                                   NO. 07-04-0097-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL E

                                  SEPTEMBER 3, 2004

                          ______________________________


                           LANE HARDWICKE, APPELLANT

                                            V.

                        CITY OF LUBBOCK, TEXAS, APPELLEE


                        _________________________________

            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2004-524,931; HONORABLE ANDREW J. KUPPER, JUDGE

                         _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


                                         OPINION


       Appellant, Lane Hardwicke, brings this interlocutory appeal from the denial of his

request for a temporary injunction in a declaratory and injunctive action he brought against

the City of Lubbock.     Hardwicke sought declarations invalidating the statutes and

ordinances under which the City was acting and to enjoin the City from pursuing

       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
condemnation proceedings against property owned by him. We will affirm the trial court’s

order.


                     FACTUAL AND PROCEDURAL BACKGROUND


         The litigation concerns a tract of real property owned by Hardwicke and located on

9th Street in Lubbock. The property consists of a single lot, on which is situated a structure

built as a residence but now divided into four apartments. The property is located in the

North Overton2 area of Lubbock designated by the City in March 2002 as the North

Overton District Tax Increment Finance Reinvestment Zone, under the Tax Increment

Financing Act (the Act).3 See Tex. Tax. Code Ann. Ch. 311 (Vernon 2002 & Supp. 2004).


         The Act permits a municipality to designate a geographic area as a tax increment

reinvestment zone to promote development or redevelopment of the area if it determines

that would not occur solely through private investment in the reasonably foreseeable future.

§ 311.003(a). Private development or redevelopment is facilitated, inter alia, by public

infrastructure improvements.4      See § 311.011.      Both the public works and private


         2
       The North Overton area generally lies between the downtown center of Lubbock
and the campus of Texas Tech University, and is bounded generally by Broadway on the
south, University Avenue on the west, Fourth Street on the north and Avenue Q on the
east.
         3
        Subsequent section references are to the Texas Tax Code Annotated (Vernon
2002), unless otherwise noted.
         4
        A key feature of the Act is the method used to finance the public works. See City
of El Paso v. El Paso Community College Dist., 729 S.W.2d 296 (Tex. 1986). Under the
Act, the taxable value of real property in the zone is determined at the time of the zone’s
creation. §§ 311.011(c)(7), 311.012(c). During the existence of the reinvestment zone,
taxes collected on any increase in value resulting from redevelopment are deposited in a

                                             -2-
redevelopment are undertaken pursuant to redevelopment plans approved by the

municipality. Id.


       Section 311.005 of the Act sets out the criteria required of an area designated as

a reinvestment zone. The North Overton zone was established in response to a petition

of property owners, pursuant to Section 311.005(a)(5),5 led by entities associated with

developer Delbert McDougal that had acquired a significant percentage of the properties

in the area.


       McCanton Woods, Ltd., is the lead developer in the North Overton zone. It

negotiated with Hardwicke to acquire his property. Testimony in the record before us

indicates agreement was reached at one point for Hardwicke’s sale of his property to

McCanton Woods, but ultimately the negotiations were unsuccessful. The Act authorizes

municipalities to exercise powers necessary and convenient to carry out plans for

reinvestment zones, including the power to acquire real property by condemnation. See

§ 311.008. McCanton Woods requested the City to initiate efforts to acquire Hardwicke’s

property. In November 2003 the City obtained an appraisal of Hardwicke’s property, and

in December the City Council authorized condemnation of the property. At that time the


tax increment fund. § 311.013. This fund is used to pay public project costs, including the
cost of public works. § 311.002(1).
       5
        In its ordinance designating the North Overton area as a reinvestment zone, the
Lubbock City Council also stated its findings that, inter alia, the area is “unproductive,
underdeveloped or blighted” within the meaning of article VIII, section 1-g(b) of the Texas
Constitution, and impairs the City’s growth or constitutes an economic or social liability
because of the number of deteriorated or deteriorating structures, faulty lot layout, and
deterioration of site or other improvements. See § 311.005(a)(1); Op. Tex. Att’y Gen. No.
JC-0152.

                                            -3-
City sent Hardwicke a letter offering for the property the appraised value, taken from the

November appraisal. The City sent a second letter on January 6, 2004, containing a “final

offer” in the same amount and informing Hardwicke that failure to accept the offer within

ten days would result in the initiation of condemnation proceedings on the property.

Hardwicke filed the underlying suit on January 13.


