Opinion
No. 14-09-00097-CV
Opinion filed June 15, 2010.
On Appeal from the 344th District Court, Chambers County, Texas, Trial Court Cause No. 21615-B.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
MEMORANDUM OPINION
Appellants, Betty Lou Gillespie, individually and as executor of the estate of Betty Gillespie, deceased; and Nelda Eppes, appeal from a grant of summary judgment favoring appellee, Chambers County, Texas, on appellants' retaliation cause of action. Appellants asserted in their petition that Chambers County violated their constitutional rights by issuing two nuisance abatement orders against property appellants owned in retaliation for appellants' having contested a condemnation action against the same property. In three issues on appeal, appellants contend that the trial court erred in granting Chambers County's no-evidence motion for summary judgment. We reverse and remand for further proceedings in accordance with this opinion.
Background
In 2004, as part of an airport expansion project, Chambers County filed a petition for condemnation against a 2.5007 acre tract of land that appellants had inherited. Appellants actively contested the condemnation action in the trial court, including filing an objection to the inclusion of a portion of the property containing a house that reportedly had once been inhabited by appellants' parents. Chambers County thereafter amended their pleadings in the condemnation action to omit the portion of the property surrounding the house and issued two nuisance abatement orders regarding that portion of the property. Appellants subsequently filed a counterclaim in the condemnation action, alleging that Chambers County violated their civil rights by instituting nuisance proceedings in retaliation for their opposition to the condemnation proceedings. Specifically, appellants asserted that Chambers County had violated their right to freedom of speech, their right to petition the government for redress of grievances, and their right of access to the courts. Pursuant to the federal Civil Rights Act of 1964, appellants sought monetary damages and attorney's fees. 42 U.S.C. § 1983.
The original petition in this condemnation action, filed in October 2004, named the City of Anahuac as plaintiff; however, Chambers County was substituted in as plaintiff in subsequent amended petitions, beginning in November 2004.
In June 2008, the trial court severed the retaliation counterclaim from the condemnation action. Reportedly, the parties ultimately settled the condemnation action. With regard to the severed retaliation claim, the only claim involved in this appeal, the court considered and granted Chambers County's no-evidence motion for summary judgment. In its motion, Chambers County began its analysis by asserting that appellants' claims "fail[ed] to state a cause of action," but "it appears that [appellants] are claiming that their civil rights were somehow violated when Chambers County sent the two nuisance abatement letters." This assertion was echoed during the hearing on the motion when Chambers County's attorney stated:
So what we are here about today is a motion for summary judgment to get rid of the civil rights claim that Nelda Epps [sic] and Betty Lou Gillespie filed against the County. The basis for the motion is that there is no evidence at all that the County somehow violated the Gillespies' or the Epps' [sic] constitutional rights. I'm not real sure what the constitutional right is, number one; but there is no evidence that any such violation or alleged violation caused any damages.
In the "Argument" section of its motion, Chambers County asserted that appellants could produce no evidence that (1) "the subject property is in compliance with the nuisance laws"; (2) appellants "have a `civil right' to provide them some sort of immunity from the nuisance laws"; (3) there was a link between the condemnation proceeding and the nuisance violation; (4) "the cause of the issuance of the nuisance abatement letters is related, in any way, to the condemnation proceeding"; and (5) appellants "suffered any damages as a result of the alleged retaliation."
In their response to the motion, appellants contended that the motion was insufficient because as a no-evidence motion, it failed to identify which elements of appellants' cause of action lacked supporting evidence. Appellants further explained their claims in more detail and attached evidence. The evidence included transcripts from depositions of Chambers County personnel, which appellants contended established that the nuisance abatement orders were instituted as a result of appellants' having actively contested the condemnation proceedings. Appellants additionally presented evidence, in the form of an affidavit by Eppes, that Chambers County's conduct in initiating the nuisance proceedings "deterred" appellants from "going forward with [their] opposition to the condemnation of [their] property." Appellants further argued that (1) the actual condition of the property was irrelevant to whether retaliation occurred; (2) deprivation of a constitutional right is sufficient injury to maintain a lawsuit under section 1983, even in the absence of monetary damages; and (3) regardless, appellants did in fact suffer monetary damages in the form of attorney's fees expended to protect their civil rights. The trial court granted Chambers County's motion without specifying the grounds therefor.
