author: SHERRY RADACK, Chief Justice.

text:
    Braden St. John BROWN, Appellant, v. SWETT & CRAWFORD OF TEXAS, INC. f/d/b/a/ Insurance Brokers Services, Inc. of Texas f/k/a Alexaner Howden Insurance Services of Texas, Inc.; Aon Corporation; Aon Services Group, Inc.; Swett & Crawford, Inc.; Insurance Brokers Services, Inc.; Pascal M. (“Matt”) Galtney; and Blake Bartnik, Appellees.
    No. 01-03-00520-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 15, 2005.

      Charles Watson, Watson, Kowis & Ros-sick, Robert A. Plessala, Cokinos, Bosien & Young, Houston, TX, for Appellant.
    Jessica P. Wannemacher, McFall, Martinez, Sherwood & Breitbeil, P.C., Mark K. Glasser, Tracey M. Robertson, King & Spalding, L.L.P., Kenneth R. Breitbeil, McFall, Sherwood & Breitbeil, Houston, TX, for Appellees.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

Appellant, Braden St. John Brown, filed suit against his employer, Swett & Crawford of Texas, Inc. f/d/b/a Insurance Brokers Services, Inc. of Texas (“IBS”), and his supervisor at IBS, Matt Galtney, alleging that they (1) wrongfully expelled him from a partnership that he had entered into with Galtney; (2) refused to pay him a bonus that he had earned; (3) fraudulently induced him to leave his previous employment by representing that he would continue to be Galtney’s “partner” at IBS; (4) tortiously interfered with his relations with, and made defamatory statements about him to, prospective employers; and (5) that IBS negligently hired and supervised Galtney. Galtney and IBS filed a motion for summary judgment, which the trial court granted. We affirm.

I. BACKGROUND

Braden St. John Brown is a wholesale insurance broker. Wholesale brokers act as middlemen between retail insurance agents and insurance companies, and the insurance companies pay the wholesale broker a “gross commission,” which is a percentage of the premium for each policy sold.

Brown met Galtney in 1994, while they were both working for Jarrett Insurance Brokers (“Jarrett”). While at Jarrett, they were treated on the company’s books as one person, i.e., they were allocated a gross salary and paid gross commissions, which- they split in an agreed-upon proportion. Jarrett, however, paid each of them by way of a separate check, which reflected their split of the commissions.

In 1999, Galtney met a former business acquaintance, Blake Bartnick, who was the president of IBS in Dallas. Galtney and Bartnick began discussing the possibility of Galtney’s opening a Houston office for IBS. Galtney indicated that he wished to bring Brown with him to IBS, and began negotiating with IBS on behalf of himself and Brown.

IBS eventually hired both Brown and Galtney. The offer they accepted included a base salary of $590,000, 42% of which went to Brown ($247,800) and 58% of which went to Galtney ($342,200). There was a potential for a bonus based on new business written for IBS by “Houston Team One,” which is how IBS referred to the team consisting of Brown and Galtney. The bonus to “Houston Team One” was also to be split in the same proportion as the base salary. Thereafter, the base salary would be adjusted yearly and would be paid to Brown and Galtney as a draw against the gross commissions that they generated. Any amount above the draw would be divided equally between Houston Team One and IBS, and Houston Team One would divide its half of the gross commission in a 42:58 ratio between Brown and Galtney.

Brown and Galtney were both W-2 salaried employees of IBS, and Galtney, as the executive vice-president in charge of the Houston office, was Brown’s supervisor. Brown acknowledged that he was an at-will employee of IBS.

On July 31, 2000, IBS fired Brown after problems attributed to him were discovered in several of the files that he had been handling. Brown was offered a severance, which included full pay and benefits through September 30, 2000, and a payment of a year-end bonus based upon gross commissions earned through the date of his termination. Brown rejected the bonus offered by IBS by writing ‘"VOID” on the face of the bonus check and returning it.

IBS and Galtney filed both traditional and no-evidence motions for summary judgment. Brown filed a motion for partial summary judgment on his partnership and bonus claims. The trial court granted IBS’s and Galtney’s motions for summary judgment and denied Brown’s motion for partial summary judgment. This appeal followed.

II. PROPRIETY OF SUMMARY JUDGMENT

A. STANDARDS OF REVIEW

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ. P. 166a(i); Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 866 (Tex.App.Houston [1st Dist.] 1999), aff'd, 73 S.W.3d 193 (Tex.2002). The motion must specify which essential elements of the opponent’s claim or defense lack supporting evidence. See Brewer & Pritchard, 7 S.W.3d at 866-67. Once the party seeking the no-evidence summary judgment files a proper motion, the respondent must bring forth evidence that raises a fact issue on the challenged elements. See Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex.App.Austin 1998, no pet.). The party with the burden of proof at trial has the burden of proof in the summary judgment proceeding. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The respondent need not “marshal its proof’ as for trial but need only “point out” evidence that raises a fact issue on the challenged elements. Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 715 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

The standard of review in an appeal from a traditional summary judgment requires a defendant who moved for a summary judgment on the plaintiffs causes of action (1) to show there is no genuine issue of material fact as to at least one element of each of the plaintiffs causes of action or (2) to establish each element of the defendant’s affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). In reviewing a traditional or a no-evidence summary judgment, we assume all the evidence favorable to the nonmovant is true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in favor of the nonmovant. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). When, as here, the trial court’s summary judgment order does not specify the ground or grounds on which summary judgment is rendered, we will affirm the summary judgment if any of the grounds stated in the motion is meritorious. Id. (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)).

B. PARTNERSHIP CLAIMS

The parties filed cross-motions for summary judgment on Brown’s partnership claims. Specifically, IBS and Galtney contended there was no evidence to raise a fact issue concerning whether or not Brown and Galtney/IBS had entered into a partnership agreement. In issue one on appeal, Brown contends the trial court erred by granting IBS/Galtney’s motion for summary judgment on his partnership claims.

Article 2.03 of the Texas Revised Partnership Act (“TRPA”) sets forth five factors to consider in determining whether a partnership has been created. Those factors include (1) the receipt or right to receive a share of profits of the business; (2) the expression of an intent to be partners of the business; (3) the participation or right to participate in control' of the business; (4) the sharing of or agreement to share losses of the business or liability for claims by third parties against the business; and (5) the contribution of or an agreement to contribute money or property to the business. Tex.Rev.Civ. Stat. Ann. art. 6132b-2.03(a) (Vernon Supp.2004-2005).

The Supreme Court of Texas has held that, to establish a partnership or joint venture, a plaintiff must show (1) a community of interest in the venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right or control or management of the enterprise. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex.1997).

IBS and Galtney contend that Brown’s partnership claims fail as a matter of law because the evidence conclusively establishes that he had no right to receive a share of the profits of the business because his salary and bonus compensation package was merely compensation for the services of an at-will employee. We agree.

