Property =
from=20
San Jacinto Street because the rulings are contrary to the summary =
judgment evidence. A governmental unit exercises =
its power=20
of eminent domain through the process referred to as condemnation. =
See=20
City of Houston v. Boyle, 148 S.W.3d 171, 178 (Tex. =
App.--Houston=20
[1st Dist.] 2004, no pet.). Condemnation is the procedure by which =
the=20
sovereign exercises its right to take property of a private owner =
for=20
public use, without consent, upon the payment of just =
compensation.=20
Id.; A.C. Aukerman Co. v. State, 902 S.W.2d 576, =
578=20
(Tex. App.--Houston [1st Dist.] 1995, writ denied). "Inverse =
condemnation=20
occurs when (1) a property owner seeks (2) compensation for (3) =
property=20
taken for public use (4) without process or a proper condemnation=20
proceeding." Boyle, 148 S.W.3d at 178; A.C. Aukerman=20
Co., 902 S.W.2d at 577. A landowner whose property has =
been=20
taken, damaged, destroyed for, or applied to public use without =
adequate=20
compensation may bring an inverse condemnation claim pursuant to =
article=20
I, section 17 of the Texas Constitution. Boyle, 148 =
S.W.3d at=20
177. The constitution provides in part, "No person's property =
shall be=20
taken, damaged or destroyed for or applied to public use without =
adequate=20
compensation being made, unless by the consent of such person. . . =
." Tex.=20
Const. art. I, =A7 17; Boyle, 148 S.W.3d at 177; see =
also Tex.=20
Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 148 =
(Tex.=20
App.--Austin 1998, no pet.) ("An 'inverse condemnation' proceeding =
is the=20
avenue of relief available when property has been taken or damaged =
for=20
public use without compensation or a proper condemnation =
proceeding, and=20
the property owner wishes to recover compensation for his loss."). =
The=20
Texas Constitution therefore waives governmental immunity from =
suit and=20
liability "for the taking, damaging or destruction of property for =
public=20
use." Steele v. City of Houston, 603 S.W.2d 786, 791 =
(Tex. 1980);=20
Boyle, 148 S.W.3d at 177. "To demonstrate that a =
constitutional=20
inverse condemnation has occurred, the landowner must show that =
(1) the=20
State intentionally performed certain acts in the exercise of its =
lawful=20
authority (2) that resulted in a 'taking' of property (3) for =
public use."=20
Boyle, 148 S.W.3d at 177; see also Steele, 603 =
S.W.2d at=20
791-92; City of Houston v. Northwood Mun. Util. Dist. No. =
1, 73=20
S.W.3d 304, 308 (Tex. App.--Houston [1st Dist.] 2001, pet.=20
denied). To be compensated for =
impairment of=20
access, a landowner must prove he suffered a material and =
substantial=20
impairment of access to his land. State v. Heal, 917 =
S.W.2d 6, 10=20
(Tex. 1996); see also City of Waco v. Texland, 446 S.W.2d =
1, 2=20
(Tex. 1969). In order to show material and substantial impairment, =
the=20
property owner must establish (1) a total temporary restriction of =
access,=20
(2) a partial permanent restriction of access, or (3) a partial =
temporary=20
restriction of access due to illegal or negligent activity. =
State v.=20
Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); City of Austin =
v.=20
Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986). The "material =
and=20
substantial test" acknowledges situations in which the access for =
which=20
the property was specifically intended is rendered unreasonably =
deficient=20
even though normal access remains reasonably available. =
Heal, 917=20
S.W.2d at 10. It is a question of law whether =
there is=20
a "material and substantial impairment" to the remainder as a =
direct=20
result of a taking. Schmidt, 867 S.W.2d at 777; =
Precast=20
Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 =
(Tex.=20
App.--Houston [14th Dist.] 1996, no writ). We review questions of =
law de=20
novo and without deference to the lower court's conclusion. =
Heal,=20
917 S.W.2d at 9; Precast Structures, 942 S.W.2d at 636. =
Before=20
trial, the court must determine whether access rights have been =
materially=20
