Jane Abbott, Wallace M. Greene and Lois M. Duggan v. State of Texas and Comal County Water Oriented Recreation District--Appeal from 331st District Court of Travis County

CV4-412.abbott TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00412-CV
Jane Abbott, Wallace M. Greene, and Lois M. Duggan, Appellants
v.
State of Texas and Comal County Water
Oriented Recreation District, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 93-03614, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

 

Jane Abbott, Wallace Greene, and Lois M. Duggan appeal from a summary judgment granted against their suit for declaratory judgment. The judgment denied appellants a declaration that the legislation creating the Comal County Water Oriented Recreation District was unconstitutional. We will affirm the judgment of the trial court.

State representative Edmund Kuempel sponsored a 1987 bill authorizing the creation of a parks and recreation district to govern the unincorporated areas of a county with frontage on the Guadalupe and Comal rivers. Tex. Loc. Gov't Code Ann. 324.001-.124 (West Supp. 1995) ("PARD"). The legislated purposes of the district were to operate any county public park located in the district, conserve natural resources, and improve the public health, safety, and welfare. PARD 324.001. By vote of November 3, 1987, Comal County voters elected to create the Comal County Water Oriented Recreation District (WORD).

WORD's creation sparked litigation. Nineteen outfitters, including Abbott's company, filed constitutional claims in federal court against WORD; the court dismissed those claims. WORD obtained a state court judgment for taxes owed by Abbott's company; the state court sustained WORD's special exceptions to the company's counterclaims for constitutional and legal violations and dismissed the counterclaims after the company failed to amend its pleading.

The appellants meanwhile filed this suit, proceeding pro se. They sued the State of Texas and Kuempel, and added State Senator Jeff Wentworth when his amendments to PARD passed. WORD intervened as a defendant despite the appellants' opposition.

Kuempel and Wentworth moved for summary judgment based on absolute legislative immunity. The trial court granted Kuempel's motion on December 3, 1993, severed the action against him, and rendered judgment, stating that the judgment was final for purposes of appeal. The trial court severed the claims involving Wentworth and granted his motion for summary judgment on April 19, 1994. The appellants have appealed only from the original cause. They thus have not appealed from the severed judgments favoring Kuempel and Wentworth.

The State and WORD moved for summary judgment on two grounds. They contended that the prior state court judgment precluded the appellants' claim through res judicata. They also contended that, as a matter of law, no taking occurred. The trial court granted summary judgment in their favor on April 19, 1994.

After filing a motion for rehearing, the appellants filed their cash deposit in lieu of bond on June 23, 1994.

The appellants have provided us no cognizable basis on which to review the court's judgment favoring the appellees. The appellants raise five "questions to the court" on appeal:

 

(1) Have the substantive facts ever been considered in the lower court in No. 93-03614?

 

(2) Does substantive facts have equal consideration prior to, or priority given to Summary Judgment?

 

(3) Does No. 93-03614 seek only a Declaratory Judgment?

 

(4) Has due process been given Appellants'?

 

(5) Is Wallace M. Greene "in privity" in any other cause, before any other court, except in this cause: 93-03614 (03-94-00412CV)? Is Lois M. Duggan?

 

(sics omitted). These questions assign no error in the granting of the summary judgments. We can reverse only for error assigned in a point of error. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). The appellants' failure to assign error to the grants of summary judgment means that the appellants have assigned no error to the sole basis of the judgments. We therefore cannot reverse the judgments.

Even were we to construe the questions extremely broadly, none justifies the reversal of the summary judgment granted to WORD and the State. Generously construed, the appellants' question four attacks the appellees' assertion in their motion for summary judgment that, as a matter of law, no taking of the appellants' property without due process occurred. We review the record, taking all evidence favorable to the nonmovants as true and construing every inference and doubt in their favor, to see if no genuine issue of material fact exists and if the movant is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The record wholly supports the grant of the summary judgment.

The appellants base their position on the statute and the policy statement of the WORD board. The statute empowers the district to improve, equip, maintain, finance, and operate any public park located in the district and owned or leased by the district. PARD 324.001(1) (West Supp. 1995). The WORD board's rules state that the purpose of the rules includes governing recreational activities and possession of glass and styrofoam containers in park and district facilities. The appellants assert that, because no parks exist in the district, WORD's creation converted all private lands within the district into a park or a district facility exempt from taxation.

The only "evidence" in the record--the statute and policy statement--supports the summary judgment. The statutory definitions of "park" and "district facility" defy the appellants' interpretation. (1) The statute provides that WORD can acquire land for parks by gift or devise, lump-sum payment, or installment payments with or without the option to purchase, but not through eminent domain. PARD 324.067(b)-(c) (West Supp. 1995). The WORD board's rules do not expand those powers. There is no factual basis in this record for the contention that the enactment of the statute deprived the appellants of their property. The court did not err in granting summary judgment on this basis. We therefore need not consider the validity of the res judicata basis for the judgment.

We affirm the judgment of the trial court.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: March 15, 1995

Do Not Publish

1. The term "park" includes any land, including any improvements to the land, that is administered, operated, or managed by the district for use by the general public. See Tex. Loc. Gov't Code Ann. 324.002(4) (West Supp. 1995). Subsection (5) provides that the term "district facility" includes any facility, land, or improvement to land, whether permanent or temporary, that is owned, leased, or acquired by the district.