The TPRA provides that “sharing or having a right to share gross returns or revenues” is not indicative of a partnership arrangement. Tex.Rev.Civ. Stat. Ann. art. 6132b-2.03(b)(3) (Vernon Supp.2004-2005). Additionally, the supreme court has held that an essential element of a partnership is “a community of profit, an interest in the profits as profits, as distinguished from an interest therein as compensation.” Tanner v. Drake, 124 Tex. 395, 78 S.W.2d 162, 163 (1935). The supreme court explored this concept further in Schlumber-ger Technology Corp. 959 S.W.2d at 176. In Schlumberger, two brothers were hired by a mining company to assist in developing an offshore mining operation. Id. at 173. In return, the brothers were paid a consulting fee and a royalty in any diamonds mined through the project. Id. When a potential investor in the project pulled out, the brothers sued the investor alleging that it had violated its fiduciary duty as a partner. Id. at 174. The supreme court held that the brothers were not partners of the joint venture, but were receiving compensation for services rendered, not a share of the profits of the venture. Id. at 176. In so holding, the court stated as follows:

Entitlement to a royalty based on gross receipts is not profit sharing. See Tex. Rev.Civ. Stat. Ann. art. 6132b, § 7(3) (sharing gross returns does not itself establish partnership); see also Patton v. Callaway, 522 S.W.2d 252, 256 (Tex.Civ.App.-El Paso 1975, writ ref d n.r.e.). Of course, the payment of consultation fees is not the sharing of profits. Such payments are compensation for services rendered and are unrelated to the venture’s profits. See Grimmett v. Higginbotham, 907 S.W.2d 1, 2-4 (Tex.App.-Tyler 1994, writ denied) (weekly compensation unrelated to financial requirements of business is no evidence of agreement to share profits or losses); Gutierrez v. Yancey, 650 S.W.2d 169, 172 (Tex.App.-San Antonio 1988, no writ) (partners must participate in profits and share them as principals of business and not as compensation).

Id.

The undisputed evidence in this case shows that Brown was entitled to receive a base salary plus 42% of half of the gross commissions attributable to business written out of IBS’s Houston office. Brown’s base salary, like the consulting fee charged by the brothers in Schlumberger, cannot be considered a share of profits. Similarly, Brown’s portion of the gross commissions, like the royalty interest paid to the brothers in Schlumberger, was compensation for services rendered to IBS, not an interest in the overall profits of IBS. That IBS agreed to divide Brown’s and Galt-ney’s portion of gross commissions in a proportion that Brown and Galtney had agreed was appropriate does not change the nature of the bonus from compensation to profits.

Because there was no evidence that Brown shared, or had the right to share profits, IBS and Galtney negated an essential element of Brown’s partnership claims. Accordingly, the trial court did not err in granting Galtney’s and IBS’s motion for summary judgment on these claims.

Accordingly, we overrule Brown’s first issue.

C. FRAUD AND CONSPIRACY

In his fourth amended petition, Brown claimed that he was a victim of a fraud and conspiracy between IBS and Brown to remove him from the “partnership.” In his brief, Brown claims that “[a] representation and promise was made to Brown that he would continue to be Galtney’s partner while at IBS.”

The basis of this claim is Brown’s contention that he was wrongfully induced to leave his prior employment with promises that he would continue in his “partnership” with Galtney at IBS. As such, this claim is grounded on the premise that he and Galtney were “partners” and that he was fraudulently expelled from the partnership in order to gain control of his “book of business.”

However, Brown and Galtney were not partners, as a matter of law, but were at-will employees of IBS. Furthermore, the record shows that they were under a similar financial arrangement while working at their previous employer, Jarrett Insurance Brokers. Because Brown could not have been fraudulently induced into continuing a “partnership” that never existed, his fraud and conspiracy claims fail.

As we have already stated, Brown was an at-will employee of IBS. Brown’s status as an at-will employee precludes his claim for fraudulent inducement as a matter of law. See Haase v. Glazner, 62 S.W.3d 795, 798 (Tex.2001) (stating that “[wjithout a binding agreement, there is no detrimental reliance, and thus no fraudulent inducement claim”). There was simply no enforceable agreement to continue Brown’s employment at IBS. See also Leach v. Conoco, Inc., 892 S.W.2d 954, 961 (Tex.App.-Houston [1st Dist.]1995, writ dism’d w.o.j) (“An ‘at will’ employee is barred from bringing a cause of action for fraud against his employer based upon the employer’s decision to discharge the employee.”). Similarly, Galtney, another at-will employee of IBS, was not in a position to promise Brown that his employment at IBS would continue indefinitely, and any reliance on such a statement by Brown would have been unreasonable.

Because Brown cannot allege a cause of action for fraud in connection with his termination as an at-will employee, the trial court did not err in granting IBS’s and Galtney’s motions for summary judgment on this issue.

Accordingly, we overrule Brown’s second issue.

D. ENTITLEMENT TO BONUS

In his fourth amended petition, Brown claimed that he was entitled to a bonus in the amount of $79,700 for the year 2000. The record shows that IBS calculated his bonus at $10,263, the tender of which Brown refused. Brown and IBS and Galt-ney filed cross-motions for summary judgment on the bonus issue. The trial court granted IBS’s and Galtney’s motion and denied Brown’s motion. In his third issue on appeal, Brown contends that the trial court erred by ruling in favor of IBS and Galtney. .

One of the grounds upon which IBS and Galtney relied was judicial estop-pel. Specifically, IBS and Galtney contended that Brown was judicially estopped from claiming entitlement to a bonus because he had filed a petition in bankruptcy declaring that the estimated value of his assets was under $50,000.

The doctrine of judicial estoppel, as it relates to bankruptcy pleadings, has been described as follows:

Judicial estoppel is a common law principle that applies when a party tries to contradict his or her own sworn statement given in prior litigation. See Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988). It is designed to protect the integrity of the judicial process by preventing a party from “playing fast and loose” with the courts to suit the party’s own purposes. Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir.1996). The primary purpose of the doctrine is not to protect litigants, but rather the integrity of the judiciary. See Interfirst Corp., 858 F.2d at 268. In other words, it is used to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage. See Andrews, 959 S.W.2d at 649.
Debtors in a bankruptcy action have an absolute duty to report whatever interests they hold in property, even if they believe the asset is worthless or unavailable to the bankruptcy estate. See In re Yonikus, 974 F.2d 901, 904 (7th Cir.1992). Because of the broad scope of § 541(a), a potential personal injury claim that arose prepetition is property of the estate that must be reported. 11 U.S.C.A. § 541(a) (West 1993); see In re Allen, 179 B.R. 818, 820 (Bankr.E.D.Tex.1995). When a cause of action accrues before the date the bankruptcy petition is filed, the claim is an interest that the debtor possesses when he or she files the bankruptcy petition. See Sizemore v. Arnold, 647 N.E.2d 697, 699 (Ind.Ct.App.1995).

Stewart v. Hardie, 978 S.W.2d 208, 208(Tex.App.-Fort Worth 1998, pet. denied).

However, there are limitations to the doctrine of judicial estoppel based upon bankruptcy pleadings. See Thompson v. Cont’l Airlines, 18 S.W.3d 701, 708 n. 1 (Tex.App.-San Antonio 2000, no pet.); In re Coastal Plains, Inc., 179 F.3d 197, 206-07 (5th Cir.1999). The doctrine of judicial estoppel may be applied only when (1) the position of the party to be estopped is clearly inconsistent with its previous position; (2) the court has accepted the prior position; and (3) the party to be estopped has acted intentionally, not inadvertently. See In re Coastal Plains, 179 F.3d at 206-07. In considering judicial estoppel for bankruptcy cases, the debtor’s failure to disclose is “inadvertent” only when the debtor lacks knowledge of the undisclosed claims or has no motive for their concealment. See id. at 210.

In this case, Brown’s bankruptcy petition stating that he had assets under $50,000 clearly conflicts with his petition in this case, in which he claims that he is entitled to receive a $79,700 bonus. Additionally, Brown filed his bankruptcy petition after his petition in this case. Thus, at the time he filed his bankruptcy petition, he was certainly aware of the existence of the potential asset of his bonus claims in this case. Nor does Brown’s response to the summary judgment raise a fact question as to whether he omitted the asset inadvertently. Instead, Brown relies on the fact that the bankruptcy petition was ultimately dismissed on March 20, 2002, and thus, he seems to be contending that the bankruptcy court must not have accepted his prior position that he had less than $50,000 in assets. However, the bankruptcy was dismissed because the trustee “concluded that there [were] no assets to administer for the benefit of the creditors of this estate.” See Dallas Sales Co. v. Carlisle Silver Co., 134 S.W.3d 928, 932 (Tex.App.-Waco 2004, no pet.) (stating that bankruptcy court accepted debtors position by authorizing bankruptcy trustee to abandon assets of debtor’s bankruptcy estate because assets were of “no or little value to the estate.”). Accordingly, we conclude that the bankruptcy court accepted Brown’s position that he possessed less than $50,000 in assets. Furthermore, while the bankruptcy was pending, Brown’s creditors were prevented from attempting to collect their debts. Thus, Brown benefitted, at least temporarily, by filing the inconsistent bankruptcy petition.

