Burris v. Metropolitan Transit Authority of Harris County

OPINION EVELYN V. KEYES, Justice. In this inverse condemnation suit, appellants, James R. Burris and Wheelchair & Scooter Express, L.L.C., (“WSE”) appeal the trial court’s order that granted summary judgment in favor of appellee, Metropolitan Transit Authority of Harris County, Texas (“METRO”). In four issues on appeal, appellants argue that the trial court erred in (1) granting METRO’S motions for summary judgment on appellants’ claim that access to the property is materially and substantially impaired by a METRO project; (2) granting METRO’S motions for summary judgment on plaintiffs’ permanent taking claims associated with METRO’S taking of appellants’ ingress easement appurtenant; (3) denying appellants’ motion for partial summary judgment claiming that there has been a compensable taking by METRO of the ingress easement appurtenant and that access to their property has been materially and substantially impaired; (4) granting METRO’S motions for summary judgment on the claims asserted by WSE because WSE is not an independent third party lessee, but rather is Burris’s wholly owned business which has an ownership interest that has been damaged by METRO’S actions; and (5) granting METRO’S objections to summary judgment evidence. We affirm. Background Burris owns a 17,000 square foot parcel of land at 4905 San Jacinto (the “Property”) at the corner of Wichita Street in Houston, Texas. 1 The Property is im *18 proved with a 6,860 square foot commercial building where WSE sells wheelchairs and motorized scooters to disabled persons. WSE and its sole owner, Burris, have operated on the Property since 1993. 2 In 2002, METRO began construction of a light rail line (METRORail) on San Ja-cinto. Before construction of METRO-Rail, WSE had two driveways where customers could enter and exit the Property by vehicle from San Jacinto. 3 After construction, METRO had to close one driveway into WSE from San Jacinto, and the other driveway was converted into an exit-only drive. Now, the only entrance into WSE is from the side street, Wichita. Appellants filed suit against METRO for trespass and inverse condemnation based on the allegations that METRO had damaged the Property by materially and substantially impairing access to it and that METRO had permanently taken a portion of the Property without payment of just compensation. METRO filed a no-evidence and traditional motion for summary judgment on all of appellants’ causes of action. Appellants filed a response and a motion for the determination of the issue of impairment of access. Appellants attached the affidavit of Burris to their motion. Appellants also filed a cross-motion for summary judgment. METRO filed objections to Burris’s affidavit on the ground that it was not based on personal knowledge. The trial court granted METRO’S no-evidence and traditional motions for summary judgment in part and denied appellants’ motion for partial summary judgment in part. The trial court sustained METRO’S objections to paragraphs 3 and 6 of Burris’s affidavit. The trial court’s order states that METRO is granted summary judgment as to: a. Plaintiffs’ claim that, following the completion of the construction of the METRORail project, access to the property located at the northeast corner of San Jacinto Street and Wichita Avenue (the “Property”) is materially and substantially impaired. b. Plaintiffs’ permanent taking claims associated with: (i) the relocation of power lines across the southwest corner of the Property; (ii) the alleged encroachment of the access drive from the Property onto San Jacinto Street; and (iii) the alleged encroachment of the grass strip between the parking lot on the property and the sidewalk in the San Ja-cinto Street right-of-way; [[Image here]] d. The taking claims asserted by Plaintiff Wheelchair & Scooter Express, L.L.C. The trial court granted in part appellants’ motion for partial summary judgment but otherwise denied their motion. 4 *19 Appellants appeal from the final judgment against them. Discussion Standard of Review We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Under Texas Rule of Civil Procedure 166a(c), the party moving for summary judgment bears 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); Knott, 128 S.W.3d at 215-16. When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court considers the summary judgment evidence presented by both sides, determines all questions presented, and if it determines that the trial court erred, renders the judgment the trial court should have rendered. See Dorsett, 164 S.W.3d at 661; FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). Inverse Condemnation In their first three issues, appellants argue that the trial court erred in granting summary judgment on (1) appellants’ claim that the Property was materially and substantially impaired, (2) appellants’ permanent taking claims associated with Metro’s taking of appellants’ ingress easement appurtenant from San Jacinto into the Property, and (3) the claim contending that METRO made a compensable taking of the ingress easement appurtenant to appellants’ Property from San Jacinto Street because the rulings are contrary to the summary judgment evidence. A governmental unit exercises its power of eminent domain through the process referred to as condemnation. See City of Houston v. Boyle, 148 S.W.3d 171, 178 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Condemnation is the procedure by which the sovereign exercises its right to take property of a private owner for public use, without consent, upon the payment of just compensation. Id.; AC. Aukerman Co. v. State, 902 S.W.2d 576, 578 (Tex.App.