Sufficiency of the Motion
In both their response to the motion and their appellate briefing, appellants challenged the sufficiency of Chambers County's motion for summary judgment. Under Texas procedural rules, a defendant may not predicate a motion for summary judgment on the plaintiff's failure to state a cause of action without first having filed special exceptions pointing out this deficiency in the plaintiff's pleadings. See, e.g., Rodriguez v. U.S. Sec. Assocs., Inc., 162 S.W.3d 868, 874 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Under Rule 166a(i) of the Texas Rules of Civil Procedure, however, after adequate time has passed for discovery, a defendant may move for summary judgment on the ground that there is no evidence of one or more essential elements of plaintiff's cause or causes of action. Tex. R. Civ. P. 166a(i). The motion must state the elements for which there is no evidence. Id. Specificity is required; a motion that is conclusory or that generally alleges a lack of evidence supporting the plaintiff's case will not support entry of summary judgment. Id. cmt. — 1997.
In the motion and in the hearing on the motion, counsel for Chambers County expressed the belief that appellants had not stated a recognized cause of action in their pleadings. Instead of filing special exceptions against appellant's petition on that basis, however, Chambers County filed a no-evidence motion for summary judgment. Because Chambers County apparently did not recognize the cause of action appellants asserted, it failed to identify in its motion the specific elements on which appellants could present no evidence. Instead, Chambers County generally challenged the existence of evidence to support various concepts it gleaned from appellants' petition. In short, the motion violated the requirement of Rule 166a(i) that it specify the element or elements of the nonmovants' claims which lack evidentiary support. See, e.g., Gripping Eyewear, Inc. v. Dietz, No. 01-09-00034-CV, 2010 WL 1948323, at *4 (Tex. App.-Houston [1st Dist.] May 6, 2010, no pet. h.) (mem. op.) (holding that movant's failure to state any of the elements of nonmovant's counterclaims, and specifically the element or elements supported by no evidence, rendered motion inadequate); Dibco Underground, Inc. v. JCF Bridge Concrete, Inc., 03-09-00255-CV, 2010 WL 1413071, at *5-6 (Tex. App.-Austin April 8, 2010, no pet. h.) (mem. op.) (holding plaintiff's motion was insufficient because it did not identify specific elements of defendant's numerous affirmative defenses as lacking evidentiary support); Thomas v. Omar Invs., Inc., 156 S.W.3d 681, 685 (Tex. App.-Dallas 2005, no pet.) (reversing grant of no-evidence summary judgment because motion failed to specify any elements as lacking evidentiary support but instead made no-evidence argument on basis of affirmative defense); see also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310-11 (Tex. 2009) (holding motion was sufficient where it "unambiguously set out the elements of [plaintiff's] claim and [defendant's] belief that there was no evidence" on specific elements). Because Chambers County's motion was deficient, the trial court erred in granting summary judgment on the basis of the motion. See, e.g., Gripping Eyewear, 2010 WL 1948323, at *4.
Chambers County's motion is clearly and exclusively a no-evidence motion under Rule 166a(i). The phrase "no evidence" appears in the motion's heading, in the text in reference to the motion itself, and in each stated ground for summary judgment. See generally Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (explaining that "motion that does not clearly and unambiguously state that it is being filed under Rule 166a(i)" will be construed as a traditional motion). Moreover, no issues raised in the motion appear to be traditional grounds for summary judgment.
In their appellate briefing, the parties dispute to some extent the elements of a section 1983 retaliation claim under the circumstances of this case. The no-evidence grounds listed in Chambers County's motion do not specifically match the elements as set forth by either party on appeal.
In Timpte, the Texas Supreme Court explained that the requirements of specificity in Rule 166a(i) are analogous to the fair notice pleading requirements contained in Rules 45(b) and 47(a). 286 S.W.3d at 311. As explained in the text of this opinion, we hold that Chambers County's lack of specificity in its motion resulted in a lack of fair notice of the grounds on which it sought summary judgment.
We sustain appellants' three issues on appeal, reverse the trial court's judgment, and remand for further proceedings in accordance with this opinion.