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 2005-01

City of Harlingen v. Obra Homes, Inc., Claude Thacker and Catherine Thacker ( 2005 )


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        NUMBER 13-02-268-CV

    COURT OF APPEALS

    THIRTEENTH DISTRICT OF TEXAS

    CORPUS CHRISTI – EDINBURG

     

      CITY OF HARLINGEN,                                                                 Appellant,

    v.

    OBRA HOMES, INC., CLAUDE THACKER

    AND CATHERINE THACKER,                                                     Appellees.  



        On appeal from the 138th District Court

    of Cameron County, Texas.




      M E M O R A N D U M O P I N I O N


         Before Chief Justice Valdez and Justices Rodriguez and Garza


                                 Opinion by Chief Justice Valdez

       

              Obra Homes, Inc. (“Obra”) sued the City of Harlingen (“the City”) contending the City’s failure to grant its zoning request was a “taking” under the Texas Constitution and was also a violation of due process and equal protection rights. After a trial, the jury found the City acted unreasonably in failing to approve the zoning request but awarded Obra only $125.00 in lost profits. The trial court increased the damages to $16,000.00.

              Now on appeal, the City contends: (1) Obra’s claims were not ripe; (2) Obra’s claims were rendered moot by subsequent re-zoning of the property; (3) Obra lacked standing to sue for a taking of the property; (4) no taking occurred; (5) loss of profits are not the proper measure of damages for a takings claim; (6) the trial court erred in increasing the award; and (7) Obra presented no evidence that its due process rights were violated. Obra cross-appeals contending the evidence established damages in excess of $16,000 and the trial court abused its discretion in failing to award greater damages. We reverse the judgment of the trial court and render judgment in favor of the City.

    I. FACTUAL AND PROCEDURAL BACKGROUND

              Obra is in the business of developing land and selling homes. In June 1998, Obra entered into an earnest-money contract to purchase an undeveloped tract of land from Catherine Thacker. Under the contract, Obra would pay Thacker $606,832 for the property and closing would occur on December 10, 1998. Possession was to be delivered at closing.

              The tract of land consists of about 44.6 acres located in Harlingen. Obra planned to subdivide the property and build between 280 and 287 single-family homes on the property. Each home would be built on a lot measuring about 5,000 square feet.

              The contract required the enactment of certain zoning ordinances which would permit the erection of single family homes on the property. An addendum to the contract gave Obra the right to conduct studies, including inspection of zoning laws, within 160 days of the contract’s effective date. If Obra discovered the property was not suitable for its intended use within the 160-day period, it could notify Thacker and cancel the contract.

              When Obra entered into the earnest money contract, the tract of land was zoned N, which refers to areas not yet zoned or newly annexed or subdivided. In June 1998, Obra applied for a re-zoning of the property to R-2, which refers to an area for the development of primarily duplex family units. Under this designation, Obra contended it would have been able to build single family homes on 5,000-square-foot lots.

              The City staff and the Planning and Zoning Commission both recommended approval of the re-zoning request. The City staff, however, noted the availability of R-1 zoning, which refers to an area designated for the development of single family homes on lots no smaller than 6,000 square feet.

              On August 5, 1998, when the request was presented to the City Commission, several citizens voiced concerns, which included complaints that the lot-size was too small and the plan would negatively impact the value of the lots in surrounding areas and overcrowd local schools. The City Commission did not approve or deny the request, and the request failed by default.

              On the recommendation of the City staff, Obra re-submitted its proposed subdivision under a request to have the property re-zoned to PD. This type of zoning refers to a planned development, allows flexibility in planning, and, according to Obra, could have allowed the building of single-family residences on 5,000-square-foot lots.

              Again, the City staff and the Planning and Zoning Commission recommended approval of the re-zoning request. When the request went before the City Commission, the Mayor proposed postponing the vote so a meeting could be held between Obra, representatives of the homeowners, and City representatives. Obra agreed. At the meeting, however, Obra and the homeowner representatives were not able to reach an agreement that both addressed the representatives’ concerns and was satisfactory to Obra.

              On October 7, 1998, Obra’s request for PD zoning was again considered by the City Commission. Several citizens spoke in opposition to re-zoning, voicing many of the same concerns previously expressed and stating R-1 was the best zoning option. The proposed ordinance changing the zoning from N to PD did not receive the required support and accordingly, failed.

