REVISED, JANUARY 23, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20686 _____________________
SIMI INVESTMENT COMPANY INC
Plaintiff - Appellee
v.
HARRIS COUNTY TEXAS
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ December 21, 2000
Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER, Circuit Judges.
KING, Chief Judge:
Defendant-Appellant Harris County, Texas appeals the
district court’s judgment against the County, arguing that the
district court erred in holding that the County had
unconstitutionally interfered with the property rights of
Plaintiff-Appellee Simi Investment Company, Inc. The district
court found that the County had unlawfully prevented Simi from gaining access to the city street adjacent to its property in
contravention of Texas law. Specifically, the district court
held that the County had abused its governmental power and
violated Simi’s substantive due process rights by inventing and
claiming ownership of a nonexistent five-foot by 3000-foot county
park, which blocked Simi’s lawful access to the street. For the
following reasons, we AFFIRM the judgment of the district court,
including the grant of attorneys’ fees; however, we VACATE and
REMAND to determine the amount of those attorneys’ fees in a
manner consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This dispute centers around the real property (the “Simi
Property”) owned by Simi Investment Company, Inc. (“Simi”) which
is located in downtown Houston in close proximity to the Houston
Astrodome stadium.1 More specifically, the Simi Property is
1 We are guided through the curious history and development of this particular strip of land by the stipulated record of exhibits which was submitted by the parties and was adopted by the district court as the entire record. On August 12, 1996, the district court entered a Conference Memorandum which stated that the case would be resolved by analyzing the documentary evidence submitted. On September 23, 1996, the district court entered a second Conference Memorandum recording that the parties had stipulated to exhibits 1 through 25 and that the exhibits and other documents submitted would constitute the whole record. On August 26, 1998, the district court allowed Simi to supplement the record with documents not previously turned over by the County. In addition, we rely on the “Chronology” included as an addendum to the district court opinion. See Simi Investment Co. Inc. v. Harris County, Tex., 13 F. Supp. 2d 603, 609-13 (S.D. Tex. 1998) (addendum to opinion).
2 situated adjacent to Fannin Street at the intersection of
Interstate Loop 610 (“Loop 610") and Fannin Street. Simi sought
from the City of Houston (“City”) access to Fannin Street from
the Simi Property, but was denied access by the City because
Harris County (the “County”) claimed an interest in an
intervening five-foot sliver of land that runs alongside this
property, separating it from Fannin Street.
This land dispute finds its origin in the early 1960s when
the construction of the Astrodome led to increased development in
the area surrounding what is now the Simi Property. Two of the
major investors in the area were Roy Hofheinz and R.E. Smith.
Hofheinz was a former Harris County judge and had been the chair
of the County’s governing board, the County Commissioners Court.
Hofheinz was also President of the Houston Sports Association
(the “HSA”), which leased the Astrodome from the County.
Hofheinz-Smith owned property north of the Simi Property site,
which was also located along the eastern side of Fannin Street.
As a result, Hofheinz-Smith and the HSA had control of much of
the property surrounding the Astrodome.
In conjunction with building the Astrodome, the County
acquired rights-of-way for streets leading to the stadium. In
1961, the County Commissioners Court requested the consent of the
City to acquire one of those rights-of-way by extending the
3 length of Fannin Street to Loop 610. The City Council approved
the location and alignment of the proposed street, and the land
was purchased from the Trustees of the Hermann Hospital Estate
and conveyed to the County for this purpose. The Hermann
Hospital Estate right-of-way consisted of a 20.67 acre tract of
land that was approximately 220 feet wide and 4100 feet in
length, running north-south alongside the Astrodome site. This
north-south right-of-way was bounded on the west by the Astrodome
and surrounding grounds, and on the east by several privately
owned properties (including the Hofheinz-Smith property and what
is now the Simi Property).
The deed granting the land to the County provided that the
property was being purchased with the intention of extending
Fannin Street “with such extension to run in a North-South
direction along the Eastern side of the Property described above,
with the remaining Western portion of said Property to be used
for street purposes or included in a park and stadium site lying
along the West side of said Property.” Pursuant to this deed,
the County Commissioners Court issued an order on December 11,
1961, stating that “Harris County is to move back the existing
fences to the new right of way line.”2 Subsequently, Fannin
2 The district court found that “[a]fter exhaustive search by the County and Simi, no later order of the Commissioners Court was found that modified in any way the alignment of the Fannin Street right of way described in the Hermann deed and the commissioners order of December 11, 1961.” Presumably, the original location of the fence denotes the proper right-of-way
4 Street was constructed as described in the deed on the eastern
side of the conveyed property, and fences were erected directly
abutting the Simi Property.
The original maps accompanying the County’s acquisition of
the right-of-way and describing the location and alignment of
Fannin Street could not be found, and, thus are not a part of the
record. The first site-specific document in the record is dated
October 16, 1961, and was created when engineers for the County
prepared a plat of the area depicting the land to be conveyed to
the County for the right-of-way. The plat showed the granted
land directly abutting the Simi property line. This plat,
however, was not a survey and did not include the exact location
of Fannin Street within the right-of-way.
At some time after 1961, this plat was altered to include
the placement of Fannin Street and also, most relevant for this
case, a strip of land set off from the eastern side of Fannin
Street lying in between the street and the adjoining private
properties. This five-foot by 3000-foot strip of land3 is the
county “park” now at issue.
As drawn in the revised plat, the Fannin Street right-of-way
runs north-south, directly abutting the Hofheinz-Smith property.
line. 3 From our review of the record, the 3000-foot measure is an apparent approximation that was adopted by the district court and has been accepted by both parties.
