### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00373- CV

Trudy’s Texas S tar, Inc. d/b/a S outh Congress Café, Appellan t

v. City of Austin , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GV-0 5-0 0452 6, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

O P I N I O N

This case require s us to consider circ umstances in which a municipality ’s reg ulatory discretion can be limit ed by estoppel or contra ct. Trudy ’s Texas Star, I nc. d/b/a South Congr ess Café (Trudy ’s) appea ls a final s u m mary judgme nt g ranting the City of Austin decla ratory and injunctive relief requiring Trudy ’s to tear down an out d o o r d eck and other improvements it had constructe d behind an exis ting restaur ant building. There is no dispute that Trudy ’s constructe d the improvements without obtaining advanc e approva ls and permits from the City , as the City Code require s. Howeve r, Trudy ’s has prese nted summary -jud g me n t e v id e n c e th a t th e Ci ty n o t in f

r equently allows landowner s who have built improvements without require d approva ls and permits to obtain them retroa ctively , that the City aff orded Trudy ’s that opp o rt u n i t y here , and that the City even memorialized an obliga tion to provide Trud y ’s that opportunity in a Rule 11 ag ree ment. Having done this, the City , Trudy ’s complains, t h en g ave Trudy ’s repr esenta tions and assura nces foralmost eig ht months that it could bring its improv em en ts into compliance with applicable City

parking require ments by p ro v iding one handica pped parking space off- site and induced Trudy ’s
to incur substantial expenses and inconvenienc e satisfy in g various City reg ulatory demands in

secur ing tha t off-site ha

ndicappe d parking space . Then, afte r initially approving Trudy ’s site plan (the linchpin in the City ’s land-use approva l proce ss), the C i t y , Trudy ’s complains, reve rsed its position in response to neig hborhood opposition and asser ted that Trudy ’s could not provide the handica pped parking space off- site afte r all. I n short, Trudy ’s complains that the City induced it for months to pursue, at g rea t expense and inconvenienc e, an objective that the City now maintains was

an exerc ise in futility

.

On appea l, Trudy ’s challeng es the summary judgme nt in four issues. I n its first issue, it arg ues that the summary -judg ment evidenc e raised a fac t issue as to an aff irmative defe nse that estoppel bound the City to act cons i s t ently with its prior assura nces that Trudy ’s could satisfy City parking require ments by pro v i d i ng the handica pped space off- site. I n its second and third issues, T ru d y ’s co n t ends that fac t issues rema in as to whether the City brea ched o b l i gations under the Rule 11 ag ree ment with Trudy ’s, which g o to both aff irmative defe nses and counter claims that Trudy ’s has asser ted. Finally , in its fourth issue, Trudy ’s asser

ts that the district court’s judgme nt g rante d relief not raised or reque sted in the City ’s
summary -judg ment motion.

Guided by rec ent Texas Supreme Court prec edent, we cannot conclude that the
summary -judg ment evidenc e would support estopping the C i t y u n d er the circ umstances here

. Howeve r, we will sustain each of Trudy ’s other issues, r ever se the judg ment, and re mand.

2BACK GR OUND The parties’ dispute arose ag ainst the backdr op of th e C i ty ’s land-use and development reg ulations, so a b ri ef summary of rele vant require ments is helpful in setting

t h e co n text for their respe ctive contentions. A person seeking to use or develop private proper t y in the City may be require d to obtain City approva ls with resp ec t t o (i n this order ): (1) zoning, (2) su b d i vision restric tions, (3) a “site plan,” and (4) building permits. Austin, Tex., Code of Ordinanc es § 25-1-61 (2009) (City Code). The first lay er of restric tions, zoning ordinanc es, impose 1
g ene ra l limit ations on how proper ty can be used (e.g ., “commer cial”) and presc ribes various restric tions tied to such cate g ories of uses. The second lay er, subdivision restric tions, do not appea r to be immediately

rele vant her e. Centra l to this appea l, however , is the site plan require ment. Be fore a person may “cha ng e the use of proper

ty ” or “dev elop proper

ty ,” and befor e the City issues a building permit allowing the person to d o s o , t h e p erson must secur e the City ’s approva l of a “site plan” that depicts t h e cu rr en t and proposed use of the proper ty and the desig n and lay out of any proposed improvements. See id. § 25-5-1 (2009). The purpose of the site plan require ment is to make the applicant dem o n s t ra t e and to enable the City to asce rtain wh et h er the specific planned use confor ms to zoning and other applicable land development restric tions. Once a site plan is filed, the applicant has 180 day s to convince the City to approve it, althoug h the deadline may be extended. The summary -judg ment evi d en ce re flec ts that site plan
approva l can be a tedious and somewhat unpredic table proce ss. The filed plan is assig ned to a

Where there has been no intervening materia l substantive chang e, we will cite the curr ent 1 version of the City

Code for c onvenienc e. 3team of City “re v i ew er s ” eac h of whom repr esent differ ent are as of land use planning

expertise (e.g

. , t ra n s p o rtation, water quality , etc.)

. The revie wer s are eac h require d to provide
“comments” —basica lly , objections or conce rns reg arding the site plan that, the rec ord indicate s, might or might not be based on any identifiable require ment of law—by a specifie d deadline. Once the revie wer s g ener ate comments, the app licant has the opportunity to addre ss them, prepa re an updated or amende d site plan, and g o throug h the revie w proce ss ag ain. This submissi on may elicit further comments and, depending on the applicant’ s ability or rema ining d esi re to acc ommodate them, the proce ss may continue for still more rounds of site plan updates and comments. Once the City revie wer s’ comments have been addre ssed to their sat i s fa ction, the comments are deeme d “cle are d,” denoting that the City is satisfied that any conce rns have been resolved, and the site plan is approve d. Once the site plan is approved , t h e s i t e p lan is “re lease d” afte r the applicant posts

secur ity and the time for

any appea l of the appr oval expires. See id. § 25-5-43 (2009). Release of the approv ed s i t e plan is the linchpin in the applicant’ s ability to obtain the rema ining permits and approva ls require d to construct the improvement. A building permit may not be issued until the site plan is rele ased, and an applicant may not beg in constructing any improvements called for in the site plan until a building per mit is issued. See id. Among the ty

p e s of comments that may be elicited during the site plan revie w proce ss is any contention by the City that the prop o s ed u se would violate zoning restric tions. I n that instance, the applicant would either have to apply for and ultimately obtain appropr iate z o ning varia nces from the City ’s Boa

rd of Adjustment or chang e the proposed us e to e liminate the violation.

