Jayanti Patel v. City of Everman ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-303-CV
JAYANTI PATEL APPELLANT
V.
CITY OF EVERMAN APPELLEE
------------
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Jayanti Patel appeals the trial court’s granting Appellee City of
Everman’s (the City) no-evidence and traditional summary judgment motions.
In six issues, Patel contends that the City failed to attach evidence to its motion
for traditional summary judgment; that under the “law of the case” doctrine this
1
… See Tex. R. App. P. 47.4.
court is compelled to reverse the trial court’s judgment; that the trial court erred
by determining that Patel was collaterally estopped from bringing this suit by
nonsuiting his previous case against the City; and that the City, in its motion
for no-evidence summary judgment, failed to specifically state the elements for
which it alleged that there was no evidence. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
This litigation, an inverse condemnation action, is the continuation of
controversies that began in 1997 between Patel and the City. Patel and the
City have engaged in disputes over Patel’s buildings before administrative
agencies, the district court, the Tyler Court of Appeals, federal court, and now
this court. See Patel v. City of Everman, 179 S.W.3d 1, 8 (Tex. App.—Tyler
2004, pet. denied); see also Patel v. City of Everman, No. 4:07-CV-010-A,
2007 WL 1159688, *1 (N.D. Tex. 2007) (not reported in F. Supp. 2d).
In 1990, Patel purchased twenty apartment buildings in the Willow
Woods complex in Everman, Texas, for $1,200,000.00. In October 1995, the
City requested that Patel board up two of his buildings that were vacant. Patel
complied, and further, boarded up other unrented units to, allegedly, exclude
vagrants and prevent crime and vandalism.
In April 1997, Patel received notice that the City intended to demolish
fifteen of his buildings because their doors and windows had been boarded up
2
for more than six months. Afterwards, Patel attended a meeting of the
Everman Planning and Zoning Commission (the Commission) concerning the
proposed demolition of his buildings and informed the Commission that he was
unaware of the ordinance prohibiting boarding windows and doors for more
than a six-month period. At the conclusion of the meeting, the Commission
voted to recommend to the Everman City Council that fifteen of Patel’s
buildings be demolished.
In July 1997, Patel filed suit seeking an injunction against the City.
Ultimately, the trial court entered an agreed order, signed by and agreed to by
all parties, requiring Patel to bring all fifteen apartment buildings into compliance
with all city codes by February 9, 1998. On February 20, 1998, Killebrew, a
City Code Enforcement Officer, inspected all twenty of Patel’s properties.
Killebrew then sent Patel a notice of substandard building as well as separate
inspection reports on each of his properties.
On March 5, 1998, the City held a public hearing regarding the twenty
properties. The City’s board voted unanimously to demolish all twenty
buildings. Patel filed another suit seeking to enjoin the City from demolishing
the buildings on April 3, 1998. In that suit, Patel moved the district court to
issue a writ of certiorari to be directed to the City’s Building Board of Appeals
3
to review its decision to demolish his properties. Patel later nonsuited this suit
on July 23, 1999.
Patel then filed suit in federal court on November 29, 1999, claiming
various causes of action, including takings under both the federal and State
constitutions, equal protection violations, substantive and procedural due
process violations, and race discrimination. The federal court dismissed Patel’s
equal protection, substantive due process, and race discrimination claims with
prejudice. The federal court dismissed Patel’s remaining claims without
prejudice.
Patel next filed the current action on July 31, 2000, alleging claims of
unconstitutional takings pursuant to article 1 section 17 of the Texas
Constitution. The City filed a motion for summary judgment, which the trial
court granted. Patel appealed to the Tyler Court of Appeals. See Patel, 179
S.W.3d at 4.
The Tyler Court of Appeals affirmed the judgment as to Patel’s claims
related to the demolition by the City of fifteen of Patel’s buildings and remanded
as to the other buildings. 2 Patel,179 S.W.3d at 18. The Tyler Court of Appeals
2
… The Tyler Court of Appeals only remanded as to four of Patel’s
properties located at 403 Lee Street, 410 Race Street, 405 King Street, and
403 King Street—the buildings that were demolished but not subject to the
agreed order. See Patel, 179 S.W.3d at 18. The Tyler Court of Appeals did
4
reasoned that Patel had consented to the demolition of the fifteen buildings, but
they remanded the case back to the trial court, concluding that Patel’s
deposition testimony raised fact issues regarding the existence of violations of
the City’s building ordinances to the remaining buildings. Id.
