Friday, August 15, 2008

Admissibility of Documentary Evidence: Public Records not Hearsay, but ....

POINTS OF LAW AS STATED BY THE FIRST COURT OF APPEALS

Admission of public records, self-authentication, TRE 803 (8)

The admission and exclusion of evidence is committed to the trial court’s sound discretion, but a trial court abuses that discretion when it acts without regard for any guiding rules or principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995).

Texas Rule of Evidence 803(8) excludes records from public offices and agencies from the hearsay rule. Tex. R. Evid. 803(8). However, such records must be properly authenticated to be admissible. Tex. R. Evid. 901(a).

Generally, the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims, and specifically, public records or reports may be authenticated by evidence that the purported public record or report is from the public office where items of this nature are kept. Tex. R. Evid. 901(a); 901(b)(7).

While Brazoria County contends that Rule 803(8) creates a presumption of admissibility, with the burden being placed on the party opposing the admission of the report to show its untrustworthiness, that presumption does not exempt the offered document from satisfying other requirements of the rules. See 1001 McKinney, Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27–28 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

The rules of evidence do not require extrinsic evidence of authenticity as a condition precedent to admissibility for certified copies of public records because they are self-authenticating. Tex. R. Evid. 902(4).

The contested exhibits here, however, were not authenticated by either certification or any extrinsic evidence. The trial court therefore erred in admitting these documents over objections to their authenticity.

SOURCE: Benefield v. State of Texas
(Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Bland) (admission of evidence, authenticity and authentication of public records

Property Owner not entitled to compensation for road closure

Court of Appeals rules for METRO in suit brought by owner of land and business adversely affected by construction of light rail line, holding that impairment of access to his store was not sufficiently severe to merit compensation.

Burris and Wheelchair & Scooter Express, LLC v. Metro of Harris County (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Keyes) (inverse condemnation case, taking, ingress easement, no material and substantial impairment of access)

O P I N I O N [excerpt]

In this inverse condemnation suit, appellants, James R. Burris and Wheelchair & Scooter Express, L.L.C., ("WSE") appeal the trial court's order that granted summary judgment in favor of appellee, Metropolitan Transit Authority of Harris County, Texas ("METRO"). In four issues on appeal, appellants argue that the trial court erred in (1) granting METRO's motions for summary judgment on appellants' claim that access to the property is materially and substantially impaired by a METRO project; (2) granting METRO's motions for summary judgment on plaintiffs' permanent taking claims associated with METRO's taking of appellants' ingress easement appurtenant; (3) denying appellants' motion for partial summary judgment claiming that there has been a compensable taking by METRO of the ingress easement appurtenant and that access to their property has been materially and substantially impaired; (4) granting METRO's motions for summary judgment on the claims asserted by WSE because WSE is not an independent third party lessee, but rather is Burris's wholly owned business which has an ownership interest that has been damaged by METRO's actions; and (5) granting METRO's objections to summary judgment evidence.

We affirm.

* * *

Because appellants still retain full access to the Property from San Jacinto via Wichita, as well as egress onto San Jacinto, we conclude that closure of appellants' entrance off of San Jacinto did not amount to a material and substantial impairment. See City of San Antonio, 218 S.W.3d at 66-67 ("Closing an access point and merely causing diversion of traffic or circuity of travel does not result in a compensable taking."); Heal, 917 S.W.2d at 11 (holding that plaintiff failed to show material and substantial impairment). Accordingly, we conclude that appellants' claims are not compensable. See City of San Antonio, 218 S.W.3d at 67; Wood Oil, 751 S.W.2d at 865; Jordan v. Landry's Seafood Restaurant, Inc., 89 S.W.3d 737, 743 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) (holding no taking when "overall plan provides ample parking and easy access to the property, and the restricting of traffic does not materially and substantially impair [plaintiff] from entering the property").

Because we conclude, as a matter of law, that the impairment of access at issue here does not rise to the level of material and substantial and therefore appellants' claims are not compensable, we need not address appellants' fourth issue, which contends that the trial court erred in granting METRO's motions for summary judgment on the claims asserted by WSE because WSE is not an independent third party lessee, but rather is Burris's wholly owned business which has an ownership interest that has been damaged by METRO's actions.

We overrule appellants' first, second, and third issues.