4Simi l ar l y , i f the revie wer s deter mine that the proposed use would include an incursion into City rig ht-of-w ay , both a license and spec ial permit for the use ar e re quired.

I n addition to obtaining site plan a pproval whe n require d, an applicant must obtain building permits befor e beg inning new construction or additions, altera tions, or repa ir to a building

or structure

. See id. §§ 25-11-32, 25-11-33 (2009). These may include permits rela ted to plumbing, mecha nical (e.g ., air conditioning) , elec trical, fi re and other safe ty require ments. Fur ther, once building permits are secur ed and construction is completed, the building cannot be used until the work passes City building permit compliance inspections and t h e C i t y issues a cer tificate of
occupa ncy . See id. §§ 25-11-111, 25- 1-361.
A g a in s t th is r e g

u la to r y b a c k d r o p , T r u d y ’ s , w h ic h a lr e a d

y o p e rate d sever al Austin-are a
restaur ants, decide d in the ear ly 2000s to open a new restaur ant—the South C o n gress Café—at 1600 South Congr ess Avenue (the southwest corne r of South Congr ess and West Monroe)

. At the time Trudy ’s beg an prepa rations to open the Sou t h C o n gress Café, the front or westmost portion of the lot at 1600 South Congr ess (the portion clos est to South Congr ess) contained an exis ting building that had been used as a restaur ant for s ev er al y ea rs , while the easte rn half consisted of a dirt and g rave l y ard. Trudy ’s plan was to remode l the exis ting building and, at some p o i n t i n the future, construct a deck over the g rave l y ard out back. The City Code g ener ally require s businesses

to “pr o v i d e an off- street parking fac ility ” for “a new building,” “a new use,” “an addition or enlar g ement of a

n exis ting building or use,” or “a chang e in oc cupanc y or opera tion that incr ease s the number of neede d parking space s above the exis ting space s.” See id. § 25-6-471( A) (2009). The number of parking space s a b u s i n ess is require d to provide is calc ulated by a formula applied

5to th e b u i l d i n g’s floor space , and varie s acc ording to the use of the proper ty (e.g ., restaur ant

versus other commerc ial u s es). See id. § 25-6-472 (2009). Howeve r, there was evidenc e that the South Congr ess Café proper ty was subject to a varia

nce dating back to the 1990s that permitted the oper ation of a r estaura nt without providing par

king a nd that Trudy ’s was not require d to file a site plan before remodeling the bui lding. Trudy ’s di d, howeve r, apply for and obtain t he various 2 City building permits require d for it to remode l and open the restaur ant. The permitting, remode ling, inspectio n , and cer

tification proce ss finally conclude d in 2003, and the South Congr ess Café opened f or business.
I n ear ly 2005, Trudy ’s beg an constructing the deck and ot h er i mprovements over the g rave l and dirt y ard behind the exis ting building. The improvements included are as capa ble of being used for outdoor seating , a bar are a with built-in marg arita machines, new plum bing and elec trical outlets, new lighting , landsca ping, and fenc ing. Trudy ’s did not file or obtain approva l of

a site plan befor e beg inning construction, nor did it obtain bu i l d i n g p ermit s befor ehand. Trudy ’s
prese nted summary -judg ment evidenc e to the eff ect that a City inspector had orally assure d it, while i t was remode ling and permitting the restaur ant building, that no additional approva ls would b e

nece ssary for Tr udy ’s planned improve ments behind the building.

The City ref

ere nces additional details reg arding Trudy ’s initial development of the 2 building, ci t i n g as support an exhibi t to its summary -judg ment motion containing Trudy ’s filings with the City prior to the remode ling. Howeve r, this e x hibit, along with se vera l othe rs attache d to the City ’s motion, wer e excluded by the district court o n evidentiar y g rounds, including lack of authentica tion. The City has not appea led or raised a cross-point complaining of the district court’s evidentiar y ruling s. Consequently , in our above summary of the summary -judg ment evidenc e, we do not rely

on the City ’s excluded summary -judg ment evidenc e. 6I n a letter dated Marc h 11, 2005, a City inspector notified Trudy ’s that it had violated

the City Code by constructing its deck and surrounding fenc ing without obtaining app ro v al of a site plan. The City acc uses Trudy ’s of defy ing two previous stop-work order s i ssued by City inspectors, but Trudy ’s prese nted summary -judg ment evidenc e that it did not rec eive notice of any
perc eived violations until it rec eived the City ’s Marc h 11 letter. Subsequently , on April 15, 2005, the inspector wrote Trudy ’s advising that a “follow-up” inspection had reve aled that “the violations have not been corr ecte d” and threa tened criminal char g es—with possible penalties up to $2,000
per day , per violation—if Trudy ’s did not corr ect them. See id. § 1-1-99 (making violation of zoning ordinanc es a Class C misdemeanor offe nse punishable by a fine not to exceed $2,000), § 25-1-462 (providing that a separ ate offe nse is c ommitt ed for eac h day the violation occur s). At some point, the re cord r efle cts, Trudy ’s opene d its deck to customers.