After remand, the City filed an October 28, 2006 eighth amended
answer, which responded to the allegations made by Patel against the City in
his sixth amended original petition as to the five buildings affected by the Tyler
Court of Appeals’s remand. In its new pleading, the City raised defenses
predicated on provisions of Chapter 4 of the City’s code and Chapter 214 of
the Texas Local Government Code. In response, Patel filed his “Seventh
Amended & Supplemental Petition” on December 29, 2006. His prayer for
relief again was based on his inverse condemnation claim, but this time he
added in support of that claim reliance on the Fifth and Fourteenth Amendments
to the United States Constitution.
The City then filed for removal to federal court on January 4, 2007,
claiming that now that Patel had asserted federal takings and due process
violations, the federal court had jurisdiction over the entire suit, even the State
law claims, under 28 U.S.C. section 1367(a). Patel, 2007 WL 1159688, at *2.
not address Patel’s building located at 314 Race Street, which was not
demolished.
5
The United States District Court for the Northern District of Texas held that
none of Patel’s federal law theories was ripe and that the court lacked subject
matter jurisdiction over all claims, both State and federal. Id. at 3.
On July 26, 2007, the trial court held a hearing concerning the City’s
second motion for summary judgment. The City’s motion contained both a no-
evidence and a traditional summary judgment. In its no-evidence summary
judgment, the City argued that there was no evidence to support Patel’s takings
claims regarding his properties located at “302 and 314 Race Street.” The
City’s traditional summary judgment argued that Patel’s suit was an improper
collateral attack on the ruling of the Building Board of Appeals, and is barred by
principles of res judicata. The trial court granted the City’s motion and ordered
that Patel take nothing. This appeal followed.
III. L AW OF THE C ASE D OCTRINE
In his second issue, Patel argues that the City’s traditional motion for
summary judgment is predicated on issues in this case previously disposed of
by the Tyler Court of Appeals and the Supreme Court of Texas. See Patel, 179
S.W.3d at 8. Patel argues that because the Tyler Court of Appeals has
established the “law of the case” for the issue now on appeal to this court, we
are bound by the law of the case, and it dictates we reverse and remand “for
disposition on Patel’s takings claims.” We disagree.
6
The “law of the case” doctrine is the principle that questions of law
decided on appeal to a court of last resort will govern the case throughout its
subsequent stages. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596
(Tex. 2006); Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).
By narrowing the issues in successive stages of the litigation, the law of the
case doctrine is intended to achieve uniformity of decision as well as judicial
economy and efficiency. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.
1986). The doctrine is based on public policy and is aimed at ending litigation.
Id.
But a decision rendered on an issue before the appellate court does not
absolutely bar reconsideration of the same issue on a second appeal. Briscoe,
102 S.W.3d at 716 (citing Kempner v. Huddleston, 90 Tex. 182, 37 S.W.
1066, 1066–67 (1896)). Indeed, the decision to revisit a previous holding is
left to the discretion of the court under the particular circumstances of each
case. City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex. 2006). And
although a court considering a subsequent appeal should ordinarily be bound by
a prior decision in the same case, the court will not be bound by the law of the
case if there is a substantial change of issues or fact in the retrial. Wohlfahrt
v. Holloway, 172 S.W.3d 630, 638 n.9 (Tex. App.—Houston [14th Dist.]
2005, pet. denied), cert. denied, 549 U.S. 1052 (2006). Furthermore, the
7
doctrine has limited application following a summary judgment appeal. Hudson,
711 S.W.2d at 630–31. Thus, the law of the case doctrine in no way prevents
this court from considering legal questions that are properly before us for the
first time. See Briscoe, 102 S.W.3d at 716.
