                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-303-CV


JAYANTI PATEL                                                         APPELLANT

                                        V.

CITY OF EVERMAN                                                         APPELLEE

                                    ------------

           FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                 I. INTRODUCTION

      Appellant Jayanti Patel appeals the trial court’s granting Appellee City of

Everman’s (the City) no-evidence and traditional summary judgment motions.

In six issues, Patel contends that the City failed to attach evidence to its motion

for traditional summary judgment; that under the “law of the case” doctrine this




      1
          … See Tex. R. App. P. 47.4.
court is compelled to reverse the trial court’s judgment; that the trial court erred

by determining that Patel was collaterally estopped from bringing this suit by

nonsuiting his previous case against the City; and that the City, in its motion

for no-evidence summary judgment, failed to specifically state the elements for

which it alleged that there was no evidence. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      This litigation, an inverse condemnation action, is the continuation of

controversies that began in 1997 between Patel and the City. Patel and the

City have engaged in disputes over Patel’s buildings before administrative

agencies, the district court, the Tyler Court of Appeals, federal court, and now

this court. See Patel v. City of Everman, 179 S.W.3d 1, 8 (Tex. App.—Tyler

2004, pet. denied); see also Patel v. City of Everman, No. 4:07-CV-010-A,

2007 WL 1159688, *1 (N.D. Tex. 2007) (not reported in F. Supp. 2d).

      In 1990, Patel purchased twenty apartment buildings in the Willow

Woods complex in Everman, Texas, for $1,200,000.00. In October 1995, the

City requested that Patel board up two of his buildings that were vacant. Patel

complied, and further, boarded up other unrented units to, allegedly, exclude

vagrants and prevent crime and vandalism.

      In April 1997, Patel received notice that the City intended to demolish

fifteen of his buildings because their doors and windows had been boarded up

                                         2
for more than six months.        Afterwards, Patel attended a meeting of the

Everman Planning and Zoning Commission (the Commission) concerning the

proposed demolition of his buildings and informed the Commission that he was

unaware of the ordinance prohibiting boarding windows and doors for more

than a six-month period. At the conclusion of the meeting, the Commission

voted to recommend to the Everman City Council that fifteen of Patel’s

buildings be demolished.

      In July 1997, Patel filed suit seeking an injunction against the City.

Ultimately, the trial court entered an agreed order, signed by and agreed to by

all parties, requiring Patel to bring all fifteen apartment buildings into compliance

with all city codes by February 9, 1998. On February 20, 1998, Killebrew, a

City Code Enforcement Officer, inspected all twenty of Patel’s properties.

Killebrew then sent Patel a notice of substandard building as well as separate

inspection reports on each of his properties.

      On March 5, 1998, the City held a public hearing regarding the twenty

properties.   The City’s board voted unanimously to demolish all twenty

buildings. Patel filed another suit seeking to enjoin the City from demolishing

the buildings on April 3, 1998. In that suit, Patel moved the district court to

issue a writ of certiorari to be directed to the City’s Building Board of Appeals




                                         3
to review its decision to demolish his properties. Patel later nonsuited this suit

on July 23, 1999.

      Patel then filed suit in federal court on November 29, 1999, claiming

various causes of action, including takings under both the federal and State

constitutions, equal protection violations, substantive and procedural due

process violations, and race discrimination. The federal court dismissed Patel’s

equal protection, substantive due process, and race discrimination claims with

prejudice.   The federal court dismissed Patel’s remaining claims without

prejudice.

      Patel next filed the current action on July 31, 2000, alleging claims of

unconstitutional takings pursuant to article 1 section 17 of the Texas

Constitution. The City filed a motion for summary judgment, which the trial

court granted. Patel appealed to the Tyler Court of Appeals. See Patel, 179

S.W.3d at 4.

      The Tyler Court of Appeals affirmed the judgment as to Patel’s claims

related to the demolition by the City of fifteen of Patel’s buildings and remanded

as to the other buildings. 2 Patel,179 S.W.3d at 18. The Tyler Court of Appeals



      2
       … The Tyler Court of Appeals only remanded as to four of Patel’s
properties located at 403 Lee Street, 410 Race Street, 405 King Street, and
403 King Street—the buildings that were demolished but not subject to the
agreed order. See Patel, 179 S.W.3d at 18. The Tyler Court of Appeals did

                                        4
reasoned that Patel had consented to the demolition of the fifteen buildings, but

they remanded the case back to the trial court, concluding that Patel’s

deposition testimony raised fact issues regarding the existence of violations of

the City’s building ordinances to the remaining buildings. Id.