The City filed criminal char g es ag ainst Trudy ’s. The case went to trial in September
2006. A jury found Trudy ’s g uilty of intention al l y d ev elopi ng or chang ing the use of proper ty without having first obtained a site plan that had been approve d and rele ased by the City

. Howeve r, i t as s es s ed punishment at a fine of only one dollar, the minimum permitted by the City Code and jury char g e. The City also filed a ci v i l lawsuit ag ainst Trudy ’s in September 2005. The City
soug ht decla

rations under the Uniform Dec lara tory J udg ments Act that Trudy ’s h ad violated the 3
C i ty Code by failing to obtain require d City permits and approva ls for its improvements an d h ad

See Uniform Dec lara

tory J udg ments Act (UDJA), Tex. Civ. Prac. & Rem. Code Ann. 3 §§ 37.001-.011 (West 2008). 7no rig ht to use the improvements until it secur ed the approva ls. I n particula r, the City alleg ed that Trudy ’s had failed to secur e, befor e constructing t h e improvements, a City -appr oved site plan or building, plumbing, and elec trical permits; had failed to obtain require d building permit inspections; and had constructe d fenc ing, landsca ping, a sidewalk, and pedestria n walkwa y on City rig ht-of-w ay without securing a rig ht-of-w ay construction per

mit or license ag ree ment from the City

. T h e C i t y also soug ht injunctive relief

. Specifica lly , the City soug ht a temporar y
restra ining order and temporar y injunctive relief restra ining Trudy ’s from using its improvements and requiring Trudy ’s to obtain all nece ssary City permits, approva ls, and inspections, in cludi ng site plans and cer

tificates of occupa

ncy , befor e Trudy ’s could resume using th em. I t further
reque sted perma

nent injunctive relief requiring Trudy ’s to tear down the improvement if it could not obtain the re quired a

pprovals and pe rmits within 120 day s after the date of

judgme nt. 4
The injunctive reme dies so u g ht by the City thus contemplated that Trudy ’s might be able to cure any City Code violations b y o b t aini ng any require d City approva ls or
p er m i t s afte r-the- fac t. I n fac t, Trudy ’s prese nted summary -judg ment evidenc e—the testimony of
Geor g e Z apala c, the City ’s development service s manag er—tha t it is fairly commonplace or routine,

occur ring as often as t en or fiftee n times per y ear , for the City to g rant the require d approva ls and permits retroa ctively in instances when proper ty owner s have violated the City Code by constructing improvements without obtaining the a pprovals in adva

nce.

The City also asser

ted—and ultimately obtained summary judgme nt on—c laims r elating 4 to a dispute over Trudy ’s use of lease d space on an adjac ent proper ty , 1602 Congr ess. This portion of the district cour

t’s judgme nt is not at iss ue on appe al. 8The City obtained a hear ing on its TRO reque st for September 29, 2005. Prior to the

hear ing, the parties ag ree d to execute a Rule 11 ag ree ment in lieu of a TRO or temporar y injunction.
I n that ag ree ment, Trudy ’s committed tha t e ffe ctive at midnight on Oc tober 4, 2005, it would stop

u s i n g the deck except for employ ee ingr ess and eg ress until it obtained all require d City permit s , approva ls, and inspections. Trudy ’s also ag ree d that if it violated this restriction, it would pay the City $1,500 per day for such violations. The City ag ree d that Trudy ’s would have the opportunity

to cure its violations by seeking the require d approva ls and permits retroa ctively

. The parties further
ag ree d to a timetable for Trudy ’s to bring its improvements into compliance with the City Code, 5

Parag raph f

ive of the a g ree ment stated: 5 (5) The Def

e n d a n t a g ree s to the following deadlines for the applications, permits, inspections, and appr ovals: (a) By November 3, 2005 (30 day s from October 4, 2005), the Def endant ag ree s to file all nece ssary site plan applications, including r equests for varia nces, if nece ssary , and building permits, if applicable , for the unapprove d development at 1 6 0 0 So u th Co n g r e s s , in cluding the deck, bar, and landsca

ping are a . . . and any nece ssary offsite development, including pa

rking

. (b) The Restrained Party will diligently work to obtain the City ’s approva l within 60 day s from subm itting t he application(s) refer red to in the prec eding para g raph for al l s i te plan submissi ons. The Def endant is responsible for submitt ing all nece ssary information for a complete application. Requests for postponements of board or commission hear ings shall be construed as diligently working toward obtaining city approva l ; h o weve r, any postponements reque sted do not extend the ultimate deadline for the Def endant to have secur ed all require d City

approva ls, permits, ag ree ment, or i nspections by J une 2, 2006. (c) Wit hin 30 day s from the date of the City ’s approva ls or the submitt ed site plan applications, the Def endant shall apply for all rema ining 9with a deadline of J une 2, 2006 by which eac h of “t h e re quired approva ls, permits, ag ree ment,

or inspections” wer e to be “substantially complete.” Trudy ’s ag ree d that “[t] he City will make the deter m i n at i o n of what is ‘substantially complete,’ not the Def endant.” I f these steps wer e deter mined not to be “substantially co m plete” by J une 2, 2006, Trudy ’s ag ree d “to remove the

nece ssary permits, approva ls an d li c e n s es from the City , including but not limit ed to building, technica l (ele ctric, p l u m bing, mecha nical), construction in rig ht of way , and rig ht of way license a g ree ments. (d) Def

endant must diligently work to secur e all rema in i n g City approva ls within 30 day s afte r su b m i t t al of the rema ining permits, approva ls and li cense s; howeve r, i f the re maining approva ls are not secured within 30 day s afte r submitt al, the delay involved does not extend the ultimate deadline for the Def endant to have sec ured all require d City approva ls, permits, ag ree ment, or inspections by J une 2, 2006. (e) Wit hin 90 day s from the date of the City ’s approva ls on the submitt ed site plan applications and rema ining permits, approva ls and licenses, the Defen d an t must complete the construction of all site plan improvements, all structure s, all construction in the rig ht-of-w ay , and all technica l improvements and pass a ll required City inspections. (f) I n the event any of the require d approva ls, p ermits, ag ree ment, or inspections are not substantially complete by J u n e 2 , 2006, the Def endant a g r e e s to r e mo v e th e s tr ucture (s), landsca

ping, deck, fenc e, bar, building(s) , if applicable , plumbing, elec trical work, mecha nical work, or other improvement that has not been approve d by that time.

