author: HEDGES, Chief Justice.

text:
    Tamara Ann HEINS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-00940-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 24, 2004.

      James L. Steele, Houston, for appellant.
    Dan McCrory, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices HUDSON and SEYMORE.
   OPINION

HEDGES, Chief Justice.

Appellant Tamara Heins brings this appeal from her conviction for the murder of her husband, John Heins, for which the jury sentenced her to eight years in prison. Appellant presents three issues for our review: whether the trial court erred in its statement of the law in the jury-charge regarding the lawful carrying of handguns; whether the trial court erred in overruling appellant’s objection to the testimony of an assistant prosecutor; and whether appellant received ineffective assistance of counsel. We reverse and remand for a new trial.

Background

Appellant and the decedent, John Heins, met in 1993 and married in 1995. The marriage was not a stable one; testimony offered at trial showed that the decedent, HIV-positive and an habitual steroid user, abused appellant, her son, and the family pets, one of which he beat to death. Appellant suffered chronic back pain from being hit by a drunk driver when she was twenty years old. The abuse she received from the decedent further exacerbated the injuries, necessitating multiple surgeries on her back and neck.

The couple separated a number of times, but would reconcile after the decedent promised to seek treatment. Appellant bought a home in 1999 during one of the couple’s separations; they later reconciled, and the decedent moved in with appellant and her son. Appellant filed for divorce in January of 2001, but the couple continued to live together. In late 2001, after another incident of abuse by the decedent, appellant left the state with her son for a one-month vacation. The couple had originally intended the month to be time spent apart in hopes of improving the marriage; however, after being attacked by the decedent, appellant made the decision the marriage would come to an end once and for all upon her return. She and the decedent agreed that he would live in the home until her scheduled return at the end of November since he had paid the November mortgage payment on the house.

Appellant and her son returned from out of state early; however, pursuant to her arrangement with the decedent, she allowed him to stay in the house while she stayed with her mother and drove her son to school 35 miles away. On December 1, 2001, appellant called the decedent to ask him to leave the house in accordance with their agreement; he refused, telling her that she could return home but that he would not leave. Appellant had her father call as well, but to no avail. Appellant, in pain (due to her chronic back and neck problems) and exhausted from driving over 140 miles to and from her son’s school each day, decided that the only way to resolve the conflict would be in person. She drove to her house, hoping that once the decedent saw how upset and in pain she was, he would back down and leave as he had in the past.

When appellant arrived at the house, she saw the decedent’s car and truck in the driveway and became apprehensive. Fearing the decedent’s possible aggressive behavior and remembering that he had pulled a gun on her several times in the past, she placed her .38 caliber gun in her purse and entered the house.

Appellant found the downstairs empty; however, the decedent soon came downstairs and a confrontation ensued. The decedent told appellant that he wouldn’t leave. When she told him she needed to return home to sleep in her bed in preparation for back injections, he allegedly told her, “it doesn’t matter where you want to sleep because I’m going to break you in half.” He then threw his glasses on the floor in a clear act of aggression and crouched as if he were about to tackle her. Appellant backed up and drew her gun. When she did, the decedent said, “go ahead, do it,” and lunged forward. Appellant fired a single shot, striking the decedent in his upper chest. The decedent died a short time later.

Analysis

In appellant’s first point of error, she claims that she was harmed when the trial court incorrectly instructed the jury on the exemptions to unlawfully carrying a handgun. Although appellant’s attorney did not object to this incorrect charge, appellant claims the trial court committed egregious error under the Almanza standard. We agree.

Defendants are entitled to be convicted on correct statements of the law. Murphy v. State, 44 S.W.3d 656, 665 (Tex.App.—Austin 2001, no pet.). The integrity of the verdict is called into doubt if a trial court fails to correctly charge the jury on the applicable law. Id. (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994)).

The manner in which appellate courts analyze jury charge error is prescribed in article 36.19 of the Code of Criminal Procedure. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985)). We must first determine whether error exists in the charge. Almanza, 686 S.W.2d at 171. We must then determine whether the error, if any, caused harm sufficient to require reversal. Id. If charging error was not preserved at the trial court level, a greater degree of harm, egregious error, is required. Id. Errors that meet this standard are of the type which go to the very basis of the case, deprive the defendant of a valuable right, or vitally affect the defense. Id. at 172. The following factors should be considered when measuring the actual degree of harm: the entire charge; the state of the evidence, including contested issues and the weight of probative evidence; the arguments of counsel; and any other relevant information the record, as a whole, reveals. Id.

In the guilt/innocence phase, the jury was instructed on the laws regarding murder and self-defense. The court also instructed the jury that the use of force in self-defense would not be justified “if the defendant sought an explanation from or discussion with the victim concerning the defendant’s difference with the victim while the defendant was unlawfully carrying a weapon.” As to the law regarding unlawfully carrying a weapon, the jury was instructed as follows:

' Our law provides that it is unlawful for a person to intentionally or knowingly carry a handgun on or about her person.
It is not an offense for a person to carry a handgun;...
3. is on the person’s own premises under the person’s control.

(emphasis added). This is an incorrect statement of the law. Under the Texas Penal Code section 46.15(b)(2), the third exemption to unlawfully carrying a handgun as stated in the charge should have read “is on the person’s own premises or premises under the person’s control” (emphasis added). By omitting the italicized words, the court committed error. Appellant was entitled to be convicted on a correct statement of the law; since the trial court failed to correctly charge the jury on the applicable law, the integrity of the verdict is thus called into doubt. Murphy, 44 S.W.3d at 665.

Appellant’s counsel did not object to the erroneous jury charge. Using the factors listed in Almanza, we must therefore determine whether the error committed by the trial court is an egregious one, that is, whether appellant had a fair and impartial trial. Considering the charge itself, the evidence, the arguments of counsel, and other relevant information, we believe egregious error was committed.

Appellant claimed that she shot the decedent in self-defense when he told her he would “break her in half,” threw off his glasses, and lunged at her. Under Texas law, the use of force is justified when the actor reasonably believes that force is immediately necessary to protect herself against an aggressor’s use (or attempted use) of unlawful force. TEX. PEN. CODE ANN. § 9.31 (Vernon 2003). The use of force is not justified, however, if the actor, while unlawfully carrying a handgun, “sought an explanation from or discussion with the other person concerning the actor’s differences with the other person.” Id. One of the exemptions to the handgun rule, however, is that the law is not violated if the person is on her own premises or premises under her control. TEX. PEN. CODE ANN. § 46.15(b)(2) (Vernon 2003). The State based its case largely on the fact that, since appellant had not lived in her house for a month and had not paid that month’s mortgage payment, the premises were not “under her control.” The State argued that because the premises were not under appellant’s control, she was not eligible for the handgun exemption or, by extension, the self-defense affirmative defense.

The problem arises with the omission of the two words ‘or premises.’ By omitting the two words and thus giving the jury an incorrect statement of the law, the charge as issued required that appellant both own the premises and have them under her control. Whether the premises were under her control is arguable; whether she owned them is not. She bought the house in 1999, making the down payment and all but one of the mortgage payments. Had a proper charge been given, a jury could have determined that appellant qualified for the third exemption to the law against unlawfully carrying a handgun.

We believe that the omission of these words constituted egregious error by both going to the basis of the case and vitally affecting appellant’s defensive theory. Al-manza, 686 S.W.2d at 172. During deliberations, the jury asked several questions, including one which requested the definition of “ ‘control of residence’ as it applies.” The court responded that “control” was an issue for the jury to decide. Another question requested the Texas statute on carrying a handgun, in response to which the judge referred the jury to the charge. It is evident from these requests that the jury was struggling over the issue of whether the premises were under appellant’s control and whether she would therefore be eligible to claim self-defense. Thus, both the basis of the case and the main defensive theory, that is, whether appellant murdered her husband or shot him in self-defense, were affected by this error. Her first point of error is therefore sustained.

In light of our disposition of appellant’s first point of error, it is unnecessary for us to examine the remaining points of error. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

      . Appellant had made the down payment and all other mortgage payments on the house.

      . The deed to the house was not entered into evidence.

      . Appellant’s first trial ended in a mistrial as a result of a hung jury. Aside from several typographical vagaries, the charges were identical.


source: Caselaw Access Project

author: YATES, Justice.

license: Public Domain

text:
    ZURICH AMERICAN INSURANCE COMPANY, Appellant, v. HUNT PETROLEUM (AEC), INC. F/K/A AVIARA ENERGY CORPORATION, Appellee.
    No. 14-03-00729-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 24, 2004.

      Jacalyn D. Scott, Houston, for appellant.
    Richard Martin Hunt, Dallas, for appel-lee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

YATES, Justice.