      After remand, the City filed an October 28, 2006 eighth amended

answer, which responded to the allegations made by Patel against the City in

his sixth amended original petition as to the five buildings affected by the Tyler

Court of Appeals’s remand.      In its new pleading, the City raised defenses

predicated on provisions of Chapter 4 of the City’s code and Chapter 214 of

the Texas Local Government Code.         In response, Patel filed his “Seventh

Amended & Supplemental Petition” on December 29, 2006. His prayer for

relief again was based on his inverse condemnation claim, but this time he

added in support of that claim reliance on the Fifth and Fourteenth Amendments

to the United States Constitution.

      The City then filed for removal to federal court on January 4, 2007,

claiming that now that Patel had asserted federal takings and due process

violations, the federal court had jurisdiction over the entire suit, even the State

law claims, under 28 U.S.C. section 1367(a). Patel, 2007 WL 1159688, at *2.



not address Patel’s building located at 314 Race Street, which was not
demolished.

                                        5
The United States District Court for the Northern District of Texas held that

none of Patel’s federal law theories was ripe and that the court lacked subject

matter jurisdiction over all claims, both State and federal. Id. at 3.

      On July 26, 2007, the trial court held a hearing concerning the City’s

second motion for summary judgment. The City’s motion contained both a no-

evidence and a traditional summary judgment. In its no-evidence summary

judgment, the City argued that there was no evidence to support Patel’s takings

claims regarding his properties located at “302 and 314 Race Street.” The

City’s traditional summary judgment argued that Patel’s suit was an improper

collateral attack on the ruling of the Building Board of Appeals, and is barred by

principles of res judicata. The trial court granted the City’s motion and ordered

that Patel take nothing. This appeal followed.

                         III. L AW OF THE C ASE D OCTRINE

      In his second issue, Patel argues that the City’s traditional motion for

summary judgment is predicated on issues in this case previously disposed of

by the Tyler Court of Appeals and the Supreme Court of Texas. See Patel, 179

S.W.3d at 8.     Patel argues that because the Tyler Court of Appeals has

established the “law of the case” for the issue now on appeal to this court, we

are bound by the law of the case, and it dictates we reverse and remand “for

disposition on Patel’s takings claims.” We disagree.

                                        6
      The “law of the case” doctrine is the principle that questions of law

decided on appeal to a court of last resort will govern the case throughout its

subsequent stages. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596

(Tex. 2006); Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).

By narrowing the issues in successive stages of the litigation, the law of the

case doctrine is intended to achieve uniformity of decision as well as judicial

economy and efficiency. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.

1986). The doctrine is based on public policy and is aimed at ending litigation.

Id.

      But a decision rendered on an issue before the appellate court does not

absolutely bar reconsideration of the same issue on a second appeal. Briscoe,

102 S.W.3d at 716 (citing Kempner v. Huddleston, 90 Tex. 182, 37 S.W.

1066, 1066–67 (1896)). Indeed, the decision to revisit a previous holding is

left to the discretion of the court under the particular circumstances of each

case. City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex. 2006). And

although a court considering a subsequent appeal should ordinarily be bound by

a prior decision in the same case, the court will not be bound by the law of the

case if there is a substantial change of issues or fact in the retrial. Wohlfahrt

v. Holloway, 172 S.W.3d 630, 638 n.9 (Tex. App.—Houston [14th Dist.]

2005, pet. denied), cert. denied, 549 U.S. 1052 (2006). Furthermore, the

                                       7
doctrine has limited application following a summary judgment appeal. Hudson,

711 S.W.2d at 630–31. Thus, the law of the case doctrine in no way prevents

this court from considering legal questions that are properly before us for the

first time. See Briscoe, 102 S.W.3d at 716.