Because the position urged by Brown in the bankruptcy court — that he had fewer that $50,000 in assets, including potential assets — is inconsistent with the position urged in his petition in this case, we conclude that Brown is estopped from claiming that he is entitled to a $79,700 bonus. Therefore, the trial court did not err by granting IBS’s and Galtney’s motion for summary judgment on the bonus issue. Accordingly, we overrule Brown’s third issue.

E. TORTIOUS INTERFERENCE AND DEFAMATION

In his fourth issue on appeal, Brown contends the trial court erred by granting the defendants’ summary judgment motion on his claims of tortious interference with prospective business relationships and defamation. Both claims were premised on the allegation that “false, negative and unflattering comments [were] published by IBS and its agents within the industry following Brown’s termination.”

To establish a cause of action for tortious interference with prospective business relationships, a plaintiff must show (1) there was a reasonable probability that the parties would have entered into a con-traetual relationship; (2) the defendant committed an independently tortious or unlawful act that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant’s interference. Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 858 (Tex.App.-Houston [14th. Dist.] 2001, pet. denied). Because Brown’s tortious interference claim rests exclusively on the existence of an “independently tortious or unlawful” act by the defendants, we must first determine the validity of Brown’s defamation claim.

To prove a cause of action for defamation, a plaintiff must prove that (1) the defendant published a statement of fact, (2) the statement was defamatory; (3) the statement was false, (4) the defendant acted negligently in publishing the false and defamatory statement; and (5) the plaintiff suffered damages as a result. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998).

In his brief, Brown does not point to a specific “statement of fact” that was made to any prospective employer. Instead, he states that “[s]everal of the contacts told Brown that they had received negative information from IBS and its agents.” A review of the record cites provided in Brown’s brief shows only that some of the people with whom Brown interviewed said that “there were some very unflattering things being said about [him].” One potential employer told Brown, “Well, we— somebody — a person in your company, and I’d rather not disclose who, received a phone call from somebody that I prefer not to disclose, and Braden, we just can’t do it.” Another potential employer stated that Brown’s “association with [Galtney] hurt him.” There was also reference in the record to an anonymous e-mail that was unflattering to Brown. During his deposition, Brown was asked the following:

Question: What other evidence are you aware of, firsthand or secondhand, of you being blackballed in the industry by Matt Galtney or Blake Bartniek or anyone with IBS of Texas?
⅜ * ⅜ *
Brown: Personally, every slammed door I received while trying to obtain a job doing what I did. And the exact words that Peter Willis Flemming told me while I was sitting in his office that “Matt called and said some very unflattering things about you.”

Brown also claimed that a coworker at IBS, Jennifer Hixon, referred to him as “a walking E & 0.” Mary Elizabeth Walker, a senior broker assistant at IBS, testified that Hixon said to her that Brown was a “walking E & 0.” However, Walker heard the statement straight from Hixon, not from “within the gossip circle.”

Brown testified that Hixon sent a fax containing very disparaging comments about him to Galtney. Claudia Cox, a retail broker, and Karen Brooks, Cox’s assistant, told Brown that Hixon said “some very disparaging things” about him, but that the two women “tuned her out.”

Hixon, herself, admitted that she had called Brown a “walking E & 0” and that she had made “negative comments” about Brown to people outside IBS.

1. “Negative information,” unflattering emails, and “disparaging things”

IBS and Galtney moved for a no-evidence summary judgment, contending that there was no evidence that the “negative information,” unflattering emails, and “disparaging things” that were said about Brown were defamatory or false. We agree. Because Brown did not provide any evidence about the substance of the “negative information,” unflattering emails and “disparaging things” that he contends IBS and Galtney said or wrote about him, there is nothing in the record to raise a fact question for the jury. Put simply, Brown failed to bring forth any evidence on two elements of his defamation claim, i.e., that the “negative information,” unflattering emails, and “disparaging” things that were said about him were either defamatory or untrue. Accordingly, the trial court properly granted IBS’s and Galt-ney’s no-evidence motions for summary judgment on these claims.

2. “Walking E & 0” statement

The only specific, defamatory statement that Brown contends was made about him was Jennifer’s Hixon’s statement that Brown was “a walking E & 0.” In their motions for summary judgment, IBS and Galtney contend that Hixon’s statement was not an actionable statement of fact, but was her opinion. We agree.

The First Amendment to the United States Constitution and article 1, section 8 of the Texas Constitution require a plaintiff to establish that the defendant published a false, defamatory statement of fact, rather than an opinion, as an essential element of a cause of action for libel. A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 79 (Tex.App.-Fort Worth 1982, writ refd n.r.e.); see Carr, 776 S.W.2d at 570. In other words, the plaintiff must prove that the statements contained false, defamatory facts rather than opinions or characterizations. A.H. Belo Corp., 644 S.W.2d at 80. Whether a statement is an opinion or an assertion of fact is a question of law. Carr, 776 S.W.2d at 570. An alleged defamatory statement of opinion requires an implication of undisclosed facts to be actionable. Bentley v. Bunton, 94 S.W.3d 561, 584 (Tex.2002).

There is no assertion of fact in Hixon’s statement that Brown was a “walking E & O.” Instead, the statement clearly expresses Hixon’s opinion that Brown was likely to perform his work in such a manner that IBS’s errors and omissions insurer would be required to provide coverage when he made a mistake. Similarly, there are no implied, but verifiable, facts in Hix-on’s statement. See id. at 585 (holding that opinion that judge was “corrupt” actionable because statement included implication that opinion was based upon verifiable facts). As such, Hixon’s reference to Brown as “walking E & 0” is not actionable. See Associated Press v. Cook, 17 S.W.3d 447, 454 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (statement that plaintiff was “blight on law enforcement” was statement of opinion and amounted to “little more than name calling”). As such, the trial court properly granted summary judgment on this claim.

Because the trial court properly granted summary judgment on Brown’s defamation claims, and because Brown’s tortious interference claim is based on the alleged tort of defamation, the trial court also properly granted summary judgment on Brown’s tortious interference claim.

Accordingly, we overrule Brown’s fourth issue.

F. NEGLIGENT HIRING AND SUPERVISION

In his fourth amended petition, Brown claimed that IBS was negligent in the manner in which it hired and supervised Galtney and Hixon. IBS filed a motion for summary judgment on this claim, which the trial court granted.

To prevail on a claim for negligent hiring or supervision, the plaintiff is required to establish not only that the employer was negligent in hiring or supervising the employee, but also that the employee committed an actionable tort against the plaintiff. Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

As stated earlier, Brown cannot prove an actionable tort, i.e., defamation. Thus, his negligent hiring and supervision claims fail because of lack of causation. Accordingly, we overrule Brown’s fifth issue.

G. VICARIOUS LIABILITY

In his sixth issue on appeal, Brown contends that “in the event that the Trial Court’s Summary Judgment is reversed in whole or in part, [his claims for vicarious liability, vice-principal liability, single business enterprise and alter ego as theories of secondary, vicarious or derivative liability] should be remanded for trial along with any claim the Court remands for trial pursuant to this Appeal.” Because we have not found reversible error on any other issues raised by appellant, we need not address his sixth issue, and we decline to do so.