              Although Thacker gave Obra an extension to close on the property for an additional sum of money, Obra ultimately failed to consummate the sale and the contract expired. Thacker retained the property and the earnest money.

              Obra’s initial pleading sought injunctive relief including a permanent injunction preventing the City from denying its request for PD zoning. Obra later amended its pleading to seek economic damages, consequential damages, lost profits, attorney’s fees, and costs.

              Other than questions pertaining to the amount of damages, the only question presented to the jury was whether the City acted “unreasonably in failing to approve or deny [Obra]’s requests for re-zoning.” All but one juror answered yes. The final judgment did not specify on what claims judgment was rendered and awarded only monetary damages.

    II. ANALYSIS

    A. Jurisdictional Challenges to All Claims

              By its first issue, the City contends Obra’s claims were not ripe because Obra never obtained a “final decision” on the zoning requests. Alternatively, the City argues by its second issue that Obra’s claims became moot.

              Both ripeness and mootness are components of subject matter jurisdiction. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (if plaintiff lacks standing or controversy becomes moot, trial court lacks subject matter jurisdiction and any ruling is impermissibly advisory and void). Whether the trial court has subject matter jurisdiction over a claim is a question of law and is reviewed de novo. 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 determine whether subject matter jurisdiction exists, we look to the pleadings and also may consider evidence relevant to the jurisdictional issue. Id.

    1. Ripeness

              The City contends the failure to approve or deny Obra’s re-zoning requests was not a “final decision.” We disagree.

              A final decision regarding the application of zoning regulations to the property at issue is required for a due process challenge to land-use decisions to be ripe. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 929-30 (Tex. 1998). This prerequisite requires a “‘final and authoritative determination of the type and intensity of development legally permitted on the subject property.’” Id. (quoting MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986)). We cannot determine whether a taking has occurred until we can compare the uses prohibited by the regulation to any permissible uses that may be made of the subject property. Id.

              A “final decision” generally requires denial of a development plan and a denial of a variance from the controlling regulations. Id. at 932. The term “variance” includes other types of available permits or actions that could provide similar relief. Id. at 930. However, futile variance requests or re-applications are not required to render the claim ripe. Id. at 929. Nor is the party required to seek permits for development that he does not deem economically viable. Id. at 932.

              Here, Obra submitted an application for re-zoning to R-2 and later to PD. The City’s inaction on both applications effectively denied Obra’s application. In addition, Michelle McCoy, the director of the planning and zoning commission, testified that after Obra’s second re-zoning request failed for lack of support in the commission, she informed Obra “that that was the end of the line.” She also told Obra it could file an application for R-1 zoning if it chose. R-1 zoning would require Obra to build single family residences on 6,000 square-foot lots. The City was not going to allow development of single family residences on 5,000 square-foot lots but would consider a plan for development on 6,000 square-foot lots. Tommy Brownell, the land acquisition and development manager for Obra, testified that, at the price they would pay per acre for the land, Obra would not have profited enough from building on 6000 square-foot lots to justify the risk.

              Although the commission did not explicitly deny the re-zoning applications, its inaction effectively denied Obra the re-zoning it sought. Under these circumstances, we conclude Obra received a final decision and its claims are ripe for adjudication. We overrule the City’s first issue.

    2. Mootness

              The City also contends the case and appeal became moot after the property was later sold to Elizarde Homes, Inc. and Elizarde Homes obtained re-zoning of the property to R-1. Again, we disagree.

              An appeal becomes moot when the appellate court’s judgment cannot affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1998). That is, the cause is moot when our judgment can have no “practical legal effect upon a then-existing controversy.” Bd. of Adjustment, City of Corpus Christi v. McBride, 676 S.W.2d 705, 708 (Tex. App.–Corpus Christi 1984, no writ).

              In McBride, the principle case relied on by the City, the appellant sought the reinstatement of an injunction preventing the continued construction of a home. Id. at 706, 708. During the pendency of the appeal, the appellee filed a motion to dismiss the appeal on the basis, in part, that the work had been completed. Id. at 709. The appellee contended the portion of the appeal pertaining to the injunction was rendered moot. Id. Focusing on the relief requested, we agreed the complaint was moot because reinstatement of the injunction would have no practical effect. Id.