. . . The City will make the deter mination of what is “substantially complete,” not the Def

endant. Parag raph 6 of the ag ree ment set forth a non-ex cl u s i v e l i st of permits and approva ls that Trudy ’s was to obtain, including “si t e plan application (including parking require ments);” “zoning or rezoning reque sts, if nece ssary ;” “all building permit s , i n cl uding building, plumbing, elec tric, mecha nical, and landsca

pin g; ” “a ll parking require ments or varia nces there of;” licenses and p er m i t s for Trudy ’s construction on City rig ht-of-w ay ; and health depar tment, water utilit y , and Texas Alcoholic B ever ag e Commissi on approva ls. 10structure (s), landsca ping, deck, fenc e, bar, building(s) , i f applicable , plumbing, elec trical work, mecha nical wor k, or other improve ment that has not bee n approve d by that time.”
I n turn, the City ag ree d in para g raph 7 of the ag ree men t t o “re asonably work with [Trudy ’s] to come i n t o co m p liance with the City Code development reg ulations and meet all the application deadlines [specified] above.” Finally , in the concluding para g raph of the ag ree ment, it was ag ree d that “[i] n t h e event that the Defenda nt violates the t erms of this ag ree ment, the C ity
may g o to district court and seek any and all re medies ava ilable to it under this ag ree ment, at l aw, or in equity .” Trudy ’s filed a site plan application on September 15, 2005. Among other issues, it attempted to addre ss a C ity Code require ment that it provide twenty -two par king spa ces, plus one handica pped space; t hi s require ment, in the C ity ’s vi ew, had been trigg ere d by the s quare footag e that Trudy ’s had added in its deck. See id

. §§ 25-6-472( E) (out d o o r s ea t ing are as of restaur ants
g ener ally i n cl u d ed in g ross floor area from which parking space s require ment is calc ulated). The Code authorizes the direc tor of the City ’s Watershed Protection and Deve lopment Review Depa rtment (which, Trudy ’s evidenc e ref lects, is ty

pically deleg ated to lower- level staff who are revie wing eac h site plan applica tion) to approve, “ [a] s part of the site plan revie w proc ess, . . . the location of all or a portion of the require d parking

. . . for a use on a site other than the one on which the use is located” under cer tain conditions. See id

. §§ 25-6-501. A person reque sting to use an offsite parking fac ility is require d to make application to the direc t o r, including submitt ing proof of lea ses or other

rig hts to use the proposed location, and the direc tor (or de leg ee) “may consider” various fac tors in deciding whether to g rant the appli ca t i o n . S ee id

. §§ 25-6-502. Howeve r, the

11direc tor’s (or deleg ee’ s) discretion to allow an applicant to furni s h r e q uired parking off- site is limit ed by the following provision:

A require d parking space for persons with disa biliti es may

not be located in a

n offsite parking fac ility unless the direc tor deter mines that exis ting conditions prec lude on-site par

king.

See id. §§ 25-6-501( E).

I n its September 2005 site plan application, Trudy ’s informed re v i ew er s that its improvements detailed therein had alre ady been constructed. Consist ent wit h the pos ition that its improvements wer e an “existi ng condition” t h at “precludes on-site parking ” under section 25-6- 501(E), T ru d y ’s application proposed to provide the require d parking space s—including the

one handica

pped space— o ff

-si te on a lot owned by the Congr ess Avenue Ba ptist Church at 1601 South C ong ress, a cross Cong ress fr om South Congr ess C afé . Whil e the site plan w as under revie w, Trudy ’s also reque sted a varia nce from the Board of Adjustment exempting it from the ad d i t ional parking require ment. The varia nce was ultimately denied in Fe bruar y 2006 and

rec onsideration wa s denied in Mar ch.

The City issued comments on Trudy ’s site plan o n October 24, 2005. The City i n d i cated ag ree ment with Trudy ’s position that it was permitted to provide the require d parking —including the handica

pped spac e—off

-site. City

revie wer s instructed that Trudy ’s must “[p] rovide ha

ndicappe d acc essible spac e on-site or at ne arest off-site loc ation ” (empha sis added), and even made demands rela ted to the par t i cular off- site parking location Trudy ’s had proposed. The City require d Trudy ’s to provide a copy of its lea se with the churc h and cautioned that off- site

12parking must be paved with asphalt, concr ete, or other hard durable surfa ce. After asce rtaining that

the City did not consider the churc h lot to be “pave d,” Trudy ’s beg an neg otiating a lease for off- site parking at another location, Hudson’s Meat Marke t, located at 1800 S. Congr ess. On Marc h 9, 2006, Trudy ’s filed an updated site plan proposing that the required parking space s—including the handica pped spac e—be loc ated of f-site a t Hudson’s.
As t h e C ity Code’s 180-day deadline for site plan approva l was approa ching , Trudy ’s reque sted and obtained a 60-day extension. Around the same time, on Marc h 27, 2006, the City provided Trudy ’s its comments on the amende d site plan (a few day s afte r its deadline to do so). Reg arding parking , the City ag ain advised that Trudy ’s must “[p] rovide handicap p ed -a cc essible
space on-site or at nearest off-site parking location .” Fur ther ref lecting the view that off- site handica pped parking was permitted, the City also imposed sever al new require ments reg arding the off- site parking , inclu d i n g a “p ar king table

. . . showing the amount and provided parking for the primary use and the use wher e the off- site parking is located,” a “site plan note indicating day s and hours of ope ration for

the proposed use and the uses from which the space s are being lease d,” and pedestria n curb r amps at the e ast and we st intersections of Monroe and South Congre ss. Meanw hile, the Bouldin Creek Neig hborhood Association—an org anization comprised of proper

ty owner s and rente rs in the near by residential neig hborhood which had ong oing

conce rns with South Congr ess developments it perc eived would in cr ea s e parking demand on residential streets—e x presse d conce rns to the City that parking acc ess problems in Hudso n ’s lot would arise during deer season, when Hudson’s (which proce sses meat in addition to selling it) kept hours into the evening s and would thus overla p with the South Congr ess Café’ s evening clientele.