-Houston [1st Dist.] 1995, writ denied). “Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding.” Boyle, 148 S.W.3d at 178; A.C. Aukerman Co., 902 S.W.2d at 577. A landowner whose property has been taken, damaged, destroyed for, or applied to public use without adequate compensation may bring an inverse condemnation claim pursuant to article I, section 17 of the Texas Constitution. Boyle, 148 S.W.3d at 177. The constitution provides in part, “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person....” Tex. Const. art. I, § 17; Boyle, 148 S.W.3d at 177; see also Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 148 (Tex.App.-Austin 1998, no pet.) (“An ‘inverse condemnation’ proceeding is the avenue of relief available when property has been taken or damaged for public use without compensation or a proper condemnation proceeding, and the property owner wishes to recover compensation for his loss.”). The Texas *20 Constitution therefore waives governmental immunity from suit and liability “for the taking, damaging or destruction of property for public use.” Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); Boyle, 148 S.W.3d at 177. “To demonstrate that a constitutional inverse condemnation has occurred, the landowner must show that (1) the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in a ‘taking’ of property (3) for public use.” Boyle, 148 S.W.3d at 177; see also Steele, 603 S.W.2d at 791-92; City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). To be compensated for impairment of access, a landowner must prove he suffered a material and substantial impairment of access to his land. State v. Heal, 917 S.W.2d 6, 10 (Tex.1996); see also City of Waco v. Texland, 446 S.W.2d 1, 2 (Tex. 1969). In order to show material and substantial impairment, the property owner must establish (1) a total temporary restriction of access, (2) a partial permanent restriction of access, or (3) a partial temporary restriction of access due to illegal or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex.1993); City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex.1986). The “material and substantial test” acknowledges situations in which the access for which the property was specifically intended is rendered unreasonably deficient even though normal access remains reasonably available. Heal, 917 S.W.2d at 10. It is a question of law whether there is a “material and substantial impairment” to the remainder as a direct result of a taking. Schmidt, 867 S.W.2d at 777; Precast Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 (Tex.App.-Houston [14th Dist.] 1996, no writ). We review questions of law de novo and without deference to the lower court’s conclusion. Heal, 917 S.W.2d at 9; Precast Structures, 942 S.W.2d at 636. Before trial, the court must determine whether access rights have been materially and substantially impaired and control the admission of trial evidence accordingly. Heal, 917 S.W.2d at 9. Before METRORail, appellants had two driveways from San Jacinto for ingress and egress into the Property. After construction, appellants have one driveway that provides egress from the Property onto San Jacinto and another driveway that provides both ingress and egress from Wichita, immediately around the corner from the former entrance on San Jacinto. On appeal, appellants argue that this new configuration materially and substantially impairs the access to their property. Appellants rely on evidence that (1) their Property fronts on San Jacinto Street and has as its address 4905 San Jacinto Street, at which appellants’ business has operated continuously since 1993; (2) prior to the construction of the METRO railroad, Plaintiffs had fifty-five feet of driveway providing ingress and egress on San Jacinto, a major four-lane thoroughfare that is traveled by at least 10,000 vehicles per day; (3) there is now no ingress to the Property from San Jacinto as it is completely blocked by the railroad; (4) there is now only a twenty-foot-wide driveway that can be used only for egress from the Property onto San Jacinto during periods when a METRO train is not approaching; (5) the only ingress to the Property for customers is from a thirty foot driveway that fronts on Wichita Street, a minor two-lane cross street that has 97.5% less traffic on it than San Jacin-to; (6) it is now illegal to turn right (east) off of San Jacinto onto