       In February 2004, the City Council approved an agreement with McCanton Woods

concerning acquisition of Hardwicke’s property and another tract in the North Overton

reinvestment zone. The agreement recited that McCanton Woods had acquired “a large

percentage” of the property in the zone and intended to develop the property in accordance

with the zone project plan but was unable to acquire the two parcels “necessary to the

implementation of the Amended Project Plan” and that it sought to have the City acquire

the property by condemnation.       The agreement provided McCanton Woods would

reimburse the City for the cost of condemnation, including attorneys fees. The City agreed

to take title to the properties acquired by eminent domain, and to transfer them to

McCanton Woods “at fair market value, to be used to implement the Amended Project Plan

approved by the City Council.”


       Hardwicke’s pleadings6 sought twelve specific judicial declarations including

declarations that sections of the Act and the City’s ordinance establishing the reinvestment

zone are unconstitutional as applied, the City’s designation of the boundaries of the

reinvestment zone was arbitrary and capricious and represented “bad faith, fraud and


       6
        Our description of the relief Hardwicke seeks comes from his second amended
petition, filed February 25. His prior petitions are not in the record provided us.

                                            -4-
collusion,” and that his property has historical significance and was entitled to protection.

He sought temporary injunctions enjoining the City from instituting or prosecuting

condemnation of his property until final judgment on his declaratory action, and from

“engaging in any act to diminish the value” of the property or otherwise interfering with his

quiet enjoyment of it, and sought permanent injunctive relief.


       The trial court conducted a hearing on appellant’s application for a temporary

injunction on February 10, 2004. The court heard testimony and argument of counsel, and

admitted twenty-six exhibits. The court denied appellant’s request for temporary relief in

a written order filed March 3, 2004. Appellant perfected this interlocutory appeal from that

order.7 See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (Vernon Supp. 2004).


       Hardwicke filed a motion for new trial and other relief. By an order signed April 2,

2004, the trial court denied all the relief requested by that motion except for a request to

stay condemnation proceedings. The court ordered that condemnation proceedings,

including the appointment of special commissioners, were stayed for a stated period of

time pending appeal. On the expiration of that stated period, and on Hardwicke’s motion,

this court continued that stay of condemnation proceedings.




       7
       Hardwicke’s brief states his request for an anti-suit injunction has been rendered
moot because the trial court permitted the City to file its condemnation proceeding as a
counterclaim. For purposes of this appeal, we view the status quo Hardwicke seeks to
preserve as his possession of his property.

                                             -5-
                                 STANDARD OF REVIEW


       The purpose of a temporary injunction is to preserve the status quo until a final

hearing on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Miller

Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 597 (Tex.App.--Amarillo 1995, no writ).

A party seeking a temporary injunction must plead and prove: (1) a cause of action against

the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent and

irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; see Letson v. Barnes, 979

S.W.2d 414, 417 (Tex.App.--Amarillo 1998, pet. denied). A temporary injunction applicant

is not required to establish that he will prevail on final trial on the merits of his cause of

action; he need only show a probable right on final trial to the relief he seeks. Butnaru,

84 S.W.2d at 204, 211; see Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968).


       A trial court’s decision to grant or deny a temporary injunction lies in the court’s

sound discretion, and we may reverse that decision only if it reflects a clear abuse of

discretion. Butnaru, 84 S.W.3d at 204; Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.

1993); Letson, 979 S.W.2d at 417. An appellate court reviewing that interlocutory decision

is not to review the merits of the underlying action, but must strictly limit its review to the

inquiry whether there has been a clear abuse of discretion by the trial court in granting or

denying the temporary injunction. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978);

Sherrod v. Moore, 819 S.W.2d 201, 202 (Tex.App.–Amarillo 1991, no writ). We may not

substitute our judgment for the trial court’s judgment unless its action was so arbitrary as

to exceed the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204.



                                              -6-
       When, as here, no findings or fact or conclusions of law are requested or filed,8 the

trial court’s judgment must be upheld on any legal theory supported by the record. See

Huey, 571 S.W.2d at 862; Gurvich v. Tyree, 694 S.W.2d 39, 43 (Tex.App.–Corpus Christi

1985, no writ). The trial court does not abuse its discretion if some evidence reasonably

supports its decision. Butnaru, 84 S.W.3d at 211, citing Huey, 571 S.W.2d at 862. We are

to draw all legitimate inferences from the evidence in a manner most favorable to the trial

court’s judgment. Miller Paper, 901 S.W.2d at 598; Miller v. K & M P’ship, 770 S.W.2d 84,

87 (Tex.App.–Houston [1st Dist.] 1989, no writ).