13These complaints prompted the City —still proce eding in the view that off- site handica pped parking

was permitted—to require Trudy ’s to execute a restric tive covena nt p re v en t i n g it from using the deck wh en t h e p arking lot at Hudson’s was unavailable

. Trudy ’s ag ree d to do so. On May 6, Trudy ’s filed another updated site plan. The rec ord contains additional evidenc e of back- and-f orth communications betwee n the City and Trudy ’s conce rning details of its parking lease and the restric tive covena

nt, all consistent with the share d understanding that Trudy ’s alre ady -construc ted improvements wer e “existi ng conditions” that prec luded on-site handica pped parking

. Trudy ’s also
prese nted summary -judg ment evidenc e that City planner s involved in revie wing Trudy ’s site plans had, in fa ct , i n t ernally deter mined that Trudy ’s improvements wer e an “existi ng condition” that
prec luded on-site handica pped parking for purposes of section 25-6-501( E). Am y L ink, one of the transporta tion planne rs involved in the revie w proce ss, f urther acknow ledg ed that the City had
convey ed this position t o Trudy ’s in its sit e plan c omments.

On M ay 17, 2006, the City approve d Trudy ’s amende d site plan and issued the site development permit. Howeve r, the City did not release the plan, the rema ining nece ssary step befor e Trudy ’s could obtain a building permit and proce ed with the other steps in the approva l
p ro ce ss. See id. § 25-5-43. On May 24 (ag ain a few day s afte r its deadline) , the City p ro v i d ed

comments on Trudy ’s most rec ent up d at ed s i t e plan. Comments ag ain included the require ment that Trudy ’s “[p] rovide handica pped acc essible space on-site or at nearest off-site parking location ” (empha sis added) , as well as requiring Trudy ’s to re co rd t he restric tive covena nt. Trudy ’s subsequently filed its executed restric tive covena nt and rec orded it, as t h e C i t y had require d.

14Howeve r, Trudy ’s rema ined in limbo, awa iting rele ase of its site plan, as the Rule 11’s J une 2, 2006

deadline e x pired.

On J uly 11, 2006—over a month afte r t he J une 2 deadline expi red—V icto ri a Hs u , the City ’s direc tor of its Watershed Protection and Deve lopment Review Depa rtment, wrote Trudy ’s counsel advising that Trudy ’s site plan application “does not c omply with City Code require ments and, ther efor e, has be en denie d.” Hsu e labora ted:

On May 17, 2006, the City of Austin approve d the appli cation for the aboveref ere nced site plan. Prior to rele as e o f t h e site plan, the City deter mined that the site plan application was approve d in err or bec au s e i t does not meet City require ments for handica

pped parking

. Section 25-6-501( E) states that “[a] require d parking space for persons with disabiliti es may not be located in an off- site parking fac ility unless the direc tor deter mines that exis ting conditio n s p rec lude on-site parking .” [Your] Site Plan

. . . does not show any on-site par

king f or per sons with disabiliti es. The only acc essible space is located off- site, two blocks awa y from the restaur ant. P rovi ding an acc essible space on-site would require the remova l of a portion of the exis ting deck. Howeve r, since the deck was built without the require d permits, it cannot be considere d an exis ting condition that prec ludes on-site parking

. There fore , beca

use the site plan does not comply with all applicable require ments of the City Code, the prior a

pproval of [Trudy ’s site plan] is rescinded.

I n Hsu’s letter, in other words, the City took the position for the fi rs t t i m e t h at Trudy ’s alre ady

constructe d improvements could not be “existi ng conditions [t hat] prec lude on-site parking ” under City Code section 25-6-501( E) beca use they had been built without obtaining prior City approva ls. This meant that Trudy ’s was require d to pr ovide the handica pped space on-site, which it could not do without de molishi ng some or all of its improveme nts, w hich cover ed the entire back portion of its lot. I t also meant that Trudy ’s months of pursuing off- site parking lease s, restric tive covena nts, and other eff

orts to satisf

y City demands rela ting to handica pped parking

—not to mention the

15expenses it had incurre d in the proce ss—had been, in the City ’s new view, an exercise i n fu t i lity

from it s i n ce p t i o n. Trudy ’s prese nted summary -judg ment evidenc e that it incurre d $179,000 in
expenses in pursuing off- site handica pped parking and try ing to satisfy the City ’s evolving require ments and dema

nds relate d to it. The Ci ty ’s s tance reg arding off- site handica pped parking advocated in Hsu’s l etter

was a complete reve rsal of the position it had maintained—and repe atedly co m m u n i ca ted to Trudy ’s—prior to that time. Trudy ’s prese nted evidenc e that the City ’s ch an g e in position responde d to an intense lobby ing campa ign—ta rg eting City officia ls from the site plan revie wer s up to the then-City Manag er and City Council—spearhe aded by a City Hall lobby ist hired by

another South Con gre s s business, Allen’s Boots, in coordina tion with members of the Bouldin Creek Neig h borhood Association. I n fac t, there was evidenc e that the rationale that Hsu and the City advanc ed to justify its reve rsal—Trudy ’s alre ady -construc ted improvements could not be “existi ng conditions [t hat] prec lude on-site parking ” for purposes of City Code section 25-6-501( E) beca use they had been built without obtaining pr ior City approva ls—was orig inally devised by

the Allen’s
Boots lobby ist. Fur

ther, while the City extol ls its actions as a triumph for public participa tion in the land development proce ss, Trudy ’s prese nted proof (and it appea rs undisputed) that the Ci ty aff orded Trudy ’s no opportunity to be hear d and respond to the arg uments its adver saries wer e raising befor e abruptly reve rsing course and adopting those arg uments. Trudy ’s also p re s ented evidenc e that the City ’s “re scission” of Trudy ’s alre ady

approve d site p l an was unusual and unprec edente d. Z apala c, the City ’s development service s
manag er, who had earne d the m o n i k er o f C ity development “g uru,” testified that he was unawa re

