Opinion
No. 04-10-00836-CV
03-06-2013
Mei-Chiao Chen WU, Richard Hsu, Maya Hsu and Tzyy-Wen-Hzy, Appellants v. CITY OF SAN ANTONIO, Appellee
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-17146
Honorable David A. Berchelmann, Jr., Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
REVERSED AND REMANDED
Appellants, Mei-Chiao Chen Wu, Richard Hsu, Maya Hsu, and Tzyy-Wen-Hzy ("Appellants"), filed an inverse condemnation takings claim against Appellee, City of San Antonio ("City") concerning an apartment building which the City demolished. The trial court granted final summary judgment in favor of the City, and Appellants appeal. We reverse and remand.
BACKGROUND
Appellants were or had been owners or lienholders of property located at 2202 Vance Jackson, San Antonio, Texas ("the property") which was purchased in a tax foreclosure sale in 1995. The property included a two story, twenty unit brick apartment building, and an accessory structure, a single story carport and storage building (collectively, "the buildings"). In September 2005, the City brought the property before its Dangerous Structure Determination Board ("DSDB"). The DSDB determined the property was a public nuisance in violation of Chapter 6, Article VIII, Section 6-156 of the City of San Antonio City Code and ordered the demolition of the buildings along with the filling of the pool. See Wu v. City of San Antonio, 216 S.W.3d 1, 3 (Tex. App.—San Antonio 2006, pet. denied).
Appellants appealed the DSDB's orders pursuant to Sec. 6-173 of the city code and Chapter 214 of the Texas Local Government Code, under which the trial court was required to hold a hearing and conduct a substantial evidence review of the DSDB's decision. Id. In addition to this appeal, Appellants sought a temporary injunction to prevent the demolition of the buildings pending the trial court's review of the demolition order. Id. The trial court granted Appellants' temporary restraining order, pending a hearing on Appellants' application for a temporary injunction. Id.
On November 18, 2005, the trial court heard and denied Appellants' application for temporary injunction and dissolved the temporary restraining order. The trial court subsequently filed its findings of fact and conclusions of law. Appellants appealed the denial of this temporary injunction to this court. We held substantial evidence supported the DSDB's demolition order and affirmed the trial court's denial of the temporary injunction. Wu, 216 S.W.3d at 7. After the Texas Supreme Court denied certiorari, the City demolished the buildings on August 30, 2007.
After the appeal, Appellants amended their original petition to assert an inverse condemnation takings claim for damages for the destruction of the buildings without just compensation. The City moved for summary judgment asserting that, under the doctrine of collateral estoppel, the DSDB's finding of public nuisance and the trial and appeals courts' affirmance of that finding conclusively established the City's public nuisance defense to Appellants' takings claim. In its reply in support of its motion for summary judgment, the City also raised the affirmative defense of consent. The trial court granted the City's motion for final summary judgment, and Appellants filed this appeal.
STANDARD OF REVIEW
When the trial court does not specify the grounds on which it granted summary judgment, we will affirm the judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Acc. Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); see State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993) (when multiple grounds for summary judgment are raised and order does not specify grounds on which judgment was granted, appellant must negate all grounds on appeal). We review a summary judgment de novo. Provident Life, 128 S.W.3d at 215. We take as true all evidence favorable to the nonmovant, and we indulge all reasonable inferences and resolve any doubts in the nonmovant's favor. Id.
In a traditional motion for summary judgment, the movant must establish that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Co. Household Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant has the burden to conclusively prove all of the elements of an affirmative defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
D ISCUSSION
The trial court did not specify the grounds on which it granted summary judgment, so on appeal, Appellants must negate all grounds the City raised. See State Farm, 858 S.W.2d at 381. Appellants assert in six issues that the City failed to conclusively establish all elements of its affirmative defenses and Appellants raised fact issues as to each: public nuisance, collateral estoppel, and consent. Appellants also contend that City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) is dispositive of the public nuisance and collateral estoppel issues in this case. We agree that Stewart is dispositive of those issues.
Public Nuisance and Collateral Estoppel In Stewart, the court noted that "takings suits" are fundamentally constitutional and must ultimately be decided by a court, rather than an agency, because agencies lack the ultimate power of constitutional construction. Id. at 568. Further, because "all property is held subject to the valid exercise of the police power," the government commits no taking when it abates what is, in fact, a public nuisance. Id. at 569. Moreover, "nuisance determinations must ultimately be made by a court, not an administrative body, when the property owner contests the administrative finding." Id. The court held that the administrative board's nuisance determination, and the trial court's affirmance of that determination under a substantial evidence standard, were not entitled to preclusive effect in the "takings suit"; the trial court must consider the issue de novo. Id. at 580-81.
