Anthony Pizzitola and Lydia Inez Bilton v. Houston Independent School District--Appeal from County Civil Court at Law No 3 of Harris County

NUMBER 13-05-249-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ANTHONY PIZZITOLA AND LYDIA INEZ BILTON, Appellants,

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee.

On appeal from the County Civil Court at Law No. 3

of Harris County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Justice Castillo

 

Appellee, Houston Independent School District ("HISD"), initiated the underlying condemnation proceeding in November 2002 to acquire title to property of appellants, Anthony Pizzitola and Lydia Inez Bilton ("Pizzitola"), in order to obtain additional space and construct buildings for an HISD school. The trial court granted a traditional motion for summary judgment in favor of HISD, severed Pizzitola's declaratory judgment action to repurchase the property, and entered judgment awarding the property to HISD and compensation to Pizzitola. Pizzitola's motion for new trial was overruled by operation of law and this appeal ensued. We affirm the judgment as modified. Tex. R. App. P. 43.2(b).

I. Background

Beginning in 1997, HISD conducted a comprehensive assessment of its various facilities to determine repair or replacement needs. It concluded that Gregory Lincoln Education Center ("Gregory Lincoln"), a fine arts magnet school for kindergarten through eighth grade students ("K-8"), required in excess of $7,000,000 in repairs. A follow-up study in 2002 confirmed the needs for extensive repairs, which by then exceeded $10,000,000 and approached costs for new construction. HISD also determined that Gregory Lincoln, originally designed as a junior/senior high school, had several functional deficiencies and did not well serve the needs of its K-8 student body. It had insufficient space for either athletic activities or parking;[1] square footage for the entire campus was inadequate and considerably less than that of other schools.

 

In 1998, HISD voters approved a large bond package for renovation or reconstruction of various HISD facilities. Evidence reflected that after all projects originally planned for that bond program were completed, some monies were left over and available to address the next list of priorities. These included the need for additional space to expand the Gregory Lincoln school campus. In September 2000 and April 2001, the HISD Board of Trustees authorized negotiations with various property owners, including Pizzitola, to acquire additional land next to Gregory Lincoln.[2] Contemporaneously, HISD explored efforts to use an expanded Gregory Lincoln campus to also construct a new building for HISD's magnet High School for Performing and Visual Arts ("HSPVA").[3] In 2002, HISD voters approved an additional bond package, a portion of which was earmarked for construction of an entirely new Gregory Lincoln school building as well as a new HSPVA.

 

On September 13, 2001, the Board adopted a resolution authorizing exercise of the right of eminent domain and condemnation of Pizzitola's property, if negotiations failed, for the public purpose of securing "grounds for a public school building or buildings and appurtenances or additions thereto, and playgrounds in connection therewith." Negotiations to purchase Pizzitola's property failed, and the underlying condemnation suit to acquire his 0.2097 acre tract was initiated by HISD in November 2002. The trial court appointed Special Commissioners, who awarded title to HISD and assessed market value for the property at $317,000. Those monies were deposited into the registry of the court. An order and writ of possession to the property pendente lite issued in favor of HISD in January 2003.[4] Pizzitola filed a plea to the jurisdiction, alleging failure to exhaust all administrative remedies and challenging jurisdiction. Pizzitola also challenged sufficiency of the compensation award. HISD filed a traditional motion for partial summary judgment, attaching evidence to support its position that it had the authority to acquire the property, acquisition was for a public purpose, the decision to acquire was not arbitrary or capricious, and proper procedures had been followed. On June 5, 2003, the trial court granted the motion for partial summary judgment and ordered that any trial be limited to the question of the property's fair market value. Pizzitola responded by filing objections and exceptions, a petition for declaratory judgment of repurchase, an amended plea to the jurisdiction, and a motion for reconsideration. The motion to reconsider was denied. Following a trial, the jury returned a verdict on August 12, 2004, that the fair market value of the property was $375,000. HISD had also moved to sever Pizzitola's declaratory judgment action to repurchase the property. The order of severance was entered December 20, 2004, as was the final judgment, which found that all legal prerequisites for the condemnation were satisfied, the trial court had jurisdiction, title to the property vested in HISD, and Pizzitola was entitled to recover $375,000,[5] as well as pre- and post-judgment interest. All costs of court were assessed against HISD. Pizzitola filed a motion for new trial in January 2003, which was overruled by operation of law. This appeal ensued.

II. Issues on Appeal

Pizzitola raises five issues on appeal. In issues one, two, and three, he contends that the trial court erred in granting the motion for partial summary judgment because (1) all legal prerequisites for the condemnation had not been satisfied and the trial court lacked jurisdiction, (2) HISD had acted in an arbitrary and capricious manner, and (3) it was an abuse of discretion to conclude the taking was appropriate or necessary. In issues four and five, Pizzitola challenges the order severing his claim for declaratory judgment to repurchase the property because (1) the legal right to repurchase is inextricably intertwined with the issue of the taking, and (2) severance prevents entry of a judgment determining all title issues for the property.

