SHIRLEY JORDAN AND JORDAN V., INC., Appellants v. LANDRY'S SEAFOOD RESTAURANT, INC., WILLIE G'S GALVESTON, INC., LANDRY'S CRAB SHACK, INC., AND THE CITY OF KEMAH, Appellees

 

NO. 01-00-00621-CV 

 

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON 

 

89 S.W.3d 737; 2002 Tex. App. LEXIS 7483

 

October 17, 2002, Opinion Issued

 

 

 


 

NOTICE:

 [**1]   PUBLISH. TEX. R. APP. P. 47. 

 

PRIOR HISTORY:

 On Appeal from the 122nd District Court. Galveston County, Texas. Trial Court Cause No. 97-CV-0840. 

 

 Jordan v. Landry's Seafood Rest., 2002 Tex. App. LEXIS 5088 (Tex. App. Houston 1st Dist. July 18, 2002).

 

DISPOSITION:

Affirmed. 

 

CASE SUMMARY

 

PROCEDURAL POSTURE: Plaintiff corporation sued defendants restaurant and city in the 122nd District Court, Galveston County (Texas), seeking an injunction to prohibit traffic restriction in front of its property. The trial court denied the injunction and granted the city and restaurant's motions for summary judgment, dismissing the corporation's claims, and it appealed.

 

OVERVIEW: The corporation leased its property to the restaurant, which developed it into a family recreation area. The city became concerned about pedestrians' safety, so it held public hearings on a resolution to limit traffic in the area. The resolution passed, but did not go into effect because of the corporation's refusal to consent without compensation for its alleged loss of property value. On appeal, the corporation contended the trial court abused its discretion by denying its petition for injunctive relief and its motion for summary judgment seeking to prohibit restriction of traffic. The city merely restricted the street's use to pedestrians and emergency vehicles during the duration of the restaurant's lease. After the lease expired, the street would return to its original unrestricted state. The corporation failed to prove the city and restaurant committed a wrongful act, which was a required element of a permanent injunction. The appellate court found no error in the trial court's denial of the corporation's request for injunctive relief, and there was no genuine issue of material fact as to a "taking" in its inverse condemnation action.

 

OUTCOME: The judgment was affirmed.

 

LexisNexis(TM) HEADNOTES - Core Concepts

 

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

[HN1] An order granting or denying a temporary injunction is subject to an interlocutory appeal.  Tex. Civ. Prac. & Rem. Code Ann.   51.014 (Vernon Supp. 2002). Customarily, appellate review of an interlocutory appeal of an order granting or denying a temporary injunction, appellate review is strictly limited to determining whether there has been a clear abuse of discretion by the trial court. The appellate court must not substitute its judgment for that of the trial court and determine that the trial court abused its discretion by denying injunctive relief unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. The merits of the case are not presented for review.

 

Civil Procedure > Justiciability > Mootness

[HN2] If, during the pendency of an appeal of the granting or denying of the temporary injunction, the trial court renders final judgment, the case on appeal becomes moot. When a case becomes moot on appeal, all previous orders pertaining to the temporary injunction are set aside by the appellate court and the case is dismissed. The rendition of a final summary judgment by a trial court renders an appeal relating to the denial of the temporary injunction moot. The temporary injunction has expired and no longer exists; therefor, the appeal is moot.

 

Civil Procedure > Summary Judgment > Summary Judgment Standard

[HN3] A party moving for a Tex. R. Civ. P. 166a(c) summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether a disputed material fact issue exists, the reviewing court will take as true all evidence favoring the nonmovant. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant's favor.

 

Civil Procedure > Summary Judgment > Summary Judgment Standard

[HN4] Under Tex. R. Civ. P. 166a(i), a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Thus, a no-evidence summary judgment is similar to a directed verdict. The motion for summary judgment may not be general, but must state the elements on which there is no evidence. The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements.

 

Civil Procedure > Injunctions > Permanent Injunctions

[HN5] To be entitled to a permanent injunction, the petitioner must plead and prove: (1) a wrongful act; (2) imminent harm; (3) irreparable injury; and (4) no adequate remedy at law. Fear or apprehension of the possibility of injury is not sufficient. An injunction will not be issued to prevent injury that is purely conjectural or speculative. The decision whether to grant injunctive relief is within the sound discretion of the trial court.

