                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-18-00174-CV


                                    JON E. JACKS, APPELLANT

                                                     V.

                         THE ZONING BOARD OF ADJUSTMENT OF
                          THE CITY OF BRYAN, TEXAS, APPELLEE

                             On Appeal from the 272nd District Court
                                     Brazos County, Texas1
             Trial Court No. 16-003188-CV-272, Honorable Travis B. Bryan, Presiding

                                              July 9, 2019

                                  MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Appellant, Jon E. Jacks, appeals the trial court’s grant of summary judgment in

favor of appellee, the Zoning Board of Adjustment of the City of Bryan, Texas, and denial

of Jacks’ motion for summary judgment. We affirm the trial court’s judgment.



        1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this Court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
                                       Background


       Jacks purchased a piece of property in a residential subdivision with the intent of

building a commercial laundromat on the land.         Because the original plan for the

subdivision had been filed with the City in 1960, Jacks contends that he possesses vested

rights under chapter 245 of the Texas Local Government Code that require that only those

zoning laws and regulations that were in effect in 1960 apply to Jacks’ property. Relying

on an e-mail “denial” from Martin Zimmermann, Planning Manager for the City, Jacks

pursued an appeal of this decision to the Board. The Board denied Jacks’ request

because, inter alia, he failed to identify any specific regulation that had changed since

1960 that affected Jacks’ development of the property, and because Jacks failed to

identify any permit application that he had submitted to the Board that had been denied.

Following the Board’s denial, Jacks appealed the Board’s decision in the district court.

Jacks filed a motion for summary judgment that included both traditional and no-evidence

grounds. The Board filed a motion for summary judgment asserting both traditional and

no-evidence grounds. After holding a hearing, the trial court granted the Board’s motion

and denied Jacks’ motion. As a result, Jacks timely filed the instant appeal.


       By his appeal, Jacks presents five issues. His first issue contends that the trial

court erred in failing to find that Jacks possessed vested rights in the property pursuant

to chapter 245 of the Texas Local Government Code. Jacks’ second issue contends that

the trial court erred by considering evidence on appeal that was not presented to the

Board prior to its decision to deny Jacks’ vested property rights. By his third issue, Jacks

contends that the trial court considered defective affidavits as proper summary judgment

evidence. Jacks’ fourth issue contends that the trial court erred in finding that the Board

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properly analyzed and applied chapter 245 of the Texas Local Government Code. By his

fifth issue, Jacks contends that the trial court erred in denying Jacks’ no-evidence motion

for summary judgment.


                                          Analysis


Issues One and Four


       Jacks’ first issue contends that the trial court erred in failing to find that Jacks

possessed vested rights in the property under chapter 245 of the Texas Local

Government Code. See TEX. LOCAL GOV’T CODE ANN. § 245.002 (West 2016). Relatedly,

Jacks’ fourth issue contends that the trial court erred in concluding that the Board properly

analyzed and applied chapter 245. Because these two issues are so interrelated, we will

address them together.


       Appellate courts review a trial court’s summary judgment de novo. Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review the

evidence presented in the motion and response in the light most favorable to the party

against whom the summary judgment was rendered, crediting evidence favorable to that

party if reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005), and

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)). When, as here,

a party moves for both traditional and no-evidence summary judgment, we first review the

trial court's judgment under the standards of Rule 166a(i), because if the nonmovant failed

to meet the no-evidence standard, there is no need to analyze whether the movant’s




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summary judgment proof satisfied the less stringent burden under Rule 166a(c). See

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


       A no-evidence motion for summary judgment is essentially a motion for a pretrial

directed verdict. See TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,

310 (Tex. 2009). After an adequate time for discovery, a party without the burden of proof

may, without presenting evidence, seek summary judgment on the ground that there is

no evidence to support one or more essential elements of the non-movant’s claim or

defense. TEX. R. CIV. P. 166a(i); Rust v. Tex. Farmers Ins. Co., 341 S.W.3d 541, 550

(Tex. App.—El Paso 2011, pet. denied).            The motion must specifically identify the

element(s) for which there is no evidence because Rule 166a(i) does not permit

conclusory or general no-evidence challenges. TEX. R. CIV. P. 166a(i); Timpte Indus.,

Inc., 286 S.W.3d at 310. The trial court is required to grant the motion if the nonmovant

fails to produce summary judgment evidence that raises a genuine issue of material fact

on the challenged element(s). See TEX. R. CIV. P. 166a(i); Rust, 341 S.W.3d at 550.

However, when the nonmovant presents more than a scintilla of probative evidence to

raise a genuine issue of material fact, a no-evidence summary judgment is improper.

Rust, 341 S.W.3d at 550 (citing Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009)).