Disposition: AFFIRM TRIAL COURT'S SUMMARY JUDGMENT IN FAVOR OF METRO
Opinion by Justice Evelyn Keyes
Panel: Before Justices Taft, Keyes and Alcala
Appellate cause no.: No. 01-06-00981-CV
Full case style: James R. Burris and Wheelchair & Scooter Express, L.L.C. v. Metropolitan Transit Authority (aka METRO) of Harris County
Appeal from County Civil Court at Law No 1 of Harris County, TX
Trial Court Judge: Hon. R. Jack Cagle

Eminent Domain | Inverse Condemnation Claim Explained

1st Court of Appeals sets forth test to be applied to determine whether property owner is entitled to compensation when access to his building is impaired by road construction (or rather -- in the case at issue - by the establishment of the Metro light rail line in Downtown Houston)

Inverse Condemnation

A governmental unit exercises its power of eminent domain through the process referred to as condemnation. See City of Houston v. Boyle, 148 S.W.3d 171, 178 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Condemnation is the procedure by which the sovereign exercises its right to take property of a private owner for public use, without consent, upon the payment of just compensation. Id.; A.C. Aukerman Co. v. State, 902 S.W.2d 576, 578 (Tex. App.--Houston [1st Dist.] 1995, writ denied). "Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding." Boyle, 148 S.W.3d at 178; A.C. Aukerman Co., 902 S.W.2d at 577.

A landowner whose property has been taken, damaged, destroyed for, or applied to public use without adequate compensation may bring an inverse condemnation claim pursuant to article I, section 17 of the Texas Constitution. Boyle, 148 S.W.3d at 177. The constitution provides in part, "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. . . ." Tex. Const. art. I, § 17; Boyle, 148 S.W.3d at 177; see also Tex. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 148 (Tex. App.--Austin 1998, no pet.) ("An 'inverse condemnation' proceeding is the avenue of relief available when property has been taken or damaged for public use without compensation or a proper condemnation proceeding, and the property owner wishes to recover compensation for his loss."). The Texas Constitution therefore waives governmental immunity from suit and liability "for the taking, damaging or destruction of property for public use." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); Boyle, 148 S.W.3d at 177. "To demonstrate that a constitutional inverse condemnation has occurred, the landowner must show that (1) the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in a 'taking' of property (3) for public use." Boyle, 148 S.W.3d at 177; see also Steele, 603 S.W.2d at 791-92; City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex. App.--Houston [1st Dist.] 2001, pet. denied).

To be compensated for impairment of access, a landowner must prove he suffered a material and substantial impairment of access to his land. State v. Heal, 917 S.W.2d 6, 10 (Tex. 1996); see also City of Waco v. Texland, 446 S.W.2d 1, 2 (Tex. 1969). In order to show material and substantial impairment, the property owner must establish (1) a total temporary restriction of access, (2) a partial permanent restriction of access, or (3) a partial temporary restriction of access due to illegal or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex. 1993); City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986). The "material and substantial test" acknowledges situations in which the access for which the property was specifically intended is rendered unreasonably deficient even though normal access remains reasonably available. Heal, 917 S.W.2d at 10.

It is a question of law whether there is a "material and substantial impairment" to the remainder as a direct result of a taking. Schmidt, 867 S.W.2d at 777; Precast Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 (Tex. App.--Houston [14th Dist.] 1996, no writ). We review questions of law de novo and without deference to the lower court's conclusion. Heal, 917 S.W.2d at 9; Precast Structures, 942 S.W.2d at 636. Before trial, the court must determine whether access rights have been materially and substantially impaired and control the admission of trial evidence accordingly. Heal, 917 S.W.2d at 9.

Source: Burris and Wheelchair & Scooter Express, LLC v. Metro of Harris County (Tex.App.- Houston [1st Dist.] Aug. 14, 2008)(Keyes) (inverse condemnation case, taking, ingress easement, no material and substantial impairment of access to store)

Tuesday, August 12, 2008

Receivership Law | Foreclosure Sale of Property Moots Complaint about Appointment of Receiver

Pirate's Lake Ltd. v. Vestin Realty Mortgage I, Inc.,
No. 14-08-00085-CV (Tex.App.- Houston [14th Dist.] Aug. 12, 2008) (appointment of receiver challenged, but foreclosure of property at issue moots case)

FROM THE OPINION BY CHIEF JUSTICE ADELE HEDGES:

Issues on Appeal

In two issues, Pirate's Lake contends that the trial court erred in appointing a receiver to take possession of and sell the Property. In its first issue, Pirate's Lake argues that it was not given the minimum three-day notice of the hearing on Vestin's application for appointment of a receiver, as required by Rule 695 of the Texas Rules of Civil Procedure. In its second issue, Pirate's Lake asserts that there were no contractual, statutory, or equitable bases for the appointment of a receiver.

We conclude that, because the Property was sold at a foreclosure sale after Pirate's Lake perfected its appeal, Pirate's Lake's appeal is moot.

The Mootness Doctrine

Neither the Texas Constitution nor the Texas Legislature has vested this Court with the authority to render advisory opinions. See Tex. Const. art. II, _ I; see also Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). The mootness doctrine limits courts to deciding cases in which an actual controversy exists between the parties. Fed. Deposit Ins. Corp. v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994).