and substantially impaired and control the admission of trial =
evidence=20
accordingly. Heal, 917 S.W.2d at 9. Before METRORail, appellants =
had two=20
driveways from San Jacinto for ingress and egress into the =
Property. After=20
construction, appellants have one driveway that provides egress =
from the=20
Property onto San Jacinto and another driveway that provides both =
ingress=20
and egress from Wichita, immediately around the corner from the =
former=20
entrance on San Jacinto. On appeal, appellants argue that this new =
configuration materially and substantially impairs the access to =
their=20
property. Appellants rely on evidence =
that (1)=20
their Property fronts on San Jacinto Street and has as its address =
4905=20
San Jacinto Street, at which appellants' business has operated=20
continuously since 1993; (2) prior to the construction of the =
METRO=20
railroad, Plaintiffs had fifty-five feet of driveway providing =
ingress and=20
egress on San Jacinto, a major four-lane thoroughfare that is =
traveled by=20
at least 10,000 vehicles per day; (3) there is now no ingress to =
the=20
Property from San Jacinto as it is completely blocked by the =
railroad; (4)=20
there is now only a twenty-foot-wide driveway that can be used =
only for=20
egress from the Property onto San Jacinto during periods when a =
METRO=20
train is not approaching; (5) the only ingress to the Property for =
customers is from a thirty foot driveway that fronts on Wichita =
Street, a=20
minor two-lane cross street that has 97.5% less traffic on it than =
San=20
Jacinto; (6) it is now illegal to turn right (east) off of San =
Jacinto=20
onto Wichita when a train is approaching from the south to the =
north; and=20
(7) it is also impossible to turn right (east) off of San Jacinto =
onto=20
Wichita and then to the left onto Plaintiffs' Property if even one =
vehicle=20
has stopped at the light facing west at the intersection of San =
Jacinto=20
and Wichita, as it blocks the driveway. Appellants also argue that =
their=20
Property is the only retail business that fronts on and has an =
address on=20
San Jacinto that has had its frontage ingress totally blocked by =
the rail=20
line. METRO argues that there has not =
been a=20
material and substantial impairment of access and points to other =
evidence=20
in the record. Michelle Solomon, an investigator hired by METRO, =
submitted=20
an affidavit in which she testified from her visits to the =
Property that=20
(a) vehicles can easily access and visit the Property from Wichita =
Street;=20
(b) there is ample room in the Property's front parking lot to =
allow=20
visitors to enter, park in, and exit the parking lot; and (c) most =
vehicles exiting the Property exit onto Wichita Street. =
Although appellants argue that =
when a car=20
has stopped on Wichita at the corner of Wichita and San Jacinto at =
the=20
stoplight, cars turning from San Jacinto onto Wichita cannot enter =
the=20
Property, we observe that in other places in the record appellants =
have=20
emphasized that very few cars travel on Wichita. This fact lessens =
appellants' complaint regarding a material and substantial =
impairment of=20
access by the moving of the entrance to Wichita. Because both parties rely =
primarily on=20
the same cases we analyze them in turn. Appellants rely on=20
DuPuy, In DuPuy, prior to =
construction=20
of a viaduct, DuPuy's property fronted and had full access to =
South 17th=20
Street and sided with an alley connected to Franklin Avenue. 396 =
S.W.2d=20
103, 104 (Tex. 1965). After the City of Waco constructed the =
viaduct,=20
South 17th Street became fourteen feet above DuPuy's property and =
a=20
concrete support was placed beneath the viaduct. The end result of =
the=20
construction was that DuPuy's property was in a cul-de-sac. =
Id.=20
at 110. The supreme court stated, The determination in a given =
situation of=20
whether or not there has occurred a compensable damaging under the =
Constitution is to be approached from the premise that an access =
right is=20