Patel argues that the Tyler Court of Appeals has already addressed the
three arguments on which the City’s traditional motion for summary judgment
is based, namely, res judicata, collateral estoppel, and consent. 3 Patel further
argues that the supreme court’s denial of the City’s petition from the Tyler
Court of Appeals’s decision reinforces that the law of the case has now been
established, and that it should govern this subsequent stage in that same
litigation.
The City argues that the Tyler Court of Appeals’s is not a “court of last
resort” for purposes of applying the doctrine to this case, that the supreme
court’s denial of the City’s previous petition is not indicative of the supreme
court’s position on the law set forth in the Tyler Court of Appeals decision, and
that the grounds asserted in the motion on which this appeal is predicated were
3
… The City did not plead these claims in its motion for summary
judgment that was granted by the trial court and reviewed by the Tyler Court
of Appeals. See Patel, 179 S.W.3d at 8. They were included in the City’s
motion for rehearing concerning the Tyler Court of Appeals decision. The Tyler
Court of Appeals denied the City’s motion.
8
never stated in the prior motion that the Tyler Court of Appeals reviewed and
denied.
We agree with the City that the denial or dismissal of a petition by our
supreme court does not give any indication of its opinion on the merits of an
issue. See Tex. R. App. P. 56.1(b)(1); Matthews Constr. Co., Inc. v. Rosen,
796 S.W.2d 692, 694 n.2 (Tex. 1990); see also Trevino v. Turcotte, 564
S.W.2d 682, 685 (Tex. 1978) (holding that a court of appeals’ conclusion was
not binding under the “law of the case” doctrine when the petitioner’s first writ
of error was denied as “writ refused, no reversible error”). We also agree with
the City that the Tyler Court of Appeals’s opinion did not address the same
issues that this court now considers, despite this being the same litigation.
The Tyler Court of Appeals held that there was a fact question “with
regard to the existence of [substandard building] violations” and that, when
construing Patel’s pleadings liberally, the trial court had improperly applied a
two-year statute of limitation for the “damaging” of property, rather than a ten-
year statute of limitation regarding a general takings claim. See, e.g., Waddy
v. City of Houston, 834 S.W.2d 97, 102 (Tex. App.—Houston [1st Dist.] 1992,
writ denied). Nothing in the Tyler Court of Appeals’ decision pertains to the
ground on which the motion that underlies this appeal is predicated—Chapter
214 of the Texas Local Government Code’s limited judicial review provisions.
9
Recognizing the discretionary nature of the doctrine and concluding that Patel’s
takings claim has substantially changed in the City’s most recent motion for
summary judgment, we decline to apply the law of the case doctrine and hold
also that the doctrine is inapplicable to this appeal. Thus, we overrule Patel’s
second issue.
IV. B UILDINGS A FFECTED BY THE T RIAL C OURT’S J UDGMENT
In his fifth issue, Patel argues that if this court holds that the Tyler Court
of Appeals’ opinion is not controlling under the law of the case doctrine, then
the trial court erred in granting summary judgment as to all twenty buildings.
And, Patel argues, because the City’s motion for traditional summary judgment
only referenced the four buildings located at 403 Lee Street, 410 Race Street,
405 King Street, and 403 King Street, this court should reverse and remand as
to the remaining buildings, except the building at 314 Race Street. 4 We
disagree.
An amended pleading supersedes and supplants all previous pleadings.
See Tex. R. Civ. P. 65; see also FKM P’ship, Ltd. v. Bd. of Regents of Univ. of
4
… The City specifically addressed the buildings located at 403 Lee
Street, 410 Race Street, 405 King Street, and 403 King Street in its second
traditional summary judgment motion. The City addressed 314 Race Street in
its no-evidence motion for summary judgment. Both of these motions were
contained within the City’s second motion for summary judgment.
10
Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (holding that amended
pleadings condemning a “smaller tract . . . [of land] effected a voluntary
dismissal of the [plaintiff’s earlier] claim as to that part of the larger tract not
included in the amended pleading.”)
