Eminent Domain, Inverse Condemnation, And Texas Barbecue: Selling Property To Transit Authority Precluded Later Inverse Condemnation Claim For Lost Profits
The photo above has pretty much nothing to do with today's case, except it also involves a Texas barbecue joint. More on the photo after a short review of the Texas Court of Appeals' decision in Lenox Barbeque and Catering, Inc. v. Metro. Transit Authority of Harris Cnty., No. 14-14-00383-CV (Feb. 23, 2016).
Lenox Barbeque, a "Houston landmark" according to its owner" (stickler's note: landmark it may be, but we don't care for that spelling of "barbecue") sued the Transit Authority for inverse condemnation for lost profits resulting from the authority's earlier exercise of eminent domain to take a portion of land Lenox owned for a road widening project. That earlier condemnation action resulted in a settlement between the Authority and Lenox under which Lenox got approximately $600 grand for its land and costs, and resulted in a partial demolition and reconstruction of the barbecue's building. Lenox justified the later inverse lawsuit by arguing that lost profits are separate property, separately compensable, and that the settlement of the action for the taking of its land did not impact its ability to seek those lost profits when those were also taken.
The court of appeals upheld the trial court's grant of summary judgment to the Authority. The settlement between the parties precluded a later lawsuit: "If a part of a tract of land is condemned for street or road purposes, the owner cannot recover in a later proceeding for consequential damages to the remainder of the land if the owner reasonably ought to have foreseen and presented those damages in the condemnation proceeding." Slip op. at 8-9.
The court presumed Lenox was correct in its assertion that it had suffered a loss of profits, and also presumed that Lenox could have recovered those damages in the condemnation. But it should have foreseen that its business would be impacted by the taking, even if those lost profits occurred after the taking. Thus, the release which the parties executed pursuant to the settlement of the condemnation case operated as a bar to the later lost profits claim.
The court also paid no mind to Lenox's claim that the release did not expressly release its lost profits claim, that res judicata should not apply, that the parties did not intend for the settlement to cover lost profits, and that the Authority hadn't authenticated the settlement agreement with its summary judgment papers.
In other words, easy case.
Returning to our epigram photo, taken during a recent visit to one of Austin's contributions to the barbecue scene, Franklin Barbecue. After the conclusion of the 2016 ALI-CLE Eminent Domain Conference, we had a chance to visit this eatery. And, as the New York Times noted, it was a long visit (see "Want Some of This Texas Barbecue? Get in Line. For 3 Hours or Longer"). Three hours? Child's play, NYT. Our wait, starting at 7:00 am on a Sunday after a somewhat late Saturday night celebrating the successful wrapping of the Conference, was more like four-plus hours. We were about sixth in line, and other stalwarts had arisen earlier. We got our brisket, links, and extras at a bit after 11 o'clock. Was it the best barbecue in Texas (and therefore the world) as some have opined? It was pretty darn good, we must say, but not four-plus-hours-waiting-in-line good, if you know what we mean. The line, as noted, is part of the experience, but not something we'd care to repeat on a regular basis, especially with so many other nearby contenders that produce quality 'cue (Yes, that link is to a 1973 article. But man, not much has changed, thankfully).
Sorry for the travelogue detour, but we warned you at the start that the photo had nothing to do with the opinion. But it does remind us that next time we are in Houston, we're going to visit Lenox and try their style of barbecue. Although they lost this case, we're glad they are still there.
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