III. Summary Judgment

A. Standard of Review

 

The function of a summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972); Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.BCorpus Christi 2003, no pet.). We review de novo a trial court's order granting a traditional motion for summary judgment. Alaniz, 105 S.W.3d at 345; Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.BCorpus Christi 2003, no pet.) (op. on reh'g). The movant bears the burden of showing both that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Alaniz, 105 S.W.3d at 345. In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non movant as true. Alaniz, 105 S.W.3d at 345. We make all reasonable inferences and resolve all doubts in favor of the non movant. Id. Summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. A non movant has the burden to respond to a traditional summary judgment motion if the movant conclusively (1) establishes each element of its cause of action or defense, or (2) negates at least one element of the non movant's cause of action or defense. Alaniz, 105 S.W.3d at 345; Ortega, 97 S.W.3d at 771.

B. Condemnation Procedures

 

Section 11.155 of the Texas Education Code provides that an independent school district may, by exercise of the right to eminent domain, acquire title to real property for the purpose of securing sites on which to construct school buildings, or for any other purpose necessary for the district. Tex. Educ. Code Ann. ' 11.155(a) (Vernon 1996). A district court may determine all issues, including the authority to condemn property and assess damages, in any proceeding for eminent domain involving a political subdivision of the state. Tex. Prop. Code Ann. ' 21.003 (Vernon 2004).

The procedure is initiated by filing a petition for condemnation which, among other things, must describe the property to be condemned and the purpose for which it is intended. Id. ' 21.012.[6] The trial court then appoints three disinterested property owners as special commissioners to assess the damages due to the condemnee. Id. ' 21.014. A hearing shall be scheduled by the commissioners at the earliest practical time. Id. ' 21.015. Up until the time of the special commissioners' award, the proceedings are considered to be administrative. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241-42 (Tex. 1984). A party is entitled to appeal the findings of the special commissioners by filing a written statement of objections and grounds therefor with the trial court. Tex. Prop. Code Ann. ' 21.018 (Vernon 2004). Upon the filing of objections, the award of the special commissioners is vacated and the administrative proceeding converts into a normal pending cause in the trial court, with the condemnor as plaintiff and condemnee as defendant. Id.; Amason, 682 S.W.2d at 242.

C. Jurisdiction of the Trial Court

 

By his first issue, Pizzitola contends that proper procedures were not followed prior to the filing of the petition because the school board failed to issue a resolution reflecting that the taking was for the convenience and necessity of the public and to serve a specific public use. In particular, he argues that because no designated bond funds were then available, HISD had no power "to take on the date of taking" and, consequently, the trial court had no jurisdiction over the matter.[7]

HISD's petition, filed in November 2002, reflects that a resolution, adopted at a duly noticed Board meeting, declared the necessity of acquiring by purchase or condemnation title to the 0.2087 acre parcel belonging to Pizzitola. The petition states that "the Property will be used for school purposes, i.e. additional space for school facilities and/or construction of buildings for an HISD school." HISD's motion for partial summary judgment attached the affidavit of Leonard Sturm, Deputy Superintendent for Finance and Business Services for HISD, setting forth the rationale for the acquisition, delineating and expanding on the public purposes to be served, detailing the decision process and deliberation of the HISD Board, and attaching a copy of the HISD resolution dated September 13, 2001. The resolution reflects:

WHEREAS, the Board of Education of the [HISD] has declared the necessity of acquiring by purchase or condemnation the fee simple title to the following described real property for a public purpose, namely, for grounds for a public school building or buildings and appurtenances and additions thereto, and playgrounds in connection therewith . . . .

The motion also attached the affidavit of Kevin Hoffman, a member of the HISD Board, confirming the Board's action on that date and that the decision was reached after full consideration and deliberation.

 

The description of intended use for the condemned property as being for "school purposes" is sufficiently specific to confer jurisdiction on the trial court. Lin v. Houston Cmty. Coll. Sys., 948 S.W.2d 328, 334 (Tex. App.BAmarillo 1997, writ denied). Lin involved the same statute in issue here. Id. at 334-35. Lin contended that the trial court lacked jurisdiction because the college had not authorized the condemnation petition before it was filed. Id. The court concluded that averments in the college's petition were sufficient to invoke jurisdiction of the trial court. "The question whether the bringing of the suit was authorized is not jurisdictional, and if authorization is challenged, may be decided by the court in usual litigation procedures." Id. at 335. We conclude the petition was sufficient to confer jurisdiction upon the trial court. We overrule Pizzitola's first issue on appeal.