       Hardwicke presents a single issue contending the trial court abused its discretion

in denying his request for a temporary injunction. He contends that uncontradicted

evidence presented at the temporary injunction hearing established his probable right to

the declaratory relief he seeks, and that the trial court therefore abused its discretion by

misapplying the law to the established facts. We disagree and, without delving into the

merits of Hardwicke’s claims, conclude that the trial court’s denial of his request for a

temporary injunction, on the evidence presented to that court, did not reflect an abuse of

its discretion.


                                       Public Use


       Hardwicke’s primary argument is based on the constitutional provisions limiting the

exercise of the power of eminent domain to the taking of property for public use. U.S.



       8
       A trial court may, but need not, file findings of fact and conclusions of law with
respect to an interlocutory order. Tex. R. App. P. 28.1.

                                            -7-
Const. amend. 14; Tex. Const. art. I §17. He argues the evidence shows the property will

be sold to the developer for private, rather than public, use. The public use requirement

was addressed by the supreme court in Davis v. City of Lubbock, 326 S.W.2d 699 (Tex.

1959), which involved constitutional challenges to a statute allowing use of the power of

eminent domain for urban renewal. Id. at 701. The plaintiffs argued provisions allowing

private development of property acquired by condemnation did not satisfy the public use

requirement. Id. at 703-04. The court held the primary purpose of the statute, to clear

slum and blighted areas, provides a public use for property taken pursuant to its terms.

Id. at 709. Despite differences between the Act and the urban renewal statute examined

in Davis, Hardwicke has not persuasively distinguished the Davis opinion’s analysis, and

we find it applicable here. See also Housing Authority of Dallas v. Higginbotham, 143

S.W.2d 79, 84, 135 Tex. 158 (1940) (noting court has adopted liberal view of what

constitutes public use).


       The trial court had before it evidence of the City Council’s findings supporting the

creation of the reinvestment zone, and evidence concerning the condition of the North

Overton area. That evidence included a June 2002 consultant’s report on the feasibility

of tax increment financing to encourage redevelopment in the area. The report described

the North Overton neighborhood as an area in distress, characterized by declining

population, high vacancy rates, high crime rates and properties in poor condition, with little

to attract anyone to the neighborhood other than extremely low values and rents.




                                             -8-
         Hardwicke relies on a statement in the City’s Resolution No. 2002-RO259, by which

it adopted tax increment financing policies, that the Act “allows the acquisition of private

property for private use in a [tax increment reinvestment zone] project, in accordance with

the redevelopment policies of the City . . . .” He contends the statement is contrary to the

Act and states a City policy of using its eminent domain power to acquire private property

for private use. The City argues that, in its context, the statement does not indicate a

policy of acquiring private property by condemnation in violation of constitutional

requirements. Regardless whether the resolution’s language concerning what the Act

allows is accurate, there was ample evidence to permit the trial court to conclude that the

City’s taking of Hardwicke’s property was for a public use. Craig Farmer, the City’s

managing director of planning and transportation, testified that the economic viability of the

North Overton redevelopment depended on the aggregation of properties in some areas

of the zone to permit large-scale projects. Farmer also testified that the location of

Hardwicke’s property made it appropriate that it be included within one of the aggregated

areas.


         Hardwicke also refers to paragraph 2.1 of the City’s Resolution No. 2002-RO258,

establishing redevelopment policies for the City, which states:


         The purchase and aggregation of parcels is the responsibility of the
         developer(s). The City does not intend to use the power of eminent domain
         to purchase property for private use, unless the City Council agrees that
         special circumstances exist.


On this record, Farmer’s testimony concerning the location of Hardwicke’s property,

coupled with his testimony concerning the infrequent occasions on which the City Council

                                             -9-
had approved exercise of its right of eminent domain in the North Overton zone, also

provides evidence from which the trial court could reasonably have inferred the existence

of the “special circumstances.”


