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Whittington v. City of Austin9/30/2005
e these authorities to categorically require the use of magic words such as "necessary" or "needed" within a resolution or other instrument manifesting the governing body's actions, though prudence would perhaps make such language advisable. To the contrary, it would appear sufficient to prove that the condemnor's governing body made a determination (manifested in some form) that, in substance, condemning a particular property would be necessary to advance a specific, identified public use.
The City fails to meet this standard. Other than Resolution 010809-11--which, again, does not indicate the "public use" the condemnation would advance--the City submitted no summary judgment evidence that the Austin City Council had any knowledge of or involvement with the condemnation, much less that it had determined the taking would advance any particular public use. The City offers no "orders, resolutions, and minutes" to that effect, no proof that the city council approved any of the interim steps in the condemnation, and no proof that the council ever approved a budget explicitly to fund the acquisition by condemnation. See Horton, 468 S.W.2d at 877-78; Bolin, 381 S.W.2d at 209; Boucher, 317 S.W.2d at 601-02; Fisher, 559 S.W.2d at 685-86. The closest the City comes to meeting this burden is evidence that (1) its agents deposited $7.65 million into the trial court's registry to gain possession; and (2) evidence of City ordinances imposing lower monetary thresholds on purchases and contracts City staff may make without express council approval. Cf. Bevley, 638 S.W.2d at 122 (no proof that right-of-way work "could only have been done at the insistence of Tenngasco's board"). Even assuming that the deposit fell within the scope of these ordinances, we cannot, on summary judgment, rely on an inference that City staff actually obtained Council approval to make the deposit, much less that it did so to advance any particular public purpose. See Pustejovsky, 35 S.W.3d at 645-46. The City has failed to meet its summary judgment burden with regard to necessity.
Conclusion Regarding Summary Judgment
Because the City has failed to meet its summary judgment burden with regard to both the public use and necessity elements of its condemnation claim, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
Prejudgment Interest
While we have reversed the trial court's judgment, we will proceed, in the interest of judicial efficiency and economy, to address the Whittingtons' second issue regarding prejudgment interest in the event that it arises again on remand.
Prejudgment interest is awarded to the landowner in condemnation cases if the landowner appeals from the special commissioners' award, the condemnor opts to deposit the amount of the special commissioners' award into the court's registry to gain the right of possession, and the trial court ultimately awards damages in excess of the special commissioners' award. See generally A Guide to Recent Changes and New Challenges in Texas Prejudgment Interest Law, 30 Tex. Tech L. Rev. 71, 118 (1999). The landowner does not receive prejudgment interest on the amount of the deposit, as he or she has the right to use those funds, but only on any additional amount awarded by the trial court, which, in concept, represent funds the landowner was wrongfully deprived of prior to judgment. Id. The landowner's entitlement to prejudgment interest derives not from statute or common law, but from article I, section 17 of the Texas Constitution. State v. Hale, 146 S.W.2d 731, 738 (Tex. 1941); City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 388-89 (Tex. App.--Houston [14th Di
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