              Here, Obra’s complaint was not rendered moot by the subsequent sale and re-zoning of the property. Unlike the appellant in McBride, Obra does not seek reinstatement of an injunction or similar relief. Instead, Obra seeks monetary damages suffered by virtue of the City’s alleged violation of Obra’s constitutional rights. The fact that Thacker later sold the property to another party and the City later re-zoned the property does not eliminate or otherwise render moot Obra’s claims that the City’s actions deprived it of lost profits or other monetary damages. Our judgment would have a practical, legal effect on the controversy between the parties. We conclude Obra’s claims are not moot, and we overrule the City’s second issue.

    B. Takings Claim

              Having determined that Obra’s claims are ripe and not moot, such that the trial court properly exercised subject matter jurisdiction over the case, we turn to the City’s remaining issues on appeal. In its third issue, the City contends Obra did not have standing to sue under the takings clause of the Texas Constitution. We agree.

              The test for standing requires that a real controversy exist between the parties that will be actually determined by the judicial relief sought. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Standing is a constitutional prerequisite to maintaining a suit and also a component of subject matter jurisdiction. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001); Tex. Ass’n of Bus., 852 S.W.2d at 444-45.

    1. Standing

              Obra sued the City under the takings clause of the Texas Constitution. See Tex. Const. art. I, § 17. The clause states in relevant part “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation.” To establish standing under this clause, a party must show the action complained of resulted in a “taking” of vested property rights. City of Houston, 73 S.W.3d at 309. The word “property” as used in the takings clause refers to “every species of property.” Renault, Inc. v. City of Houston, 415 S.W.2d 948, 952 (Tex. Civ. App.–Waco 1967), rev’d on other grounds, 431 S.W.2d 322 (Tex. 1968).

    2. The Property

              Initially, the parties dispute what “property” was the subject of Obra’s takings claim. Obra contends on appeal that the earnest money contract and the money it expended in engineering and platting are the “property” at issue here. The City contends the tract of land is actually the property that was the subject of the trial because Obra’s petition complained of the loss of use and enjoyment of this land. A review of Obra’s application for injunctive relief supports the City’s position.

              In the description of the facts in Obra’s third amended application for injunctive relief, Obra mentioned the earnest money contract but never referred to the contract as the property at issue in its claim. Rather, every use of the expression “the property” in the background section referred to the tract of land and nothing else:

    2.01 . . . Plaintiff . . . entered into a real estate earnest money contract to purchase the following property: [description of the tract of land].


    2.02 . . . The property described above was purchased for such a purpose and said property is within the city limits of the City of Harlingen.


    2.03 The above described property was at all times zoned NZ or not zoned by the city. It had been contemplated by the city to be property that would be zoned for a variety of purposes. However, at all times relevant to the issues in this case the City of Harlingen had not classified the property.


    2.04 . . . the Plaintiff began the process to have the property zoned R2. . . .


    (emphasis added.)

              In the section in which Obra set forth its takings claim, Obra continued to use the expression “the property” as if referring to the tract of land. Nowhere in this section did Obra even suggest that it was referring to the contract or money invested in engineering and platting when it used the term “the property.” Obra also referred to loss of its “rights to use and enjoy its property” and “permanent loss of use and value of [its] property.” These expressions refer to land and not to an earnest money contract.

              Additionally, the theory presented by Obra during arguments and advanced by its evidence at trial was that the City’s failure to re-zone the property (i.e., the physical tract of land) prevented Obra from developing the land as it had planned. The evidence and arguments were not that the City’s conduct prevented Obra from exercising its rights under the earnest money contract. As the City aptly noted during oral arguments, “You only re-zone land; you don’t re-zone contracts.” Accordingly, we conclude Obra’s takings claim pertained to the land.

    3. Property Rights in the Tract of Land

              The City contends Obra did not have an interest in the land sufficient to give it standing to sue under the takings clause. In addressing the City’s contention, we look at what rights to the land Obra obtained in the earnest money contract.

              An option contract for the sale of land gives the optionee a right to choose to purchase the property within the time and the terms specified but does not obligate him to do so. Chambers County v. TSP Dev., Ltd., 63 S.W.3d 835, 838 (Tex. App.–Houston [14th Dist.] 2001, pet. denied); Rollingwood Trust No. 10 v. Schuhmann, 984 S.W.2d 312, 315 (Tex. App.–Austin 1998, no pet.); Lefevere v. Sears, 629 S.W.2d 768, 770 (Tex. Civ. App.–El Paso 1981, no writ). Title does not pass to the buyer at the time an option contract is formed, and time is of the essence. Chambers County, 63 S.W.3d at 838; Lefevere, 629 S.W.2d at 770.