 

Governments > Local Governments > Ordinances & Regulations

[HN6] Under Tex. Transp. Code Ann.   311.002, exclusive control over city streets belongs to the municipality. However,   311.008 requires consent from all abutting landowners before a municipality may vacate, abandon, or close a street. A city has the general power to regulate the use of its streets, and is authorized to enact traffic regulations and to impose reasonable restraints by means of ordinances for the protection of the welfare of the public in the proper use of its streets.

 

Governments > Local Governments > Ordinances & Regulations

[HN7] See Tex. Transp. Code Ann.   311.002 (Vernon 1999).

 

Governments > Local Governments > Ordinances & Regulations

[HN8] See Tex. Transp. Code Ann.   311.008 (Vernon 1999).

 

Civil Procedure > Eminent Domain Proceedings

[HN9] To recover on an inverse condemnation claim, a property owner must establish that (1) the State or other governmental entity intentionally performed certain acts (2) that resulted in the taking, damage, or destruction of the owner's property (3) for public use.

 

Civil Procedure > Eminent Domain Proceedings

[HN10] A decrease in market value alone will not support the conclusion that an inverse condemnation has occurred. A property owner must demonstrate that the interference with the property's use and enjoyment is substantial.

 

Civil Procedure > Eminent Domain Proceedings

[HN11] Although the Texas Constitution forbids the taking of private property without adequate compensation, it does not require compensation for every decrease in market value attributed to a governmental activity.

 

COUNSEL:

For Appellant: Robert D. Clements, Jr., Law Offices of Robert D. Clements, Alvin, TX.

 

For Appellee: Dick M. Gregg, Jr., Gregg & Gregg, Houston, TX, James L. Ware, Sheehy, Serpe & Ware, Houston, TX, Richard A. Sheehy, Sheehy, Serpe & Ware, Houston, TX

 

JUDGES:

Jackson B. Smith, Jr. Justice Panel consists of Justices Mirabal, Taft, and Smith. n9

 

n9 The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

 

OPINIONBY:

Jackson B. Smith, Jr. 

 

OPINION:

 

 [*739]  OPINION ON REHEARING

We withdraw our Opinion of July 18, 2002 and issue this one in its stead. Appellants' motion for rehearing is denied.

Shirley Jordan and Jordan V., Inc. (collectively "Jordan") sought temporary and permanent injunctions against the City of Kemah and Landry's Crab Shack n1 to stop the restriction of traffic on Second Street, which abuts property they own and lease to Landry's Crab Shack, Inc. in the City of Kemah. The trial court denied Jordan's petition for temporary injunction and later [**2]  granted Landry's and Kemah's motions for summary judgment, dismissing the case. In five points of error, Jordan claims the trial court erred in denying the temporary injunction and granting the summary judgments. We affirm.

 

n1 Jordan also sued Willie G's Galveston, Inc. and Landry's Crab Shack, Inc., which are both owned by Landry's. All three Landry's entities are appellees.

 

I. Background

Jordan V, a corporation formed to hold and develop real estate owned by the Jordan family, owned an undeveloped waterfront tract of land on Second Street in Kemah, Texas. It leased the land to Landry's at $ 6,000 per month for 20-year term with three additional five-year options.  [*740]  Under the lease, Landry's has exclusive right to occupy and control the property.

Landry's built a restaurant on the property and paid all construction costs. n2 Landry's purchased all the land surrounding Jordan's property and all other property abutting Second Street and began developing the Kemah waterfront into a family recreation area [**3]  with restaurants and shops. The lots on the Kemah Boardwalk are bordered by Second Street on the south and water on the north. Due to the increase of traffic on Second Street from the proposed development, the City of Kemah became concerned about the safety of pedestrians. Kemah and Landry's wanted to limit access to Second Street "in order to ensure safety and enhance the family environment."

 

n2 At the end of the lease, Jordan will own all improvements on the property.

 

Kemah conducted public hearings on whether to limit the traffic on Second Street only to emergency vehicles and pedestrians. On July 24, 1997, Kemah passed Resolution 97-14 which approved a sale of the entire street to Landry's for $ 300,000, but the resolution did not go into effect because Jordan would not consent without compensation for the alleged loss of its property value. n3

 

n3 Jordan demanded a cash payment from Landry's of $ 750,000 and an increase of its monthly rent to $ 25,000 and increasing to $ 45,000 over the remaining term of the lease.

