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Whittington v. City of Austin9/30/2005
Our opinion and judgment issued on June 8, 2005, are withdrawn, and the following opinion is substituted.
This is an appeal in a condemnation case. The trial court granted partial summary judgment that the City of Austin (the "City") had authority to condemn eight lots in downtown Austin owned by appellants, Harry M. Whittington and members of his family (the "Whittingtons"). The issue of compensation was then tried to a jury, which awarded the Whittingtons $7.75 million for their property. The Whittingtons appeal the trial court's partial summary judgment ruling, incorporated in the final judgment, and the trial court's determination of the prejudgment interest accrual date. Concluding that the City failed to meet its summary judgment burden regarding its authority to condemn the Whittingtons' property, we reverse and remand. However, we overrule the Whittingtons' prejudgment interest issue to provide guidance in the event it arises again on remand.
BACKGROUND
The Whittingtons own a city block in downtown Austin near the Austin Convention Center and across Red River street from the new Hilton hotel. On August 9, 2001, the Austin City Council passed a resolution that the Whittingtons' property, "Lots 1-8, inclusive, Block 38 of the Original City of Austin, in the City of Austin, Travis County, Texas should be acquired for a public use" and authorizing the city attorney to file a condemnation suit "and take other appropriate action to acquire the property." While professing that the property should be acquired for a public use, the resolution was silent regarding what public use the city council intended to effectuate by condemning the Whittingtons' property.
On October 29, 2001, the City filed an original petition against the Whittingtons to condemn the property identified in its resolution. See Tex. Prop. Code Ann. § 21.012(b) (West 2004). In the petition, the City's attorneys assert that the City's proposed "public use" for the property is a parking garage and an Austin Energy chilling plant. The trial court appointed special commissioners, who held a hearing and awarded the Whittingtons $7,650,000. The City deposited the amount of this award into the registry of the trial court, which entitled the City to take possession of the property pending the results of further litigation. Id. § 21.021. Both parties filed objections to the amount of the special commissioners' damages award. Additionally, the Whittingtons contended that the City's intended use of the property was not a permissible "public use."
The City filed a motion for partial summary judgment asserting that there was no genuine issue of material fact regarding its right to condemn the property. See Tex. R. Civ. P. 166(a). The trial court granted the motion. The case proceeded to trial on the issue of compensation and the jury awarded the Whittingtons $7.75 million. The trial court rendered a final judgment incorporating its partial summary judgment and the jury verdict on damages. The judgment further ascertained that the accrual date for prejudgment interest was January 24, 2002, the date the City had deposited the amount of the special commissioners' award. This appeal ensued.
DISCUSSION
The Whittingtons present two issues on appeal. First, they contend that the trial court erred in granting partial summary judgment that the City had authority to condemn their property. Specifically, the Whittingtons argue that the City did not meet its summary judgment burden to establish either the necessity for the condemnation or that the condemnation was for a valid public purpose. In the alternative, the Whittingtons assert that their summary judgment evidence ra
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