5 However, once past the southern boundary of the Hofheinz-Smith
property line, the right-of-way is shown to make a ninety-degree
turn west for five feet, and then it continues south to the 610
Loop. The result is the creation of a five-foot strip of land
that separates all of the property south of the Hofheinz-Smith
property from Fannin Street, but leaves the Hofheinz-Smith
property directly abutting the Fannin Street right-of-way. No
description or reason is apparent for this offset, nor why the
offset begins just south of the Hofheinz-Smith property.4 This
plat also includes the words “location questionable” drawn to
indicate the uncertain location of Fannin Street. There is no
revised date on the altered plat. The County contends that this
plat depicts the correct location of all relevant boundaries,
with Fannin Street running north-south within the original right-
of-way and a thin county park on the east side also running
parallel to Fannin Street.
From this uncertain beginning, the County’s “park” has
withstood several legal and administrative challenges to its
existence and control. First, in 1964, Texaco, Inc. requested
access to Fannin Street from property it owned on the corner of
Fannin and the 610 Loop. This request was submitted to the
County Commissioner and was then forwarded to the County
4 The result of the offset is that the Hofheinz-Smith properties are granted full access to Fannin Street, but all properties south of the Hofheinz-Smith land are denied access.
6 Engineer. For an unknown reason, the County Engineer sought
approval from Hofheinz, as President of the HSA. Hofheinz stated
that the HSA was unalterably opposed to the access because the
strip of land east of Fannin was included in the original HSA
lease of land for the Astrodome site and, therefore, was under
HSA’s control. This assertion was factually erroneous because
HSA was never granted control of the land. However, Hofheinz’s
objection led the County to deny Texaco access to Fannin Street.
Similarly, in 1969, property owners sought a mandatory
injunction against the County, requesting that the fence abutting
their properties be removed to grant access to Fannin Street. A
take-nothing judgment was affirmed by a Texas court of appeals,
which denied the property owners access across the County’s land.
See Lovett v. County of Harris, 462 S.W.2d 405, 408 (Tex. Civ.
App.—Houston [1st Dist.] 1970, writ ref’d n.r.e). The court
found that the erection of the fence was not an unconstitutional
taking under Texas law because the intervening strip of land
separating the property owners from Fannin Street had not been
dedicated for street purposes. See id.5
Most recently, in 1984, Sterling B. McCall, Jr., the owner
of McCall Toyota, requested that he be allowed to keep a driveway
that had been built on his property which provided the property
with ingress and egress onto Fannin Street. This request was
5 The reasoning of the Lovett decision will be discussed in detail infra.
7 denied by the County Commissioners Court, and McCall was required
to fence in the driveway to block access to Fannin Street.
The area designated as a park has also been subject to
encumbrances that over its history have helped define its status
and ownership. In 1974, Entex, a gas company, constructed a gas
line running north-south along the east side of Fannin Street.
This gas line was buried inside the land now claimed as a park.
The district court found that “[n]o Commissioner’s Court Order or
other document can be found to show the County authorized an
easement in the ‘park’ to Entex.” In 1978, the City of Houston
approved a plan and constructed an eight-inch water line that
crossed the park. Again, the district court found no
Commissioners Court order authorizing the easement across the
park for the water line. Finally, in 1993, the Metropolitan
Transit Authority of Harris County (“METRO”) approved
construction of a sidewalk on the park property, running
alongside the Simi Property. No approval was sought from the
County for an easement.
Control of Fannin Street, itself, was ceded from the County
to the City of Houston in 1974. In that year, the County removed
Fannin Street from its road logs.
From 1981 to 1984, Simi began acquiring property along
Fannin Street.6 In 1994, Simi submitted to the City a request
6 Simi owns Lots 1, 2, 3, and 4 in Block 68; Lots 1, 2, 3, 4, 5, and 6 in Block 69; Lots 1, 5, and 6 in Block 70 in Knight’s
8 for driveway access from its property to Fannin Street. Richard
Scott, the Technical Director/City Engineer of the Department of
Public Works and Engineering for the City, responded that the
City “would be in a position to process [the] application, and
likely approve it,” but for the fact that the County has claimed
an interest in the strip of land. Simi then applied to the
County for access. This request was denied based on the
assertion that the County owned parkland located between Fannin
Street and the Simi Property.
Simi sued the County in state court. Simi sought damages
and injunctive relief pursuant to Article 1, Section 17 of the
Texas Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution. In addition, Simi sought a
declaration that its land directly abutted the right-of-way of
Fannin Street. The County removed the suit to federal court.
Simi filed a motion to remand, stating that its federal takings
claim was not ripe. The district court did not rule on this
motion for remand. In federal court, Simi added a 42 U.S.C.
§ 19837 substantive due process claim, alleging that the County’s
Main Street Addition. 7 42 U.S.C. § 1983 reads in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
9 denial of access to an adjoining right-of-way arbitrarily and
capriciously denied Simi a property interest established under
Texas law.
The district court held two conferences during which the
parties were required to submit all relevant documents and
exhibits and to stipulate to the agreed facts. Both parties then
moved for partial summary judgment based on this established
record.8
On August 26, 1998, the district court issued an
Interlocutory Judgment and an Opinion on Judgment solely on the
issue of the existence of the park. The district court reserved
deciding the issue of damages or attorneys’ fees. The court
found in its Interlocutory Judgment that: (1) “Harris County had
never established a park”; (2) “Harris County had no interest in
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983 (1994). 8 The County raises a preliminary challenge to the entry of summary judgment based on this stipulated record. We find no merit in this challenge as it is well established that a district court may enter summary judgment after providing notice and instructing the parties to submit all relevant evidence. See Celotex v. Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”). In conference, the district court asked the parties to submit all relevant documents and exhibits. It was from this evidentiary basis that the district court decided to grant the request for partial summary judgment. We find no error in these actions.