 

 [**4] 

One month later, Kemah passed Resolution 97-16 selling all of Second Street to Landry's except the portion in front of Jordan's property. The street in front of the Jordan property that is leased to Landry's would be limited to pedestrian and emergency traffic for the duration of the lease. The resolution also provided that Kemah would return the portion of the street abutting the Jordan property to its original condition at the conclusion of the lease.

Jordan claimed the value of its property, which was now landlocked by property owned by Landry's, whom it considers a "malevolent and dishonest oppressor," "immediately plummeted." Jordan sued Kemah and Landry's to stop the enforcement of resolution 97-16. The trial court denied the petition for a temporary injunction, and there was no activity on the case until it was placed on the dismissal docket. Landry's and Kemah subsequently filed separate motions for summary judgment, which the trial court granted. Jordan appeals the trial court's order.

II. Injunctions

In point of error one, Jordan contends the trial court abused its discretion by denying his petition for injunctive relief and his motion for summary judgment seeking [**5]  to prohibit the restriction of traffic on Second Street during the term of the lease.

A. Temporary Injunction

On October 22, 1997, the trial court conducted a hearing on the petition for temporary injunction, and, the next day, denied the petition. [HN1] An order granting or denying a temporary injunction is subject to an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN.   51.014 (Vernon Supp. 2002).

Customarily, appellate review of an interlocutory appeal of an order granting or denying a temporary injunction, appellate review is strictly limited to determining whether there has been a clear abuse of discretion by the trial court. See  Sonny Arnold, Inc. v. Sentry Sav. Ass'n, 633 S.W.2d 811, 816, 25 Tex. Sup. Ct. J. 359 (Tex. 1982). We must not substitute our judgment for that of the trial court and  [*741]  determine that the trial court abused its discretion by denying injunctive relief unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion.  Davis v. Huey, 571 S.W.2d 859, 861-62, 22 Tex. Sup. Ct. J. 8 (Tex. 1978). The merits of the case are not presented for review.  Id. at 861.

Jordan did [**6]  not file an interlocutory appeal of the denial of the temporary injunction. On March 18, 1999, 17 months after denying the petition, the trial court gave notice to Jordan that it intended to dismiss its suit for want of prosecution. Eventually, the trial court granted both Landry's and Kemah's motions for summary judgment. Landry's and Kemah maintain the granting of their summary judgments renders any error with respect to the temporary injunction moot.

[HN2] If, during the pendency of the appeal of the granting or denying of the temporary injunction, the trial court renders final judgment, the case on appeal becomes moot. Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236, 34 Tex. Sup. Ct. J. 292 (Tex. 1991). When a case becomes moot on appeal, all previous orders pertaining to the temporary injunction are set aside by the appellate court and the case is dismissed. Id. (citing Texas Foundries, Inc. v. Int'l Moulders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460, 461 (Tex. 1952)). The rendition of a final summary judgment by the trial court renders an appeal relating to the denial of the temporary injunction moot. See  Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293, 299-300 [**7]  (Tex. App.--San Antonio 1999, pet. denied). The temporary injunction has expired and no longer exists; therefor, the appeal is moot. See  Wright v. Wentzel, 749 S.W.2d 228, 234 (Tex App.--Houston [1st Dist.] 1988, no writ). Therefore, the rendition of the final summary judgment by the trial court rendered Jordan's appeal relating to the denial of the temporary injunction moot, and we dismiss that portion of the appeal.

B. Permanent Injunction - Summary Judgment

The motions for summary judgment filed by Landry's and Kemah raised both "traditional" and "no-evidence" grounds in their attacks on Jordan's request for a permanent injunction.

 

[HN3] A party moving for a rule 166a(c) summary judgment has the burden of showing 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); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548, 28 Tex. Sup. Ct. J. 384 (Tex. 1985). In deciding whether a disputed material fact issue exists, the reviewing court will take as true all evidence favoring the nonmovant. Id. at 548-49. Every reasonable inference must be indulged in favor of the nonmovant [**8]  and any doubts resolved in the nonmovant's favor. Id.

 

[HN4] Under rule 166a(i), a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). Thus, a no-evidence summary judgment is similar to a directed verdict.  Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). The motion for summary judgment may not be general, but must state the elements on which there is no evidence. TEX. R. CIV. P. 166a(i).