              A contract for the sale of land, on the other hand, is an agreement that binds the buyer to buy and the seller to sell under the terms of the contract. Chambers County, 63 S.W.3d at 838; Greve v. Cox, 683 S.W.2d 535, 536 (Tex. App.–Dallas 1984, no writ); Lefevere, 629 S.W.2d at 770. The term “sale” refers to the transfer of the seller’s equitable title in consideration of the buyer’s promise to pay the purchase price. Frady v. May, 23 S.W.3d 558, 565 (Tex. App.–Fort Worth 2000, pet. denied). That is, a contract for sale passes equitable title to the buyer. Chambers County, 63 S.W.3d at 838; Lefevere, 629 S.W.2d at 770.

              The primary test to determine whether an earnest money contract pertaining to the sale of real estate is an option contract or a contract of sale is whether the seller’s only contractual remedy in the event of the buyer’s default is liquidated damages. Chambers County, 63 S.W.3d at 838; Seelbach v. Clubb, 7 S.W.3d 749, 756 (Tex. App.–Texarkana 1999, pet. denied); Lefevere, 629 S.W.2d at 770-71. If the only contractual remedy for the seller is retention of the earnest money, the agreement is an option contract. Chambers County, 63 S.W.3d at 838; Seelbach, 7 S.W.3d at 756. Absent such a provision, the agreement typically is a contract of sale. Cadle Co. v. Harvey, 46 S.W.3d 282, 286 (Tex. App.–Fort Worth 2001, pet. denied).

              Courts also look at other factors to determine whether the contract is an option contract or one of sale. One such factor is whether the language of the contract is prospective. See Chambers County, 63 S.W.3d at 839 (prospective language supported conclusion that contract was option contract); Seelbach, 7 S.W.3d at 756 (language in contract stating seller “agrees to sell” and buyer “agrees to buy” is not language of contract of sale but agreement to sell in future). Another factor is whether time is of the essence. See Chambers County, 63 S.W.3d at 840 (time-is-of-the-essence clause supported conclusion that contract was option contract); Lefevere, 629 S.W.2d at 770 (in option contract, time is of essence). Yet another factor is whether the language of the contract itself conveys to the party seeking standing any rights to possess or enjoy the property. Seelbach, 7 S.W.3d at 756; see Cadle Co., 46 S.W.3d at 286 (“Typically, contracts for sale provide that upon making a down payment, the buyer is entitled to immediate possession of the property, with the remaining purchase price paid in installments over a period of time.”).

              The opinions of our sister courts in Seelbach and Chambers County are particularly instructive here. In Seelbach, Seelbach entered into an earnest money contract to purchase some land from the McCoys. Seelbach, 7 S.W.3d at 753. The closing was conditioned on the McCoys establishing for Seelbach that any obstructions to his right to ingress or egress be resolved in his favor. Id. Seelbach contended locked gates interfered with his ability to close on the property and asked the county and two individuals to take down the gates. Id. When the county and the individuals failed to do so, Seelbach sued. Id. at 754. Although the court granted him a permanent injunction, it denied his request for damages and other recovery. Id. at 752.

              On appeal, among the issues the court considered was whether Seelbach had standing to sue for damages under the earnest money contract. Id. at 755. The court focused its analysis on determining whether the contract was a contract of sale or a contract to sell the property at some point in the future. Id. at 755-56.

              In concluding the earnest money contract was not a contract of sale but rather an option contract, the court focused on several characteristics of the contract. First, the language of the contract was prospective, indicating the actual sale and purchase of the land would occur in the future. Id. Second, the court noted the contract provided that the seller’s only remedy in the event of buyer’s default was the retention of earnest money. Id. Because of these provisions, the execution of the earnest money contract was an option contract and not a contract of sale. Id. (citing Scott v. Vandor, 671 S.W.2d 79, 84 (Tex. App.–Houston [1st Dist.] 1984, writ ref’d n.r.e.) and Broady v. Mitchell, 572 S.W.2d 36, 40 (Tex. Civ. App.–Houston [1st Dist.] 1978, writ ref’d n.r.e.)). Third, the contract did not give Seelbach the right to enter and otherwise possess the land until the closing. Id. Under these circumstances, Seelbach did not have any right to possession of the land and could not recover for actual damages for obstructed ingress and egress to the land. Id.

