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Whittington v. City of Austin9/30/2005
ised genuine issues of material fact regarding whether the condemnation was necessary, whether it furthered private rather than public purposes, and whether the City's decision to condemn the property was fraudulent, arbitrary and capricious, and in bad faith. To raise a fact issue, the Whittingtons rely on the corporate representative deposition testimony of Robert Hodge, who admitted that: (1) the City could have met all of its projected convention center parking needs for a fraction of the cost merely by non-renewing contract parking leases in the City's existing parking garage at Second and Brazos; (2) at the time the Austin City Council approved exclusive negotiations with Hilton to develop the convention center hotel project, the City had been assured that the project would include dedicated convention center parking sufficient to meet the projected needs; and (3) the City began to target the Whittingtons' property only after convention center parking in the hotel project fell through, and did not conceive the idea to place a chilling plant on the property until still later.
In their second issue, the Whittingtons contend that if we uphold the summary judgment, we should modify the final judgment to award prejudgment interest accruing from July 22, 2000, 180 days after the Whittingtons represent that the City first gave them notice of intent to condemn their property.
Summary Judgment
Standard of Review
A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166 a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999); see also Voice of the Cornerstone Church Corp. v. Pizza Prop. Ptnrs, 2005 Tex. App. LEXIS 1804, at *22-23 (Tex. App.--Austin 2005, no pet.). The non-movant has no burden to respond to a traditional summary judgment motion unless the movant conclusively establishes its cause of action or defense. See Willrich, 28 S.W.3d at 23; Rhone-Poulenc, Inc., 997 S.W.2d at 222-23. Summary judgments must stand on their own merits. Willrich, 28 S.W.3d at 23. Accordingly, the non-movant need not respond to a traditional summary judgment motion to contend on appeal that the movant's summary judgment proof is insufficient as a matter of law to support summary judgment. Id.; see Rhone-Poulenc, Inc., 997 S.W.2d at 223. For the same reasons, we do not consider evidence tendered by the non-movant in response to a traditional summary judgment motion when evaluating whether the movant met his or her initial burden. Willrich, 28 S.W.3d at 23.
The standard for reviewing a summary judgment is well established: (I) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law; (ii) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (iii) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 645-46 (Tex. 2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Henry v. Kaufman County Dev. Dist. No. 1, 150 S.W.3d 498, 502 (Tex. App.--Austin 2004, pet. dism'd by agr.). The propriety of summary judgment is a question of law; therefore, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
Texas Condemnation Law
While the procedural framework
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