The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. See id.; Macias v. Fiesta  [*742]  Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.--Houston [1st Dist.] 1999, no pet.).

 

In light of Resolution 97-16, Jordan filed this suit seeking a permanent injunction preventing the city of Kemah and Landry's from limiting traffic on Second Street during the term of the lease.  [**9] 

[HN5] To be entitled to a permanent injunction, Jordan had to plead and prove: (1) a wrongful act; (2) imminent harm; (3) irreparable injury; and (4) no adequate remedy at law. See  Morris v. Collins, 881 S.W.2d 138, 140 (Tex. App.--Houston [1st Dist.] 1994, writ denied). Fear or apprehension of the possibility of injury is not sufficient.  Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248, 26 Tex. Sup. Ct. J. 263 (Tex. 1983); Mfrs. Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607, 611 (Tex. App.--Houston [1st Dist.] 1991, no writ). An injunction will not be issued to prevent injury that is purely conjectural or speculative.  Morris, 881 S.W.2d at 140. The decision whether to grant injunctive relief is within the sound discretion of the trial court.  Crain v. Unauthorized Practice of Law Comm., 11 S.W.3d 328, 332 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).

 

The first element of a permanent injunction requires the existence of a wrongful act. Morris, 881 S.W.2d at 140. Jordan contends that, by restricting the traffic of Second Street, Landry's and Kemah committed a wrongful [**10]  act in that they had no power over Jordan's objection as an abutting landowner.

[HN6] Under section 311.002 of the Texas Transportation Code, exclusive control over city streets belongs to the municipality. n4 However, section 311.008 of the Code requires consent from all abutting landowners before a municipality may vacate, abandon, or close a street. n5 Kemah did not "vacate, abandon, or close" Second Street but only restricted traffic on the street to emergency vehicles and pedestrians based on public safety concerns. "A city has the general power to regulate the use of its streets, and is authorized to enact traffic regulations and to impose reasonable restraints by means of ordinances for the protection of the welfare of the public in the proper use of its streets." Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945, 949 (Tex. 1949)

 

n4 Section 311.002 provides, in pertinent part, as follows:

 

  311.002 [HN7] General Authority of General-Law Municipality

(a) A general-law municipality has exclusive control over the highways, streets, and alleys of the municipality.

(b) The municipality may:

....(2) open, change, regulate, or improve a street.

 TEX. TRANSP. CODE ANN.   311.002 (Vernon 1999). [**11] 

n5 Section 311.008 provides as follows:

  311.008 [HN8] Closing of Street or Alley by General-Law Municipality

The governing body of a general-law municipality by ordinance may vacate, abandon, or close a street or alley of the municipality if a petition signed by all the owners of real property abutting the street or alley is submitted to the governing body.

 TEX. TRANSP. CODE ANN.   311.008 (Vernon 1999).

 

Recognizing that section 311.008 required the consent of the adjoining landowners, including Jordan, before it vacated, closed, or abandoned the street, Kemah sold only the portions of Second Street abutting Landry's property. The section of the street in front of Jordan's property was not sold. The sale to Landry's was made pursuant to section 272.001 of the Texas Local Government Code, which allowed Kemah to sell Second Street because Kemah owned the  [*743]  street, and Landry's purchased it for at least fair market value. See TEX. LOC. GOV'T CODE ANN.   272.001 (Vernon Supp. 2002). n6 Kemah was not required [**12]  to obtain Jordan's consent before it sold the portion of the street abutting Landry's property.

 

n6 Section 272.001 is silent with respect to the necessity for consent of neighboring land owners.

 

Therefore, we conclude the trial court did not err in determining no genuine issue of material fact existed and in denying injunctive relief.

Jordan argues the Transportation Code and the Local Government Code provisions discussed herein are in conflict because the Transportation Code requires consent from the abutting landowners while the Local Government Code is silent as to consent. We disagree. Kemah did not "vacate, abandon, or close" the section of Second Street abutting the Jordan property. It merely restricted its use to pedestrians and emergency vehicles during the duration of the lease. After the lease expires, the street will return to its original unrestricted state.

Jordan has failed to prove that the appellees committed a wrongful act which is a required element of a permanent injunction. We find no error [**13]  in the trial court's denial of Jordan's request for injunctive relief.

We overrule Jordan's point of error one.