16of the City ever having previously “re scinded” an approve d site plan. I n fac t, as Trudy ’s points out,

the City Code contains no provision authorizing the City to “re scind” an approve d site plan; it speaks only to disa

pproving a site plan application, see id. § 25-5-112( B) , or revoking a rele ased site plan afte r first suspendi n g i t an d aff ording the person notice and an opportunity to cure the problem.
See id. §§ 25-1-412, 25-1-416 throug h -418. Addi t i o n ally , while the City Code provides an administrative appea l for persons ag g rieve d by site plan disapprovals or revoc ations, see id. §§ 25-1- 461, 25-5-112( C), there is, of course, no appea l proce dure e x plicitly provided for

“re scissions” of
approve d site plans, as t h e C o d e d o es not contain a “re scission” proce dure. Trudy ’s nonetheless filed an a dminist rative a

ppeal of the C ity ’s “rescission” of its site plan s hortly afte r that dec ision. Almost three months later, on Oc tober 4, 2006, Hsu wr ote Trudy ’s asser ting that ne ither the Code provisions g overning site plan “suspensions” nor those g overning site plan “disapprova ls” applied and that Trudy ’s s ite plan “rescission” was instead an una ppeala ble “de nial” because the deadline for Tr udy ’s to file update s had expired two day s after the City ’s abortive approva l of the site plan. Contending that Trudy ’s had failed to “substantially complete” the approva l and permitting proce ss by J une 2, 2006, as require d b y t h e Rule 11 ag ree ment, the City resumed its litigation ag ainst Trudy ’s. The City amende d its petition to add alleg ations that Trudy ’s had violated the Rule 11 ag ree ment by not obtaining a site plan and not filing applications for the other require d permits and appr ovals. Trudy ’s counter claimed, a lleg ing tha t the City had bre ache d its obli g ation under the Rule 11 ag ree ment to “re asonably work with” Trudy ’s and violated Trudy ’s ri gh t s t o Due Process an d E q u al P rotec tion. Trudy ’s further soug ht decla rations that it had not materia lly brea ched the Rule 11 ag ree ment or that any such brea ch was excused by the City ’s prio r materia l

17brea ch, that it had “substantially completed” its oblig ations under the Rule 11 ag ree ment, and that

the City ’s claims wer e barr ed by the absenc e of a condition pr ece dent—the Rule 11 provision that the City could pursue its leg al and equitable reme dies if Trudy ’s brea ched the ag ree ment. Trudy ’s also asser ted aff irmative defe nses of equitable estoppel, excuse by the City ’s prior materia l brea ch, and fa ilure to satisfy

condition prec edent. The City subsequently filed a motion for summary judgme nt under the “tra ditional” standard. Following a hear ing, the district court signe d an order g ranting t h e m o t i on, g ranting the City ’s reque sts for decla ratory and perma

nent injunctive relief

, and deny ing relief on all of Trudy ’s counter claims. There afte r, the City filed a motion seeking attorney ’s fee s of $242,399 plus costs under the UDJA. Following a hear ing, the district court rende red final judgme nt decla ring that Trudy ’s “has no rig ht to use the deck, bar, fenc e, concr ete improvements in the City ’s rig ht-ofway , and all appurte nance s constructe d without City approva ls in or about Fe bruar y 2005

. . . until it secur es the nece ssary permits and approva ls for the intended use;” order ing that Trudy ’s apply for demolition permits within one day and remove the improvements within thirty day s; and enjoining Trudy ’s ag ainst rec onstructing the improvements until its obtained all require d City approva ls and permits. Howeve r, it reje cted the City ’s attorney ’s fee claim, concluding that it was not “equitable and just” to a

war d the City any attorney ’s fee s or costs. The district court conditionally suspended enfor ceme nt of the judg ment pending appea l. This appeal f ollowed.

ANALYSIS Trudy ’s challeng es the judgme nt throug h four issues on appea l. First, it asser ts that the district court err ed in g ranting summary judgme nt as to its equitable estoppel defe nse. Second,

18Trudy ’s contends that the summary -judg ment evidence ra i s ed g enuine issues of materia l fac t as

to whether the C ity satisfied conditi ons prec edent t h e R u l e 11 ag ree ment imposed befor e it could

rene w litigation ag ainst Trudy ’s. Relatedly , in its third issue, Trudy ’s arg ues that the evidenc e raises fac t issues as to whether

the City had bre ache d its duty to “re asonably work with” Tr

udy ’s (whic h
g oes t o both Trudy ’s af

firmative de fense s and its brea ch-of -contra ct counter claim). Finally , in its fourth issue, Trudy ’s urges t h at t h e district court err oneously g rante d the City more relief than it
soug ht in its summary -judg ment motion.

Stand ard of review

We revie w the district court’s summary judgme nt de novo. Valence Operating Co.

v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). Summary judgme nt is proper when there are no disputed issues of materia l fac t and the movant is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ). When revie wing a summary judgme nt, we take as true all evidenc e favor able to the non-movant, and

we indulge ever

y rea sonable infere nce and resolve any doubts in the non-movant’s favor

. Valence Operating Co. , 164 S.W .3d at 661; Knott , 128 S.W .3d at 215.

A movant seeking traditional summary judgme nt on its own cause of action—as the City d i d

— has the initial burden of establishing its entitlement to judgme nt as a matter of law by conclusively

establishing e ach e lement of its cause of ac tion. See M.D. Anderson Hosp. & Tumor
Inst. v. W illri ch , 28 S.W .3d 2 2, 23 (Tex. 2000) (per curia m) (citing Rhone-P oulenc, Inc. v. Steel , 997 S.W .2d 217, 222-23 (Tex. 1999); Johnson & Johnson Med., Inc. v. Sanchez , 924 S.W .2d 925,
927 (T ex . 1996). Simi larly , if a movant seeks traditional summary judgme nt ag ainst another

19party ’s cause of action, as the City also did, it must conclusively neg ate at l ea s t one element of

that cause of ac tion. Litt le v. Texas Dep’ t of Criminal Justi ce , 148 S.W .3d 374, 381 (Tex. 2004).
I f the movant meets this burden, the burden shifts to the non-movant to raise a g enuine issue of materia l fac t prec luding summary judgme nt. See id. I f the party opposing summary judgme nt relies

on an aff irmative defe nse, as Trudy ’s did, it must prese nt evidenc e sufficie nt to raise a fac t issue on

eac h element of the aff

irmative defe nse. Brownlee v. Brownlee , 665 S.W .2d 111, 112 (Tex. 1984).