              In Chambers County, the issue was whether a contract pertaining to the sale of land was an option contract or a contract for sale, the latter of which would confer standing on a party to raise a takings claim under the Private Real Property Rights Preservation Act. Chambers County, 63 S.W.3d at 837 (citing Tex. Gov’t Code Ann. §§ 2007.001-.045 (Vernon 2000)). The act allows a person with legal or equitable title to land to sue for a taking. Id. at 837-38 (citing Tex. Gov’t Code Ann. § 2007.002(2) (Vernon 2000)).

              In concluding the contract was an option contract and not one for sale, the court relied on several characteristics of the contract. First, the only remedy to the seller on default of the buyer was retention of the deposit. Id. at 839. Second, the language of the contract was prospective. Id. That is, the contract said, “Seller agrees to sell and Buyer agrees to buy . . .” instead of “Seller(s) ‘sells and agrees to convey . . . .’” Id. Third, the contract left open various terms of sale for future determination. Id. at 839-40. Fourth, the contract stated throughout that time was of the essence and contained clauses stating that if the land was not purchased before a specific date, an additional deposit would be required. Id. at 839-40. The court added that “[t]ime being of the essence is a hallmark of the option contract.” Id. at 840 (citing Smith v. Hues, 540 S.W.2d 485, 488 (Tex. Civ. App.–Houston [14th Dist.] 1976, writ ref’d n.r.e.)). After finding the contract was an option contract, the court concluded the buyer did not have equitable title and, thus, had no standing to bring his suit. Id.

              Although neither case dealt specifically with a takings claim brought under the Texas and United States Constitutions, we do find meaningful guidance in these cases. These courts analyzed what rights to land an earnest money contract will confer on the “buyer,” which is the precise issue now before us.

              In this case, nearly all of the factors considered by Seelbach and Chambers County weigh in favor of concluding the earnest money contract was an option contract and did not give Obra standing to sue for a taking of the land. First and foremost, the contract limited the seller’s recovery to the earnest money. The contract contained a clause stating that, should Obra default, Thacker could “(1) enforce specific performance, or (2) seek such other relief as may be provided by law, or both, or (3) terminate this contract and receive the Earnest Money as liquidated damages, thereby releasing Buyer from this contract.” However, an added clause to the contract stated the earnest money was nonrefundable and Obra would forfeit the earnest money upon its default or termination of the contract for any reason. This clause effectively limited Thacker’s choice of remedy only to the earnest money and rendered the contract an option contract. See Seelbach, 7 S.W.3d at 755.

              Second, the contract between the parties contained the language seller “agrees to sell and convey” and buyer “agrees to buy” the property. This language is prospective, suggesting the sale would take place in the future and supporting a conclusion that the earnest money contract was an option contract. See Chambers County, 63 S.W.3d at 839.

              Third, the contract did not give Obra the right to enter and take possession of the property until the closing of the sale. The only right of access Obra was given by the contract was the limited right to enter the property in order to conduct its feasibility studies pursuant to the addendum to the contract. See Seelbach, 7 S.W.3d at 755-60.

              Fourth, the contract stated time was of the essence and that “strict compliance with the times for performance is required.” In fact, Obra paid for an extension of the earnest money contract. See Chambers County, 63 S.W.3d at 840.

              Notably, Obra never consummated the purchase of the property and the earnest money contract expired. Thacker retained both the earnest money and the property.

              Under these circumstances, we conclude the earnest money contract was an option contract. Obra never obtained equitable title under the contract or the right to possess or develop the land. The contract gave Obra only the right to choose to purchase the land in the future, a right Obra chose not to exercise. Thus, Obra had no right in the land that was “taken” by the City’s zoning decision. Accordingly, we conclude Obra had no standing to assert a takings claim under the Texas Constitution, and we sustain the City’s third issue.

    C. Due Process Claims

              The City contends by its fifth issue that Obra presented no evidence the City violated Obra’s state and federal substantive due process rights. Specifically, the City contends that article one, section nineteen of the Texas Constitution cannot support the money judgment. The City also argues Obra failed to establish a constitutionally protected property right to support its federal claim.