       Another holding of Davis is applicable here. Intervenors in Davis complained, as

does Hardwicke, that clearance of blighted property could not be used to justify taking of

their property because the specific structure which the city sought to condemn was not

blighted or substandard.     326 S.W.2d at 710. The court there followed the “uniform

holdings of the highest courts of other states” that use of eminent domain to eliminate

slums requires cities to deal with areas rather than individual properties. Id. In City of

Arlington v. Golddust Twins Realty Corp., 41 F.3d 960, 966 (5th Cir. 1994), the Fifth Circuit

Court of Appeals held the acquisition of an individual property that is “reasonably essential”

to successful completion of a public project is an acquisition for a public use. Id. at 966.

There was evidence at the hearing from which the court reasonably could conclude that

acquisition of Hardwicke’s property was necessary to carry out the redevelopment plan

approved by the City.


                            “Unable to Agree” Requirement


       Hardwicke also points out the requirement in the condemnation statute that a

petition for condemnation state the condemnor and the landowner “are unable to agree on

the damages.” Tex. Prop. Code Ann. § 21.012(b). He contends the City will be unable to

meet that requirement because record evidence conclusively shows the City did not

engage in negotiations with him or make any bona fide effort to reach agreement with him,


                                            -10-
leaving all negotiations to the developer. As noted, though, the record contains the City’s

December 2003 letter to Hardwicke, with its accompanying appraisal report, and the City’s

January 2004 letter, extending offers to acquire his property for the appraised value.

Hardwicke filed his declaratory judgment proceeding shortly after receipt of the January

letter. When he submitted his brief on appeal, Hardwicke did not have the benefit of our

supreme court’s recent opinion in Hubenak v. San Jacinto Gas Transmission Co., 47 Tex.

Sup. Ct. J. 767, 2004 WL 1490396 (Tex. July 2, 2004). Based on the court’s discussion

there of the evidence necessary to meet the “unable to agree” requirement, the trial court

would have been justified in concluding the requirement was satisfied in this case.

Moreover, the record before us does not demonstrate that Hardwicke presented his

contention based on the “unable to agree” requirement to the trial court before its denial

of the temporary injunction. The contention cannot, therefore, constitute a basis for

concluding the trial court abused its discretion. See Sherrod, 819 S.W.2d at 205.


                                  Unlawful Delegation


       Hardwicke argues also that the temporary injunction evidence shows the City

improperly has delegated authority to the developer, supporting his probable right of

recovery to a declaratory judgment. He points to evidence that: the City’s policies state

selection of properties for redevelopment and acquisition of properties for redevelopment

are the responsibilities of the developer; McCanton Woods requested the City initiate

condemnation proceedings against him; the City’s agreement with McCanton Woods for

condemnation of Hardwicke’s property calls for the developer to bear all the expenses



                                           -11-
related to the condemnation; the City may convey condemned property to the developer

without knowing exactly what use will be made of the parcel; and there is no written

agreement between the City and McCanton Woods generally setting out their obligations

with respect to redevelopment of the North Overton area. Hardwicke cites cases holding

that a municipality’s exercise of the power of eminent domain is a legislative act, Luby v.

City of Dallas, 396 S.W.2d 192, 197 (Tex.Civ.App.–Dallas 1965, writ ref’d n.r.e.), and that

a municipality may not delegate its governmental functions to a private party without

constitutional authority, Pittman v. City of Amarillo, 598 S.W.2d 941, 945 (Tex.Civ.App.–

Amarillo 1980, writ ref’d n.r.e.). He also cites FM Properties Operating Co. v. City of

Austin, 22 S.W.3d 868 (Tex. 2000), in which the supreme court found that a section of the

Texas Water Code worked an unconstitutional delegation of legislative power to private

landowners. Hardwicke argues that the evidence shows the developer has “absolute

discretion to determine prices to be offered for . . . properties, but knowing that he may rely

on the City through its purported eminent domain powers if the landowners do not accept

the private developer’s offer.” He further contends the City exercises only “procedural

involvement,” initiating the condemnation proceeding in its name at the developer’s

request.


       We cannot agree the trial court was restricted, at this interlocutory stage, to

Hardwicke’s view of the evidence. The record also shows the City had the property

appraised by an independent appraiser, and that its offer to Hardwicke was in the amount

of that appraisal. The appraiser testified he was given no instructions concerning the

amount of his appraisal. The record reflects City Council consideration and approval of the


                                             -12-
proposed condemnation before its authorization of the City’s execution of the agreement

with McCanton Woods. Delbert McDougal testified he expected the City would convey the

property to McCanton Woods promptly after the condemnation, but the agreement

between the City and the developer requires the developer to use the property in

implementing the project plan approved by the City. On this record, the trial court’s failure

to find the City unlawfully delegated its eminent domain power to McCanton Woods was

not an abuse of discretion.