In this case, it was Patel, through his seventh amended petition—the live
pleadings at the time of the trial court’s decision to grant the City’s second
motion for summary judgment—that narrowed the “land subject of [this] suit”
to 403 Lee Street, 410 Race Street, 405 King Street, 403 King Street, and 314
Race Street. Thus, it was Patel who effected a voluntary dismissal of the
remaining fifteen buildings. See id. We overrule Patel’s fifth issue.
V. T RADITIONAL S UMMARY J UDGMENT
In his first, third, and fourth issues, Patel argues that the trial court erred
by granting the City’s traditional summary judgment motion.
1. Standard of Review
A defendant is entitled to summary judgment on an affirmative defense
if the defendant conclusively proves all the elements of the affirmative defense.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Tex. R.
Civ. P. 166a(b), (c). To accomplish this, the defendant-movant must present
summary judgment evidence that establishes each element of the affirmative
defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121
11
(Tex. 1996). When reviewing a summary judgment, we take as true all
evidence favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004).
When a trial court’s order granting summary judgment does not specify
the ground or grounds relied on for its ruling, summary judgment will be
affirmed on appeal if any of the theories presented to the trial court and
preserved for appellate review are meritorious. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe,
915 S.W.2d 471, 473 (Tex. 1995).
2. Evidence Attached to Motion
In his first issue, Patel argues that the trial court erred in granting the
City’s traditional motion for summary judgment because the City failed to
attach any evidence to the motion. Patel specifically argues that even though
the City attached an appendix containing all relevant evidence to its first
amended motion for summary judgment, the trial court erred in considering this
evidence because the first motion was “superseded by [The City’s] Second
Motion for Summary Judgment.” Thus, Patel argues, the appendix attached to
12
the first motion could not have served as evidence to support the trial court’s
ruling on the City’s second motion. We disagree.
Texas Rule of Civil Procedure 166a(c) reads that “judgment sought shall
be rendered . . . if [the evidence] on file at the time of the hearing . . .
[demonstrates that] the moving party is entitled to judgment as a matter of
law.” Tex. R. Civ. P. 166a(c) (emphasis added). Nothing in rule 166a(c)
requires evidence to be physically attached to the motion. See id.; see also
R.I.O. Sys., Inc. v. Union Carbide Corp., 780 S.W.2d 489, 492 (Tex.
App.—Corpus Christi 1989, writ denied) (holding that it was proper for trial
court to consider previously filed summary judgment evidence even though no
evidence was attached to the later summary judgment motion the trial court
ruled on). A party, in its motion or response, may rely on summary judgment
evidence on file, provided that the motion or response expressly and specifically
identifies the supporting evidence on file. See Kotzur v. Kelly, 791 S.W.2d
254, 257 (Tex. App.—Corpus Christi 1990, no writ) (noting that a party must
expressly and specifically identify the supporting evidence “on file” that it seeks
to have considered by the trial court); see also Steinkamp v. Caremark, 3
S.W.3d 191, 194–95 (Tex. App.—El Paso 1999, pet. denied) (holing that
nonmovant responding to no-evidence motion for summary judgment could rely
on evidence already “on file” with trial court attached to opposing party’s prior
13
motion by referencing that evidence). In this case, the City complied with these
general rules.
Attached to the City’s first amended motion for summary judgment was
an appendix containing the evidence relied on by the City in support of its
second motion. The City’s second motion for summary judgment, the motion
underlying this appeal, specifically states that evidence relied on was the same
as that attached to the City’s first motion. The City’s second motion for
summary judgment also contains appendix page references to the appendix
attached to its first motion. Thus, the motion made specific references to
evidence already “on file” with the trial court. We hold that the trial court did
not err by relying on the previously filed evidence and overrule Patel’s first
issue.