an easement judicially recognized as appurtenant to tangible =
property to=20
protect the benefits of private ownership. This should not be =
extended=20
to recognize a compensable damaging where a property owner has =
reasonable=20
access to his property after construction of the public =
improvement. The=20
benefits of private ownership have been assured so long as there =
is=20
reasonable access and an action for compensation under the =
Constitution=20
will not lie where such is the case. Id. at 109 (emphasis =
added). The=20
supreme court concluded that the construction of the viaduct had =
deprived=20
DuPuy of reasonable access to his property. DuPuy, 396 =
S.W.2d at=20
110. In Texland, the access =
to=20
Texland's loading docks was partially blocked by piers supporting =
the=20
City's viaduct at issue in DuPuy. 446 S.W.2d 1, 4 (Tex. =
1969). It=20
became difficult, but not impossible, for trucks to maneuver in =
the area=20
in front of the docks. Id. The supreme court modified the =
inverse=20
taking rule as stated in DuPuy, stating that "property =
has been=20
damaged for a public use within the meaning of the Constitution =
when=20
access is materially and substantially impaired even though there =
has not=20
been a deprivation of all reasonable access[.]" Id. at 2. =
The=20
supreme court held there was a substantial and material impairment =
of=20
access that was compensable as a damaging of property for public =
use.=20
Id. at 4. In Marks, the supreme =
court held=20
that the facts established a diminishment of value of the property =
as a=20
result of a loss of access. Specifically, the court found, =
(1) The space in which to make =
the turn=20
from 'Old' Orleans Street onto Gilbert Street is so narrow that =
large=20
trucks, presumably of clients, cannot negotiate the turn; (2) the=20
remaining ten (10) foot lane (Gilbert Street) is so narrow that =
(a) a=20
vehicle could not travel down the street if another vehicle chose =
to park=20
there, and (b) a vehicle could not safely travel down the street =
if a=20
train were on the south track; and (3) since 'Old' Orleans remains =
one way=20
north, the driver of a vehicle, too large to make an exit on =
Gilbert=20
Street, would not be able to turn such vehicle and legally exist =
south on=20
'Old' Orleans. City of Beaumont v. =
Marks, 443=20
S.W.2d 253, 256 (Tex. 1969). We disagree with appellants =
that the=20
foregoing cases control the outcome here. Each case is factually=20
distinguishable. In DuPuy, the plaintiff's property ended =
up in a=20
cul-de-sac with complete access to the frontage road blocked, =
along with=20
decreased access as a result of a concrete support placed =
underneath the=20
viaduct. Here, appellant's property is not in a cul-de-sac and no=20
permanent obstructions preclude access to the Property. Likewise, =
in=20
Texland, the impairment of access was much more severe =
than here.=20
Specifically, large piers that supported the viaduct blocked =
access to=20
plaintiff's property. Although not impossible for trucks to =
navigate=20
through the piers, it was much more difficult. Here, appellants do =
not=20
argue on appeal that METRO impaired its access to the Property by =
way of=20
an obstruction such as that used in Texland. Finally, in=20
Marks, the Court had specific evidence showing that =
construction=20
of a railroad grade separation project made it so that large =
trucks,=20
presumably clients, could not access the plaintiff's property. =
Here,=20
appellants presented no evidence showing that their clients could =
not=20
access the Property. We agree with appellants that =
the=20
Property has been impaired, but impairment alone is insufficient =
for a=20
compensable taking. Rather, appellants must show that the =
impairment of=20
access is material and substantial. See Texland, 446 =
S.W.2d at 2.=20
The Texas Supreme Court has made it clear that we do not focus =
only on the=20
issue of the closed access point without considering remaining =
access=20
points. City of San Antonio v. TPLP Office Park =
Props.,=20