III. CONCLUSION

We affirm the judgment of the trial court.

      . The document stated as follows:
      I further understand that I have the right to terminate my employment at any time for any reason and the Company retains a similar right to terminate my employment. In addition, I understand that no officer, supervisor or other employee of the Company, other than the President of the Company for which I work, has the authority to alter, orally or in writing, the terminable-at-will status of my employment.

      . IBS calculated Brown's bonus as follows:
      "The total revenue generated through July 31, 2000 was $1,069,301. Fifty percent of that amount is $534,651. Mr. Brown’s 42% share is $224,553. Pursuant to the agreement, the $224,553 is reduced by $214,290 for the compensation Mr. Brown received through September 30, 2000. This includes $190,614 in salary, an auto allowance of $4,615, and accrued vacation in the amount of $19,061. Accordingly, Mr. Brown would receive, if anything, $10,263.”

      . We note that there is no evidence that Galt-ney ever represented to Brown that he would be anything other than an at-will employee of IBS. Brown, in fact, signed an acknowledgment of his status as such.

      . We assume that the phrase "walking E & O” refers to a person whose work perform-anee is likely to cause the company to file a claim with their errors and omissions insurer.


source: Caselaw Access Project

author: DIANE DeVASTO, Justice.

license: Public Domain

text:
    Jayanti PATEL, Appellant, v. CITY OF EVERMAN, Tom Killebrew d/b/a Metro Code Analysis, L.L.P., Appellees.
    No. 12-02-00174-CV.
    Court of Appeals of Texas, Tyler.
    Sept. 22, 2004.

      Edward W. Sampson, Law Office of Ben C. Martin, L.L.P., Dallas, for appellant.
    Elizabeth A. Elam, Timothy G. Sralla, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, for appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

Appellees City of Everman and Tom Killebrew d/b/a Metro Code Analysis filed a motion for rehearing, which is overruled. Our opinion of May 28, 2004 is withdrawn, and the following opinion is substituted in its place.

Jayanti Patel (“Patel”) appeals the trial court’s order granting summary judgment in favor of the City of Everman (the “City”) and Tom Killebrew (“Killebrew”) d/b/a Metro Code Analysis (“MCA”). Patel raises five issues on appeal. We affirm in part and reverse and remand in part.

Background

In 1990, Patel purchased twenty apartment buildings in the Willow Woods complex in Everman, Texas. In October 1995, the City requested that Patel board up two of his buildings that were vacant. Patel complied, and further, boarded up other unrented units to exclude vagrants and prevent crime and vandalism.

In April 1997, Patel received notice that the City intended to demolish fifteen of his buildings because their doors and windows had been boarded up for more than six months. Subsequently, Patel attended a meeting of the Everman Planning and Zoning Commission (the “Commission”) concerning the proposed demolition of his buildings and informed the Commission that he was unaware of the ordinance prohibiting boarding windows and doors for more than a six-month period. At the conclusion of the meeting, the Commission voted to recommend to the Everman City Council that fifteen of Patel’s buildings be demolished.

In July 1997, Patel filed suit seeking an injunction against the City. Ultimately, the trial court entered an agreed order (the “agreed order”) stating, in pertinent part, as follows:

IT IS ORDERED that Appellant Patel will repair said property so it is in compliance with all city codes for the City of Everman.
IT IS ORDERED that the City of Ever-man will reasonably cooperate with Patel and shall not interfere in the repair process and further that Patel shall cooperate with the City of Everman and shall permit such inspections as the City of Everman shall require. Patel shall comply with all city codes and inspections before receiving any certificates of occupancy.
In the event that each and every unit is not in compliance with the City of Ever-man City Codes by February 9, 1998, then in that event this Order and any Temporary Injunction shall expire and the City of Everman shall be permitted to demolish all units and property listed above without further notice and without further Court action.

Patel testified that from April 1997 until February 1998, he had substantial repairs made to all of his properties located in the Willow Woods complex, and that every unit in each of his buildings was newly remodeled and undamaged. Patel testified that he removed the boards from the exterior of his buildings. Patel further testified that he had the carpet replaced in seventy-six of the eighty units within his twenty buildings, and further still, that he had pitched roofs installed on thirteen of his buddings. Patel testified that he repainted the units. Patel also testified generally that he made repairs such as repairing walls, replacing cabinets, and installing new doors and fixtures. Patel testified that each unit he owned had a heating unit located inside of it and also employed either a cooling unit located outside of it or screens installed on the windows. Patel further testified that not one unit had a hole in the floor or wall or contained exposed electrical wiring. Moreover, Patel testified that he was present at the property on a daily basis for nine years and never saw a rat or rodent in any of his buildings, nor was he advised of any rat or rodent problem by any of his tenants.

Effective on or about February 5, 1998, the City enacted a new building code ordinance. On February 20,1998, Killebrew, a City Code Enforcement Officer, inspected Patel’s properties. Thereafter, Killebrew sent Patel a notice of substandard building as well as separate inspection reports on each of his properties.

Patel also testified that he received notice of a meeting of the Everman Building Board of Appeals (the “Board”) to be conducted on March 5, 1998, which he and his attorney attended. Patel testified that he could not recall whether his attorney presented evidence other than oral evidence. Patel testified that his attorney stated to the Board that many of the defects listed in Killebrew’s reports were false and requested that Patel be allowed thirty days to address the newly cited problems. Both Patel and his attorney left the meeting after the consideration of only three of Patel’s properties, citing the Board’s bias as their reason for leaving. Ultimately, the Board voted to demolish all twenty of Patel’s properties. The City commenced the demolition process as to eighteen of Patel’s buildings in April 1998.

Patel filed the instant suit against the City and Killebrew d/b/a MCA alleging that the demolition of his properties amounted to a taking without just compensation in violation of his rights pursuant to Article I, section 17 of the Texas Constitution. As to Killebrew and MCA, Patel alleged that these defendants were liable for trespass, conversion, and destruction of property. Patel also raised a procedural due process claim pursuant to Article I, section 19 of the Texas Constitution. All defendants jointly filed both traditional and no-evidence motions for summary judgment, to which Patel responded. Ultimately, the trial court granted the defendants’ motions for summary judgment and ordered that Patel take nothing. This appeal followed.

Standard of Review

In reviewing- a traditional motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;
3.Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

See id. at 548-49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c). A movant must either negate at least one essential element of the nonmovant’s cause of action, or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See Tex.R. Crv. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).

Malooly Issue

In his first issue, Patel argues generally that the trial court’s grant of summary judgment must be reversed because Ap-pellees failed to prove their entitlement to judgment as a matter of law." We interpret Patel’s first issue as a general assignment of error. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120 (Tex.1970); Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 804 (Tex.App.Beaumont 1990, no writ); see also Dubow v. Dragon, 746 S.W.2d 857, 859 (Tex.App.Dallas 1988, no writ) (where there is no general point of error complaining of the granting of summary judgment, if there is another possible ground, which is not attacked by point of error, on which the judgment could have been entered, the judgment must be affirmed); King v. Texas Employers’ Ins. Ass’n, 716 S.W.2d 181, 182-83 (Tex.App.Fort Worth 1986, no writ) (because summary judgment may have been granted, either properly or improperly, on a ground set forth in the motion for summary judgment, which ground was not challenged by point of error by the appellant, the summary judgment must be affirmed); Rodriguez v. Morgan, 584 S.W.2d 558, 559 (Tex.Civ.App.Austin 1979, writ refd n.r.e.) (although the appellant from the summary judgment stated some specific points of error, the trial court may have based the summary judgment on a ground not specifically challenged by the appellants by assignment of error or by briefing). For the reasons set forth below, Patel’s first issue is sustained in part, and overruled in part.