3. Patel’s Inverse Condemnation Claim and Collateral Estoppel
In his third and fourth issues, Patel argues that the trial court erred in
granting the City’s motion for traditional summary judgment because Chapter
214 of the Texas Government Code does not apply to takings claims and thus
it was improper for the trial court to find that Patel’s previously non-suited
appeal from the Board’s determination collaterally estopped him from pursuing
this suit. In this issue, Patel argues that chapter 214 does not apply to his
claims; that chapter 214's limiting judicial review of claims to a thirty-day
14
appeal is improper; that the City’s ordinance does not recite the judicial review
provisions of chapter 214; and that the determination of what constitutes a
nuisance is to be made by a judge or jury, thus, the application of substantial
evidence review to the Board’s determination is improper.
a. Takings and the Substantial Evidence Rule
Property owners have the right to judicial review of acts by administrative
bodies that affect the constitutional right which prohibits the taking of private
property for public use without just compensation. Tex. Const. art. 1, § 17;
City of Houston v. Blackbird, 394 S.W.2d 159, 161–62 (Tex. 1965). This
right, however, is not necessarily the right to a full-blown de novo trial and can
be statutorily limited. See Blackbird, 394 S.W.2d at 163. City ordinances that
provide for judicial review of administrative determinations that buildings
constitute a public nuisance or otherwise provide for their demolition can
mandate the substantial evidence standard of review. Cedar Crest #10, Inc. v.
City of Dallas, 754 S.W.2d 351, 353 (Tex. App.—Eastland, 1988, writ denied);
see also Bates v. City of Beaumont, 241 S.W.3d 924, 929 (Tex.
App.—Beaumont 2007, no pet.). The statute that enables cities to pass such
ordinances is Texas Local Government Code chapter 214. See Tex. Loc. Gov’t
Code Ann. § 214.001(a) (Vernon 2008); see also Nussbaum v. City of Dallas,
948 S.W.2d 305, 308 (Tex. App.—Dallas 1996, no writ). When a city
15
ordinance is based on this statute, and the ordinance does not specifically
define judicial procedures, the procedural gaps are filled in by section
214.0012. See Tex. Loc. Gov’t Code Ann. § 214.0012; Nussbaum, 948
S.W.2d at 308 (reasoning that although a city’s ordinance did not state which
party had the burden of bringing administrative record to the reviewing court
hearing, the procedural gaps would be filled in by 214.0012 because chapter
214 enabled the city to promulgate the ordinance). Section 214.0012 provides
that an aggrieved property owner “may file in district court a verified petition
setting forth that [a city board’s] decision is illegal, in whole or in part, and
specifying the grounds of the illegality.” Tex. Loc. Gov’t Code Ann.
§ 214.0012. The aggrieved party must file the petition within thirty days of
receiving proper notification of the municipality’s determination or “such
decision shall become final,” and that determination is to be reviewed “under
the substantial evidence rule.” Id.; see also Bates, 241 S.W.3d at 927
(acknowledging thirty-day period prescribed by section 214.0012 applicable to
building owner’s filing suit challenging city’s decision to demolish building under
city’s ordinance). We conclude and hold that the City’s substandard building
ordinance was enacted pursuant to chapter 214 of the Texas Local Government
Code and that its judicial review provisions apply to Patel’s claims.
16
b. Collateral Estoppel
The City argued in its traditional summary judgment that Patel was
attempting to collaterally attack the orders of the Board’s decision. We agree.
To invoke the doctrine of collateral estoppel, a party must establish that (1) the
facts sought to be litigated in the first action were fully and fairly litigated in the
prior action; (2) those facts were essential to the judgment in the first action;
and (3) the parties were cast as adversaries in the first action. El Paso Natural
Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex. 1993) (per curiam). The
City raised collateral estoppel as an affirmative defense to Patel’s claims;
therefore, the City must conclusively prove all the elements of the defense as
a matter of law to establish their entitlement to summary judgment. See Ryland
Group, 924 S.W.2d at 121. The applicability of collateral estoppel to a
particular judgment is a question of law. Martin v. U.S. Trust Co. of N.Y., 690
S.W.2d 300, 307 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). The doctrine of
collateral estoppel promotes judicial efficiency and prevents inconsistent
judgments by precluding the relitigation of any ultimate fact issue previously
litigated even when the subsequent suit brings a different cause of action.
Williams v. City of Dallas, 53 S.W.3d 780, 785 (Tex. App.—Dallas 2001, no
pet.) (citing Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex.
2001)).