This is a case involving liability for damage to an oil drilling rig caused by its submersion in saltwater floods during a tropical storm. Appellant and appellee have differing interpretations of the relevant contract, and each moved for summary judgment. At issue is the propriety of the trial court’s granting the appellee’s motion for summary judgment and denying the appellant’s motion. Because we find a fact issue regarding an essential phrase in the contract and that the contract is ambiguous as it is subject to more than one reasonable but conflicting interpretation, we reverse and remand.

Pursuant to a form daywork drilling contract, appellee Hunt Petroleum (AEC), Inc. f/k/a Aviara Energy Corporation (“Hunt”) was operating an oil drilling rig for Nabors Drilling U.S.A., Inc. in Vermilion Parish, Louisiana when Tropical Storm Francis hit the Louisiana coast on September 12, 1998. The rig was submerged under at least four feet of saltwater, causing extensive damage. Appellant Zurich American Insurance Company paid its insured, Nabors, $955,120.26 to repair the damage, and Zurich, as subrogee of Na-bors’s rights under its contract with Hunt, brought this action to recover those funds from Hunt.

The contract at issue is a fill-in-the-blank form contract prepared by the International Association of Drilling Contractors. Under the contract, Hunt is the “Operator,” and Zurich’s insured Nabors is the “Contractor.” The following three provisions are relevant in this suit:

14. RESPONSIBILITY FOR LOSS OR DAMAGE, INDEMNITY, RELEASE OF LIABILITY AND ALLOCATION OF RISK:

14.1 Contractor’s Surface Equipment: Contractor shall assume liability at all times for damage to or destruction of Contractor’s surface equipment, regardless of when or how such destruction occurs, and Contractor shall release Operator of any liability for any such loss, except loss or damage under the provisions of Paragraphs 10 or 14.3.
14.3 Contractor’s Equipment — Environmental Loss or Damage: Notwithstanding the provisions of Paragraph 14.1 above, Operator shall assume liability at all times for damage to or destruction of Contractor’s equipment caused by exposure to highly corrosive or otherwise destructive elements, including those introduced into the drilling fluid.
17. FORCE MAJEURE:
Neither Operator nor Contractor shall be liable to the other for any delays or damage or any failure to act due, occasioned or caused by reason of any laws, rules, regulations or orders promulgated by any Federal, State, or Local governmental body or the rules, regulations, or orders of any public body or official purporting to exercise authority or control respecting the operations covered hereby, including the procurance or use of tools and equipment, or due, occasioned or caused by strikes, action of the elements, water conditions, inability to obtain fuel or other critical materials, or other causes beyond the control of the party affected thereby. In the event that either party hereto is rendered unable, wholly or in part, by any of these causes to carry out its obligations under this Contract, it is agreed that such party shall give notice and details of Force Majeure in writing to the other party as promptly as possible after its occurrence. In such cases, the obligations of the party giving the notice shall be suspended during the continuance of any inability so caused except that Operator shall be obligated to pay to Contractor the Force Majeure Rate as provided for in Paragraph 4.7 above.

Both parties moved for summary judgment, claiming the contract is unambiguous and supports the interpretation that the other party is liable for damage to the rig. Zurich’s theory is that paragraph 14.3 states that Hunt is liable “at all times,” even in a force majeure situation, for damage to Nabors’s equipment caused by “exposure to highly corrosive or otherwise destructive elements” and that salty floodwater is both highly corrosive and destructive. Hunt claims that paragraph 17 controls as the damage to the rig was caused by a flood from a tropical storm, which is an “action of the elements,” and that paragraph 14.3 does not control because the commonly understood meaning in the industry of paragraph 14.3 excludes damage caused by salty floodwater and paragraph 14.3 does not expressly state that it overrides paragraph 17.

The trial court found that, “with regard to this incident, Paragraph 17 of the parties’ contract controls to the exclusion of Paragraph 14.3” and therefore granted Hunt’s summary judgment motion and denied Zurich’s. In four issues, Zurich claims the trial court’s summary judgment ruling was erroneous.

The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When, as here, the trial court expressly states the ground on which it granted the motion, we must consider that ground and may consider other grounds the trial court did not rule on in the interest of judicial economy. Cin. Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).

Our primary concern in interpreting a contract is ascertaining the true intent of the parties. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Hewlett-Packard Co. v. Benchmark Elees., Inc., 142 S.W.3d 554, 561 (Tex.App.—Houston [14th Dist.] 2004, pet. denied). We examine the writing as a whole in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Hewlett-Packard, 142 S.W.3d at 561. We give terms their plain, ordinary, and generally accepted meaning unless the contract shows the parties used them in a technical or different sense. Heritage Res., 939 S.W.2d at 121.

If the contract can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe it as a matter of law. Coker, 650 S.W.2d at 393; Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 131 (Tex.App.—Houston [14th Dist.] 2000, pet. dism’d). If, however, a contract is capable of more than one reasonable interpretation, it is ambiguous. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003); Hewlett-Packard, 142 S.W.3d at 561. This court may conclude a contract is ambiguous, even though the parties do not so contend. Hewlett-Packard, 142 S.W.3d at 561. When a contract is ambiguous, summary judgment is improper because the interpretation of the contract becomes a fact issue. Coker, 650 S.W.2d at 394; Cook, 15 S.W.3d at 131.

The parties’ interpretation of a contract is parol evidence, and parol evidence is not admissible to create an ambiguity. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 283 (Tex.1996). Only after a contract has been determined to be ambiguous can parol evidence be considered to help ascertain the parties’ true intent. Id.; Mescalero Energy, Inc. v. Underwriters Indem. Gen. Agency, Inc., 56 S.W.3d 313, 319 (Tex.App.—Houston [1st Dist.] 2001, pet. denied). In determining whether a contract is ambiguous, we look to the contract as a whole, in light of the circumstances present when the contract was executed. Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex.1981); Mescalero, 56 S.W.3d at 319; see also Hewlett-Packard, 142 S.W.3d at 561 (“We construe a contract from a utilitarian standpoint, bearing in mind the particular business activity sought to be served.”). These circumstances include the commonly understood meaning in the industry of a specialized term, which may be proven by extrinsic evidence such as expert testimony or reference material. See Mescalero, 56 S.W.3d at 320, 323; KMI Cont'l Offshore Prod. Co. v. ACF Petroleum Co., 746 S.W.2d 238, 241 (Tex.App.—Houston [1st Dist.] 1987, writ denied).

Hunt’s theory is that paragraph 17 clearly controls by its plain language that neither party shall be liable “for any ... damage ... caused by ... action of the elements.” Paragraph 14.3 explicitly states that it applies “[n]otwithstanding the provisions of Paragraph 14.1,” but because paragraph 17 is not mentioned, Hunt asserts that paragraph 17 applies even in the face of a claim under paragraph 14.3. Zurich does not dispute that a flood from a tropical storm is an action of the elements. Nevertheless, Zurich contends paragraph 17 applies only to delayed or suspended performance, not damage to equipment. Zurich first points to the historical meaning of force majeure clauses as relating only to excusing performance. See Perlman v. Pioneer Ltd. P’ship, 918 F.2d 1244 (5th Cir.1990). Regardless of its historical underpinnings, the scope and application of a force majeure clause depend on the terms of the contract. See Sun Operating Ltd. P’ship v. Holt, 984 S.W.2d 277, 282-83 (Tex.App.—Amarillo 1998, pet. denied); Tex. City Ref., Inc. v. Conoco, Inc., 767 S.W.2d 183, 186 (Tex.App.—Houston [14th Dist.] 1989, writ denied).

Zurich interprets paragraph 17 as being limited to operational obligations by the phrase “respecting the operations covered hereby.” However, reading that phrase in the context of the sentence as a whole shows that it describes types of laws, rules, regulations, and orders from a governmental or public body and does not limit the scope of the items in the remainder of the sentence, such as “action of the elements.” Finally, Zurich claims that Hunt never invoked paragraph 17 by giving written notice. As written, the clause requires notice when a party is unable “to carry out its obligations” under the contract, but it is silent as to a situation involving only damage and not an inability to perform. It is, therefore, Hunt’s interpretation that no notice is required in such circumstances.

Zurich claims that paragraph 14.3 trumps even a force majeure situation because it imposes liability on the operator “at all times” for damage or destruction “caused by exposure to highly corrosive or otherwise destructive elements.” Zurich presented undisputed evidence that floodwater is destructive and that salty floodwater is corrosive, and therefore, under the plain meaning of those words, the damage to the rig is covered by paragraph 14.3. Hunt countered with expert evidence that the common industry understanding of “highly corrosive or otherwise destructive elements” covers only materials that emanate from the well or are added to the drilling fluid, which does not cover saltwater flooding. Zurich then provided its own expert evidence that there is no generally understood industry meaning for that phrase and that therefore we should use its ordinary meaning, which would include damage from saltwater flooding.

