                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 31, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20162
                         Summary Calendar



HOWETH INVESTMENTS, INC,;
JACK HOWETH, as Trustee for the
881 Brogden Trust and the 901
Brogden Trust, assignees of
Howeth Investments, Inc.,

                                    Plaintiffs-Appellees,

versus

THE CITY OF HEDWIG VILLAGE PLANNING
AND ZONING COMMISSION; S. FRANK WHITE;
NORMAN WARD; KATHY VASQUEZ; BOB WEINER;
CITY OF HEDWIG VILLAGE, TEXAS,

                                    Defendants-Appellants.


                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-02-CV-4270
                       --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Howeth Investments and Jack Howeth, as trustee for two

family trusts, (hereinafter “Howeth”), sued the City of Hedwig

Village Planning and Zoning Commission and its chairman, Frank

White, (hereinafter the “Commission”) in state court, alleging


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 04-20162
                                -2-

that the Commission had wrongfully refused to approve Howeth’s

plans for subdividing two existing residential lots into four

lots.   The Commission removed the suit; Howeth filed a motion to

remand and sought an award of attorney’s fees pursuant to

28 U.S.C. § 1447(c).   The district court found that the removal

was not timely filed, remanded the case to the state court, and

awarded Howeth attorney’s fees in the amount of $19,306.

Although 28 U.S.C. § 1447(d) precludes this court from reviewing

the remand order, this court has jurisdiction to review the

district court’s award of attorney’s fees and costs under

§ 1447(c).   Miranti v. Lee, 3 F.3d 926-928(5th Circ. 1993).

     The Commission argues that the removal was timely filed

because it was filed within four days of Howeth’s filing of its

sixth amended complaint, which was the first pleading filed

asserting claims giving rise to federal question jurisdiction.

Howeth responds that its initial petition and fourth amended

petition placed the Commission on notice that it was asserting

federal claims and, thus, the Commission should have sought

removal based on those earlier pleadings.   The district court

agreed with Howeth’s argument.

     A review of initial petition and the fourth amended petition

reflects that Howeth was seeking relief under the Texas

Constitution and state statutes.   At that point in the

litigation, the Commission did not have an objectively reasonable
                           No. 04-20162
                                -3-

basis to seek removal to federal court.   See Valdes v. Wal-Mart

Stores, 199 F.3d 290, 293 (5th Cir. 2000).

     Howeth alleged a federal takings claim in his sixth amended

petition.   However, that claim was not ripe for federal review

and could not serve as a basis for removal.     See Samaad v. City

of Dallas, 940 F.2d 925, 933 (5th Cir. 1991).

     Howeth’s substantive due process claims specifically alleged

in the sixth amended petition supported federal jurisdiction even

if the related takings claim was not ripe for federal review.

See Simi Investment Co. v. Harris County, Texas, 236 F.3d 240,

248-49 (5th Cir. 2000).   Because the Commission did not have an

objectively reasonable ground for removal until it received

notice of the sixth amended petition, the district court’s award

of attorney’s fees was an abuse of discretion.     See Valdes,

199 F.3d at 293.   The judgment making the award attorney’s fees

is REVERSED.