218 S.W.3d 60, 66-67 (Tex. 2007); Archenhold Auto. Supply Co. =
v. City=20
of Waco, 396 S.W.2d 111, 114 (Tex. 1965). Thus, although the =
rules=20
stated from the foregoing supreme court cases remain valid, we =
review=20
other cases that are more factually analogous. On the same date that DuPuy =
was=20
decided, the supreme court also issued Archenhold Automobile =
Supply=20
Company v. City of Waco, which concerned a property across =
the street=20
from DuPuy. 396 S.W.2d 111 (Tex. 1965). In Archenhold, =
the court=20
found that construction of the viaduct did not deprive Archenhold =
of=20
reasonable access. The court reached this conclusion because =
Archenhold,=20
unlike DuPuy, fronted Franklin Avenue, whereas DuPuy fronted on =
and had=20
access to South 17th Street only. Id. at 112. The court =
adopted=20
the rule from the court of New York that "one or two public =
streets may be=20
closed without compensation to an abutting landowner if the =
remaining=20
street furnishes suitable means of access." Id. at 114 =
(citing=20
Egerer v. New York Central & Hudson River R.R. Co., =
130 N.Y.=20
108, 29 N.E. 95 (1891)). More recently, the Texas =
Supreme Court=20
considered a material and substantial taking in City of San =
Antonio v.=20
TPLP Office Park Properties. See 218 S.W.3d 60 (Tex. =
2007).=20
In TPLP, a business park fronted the frontage road of =
I-10 and=20
abutted Freiling Drive, a residential street. The business park =
had=20
entrances along I-10 in addition to a driveway off of Freiling. =
The court=20
noted that if Freiling were closed, the business park would still =
have at=20
least six points of egress and ingress along the I-10 access road =
in front=20
of the business park. The court held that access to the business =
park=20
would not be materially and substantially impaired by closure of =
access to=20
Freiling because another way to access the property remained. The =
court,=20
relying on Archenhold and State v. Wood Oil=20
Distrib., Inc., noted that "[c]losing an access point and =
merely=20
causing diversion of traffic or circuity of travel does not result =
in a=20
compensable taking." Id. at 66-67 (citing Wood =
Oil, 751=20
S.W.2d 863, 865 (Tex. 1988)). In Interstate Northborough=20
Partnership v. State, the State widened a frontage road in =
front of=20
an office building, resulting in one of the five driveways that =
led to the=20
building being closed for safety reasons. 66 S.W.3d 213, 217, 224 =
(Tex.=20
2001). In addressing damages for unsafe access and the cost to =
cure, the=20
court held, as a matter of law, that the trial court erred by =
finding a=20
material and substantial impairment of access to the plaintiff's =
remainder=20
property when "[a]fter the condemnation, reasonable access to=20
[plaintiff's] property remained even though one of the five =
driveways to=20
the property was closed for safety reasons." Id. at 224 =
(citing=20
Heal, 917 S.W.2d at 10). Finally, in Heal, the =
State of=20
Texas condemned 436 square feet of the plaintiff's residential lot =
in=20
order to widen Southwestern Boulevard where that street approached =
its=20
intersection with North Central Expressway in Dallas. 917 S.W.2d =
at 7. The=20
State also erected a barrier wall adjacent to the residential area =
along=20
the southbound service lane of the Expressway between Southwestern =
Boulevard and Lovers Lane to reduce noise affecting residents on =
the=20
interior streets. The interior streets that once fed onto the =
southbound=20
service road were closed off. Thus, for residents to access the=20
Expressway, they had to use local cross streets. The plaintiff's =
expert=20
offered evidence that "the new configuration might create some =
confusion,=20
be more hazardous, and result in more difficulty in turning left =
into=20
[their] driveway because of increased traffic and the bottleneck =
that=20
would form in front of their property." Id. at 11. The =
Texas=20
Supreme Court stated that although "this may be evidence of =
inconvenience,=20