Equ itable estoppel

I n its first issue, Trud y ’s arg ues that the district court err ed in deter mining that the summary -judg ment evidenc e did not raise a fac t issue as to eac h element of Trudy ’s aff irmative defe nse of equitable estoppel. “Equitable estoppel is based o n t h e p ri n cipl e that ‘one who by his conduct has induce d an o t h er t o act in a particula r manner should not be permitted to adopt an inconsistent position and there by cause loss and injury to the other.’” City of Fredrick sburg v. Bopp , 126 S.W .3d 218, 221 (Tex. App.—San Antonio 2003, no pet.) (quoting Maguire Oil Co. v. City of
Houston , 69 S.W .3d 350, 367 (Tex. App.—Texarkana 2002, pet. denied) ). Th e el em en t s of equitable estoppel are : “(1) a false repr esenta tion or conce almen t of materia l fac ts; (2) is made with knowledg e, actua l or constructive, of those fac ts; (3) with the intention that it should be acte d
upon; (4) to a party without knowledg e or means of obtaining knowledg e of t h o s e fa cts; (5) who detrimentally relies on the repr esenta tions.” Johnson & Higgins of Tex., Inc. v. Kennec o Energy,
Inc. , 962 S.W .2d 507, 515-16 (Tex. 1998). Su m marizing its equitable- estoppel theory , Trudy ’s

as s er t s that “eve n assuming the City acte d entirely innocently (an asser tion which is subject t o question and would be attacke d at trial), the City has (1) induced Trudy ’s to play its g ame by enter ing

20into a Rule 11 Ag ree ment” contemplating that Trudy ’s could obtain approva l by pro v i d i n g the

require d handica

pped parking off- site, “(2) purposef ully tang led Trudy ’s in its web of burea ucra tic
proce sses, (3) lure d Trudy ’s furthe r along with instructions to obtain the required par king ‘ on-site

or at the near est off- site’ location, followed by its express approva l of Trudy ’s off- site plan, and then (4) suddenly rene g ed on the entire ag ree ment, leaving Trudy ’s holding the bag of expenses incurre d along the way .” Under these circ umstances, Trudy ’s urg es, the City is e stopped from cha ng ing its position and requiring Trudy ’s to provide the ha ndicappe d parking

on-site.
I n response , the City relies primarily upon the g ener al ru l e t h at a municipality

cannot b e es t o p p ed in the exercise of its g overnme ntal functions. See City of W hite Settlement

v. Super W

ash, Inc. , 198 S.W .3d 770, 773 (Tex. 2006); see also id. at 773 n.2 (empha siz ing that the rule does not apply to a muni cipality ’s performanc e of proprieta ry fu n ct i o n s ). The rationales for

6
this rule are simil ar to those that underlie sovere ign and g overnme ntal immunit y . See id. at 773 (“I n
g ener al, the rule der i v es from our structure of g overnme nt, in which the interest of the individual

must at times y ield to the public interest and in which the responsibility for public policy must rest

o n decisions officia lly authorized by the g overnme nt’s repr esenta tives, rathe r than on mistake s committed by its ag ents.”) (citing City of San Antonio v. Deutsch , 91 S.W .2d 308, 310 (Tex. 1936) (“The city ’s public or g overnme ntal business must g o forwa rd, unimpeded by the fault, neg lige nce,

or fra ilty of those char g ed with its administration.”)); id. (“[B]arr ing estoppel h el p s prese rve
separ ation of power s; leg islative prero gat i ve would be undermined if a g overnme nt ag ent

There is no dispute that the City functions Trudy seeks to estop are “g overnm en t al ” 6 functions. 21could—throug h mistake, neg lect, on an intentional act—e ffe ctively repe al a law b y i gn o ring ,

misrepre senting , or misint erpr eting a duly enac ted statute or reg ulation.”); id. at 774 (citing conce rn with potentially “unlimited liability ” for the g overnme nt); Deutsch , 91 S.W .2d at 310 (compa ring estoppel of g overnme nt to the imposit ion of neg lige nce liability ); cf. Cit y o f E l P a so v. Heinrich , 284 S.W .3d 366, 372 (Tex. 2009) (ac knowledg ing that suits to control state action—i.e., those that
“see k to alter g overnme nt policy ”—implicate sovere ign immunit y , while ultra vires suits that seek

to “enf orce exis ting policy ” and laws gene rally do not); Tooke v. City of Mexi a , 1 9 7 S

. W

. 3 d 325,
331-32 (Tex. 2006) (sover eig n immunit y “re mains firmly establi s h ed , and as it has come to be applied to the various g overnme ntal en t i t i es in this State, an important purpose is prag matic: to shield the public from the costs and conseque nces of improvident actions of their g overnme nts.”).
A centr al pillar of both of these common-law doctrines is thus the notion that individual citizens who interac t with their g overnme nt must g ener ally bear , as far as leg al reme dies are conce rned, a cer tain level of risk or harm from g overnme ntal “improvi d ent actions”—a delicate term for the arr ay of human fra i lties citizens may encounte r when dealing with g overnme nt personne l—beca use “individual interests” must be sacr ificed in t h e name of the “public interest” that g overnme ntal actions ostensibly embody

. See Super W ash , 198 S.W .3d at 773-74; Tooke , 197 S.W .3d at 331-32.
Ho wever, Texas courts have long rec og nized an equitable exception to the an t i

estoppel rule: a municipality may be esto p p ed wher e (1) “justice require s its application” and (2) “ther e is no interfe renc e with the exercise of its g overnme ntal functions.” Super W ash, Inc. , 198 S.W .3d at 774. Whether this exception applies is a question of law f or the c ourt. Id.