We conclude that summary judgment was improper in this case. First, there is a fact issue as to whether there is a common industry understanding as to the meaning of the phrase “highly corrosive or otherwise destructive elements.” Though Hunt presented expert evidence of a common industry understanding of the phrase, Zurich’s experts dispute the existence of such an understanding. Hunt argues that its experts are more credible based on their qualifications and experience, but that is for the fact finder to determine.

We also conclude that the contract is subject to more than one reasonable interpretation. Paragraph 17, by its plain terms, applies to a situation of damage caused by a flood. Even though Zurich argues that force majeure clauses historically function to excuse performance and that portions of paragraph 17 refer to such situations, Hunt’s interpretation that gives meaning to the word “damage” is not unreasonable. See Schaefer, 124 S.W.3d at 159 (contracts should be interpreted to avoid rendering a provision meaningless). Assuming no common industry understanding excludes it, Zurich’s plain language interpretation of “highly corrosive or otherwise destructive elements” to include damage from saltwater flooding is also reasonable. See Heritage Res., 939 S.W.2d at 121.

Not only are we faced with interpretations of two clauses producing different outcomes as applied to this case, there are two reasonable but divergent ways to reconcile these clauses. Zurich’s interpretation that paragraph 14.3 controls based on the phrase “at all times” is certainly reasonable, based on the ordinary meaning of that phrase. On the other hand, the parties knew how to expressly exclude other contract provisions from the scope of paragraph 14.3 (as they did with paragraph 14.1), but they did not include paragraph 17 in that exclusion. See Hewlett-Packard, 142 S.W.3d at 562 (“[W]hen the parties desired a specific due date, they provided for it in the Agreement.”). It is therefore reasonable to interpret paragraph 14.3 as being subject to paragraph 17.

Given conflicting yet reasonable interpretations that cannot be harmonized, we conclude the contract is ambiguous. See Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 860 (Tex.App.—Austin 2001, pet. denied) (finding contract ambiguous when “faced with at least two somewhat contradictory meanings” that were both reasonable). Therefore, the trial erred in granting summary judgment.

We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

      . In addition to its history, grammar, and notice arguments, Zurich points to evidence that Hunt could have moved the rig before the storm hit and then asserts that Hunt cannot use the force majeure clause because "when it is a party’s own negligence that proximately causes the loss, the courts have held that it cannot be a force majeure event as a matter of law.” However, Zurich did not make any negligence argument to the trial court, and therefore it cannot make such an argument for the first time on appeal. Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 453 (Tex.App.—Houston [14th Dist.] 2001, pet. denied). Zurich asserted below that since Hunt could have taken steps to protect the rig, the damage was not "beyond the control” of Hunt under paragraph 17. That is not the same as arguing that negligence essentially negates a force majeure clause as a matter of law. See Sun Operating, 984 S.W.2d at 283-84 (refusing to imply a duty to exercise due diligence into force maj-eure clause containing language about causes "beyond the control” of the party). Even assuming Zurich preserved this argument and that negligence was a proper theory under the wording of this force majeure clause, Zurich presented no evidence of a standard of care or that Hunt violated any such standard.

      . Zurich criticizes Hunt’s interpretation in that it gives the word "elements” a different meaning in paragraph 17 than in paragraph 14.3. This is too narrow of a view. Both parties appear to agree that the phrase "action of the elements” in paragraph 17 refers to weather-type conditions. Paragraph 14.3 refers not to an "action of the elements” but to "highly corrosive or otherwise destructive elements,” which might well be intended to cover nonweather conditions such as gas or chemical exposure. Because the context and phrasing are different, it is not unreasonable that its meaning would be different in each paragraph as well.

      . Even Zurich’s counsel admitted at oral argument that the term "damage” in paragraph 17 could be interpreted to include physical damage caused by a force majeure event.

      . Because we conclude there is a fact issue regarding the interpretation of the contract, we need not consider whether there is also a fact issue regarding the amount of Zurich’s claimed damages.


author: HEDGES, Chief Justice. FOWLER, J.,

text:
    Maria Isabel MARTINEZ, Appellant, v. Daniel Ruel MARTINEZ, Appellee
    No. 14-03-01447-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 2004.

      Shawn Russel Casey, Houston,^ for appellant.
    Karen Malm Taylor, Katy, 'T. Wade Christiansen, Houston, for appellee.

      Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   MAJORITY OPINION

HEDGES, Chief Justice.

Appellant Maria Isabel Martinez appeals from the default judgment entered by the trial court against her and in favor of appellee Daniel Ruel Martinez on August 29, 2003. We affirm.

Appellant presents two issues for review in this appeal. She argues that the trial court erred because (1) it failed to set aside the default judgment entered against her under the test articulated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (Com.App.1939), and (2) the final divorce decree erroneously appoints appellee managing conservator with the exclusive authority to determine, inter alia, the domicile of the couple’s three minor children in violation of Section 153.004 of the Texas Family Code.

Background

Appellant and appellee married in May of 1999; their three children were born in July 1999, August 2000, and November 2001. The marriage was a turbulent one. Maria made several allegations of abuse, which lead to Daniel receiving treatment for anger management. In July of 2002, Maria left the three children in the care of Daniel and her mother to attend chiropractic school in Iowa. In April of 2003, allegedly acting on her suspicion that Daniel had abused one of her daughters, Maria took the children from Texas to Iowa. Maria then filed a motion for protective order in Iowa family court on April 30; she also attempted to file for divorce on May 14 in Iowa but did not meet the residency requirements for filing for divorce in that state. Daniel had filed for divorce in Texas on May 12. On August 29, the district court in Fort Bend County entered a default judgment in favor of Daniel, awarding him joint managing conservatorship and the authority to determine the domicile of the three children. Maria argues her failure to appear or answer in the Texas suit resulted from incorrect advice from her Texas attorney and that the decree violates the provisions of Section 153.004 of the Texas Family Code. We will address each issue in turn.

The Default Judgment and Craddock

In her first issue, appellant argues that the trial court erred in failing to set aside the default judgment entered against her under the test articulated in Craddock, 133 S.W.2d at 126. We disagree.

Under the Craddock test, a default judgment should be set aside and a new trial ordered in any case in which

(1) the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference on his part, but due to a mistake or accident; provided the motion for new trial (2) sets up a meritorious defense and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Id. A motion for new trial is addressed to the trial court’s discretion and the court’s ruling will not be disturbed on appeal in the absence of a showing that the trial court abused its discretion. Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994).

Although the Craddock test has been routinely applied to suits affecting the parent-child relationship (SAPCRs) by appellate courts in Texas, this court has previously noted its discomfort in doing so in Lowe v. Lowe, 971 S.W.2d 720, 725-26 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (“Craddock does not inquire into the child’s interests and leaves no maneuvering room for a judge to consider the child’s interests.”). See also Comanche Nation v. Fox, 128 S.W.3d 745, 749-50 (Tex.App.-Austin 2004, no pet.) (“Craddock does not fit well into the context of a consideration of the best interests of the child.”). While the courts in Lowe and Comanche Nation have expressed their hesitance to apply Craddock to SAPCRs, absent contrary direction from the Texas Supreme Court, we remain bound to apply Craddock, albeit liberally. See Comanche Nation, 128 S.W.3d at 750 (citing Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex.App.-San Antonio 1987, no writ); Little v. Little, 705 S.W.2d 153, 154 (Tex.App.-Dallas 1985, writ dism’d); C. v. C., 534 S.W.2d 359, 361 (Tex.App.-Dallas 1976, writ dism’d)).

Under the first prong of the Craddock test, the trial court was required to determine whether appellant’s failure to answer before judgment was rendered was either unintentional or the result of conscious indifference on her part. 133 S.W.2d at 126. In making this determination, a court must look to the knowledge and acts of the defendant. Evans, 889 S.W.2d at 269. If a defendant’s factual assertions are not controverted by the plaintiff, the defendant satisfies her burden if she has set forth facts which, if true, negate a finding of intentional or consciously indifferent conduct. Id. The court reviews the entire record in determining whether the defaulting party’s assertions are controverted. Id. In acting as fact-finder, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Olin Corp. v. Smith, 990 S.W.2d 789, 797-98 (Tex.App.-Austin 1999, pet. denied).

The evidence presented to the trial court raises an issue of fact as to whether appellant’s conduct in failing to answer appel-lee’s petition was intentional or consciously indifferent. Appellant claims that her failure to answer appellee’s petition was due to the advice provided by her lawyer, Bruce Zivley, that she had been improperly served and that no answer was therefore required. Appellee, however, presented evidence that appellant’s failure to answer was due not to Zivley’s advice, but to appellant’s own neglect and indifference.