Takings Claim

In his second issue, Patel contends that the trial court erred in granting summary judgment on his “takings claim” under the Texas Constitution.

Governing Law

Article I, section 17 of the Texas Constitution provides that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made....” Tex. Const. Ann., art. I, § 17; see Knowles v. City of Granbury, 953 S.W.2d 19, 23 (Tex.App.Fort Worth 1997, pet. denied). To recover under article I, section 17, a plaintiff must prove that (1) the government’s intentional acts (2) resulted in a taking of the plaintiffs property (3) for public use. See City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.Eastland 1986, writ refd n.r.e.). “Inverse condemnation” occurs when property is taken, damaged, or destroyed for public use without process or without proper condemnation proceedings, and the property owner attempts to recover compensation. See City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex.1971); Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.App.Houston. [1st Dist.] 1989, writ denied).

“Public Use”

In general, property is taken for a public use only when there results to the public some definite right or use in the undertaking. See Bay Ridge Util. Dist. v. 4M Laundry, 717 S.W.2d 92, 101 (Tex.App.Houston [1st Dist.] 1986, writ ref'd n.r.e.). Whether a taking of property is for public use is a judicial question. See Housing Auth. of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 84 (1940); see also Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 704 (1959).

The City argues that the properties were condemned based on their substandard condition as a measure to prevent harm to its citizens. The City attempts to distinguish the facts in the instant case from a scenario wherein a city condemns property to use as a park or government facility, or from which to otherwise derive some sort of affirmative benefit.

Patel argues that the orders for the demolition of each of his properties evidence that the properties were taken for public use. The orders to which Patel refers state, in pertinent part,

[T]he Board finds from evidence presented at the public hearing that the buildings are in violation of the standards set forth in Article IV of Chapter 4 of the Everman City Code and that the defects or conditions exist to the extent that the life, health, property or safety of the public are endangered.

In support of his argument, Patel cites City of Houston v. Crabb, 905 S.W.2d 669 (Tex.App.-Houston [14th Dist.] 1995, no writ). In Crabb, the court explained that the term “public use” includes matters of public health and public safety. Id. at 674. The City has cited no authority in its brief, nor are we aware of any such authority, that would cause us to conclude that the interpretation of the term “public use” set forth in Crabb is incorrect. We conclude that the language in the aforementioned orders for demolition evidences that the properties in question were demolished for “public use.” As the City’s summary judgment evidence does not contradict the underlying reason for the demolition, as set forth in its orders, it has failed to negate the evidence supporting the “public use” element of Patel’s takings claim.

Consent

Patel next argues that the trial court erred in finding that he consented to the demolition' of his properties. Consent is an affirmative defense to Patel’s takings claim, as to which the City has the burden of proof. See Crabb, 905 S.W.2d at 674-75.

The City argues that Patel consented to the demolition of fifteen of his properties by failing to comply with the terms of the agreed order. It is well established that “a court cannot render a valid agreed judgment absent consent at the time it is rendered.... ” Reppert v. Beasley, 943 S.W.2d 172, 174 (Tex.App.-San Antonio 1997, no writ). The record does not indicate that Patel has successfully challenged the validity of the agreed order. Thus, it follows that he consented to the order.

An agreed judgment is contractual in nature; in effect it is a written agreement between parties, as well as an adjudication. See Sanderlin v. Sanderlin, 929 S.W.2d 121, 122 (Tex.App.-San Antonio 1996, writ denied). Here, pursuant to the agreed order, Patel was obligated to “repair [the] property so it is in compliance with all city codes for the City of Everman.” The order further states as follows:

In the event that each and every unit is not in compliance with the City of Ever-man City Codes by February 9, 1998, then in that event this Order and any Temporary Injunction shall expire and the City of Everman shall be permitted to demolish all units and property listed above without further notice and without further Court action.

Thus, if there exists uncontroverted summary judgment evidence supporting that Patel failed to repair each of the fifteen properties so that they were each in compliance with city codes for the City of Everman, it is reasonable to conclude that Patel consented to the demolition of these fifteen properties.

Patel first argues that the only conditions identified by the City in 1997 that gave rise to the agreed order were (1) boarded doors and windows and (2) exteri- or graffiti damage, both of which were rectified by the designated date, and that these conditions were in the minds of the parties when the agreed order was entered. Patel further contends that his signature on the agreed order cannot constitute consent to abide by ordinances that were not in effect at the time he entered into the agreement.

When construing an agreed judgment, as with a contract, the court’s primary concern is to give effect to the written expression of the parties’ intentions, and the judgment should be construed to give effect to its ordinary meaning and the objective intent of the parties as expressed in the writing. See Sanderlin, 929 S.W.2d at 123; Harvey v. Harvey, 905 S.W.2d 760, 764 (Tex.App.Austin 1995, no writ). In construing an agreed judgment, the judgment will be read as a whole, see, e.g., Grain Dealers Mutual Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997), and if its terms are plain and unambiguous, the intent of the parties will be gathered from such terms. See Evans v. Williams, 194 S.W. 181, 185 (Tex.Civ.App.Austin 1916, writ ref'd). An alleged oral agreement in conflict with the provisions of an agreed judgment is properly disregarded. See Giraud v. Reserve Realty Co., 94 S.W.2d 198, 198 (Tex.Civ.App.San Antonio 1936, writ ref'd).

The agreed order in the instant case is not ambiguous. Patel was obligated to repair the subject property so that it was in compliance with all city codes for the City of Everman. The reference to “all city codes” does not support Patel’s interpretation that the parties intended to limit the repairs to the boarded up doors and windows and the graffiti on the buildings’ exteriors. Furthermore, the agreed order did not except Patel from potential changes in the City’s building ordinances between the date the agreed order was entered and the deadline for compliance set forth therein. It is axiomatic that our laws are ever-evolving, and the citizenry has an obligation to abide by the law even as it changes. In the instant case, Patel has neither attacked the validity of the substance of the new ordinances enacted by the City, nor the process by which they were enacted. Based on our reading of the agreement, we conclude that the February 9, 1998 deadline for compliance with the Everman City Codes indicates that the standard for compliance is the applicable ordinance as it existed at the time of the February 9,1998 deadline.

Patel next argues that the evidence does not establish that Patel’s properties were not in compliance with relevant provisions of the Everman City Codes on February 9, 1998 as Killebrew’s observations cited in Appellees’ motion- for summary judgment were controverted by Patel’s own deposition testimony. However, as Patel concedes in his brief, his deposition testimony reflects that he was in violation of at least one provision of the Ever-man City Codes. Specifically, Patel agreed with regard to each of the properties subject to the agreed order that the City’s substandard building declaration was accurate concerning a code violation described as a health hazard related to the properties’ plumbing. Specifically, Patel acknowledged that there were vacuum breakers missing on each building’s respective hose bibb. Therefore, we conclude that the summary judgment evidence establishes that Patel’s buildings were not in compliance with “all city codes,” on or before the February 9, 1998 deadline as required by the agreed order.

Patel further argues that the City cannot rely on the agreed order in that the City failed to comply with its obligations to “reasonably cooperate with Patel and ... not interfere in the repair process.” Specifically, Patel argues that the City failed to fulfill its obligations as follows:

1. Master electrician, Roel Garcia, went to pull electrical permits for Patel’s buildings in 1998 and was told by a City Employee that he could not use the permits because the City was going to demolish Patel’s buildings.
2. Patel was told by Killebrew that he could not enter his buildings or make repairs and the demolition order was made.