       Patel argues that the Tyler Court of Appeals has already addressed the

three arguments on which the City’s traditional motion for summary judgment

is based, namely, res judicata, collateral estoppel, and consent. 3 Patel further

argues that the supreme court’s denial of the City’s petition from the Tyler

Court of Appeals’s decision reinforces that the law of the case has now been

established, and that it should govern this subsequent stage in that same

litigation.

       The City argues that the Tyler Court of Appeals’s is not a “court of last

resort” for purposes of applying the doctrine to this case, that the supreme

court’s denial of the City’s previous petition is not indicative of the supreme

court’s position on the law set forth in the Tyler Court of Appeals decision, and

that the grounds asserted in the motion on which this appeal is predicated were




       3
      … The City did not plead these claims in its motion for summary
judgment that was granted by the trial court and reviewed by the Tyler Court
of Appeals. See Patel, 179 S.W.3d at 8. They were included in the City’s
motion for rehearing concerning the Tyler Court of Appeals decision. The Tyler
Court of Appeals denied the City’s motion.

                                       8
never stated in the prior motion that the Tyler Court of Appeals reviewed and

denied.

      We agree with the City that the denial or dismissal of a petition by our

supreme court does not give any indication of its opinion on the merits of an

issue. See Tex. R. App. P. 56.1(b)(1); Matthews Constr. Co., Inc. v. Rosen,

796 S.W.2d 692, 694 n.2 (Tex. 1990); see also Trevino v. Turcotte, 564

S.W.2d 682, 685 (Tex. 1978) (holding that a court of appeals’ conclusion was

not binding under the “law of the case” doctrine when the petitioner’s first writ

of error was denied as “writ refused, no reversible error”). We also agree with

the City that the Tyler Court of Appeals’s opinion did not address the same

issues that this court now considers, despite this being the same litigation.

      The Tyler Court of Appeals held that there was a fact question “with

regard to the existence of [substandard building] violations” and that, when

construing Patel’s pleadings liberally, the trial court had improperly applied a

two-year statute of limitation for the “damaging” of property, rather than a ten-

year statute of limitation regarding a general takings claim. See, e.g., Waddy

v. City of Houston, 834 S.W.2d 97, 102 (Tex. App.—Houston [1st Dist.] 1992,

writ denied). Nothing in the Tyler Court of Appeals’ decision pertains to the

ground on which the motion that underlies this appeal is predicated—Chapter

214 of the Texas Local Government Code’s limited judicial review provisions.

                                       9
Recognizing the discretionary nature of the doctrine and concluding that Patel’s

takings claim has substantially changed in the City’s most recent motion for

summary judgment, we decline to apply the law of the case doctrine and hold

also that the doctrine is inapplicable to this appeal. Thus, we overrule Patel’s

second issue.

            IV. B UILDINGS A FFECTED BY THE T RIAL C OURT’S J UDGMENT

      In his fifth issue, Patel argues that if this court holds that the Tyler Court

of Appeals’ opinion is not controlling under the law of the case doctrine, then

the trial court erred in granting summary judgment as to all twenty buildings.

And, Patel argues, because the City’s motion for traditional summary judgment

only referenced the four buildings located at 403 Lee Street, 410 Race Street,

405 King Street, and 403 King Street, this court should reverse and remand as

to the remaining buildings, except the building at 314 Race Street. 4           We

disagree.

      An amended pleading supersedes and supplants all previous pleadings.

See Tex. R. Civ. P. 65; see also FKM P’ship, Ltd. v. Bd. of Regents of Univ. of




      4
        … The City specifically addressed the buildings located at 403 Lee
Street, 410 Race Street, 405 King Street, and 403 King Street in its second
traditional summary judgment motion. The City addressed 314 Race Street in
its no-evidence motion for summary judgment. Both of these motions were
contained within the City’s second motion for summary judgment.

                                        10
Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (holding that amended

pleadings condemning a “smaller tract . . . [of land] effected a voluntary

dismissal of the [plaintiff’s earlier] claim as to that part of the larger tract not

included in the amended pleading.”)

      In this case, it was Patel, through his seventh amended petition—the live

pleadings at the time of the trial court’s decision to grant the City’s second

motion for summary judgment—that narrowed the “land subject of [this] suit”

to 403 Lee Street, 410 Race Street, 405 King Street, 403 King Street, and 314

Race Street.   Thus, it was Patel who effected a voluntary dismissal of the

remaining fifteen buildings. See id. We overrule Patel’s fifth issue.