Harold J. Dane, who represented appel-lee in a separate divorce proceeding commenced by appellant in an Iowa court, testified that he personally handed a copy of the Texas divorce petition filed by ap-pellee on May 14, 2003 to appellant, and that he personally observed appellant review appellee’s petition on that date. The record reflects that appellant was formally served with appellee’s divorce petition on July 18, 2003. Appellant testified that she was aware of the Texas divorce petition as early as May 2003, and that she had spoken to five different lawyers concerning the divorce proceedings since she had moved back to Iowa in April 2003. Appellant also testified that she never (1) asked Zivley to file an answer, (2) asked to see a copy of the answer to be filed, (3) contacted the trial court to see if an answer had been filed, or (4) asked friends or family residing in the area where the trial court was located to check on the progress of the case. Zivley testified that appellant did not tell him during their July 18 conversation that she had been served that same day, and never mentioned in any of their subsequent conversations that she had been served at all.

Although there exists conflicting evidence in this case, the trial court remains the final judge of the credibility of witnesses. Olin Corp. v. Smith, 990 S.W.2d at 797-98. Based on the evidence above, the trial court could have reasonably concluded that the cause of appellant’s failure to answer was not the advice of her lawyer, but her own neglect and indifference. Therefore, the trial court did not abuse its discretion in denying appellant’s motion for new trial as it could have reasonably found that appellant failed to satisfy the first prong of the Craddock test. See Freeman v. Pevehouse, 79 S.W.3d 637, 648 (Tex.App.-Waco 2002, no pet.).

Accordingly, appellant’s first issue is overruled.

Family Code Section 153.004

In her second issue, appellant argues that the trial court erred because the final divorce decree violates the provisions of Section 153.004 of the Family Code. Appellee contends that appellant has waived this issue on appeal because she failed to raise these statutory provisions in the court below. We agree with appellee’s contention.

Our review of the record reflects the fact that all of appellant’s arguments and evidence of abuse before the trial court were addressed to the issue of whether the appointment of appellee as joint managing conservator was in the best interests of the couple’s children under Section 153.002 of the Family Code. No mention of any of the provisions in Section 153.004 was made by either party in the court below, and the statements made by the trial judge at the November 11, 2003 hearing reflect that he was not aware of any potential application that those provisions may have had to the facts before him. Because appellant was required to present to the trial court the specific legal basis for the argument she now raises on appeal, and the record does not reflect that the grounds were apparent to the trial judge from the context of appellant’s motion for new trial, we hold that appellant has failed to preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a). Accordingly, appellant’s second issue is overruled.

The judgment of the trial court is affirmed.

WANDA McKEE FOWLER, J., concur.

FOWLER, J.,

concurring.

I join the majority opinion. However, I write separately because I believe the Craddock test, used by courts to determine if a default judgment should be set aside, is ill suited for resolving any issue in a suit affecting the parent-child relationship (SAPOR).

This is not the first time we have encountered this problem. We also addressed it in Lowe v. Lowe, 971 S.W.2d 720, 725-27 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

There we discussed a number of reasons Craddock should not apply to a SAPOR:

1. Craddock was designed to apply to traditional civil litigation involving only two competing interests. In cases involving the parent-child relationship, three interests often are involved: the mother’s, the father’s, and the child’s. Lowe, 971 S.W.2d at 725.
2. Craddock does not give the court the flexibility to even consider the one interest of paramount importance in a suit involving the parent-child relationship: the child’s best interest. TEX. FAM. CODE § 153.002; Lowe, 971 S.W.2d at 725.
3. Craddock assumes an adversarial context, yet the Family Code has shed its adversarial trappings. See, e.g., TEX. FAM. CODE § 102.008 (stating that a petition involving the parent-child relationship is styled “In the Interest of _, a Child”); TEX. FAM. CODE § 6.401 (stating that a petition to end the marital relationship is entitled “In the Matter of the Marriage of and _”); see also TEX. FAM. CODE § 153.007 (stating provision was designed to promote amicable settlements concerning conservatorship); TEX. FAM. CODE § 153.0071 (providing that the parents can agree to use dispute resolution procedures); TEX. FAM. CODE § 153.0072 (providing that the parties in a suit involving the parent-child relationship can agree to resort to collaborative law procedures); Lowe, 971 S.W.2d at 726.
4.The second prong of Craddock requires the court to determine if the defendant has a meritorious defense to the suit. That determination does not fit well in the parent-child context for, in a custody dispute, there are no true defenses. The goal of the court is to reach an outcome that is in the best interests of the child. TEX. FAM. CODE § 153.002; Lowe, 971 S.W.2d at 726.

These problems underscore the need for a new test. The courts of this state have already implicitly acknowledged the problem. For example, the majority mentions that some courts apply Craddock “liberally” when reviewing a default judgment entered in a SAPCR. See, e.g., Comanche Nation v. Fox, 128 S.W.3d 745, 749-50 (Tex.App.-Austin 2004, no pet.). However, for the reasons already stated, applying Craddock liberally is a very poor substitute for fashioning a new, more appropriate rule.

For all of these reasons, I urge the Texas Supreme Court to discard the Crad-dock rule and adopt a new rule for use in suits involving the parent-child relationship or urge the Family Bar to propose a more appropriate rule to use in this context, and I concur in the court’s opinion.

      . See, e.g., In re R.H., 75 S.W.3d 126, 130 (Tex.App.-San Antonio 2002, no pet.); In re A.P.P., 74 S.W.3d 570, 573 (Tex.App.-Corpus Christi 2002, no pet.).

      .That Section provides in relevant part:
      (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child....
      TEX. FAM. CODE ANN. § 153.004 (Vernon Supp.2004)

      . Because the case was disposed of originally through default judgment, no evidence was introduced and no arguments were made at trial; instead, the evidence and arguments referred to above were introduced during appellant’s second motion for a new trial.

      . That Section provides: "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” TEX. FAM. CODE ANN. § 153.002 (Vernon 2002).


author: DAVID PURYEAR, Justice.

text:
    Jack WEATHERFORD, Appellant, v. The CITY OF SAN MARCOS, Texas; David Chiu; Jane Hughson; Louis Doiron, Jr.; Earl Moseley, Jr.; Joe B. Cox, Jr.; Paul Mayhew; and Martha Castex Tatum, Appellees.
    No. 03-03-00350-CV.
    Court of Appeals of Texas, Austin.
    Dec. 9, 2004.
    Rehearing Overruled Feb. 10, 2005.

      Regina B. Criswell, Law Office of Regina B. Criswell, Helotes, for appellant.
    Lowell F. Denton and Ryan S. Henry, Denton, Navarro, Rocha & Bernal, P.C., San Antonio, for appellees.
    Before Justices KIDD, PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

In this cause, we are confronted with a dispute between a property owner, his neighbors, and a city over the property owner’s attempts to develop his property for commercial purposes. The property owner, Jack Weatherford, his neighbors, and the City of San Marcos met, negotiated, and agreed in principle that some commercial development of Weatherford’s property was possible. Weatherford’s subsequent rezoning requests, however, were denied. He sued the City of San Marcos and the City Council (collectively, the “City”), claiming their denials violated his rights to due process and equal protection, violated chapter 245 of the government code, constituted a regulatory taking, and were proprietary in nature and thus subject to estoppel. The City moved for summary judgment arguing that the negotiated land-use plan established only the basic framework for future development and did not formally vest in Weatherford the right to develop his property commercially. The district court granted summary judgment for the City, and we affirm.

Procedural and Factual Background

Weatherford owns about fifty acres in the City of San Marcos. He bought a large tract in the early 1960s, and two smaller tracts in about 1981 and 1995. When Weatherford bought the first tract of land, the property was not within the City’s boundaries and was not subject to zoning. The property was annexed and brought into the City in the early 1970s, and since being annexed has always been zoned for single-family residential use. The property adjoins and is surrounded by other single-family tracts, and nearby subdivisions are low-density developments. For the past several years, Weatherford has sought on numerous occasions to have portions of his property rezoned to allow for the development of multi-family residential and commercial projects. His neighbors have consistently opposed these efforts. During this time, the City was in the process of updating its comprehensive land-use plan. The updates set out guidelines for the future development of all property located in the City, which was divided into eight sectors. Weatherford’s property lay in Sector II, which encompassed approximately 800 acres. Because the use of Weatherford’s property needed to be addressed before a development plan for Sector II was designed, the City hired a neutral third party to facilitate negotiations between Weatherford and his neighbors, and in November 1997, Weatherford, the Director of the City’s Planning and Zoning Commission (“the Commission”), Commission staffers, urban planners, neighborhood residents, and several other participants attended a “mediated design workshop.” Those opposing any future development of Weatherford’s property were concerned that the development would create more traffic and change the character of the neighborhood. The workshop resulted in a written agreement, the “Mediated Resolution,” contemplating some future multi-family and commercial development of Weatherford’s property.