Where a party does not comply with his obligation under a plain provision in an agreed judgment, he is not entitled to complain of the failure of the other party to comply with his respective obligations under the agreed judgment. See Giraud, 94 S.W.2d at 199. Here, Patel’s deposition testimony reflects that Roel Garcia attempted to secure permits from the City at some time between February 20, 1998 and April 16, 1998. Similarly, it is apparent from the record that the exchange between Patel and Killebrew outlined above took place after the February 9,1998 deadline. Therefore, since the incidents set forth above occurred subsequent to the February 9,1998 deadline mandated by the agreed order, the City was already entitled to demolish Patel’s properties subject to the order “without further notice and without further Court action.” Reading the provisions of the agreed order in conjunction with one another, Patel’s opportunity to repair his buildings ended on February 9, 1998. It follows that the City’s obligation to reasonably cooperate with Patel and not interfere in the repair process ceased on that date as well.

Finally, Patel argues that he was denied notice of his need to present evidence of repairs, and thus, his failure to present evidence does not constitute an affirmative act of consent to the City’s demolition of his properties. Yet, as set forth above, the record reflects that Patel affirmatively consented to the terms of the agreed order. The record further reflects that Patel did not repair his buildings so that every unit was in compliance with the City of Everman City Codes by February 9, 1998. As such, pursuant to the terms of the agreed order, the City was permitted to demolish all units and property listed in the order without further notice and without further court action. The City expressly stated that it was not waiving its rights under the agreed order by conduet-ing a public hearing. Patel consented to the demolition of his properties by consenting to the terms of the agreed order and failing to meet his obligations therein by the February 9, 1998 deadline. Events that took place subsequent to the February 9, 1998 deadline are not relevant.

Patel notes that if we conclude that he consented to the demolition, such consent is only effective as to the properties covered by the agreed order. We agree. As such, we conclude that the trial court properly held that Patel consented to the demolition of the fifteen properties referenced in the agreed order.

Nuisance

Patel further argues that the trial court erred in granting summary judgment in favor of the City based on the defense of nuisance. The City argues that Patel’s takings claim fails because the summary judgment evidence demonstrates that Patel’s properties constituted a nuisance as a matter of law.

Where a plaintiff establishes that a governmental entity intentionally destroyed his property because of a real or supposed public emergency, the government entity may then defend its actions by proof of a great public necessity. See Crabb, 905 S.W.2d at 674-75. In other words, the governmental entity has to show that the property destroyed was a nuisance on the day it was destroyed. Id. at 675.

A public nuisance is maintained (1) by act, or by failure to perform a legal duty, (2) intentionally causing or permitting a condition to exist, (3) which injures or endangers the public health, safety, or welfare. See LJD Properties, Inc. v. City of Greenville, 753 S.W.2d 204, 207 (Tex.App.Dallas 1988, writ denied). The government may abate public nuisances by virtue of its police powers. ‘ See id.

In its amended motion for summary judgment, the City appended evidence relevant to the issue of whether conditions existed on Patel’s property at the time of the demolition thereof which endangered the public health, safety, or welfare. Among the evidence presented is testimony from Killebrew’s affidavit, summarized as follows:

• The roofs on Patel’s apartments had been substantially modified in violation of the Uniform Building Code such that they posed a threat to any occupants as the construction standards used in the roofs had not been verified by a building official.
• Each of Killebrew’s substandard building reports indicated that the respective building was, due to the violations chronicled therein, “... a hazard to the public heath, safety and welfare.” The “violations found on Patel’s properties posed a threat to the public health, safety and welfare of the citizens of Everman.”
• Subsequent to the March 5,1998 hearing, Patel did not notify Killebrew that he had cured any of the code violations or provide invoices demonstrating the correction of said violations.

In his deposition testimony, Patel denied the existence of all of the problems set forth in each of Killebrew’s substandard building reports, save for missing vacuum breakers on a hose bibb, which Patel testified that he had fixed as to every building prior to its demolition.

We iterate that we must review the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. See Nixon, 690 S.W.2d at 548-49. The City attacks Patel’s deposition evidence as conclusory and points out that it objected to such testimony at the trial court. However, there is no indication that the trial court sustained the City’s objection to Patel’s testimony or struck Patel’s deposition testimony. Moreover, the City has not properly brought an issue on appeal challenging the trial court’s consideration of its objection to Patel’s summary judgment evidence. We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Penn, 252 S.W.2d at 932. We conclude that Patel’s deposition testimony raises a fact issue-with regard to the existence of the violations cited in Killebrew’s substandard building reports. Inasmuch as the violations cited in Kille-brew’s reports form the basis of Kille-brew’s statement that buildings were “a hazard to the public heath, safety and welfare[,]” the trial court’s grant of summary judgment on the basis of the city’s defense of nuisance was improper.

Statute of Limitations

Patel next argues that the trial court erred in finding that his claim was barred by a two-year statute of limitations. Patel contends that his claim is one for inverse condemnation. Where property has been “taken,” a plaintiffs right to maintain a cause of action would not be barred until the expiration of the ten-year period necessary to acquire land by adverse possession. Hues v. Warren Petroleum Co., 814 S.W.2d 526, 530 (Tex.App.Houston [14th Dist.] 1991, writ denied). We initially note that the record does not reflect that the City specially excepted to Patel’s pleadings. Thus, we apply a liberal construction of Patel’s pleadings to determine if Patel properly pleaded a claim for inverse condemnation. See Crabb, 905 S.W.2d at 673. To recover under the theory of inverse condemnation, the property owner must establish that: (1) the governmental entity intentionally performed certain acts; (2) that resulted in a taking of property; (3) for public use. Waddy v. City of Houston, 834 S.W.2d 97, 102 (Tex.App.Houston [1st Dist.] 1992, writ denied).

In the case at hand, Patel averred as follows:

Defendant Everman has failed to pay Patel any compensation for the destruction or foreclosure of the above-referenced buildings. Such failure constitutes a taking, damaging or destroying of Patel’s property for public use and benefit without adequate compensation in violation of Article I, Secs. 17 and 19 of the Constitution of the State of Texas.

The City argues that Patel’s case is one related to the “damaging” of property, and thereby, properly subject to a two-year statute of limitations. However, Patel has pleaded that the City’s actions amounted to either taking, damaging, or the destruction of his property for public use. Patel further states in his petition, “To date, all but two of the above-referenced buildings have been demolished.” Patel has pleaded facts that give proper notice of his claim that the City intentionally demolished his property for public use. A petition is sufficient if it gives fair notice of the facts relied upon, enabling the defendant to prepare a defense. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000) (citing Broom v. Brookshire Bros., Inc., 923 S.W.2d 57, 60 (Tex.App.Tyler 1995, writ denied)). Furthermore, the record clearly indicates that the property located at 410 Race Street was demolished. See Crabb, 905 S.W.2d at 672-74 (court held taking occurred where city demolished building for the public use even though the underlying property retained a value of $5,000). Thus, we conclude that Patel properly pleaded a claim for inverse condemnation. Id. Therefore, the trial court improperly found that Patel’s claim was governed by a two-year statute of limitations.

With respect to his argument that the trial court erred in granting the City’s motion for summary judgment on its affirmative defense of consent, Patel’s second issue is overruled. The remainder of Patel’s second issue is sustained.

Dub Process

In his third issue, Patel argues that the trial court erred by granting summary judgment in the City’s favor on his state due process claim. The due process provisions of the Texas Constitution do not provide for a cause of action for damages, but rather only for direct claims seeking equitable relief. See Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 816 (Tex.App.Texarkana 2003, no pet.); see also City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex.1995) (concluding with regard to speech and assembly clauses, that no historical underpinnings or text of the Texas Constitution implied a cause of action for damages for unconstitutional conduct); Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857, 872-73 (Tex.App.Amarillo 1993, writ denied).