       Under section 245.002, once an application for the first permit of a property-

development project is filed for review with an appropriate municipal agency, all

subsequent applications for permits shall be considered under the laws and regulations

in effect at the time that the first application for a permit was filed. Id. § 245.002(a). The

statute clearly and unambiguously calls for the filing of a subsequent application for a



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permit as necessary to invoke a claim of vested rights.2 BCCA Appeal Grp., Inc. v. City

of Houston, 496 S.W.3d 1, 20 (Tex. 2016) (quoting State v. Shumake, 199 S.W.3d 279,

284 (Tex. 2006), for the proposition that when a “statute is clear and unambiguous, we

must apply its words according to their common meaning without resort[ing] to rules of

construction[. . . .]”). By requiring a vested-rights claimant to file an application for a permit

to invoke alleged vested rights, the statute provides a triggering mechanism which puts

the municipal agency on notice of the claim as well as identifying the nature of that claim.

Consequently, we construe section 245.002(a) as requiring the filing of an application for

a permit to invoke a claim for vested property rights under chapter 245.


        As alleged by the Board in its motion for summary judgment, Jacks has not

identified an application for a permit that he has filed with the Board that has been denied

or that has been wrongly decided under current laws or regulations rather than under the

laws and regulations that existed in 1960. In fact, the only permits that remained pending

while Jacks sought review from the trial court were permits filed with the Site Development

Review Committee, which is a separate department from the Board with separate

responsibilities.3 Because the statute contemplates that the assertion of vested rights in

application of previous laws is raised by the filing of an application for a permit, we cannot

conclude that Jacks has properly invoked application of section 245.002(a). See TEX.


        2  Jacks analogizes our construction of section 245.002(a) requiring an application for a permit to
the “fair notice form” that was required in City of San Antonio v. Greater San Antonio Builders Ass’n, 419
S.W.3d 597, 603 (Tex. App.—San Antonio 2013, pet. denied). The “fair notice form” in City of San Antonio
required substantial information be provided at the time that an application for a permit was filed. Id. at
602-03. The Texas Supreme Court found that requiring substantial additional information as a prerequisite
to a determination of a party’s vested property rights runs afoul of chapter 245. Id. at 603. We conclude
that City of San Antonio holds that additional requirements beyond those expressly found in section 245.002
may not be imposed. In the present case, we are simply identifying the requirement expressly contained
within the statute.

        3   We also note that Jacks specifically disclaims raising any issue involving his pending site plan.

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LOCAL GOV’T CODE ANN. § 245.002(a). As such, we cannot conclude that the trial court

erred in granting the Board’s summary judgment because there is no evidence that Jacks

properly raised the issue of his vested rights by filing an application for a permit.4 We

also cannot conclude that the Board failed to properly analyze and apply chapter 245

because Jacks did not properly invoke his claim of vested rights by filing an application

for a permit with the Board. We overrule Jacks’ first and fourth issues.


Issues Two and Three


        Jacks’ second issue contends that the trial court erred by considering evidence on

appeal that had not been presented before the Board when the Board denied Jacks’

appeal. However, the only evidence he explicitly identifies as being wrongly considered

by the trial court is two affidavits that Jacks also addresses in his third issue.

Consequently, we will consider these two issues together. We initially note that Jacks

failed to obtain rulings on any evidentiary objections he raised at either the trial court or

Board levels and, therefore, has failed to preserve this issue for appellate review. See

TEX. R. APP. P. 33.1(a)(2). However, even if Jacks had properly preserved his objections,

section 211.011 of the Texas Local Government Code authorizes a trial court to receive

additional evidence that was not part of the record before a board of adjustment. See

TEX. LOCAL GOV’T CODE ANN. § 211.011(e) (West 2016). Finally, Jacks has made no effort

to establish how he was harmed by the trial court’s consideration of the two specified

affidavits. To reverse a judgment based on a claim of error in the admission or exclusion

of evidence, a party must show that the error probably resulted in an improper judgment.


        4  Our resolution of this issue is strictly limited to the stated basis and should not be construed as
an implied rejection of any other argument advanced by the Board as grounds that would have supported
the trial court’s grant of summary judgment in favor of the Board.

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TEX. R. APP. P. 44.1(a); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).

Consequently, we overrule Jacks’ second and third issues.


Issue Five


       By his fifth issue, Jacks contends that the trial court erred in denying his no-

evidence motion for summary judgment. By this issue, Jacks contends that the Board

did not respond to his motion with necessary evidence to defeat Jacks’ motion and, as

such, the trial court erred in not granting Jacks’ motion. However, Jacks’ no-evidence

motion for summary judgment only challenges the propriety of the Board’s affirmative

defenses, which is all that a plaintiff’s no-evidence summary judgment could challenge.

Consequently, even assuming that Jacks were correct, the trial court still would have been

tasked with determining whether Jacks had asserted a proper claim for vested rights.

Because we have concluded above that Jacks did not properly invoke his vested rights

claim, we conclude that whether the trial court erred in failing to grant Jacks’ no-evidence

motion for summary judgment is immaterial. We overrule Jacks’ fifth issue.


                                        Conclusion


       Having overruled each of Jacks’ issues, we affirm the judgment of the trial court.




                                                        Judy C. Parker
                                                           Justice




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