In December 1997, the City adopted the “Sector II Plan” (the “Plan”), which incorporated the Mediated Resolution. See City of San Marcos, Tex., Code of Ordinances No.1997-74 (1997). The Plan stated several objectives, including the development of “a future land use map for the area” and guidelines to ensure that development would be sensitive to existing uses, and the strengthening of community relations “by fostering a partnership between the City and neighborhood residents, property owners, institutions and businesses.” Id. One part of the Plan was devoted entirely to Weatherford’s property, but all development was to proceed through the normal zoning process and Weatherford was required to submit Planned Development District (PDD) zoning applications before any development could begin. Id.

Over the next few years, Weatherford filed several PDD applications with the Commission to develop his property pursuant to the Plan. The first PDD application was submitted about twenty months after the Plan was enacted and requested the rezoning of 30.66 acres from residential to commercial, multi-family, and duplex residential. The Commission’s Assistant Director of Planning recommended approval of the application, stating:

The requested land use acreages and densities were established as a result of the mediated workshop settlement during the sector two planning process.... The proposed PDD plan appears consistent with the land uses indicated in the mediated settlement with one exception. The PDD plan indicates 3.8 acres of duplex development. While [duplex development] is consistent with the 7 acres of 6-12 units per acre density allowance, duplex was not indicated as a future use on the settlement plan.

In September 1999, the Commission considered Weatherford’s first PDD application. There was public opposition, and the Commission recommended denial of the application. In December 1999, the City Council heard arguments for and against Weatherford’s application. Opponents voiced the same concerns raised at the workshop in 1997, that the development would lead to substantial increases in traffic and an undesirable change in the character of the neighborhood, and Weath-erford’s first PDD application was denied.

In February 2000, Weatherford filed a standard, non-PDD application seeking the rezoning of 18.6 acres (hereafter “first rezoning application”). After the Commission recommended its denial, Weatherford requested to withdraw the application. The Commission honored his request and the application was withdrawn. In July 2000, Weatherford filed a second PDD application, and the Commission recommended approval. However, Weatherford, through conversations with City officials, believed that his application would be denied and again sought to withdraw the application in a letter dated August 25, 2000.

In September 2000, Weatherford filed a second non-PDD application to rezone 18.6 acres (hereafter “second rezoning application”). In a letter dated November 7, 2000, addressed to Mayor David Chiu and the City Council, Weatherford urged the adoption of his second rezoning application. The next day, however, Weatherford sent Chiu and the Council another letter in which he said he wanted to withdraw the previous day’s letter. He also said, “I believe that the City should honor what was agreed to and passed ... in the Sector II Plan in connection with the 54 acres that I own. I do not believe that I should have to accept anything less than what has already been approved.” He asked that his second rezoning application be “removed from the November 13, 2000, agenda and that the City not vote on the land use proposal at this time.”

The City removed Weatherford’s second rezoning application from the November 13 agenda but then placed it on the December 11, 2000 agenda. Weatherford wrote a letter to Chiu, stating, “My letter, dated November 8, 2000, established quite clearly that my November 7, 2000 request to have the amended land use proposal regarding eighteen acres of my property adopted was withdrawn in all respects.” He asked that his second PDD application, which he requested to be withdrawn in August 2000, be placed on the agenda in place of his second rezoning application. He closed the letter with the statement that if the City Council considered his second zoning application and not his second PDD application, he would “consider all remedies available to me.”

Weatherford’s second rezoning application remained on the agenda for the December 11, 2000 City Council meeting, but when it came up for discussion, the Council unanimously voted to table it. The Council then adjourned and went into executive session “pursuant to the Government Code, Section 551.071, to seek the City Attorney’s advice regarding the Weather-ford future land use plan amendment.” When the City Council reconvened a few minutes later, Mayor Chiu made this statement:

This Friday, December 15, 2000, will be the third anniversary of the City Council’s adoption of the Sector 2 Plan. The City Charter provides for the Planning and Zoning Commission to hold public hearings and make recommendations to the City Council regarding the land use element of the master plan once every three years. The City Council would like for the process for review of the land use element of the Sector 2 Plan to be undertaken and completed as soon as possible by the Planning and Zoning Commission, with involvement of all Sector Two Stakeholders. The Commission may wish to consider any changed circumstances it finds within Sector 2 itself, and in nearby areas of other sectors, in making its recommendations. In light of this direction to the Planning and Zoning Commission, the Council wishes to withhold final action on [Weatherford’s] pending land use amendment, LUA-00-03, and table the amendment until the recommendations of the Planning and Zoning Commission are received.

The City Council then tabled consideration of Weatherford’s second rezoning application.

Weatherford filed a third PDD application “under protest” in early 2001. This application was intended to duplicate his second PDD application that the Commission had approved but Weatherford withdrew before City Council consideration. The Commission at the time was composed of only eight members due to the recent resignation of its chairman, and its vote on the third PDD application ended in a four-to-four tie. At the urging of the City Attorney, the Commission placed the third PDD application on its agenda for the next meeting. The City Attorney also advised the outgoing chairman that he could participate in Commission meetings and vote because the chairman retained de facto authority pending the appointment of his replacement. The Commission tabled consideration of Weatherford’s application by a six-to-three vote.

On July 23, 2001, the City Council passed a revised Sector II Plan (the “Revised Plan”). The Revised Plan reduced the acreage Weatherford could develop as multi-family residential and enlarged the acreage he could devote to single-family residential. The Council then denied Weatherford’s third PDD application, drafted pursuant to the original Sector II Plan.

Weatherford sued the City for declaratory and injunctive relief. He complained that: (1) the City’s treatment of his various applications violated his rights to equal protection and due process; (2) the City and the individual defendants violated the Open Meetings Act (“the Act”) by going into executive session on December 11, 2000; (3) it was improper for a resigning Commission member to have voted on his third PDD application; (4) the City should be estopped from denying his applications because the City acted in a proprietary, not governmental, capacity in passing the original and revised Sector II plans; (5) he was entitled to have his applications approved because they were actually “permits” under chapter 245 of the government code; and (6) the City’s failure to approve his applications constituted a regulatory taking.

The City filed three motions for summary judgment. The first was a traditional motion for partial summary judgment on Weatherford’s claims of violations of the Open Meetings Act. See Tex.R. Civ. P. 166a(c). The second was a no-evidence motion for partial summary judgment on Weatherford’s claims of the equal protection and due process violations. See id. 166a(i). The third was a traditional motion, contesting all issues raised by Weath-erford. The City contended that Weather-ford’s equal protection and due process rights had not been violated because the City’s treatment of his applications was reasonable. It also challenged Weather-ford’s standing to sue under the Act and argued that there was no violation of the Act. The City further argued that Weath-erford had no absolute right to withdraw his second rezoning application, the City’s actions were not subject to estoppel, Weatherford’s applications were not permits that must be approved, there was no regulatory taking, and the individual council members were entitled to governmental immunity. The trial court granted summary judgment without specifying the grounds.

On appeal, Weatherford argues that: (1) the City’s denials of his PDD applications were arbitrary, capricious, and unreasonable; (2) the City violated his equal-protection rights by allowing him to withdraw his first rezoning application, refusing to consider his second PDD application on grounds that he had withdrawn it, and then considering his second rezoning application in spite of his requests that it be withdrawn; (3) the City violated the Act in its December 11, 2000 meeting; (4) the passage of the sector plans was a proprietary function and, therefore, the City is not entitled to governmental immunity; (5) the City violated chapter 245 of the local government code; (6) the denial of his PDD applications constituted an unconstitutional regulatory taking; (7) the City should be enjoined from violating the Act and from considering Weatherford’s PDD applications under the Revised Plan; and (8) the individual council members were not entitled to immunity.

Standard of Review

The City filed both traditional and no-evidence summary judgment motions. See Tex.R. Civ. P. 166a(c), (i). We make inferences, resolve doubts, and view the evidence in the light most favorable to the nonmovant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). When an order granting summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any of the movant’s theories are supported by the evidence. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

A party moving for a traditional summary judgment bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Steel, 997 S.W.2d at 222. A defendant seeking summary judgment must negate at least one essential element of plaintiffs theory or establish every element of an affirmative defense. Id. at 223; Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).