                      V. T RADITIONAL S UMMARY J UDGMENT

      In his first, third, and fourth issues, Patel argues that the trial court erred

by granting the City’s traditional summary judgment motion.

      1.    Standard of Review

      A defendant is entitled to summary judgment on an affirmative defense

if the defendant conclusively proves all the elements of the affirmative defense.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Tex. R.

Civ. P. 166a(b), (c). To accomplish this, the defendant-movant must present

summary judgment evidence that establishes each element of the affirmative

defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121

                                        11
(Tex. 1996).   When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.          IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004).

      When a trial court’s order granting summary judgment does not specify

the ground or grounds relied on for its ruling, summary judgment will be

affirmed on appeal if any of the theories presented to the trial court and

preserved for appellate review are meritorious. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe,

915 S.W.2d 471, 473 (Tex. 1995).

      2.    Evidence Attached to Motion

      In his first issue, Patel argues that the trial court erred in granting the

City’s traditional motion for summary judgment because the City failed to

attach any evidence to the motion. Patel specifically argues that even though

the City attached an appendix containing all relevant evidence to its first

amended motion for summary judgment, the trial court erred in considering this

evidence because the first motion was “superseded by [The City’s] Second

Motion for Summary Judgment.” Thus, Patel argues, the appendix attached to




                                      12
the first motion could not have served as evidence to support the trial court’s

ruling on the City’s second motion. We disagree.

        Texas Rule of Civil Procedure 166a(c) reads that “judgment sought shall

be rendered . . . if [the evidence] on file at the time of the hearing . . .

[demonstrates that] the moving party is entitled to judgment as a matter of

law.”    Tex. R. Civ. P. 166a(c) (emphasis added).       Nothing in rule 166a(c)

requires evidence to be physically attached to the motion. See id.; see also

R.I.O. Sys., Inc. v. Union Carbide Corp., 780 S.W.2d 489, 492 (Tex.

App.—Corpus Christi 1989, writ denied) (holding that it was proper for trial

court to consider previously filed summary judgment evidence even though no

evidence was attached to the later summary judgment motion the trial court

ruled on). A party, in its motion or response, may rely on summary judgment

evidence on file, provided that the motion or response expressly and specifically

identifies the supporting evidence on file. See Kotzur v. Kelly, 791 S.W.2d

254, 257 (Tex. App.—Corpus Christi 1990, no writ) (noting that a party must

expressly and specifically identify the supporting evidence “on file” that it seeks

to have considered by the trial court); see also Steinkamp v. Caremark, 3

S.W.3d 191, 194–95 (Tex. App.—El Paso 1999, pet. denied) (holing that

nonmovant responding to no-evidence motion for summary judgment could rely

on evidence already “on file” with trial court attached to opposing party’s prior

                                        13
motion by referencing that evidence). In this case, the City complied with these

general rules.

         Attached to the City’s first amended motion for summary judgment was

an appendix containing the evidence relied on by the City in support of its

second motion. The City’s second motion for summary judgment, the motion

underlying this appeal, specifically states that evidence relied on was the same

as that attached to the City’s first motion.       The City’s second motion for

summary judgment also contains appendix page references to the appendix

attached to its first motion.     Thus, the motion made specific references to

evidence already “on file” with the trial court. We hold that the trial court did

not err by relying on the previously filed evidence and overrule Patel’s first

issue.

         3.    Patel’s Inverse Condemnation Claim and Collateral Estoppel

         In his third and fourth issues, Patel argues that the trial court erred in

granting the City’s motion for traditional summary judgment because Chapter

214 of the Texas Government Code does not apply to takings claims and thus

it was improper for the trial court to find that Patel’s previously non-suited

appeal from the Board’s determination collaterally estopped him from pursuing

this suit. In this issue, Patel argues that chapter 214 does not apply to his

claims; that chapter 214's limiting judicial review of claims to a thirty-day

                                         14
appeal is improper; that the City’s ordinance does not recite the judicial review

provisions of chapter 214; and that the determination of what constitutes a

nuisance is to be made by a judge or jury, thus, the application of substantial

evidence review to the Board’s determination is improper.