it does not constitute material and substantial impairment." =
Id.=20
The Court also noted that in past impaired access cases there had =
been a=20
physical obstruction created by a public improvement whereas, in=20
Heal, the plaintiffs had alleged only that traffic would =
impair=20
their access. Id. The Court distinguished traffic from a =
physical=20
obstruction, noting that traffic would fluctuate and that, even if =
there=20
is congestion, "access is not materially and substantially =
denied." Because appellants still retain =
full=20
access to the Property from San Jacinto via Wichita, as well as =
egress=20
onto San Jacinto, we conclude that closure of appellants' entrance =
off of=20
San Jacinto did not amount to a material and substantial =
impairment.=20
See City of San Antonio, 218 S.W.3d at 66-67 ("Closing an =
access=20
point and merely causing diversion of traffic or circuity of =
travel does=20
not result in a compensable taking."); Heal, 917 S.W.2d =
at 11=20
(holding that plaintiff failed to show material and substantial=20
impairment). Accordingly, we conclude that appellants' claims are =
not=20
compensable. See City of San Antonio, 218 S.W.3d at 67; =
Wood=20
Oil, 751 S.W.2d at 865; Jordan v. Landry's Seafood =
Restaurant,=20
Inc., 89 S.W.3d 737, 743 (Tex. App.--Houston [1st Dist.] =
2002, pet.=20
denied) (holding no taking when "overall plan provides ample =
parking and=20
easy access to the property, and the restricting of traffic does =
not=20
materially and substantially impair [plaintiff] from entering the=20
property"). Because we conclude, as a =
matter of law,=20
that the impairment of access at issue here does not rise to the =
level of=20
material and substantial and therefore appellants' claims are not=20
compensable, we need not address appellants' fourth issue, which =
contends=20
that the trial court erred in granting METRO's motions for summary =
judgment on the claims asserted by WSE because WSE is not an =
independent=20
third party lessee, but rather is Burris's wholly owned business =
which has=20
an ownership interest that has been damaged by METRO's actions. =
Nor do we=20
need to address appellants' fifth issue, which contends that the =
trial=20
court erred in granting METRO's objections to paragraph numbers 9 =
and 10=20
of Burris's affidavit on the ground that the evidence is =
admissible and=20
that its exclusion in all probability resulted in the trial =
court's error=20
in granting METRO's motions for summary judgment and in denying=20
Plaintiffs' motion for partial summary judgment. We overrule appellants' first, =
second,=20
and third issues. We affirm the trial court's =
orders that=20
granted summary judgment in part for METRO. Evelyn V. Keyes Justice Panel consists of Justices =
Taft, Keyes,=20
and Alcala. 1. Burris=20
purchased the Property in 2000. Before purchasing the Property, =
Burris=20
leased the Property.=20
2. WSE pays rent to Burris on a =
month-to-month basis.=20
3. WSE has a parking lot in the rear (east =
side) of=20
the store, but that area is used exclusively for delivery =
vehicles, trash=20
pickup, and employee parking. The east side does not have a =
customer=20
entrance.=20
4. The trial court stated that "summary =
judgment is=20
granted as to Mr. Burris's claim regarding the encroachment of the =
pedestrian crossing signal pole near the southwest corner of the =
Property,=20
the Court finding that there was a compensable taking from the =
date the=20
pedestrian crossing signal pole was constructed through the date =
the pole=20
was relocated off of the Property. Plaintiffs' Motion is otherwise =
DENIED." METRO has not appealed the partial summary judgment in =
Burris's=20
favor.=20
5. DuPuy v. City of Waco, 396 =
S.W.2d 103=20
(Tex. 1965).=20
6. City of Waco v. Texland Corp., =
446 S.W.2d=20
1 (Tex. 1969).=20
7. City of Beaumont v. Marks, 443 =
S.W.2d 253=20
(Tex. 1969).=20
8. The Heal court stated that it =
need not=20
hold that traffic could never materially and substantially impair =
access=20
such that a constitutional taking or damaging occurs.=20