The City claims that both the DSDB's and the courts' determinations preclude relitigation of the public nuisance issue in Appellants "takings suit." The DSDB public nuisance determination does not have preclusive effect because a court, not an agency, must decide that constitutional issue. See id. at 569. The judicial determinations were made under substantial evidence review. Wu, 216 S.W.3d at 3, 4 (reviewing court, whether trial or appellate court, reviews agency's demolition order based on substantial evidence rule). Accordingly, those judicial determinations do not have preclusive effect. Stewart, 361 S.W.3d at 580-81. The City presented no other summary judgment evidence to establish public nuisance and failed to establish that the buildings constituted a public nuisance. The City did not conclusively prove all the elements of its public nuisance and collateral estoppel affirmative defenses.
The City asserts Stewart, Patel, and Como in support of its contention that the trial court properly granted summary judgment because Appellants did not file their takings claim in the appeal from the DSDB's nuisance determination. City of Beaumont v. Como, 381 S.W.3d 538, 540 (Tex. 2012) (per curiam) (takings claim dismissed because nuisance determination never appealed); Patel v. City of Everman, 361 S.W.3d 600, 601 (Tex. 2012) (per curiam) (later-filed takings claim barred where nuisance determination nonsuited); Stewart, 361 S.W.3d at 579. The City does not direct us to, and we have not found in the record, where, if at all, the City raised this ground for summary judgment in the trial court. We conclude the City did not properly raise it. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (motion for summary judgment must itself expressly present grounds upon which it is made; motion must stand or fall on grounds expressly presented in motion); TEX. R. CIV. P. 166a(c) ("The motion for summary judgment shall state the specific grounds therefor.") Accordingly, this summary judgment ground is not properly before this court and we do not consider it.
We note that, unlike in Patel and Como, Appellants filed their takings claim by amending their pleadings in their original appeal of the DSDB's nuisance determination, after the denial of their application for temporary injunction was affirmed on appeal, and shortly after the City demolished the buildings.
Consent In its third ground for summary judgment, the City raised the affirmative defense of consent and attached a Rule 11 agreement in which, it asserts, Appellants consented to the demolition of the buildings. Appellants assert on appeal that this ground and the evidence allegedly supporting it were not timely raised in the trial court and that fact issues exist precluding summary judgment on this ground.
The City asserted its consent defense and evidence for the first time six days before the summary judgment hearing in its reply to Appellants' summary judgment response. The record reflects no request by the City for leave to late file this reply or evidence. Appellants allegedly filed an objection and motion to strike the reply, but it is not in the record. The final summary judgment provided a place for the trial court to indicate whether it "DID / DID NOT consider Defendant's Paragraph II of its Reply, i.e., its consent argument" but the court did not indicate what action it took. The judgment further provides "[a]fter considering Defendant City of San Antonio's Motion for Final Summary Judgment, the pleadings, the response, the reply, Plaintiff's objection to the reply, affidavits, and other evidence on file, the Court GRANTS Defendant's Motion for Final Summary Judgment." (Emphasis added).
A motion for summary judgment shall state the specific grounds therefor and, except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. TEX. R. CIV. P. 166a(c). When a movant, without leave of court, files summary judgment evidence less than twenty-one days before a summary judgment hearing, a presumption attaches that the trial court did not consider the late-filed evidence. Alaniz v. Hoyt, 105 S.W.3d 330, 339 (Tex. App.— Corpus Christi 2003, no pet.) (citing Vasquez v. Carmel Shopping Ctr. Co., 777 S.W.2d 532, 535 (Tex. App.—Corpus Christi 1989, writ denied)); see Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (summary judgment response). A trial court may accept late-filed summary judgment evidence, but it must affirmatively indicate that it accepted or considered that evidence. SP Terrace, L.P. v. Meritage Homes of Tex., L.L.C., 334 S.W.3d 275, 281-82 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Stephens v. Dolcefino, 126 S.W.3d 120, 133-34 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)). If an order does not exist in the record indicating the court granted leave to untimely file evidence, then we presume that the trial court did not consider the evidence. Id. Here, there is no order in the record that indicates the court granted leave to untimely file the reply and evidence. The final summary judgment indicates the court considered both the reply and Appellants' objections to it. The reply made arguments in addition to consent which the court could have considered and this provision of the judgment is not an affirmative indication that the court accepted and considered the late-filed consent ground for summary judgment. See SP Terrace, 334 S.W.3d at 281-82. The presumption that the trial court did not consider the late-filed evidence was not rebutted and the consent summary judgment ground and evidence was not properly before the trial court. See SP Terrace, 334 S.W.3d at 281-82; Alaniz, 105 S.W.3d at 339. We decline to consider that ground or evidence allegedly supporting it. See Tex. R. Civ. P. 166a(c) (issues not expressly presented to trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal). Consequently, the consent ground does not support the granting of summary judgment.
We do not reach nor do we express an opinion on the merits of this consent claim.
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CONCLUSION
Appellants demonstrated that the City did not meet its burden in the trial court to conclusively prove all elements of its asserted affirmative defenses, and it was not entitled to judgment as a matter of law. Appellants thus negated each of the City's asserted grounds for summary judgment and established that the trial court erred in granting final summary judgment. We therefore reverse the judgment and remand this cause to the trial court.
Luz Elena D. Chapa, Justice