10 an intervening 5-foot by 3,000-foot strip east of Fannin Street
and west of [the Simi Property] making illegal its interference
with the owners’ relation to the City of Houston and Fannin
Street”; (3) “Harris County had ceded to the [C]ity of Houston
all of its right, title, and interest in the eastern-most 100
feet of land conveyed to it by the Hermann Estate”; and (4)
“[t]he City of Houston’s Fannin Street right of way abuts
directly and fully the west boundary of [the Simi Property].”
After the Interlocutory Judgment, two hearings were held on
damages and attorneys’ fees. In addition, Simi introduced
supplemental evidence into the record involving the County’s
reasons for denying property owners access to Fannin Street. The
district court issued a Final Judgment on April 21, 1999,
incorporating the Interlocutory Judgment and adding that the
County was liable for $823,540 in damages, $367,000 in attorneys’
fees, and $116,994.32 in expenses. On May 13, 1999, the district
court issued Supplemental Findings that: (1) the County
arbitrarily interfered with Simi’s property rights; (2) the
interference had no relation to a legitimate governmental
interest; (3) the interference was an abuse of governmental
power; (4) the County persisted in defending its claim to the
park in bad faith and used the litigation to vex and oppress
11 Simi; and (5) the County deliberately violated Simi’s rights
under the United States Constitution.9
The County timely appeals.
II. STANDARD OF REVIEW
We review a grant of summary judgment10 de novo, applying
the same criteria used by the district court in the first
instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th
Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.
1994). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
9 The County challenges these Supplemental Findings as not supported by the evidence. We disagree. From the extensive exhibits and documentary evidence submitted by both parties, the district court could well establish a basis for liability. In short, without proof that a county park ever existed, the County’s justification for interfering with Simi’s access to Fannin Street fails, and becomes an arbitrary and capricious act. We, therefore, find no error in a damages award based on that liability, and find no error in the Supplemental Findings based on the district court’s review of the evidence. 10 The County appeals the Final Judgment issued on April 21, 1999. While not designated as such, we interpret this Final Judgment as a final decision on summary judgment resolving all issues in favor of Simi. Simi had initially moved for partial summary judgment requesting a declaration that the County was interfering with its property. The County cross-moved for summary judgment on this issue. The district court’s Interlocutory Judgment resolved the partial summary judgment motion in Simi’s favor. In its Final Judgment, the district court incorporated the Interlocutory Judgment into its order and resolved all outstanding issues.
12 is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).
III. SUBJECT MATTER JURISDICTION
We exercise plenary review of a district court’s subject
matter jurisdiction. See Rutherford v. Harris County, Tex., 197
F.3d 173, 189-90 (5th Cir. 1999); Taylor-Callahan-Colman Counties
v. Dole, 948 F.2d 953, 956 (5th Cir. 1991).
As a threshold matter, the County argues that the district
court lacked federal subject matter jurisdiction to decide the
case. We find that the district court had subject matter
jurisdiction by reason of Simi’s § 1983 substantive due process
claim.
In its Opinion on Judgment, the district court provided
three grounds for its jurisdiction. First, the court found that
“[t]he facts pleaded state claims under the Texas Constitution to
which no accommodative delay is due. . . . Whatever the eventual
fate of Simi’s claim for compensation, Simi is entitled to use
this court’s authority to correct the county’s continuing non-
possessory interference with its land.” See Simi, 13 F. Supp. 2d
603, 605 (S.D. Tex. 1998) (citations omitted). Second, the
district court found that Simi had stated claims against the
County under the Fourteenth Amendment, the Civil Rights Act of
13 1866, and 42 U.S.C. § 1983. See id. As these claims are ripe
without exhaustion of state remedies, the court found proper
jurisdiction. Finally, the district court held that Simi is
entitled to seek declaratory relief under both Texas and federal
law. See id.
The County correctly argues that the state law claims,
standing alone, do not provide federal jurisdiction. Further, we
agree that Declaratory Judgment Act claims, without another basis
for jurisdiction, cannot support the district court’s
jurisdiction. See Lawson v. Callahan, 111 F.3d 403, 405 (5th
Cir. 1997) (“[I]t is well settled that [the Declaratory Judgment
Act] does not confer subject matter jurisdiction on a federal
court where none otherwise exists.”). The County thus contends
that the only potential federal claim available to Simi is a
“takings” claim under the Fifth and Fourteenth Amendments, and
that Simi has conceded that such a claim is not ripe for
review.11 While we agree that the takings claim is not ripe for
review, this argument does not dispose of Simi’s suit because the
§ 1983 substantive due process claim was properly before the
district court.
In order to unpack the jurisdictional basis for the district
court’s holding, we revisit our recent decision in John Corp. v.
11 As stated, Simi opposed removal to federal court on the grounds that a ripe federal takings question was not presented for adjudication. See Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 199 (1985).
14 City of Houston, 214 F.3d 573, 582 (5th Cir. 2000), in which we
held that substantive due process claims alleging deprivations of
property are not necessarily subsumed under the Takings Clause.
As this is precisely the issue raised by the County, we find John
Corp. to be dispositive as to the question of jurisdiction.