Patel contends that his is a claim in equity requiring compensation. Yet, where, like Patel, a party seeks monetary damages, he seeks a legal remedy, not an equitable one. See Securtec, Inc., 106 S.W.3d at 816. Further, Patel argues that, in other contexts, courts have found a private cause of action to exist despite the absence of an express provision for a private right of action. The cases cited by Patel in support of his proposition, Nixon, 690 S.W.2d at 549 (Tex.1985), Dann v. Studebaker-Packard Corp., 288 F.2d 201, 209 (6th Cir.1961), and Caskey v. Bradley, 773 S.W.2d 735, 738 (Tex.App.Fort Worth 1989, no writ), are inapplicable to the issue before us. As such, we hold that Patel seeks relief that is unavailable for the City’s alleged violation of his rights under Article I, section 19 of the Texas Constitution. Patel’s third issue is overruled.

Trespass and Conversion Claims

Patel’s fourth issue concerns his claims of trespass and conversion against Kille-brew and MCA.

Res Judicata

Patel first argues that the trial court erred in granting Appellees’ motion for summary judgment on their affirmative defense of res judicata. Appellees argue that the United States District Court for the Northern District of Texas’s order granting summary judgment in Appellees’ favor in Cause No. 4:99CV982BE; Jayanti Patel v. City of Everman, Tom Killebrew d/b/a Metro Code Analysis, 2001 WL 11074 (N.D.Tex. Jan.3, 2001) is res judica-ta as to Patel’s claims for trespass and conversion.

The doctrine of res judicata is an affirmative defense. See Tex.R. Crv. P. 94. In the case at hand, since Appellant’s federal lawsuit proceeded to judgment first, we must apply federal principles of res judicata. See Fernandez v. Mem’l Healthcare Sys., Inc., 896 S.W.2d 227, 230 (Tex.App.Houston [1st Dist.] 1995, writ denied) (citing Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex.1990)). Under federal law, res judicata will apply if (1) the parties are identical in both suits; (2) the prior judgment is rendered by a court of competent jurisdiction; (3) there is a final judgment on the merits; and (4) the same cause of action is involved in both cases. Id.

Here, the parties are identical in both suits. Patel argues that it is clear that no final judgment on the merits was issued on his trespass and conversion claims by any court whatsoever, let alone a court of competent jurisdiction. Patel bases his argument on the trial court’s order dismissing his takings claims for want of jurisdiction. In its order, the federal court stated as follows:

The court retains federal questions jurisdiction over Patel’s substantive due process, equal protection and racial discrimination complaints. Patel’s remaining complaints are dismissed as they are not yet ripe for determination.

In his response to Appellees’ motion for summary judgment, Patel contended that it was clear that his claims of trespass and conversion were inherently intertwined with his takings claim, which the federal court dismissed as not yet ripe.

Court of Competent Jurisdiction

As Patel claims that the district court was not a court of competent jurisdiction, we will address this element of res judicata first. Res judicata, or claim preclusion, bars all claims that were brought, or could have been brought, in a previous action. Fernandez, 896 S.W.2d at 232 (citing Langston v. Insurance Co. of N. Am., 827 F.2d 1044, 1047 (5th Cir.1987)). When a lawsuit is brought in federal court, and there is no jurisdictional obstacle to advancing state law claims, res judicata bars any effort to assert the state law claims in a separately filed lawsuit. Fernandez, 896 S.W.2d at 232 (citing Eagle Properties, Ltd., 807 S.W.2d at 718). When a federal claim and a state claim are combined in one lawsuit, and derive from a common nucleus of operative facts, a federal court has the power to adjudicate the state court claim, under the doctrine of pendent jurisdiction. Fernandez, 896 S.W.2d at 232 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). To determine whether the omitted state claims could have been brought in the federal action, we must (1) determine whether the federal court possessed jurisdiction over the omitted claim; and (2) whether the federal court would have clearly declined to exercise that jurisdiction. Fernandez, 896 S.W.2d at 232 (citing Jeanes v. Henderson, 688 S.W.2d 100, 104 (Tex.1985)).

A comparison of Patel’s state court petition and his federal complaint demonstrates that the facts alleged are virtually the same. More specifically, with respect to his allegations against Killebrew and MCA, in his federal complaint, Patel alleged as follows:

Shortly after the injunction was denied, the City of Everman proceeded to demolish each building owned by Patel. During this process, Adam Killebrew, acting on behalf of Tom Killebrew, went through Patel’s buildings knocking holes in Patel’s walls and vandalizing Patel’s buildings.

Similarly, in his petition in the case at hand, with respect to Appellees Killebrew and MCA, Patel pleaded as follows:

In May of 1998, Defendant Metro Code Analysis, L.L.P., by and through Defendant Tom Killebrew, directed its agents and/or employees to loot and vandalize Patel’s fourplexes which included breaking light fixtures, windows, and thermostats, and taking doors and electrical boxes.

Based on our reading of Patel’s pleadings in both his federal and state lawsuits, we conclude that both lawsuits are derived from a common nucleus of operative facts.

Patel’s argument relates more closely to the question of whether the federal court would have clearly declined to exercise jurisdiction over his trespass and conversion claims. In its memorandum opinion dismissing Patel’s takings claims, the court stated as follows:

Patel’s claims of an unlawful taking without just compensation are premature. His claims under the Takings Clauses of the state and federal constitutions must be dismissed for lack of jurisdiction. His claim of denial of procedural due process, being dependent on the factual development of his takings claims, is also unripe. Similarly, his complaints regarding Section 214.001 of the Texas Local Government Code and the Everman City Ordinance governing demolition of substandard properties are intertwined with his allegations that his property was taken without just compensation and thus not ripe until his Takings Clause claims are resolved. Dismissal of the foregoing claims, however, does not render federal question jurisdiction nonexistent. Patel has raised claims involving federal substantive due process, equal protection, and race discrimination that exist independent of the Takings Clause. These complaints stem from the City Council’s vote to raze his property and will remain even if he seeks or recovers just compensation for the demolition of his buildings. The court retains federal question jurisdiction over Patel’s substantive due process, equal protection, and racial discrimination complaints.

Thus, Patel contends that his trespass and conversion claims were inherently intertwined with his takings claim and would have, had he asserted them, been dismissed as well.

As set forth in the federal court’s opinion, the claims it retained would remain even if Patel sought or recovered just compensation for the demolition of his buildings. To recover for conversion, a plaintiff must prove that (1) the plaintiff owned, possessed, or had the right of immediate possession of the property, (2) the property was personal property, (3) the defendant wrongfully exercised dominion or control over the property; and (4) the plaintiff suffered injury. See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 391 (Tex.1997); United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147-48 (Tex.1997). To recover for trespass to real property, a plaintiff must prove that (1) the plaintiff owns or has a lawful right to possess real property, (2) the defendant entered the plaintiffs land and the entry was (a) physical, (b) intentional, and (c) voluntary, and (3) the defendant’s trespass caused injury to the plaintiff. See Pentagon Enters, v. Southwestern Bell Tel. Co., 540 S.W.2d 477, 478 (Tex.App.Houston [14th Dist.] 1976, writ ref d. n.r.e.). While Killebrew’s acts as alleged by Patel arose from the same nucleus of operative facts— the City’s destruction of Patel’s properties — such acts are not intertwined with Patel’s takings claim. Indeed, Patel has not pleaded in the instant case that Kille-brew or MCA are somehow liable under Article I, section 17. We conclude that the specific allegations giving rise to Patel’s trespass and conversion claims are not so inextricably intertwined with the allegations giving rise to his inverse condemnation suit so as to cause us to further conclude that the federal court would have clearly declined to exercise its jurisdiction thereon.