Wichita when a train is approaching from the south to the *21 north; and (7) it is also impossible to turn right (east) off of San Jacinto onto Wichita and then to the left onto Plaintiffs’ Property if even one vehicle has stopped at the light facing west at the intersection of San Jacinto and Wichita, as it blocks the driveway. Appellants also argue that their Property is the only retail business that fronts on and has an address on San Jacin-to that has had its frontage ingress totally blocked by the rail line. METRO argues that there has not been a material and substantial impairment of access and points to other evidence in the record. Michelle Solomon, an investigator hired by METRO, submitted an affidavit in which she testified from her visits to the Property that (a) vehicles can easily access and visit the Property from Wichita Street; (b) there is ample room in the Property’s front parking lot to allow visitors to enter, park in, and exit the parking lot; and (c) most vehicles exiting the Property exit onto Wichita Street. Although appellants argue that when a car has stopped on Wichita at the corner of Wichita and San Jacinto at the stoplight, cars turning from San Jacinto onto Wichita cannot enter the Property, we observe that in other places in the record appellants have emphasized that very few cars travel on Wichita. This fact lessens appellants’ complaint regarding a material and substantial impairment of access by the moving of the entrance to Wichita. The record also indicates that side streets around the Property allow customers to enter the property by traveling west on Wichita and turning right into the Property’s parking lot. Moreover, the frontage and signage of appellants’ business remain unchanged, so that there is no impairment of the ability of persons traveling on San Jacinto to locate the business and its entryway immediately around the corner on Wichita. Finally, although the Property lost one driveway that provided ingress and egress onto San Jacinto, the Property still retains another driveway with egress onto San Jacin-to and a driveway with both ingress and egress onto Wichita. We address, therefore, whether, given these facts, appellants’ Property has been materially and substantially impaired. Because both parties rely primarily on the same cases we analyze them in turn. Appellants rely on DuPuy 5 Texland, 6 and Marks 7 to show that METRO materially and substantially impaired their ingress to the Property. Appellants contend, “The fact that some access to the Property remained from the side street, Wichita, is immaterial under [Texas caselaw].” Appellants further contend, “The salient fact in DuPuy, Texland, and Marks where the Court found impairment of access is that in each case the property owners -preexisting frontage on the streets in question was interfered with but ingress was not totally denied. In Archenhold and Delaney, where there was found to be no impaired access, the property owner’s frontage was not altered by the construction.” Appellants argue that the taking here is more egregious than in those cases because appellants have “no ingress whatsoever from their frontage on San Jacinto.” In DuPuy, prior to construction of a viaduct, DuPuy’s property fronted and had full access to South 17th Street and sided with an alley connected to Franklin Avenue. 396 S.W.2d 103, 104 (Tex.1965). Af *22 ter the City of Waco constructed the viaduct, South 17th Street became fourteen feet above DuPuy’s property and a concrete support was placed beneath the viaduct. The end result of the construction was that DuPuy’s property was in a cul-de-sac. Id. at 110. The supreme court stated, The determination in a given situation of whether or not there has occurred a compensable damaging under the Constitution is to be approached from the premise that an access right is an easement judicially recognized as appurtenant to tangible property to protect the benefits of private ownership. This should not be extended to recognize a compensable damaging where a property owner has reasonable access to his property after construction of the public improvement. The benefits of private ownership have been assured so long as there is reasonable access and an action for compensation under the Constitution will not lie where such is the case. Id. at 109 (emphasis added). The supreme court concluded that the construction of the viaduct had deprived DuPuy of reasonable access to his property. DuPuy, 396 S.W.2d at 110. In Texland, the access to Texland’s loading docks was partially blocked by piers supporting the City’s viaduct at issue in DuPuy. 