A no-evidence summary judgment is essentially a directed verdict granted before trial, and a no-evidence motion asserts that no evidence exists as to at least one essential element of the nonmovant’s claims on which the nonmovant would have the burden of proof at trial. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). A no-evidence motion for summary judgment is properly granted if the nonmovant fails to respond with more than a scintilla of probative evidence raising a genuine issue of material fact. Id. If the proffered evidence would enable reasonable, fair-minded persons to differ in them conclusions, more than a scintilla of evidence exists. Id. at 71. If the evidence does no more than “ ‘create a mere surmise or suspicion’ of fact,” less than a scintilla of evidence exists. Id.

Analysis

Equal Protection and Due Process Claims

Weatherford argues that his equal protection rights were violated and his fundamental property rights infringed when the City allowed him to withdraw his first rezoning application and second PDD application but denied a similar request to withdraw his second rezoning application. He also argues that his fundamental property rights were harmed when the City Attorney advised the Commission that it could reconsider Weatherford’s third PDD application after the first vote ended in a tie. Weatherford contends that the City had to show that its disparate treatment of the applications was “narrowly tailored to serve a compelling governmental interest.”

Weatherford has not pleaded a true equal protection claim. An equal protection claim “requires that the government treat the claimant different from other similarly-situated landowners.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex.1998). Weatherford does not claim that he was treated any differently than any other City landowner, but only that he himself was treated differently at different times during his application process. See id. Moreover, Weatherford had no vested property right in any particular zoning classification. See City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex.1972); City of San Antonio v. Arden Encino Partners, Ltd., 103 S.W.3d 627, 630 (Tex.App.-San Antonio 2003, no pet.); Williamson Pointe Venture v. City of Austin, 912 S.W.2d 340, 343 (Tex.App.-Austin 1995, no writ).

The PDD application process did not vest any property rights in Weather-ford because the PDD approval process remained a legislative act subject to the discretion of the City. The results of the workshop were incorporated into the Sector II Plan, which was to serve as a guide for future development. See City of San Marcos, Tex., Code of Ordinances No.1997-74 (1997). It did not rezone any property but instead set out a list of permitted uses. See id. The Plan expressly stated that applicants still had to. go through the zoning process for approval: “All uses permitted in the table shown above shall be implemented through the submittal of one or more Planned Development District (PDD) zoning cases.” Id. Weatherford’s PDD applications were in essence rezoning applications and were subject to the legislative process used by the City in reviewing any other rezoning request. See City of Pharr v. Tippitt, 616 S.W.2d 173, 175-76 (Tex.1981); see also John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, Texas Municipal Zoning Law, § 7.104 (3d. ed.1999) (“[ajdoption or rejection of a PDD by ordinance amendment is, by current Texas and Fifth Circuit law, a legislative act”). Zoning is a governmental function that allows “a municipality, in the exercise of its legislative discretion, to restrict the use of private property.” City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.1982); see Mayhew, 964 S.W.2d at 933 (“Zoning decisions are vested in the discretion of municipal authorities; courts should not assume the role of a super zoning board.”); City of Round Rock v. Smith, 687 S.W.2d 300, 302-03 (Tex.1985) (“plat approval is a governmental function”).

Weatherford further argues that the City’s decisions' to deny his applications were “arbitrary, capricious and unreasonable” and did not bear a substantial relationship to public health, safety, morals, or general welfare. He claims that the City’s denials of his applications were arbitrary and capricious because his applications complied with the land uses and densities agreed to during the workshop in 1997. He also argues that there is no evidence that the City cited concerns for the public health, safety, morals, or general welfare in denying his applications.

To comply with substantive due process, zoning decisions need only be “rationally related to legitimate government interests.” Mayhew, 964 S.W.2d at 938. We “should not set aside a zoning determination for a substantive due process violation unless the action ‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare.’ ” Id. at 938 (quoting Nectow v. City of Cambridge, 277 U.S. 183, 187-88, 48 S.Ct. 447, 72 L.Ed. 842 (1928)). As the nonmovant in a no-evidence motion for summary judgment, Weatherford had the burden of overcoming the presumption of validity of the City’s conduct in the exercise of its legislative authority and proving the City’s conduct was unreasonable. City of Pharr, 616 S.W.2d at 176. If reasonable minds could differ as to whether the City’s zoning action had a substantial relationship to the public health, safety, morals or general welfare, the action must stand as a valid exercise of the City’s police power. See Mayhew, 964 S.W.2d at 938; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 481 (1955).

The minutes from the various City Council meetings show extensive discussions about the effects of urbanization on the surrounding neighborhood. Weather-ford claims that the City Council did not cite the ill effects of urbanization as reasons for denying his applications, but the record indicates that such opposition to Weatherford’s development was expressed each time his applications were considered. For example, the minutes of the December 13, 1999 meeting show that Weatherford’s neighbors voiced their concerns about increased traffic, increased pollution, changing the character of the neighborhood, urban sprawl, drainage problems, utilities problems, and changes in their quality of life for those in the affected area. It is apparent that the basis for the City Council’s action was the significant public opposition to Weatherford’s requested development. In short, the City’s decisions to deny Weatherford’s PDD applications were rationally related to the general welfare; namely, protecting residents from the negative impact of urbanization and maintaining quality of life. See Mayhew, 964 S.W.2d at 938-39. We conclude that Weatherford presented no evidence that the City acted in an arbitrary and capricious manner when it rejected Weather-ford’s rezoning applications.

Weatherford also argues that the City’s refusal to withdraw his application to rezone was arbitrary and capricious and that the City acted in an arbitrary and capricious manner in allowing the city attorney to place Weatherford’s third PDD application back on the Commission’s agenda after the first vote ended in a four-to-four tie. Once the application was placed back on the agenda and nine members were allowed to vote, the Commission voted to table the application pending changes to the Plan. Weatherford argues that as a result he was denied the opportunity to have his application evaluated under the original Plan.

At best, Weatherford’s complaint is that the procedure used by the City was unfair. However, “this is not the proper inquiry.” Id. at 939. “Zoning is a legislative act,” and in making zoning determinations, a municipality “is entitled to consider all the facts and circumstances which may affect the property, the community, and the welfare of its citizens.” Id. at 939-40. To satisfy procedural due process, the City need “only provide notice and an opportunity to be heard.” Id. at 939. Weatherford had both notice and an opportunity to be heard and had no right to have any of his applications approved— whether under the original Sector II Plan or the Revised Plan. We overrule Weath-erford’s first and second issues.

Violations of Open Meetings Act and In-junctive Relief

Weatherford alleged that the City Council violated the Open Meetings Act when it went into executive session during the City’s regular council session on December 11, 2000. See Tex. Gov’t Code Ann. §§ 551.001-.146 (West 2004) (the “Open Meetings Act,” hereafter “the Act”). The record indicates that Mayor Chiu was “advised” to go into executive session pursuant to section 551.071 of the government code, which allows a governmental body to convene a closed session to seek its attorney’s advice about “pending or contemplated litigation.” See id. § 551.071. Weather-ford argues that this announcement was at odds with the meeting’s notice, which stated that “the City Council may adjourn into Executive Session to consider any item listed on this agenda if a matter is raised that is appropriate for the Executive Session discussion.” (Emphasis added.) He contends that there was no “pending or threatened” litigation and, even assuming there was, the matter was never “raised” during the course of the open meeting.

Generally, meetings of governmental bodies must be open to the public. See id. § 551.002. “Actions” taken in violation of the Act are voidable. Id. § 551.141. A governmental body, however, may meet with its attorney in private to discuss “pending or contemplated litigation.” Id. § 551.071. Before closing a meeting, the presiding officer must publicly announce an intent to go into a closed meeting and identify the statutory basis for doing so. Id. § 551.101. The Act does not prohibit the expression of opinions in a closed session, as long as the actual vote or decision is made in an open session. Thompson v. City of Austin, 979 S.W.2d 676, 685 (Tex.App.-Austin 1998, no pet.).

The Act also requires advanced written notice of all meetings held by a governmental body. Tex. Gov’t Code Ann. § 551.041. The notice requirements also apply to executive sessions, and the notice must be sufficiently specific to alert the general public to the topics to be considered. Cox Enters., Inc. v. Board of Trustees, 706 S.W.2d 956, 958 (Tex.1986). “As long as a reader is alerted to the topic for consideration, it is not necessary to state all of the consequences which may flow from consideration of the topic.” Id. The notice provision is intended to provide public access to and increase public knowledge of government decisionmaking. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex.1991). “The Open Meetings Act is not a legislative scheme for service of process; it has no due process implications. Rather, its purpose is to provide ‘openness at every stage of ” governmental deliberations. Id. (quoting Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex.1990)). In reviewing a notice under the Act, we should ensure that those purposes are served, but the notice need not be “tailored to reach those specific individuals whose private interests are most likely to be affected by the proposed government action.... If a ‘reader’ is given notice, the requirement of the Act is satisfied and its purpose served.” Id. If the contents of a notice are undisputed, its adequacy is a question of law. City of San Angelo v. Texas Natural Res. Conservation Comm’n, 92 S.W.3d 624, 629 (Tex.App.-Austin 2002, no pet.).