III. Inverse Condemnation

In point of error two, Jordan argues the trial court erred in granting Landry's and Kemah's motions for summary judgment on Jordan's inverse condemnation claim. [HN9] To recover on an inverse condemnation claim, a property owner must establish that (1) the State or other governmental entity intentionally performed certain acts (2) that resulted in the taking, damage, or destruction of the owner's property (3) for public use. See  Steele v. City of Houston, 603 S.W.2d 786, 788-92, 23 Tex. Sup. Ct. J. 507 (Tex. 1980); Lethu Inc. v. City of Houston, 23 S.W.3d 482, 485 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).

Jordan contends, if Landry's and Kemah had the power to restrict traffic on Second Street such restriction amounted to a "taking" under the Texas Constitution. We find no merit to this contention because there has not been a taking. See TEXAS CONST. art. I,   17. [HN10] A decrease in market value alone will not support the conclusion that a taking has occurred.  City of Austin v. Travis County Landfill Co., L.L.C., 73 S.W.3d 234, 241, 45 Tex. Sup. Ct. J. 511 (Tex. 2002). [**14]  A property owner must demonstrate that the interference with the property's use and enjoyment is substantial.  Id. at 243.

Jordan concedes that the lease gives Landry's "sole and exclusive possession of and sole and exclusive right to occupy the leased premises." Therefore, Jordan has no "right to access" that has been materially and substantially affected.

Jordan also conceded in its first amended petition that there are ways to access its property by other streets. n7 The overall plan provides ample parking and easy access to the property, and the restricting of traffic does not materially and substantially impair Jordan from entering the property. See  Olivares, 505 S.W.2d 526 at 530.

 

n7 "Jordan V cannot have egress from its property to other streets in the area, save one." During appellate argument, Jordan conceded Bradford Street abuts the side of its property, and Bradford Street has remained open for vehicular traffic.

 

 [*744]  There is no genuine issue of material fact as to the [**15]  essential element of a "taking" in Jordan's cause of action for inverse condemnation, and it was not an abuse of discretion for the trial court to grant Landry's and Kemah's motions for summary judgment. n8

 

n8 Jordan claims its property value plummeted from $ 7 million to $ 700,000 after the street was closed. [HN11] Although the Texas Constitution forbids the taking of private property without adequate compensation, it does not "require compensation for every decrease in market value attributed to a governmental activity." Felts v. Harris County, 915 S.W.2d 482, 484, 39 Tex. Sup. Ct. J. 218 (Tex. 1996); see also  Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 152 L. Ed. 2d 517, 122 S. Ct. 1465, 1485 (2002); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 131, 98 S. Ct. 2646, 2663, 57 L. Ed. 2d 631 (1978) (holding that diminution in fair market value, alone, does not establish a taking).

 

We overrule Jordan's second point of error.

IV. Local Government  [**16]   Code

In point of error three, Jordan contends the trial court erred in failing to apply Transportation Code section 311.008 and by granting summary judgment based on section 272.001 of the Local Government Code. As previously discussed, Kemah did not vacate, abandon, or close the street, but only restricted traffic to emergency vehicles and pedestrians; therefore, 311.008 did not apply. Section 272.001(a) permitted Kemah to sell part of Second Street to Landry's because Kemah owned the street and Jordan's consent was unnecessary. See TEX. LOC. GOV'T CODE ANN.   272.001 (Vernon Supp. 2002).

We overrule Jordan's point of error three.

V. Waiver

In point of error four, Jordan argues the trial court erred in granting summary judgment on its claims for breach of contract and "intentional and negligent damage to property, conspiracy, etc." Jordan does not discuss, argue, or cite any authority supporting its assertion in its brief that the trial court erred in granting summary judgment on its common law claims. Therefore, Jordan has waived the point of error. TEX. R. APP. P. 38.1(h).  [**17] 

In point of error five, Jordan contends the trial court erred in ruling on the motions for summary judgment without first allowing sufficient time for discovery. In its "issues presented for review," Jordan asserts issue number five pertaining to the time allowed for discovery. However, Jordan does not discuss, argue, or mention this point of error again in its brief. Therefore, Jordan has waived the argument. TEX. R. APP. P. 38.1(h).

We overrule Jordan's points of error four and five.

VI. Conclusion

We affirm the judgment.

Jackson B. Smith, Jr.

Justice