When there ceases to be a controversy between the litigating parties due to events occurring after the trial court has rendered judgment, the decision of an appellate court would be a mere academic exercise, and the court may not decide the appeal. See Olson v. Comm'n for Lawyer Discipline, 901 S.W.2d 520, 522 (Tex. App.- El Paso 1995, no writ).

Stated differently, if a judgment cannot have a practical effect on an existing controversy, the case is moot. Id. In that situation, the appellate court is required to vacate the judgment of the trial court and dismiss the underlying cause of action. See Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 228 (Tex. 1993); see also Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990) (if no controversy continues to exist between the parties, the appeal is moot and the court of appeals must dismiss the cause); Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726 (1958) (when a case becomes moot on appeal, all previous orders are set aside by the appellate court, and the case is dismissed).[1]

When a trial court appoints a receiver to sell real property, and the real property is sold after the appellant has perfected its appeal, the appeal of the appointment of the receiver becomes moot. See Beard v. Beard, 49 S.W.3d 40, 71- 72 (Tex. App.- Waco 2001, pet. denied) (concluding that appeal of appointment of receiver was moot when real property that was sole subject of receivership had been foreclosed upon after appellant perfected her appeal).

Therefore, we will examine the record to determine whether the Property - the sole subject of the receivership - was sold after Pirate's Lake perfected its appeal, thereby rendering its appeal moot.

The Sale of the Property Renders This Appeal Moot

The record is clear that the Property was sold by foreclosure sale after Pirate's Lake perfected its appeal. The receiver was appointed only to take possession of, manage, and sell the Property. When the Property was later sold by foreclosure sale conducted under terms of the Deed, Pirate's Lake's appeal of the trial court's appointment of the receiver became moot. See id.Pirate's Lake argues that its appeal is not moot because (1) an actual controversy remains between the parties that requires a determination by this Court; and (2) no order has been signed by the trial court terminating the receivership. These arguments are without merit.With respect to the first ground, Pirate's Lake asserts that, without a determination by this Court regarding the appointment of the receiver, it may be unable to prove the second element of a tortious interference claim that it asserted in the trial court.[2]

However, even if we were to conclude that the trial court abused its discretion in appointing a receiver, this conclusion does nothing to support Pirate's Lake's claim that Vestin committed a tortious or unlawful act in seeking the receivership.[3]

As Vestin correctly notes, this Court's ruling on any alleged error committed by the trial court in appointing the receiver would have no bearing on whether Vestin's act in seeking the receivership satisfies the second element of a tortious interference claim. Thus, even if we were to reach the merits of Pirate's Lake's appeal, our ruling would have no practical effect on an existing controversy between the parties.[4] See Olson, 901 S.W.2d at 522.

With respect to the second ground, an order terminating a receivership is not expressly required to render the appeal of the appointment of a receiver moot. See Beard, 49 S.W.3d at 71-72 (appeal of appointment of receiver was moot without order terminating receivership). Rather, all that is required is that a judgment "[not] have a practical effect on an existing controversy" between the parties. See Olson, 901 S.W.2d at 522. Pirate's Lake cites us to no authority to the contrary.[5]

Conclusion

Therefore, because the Property was sold by foreclosure sale after Pirate's Lake perfected its appeal, Pirate's Lake's appeal is moot. Accordingly, without reference to the merits, we vacate the trial court's order appointing a receiver to take possession of and sell the Property, and dismiss the underlying cause of action and this appeal.

DISMISSED AS MOOT: Opinion by Chief Justice Hedges
Panel: Chief Justice Hedges, Justice Bill Boyce, and Senior Justice Frank C. Price (sitting by assignment)
Appellate cause no.:
14-08-00085-CV (link to docket sheet)
Full case style: Pirate's Lake, Ltd. v. Vestin Realty Mortgage I, Inc., Vestin Realty Martgage II, Inc., Vestin Fund III, L.L.C., and Vestin Mortgage, Inc.--Appeal from 56th District Court of Galveston County

Trial court judge: Hon. Lonnie Cox
Attorneys: Jeffrey R. Singer, Martin W. Brett Keith M Aurzada

Find terms:
Houston foreclosure caselaw mootness doctrine in Texas
DWOJ = Dismissal for want of jurisdiction jurisdictional dismissal

Elements of Tortious Interference in Texas

AS STATED BY THE FOURTEENTH COURT OF APPEALS

The elements of a claim for tortious interference with a pospective business relationship are (1) a reasonable probability that the plaintiff would have entered into a business relationship; (2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or the defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages as a result of the defendant's interference. Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 860 (Tex. App.- Houston [14th Dist.] 2001, pet. denied).

Source: Pirate's Lake Ltd. v. Vestin Realty Mortgage I, Inc., No. 14-08-00085-CV (Tex.App.- Houston [14th Dist.] Aug. 12, 2008) (Opinion by Justice Hedges)

Texas cause of action: tortious interference