John Corp. recognized that “[i]ndividuals may look to
several constitutional provisions for protection against state
action that results in a deprivation of their property.” Id. at
577. One of those provisions is the substantive due process
component of the Fourteenth Amendment which guarantees that
individuals shall not be deprived of their property without due
process of law. See U.S. CONST. amend. XIV, § 1; see also John
Corp., 214 F.3d at 577 (“Substantive due process, by barring
certain government actions regardless of the fairness of the
procedures used to implement them, [] serves to prevent
governmental power from being used for purposes of oppression.”
(alterations in original) (citations and internal quotation marks
omitted)). Another provision is the Takings Clause of the Fifth
Amendment. See U.S. CONST. amend. V; see also John Corp., 214
F.3d at 577; Samaad v. City of Dallas, 940 F.2d 925, 933 (5th
Cir. 1991) (“The Takings Clause of the Fifth Amendment directs
that ‘private property [shall not] be taken for public use,
without just compensation.’ The Supreme Court has held that the
clause applies to the states through the Fourteenth Amendment.”
(citations omitted)). In the instant case, once Simi had its
15 case removed to federal court, it explicitly pled a due process
claim, recognizing that it did not have a takings claim.12
Nevertheless, the County argues that we must decide this
case under the Takings Clause because “[w]here a particular
Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior,
‘that Amendment, not the more generalized notion of ‘substantive
due process,’ must be the guide for analyzing these claims.”
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989)). Again, John Corp. controls
our analysis. We take no issue with the principle inherent in
the Supreme Court’s Albright/Graham analysis; however, in the
instant case, we find a takings analysis does not exhaust Simi’s
constitutional claims. John Corp. found that under
Albright/Graham, a more explicit provision does not necessarily
preempt due process protections, and that substantive due process
claims can survive a related takings argument:
This does not mean, however, that the applicability of the more explicit provision pre-empts due process protections.
12 Simi’s precise claim is that the County arbitrarily interfered with its property rights, not that the County sought to acquire or regulate the use of the property. Simi argues that in the forty-year history of this strip of land, the County never tried to “take” the Simi Property in a constitutionally significant sense, but rather abused its power to frustrate Simi’s rightful use of that land. Similarly, the County did not seek to condemn Simi’s right of access to the property in an inverse condemnation action. The County has simply wrongfully interfered with Simi’s right of access for no legitimate public purpose.
16 See [County of Sacramento v.] Lewis, 523 U.S. 833, 842-44 (1998); [United States v.] James Daniel Good Real Property, 510 U.S. 43, 49 (1993) (“We have rejected the view that the applicability of one constitutional amendment pre-empts the guarantees of another.”). Moreover, it is clear that a particular action may implicate more than one constitutional protection. See Soldal [v. Cook County, Ill.], 506 U.S. 56, 70 (1992) (“Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution’s commands. Where such multiple violations are alleged, we are not in the habit of identifying as a preliminary matter the claim’s ‘dominant’ character. Rather, we examine each constitutional provision in turn.”). Thus, simply because an explicit provision applies does not mean that that provision makes inapplicable all substantive due process protections. See Albright, 510 U.S. at 288 (Souter, J., concurring) (suggesting that due process is reserved for “otherwise homeless substantial claims”).
John Corp., 214 F.3d at 582.13 Our limited holding in John Corp.
is similarly limited here; we find only that when a state
interferes with property interests, a substantive due process
claim may survive a takings analysis and, therefore, provide
jurisdiction for a federal court.
As alleged, there exists illegitimate governmental conduct
that has deprived Simi of its property rights for the benefit of
private interests. Because Simi submitted sufficient evidence to
13 The recognition that the Takings Clause does not subsume all substantive due process claims does not end the ripeness inquiry. There also must be a final decision from which to appeal. As we stated in John Corp., “a careful analysis must be undertaken” to determine if there has been a final decision, the lack of which would render the claim not ripe. Id. at 584 (“If the Court considered the claim to be a due process, rather than a takings claim, the absence of a final decision still made that claim unripe.”). As the County’s decision to claim ownership of the park has been final for over forty years, and was in 1994 the justification for denying Simi access to Fannin Street, we are persuaded that a final decision has been made.
17 support its § 1983 substantive due process claim based on an
allegedly arbitrary and unlawful attempt to interfere with
private property rights, we reject the County’s argument that the
district court did not have federal subject matter jurisdiction.
IV. SUBSTANTIVE DUE PROCESS
The determination that the district court had jurisdiction
to decide the federal question of substantive due process,
however, does not resolve the merits of Simi’s claim. Our review
of the County’s actions must be measured against the deferential
“rational basis” test that governs substantive due process. See
FM Prop. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th
Cir. 1996) (“[G]overnment action comports with substantive due
process if the action is rationally related to a legitimate
governmental interest.”). “Whether this ‘rational relation’ in
fact exists is a question of law that we review de novo.” Hidden
Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998).
“A violation of substantive due process, for example, occurs
only when the government deprives someone of liberty or property;
or, to use the current jargon, only when the government works a
deprivation of a constitutionally protected interest.” Brennan
v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988) (internal
quotation marks and citations omitted); see also DeBlasio v.
Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d Cir. 1995) (“[I]n
18 the context of land use regulation, that is, in situations where
the governmental decision in question impinges upon a landowner’s
use and enjoyment of property, a land-owning plaintiff states a
substantive due process claim where he or she alleges that the
decision limiting the intended land use was arbitrary or
capricious.”).
Substantive due process analysis is appropriate only in
cases in which government arbitrarily abuses its power to deprive
individuals of constitutionally protected rights. Therefore,
recognizing that reliance on substantive due process must be
taken with the “utmost care,” Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992), we emphasize the particularly odd
factual situation in this case, and the length and degree of
governmental abuse and, thus, limit our holding to the type of
blatant governmental interference with property rights that is
now before us.