                  a.     Takings and the Substantial Evidence Rule

      Property owners have the right to judicial review of acts by administrative

bodies that affect the constitutional right which prohibits the taking of private

property for public use without just compensation. Tex. Const. art. 1, § 17;

City of Houston v. Blackbird, 394 S.W.2d 159, 161–62 (Tex. 1965). This

right, however, is not necessarily the right to a full-blown de novo trial and can

be statutorily limited. See Blackbird, 394 S.W.2d at 163. City ordinances that

provide for judicial review of administrative determinations that buildings

constitute a public nuisance or otherwise provide for their demolition can

mandate the substantial evidence standard of review. Cedar Crest #10, Inc. v.

City of Dallas, 754 S.W.2d 351, 353 (Tex. App.—Eastland, 1988, writ denied);

see also Bates v. City of Beaumont, 241 S.W.3d 924, 929 (Tex.

App.—Beaumont 2007, no pet.). The statute that enables cities to pass such

ordinances is Texas Local Government Code chapter 214. See Tex. Loc. Gov’t

Code Ann. § 214.001(a) (Vernon 2008); see also Nussbaum v. City of Dallas,

948 S.W.2d 305, 308 (Tex. App.—Dallas 1996, no writ).               When a city

                                       15
ordinance is based on this statute, and the ordinance does not specifically

define judicial procedures, the procedural gaps are filled in by section

214.0012.    See Tex. Loc. Gov’t Code Ann. § 214.0012; Nussbaum, 948

S.W.2d at 308 (reasoning that although a city’s ordinance did not state which

party had the burden of bringing administrative record to the reviewing court

hearing, the procedural gaps would be filled in by 214.0012 because chapter

214 enabled the city to promulgate the ordinance). Section 214.0012 provides

that an aggrieved property owner “may file in district court a verified petition

setting forth that [a city board’s] decision is illegal, in whole or in part, and

specifying the grounds of the illegality.”        Tex. Loc. Gov’t Code Ann.

§ 214.0012. The aggrieved party must file the petition within thirty days of

receiving proper notification of the municipality’s determination or “such

decision shall become final,” and that determination is to be reviewed “under

the substantial evidence rule.”     Id.; see also Bates, 241 S.W.3d at 927

(acknowledging thirty-day period prescribed by section 214.0012 applicable to

building owner’s filing suit challenging city’s decision to demolish building under

city’s ordinance). We conclude and hold that the City’s substandard building

ordinance was enacted pursuant to chapter 214 of the Texas Local Government

Code and that its judicial review provisions apply to Patel’s claims.




                                        16
                    b.    Collateral Estoppel

      The City argued in its traditional summary judgment that Patel was

attempting to collaterally attack the orders of the Board’s decision. We agree.

To invoke the doctrine of collateral estoppel, a party must establish that (1) the

facts sought to be litigated in the first action were fully and fairly litigated in the

prior action; (2) those facts were essential to the judgment in the first action;

and (3) the parties were cast as adversaries in the first action. El Paso Natural

Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex. 1993) (per curiam). The

City raised collateral estoppel as an affirmative defense to Patel’s claims;

therefore, the City must conclusively prove all the elements of the defense as

a matter of law to establish their entitlement to summary judgment. See Ryland

Group, 924 S.W.2d at 121.           The applicability of collateral estoppel to a

particular judgment is a question of law. Martin v. U.S. Trust Co. of N.Y., 690

S.W.2d 300, 307 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). The doctrine of

collateral estoppel promotes judicial efficiency and prevents inconsistent

judgments by precluding the relitigation of any ultimate fact issue previously

litigated even when the subsequent suit brings a different cause of action.

Williams v. City of Dallas, 53 S.W.3d 780, 785 (Tex. App.—Dallas 2001, no

pet.) (citing Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex.

2001)).

                                          17
      On April 3, 1998, within thirty days of his receipt of the demolition

orders, Patel filed suit, seeking to enjoin the City from demolishing his buildings

and seeking judicial review of the Board’s decision to do so by writ of certiorari.

