Andy Centeno and Wife, Maria Centeno v. City of Alamo Heights, et al.--Appeal from 57th Judicial District Court of Bexar County

No. 04-00-00546-CV

Andy CENTENO and Maria Centeno,

Appellants

v.

CITY OF ALAMO HEIGHTS, TEXAS,

and Board of Adjustment of the City of Alamo Heights, Texas,

Appellees

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 96-CI-14475

Honorable Andy Mireles, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 16, 2001

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Appellants, Andy and Maria Centeno, appeal from a summary judgment rendered in favor of the appellees, City of Alamo Heights, Texas ("the City") and Board of Adjustment of the City of Alamo Heights, Texas ("the Board") (collectively, the "appellees"). Appellants do not assign error to the trial court's judgment on the ground that appellants' writ of certiorari was untimely; therefore, we affirm the summary judgment on that ground. Because appellees' motion for summary judgment did not address appellants' claim that the Board's actions constituted a taking, we reverse the summary judgment on that ground and remand.

BACKGROUND

Appellants purchased improved real property located within the City of Alamo Heights that they intended to use as their residence. Because the structure on the property, which had been used as an educational annex to a church, did not comply with the City's zoning requirements, appellants applied for a building permit. The Board denied the application on the grounds that the proposed modifications would not have cured the non-conformance. Appellants sought review of the Board's decision in district court.

In their petition, appellants asserted (1) they were denied their requested variances even though identical variances had been approved for the previous owner and similar variances had been granted to adjacent property owners; (2) the Board's actions denied appellants their due process rights under the United States and Texas Constitutions; and (3) the Board's actions were motivated by discrimination because appellants are Hispanic. Alternatively, appellants asserted that if the court determined the denial of the variances to be valid, such a denial amounted to a taking under the Texas Constitution and they were entitled to compensation.

Appellees counterclaimed, seeking injunctive relief prohibiting appellants from using or occupying the property until such time as it was brought into compliance with the zoning ordinances. Appellees moved for summary judgment on the ground that there was no genuine issue of material fact as to any of the following: (1) appellants' writ of certiorari was untimely, thus the court did not have jurisdiction to consider appellants' appeal from the Board's decision; (2) the variances sought by the appellants were not identical to the variances granted the previous owner of the property; (3) the Board had no duty to grant the same or similar variances to appellants as had been granted to the previous owners; and (4) there was no evidence of racial motivation for the denial of the variances. The trial court granted the motion without stating its grounds and granted injunctive relief.

SUMMARY JUDGMENT STANDARD OF REVIEW (1)

We review a summary judgment de novo. Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ denied). We will uphold a summary judgment only if the record establishes that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When, as here, a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

TIMELINESS OF WRIT OF CERTIORARI

One of the grounds on which appellees relied in their motion for summary judgment was that appellants did not timely file their writ of certiorari; therefore, the trial court did not have jurisdiction to hear the appeal of the Board's decision.

The right to appeal an abuse of discretion by a board of adjustment is granted solely by Texas Local Government Code section 211.011. Reynolds v. Haws, 741 S.W.2d 582, 584 (Tex. App.--Fort Worth 1987, writ denied); see Tex. Loc. Gov't Code Ann. 211.011 (Vernon Supp. 2001). The procedures set forth in Section 211.011 must be strictly followed for the trial court to acquire jurisdiction. Reynolds, 741 S.W.2d at 584; see also Texas Dept. of Public Safety v. Benoit, 994 S.W.2d 212, 214 (Tex. App.--Corpus Christi 1999, pet. denied) (holding that when a statute creates a right not existing at common law and prescribes a remedy to enforce the right, courts may act only in the manner provided in the statute creating that right).

Section 211.011 provides that a person aggrieved by a decision of the board of adjustment may present to a district court, county court, or county court at law a verified petition stating that the decision of the board is illegal, and the petition must be presented within ten days after the date the decision is filed in the board's office. Tex. Loc. Gov't Code Ann. 211.011(a), (b). Once a party files a petition within ten days after a zoning board decision, the court has subject matter jurisdiction to hear and determine a claim that a board of adjustment acted illegally. Davis v. Zoning Bd. of Adjustment, 865 S.W.2d 941, 942 (Tex. 1993). If the appeal is not timely, the board's decision to deny a variance becomes final because the trial court's jurisdiction to review the merits of the case has not vested. Troth v. City of Dallas, 667 S.W.2d 152, 156 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.).

In support of their motion for summary judgment, appellees submitted the affidavit of Pamela Snell, recording secretary of the City of Alamo Heights, who stated as follows: Andy Centeno filed an appeal to the [Board] on August 21, 1996 for certain variances from the Zoning Code for his property at 108 Cloverleaf. The appeal was heard by the [Board] on September 4, 1996. I prepared the minutes of the [Board] of said meeting. The minutes were approved and filed in the [Board] records by the Chairman of the Board of Adjustment on September 18, 1996. . . .

Appellant's writ of certiorari should have been filed by September 30, 1996; instead, the writ was filed October 3, 1996. At trial, appellants did not controvert appellees' summary judgment evidence that the trial court lacked jurisdiction to hear the appeal from the board's decision. They also do not challenge this ground on appeal. When the trial court's judgment rests upon more than one independent ground or defense and the aggrieved party does not raise a Malooly point of error, the party must assign error to each independent ground; otherwise, the judgment will be affirmed on the ground to which no complaint is made. Gamboa v. Shaw, 956 S.W.2d 662, 665-66 (Tex. App.--San Antonio 1997, no pet.). Here, the order granting summary judgment did not specify on which ground it was granted; thus, we will not disturb the summary judgment on appellees' claim that the writ of certiorari was not timely.

TAKING

Appellants complain the trial court erred in rendering a take-nothing judgment against them because appellees' motion for summary judgment did not address their claim that the Board's decision constituted a taking. Although appellees argue on appeal that no such taking occurred, appellees' motion for summary judgment did not address appellants' alternative grounds for relief. Accordingly, we reverse the summary judgment as to the issue of whether the Board's action was a taking entitling appellants to compensation.

CONCLUSION

We reverse the trial court's judgment as to the issue of whether the Board's actions constitute a taking, entitling appellants to compensation and remand the cause to the trial court for consideration of this claim. We affirm the judgment in all other respects.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. On appeal, the parties contend the trial court granted appellees' no-evidence motion for summary judgment. Appellees' motion is not a no-evidence motion because it does not state the elements as to which there is no evidence. See Tex. R. Civ. P. 166a(i). The comments to rule 166a(i), which are "intended to inform the construction and application of the rule," state: "The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case." See Tex. R. Civ. P. 166a(i) cmt. A no-evidence motion for summary judgment is legally insufficient as a matter of law if it is not specific in challenging a particular element or is conclusory. McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (motion that fails to present grounds is legally insufficient as a matter of law); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 147 (Tex. App.--Houston [14 Dist.] 2000, pet. denied) (there may be no conclusory motions or general no-evidence challenges to an opponent's case). Therefore, we will review the propriety of the trial court's judgment under the standard of review for a traditional summary judgment. See Tex. R. Civ. P. 166a(c).