The notice at issue stated that the Council intended to:

9. Remove from table and consider adoption of Resolution amending the Future Land Use Plan of the City Master Plan from Mixed Use to Medium Density Residential for an 8.13 acre, more or less, tract of property, and from Mixed Use to Commercial for a 9.9 acre, more or less, tract of property, both tracts being located near the intersection of Ranch Road 12 and Bishop Street (Weather-ford)! ]
25.... NOTE: The City Council may adjourn into Executive Session to consider any item listed on this agenda if a matter is raised that is appropriate for Executive Session discussion. An announcement will be made of the basis for the Executive Session discussion. The City Council may also publicly discuss an item listed on the agenda for Executive Session.

We note initially that the published notice was sufficient to comply with the Act. See Tex. Gov’t Code Ann. § 551.041; Cox Enters., 706 S.W.2d at 958. Further, Chiu’s pronouncement, made prior to the City’s Council’s closed meeting, on its face satisfied the requirements of the Act. See Tex. Gov’t Code Ann. § 551.101. However, even if we assume that the City Council violated the Act’s closed session and notice provisions, we must still decide whether the City took any “action” that would be voidable. Weatherford complains of the City Council’s refusal to allow him to withdraw his second rezoning application. We note, however, that before going into closed session, the City Council voted to table Weatherford’s application. Once the Council readjourned after the closed session, it again voted to “withhold final action on the [Weatherford’s] pending land use amendment.”

Weatherford’s Open Meetings complaint fails in several ways. First, the City Council voted to table the approval of Weatherford’s second rezoning application before it went into closed session and then simply voted again to table the application after the closed session. Further, the action taken by the City Council before and after the closed session was essentially the action Weatherford requested; namely, that the Council not consider his second rezoning application. Finally, even if opinions were expressed by the Council members in the closed session, such expression is not prohibited, as long as the final decision or vote was made in an open session. See Thompson, 979 S.W.2d at 685; see also Tex. Gov’t Code Ann. § 551.102. Therefore, there is no evidence that the City Council took some “final action” that would be voidable under the Act.

The City established that there was no violation of the Act, and we therefore overrule Weatherford’s third issue. We also overrule his seventh issue, seeking an injunction to prohibit the City from violating the Act in the future.

Proprietary versus Governmental Capacity

Weatherford next argues that the City acted in a proprietary capacity and not its governmental capacity when it (1) participated in the workshop in 1997, (2) evaluated his applications to develop his property, and (3) enacted the sector plans. As discussed above, the City acted in its governmental capacity in reviewing and evaluating Weatherford’s applications. See City of Round Rock, 687 S.W.2d at 302-03; City of Brookside Village, 633 S.W.2d at 792; see also Tex. Civ. Prac. & Rem.Code Ann. § 101.0215(29) (West Supp.2004) (classifying zoning and planning as governmental functions for purposes of Tort Claims Act); Truong v. City of Houston, 99 S.W.3d 204, 210 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (zoning and land-use ordinances and enforcement of ordinances are governmental functions). As a general rule, governmental bodies are not subject to estoppel in the exercise of them governmental capacity. City of Austin v. Garza, 124 S.W.3d 867, 874 (Tex.App.-Austin 2003, no pet.); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 594 (Tex.App.-Austin 1991, writ denied).

We turn, then, to Weatherford’s alternative argument — that governmental bodies are subject to estoppel “where justice requires its application.” See City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex.1970). He asserts that he relied on the “conduct and statements of some of the individual defendants, prior city council members and employees of the City in connection with the decision to participate in” the workshop and, after participating in the workshop, spent substantial sums of money on the PDD application process, including time and money spent in filing the applications and then amending them at the City’s direction. Consequently, he argues, the City should be estopped from denying or rejecting his PDD applications to the extent they comply with the land uses and densities agreed upon during the workshop. Weatherford argues in the alternative that if he was not entitled to the approval of his PDD applications, he should “recover economic damages incurred in connection with his detrimental reliance.”

Weatherford’s circumstances do not clearly demand application of the exception “to prevent manifest injustice” as Texas courts have applied it. See Prasifka, 450 S.W.2d at 836 (under exception, estoppel may be applied if “there is no interference with the exercise of [the municipality’s] governmental functions,” and only in exceptional cases where circumstances clearly demand it). Although Weatherford might say he received the “run-around” at various levels of the City’s zoning and land-use regulatory process, he cannot, on this basis, bind the City Council in its exercise of ultimate legislative authority over planning and zoning decisions. See City of Round Rock, 687 S.W.2d at 302-03; City of Pharr, 616 S.W.2d at 175; City of Farmers Branch v. Hawnco, Inc., 435 S.W.2d 288, 291-92 (Tex.Civ.App.-Dallas 1968, writ ref'd n.r.e.) (statements by individual council members are not binding on governmental body that can only act in governmental capacity); see also Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 678 (Tex.2004) (actions or statements by individual city employees or officials were not considered to have been by the city itself and held not to bind city). We conclude that the City acted in its legislative and governmental capacity and that estoppel is not warranted by any threat of manifest injustice. We overrule Weatherford’s fourth issue.

We further note that the individual City Council members are entitled to legislative immunity to the extent they were acting in their legislative capacity. See In re Perry, 60 S.W.3d 857, 859-60 (Tex.2001). Having concluded that the City was acting in its legislative capacity at the time, we conclude that the individual defendants were entitled to governmental immunity and we overrule Weatherford’s eighth issue. See id.

Chapter 245 of the Local Government Code

Appellant sought a declaration that his PDD applications, the first filed August 26, 1999, the second July 3, 2000, and the third in December 2000, are “permits” as defined by the local government code. See Tex. Loc. Gov’t Code Ann. § 245.001(1) (West Supp.2004-05). He argues on appeal that the City violated chapter 245 of the local government code when it tabled his third PDD application until after the Sector Plan was revised and then denied the application for failure to comply with the Revised Plan.

We discussed whether an application to rezone property is a “permit” within the definition of chapter 481 of the government code, the predecessor of chapter 245, in Williamson Pointe Venture, in which we held that rezoning was not a “permit” as defined by statute. See 912 S.W.2d at 343 (citing Act of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, 1995 Tex. Gen. Laws 4147, 4147-48 (codified at Tex. Gov’t Code §§ 481.141-.143), “inadvertently” repealed by Act of June 1, 1997, 75th Leg., R.S., ch. 1041, § 51(b), 1997 Tex. Gen. Laws 3943, 3966, reenacted by Act of April 29, 1999, 76th Leg., R.S., ch. 73, §§ 1, 2 1999 Tex. Gen. Laws 431, 432, and recodified at Tex. Loc. Gov’t Code Ann. §§ 245.001-.006 (West Supp.2004-05)).

A “permit” is a “license, certificate, approval, registration, consent, permit, or other form of authorization required by law, rule, regulation, or ordinance that a person must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought.” Tex. Loc. Gov’t Code Ann. § 245.001(1); see Williamson Pointe Venture, 912 S.W.2d at 343 (quoting Tex. Gov’t Code § 481.142(2)). An application to rezone is not a request for an “approval” or for some “other form of authorization required by law,” and “[t]he proposition that the legislative act of zoning entitles the landowner to develop his or her property free from all subsequent regulatory changes is so contrary to established law that the legislature, had it wanted to effect' ■ such a change, must have clearly so stated.” Williamson Pointe Venture, 912 S.W.2d at 343. An application to rezone property is not the first of a series of required permits but rather a preliminary step in seeking to develop property. Id. A municipality may rezone property “to entirely prohibit previously permissible uses, even established uses,” and thus can amend regulations or, in this case, master plans, in ways that “affect the prospective development of the property within the broad zoning categories.” Id.

Because Weatherford’s applications do not come within the definition of “permit,” we overrule his fifth issue.

Regulatory Taking

Weatherford argues that the City’s denials of his applications constituted a regulatory taking because they unreasonably interfered with his right to use and enjoy his property, were arbitrary, capricious and unreasonable, and did not advance any legitimate government interest. Weatherford argues that the City’s zoning ordinances fail to advance any legitimate government interests only as they were applied to his situation. In its motion for summary judgment, the City argued that the denials of Weatherford’s applications did not devalue his property and that the City’s decisions substantially advanced its legitimate governmental interests.