                                  Arbitrary Boundaries


       Next we address Hardwicke’s contention that the boundaries of the redevelopment

zone were determined in an arbitrary and capricious manner, as shown by the inclusion

of numerous properties that are not unproductive, underdeveloped or blighted, and for

which there are no apparent current plans for redevelopment. At the hearing, Hardwicke

focused on the inclusion in the zone of properties on the north side of Broadway. In his

brief, Hardwicke cites Malcomson Rd. Util. Dist. v. Newsom, No. 01-00-1163-CV, 2003 WL

21299939 (Tex.App.–Houston [1st Dist] June 5, 2003, no pet.)(memorandum opinion).

That opinion describes arbitrary and capricious action, in the condemnation context, as

“willful and unreasoning action, action without consideration and in disregard of the facts

and circumstances.“ It also quotes Ludewig v. Houston Pipeline Co., 773 S.W.2d 610, 614

(Tex.App.–Corpus Christi 1989, writ denied), to the effect that “when there is room for two

opinions, an action cannot be deemed arbitrary when it is exercised honestly and upon due




                                            -13-
consideration, regardless how strongly one believes an erroneous conclusion was

reached.” Malcomson, slip op. at 7.


       The record here contains a map of the reinvestment zone which shows it is a

rectangular area with a single inset to avoid passing the boundary through the middle of

a building. The zone is bounded on three sides by multi-lane commercial thoroughfares

and on the east by the downtown area. With respect to the inclusion of properties on the

north side of Broadway, Craig Farmer testified to the need to authorize improvements to

utilities serving the blocks adjoining Broadway to the north and improvements to the streets

that intersect Broadway. He testified he felt it “absolutely” was necessary to include the

properties fronting Broadway in the reinvestment zone. On the basis of that evidence, the

court well could have concluded that the City’s configuration of the reinvestment zone was

not an arbitrary or capricious action.


                          Designation as Historical Property


       Hardwicke’s pleadings seek a declaration that his property has historical significance

entitling it to be designated an historical property. At the temporary injunction hearing,

Hardwicke testified to his research concerning the history of the house located on the

property. His research revealed that the house was constructed in 1910 by W. D. Benson,

an early-day and prominent Lubbock lawyer. It was located originally in what is now the

downtown area of Lubbock and was moved to the lot on 9th Street in 1948 by a later owner.

Hardwicke described the architecture of the house as characteristic of New England

construction not typically seen in this part of the country. The evidence also included a


                                            -14-
photograph of the house, apparently taken within a few years of its construction.

Hardwicke had located the photograph in Texas Tech’s Southwest Collection, which

includes information on the Benson family. He testified the house should be saved.9


       In Seaborg Jackson Partners v. Beverly Hills Sav., 753 S.W.2d 242, 244-45

(Tex.App.–Dallas 1988, no writ), the court cited the certification of property by the United

States Department of Interior as an historical structure as conclusive proof of its

uniqueness and of the inadequacy of a remedy at law for its loss. Hardwicke cites us to

no authority, though, establishing that the trial court has the power through a declaratory

judgment to determine that a property is entitled to designation as an historical property.

Moreover, even if the court had such power, the evidence that the structure had been

moved from its original location and divided into four apartments would support a

conclusion that Hardwicke has not shown a probable right to such a declaration, against

a claim of abused discretion.


                           CONCLUSION AND DISPOSITION


       Based on the evidence presented, the trial court did not abuse its discretion in failing

to find Hardwicke demonstrated a probable right, on final trial, to the declaratory relief his

pleadings seek. On appeal, Hardwicke also contends he demonstrated he faces imminent

and irreparable injury without a temporary injunction. The City contends the condemnation

statutes provide him an adequate remedy. We need not address those contentions


       9
        To his attorney’s question “Do you have any desire to preserve this house because
of the - - what you believe to be the historical value or significance of this house?”
Hardwicke answered “Well, yes. I think the house should be saved. Yes, I do.”

                                             -15-
because of our conclusion on the probable right to relief element.             We overrule

Hardwicke’s sole issue and affirm the order of the trial court. We also lift our order staying

condemnation proceedings.




                                                   James T. Campbell
                                                       Justice




                                            -16-
