City of Houston v. Trail Enterprises, Inc. No. 08-0413 (Tex. Oct. 30, 2009)(per curiam)  
eminent domain, inverse condemnation, regulatory taking, ripeness doctrine)(remanded to trial court)
County; 10th district (
10-05-00382-CV, 255 SW3d 105, 11-21-07) (Dissent to Opinion on Rehearing 04-09-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals’ judgment and remands the case to the trial court.
Per Curiam Opinion [pdf]

City of Houston v. Trail Enterprises, Inc. (Tex. 2009)(per curiam)


   In this inverse condemnation case, we consider whether the court of appeals erred by rendering a
money judgment against the City of Houston on mineral interest owners’ regulatory takings claims. We
hold that it did. Because the trial court never entered a final judgment on the jury verdict, the court of
appeals’ rendition of judgment prevents the City from properly challenging the judgment. We,
therefore, reverse the court of appeals’ judgment and remand the case to the trial court so that it may
reach final judgment and the parties may then have an opportunity to challenge that judgment.

   A Houston ordinance prohibited drilling for minerals in a “Control Area” in the City’s extraterritorial
jurisdiction, including near Lake Houston where the owners’ interests lie. The owners were
unsuccessful in obtaining a variance in 1994, and brought regulatory takings claims in 1995, seeking
damages for inverse condemnation. That suit was dismissed as barred by the statute of limitations.
Then, in December 1996, the City annexed the area at issue. Because their land was no longer
subject to the ordinance, the owners wrote the City regarding the possibility of drilling. In 1997,
however, the City amended its Control Area ordinance to include land within city limits. The owners did
not seek a variance, but instead filed new regulatory takings claims. The trial court held a bifurcated
trial, finding that a taking occurred, and the jury awarded damages nearing $17 million.1 Before it
entered final judgment, though, the trial court granted the City’s motion for summary judgment on
ripeness grounds, for want of a permit or variance request, and ordered the case dismissed without
prejudice for lack of jurisdiction. That order is the subject of this appeal.

   The court of appeals reversed, concluding that the action was ripe.2 255 S.W.3d 105, 109 (Tex.
App.—Waco 2007). We agree that the action was ripe, and on this issue we affirm. See Mahew v.
City of Sunnyvale, 964 S.W.2d 922, 929 (Tex. 1998) (holding that “futile variance requests or re-
applications are not required” for a regulatory takings claim to be ripe); Hallco Tex., Inc. v. McMullen
County, 221 S.W.3d 50, 60 (Tex. 2006) (concluding that owners’ takings claims were ripe upon
enactment of an ordinance absolutely prohibiting precisely the use owners intended to make, without
including potential exceptions).3 Rather than remanding, though, the court of appeals rendered
judgment on the jury verdict for the owners based on the trial court’s finding of liability. 255 S.W.3d at
115. However, because the trial court relied only on the jurisdictional ripeness issue in disposing of
the case, it was improper for the court of appeals to render judgment on the jury verdict. Our rules
provide procedures through which parties may challenge a verdict’s or judgment’s propriety. E.g., Tex.
R. Civ. P. 301 (motion for judgment notwithstanding the verdict); Tex. R. Civ. P. 320 (motion for new
trial). Remand was necessary at least to enable these further proceedings. See Tex. R. App. P. 43.3.
The court of appeals circumvented these procedures by treating a motion for summary judgment on a
jurisdictional issue as if it were a motion for judgment notwithstanding the verdict, 255 S.W.3d at 113,
and doing so was error.

   We note that at one point the trial court decided to reconsider its liability finding.4 Certainly the trial
court should determine if additional exploration is warranted into whether the owners have met their
burden of demonstrating a taking under the balancing test articulated in Penn Central Transportation
Co. v. City of New York, 438 U.S. 104 (1978). See also Sheffield Dev. Co. v. City of Glenn Heights,
140 S.W.3d 660, 670–71 (Tex. 2004); Hallco, 221 S.W.3d at 56. Likewise, the trial court may
consider other appropriate issues before entering its final judgment.5 However, we do not reach any
such issues with our ruling today.

   Therefore, without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’
rendition of judgment and order the case remanded to the trial court for further proceedings consistent
with this opinion.

OPINION DELIVERED: October 30, 2009


1 The jury found that the fair market value of the property was reduced by $19,046,700.00 as a result of any inverse
condemnation, and the plaintiffs stipulated that together they own a total of 88.46204% of the mineral estate in the property, for a
damages award to plaintiffs of $16,849,099.37 before interest.

2 The court of appeals issued an opinion on rehearing that let its liability determination stand (including ripeness) without
revisiting it. See 255 S.W.3d 111, 112 (Tex. App.—Waco 2008). Accordingly, we cite to both opinions as appropriate.

3 We note that the trial court entered judgment before we issued our opinion in Hallco.

4 In an order on June 16, 2005, the trial court stated upon motion for reconsideration that it would hear further evidence on
liability. But in its August 29, 2005 final order, granting summary judgment for the City on ripeness, the court described its earlier
determination that an inverse condemnation occurred and the jury verdict on damages together as a “final judgment.” See 255 S.
W.3d at 109. The order also incorrectly stated that the City filed a “motion for new trial.” See id. (One could surmise from this
language that the trial court was ready to enter final judgment on the jury verdict but for the ripeness issue.) Regardless of the
trial court’s posture, it remains for the trial court to determine whether it will consider liability further before entering its final

5 The dissent noted that unresolved issues include whether any taking was a total taking or, if not, substantially interfered with
the owners’ rights of use and enjoyment, as well as whether the accommodation doctrine would require an evaluation of
alternatives to direct drilling. See 255 S.W.3d at 111 n.1 (Gray, C.J., dissenting). In reversing the court of appeals’ rendition of
judgment, we provide no opinion as to whether these or any other issues remain in this case, or as to their potential resolution.