17
On April 3, 1998, within thirty days of his receipt of the demolition
orders, Patel filed suit, seeking to enjoin the City from demolishing his buildings
and seeking judicial review of the Board’s decision to do so by writ of certiorari.
By doing so, Patel was complying with the applicable standards prescribed by
Texas Local Government Code 214.0012. See Tex. Loc. Gov’t Code Ann.
§ 214.0012. But Patel nonsuited that suit on July 23, 1999. Having nonsuited
his direct attack on the ruling of the Board regarding his buildings, and not
having otherwise sought judicial review of the Board’s order within the thirty-
day period prescribed by section 214.0012, Patel is collaterally estopped from
now bringing this suit. See Ramirez v. Texas State Bd. of Medical Examiners,
99 S.W.3d 860, 863 (Tex. App.—Austin 2003, pet denied) (holding that
physician who did not seek judicial review under applicable administrative
remedies was “barred by the doctrine of res judicata and collateral estoppel
from litigating this matter once again”). We hold that the trial court did not err
in granting the City’s traditional summary judgment under the doctrine of
collateral estoppel and overrule Patel’s third and fourth issues.
VI. N O-E VIDENCE S UMMARY J UDGMENT
In his sixth issue, Patel argues that the trial court erred in granting the
City’s no-evidence motion for summary judgment. In this argument, Patel does
not dispute that he did not file a response to the City’s motion; rather, he
18
argues that the City failed to comply with the requirements with rule 166a(i).
Specifically, Patel complains that the City did not specifically state the elements
“to which there [was] allegedly no evidence.”
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court
must grant the motion unless the nonmovant produces summary judgment
evidence that raises a genuine issue of material fact. See Tex. R. Civ. P.
166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002).
The City argues that Patel did not object to the trial court’s granting the
no-evidence summary judgment on the grounds that its motion was not
sufficiently specific. Thus, the City argues, Patel has not preserved this issue
for review. See Tex.R. Civ. P. 166a(i). Furthermore, the City argues that the
motion sufficiently specified the elements for which there was no evidence.
We assume, without deciding, that Patel preserved this issue for our
review. See McGrath v. FSI Holdings, Inc., 246 S.W.3d 796, 805 (Tex.
19
App.—Dallas 2008, pet. denied) (reasoning that no exception or objection is
necessary at trial court level to preserve issue that no-evidence summary
judgment motion fails to comply with specificity requirement of Rule 166a(i));
compare Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 117 (Tex.
App.—Waco 1999, no pet.) (holding that appellant failed to preserve error
because appellant failed to object to the form of no-evidence summary
judgment motion).
When a party urges that its no-evidence summary judgment motion be
granted on the ground that “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,” the motion “must state the elements as to which there
is no evidence.” Tex. R. Civ. P. 166a(i). Here, the City alleged in its no-
evidence motion as follows:
In order to recover under Article I, Section 17, Plaintiff must prove:
(1) the government’s intentional acts (2) resulted in a taking of the
plaintiff’s property (3) for public use. In this case, there is no
evidence of an intentional act by Defendant . . . no evidence of
taking, damaging or destruction of the property, and no evidence
that any alleged taking was for public use. [Citations omitted.]
In other words, the City specifically identified Patel’s claims and the
challenged elements for which Patel presented no evidence. See Nelson v.
Regions Mortgage, Inc., 170 S.W.3d 858, 861–62 (Tex. App.—Dallas 2005,
20
no pet.) (holding that “by specifically identifying each challenged element,” the
party’s no-evidence summary judgment motion complied with the requirements
of rule 166a(i)); Baker v. Gregg County, 33 S.W.3d 72, 77 (Tex.
App.—Texarkana 2000, pet. dism’d) (holding that motion for no-evidence
summary judgment in action by employee for age discrimination, retaliatory
discharge, and constitutional violations was not defective where motion listed
employee’s claims and stated elements that were lacking in each). Accordingly,
we hold that the City’s no-evidence summary judgment motion was not
defective and overrule Patel’s sixth issue.
VII. C ONCLUSION
Having overruled Patel’s six issues, we affirm the trial court’s judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: GARDNER and WALKER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: April 2, 2009
21