the City of Georgetown v. Days Inn of Georgetown And Ramabhai L. Patel and Shantaben R. Patel, D/B/A Days Inn of Georgetown ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00141-CV
City of Georgetown, Texas, Appellant
v.
Days Inn of Georgetown; and Ramabhai L. Patel and Shantaben R. Patel,
d/b/a/ Days Inn of Georgetown, Appellees
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 98-444-C368, HONORABLE BURT CARNES, JUDGE PRESIDING
The City of Georgetown (“City”) appeals a no-evidence summary judgment granted
in favor of Days Inn of Georgetown, Ramabhai L. Patel and Shantaben R. Patel, d/b/a Days Inn of
Georgetown (collectively “Days Inn”). In a no-evidence summary judgment, the trial court must
grant the motion unless the non-movant produces summary judgment evidence raising a genuine issue
of material fact as to the elements specified in the motion. Tex. R. Civ. P. 166a(i). Because the City
failed to produce summary judgment evidence in response to the motion, we affirm the trial court
judgment.
Background
Since 1978, Days Inn has maintained an off-premises advertising sign along IH-35 in
a residential area in Georgetown, Texas. In 1993, the City enacted an ordinance regulating signs and
prohibiting off-premises signs in residential areas. Because Days Inn’s sign was in place before the
enactment of the ordinance, it qualified as a “nonconforming sign.” The ordinance also specifically
provides that a nonconforming sign may be continued subject to various limitations. For example,
as relevant in this case, the “non-conforming signs may be maintained and repaired with like materials
and the sign message may be changed, provided that there is no extension, enlargement, change in
location, or structural modification to any non-conforming aspects of the sign.” Georgetown, Tex.,
Ordinance No. 93-5, IV(B)(2) (1993). In March 1998, a storm damaged the supporting poles of
Days Inn’s sign. The storm damage severed two of its five supporting poles, which caused the sign
to lean. Days Inn repaired the sign by replacing all five vertical poles with new poles. The new poles
were placed twelve to eighteen inches from the poles’ original locations. After noticing the new
poles, the City contended the sign lost its nonconforming status under the ordinance and must
conform to the “off-premises advertising sign” ordinance.
The City sued Days Inn seeking: (1) a temporary injunction requiring Days Inn to
remove the sign, (2) a permanent injunction requiring Days Inn to comply with the city ordinance for
off-premises advertising signs, and 3) civil penalties. The City alleged that “upon removal of the sign,
replacement of the supporting posts, and erection of the sign in a different location, the sign lost its
nonconforming sign status.” The trial court denied the temporary injunction and this Court affirmed
the trial court. City of Georgetown v. Days Inn & Ramabhai L. Patel & Shantaben R. Patel, No. 03-
99-00010-CV (Tex. App.—Austin 1999, no pet. ) (not designated for publication). After this Court
affirmed the trial court’s denial of injunctive relief, Days Inn filed a no-evidence summary judgment
contending that there was no evidence that it caused a change in location of the sign. No evidence
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was submitted with the motion. The City filed a response but no supporting evidence. The trial court
granted the summary judgment in favor of Days Inn. The City raises seven issues on appeal.
Discussion
A movant in a no-evidence summary judgment must prove 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. Tex. R. Civ. P. 166a(i). The non-movant is not required to marshal its
proof,1 but it must point out evidence that raises a fact issue on the challenged evidence. Tex. R. Civ.
P. 166a cmt. The mere filing of a no-evidence motion shifts the burden to the non-movant to come
forward with enough evidence to take the case to a jury. Jackson v. Fiesta Mart, Inc., 979 S.W.2d
68, 71 (Tex. App.—Austin 1998, no pet.); see generally Hon. David Hittner & Lynne Liberato,
Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998). The movant in a no-evidence
summary judgment does not bear the burden of establishing each element of its own claim or defense.
General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.—Dallas 2000,
no pet.). The non-movant must bring forward sufficient evidence to withstand a motion for directed
verdict. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 436 (Tex. App.—Houston [14th Dist.]
1999, no pet.). If the non-movant fails to present evidence raising a genuine issue of material fact,
the trial court must grant the motion. Tex. R. Civ. P. 166a(i).
1
“Marshal one’s evidence” means to arrange all of the evidence in the order that it will be
presented at trial. In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998,
orig. proceeding). A party is not required to present or arrange all of its evidence in response to a
summary judgment motion. Id.
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A no-evidence summary judgment is essentially a pretrial directed verdict and the
court of appeals applies the same legal sufficiency standard in reviewing a no-evidence summary
judgment as applied in reviewing a directed verdict. Jackson, 979 S.W.2d at 70 (citing Moore v. K
Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied)). As with a directed
verdict, the appellate court must determine whether the plaintiff has produced any evidence of
probative force to raise fact issues on the material questions presented. Jackson, 979 S.W.2d at 70.
In its review, the appellate court must consider all of the evidence in the light most favorable to the
party against whom the no-evidence summary judgment was rendered and every reasonable inference
must be indulged in favor of the non-movant and any doubts resolved in its favor. Jackson, 979
S.W.2d at 70.
The trial court properly grants a no-evidence summary judgment if the non-movant
fails to bring forth more than a scintilla2 of probative evidence to raise a genuine issue of material fact
as to an essential element of the non-movant’s claim on which the non-movant would have the burden
of proof at trial. Jackson, 979 S.W.2d at 70-71 (citing Merrell Dow Pharmaceuticals, Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Because the City failed to produce any evidence with
its response, the trial court properly granted the no-evidence summary judgment. We overrule the
City’s issues three, four, five, six and seven.
2
If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded
people to differ in their conclusions, then more than a scintilla of evidence exists. Jackson v. Fiesta
Mart, Inc., 979 S.W.2d 68, 71 (Tex. App.—Austin 1998, no pet.) (citing Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
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The City also challenges the trial court’s findings of fact entered after the temporary
injunction hearing. Findings of fact have no place in a summary judgment proceeding. Linwood v.
NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Accordingly, we overrule issues one and two.
Conclusion
Because the City failed to produce evidence in response to a no-evidence summary
judgment, we affirm the trial court’s judgment.
J. Woodfin Jones, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: November 30, 2000
Do Not Publish
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