The Fifth Amendment of the United States Constitution and article I, section 17 of the Texas Constitution prohibit the government from taking private property for public use without adequate compensation. Mayhew, 964 S.W.2d at 933. A regulatory taking may occur if a land-use regulation unreasonably interferes with a landowner’s right to use and enjoy his property or does not substantially advance a legitimate governmental interest. Id. at 9-34-35.

Substantial advancement

Municipal bodies have discretion to make zoning decisions as long as they comply with constitutional limitations. Id. at 933. To satisfy constitutional considerations, a zoning decision or other property regulation must substantially advance a legitimate governmental interest. Id. In reviewing a zoning decision, the inquiry is not whether the decision was wise, but whether it substantially advanced some legitimate state interest. Id. at 934. A municipality’s concern with the “ill effects of urbanization” may justify its action under a takings analysis. Id. at 935. The City, along with Weatherford’s neighbors, was concerned that commercial development would increase congestion and pollution, change the character of the neighborhood, and negatively affect the overall quality of life for Weatherford’s neighbors. Weatherford hoped to add hundreds of living units, many in the form of duplexes, apartments, and townhomes, and to construct a commercial infrastructure. There is no disputing that his proposals could have drastically changed the character of the neighborhood. We therefore conclude that the City showed that its denials of Weatherford’s applications substantially advanced a legitimate governmental interest. See id. at 935 (proposed development would add 3,600 housing units to rural area with only 2,000 current residents, resulting in population increase of more than 10,000 people; zoning decision held to substantially advance municipality’s legitimate interests in “preserving the rate and character of community growth”).

Unreasonable interference with use and enjoyment

The City’s denials of Weather-ford’s applications could also constitute a taking if they unreasonably interfered with Weatherford’s use and enjoyment of his property. See id. Determining whether the City unreasonably interfered with the use and enjoyment of Weatherford’s property requires a consideration of two factors: (i) the economic impact of the City’s decision and (ii) the degree to which the decision interferes with investment-backed expectations. Id.

Consideration of the economic impact of the regulation requires a comparison of the value taken from the property with the property’s remaining value. Id. at 935-36. “The loss of anticipated gains or potential future profits is not usually considered in analyzing this factor.” Id. The second factor is landowner’s investment-backed expectation. Id. The property’s current permitted uses constitute the landowner’s “primary expectation” that may be affected by regulation. Id. (quoting Penn Cent. Transp. v. City of New York, 438 U.S. 104, 136, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). “Knowledge of existing zoning is to be considered in determining whether the regulation interferes with investment-backed expectations,” and historical uses of the property are of critical importance in determining the landowner’s reasonable investment expectations. Id. at 936-37. Whether a decision so unreasonably restricts a landowner’s property rights as to amount to a taking is a question of law, but we rely on the trial court to “resolve disputed facts regarding the extent of the governmental intrusion.” Id. at 936.

The City noted, and Weatherford has not attempted to prove otherwise, that the Sector II Plan had no effect on the value of Weatherford’s property or in the property’s underlying zoning designation. At best, Weatherford’s argument is that his property would be worth more if he could rezone it. The loss of future profits is not usually considered in our analysis. Id.

Further, Weatherford had no “investment-backed expectations” to develop the property when he purchased it. In his affidavit, Weatherford stated, “Although I did not intend to develop the property at the time I purchased it during the 1960s, I did begin to entertain ideas during the 1990s about selling my property for someone else to develop after I started getting inquiries from real estate professionals.” The property has been zoned for single-family residences since the 1970s, and Weatherford bought most of his land in 1961 not for investment purposes but for his personal use to build his home. Weatherford admitted that his investment expectations formed well after the property was zoned single-family residential.

We conclude that the City demonstrated that its decisions did not unreasonably interfere with the use and enjoyment of his property and substantially advanced legitimate governmental interests. See id. at 938 (landowners bought first tract to use for ranching when no zoning was yet in place and later, after zoning was in place, bought other tracts with development in mind; court held that they lacked reasonable expectation to pursue development under existing state of community and zoning regulations); see also Sheffield, 140 S.W.3d at 676-78 (after developer bought land, city rezoned to allow fewer homes per square feet, thus devaluing expected investment return; despite evidence that city “attempted to take unfair advantage of’ developer, rezoning did not amount to taking). Further, as discussed above, we conclude that the City established that it did not act in an unreasonable, arbitrary, or capricious manner in making its determinations. Instead, the City took into account the considerable opposition to Weatherford’s applications and determined that the interests of the public would be best served by denying his applications. Weatherford has not produced evidence to the contrary. We overrule Weatherford’s sixth issue.

Conclusion

Having overruled Weatherford’s issues on appeal, we hold that the district court did not err in granting summary judgment for the City. We affirm the district court’s summary judgment.

      . The purpose of a comprehensive land-use plan is to provide for the "long-range development of the municipality” and may be "used to coordinate and guide the establishment of development regulations.” Tex. Loc. Gov’t Code Ann. § 213.002 (West Supp.2004-05).

      . The Plan does not define "Planned Development District,” and there is nothing in the record to show whether the phrase was defined at the time the Plan was enacted. We note generally, however, that cities use planned development districts as an alternative to traditional zoning:
      PDD procedures allow developers to obtain site-specific approval for developments that may not fit standard area and use zoning categories and that require specific negotiation to ensure that community interests are protected. PDDs conventionally accommodate designated types of major development, such as apartment projects, cluster housing, office developments, shopping centers, and hospital facilities.
      John Mixon, James L. Dougherty, Jr. & Brenda N. McDonald, Texas Municipal Zoning Law, § 7.100 (3d ed.1999).

      . The Commission’s role is to hold public hearings and make a final report to the governing municipal body. See Tex. Loc. Gov’t Code Ann. § 211.007(b) (West 1999). The governing body can require that it may only overrule the Commission’s negative recommendation by a vote of three-fourths of the governing body’s members. See id. % 211.006 (West 1999).

      . Section 551.071 allows a governmental body to "conduct a private consultation with its attorney” when seeking advice about "pending or contemplated litigation.” Tex. Gov’t Code Ann. § 551.071 (West 2004).

      . Tex. Gov’t Code Ann. §§ 551.001-.146 (West 2004),

      . Weatherford does not raise this issue on appeal.

      . This was Weatherford's second rezoning application.

      . Weatherford asserts that the case law cited by the City, which is based on chapter 481, is not applicable. Chapter 245 was enacted in 1999 because its predecessor, chapter 481, was "inadvertently’' repealed in 1997. See Act of April 29, 1999, 76th Leg., R.S., ch. 73, § 1, 1999 Tex. Gen. Laws 431, 432. The relevant portions of chapter 245 are largely identical to their predecessor statutes in chapter 481, and thus, cases discussing chapter 481 are still valid. Compare Act of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, 1995 Tex. Gen. Laws 4147, 4147-48 (amending Tex. Gov’t Code §§ 481.142 (Definitions), .143 (Uniformity of Requirements)), with Tex. Loc. Gov’t Code Ann. §§ 245.001 (Definitions), .002 (Uniformity of Requirements).

      .Although we noted in Williamson Pointe Venture v. City of Austin that 1995 amendments provided that "preliminary plans and related subdivision plats, site plans, and all other development permits for land covered by such preliminary plans of subdivision plats are considered collectively to be one series of permits,” we considered the statute as it read before the amendments and did not decide whether zoning constituted a permit under the amended statute. 912 S.W.2d 340, 345 n. 7 (Tex.App.-Austin 1995, no writ). However, the definition of permit was not amended in 1995, and the definition currently enacted is virtually identical to the definition considered by the court in Williamson Pointe Venture. The 1995 amendments did not change the fact that zoning and rezoning are legislative acts. See City of Pharr v. Tippitt, 616 S.W.2d 173, 176 (Tex.1981). As we stated, "[rjezoning is a step that must be taken before a preliminary plan or subdivision plat can be filed,” and a City's decision to "process an application for subdivision only after the property is properly zoned does not make zoning a 'permit.' ” Williamson Pointe Venture, 912 S.W.2d at 343.

      . Weatherford cites City of Glenn Heights v. Sheffield Development Co., 61 S.W.3d 634 (Tex.App.-Waco 2001), in support of his contention that the City unreasonably interfered with his right to use and enjoy his property. However, that case was recently reversed by the supreme court. See 140 S.W.3d 660 (Tex.2004).

      . A taking may also occur if a zoning decision denies a landowner "all economically viable use of their property,” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex.1998), but Weatherford does not allege that the City's decision has such an impact on the use of his property. See also Sheffield, 140 S.W.3d at 670-72 (suggesting that regulatory takings might be found in situations other than physical effect short of governmental possession, denial of all economically beneficial use, or failure to substantially advance legitimate state interests).