 D. Necessity and "Arbitrary and Capricious"

Pizzitola also contends that HISD acted in an arbitrary and capricious manner (issue two) and abused its discretion in determining the necessity of taking the property (issue three).

 

"Where a statute, such as this one, does not require a distinct showing of necessity, the determination by the condemnor of the necessity for acquiring the property is conclusive, absent fraud, bad faith, abuse of discretion, or arbitrary and capricious actions." Id. at 337 (citing Housing Auth. of Dallas v. Higginbotham, 143 S.W.2d 79, 88 (Tex. 1940)); see Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 600 (Tex. 1979) ("the legislature's declaration that a specific exercise of eminent domain is for public use is conclusive, and the condemnation proceedings are limited to a determination of the amount to be paid to acquire that use.").

HISD attached to its motion for partial summary judgment two affidavits setting forth the means by which it concluded that the taking was appropriate, necessary, and in furtherance of a bona fide public purpose.[8] Although Pizzitola points to specific case law, none of the cases cited support his argument that specific funds had to have been allocated before the taking could have been authorized by HISD. The law provides only that a taking may not be "arbitrary and capricious."

In many respects the words arbitrary and capricious are synonymous. The word capricious means freakish, whimsical, fickle, changeable, unsteady, and arbitrary. Arbitrary is defined as fixed or done capriciously or at pleasure; not founded in the nature of things; non rational; not done or acting according to reason or judgment; depending on the will alone; tyrannical; despotic.

Webb v. Dameron, 219 S.W.2d 581, 584 (Tex. Civ. App.BAmarillo 1949, writ ref'd n.r.e.) (citations omitted). Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration however much it may be believed that an erroneous conclusion was reached. Id. Further, the courts afford a broad discretion to those in whom the power of eminent domain is vested. Id.

 

The objecting party bears the burden to show that an action is arbitrary or capricious. Austin v. City of Lubbock, 618 S.W.2d 552, 555 (Tex. Civ. App.BAmarillo 1981), rev'd on other grounds, 628 S.W.2d 909, 910 (Tex. 1982) (concluding the property owners failed to meet that burden).

In order for there to be a judicial issue, the condemnee must plead and prove that the [district's] act was founded in fraud or was arbitrary and capricious. It could not be said that condemnee has met the requisites of proof by merely introducing facts and inferences showing that alternate plans might be feasible or better adapted to the project sought to be accomplished which would not require his property, that the project was not essential or necessary, or that incident thereto the condemning authority might reap a profit. In such instances questions as to the necessity of taking the land sought to be condemned are concluded when the applicant for condemnation, acting within the scope of its authority, determines its use is necessary. The reason for this rule is that if it were otherwise one jury might hold on competent evidence that land in question in the suit (a constituent part of the whole of a larger amount necessary to the accomplishment of the objective of the condemning authority) was not necessary to such purposes and the accomplishments of an entire project destroyed because of the inability to obtain the small part of land which made the subject of the particular condemnation suit.

Wagoner v. City of Arlington, 345 S.W.2d 759, 763 (Tex. Civ. App.BFort Worth 1961, writ ref'd n.r.e.). Further, it is not arbitrary or capricious to take action based on a reasoned prediction of future demand or need. See Anderson v. Clajon Gas Co., 677 S.W.2d 702, 705 (Tex. App.BHouston [1st Dist.] 1984, no writ). "Appellants' contention that appellees' 'future use' does not fulfill the requirement of a public necessity, is not supported by Texas case law." Id.

We conclude that HISD articulated a reasonable and necessary public purpose for the taking, and that Pizzitola failed to satisfy his burden to show that HISD acted in an arbitrary or capricious manner. See Austin, 618 S.W.2d at 555. We overrule Pizzitola's second and third issues.

 

IV. Severance

A. Standard of Review

Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court. Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996) (orig. proceeding) (citing Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990); Hamilton v. Hamilton, 280 S.W.2d 588, 591 (Tex. 1955)); see also Tex. R. Civ. P. 41. In reviewing a trial court decision under an abuse of discretion standard, we determine whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The exercise of discretion is within the sole province of the trial court, and we may not substitute our discretion for that of the trial judge. Johnson v. Fourth Ct. App., 700 S.W.2d 916, 918 (Tex. 1985). Rather, an abuse of discretion occurs only when the trial court reaches a decision that is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. at 917.

B. Analysis

A trial court properly exercises its discretion in severing claims when (1) the controversy involves more than one cause of action, (2) the severed claim is one that could be asserted independently in a separate lawsuit, and (3) the severed actions are not so interwoven with the other claims that they involve the same facts and issues. Liberty Nat'l, 927 S.W.2d at 629; Guaranty Fed., 793 S.W.2d at 658.