446 S.W.2d 1, 4 (Tex.1969). It became difficult, but not impossible, for trucks to maneuver in the area in front of the docks. Id. The supreme court modified the inverse taking rule as stated in DuPuy, stating that “property has been damaged for a public use within the meaning of the Constitution when access is materially and substantially impaired even though there has not been a deprivation of all reasonable access[.]” Id. at 2. The supreme court held there was a substantial and material impairment of access that was compensable as a damaging of property for public use. Id. at 4. In Marks, the supreme court held that the facts established a diminishment of value of the property as a result of a loss of access. Specifically, the court found, (1) The space in which to make the turn from ‘Old’ Orleans Street onto Gilbert Street is so narrow that large trucks, presumably of clients, cannot negotiate the turn; (2) the remaining ten (10) foot lane (Gilbert Street) is so narrow that (a) a vehicle could not travel down the street if another vehicle chose to park there, and (b) a vehicle could not safely travel down the street if a train were on the south track; and (3) since ‘Old’ Orleans remains one way north, the driver of a vehicle, too large to make an exit on Gilbert Street, would not be able to turn such vehicle and legally exist south on ‘Old’ Orleans. City of Beaumont v. Marks, 443 S.W.2d 253, 256 (Tex.1969). We disagree with appellants that the foregoing cases control the outcome here. Each case is factually distinguishable. In DuPuy, the plaintiffs property ended up in a cul-de-sac with complete access to the frontage road blocked, along with decreased access as a result of a concrete support placed underneath the viaduct. Here, appellant’s property is not in a cul-de-sac and no permanent obstructions preclude access to the Property. Likewise, in Texland, the impairment of access was much more severe than here. Specifically, large piers that supported the viaduct blocked access to plaintiffs property. Although not impossible for trucks to navigate through the piers, it was much more difficult. Here, appellants do not argue on appeal that METRO impaired its access to the Property by way of an obstruction such as that used in Texland. Finally, in Marks, the Court had specific evidence showing that construction of a railroad *23 grade separation project made it so that large trucks, presumably clients, could not access the plaintiffs property. Here, appellants presented no evidence showing that their clients could not access the Property. We agree with appellants that the Property has been impaired, but impairment alone is insufficient for a compensable taking. Rather, appellants must show that the impairment of access is material and substantial. See Texland, 446 S.W.2d at 2. The Texas Supreme Court has made it clear that we do not focus only on the issue of the closed access point without considering remaining access points. City of San Antonio v. TPLP Office Park Props., 218 S.W.3d 60, 66-67 (Tex.2007); Archenhold Auto. Supply Co. v. City of Waco, 396 S.W.2d 111, 114 (Tex.1965). Thus, although the rules stated from the foregoing supreme court cases remain valid, we review other cases that are more factually analogous. On the same date that DuPuy was decided, the supreme court also issued Ar-chenhold Automobile Supply Company v. City of Waco, which concerned a property across the street from DuPuy. 396 S.W.2d 111 (Tex.1965). In Archenhold, the court found that construction of the viaduct did not deprive Archenhold of reasonable access. The court reached this conclusion because Archenhold, unlike DuPuy, fronted Franklin Avenue, whereas DuPuy fronted on and had access to South 17th Street only. Id. at 112. The court adopted the rule from the court of New York that “one or two public streets may be closed without compensation to an abutting landowner if the remaining street furnishes suitable means of access.” Id. at 114 (citing Egerer v. Neio York Central & Hudson River R.R. Co., 130 N.Y. 108, 29 N.E. 95 (1891)). More recently, the Texas Supreme Court considered a material and substantial taking in City of San Antonio v. TPLP Office Park Properties. See 218 S.W.3d 60 (Tex.2007). In TPLP, a business park fronted the frontage road of 1-10 and abutted Freiling Drive, a residential street. The business park had entrances along 1-10 in addition to a driveway off of Freiling. The court noted that if Freiling were closed, the business park would still have at least six points of egress and ingress along the I — 10 access road in front of the business park. The court held that access to the business park would not be materially and substantially impaired by closure of access to Freiling because another way to access the property remained. The court, relying on Archenhold and State v. Wood Oil Distrib., Inc., noted that “[e]losing an access point and merely causing diversion of traffic or circuity of travel does not result in a compensable taking.” Id. at 66-67 (citing Wood Oil, 751 S.W.2d 863, 865 (Tex.1988)). In Interstate Northborough Partnership v. State, the State widened a frontage road in front of an office building, resulting in one of the five driveways that led to the building being closed for safety reasons. 