By doing so, Patel was complying with the applicable standards prescribed by

Texas Local Government Code 214.0012. See Tex. Loc. Gov’t Code Ann.

§ 214.0012. But Patel nonsuited that suit on July 23, 1999. Having nonsuited

his direct attack on the ruling of the Board regarding his buildings, and not

having otherwise sought judicial review of the Board’s order within the thirty-

day period prescribed by section 214.0012, Patel is collaterally estopped from

now bringing this suit. See Ramirez v. Texas State Bd. of Medical Examiners,

99 S.W.3d 860, 863 (Tex. App.—Austin 2003, pet denied) (holding that

physician who did not seek judicial review under applicable administrative

remedies was “barred by the doctrine of res judicata and collateral estoppel

from litigating this matter once again”). We hold that the trial court did not err

in granting the City’s traditional summary judgment under the doctrine of

collateral estoppel and overrule Patel’s third and fourth issues.

                     VI. N O-E VIDENCE S UMMARY J UDGMENT

      In his sixth issue, Patel argues that the trial court erred in granting the

City’s no-evidence motion for summary judgment. In this argument, Patel does

not dispute that he did not file a response to the City’s motion; rather, he

                                        18
argues that the City failed to comply with the requirements with rule 166a(i).

Specifically, Patel complains that the City did not specifically state the elements

“to which there [was] allegedly no evidence.”

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.       Tex. R. Civ. P. 166a(i).    The motion must

specifically state the elements for which there is no evidence. Id.; Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court

must grant the motion unless the nonmovant produces summary judgment

evidence that raises a genuine issue of material fact.       See Tex. R. Civ. P.

166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002).

      The City argues that Patel did not object to the trial court’s granting the

no-evidence summary judgment on the grounds that its motion was not

sufficiently specific. Thus, the City argues, Patel has not preserved this issue

for review. See Tex.R. Civ. P. 166a(i). Furthermore, the City argues that the

motion sufficiently specified the elements for which there was no evidence.

      We assume, without deciding, that Patel preserved this issue for our

review.   See McGrath v. FSI Holdings, Inc., 246 S.W.3d 796, 805 (Tex.

                                        19
App.—Dallas 2008, pet. denied) (reasoning that no exception or objection is

necessary at trial court level to preserve issue that no-evidence summary

judgment motion fails to comply with specificity requirement of Rule 166a(i));

compare Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 117 (Tex.

App.—Waco 1999, no pet.) (holding that appellant failed to preserve error

because appellant failed to object to the form of no-evidence summary

judgment motion).

      When a party urges that its no-evidence summary judgment motion be

granted on the ground that “there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the

burden of proof at trial,” the motion “must state the elements as to which there

is no evidence.”    Tex. R. Civ. P. 166a(i).   Here, the City alleged in its no-

evidence motion as follows:

      In order to recover under Article I, Section 17, Plaintiff must prove:
      (1) the government’s intentional acts (2) resulted in a taking of the
      plaintiff’s property (3) for public use. In this case, there is no
      evidence of an intentional act by Defendant . . . no evidence of
      taking, damaging or destruction of the property, and no evidence
      that any alleged taking was for public use. [Citations omitted.]

      In other words, the City specifically identified Patel’s claims and the

challenged elements for which Patel presented no evidence. See Nelson v.

Regions Mortgage, Inc., 170 S.W.3d 858, 861–62 (Tex. App.—Dallas 2005,



                                       20
no pet.) (holding that “by specifically identifying each challenged element,” the

party’s no-evidence summary judgment motion complied with the requirements

of rule 166a(i)); Baker v. Gregg County, 33 S.W.3d 72, 77 (Tex.

App.—Texarkana 2000, pet. dism’d) (holding that motion for no-evidence

summary judgment in action by employee for age discrimination, retaliatory

discharge, and constitutional violations was not defective where motion listed

employee’s claims and stated elements that were lacking in each). Accordingly,

we hold that the City’s no-evidence summary judgment motion was not

defective and overrule Patel’s sixth issue.

                               VII. C ONCLUSION

      Having overruled Patel’s six issues, we affirm the trial court’s judgment.




                                              DIXON W. HOLMAN
                                              JUSTICE

PANEL: GARDNER and WALKER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: April 2, 2009




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