    1. State Claim

              Article one, section nineteen of the Texas Constitution creates no private right of action. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995) (holding no implied private right of action for damages arising under the free speech and free assembly clauses of the Texas Constitution); O’Bryant v. City of Midland, 949 S.W.2d 406, 413-14 (Tex. App.–Austin 1997) (applying City of Beaumont to due process claim brought under Texas Constitution), rev’d in part on other grounds, 18 S.W.3d 209 (Tex. 2000); Harrison v. Tex. Dep’t of Criminal Justice–Institutional Div., 915 S.W.2d 882, 888 (Tex. App.–Houston [1st Dist.] 1995, no writ) (no implied private right of action for money damages under article one, section nineteen of Texas Constitution). It only supports claims for equitable relief. Harrison, 915 S.W.2d at 888.

              Here, although Obra initially sought declaratory and injunctive relief, it pursued only monetary relief once it allowed the earnest money contract to expire. The judgment awarded only monetary relief. Thus, article one, section nineteen of the Texas Constitution cannot support the judgment rendered here. See id.

    2. Federal Claim

              The City also contends that Obra did not prove the City’s conduct resulted in a violation of Obra’s federal due process rights.

              A zoning ordinance may substantively violate due process if the action has no foundation in reason and is merely an arbitrary or irrational exercise of power having no substantial relation to the public heath, the public morals, the public safety or the public welfare. See Mayhew, 964 S.W.2d at 935. Obra contends that the City’s actions constituted a deprivation of these due process rights. The City responds that Obra has waived its federal claim on appeal by filing a motion for entry of judgment on the verdict.

              Where a party moves the court to enter a judgment and the court enters the judgment requested, the party cannot later complain of the judgment. Casu v. Marathon Refining Co., 896 S.W.2d 388, 391-92 (Tex. App.–Houston [1st Dist.] 1995, writ denied); Texas Commerce Bank Reagan v. Lebco Constructors, Inc., 865 S.W.2d 68, 80 (Tex. App.–Corpus Christi 1993, writ denied). An exception exists by which a party desiring to initiate the appellate process may move the court to render judgment on an erroneous verdict without being bound by its terms: to preserve its complaint about a judgment, the party moving for judgment should state in its motion that it agrees only with the form of the judgment and note its disagreement with the result and content of the judgment. See First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989) (per curium); Lebco, 865 S.W.2d at 80.

              Here, Obra styled its motion “Motion for Judgment Non-Obstante Verdicto, Motion for Attorney’s Fees and in the alternative, Motion for New Trial.” However, in the motion, Obra requested an entry of judgment based on the verdict reached by the jury, and asked the court to find, in accordance with the jury verdict, that the City acted arbitrarily and capriciously in failing to re-zone the property that was the subject of the lawsuit. Obra explicitly noted that the case was tried under Texas state law only, specifically the Uniform Declaratory Judgment Act. Obra did not assert any disagreement with the result of the judgment or the reasoning incorporated therein, but rather requested a judgment notwithstanding the verdict based on what it felt were inadequate damages: “The jury’s failure to award the undisputed amount was against the great weight and preponderance of the evidence. There was no evidence to sustain the jury’s award of $125. . . . The plaintiffs move the court to enter judgment in the amount of $1,500.”

              We see that Obra failed to rely on any federal claim or federal law as a basis for the jury’s verdict, and couched its motion for entry of judgment in terms of state law only. Obra could have, but did not, move for entry of judgment based on its federal due process claims. However, because it explicitly relied on its state law-based claims only and expressed no disagreement with the result and content of the judgment beyond damages, we conclude that it cannot now complain on appeal about the alleged violation of its federal due process rights, as this was not made a part of the court’s basis for entering judgment. See Lebco, 865 S.W.2d at 80. Accordingly, we conclude that the federal due process claim was not incorporated into the judgment and so does not support the judgment, and we sustain the City’s fifth issue on appeal.

              Because our disposition of these issues disposes of this case, including Obra’s cross-claim, we do not address the parties’ remaining issues. See Tex. R. App. P. 47.1.

    III. CONCLUSION

              The City has established that Obra lacked standing to bring its takings claim and that Obra’s due process claims do not support the judgment rendered. Accordingly, we reverse the judgment of the trial court and render judgment in favor of the City.

     


                                                                                                                                    

                                                                                          Rogelio Valdez,

                                                                                          Chief Justice


     


     Memorandum Opinion delivered and filed

    this 13th day of January, 2005.