66 S.W.3d 213, 217, 224 (Tex.2001). In addressing damages for unsafe access and the cost to cure, the court held, as a matter of law, that the trial court erred by finding a material and substantial impairment of access to the plaintiffs remainder property when “[a]fter the condemnation, reasonable access to [plaintiffs] property remained even though one of the five driveways to the property was closed for safety reasons.” Id. at 224 (citing Heal, 917 S.W.2d at 10). Finally, in Heal, the State of Texas condemned 436 square feet of the plaintiffs residential lot in order to widen Southwestern Boulevard where that street approached its intersection with North Central Expressway in Dallas. 917 S.W.2d at *24 7. The State also erected a barrier wall adjacent to the residential area along the southbound service lane of the Expressway between Southwestern Boulevard and Lovers Lane to reduce noise affecting residents on the interior streets. The interior streets that once fed onto the southbound service road were closed off. Thus, for residents to access the Expressway, they had to use local cross streets. The plaintiff’s expert offered evidence that “the new configuration might create some confusion, be more hazardous, and result in more difficulty in turning left into [their] driveway because of increased traffic and the bottleneck that would form in front of their property.” Id. at 11. The Texas Supreme Court stated that although “this may be evidence of inconvenience, it does not constitute material and substantial impairment.” Id. The Court also noted that in past impaired access cases there had been a physical obstruction created by a public improvement whereas, in Heal, the plaintiffs had alleged only that traffic would impair their access. Id. The Court distinguished traffic from a physical obstruction, noting that traffic would fluctuate and that, even if there is congestion, “access is not materially and substantially denied.” 8 Id. Because appellants still retain full access to the Property from San Jacinto via Wichita, as well as egress onto San Jacinto, we conclude that closure of appellants’ entrance off of San Jacinto did not amount to a material and substantial impairment. See City of San Antonio, 218 S.W.3d at 66-67 (“Closing an access point and merely causing diversion of traffic or circuity of travel does not result in a compensable taking.”); Heal, 917 S.W.2d at 11 (holding that plaintiff failed to show material and substantial impairment). Accordingly, we conclude that appellants’ claims are not compensable. See City of San Antonio, 218 S.W.3d at 67; Wood Oil, 751 S.W.2d at 865; Jordan v. Landry’s Seafood Restaurant, Inc., 89 S.W.3d 737, 743 (Tex.App.Houston [1st Dist.] 2002, pet. denied) (holding no taking when “overall plan provides ample parking and easy access to the property, and the restricting of traffic does not materially and substantially impair [plaintiff] from entering the property”). Because we conclude, as a matter of law, that the impairment of access at issue here does not rise to the level of material and substantial and therefore appellants’ claims are not compensable, we need not address appellants’ fourth issue, which contends that the trial court erred in granting METRO’S motions for summary judgment on the claims asserted by WSE because WSE is not an independent third party lessee, but rather is Burris’s wholly owned business which has an ownership interest that has been damaged by METRO’S actions. Nor do we need to address appellants’ fifth issue, which contends that the trial court erred in granting METRO’S objections to paragraph numbers 9 and 10 of Burris’s affidavit on the ground that the evidence is admissible and that its exclusion in all probability resulted in the trial court’s error in granting METRO’S motions for summary judgment and in denying Plaintiffs’ motion for partial summary judgment. We overrule appellants’ first, second, and third issues. Conclusion We affirm the trial court’s orders that granted summary judgment in part for METRO. Footnotes [1] Burris purchased the Property in 2000. Before purchasing the Property, Burris leased *18 the Property. [2] WSE pays rent to Burris on a month-to-month basis. [3] WSE has a parking lot in the rear (east side) of the store, but that area is used exclusively for delivery vehicles, trash pickup, and employee parking. The east side does not have a customer entrance. [4] The trial court stated that "summary judgment is granted as to Mr. Burris's claim regarding the encroachment of the pedestrian crossing signal pole near the southwest corner of the Property, the Court finding that there was a compensable taking from the date the pedestrian crossing signal pole was constructed through the date the pole was relocated off of the Property. Plaintiffs' Motion is otherwise DENIED.” METRO has not appealed the partial summary judgment in Burris’s favor. [5] DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965). [6] City of Waco v, Texland Corp., 446 S.W.2d 1 (Tex.1969). [7] City of Beaumont v. Marks, 443 S.W.2d 253 (Tex.1969). [8] The Heal court stated that it need not hold that traffic could never materially and substantially impair access such that a constitutional taking or damaging occurs.