Remaining Elements

The federal courts have adopted the “transactional test” for determining whether two complaints involve the same cause of action for purposes of res judica-ta. Fernandez, 896 S.W.2d at 231 (citing Agrilectric Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663, 665 (5th Cir.1994)). Under this approach, the critical issue is not the relief requested or the theory asserted, but whether the plaintiff bases the two actions on the same nucleus of operative facts. Id. As set forth above, based on a comparison of Patel’s pleadings in his federal suit with his pleadings in the case at hand, we have concluded that the two actions arise from the same nucleus of operative facts.

Furthermore, the record indicates that subsequent to its dismissal of Patel’s takings claims and related claims, the trial court entered a final summary judgment as to Patel’s claims for equal protection, substantive due process, and race discrimination. We hold that the trial court did not err in granting Appellees’ motion for summary judgment on its affirmative defense of res judicata. Patel’s fourth issue is overruled.

No-evidence Motion for Summary Judgment

In his fifth issue, Patel argues that the trial court erred in granting Appellees’ no-evidence motion for summary judgment. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. The mov-ant need not produce any proof in support of its no-evidence claim. See id.; see also Judge David Hittner and Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998). The motion must be specific in alleging a lack of evidence on an essential element of a cause of action, but need not specifically attack the evidentiary components that may prove an element of the cause of action. See Denton v. Big Spring Hosp. Corp., 998 S.W.2d 294, 298 (Tex.App.Eastland 1999, no pet.). Once a no-evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316-17 (Tex.App.Houston [14th Dist.] 1999, no pet.). A no-evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. See Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

On appeal, we will uphold a no-evidence summary judgment only if the summary judgment record reveals no evidence of the challenged element, i.e., (a) a complete absence of evidence as to the challenged element; (b) the evidence offered to prove the challenged element is no more than a mere scintilla; (c) the evidence establishes conclusively the opposite of the challenged element; or (d) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove the challenged element. See Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex.App.San Antonio 2000, pet. denied) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)).

In the case at hand, we need not reach the issue of the propriety of the trial court’s order granting Appellees’ no-evidence motion for summary judgment as to Patel’s claims of trespass, conversion, or due process as we have concluded that the trial court properly granted Appellees’ traditional motion for summary judgment with regard to such claims. In its brief, the City argues that the trial court properly granted its no-evidence motion for summary judgment with regard to Patel’s takings claim as well. Specifically, the City argues that Patel can provide no evidence that (1) his properties were taken for “public use” andi/or (2). the City acted beyond its reasonable exercise of police power.

To iterate, in order to recover under article I, section 17, a plaintiff must show that (1) the government’s intentional acts (2) resulted in a taking of the plaintiffs property (3) for public use. See Smithwick, 721 S.W.2d at 951. As set forth above, there is some evidence supporting that Patel’s properties were taken for “public use.” As to whether the City acted beyond its reasonable exercise of police power, the City contends that since, as it alleged, Patel’s properties constituted a nuisance as a matter of law, it “lawfully exercised its police powers by ordering the repair and then demolition” of the properties. However, since the City had the burden of proving that Patel’s properties constituted a nuisance as a matter, of law, see Crabb, 905 S.W.2d at 674-75, it was not entitled to move for a no-evidence motion for summary judgment on such a ground. See Tex.R. Civ. P. 166a(i). Even so, as set forth above, we concluded that the trial court’s grant of summary judgment on the basis of the city’s defense of nuisance was improper because Patel’s deposition testimony raised a fact issue as to nuisance. We hold that the trial court incorrectly granted the City’s no-evidence motion for summary judgment as to Patel’s takings claims inasmuch as such claims are not otherwise barred by the trial court’s grant of summary judgment in the City’s favor on its affirmative defense of consent. Patel’s fifth issue is sustained in part.

Conclusion

We conclude that the trial court incorrectly granted summary judgment on Patel’s takings claim other than ás to the City’s affirmative defense of consent, as to which summary judgment was appropriate. Therefore, we have sustained in part, and overruled in part, Patel’s issues one, two, and five. We have also overruled Patel’s issues three and four. Accordingly, we reverse the trial court’s order granting summary judgment in favor of the City and remand the cause for further proceedings consistent with this opinion with regard to Patel’s takings claims as to the following properties, which are not subject to the City’s affirmative defense of consent: 403 Lee Street, 410 Race Street, 405 King Street, and 403 King Street. In all other respects, we affirm the trial court’s order granting summary judgment.

      . Patel testified that inspections were performed on all thirteen roofs by a "city official,” but that he did not receive a "green tag” or written certificate of completion from the City concerning the new roofing.

      . Tex.R. Civ. P. 166a(c).

      . The City’s argument on appeal is the same as in its first amended motion for summary judgment.

      . In making this statement, we do not discount Patel’s argument that the City did not fulfill its obligations pursuant to the agreed order. Patel's argument is addressed below.

      . As a property owner, the record reflects that Patel was subject to the building ordinances enacted by the City as such ordinance related to "dangerous and substandard” buildings. The record further reflects that the City’s Home Rule Charter empowered the City to amend ordinances.

      . Roel Garcia’s affidavit testimony does not specify a date other than the general statement that he attempted to obtain such permits during 1998.

      . The record indicates that the City sent Patel a letter advising him of a hearing to be conducted concerning the substandard condition of his properties. However, the City stated in the letter that it was not waiving its rights under the agreed order by conducting a public hearing.

      .Later in his brief, Patel argues that the trial court erred in granting summary judgment as to his claim of "bad faith taking,” a form of inverse condemnation. See, e.g., Westgate, Ltd. v. State, 843 S.W.2d 448, 454 (Tex.1992). Assuming that Westgate provides for a "bad faith takings” claim, the actions Patel cites as constituting "bad faith” are not raised in conjunction with Patel’s argument that the City failed to cooperate under the agreed order. Thus, Patel has waived any argument that the "bad faith” actions of the City underlying his inverse condemnation claim amounted to a breach of the City’s obligations pursuant to the agreed order. See Tex.R.App. P. 38.1(h). Furthermore, the City’s consent defense would serve to bar Patel’s takings claims, with or without the element of bad faith.

      . The properties subject to the agreed order are as follows: 404 Noble Street; 302 Race Street; 306 Race Street; 308 Race Street; 310 Race Street; 312 Race Street; 402 Race Street; 406 Race Street; 408 Race Street; 412 Race Street; 414 Race Street; 404 King Street; 406 King Street; 408 King Street; and 502 Race Street. The record reflects that the property at 302 Race Street was not demolished and is not subject to the instant suit.

      . As Patel consented to the demolition of the properties detailed in note 9, our discussion of the City’s nuisance defense shall concern only the properties located at 403 Lee Street, 410 Race Street, 405 King Street, and 403 King Street.

      . Among the remaining properties subject to our discussion, the only property potentially barred by the City’s statute of limitations defense is the property located at 410 Race Street. The record reflects that Patel brought suit concerning the remaining three properties within two years of their demolition.

      . Patel notes that "the violation of [his] due process rights has effected a damage that cannot be remedied by the mere reinsurance of an overdue notice or rehearing on the condition of now-destroyed buildings.”

      . Nixon and Caskey set forth the rule that negligence per se can arise from an unexcused violation of a statute. See Nixon, 690 S.W.2d at 549; Caskey, 773 S.W.2d at 738. Dann concerns the question of whether an investor may bring an action in his own behalf in lieu of waiting for the Commission to bring it for him under the Securities and Exchange Act. See Dann, 288 F.2d at 208.

      . Patel states in his brief that he is not challenging the trial court’s rendition of summary judgment with respect to his claim for destruction of property. For ease of reference, Killebrew and MCA will be referred to collectively as "Appellees.”