 

Subsequent to the transfer of the property to HISD pendente lite and the trial court's ruling in favor of HISD on the motion for partial summary judgment, Pizzitola filed a petition for declaratory judgment to repurchase the property. Pizzitola argues that this claim is "inextricably linked" to the issue of the "taking" (issue four), and that the severance prevents the effective entry of a judgment determining all title issues for the property (issue five). We disagree.

A right to repurchase arises under section 21.023 of the property code, which provides that a governmental entity exercising eminent domain shall advise the property owner of his entitlement to repurchase the property in the event that the public use for which the property was acquired is canceled before the tenth anniversary date of the acquisition. Tex. Prop. Code Ann. ' 21.023 (Vernon 2004).[9] Pizzitola argues that HISD is not an excluded entity under the statute, that the property was acquired for a "public use," and he discusses when title vested in HISD. He argues that acquisition did not occur until final judgment was entered and all sums paid.

 

However, at no point does Pizzitola acknowledge that the right to repurchase does not arise until "the public use for which the property was acquired is canceled." Id. Such a cancellation has clearly not yet occurred. Logically, there can be no "splitting" of a cause of action, such as Pizzitola urges, where the cause of action has not yet arisen. Cf. Duncan v. Calhoun County Navigation Dist., 28 S.W.3d 707, 711 (Tex. App.BCorpus Christi 2000, pet. denied) (concluding only that the issues of "right to take" and "just compensation" are each encompassed within a condemnation proceeding and may not be severed from each other). Here, the issues of "right to take" and "just compensation" were not "split" from each other. We will not expand analysis applicable to that circumstance to encompass a right associated with an event which has not yet occurred. We overrule Pizzitola's fourth and fifth issues on appeal, except to the extent that Pizzitola urges his entitlement to have the judgment reflect his rights and HISD's obligations under the statute.

Pizzitola argues and HISD concedes that Pizzitola is entitled to modification of the final judgment to reflect notice of his statutory right to repurchase, as set forth in section 21.023 of the property code. Tex. Prop. Code Ann. ' 21.023 (Vernon 2004).[10] In light of the position of the parties and in the interests of judicial economy, we order that the judgment of the court be modified to include the following language:

Pursuant to section 21.023 of the Texas Property Code, Anthony Pizzitola and Lydia Inez Bilton are notified that they, their heirs, successors, or assigns are entitled to repurchase the Subject Property, in the event that prior to the tenth anniversary of the date of acquisition the public use for which the property was acquired through eminent domain is cancelled. The public use for the Subject Property is defined as "grounds for a public school building or buildings and appurtenances or additions thereto, and playgrounds in connection therewith." The repurchase price is the fair market value of the Subject Property determined at the time the public use is cancelled.

 

V. Conclusion

We overrule Pizzitola's issues on appeal. We affirm the judgment of the trial court as modified. Tex. R. App. P. 43.2(b).

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this 18th day of May, 2006.

 

[1]Because it is a magnet school, most students do not walk but instead must be transported to school, exacerbating the parking problem and the absence of adequate bus lanes.

[2] In September 2000 and April 2001, HISD authorized negotiations to purchase a total of nine acres, which included Pizzitola's parcel.

[3] HISD also apparently was approached by Friends of HSPVA in 1998 with a proposal that if it could raise $15 million, HISD would build a new HSVPA on the property being added to the campus of Gregory Lincoln. The non-binding offer was accepted.

[4] The trial court has this authority pursuant to section 21.021 of the Texas Property Code. Tex. Prop. Code Ann. ' 21.021 (Vernon 2004).

[5] The amount of this award is not challenged on appeal.

[6] The condemnor must also have attempted to reach an agreement with the property owner as to damages, and then assert in the petition the inability to reach such agreement. Tex. Prop. Code Ann. ' 21.012 (Vernon 2004)

[7] Pizzitola also argues that the nonbinding offer of the Friends of HSVPA had not, as of the date of the taking, resulted in the contribution of any cash monies.

[8] Even if necessity were deemed to be a requisite element of HISD's burden, evidence submitted with its motion for partial summary judgment was sufficient to satisfy such a burden.

[9] This statute was passed while the underlying case was pending and is effective as to property acquired by a governmental entity for a public use on or after the effective date of January 2, 2004. Tex. Prop. Code Ann. ' 21.101 (Vernon Supp. 2005); see Act of June 1, 2003, 78th Leg., R.S. ch. 1307, ' 3, 2003 Tex. Gen. Laws 4739, 4740. In its judgment of December 20, 2004, the trial court vested title to the property in HISD.

[10] HISD states that, initially, applicability of the statute was in question.