A. The Constitutional Right at Issue
To prevail on a substantive due process claim, Simi must
first establish that it held a constitutionally protected
property right to which the Fourteenth Amendment’s due process
protection applies. See Spuler v. Pickar, 958 F.2d 103, 106 (5th
Cir. 1992) (citing Baker v. McCollan, 443 U.S. 137, 146-47
(1979)); see also Hidden Oaks, 138 F.3d at 1046 (“In order to
assert a violation of this amendment, one must at least
19 demonstrate the deprivation of a protected property interest
established through some independent source such as state law.”
(internal quotation marks and citations omitted)). The nature of
the property interest therefore must be determined by Texas law.
See Spuler, 958 F.2d at 106; see also Hidden Oaks, 138 F.3d at
1046 (“Under this analysis, the hallmark of property . . . is an
individual entitlement grounded in state law, which cannot be
removed except for cause.” (internal quotation marks and
citations omitted)).
Under Texas law, this first issue is resolved in Simi’s
favor. “It is the settled rule in this state that an abutting
property owner possesses an easement of access which is a
property right; that this easement is not limited to a right of
access to the system of public roads; and that diminishment in
the value of property resulting from a loss of access constitutes
damage.” State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (internal
quotation marks omitted) (quoting DuPuy v. City of Waco, 396
S.W.2d 103, 108 (Tex. 1965)); see also City of Beaumont v. Marks,
443 S.W.2d 253, 255 (Tex. 1969) (“It is well settled that
abutting property owners . . . have certain property rights in
existing streets and highways in addition to their right in
common with the general public to use them. Generally, the most
important of these private rights is the access to and from the
highway or street.”); State v. Meyer, 403 S.W.2d 366, 370 (Tex.
1966); Lethu Inc. v. City of Houston, 23 S.W.3d 482, 485 (Tex.
20 App.—Houston [1st Dist.] 2000, no pet.); State v. Northborough
Ctr., Inc., 987 S.W.2d 187, 190 (Tex. App.—Houston [14th Dist.]
1999, pet. denied). As the district court found, “Simi’s western
boundary is the same as the Hermann-Fannin-County-City eastern
boundary; they abut by definition.” Therefore, if Simi is
correct in its assertion that no park exists or has ever existed,
its property unquestionably abuts the Fannin Street right-of-way,
and the County’s interference with this access is a violation of
Texas law.14
14 The County’s interference with Simi’s property right of access to the abutting street also provides reason for rejecting another of the County’s procedural arguments – namely that the statute of limitations bars Simi’s claim. Under Texas law, “limitations is not a defense to an action to abate a continuing nuisance.” Stein v. Highland Park Indep. Sch. Dist., 540 S.W.2d 551, 554 (Tex. Civ. App.—Texarkana 1976, writ ref’d n.r.e.); City of Dallas v. Early, 281 S.W. 883 (Tex. Civ. App.—Dallas 1926, writ dism’d). We agree with the district court that Simi has alleged a continuing nuisance, asking for abatement and damages of its denial of access to an abutting street. “A continuing nuisance is a condition of such character that it may continue indefinitely.” Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.) (citing 66 C.J.S. NUISANCE § 4 (1950)). “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Id. (citing RESTATEMENT (SECOND) OF TORTS § 821D). In the instant case, the denial of access unreasonably interferes with the rights of property owners. It is therefore a private, continuing nuisance under Texas law, which precludes the statute of limitations defense asserted by the County. The district court did recognize, however, that “limitations may bar the recovery of damages that accrued more than two years before suit”. Simi, 13 F. Supp. 2d at 606; see also Stein, 540 S.W.2d at 554 (“[A]ppellant [would not] be barred from recovery of damages for injuries suffered during the two years immediately prior to filing of her suit.”). From our review of the record, it appears that the district court limited its determination of damages to damage occurring within this time period. In the October 29, 1999, hearing on damages, the district court made
21 B. The Substantive Due Process Violation
Satisfied that the County’s blockage of access implicates a
constitutionally protected property right, we must ask next
whether this denial is rationally related to a legitimate
governmental interest. See FM Prop., 93 F.3d at 174. “The
question is only whether a rational relationship exists between
the [policy] and a conceivable legitimate objective. If the
question is at least debatable, there is no substantive due
process violation.” Id. (alteration in original) (citations
omitted). Even under this low threshold, we are unpersuaded that
a rational basis exists to justify the County’s interference with
Simi’s property rights.
In brief, it is apparent from the record that the County
cannot demonstrate that a five-foot park ever existed in between
Fannin Street and the Simi Property. Further, we can ascertain
no rational reason for the County to deny abutting owners access
to the street when the City of Houston now has complete
jurisdiction over Fannin Street. Most troubling, however, the
record reflects what the district court found to be an
illegitimate plan to benefit the private interests of Hofheinz-
Smith whose properties were financially benefitted by the denial
of access to the other properties abutting Fannin Street. As
reference to a four-year time-frame for damages. As the original suit was filed in 1996, the 1999 determination of a four-year time period fits well within the statutory time limit for recovering damages.
22 will be discussed in detail below, the evidence demonstrates that
the County acted arbitrarily in inventing a park and, thus, acted
without a rational basis in depriving Simi of a constitutionally
protected interest.
The dispositive question in this case is whether or not
there ever was a park. The district court found that the County
had never established a park. We agree.
First, the County has failed to provide any official
documentation of the existence of a park. None of the five
surveys included in the record shows any sign of a county park.
The 1978 survey prepared by R.A. Peyton & Associates for the City
of Houston shows an eight-inch water main crossing Fannin Street
without reference to an intervening county park. The 1988 survey
prepared for the Holly Hall Home for the Retired, located north
of the Simi Property does not show a park. The 1991 survey
prepared by the South Texas Surveying Associates Inc. shows
Simi’s property directly abutting Fannin Street. The 1993 survey
prepared by PGAL Engineering for METRO in order to install a
sidewalk on the strip makes no mention of a county park.
Finally, in 1996, Karen Rose Engineering & Surveying completed a
survey that shows the east line of the Fannin Street right-of-way
and the Simi property line to be the same. All of the above
surveys were signed and sealed by registered professional
surveyors.
23 These surveys also support Simi’s claim that the Fannin
Street right-of-way has always abutted the eastern properties,
including the Simi Property. The district court found that the
Hermann Hospital Estate deed determined the proper boundaries of
the right-of-way. The deed provided that the Fannin right-of-way
would run along the east side of the Astrodome property with “the
remaining western portion of said Property to be used for street
purposes or included in a park and stadium site lying along the
West side of said Property.” Under this deed, no parkland was
reserved on the east of Fannin Street, and the right-of-way
apparently was intended to extend to Simi’s property line. No
County Commissioners order changed this initial understanding of
the right-of-way.15 In fact, this understanding was confirmed
when the County moved back the fences to the existing property
line abutting what is now Simi’s property.
In contrast, the sole descriptive evidence presented by the
County was the altered version of the 1961 unsigned and
unofficial plat. The altered version of the plat is of limited
persuasive authority because it provides no information about the
purpose or date of the alteration, and includes the language
15 As the district court recognized, “A county can act only through an official ‘commissioners court order’ to alter a thoroughfare.” Simi, 13 F. Supp. 2d at 607 (citing TEX. TRANSP. CODE ANN. § 251.051(b)(2) (1996), which states in relevant part: “A unanimous vote of the commissioners court is required . . . to alter a public road, except to shorten it end to end.”). The County has not provided any subsequent Commissioners Court order suggesting that the Fannin Street right-of-way was ever altered.
24 “location questionable” to denote the uncertain placement of
Fannin Street. Without some justification for why a five-foot
setoff was created just south of the Hofheinz-Smith land,
conveniently blocking all of the other property owners, we are
compelled to find that this plat cannot carry the burden of
establishing the County’s park.
The County also relies on Lovett v. County of Harris, a
Texas Court of Civil Appeals case that decided an earlier dispute
about this strip of land. See 462 S.W.2d 405 (Tex. Civ.
App.—Houston [1st Dist.] 1970, writ ref’d n.r.e.). As a
procedural matter, we find that the County has waived this issue
for purposes of res judicata as it inexplicably failed to raise
this argument until six months after the district court’s
Interlocutory Judgment and three years after the initial
25 complaint.16 However, as the case provides a discussion about
the disputed land, we address its reasoning.
Lovett involved a suit by landowners whose property
overlapped some of the current Simi Property. These landowners
sought a mandatory injunction against the County to remove a six-
foot chain-link fence, which ran along the property line and
separated the Fannin Street right-of-way and their properties.
See id. at 406. The court denied the request for an injunction
finding that: (1) Fannin Street did not abut the landowners’
property; (2) a 16.6 foot strip of land intervened between Fannin
Street and the landowners’ property; (3) neither the deed nor the
City of Houston had dedicated the 16.6 feet of land as being used
16 Nevertheless, the County contends that res judicata bars Simi’s claim because this prior state court judgment supports the County’s ownership of the strip of land. Again, we need not reach the merits of this claim, because the County failed to raise this issue as an affirmative defense. “Res judicata is an affirmative defense which is considered waived if not specifically pleaded in the answer or in an amended answer permitted under FED. R. CIV. P. 15(a).” Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1199 (5th Cir. 1995); Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985) (“[R]es judicata, and hence collateral estoppel, is an affirmative defense which if not pled is considered waived.”). District courts, of course, have discretion to allow late amendments “when no prejudice would result to the other party, and the ends of justice so require.” See Mozingo, 752 F.2d at 172. Our review is under an abuse of discretion standard. See Morgan Guar. Trust Co. v. Blum, 649 F.2d 342, 345-46 (5th Cir. Unit B July 1981). In the instant case, the County did not raise the defense until three years after the original suit was filed and more than six months after the district court resolved the liability issues in its Interlocutory Judgment. We find that the district court did not abuse its discretion in denying the County’s res judicata defense.
26 for street purposes; and (4) there was no taking of land under
Article I, Section 17 of the Texas Constitution. See id. at 406-
07.
This holding, while seemingly supportive of the County’s
claim, fails to carry the argument. First, we note that the
Lovett court affirmed the lower court’s decision which, as the
Lovett court noted, did not include any findings of fact or
conclusions of law.17 Second and more important for our
purposes, no showing was made that any county park existed, or
even that the County argued that a park existed on the land. All
that Lovett proves is that, as of 1970, the County held ownership
to the eastern part of Fannin Street, a conclusion with which all
parties agree. Third, the Lovett decision supports the
contention that the Fannin Street right-of-way (if not the
street) extended to the boundary of the Simi Property. As this
is where the disputed fence was placed, it is apparent the county
land abuts the Simi Property. Finally, the state law takings
17 The Lovett court stated:
The appellants, as movants in the trial court, had the burden of proof. No findings of fact or conclusions of law were requested or made, so we cannot say that the trial judge necessarily held with respect to all of these matters as the points of error assert that he did. His decision may well have been based, in part, on the appellants’ failure to sustain their burden of proof as to some of their allegations.
Lovett, 462 S.W.2d at 407.
27 holding is irrelevant to our analysis involving the existence of
a substantive due process violation.
Even accepting the factual findings of the Lovett court, the
issue left open is what happened to the 16.6 foot strip once the
County yielded jurisdiction over Fannin Street to the City of
Houston in 1974. It is undisputed that Fannin Street was ceded
to the City, but there is no record that in doing so, the County
retained an interest in a remaining five-foot strip of land.
Once the City of Houston took responsibility for the street and
the accompanying traffic and maintenance responsibilities, we are
hard pressed to find a reason for the County’s retention of five
feet out of the original 16.6 feet of land.
Furthermore, the County’s claim that a park has always
existed is belied by the fact that the park has not been treated
as such by the County. City gas lines, water lines, and a
sidewalk were all constructed on the park without receiving
proper authorization or an easement from the County. As the
district court found in its “Chronology”:
The County and Simi Investment agree that the County cannot sell or otherwise encumber its park land unless the encumbrance is approved by Commissioners Court Order with public notice under a state statute. The County and Simi Investment agree that no Commissioners Court Order can be found authorizing Entex, Houston, or METRO to construct facilities on the property and further, that there is no evidence that the County complied with the statutory notice requirements to convey an interest in this property to Entex, the City, or METRO.
28 Simi, 13 F. Supp. 2d at 611-12. Further, owners of other
properties along Fannin Street have developed their land in a
manner that demonstrates that no park exists. For example, the
owners of the Holly Hall tract north of the Simi Property along
Fannin Street developed their property with a twenty-five foot
setback from the street, pursuant to local ordinance. This
twenty-five foot setback would not have been necessary if a five-
foot park intervened between the street and the property.
From the foregoing, we agree with the district court that
“Harris County has no interest in an intervening 5-foot by 3,000-
foot strip east of Fannin Street and west of Knight’s Main Street
Addition [the Simi Property] and Holly Hall property, making
illegal its interference with the owners’ relation to the City of
Houston and Fannin Street. . . . [and] Harris County has ceded to
the city of Houston all of its right, title, and interest in the
eastern-most 100 feet of land conveyed to it by the Hermann
Estate.” Simi, 13 F. Supp. 2d at 612.
Measured against the rational basis test, a nonexistent park
used by County officials to interfere with private property
interests is clearly arbitrary, capricious, and violative of due
process. “While the ‘rational basis’ standard is the least
demanding test used by the courts to uphold [governmental]
action, it is not ‘toothless.’” Berger v. City of Mayfield
Heights, 154 F.3d 621, 625 (6th Cir. 1998) (quoting Mathews v.
Lucas, 427 U.S. 495, 510 (1976)). More damaging to the County’s
29 argument, the only basis in the record to explain the County’s
interference with access appears to be that - as the district
court recognized - this impediment would benefit the privately
held Hofheinz-Smith properties and the HSA.
The record clearly suggests that creation of a park worked
to enhance the value of the Hofheinz-Smith properties.18 As the
district court found, “interestingly, that ridiculously narrow
park limits the access of only those property owners who would
compete with the Hofheinz-Smith interests.” Simi, 13 F. Supp. 2d
at 607. Proof of this influence began in 1964 when the County
denied Texaco the right of access to Fannin Street on the basis
of Hofheinz’s objection. Furthermore, we note that the original
18 Two letters included in the record from County officials support the understanding that the County had interfered with the private property owners to benefit Hofheinz-Smith and the HSA. A March 14, 1985 letter from Richard Doss, County Engineer for the County, to El Franco Lee, Commissioner, stated in relevant part,
[T]he lots . . . were denied access to Fannin Street to prevent the establishment of businesses that could conceivably compete with the stadium operation. Surely, before any permission were granted the Houston Sports Association should be consulted.
Similarly, an August 20, 1991 letter from Ricardo Rivero, Technical Assistant, to County Engineer Terry A. Anderson reiterated this understanding, “[T]he lots and streets in Knights Main Street Addition [the Simi Property] were denied access to Fannin Street to prevent the establishment of businesses which conceivably would compete with the operation of the Dome stadium.” While we recognize that these letters are not binding on the County, they are probative, supporting the district court’s Supplemental Finding that “[t]he [County’s] interference had no relation to a legitimate governmental responsibility of the county whether characterized as public health, safety, or general welfare.”
30 request to gain access to the street was denied not because of
the County’s own claim to the land or an assertion of a park, but
because of Hofheinz’s erroneous assertion that HSA owned the
strip of land.
That the County acted to benefit solely private interests
does not necessarily demonstrate a substantive due process
violation. For substantive due process purposes, “the true
purpose of the [policy], (i.e., the actual purpose that may have
motivated its proponents, assuming this can be known) is
irrelevant for rational basis analysis.” FM Prop., 93 F.3d at
174. However, the County failed to put forth any alternative
rational basis for the continued interference with private
property rights.19 Certainly in 1994, twenty years after the
County had ceded control over Fannin Street to the City of
19 We note that a second letter from Richard Doss to El Franco Lee on November 14, 1985, provides a mixed private/public reason for the denial of access, and comes the closest to proving a legitimate reason for the denial of access. In that letter, Doss discusses the fence that abuts the Simi Property: “The fence was erected to minimize interruption to traffic on Fannin en route to the stadium and to prevent business competition with the stadium.” While the latter purpose is clearly illegitimate (benefitting purely private interests), the former could offer the requisite “rational” justification for impeding access. The flaw, however, is that this letter only addresses the fence abutting the Simi Property, and makes no mention of an intervening county park. As all parties have conceded that the County once owned the eastern property up to the Simi property line, this letter does little to demonstrate that a park existed and, in fact, seems to support Simi’s theory that the right-of- way has always abutted its property. The question we cannot answer is what legitimate interest the County had in maintaining that fence more than a decade after it had ceded control of the Fannin Street right-of-way to the City of Houston.
31 Houston, there was no rational basis for blocking access to the
street. Once jurisdiction shifted to the City, whatever
interests in maintaining traffic control or other governmental
responsibilities that could be hypothesized to justify
interference with access to Fannin Street disappear. Without a
park and without a rational basis for impeding access, the
County’s arguments fail to survive even a rational basis review.
We, therefore, affirm the district court’s findings that the
County acted arbitrarily and without a legitimate governmental
purpose. We hold that the invention of a park solely to deny
private property holders lawful access to an abutting street is
an abuse of governmental power, which on this peculiar factual
foundation rises to the level of a substantive due process
violation. Having successfully pled a deprivation of a
constitutional right under § 1983, Simi is entitled to the relief
granted by the district court.
V. ATTORNEYS’ FEES
It is undisputed that attorneys’ fees are provided under 42
U.S.C. § 1988 for litigants who successfully bring § 1983 claims.
See 42 U.S.C. § 1988 (“[T]he court, in its discretion, may allow
the prevailing party . . . a reasonable attorney’s fee as part of
the costs.”). “We review a district court’s award of attorneys’
fees for abuse of discretion, and its factual findings relating
32 to the award of attorneys’ fees for clear error.” Freiler v.
Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 348 (5th Cir.
1999). Having found that Simi has proven a successful § 1983
claim predicated on substantive due process, we agree that Simi
is entitled to receive attorneys’ fees.20
However, we find that the district court abused its
discretion in awarding attorneys’ fees based on legal work not
provided in furtherance of Simi’s § 1983 claim. While the record
does not permit us to determine precisely what factors were
controlling in the court’s determination of the fee, our reading
of the record leads us to be concerned that Simi’s state court
legal fees which preceded its amended § 1983 suit21 were included
in the calculation.
This court has held that attorneys’ fees resulting from
state court litigation that does not seek to enforce federal
constitutional rights, but which does precede a successful § 1983
suit, are not attorneys’ fees contemplated by § 1988. See
Brantley v. Surles, 804 F.2d 321, 325 (5th Cir. 1986). This
conclusion necessarily follows from the purpose of § 1988, which
is to enforce § 1983 or other federal civil rights statutes. Of
20 It is apparent from the record that, in considering the award, the district court explained its reasons for the award and complied with the requirements of Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (1974). Our sole concern is the timetable used to judge the attorneys’ fees. 21 As stated, Simi’s § 1983 claim was first raised in its November 18, 1996, first amended complaint.
33 course, where a state proceeding is a necessary preliminary
action to the enforcement of a federal claim, these attorneys’
fees may be available in some circumstances, subject to the
discretion of the district court. See Redd v. Lambert, 674 F.2d
1032, 1037 (5th Cir. 1982); see also Barrow v. Falck, 977 F.2d
1100, 1104 (7th Cir. 1992) (“Section 1988 permits a court to
shift to defendant only those legal fees incurred in proceedings
to enforce a few listed federal statutes. When proceedings in
state courts or agencies are part of the enforcement of § 1983,
then time reasonably devoted to them is compensable.” (citing New
York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 71 (1980))).
Simi brought its initial suit in state court and did not
allege a § 1983 violation. Without a demonstration that this
state suit was part of the enforcement of the § 1983 claim, legal
fees relating to that litigation cannot be recovered under
§ 1988. Following Brantley, we find that the state suit was not
a part of the enforcement of § 1983, and therefore, attorneys’
fees relating to the state action are not recoverable. See
Brantley, 804 F.2d at 325.
We are also concerned that the district court may have based
its award on a record that includes billing reports of Simi’s
counsel dating back to 1990, well before the state and federal
lawsuits were initiated. These records, and the district judge’s
assertion at the hearing on attorneys’ fees that counsel had
worked on the case for six years, compels us to find that the
34 district court may have awarded an incorrect amount of attorneys’
fees. Further, the district court apparently calculated the
attorneys’ fees with interest based on a time frame that may have
included the state court proceedings. Because we find that the
district court abused its discretion in considering attorneys’
fees not related to the § 1983 action, we vacate the original
award and remand it for reconsideration.
Having prevailed on appeal, Simi is entitled to legal fees
for the appeal. On remand, we also ask the district court to
decide on a reasonable fee.22
VI. CONCLUSION
For the above stated reasons, we AFFIRM the judgment of the
district court in all respects, except for the award of
22 We find no merit in the County’s argument that the district court exceeded its authority in awarding expert witness fees. We review awards of expert fees under an abuse of discretion standard. See Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994). The district court found in its Supplemental Findings that “the county persisted in defending its wrongful interference claim in bad faith; long after title questions had been clearly answered from the county’s own records, it used this litigation to vex and oppress Simi.” Under Alyeska Pipeline Service Co. v. Wilderness Society, courts may award expert fees in excess of the statutory limitations when “the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’” 421 U.S. 240, 258-59 (1975); see also United States ex rel Wallace v. Flintco Inc., 143 F.3d 955, 972 n.14 (5th Cir. 1998). The district court found that the County acted vexatiously and oppressively, and from the record, we cannot conclude that such a finding was an abuse of discretion. We therefore affirm the award of expert fees.
35 attorneys’ fees, which we VACATE and REMAND for further
consideration consistent with this opinion.