22Trudy ’s u rges that this case is one in which “justice require s” that the City be

estopped from disputing that Trudy ’s alre ady -construc ted improvements are an “existi ng condition” for purposes of section 25-6-501( E) and requiring Trudy ’s to furnish handica pped parking on-site.
I t condemns the Cit y ’s sudden reve rsal in its application of section 25-6-501( E) as “nonsensica l, unsupported, and statutorily illogica l” and emphasizes its evidenc e that the City abruptly devised the

resc ission proce dure and ra t i o n al e in response to political pressure . Prior to the City ’s reve rsal, Trudy ’s furthe r stresse s, the City induced it to expend $179,000 in pursuit of off-site ha ndicappe d parking , then “y anked the rug out” from under it by deciding that off- site handica pped parking was not an option after

all.
I n S u per W ash , the Texas Supreme Court had occa sion to revisit the equitab l e exception permitting es t o ppel ag ainst municipalities and to clar ify how courts should distinguish

case s wher e “justice require s” estoppel fro m wh at t h e common law reg ards as ordinary costs of do i n g b u s i n ess with the g overnme nt. The supreme court stressed that the exception is available “only i n ex ce p tional case s wher e the circ umstances clea rly demand its application to preve nt manifest injusti ce.” Id. I t further pointed out that it h as held “justice require s” estoppel ag ainst

a municipality in only two case s. I n both case s, the cou rt o b s er v ed, there was evidenc e that city officia ls may have aff irmatively m i s l ed individuals reg arding a notice-of -cla im require ment and that these actions resulted in the perma nent loss of their claims ag ainst the cities. See Roberts

v. Haltom City , 543 S.W .2d 75, 80 (Tex. 1976); City of San Antonio v. Schautteet , 706 S.W .2d 103,
105 (Tex

. 1 9 8 6). I n Super W ash , the supreme court cited Roberts and Schautteet to “illustrate the ty pes of case s that may fall under the ‘justice req u i re s ’ exception.” Super W ash , 198 S.W .3d

23at 775. The court elabor ated that those case s, as well as a case of this C o u rt t h at i t cited with

approva l— City of

Austin v

. Garza , 124 S.W .3d 867, 875 (Tex. App.—Austin 2003, no pet.) (City

rec eived direct donation of l and in ex change for land subject t o an erroneous plat note could later be estopped from deny ing the validity of the plat note)—stood for the proposition that “[e]vidence that city officia ls acte d delibera tely to induce a party to act in a wa y that benef itted the city but prejudice d the party weig hs in f avor of apply ing the exception.” Super W ash , 198 S.W .3d at 775. The court also emphasized that “the complaining parties in Roberts and Schautteet would have been completely

denied r elief had the cities not be en estopped, beca use only an equitable reme dy

could revive their otherw ise exti ng uished claims.” Id.

The Super W

ash court further expounded on the circ umstances in which “justice require s” estoppel when analy zing the fac ts prese nted in that case . A proper ty owner (Super Wash) had beg un construction of a car wash i n re l i an ce o n a building permit issued by the City of
W h i t e S et t l ement and was later advised by the city that the permit was err oneous beca use it conflicte d with a zoning or dinance

. Unbeknownst to Super W ash when it purcha sed t he property and obtained the permit, the proper ty had ori gi n al l y been zoned residential but was subsequently zoned commerc ial conditioned on the occupa nt constructing and maintaining a privac y fenc e along the property ’s boundary at L ong field Drive, which separate d the property from a r esidential area. Super Wash submitt ed a site plan proposing a curb cut and exit onto L ong field and no privac y fenc e. Appar ently overlooking the zo n i n g o rd inance requiring the privac y fenc e, city officia ls approve d the site plan and issued Super Wash a b u i l d i n g permit on Fe bruar y 8, 2001. Four day s later, on Fe bruar y 12, afte r complaints from are a residents, the City informed Super Wash that it would need

24to provide a privac y fenc e along L ong field Drive. Subsequently , on Marc h 1, afte r construction was

forty -five perc ent complete, the city advised Super Wash that it was require d to remove its planned exit onto L ong field based on the city ’s interpre tation that the zoning ordinanc e require d a continuous fenc e. See id. at 772. Super Wash soug ht to “estop the city from enfor cing the fenc e ordinanc e so it can build a sec ond entra nce/e x it to assist with traff ic flow.” Id. at 775. On these fac ts, the s u p re m e co u rt held that justice did not require that the city be estopped from enfor cing the zoning ordinanc e. I t identified and balanc ed sever al fac tors in making that deter mination. The court first distinguished the fac ts of the case from those in R o b er ts

7
and Schautteet , wher e the parties seeking estoppel would have been “ complete ly denied relief had estoppel not applied.” See id. (empha sis in orig inal). By contra st, acc ording to the Super W ash court, Super Wash “has been opera ting for y ear s without this second entra nce/e x it, and there i s n o t hing in the rec ord to indicate that it is nece ssary for its continued opera tion.” See id. The
supreme court added that “ther e are other reme d i es available to Super Wash—such as seeking a varia nce or a repe al of the Ordinanc e—that it has y et to pursue.” Id. The court then emphasized that “[j] ustice may require estoppel if it is the only available reme dy ; conver sely , the exis tence of alterna tive reme dies weig hs strong ly ag ainst the doctrine.” Id.
T h e supreme court also drew upon Roberts , Schautteet , and Garza in consid er i n g whether the city had benef itted from issuing the permit. I t reje cted Super Wash’s arg ument that the city had benef

itted from its actions by adding a commerc ial business to its tax base. Contrasting this

Our discussion of these fac tors draw s upon both Super W ash and the analy sis in 7 Nicholas G. Grimmer, Comment: Oops! It Turns Out Y o u Shouldn’t Have Built That There: Erroneously Issue d Building Permits in T exas , 44 Hous. L . Rev. 1415, 1427-31 (2008)

. 25benef

it with Garza ’s “lar g e, direc t donation of land” that the city rec eived “in exchang e for land that

was subject to an err oneous plat note,” the court dismiss ed it as “too attenuate d to establish g rounds for e quitable re lief.” Id. at 775-76.

The supreme court also appea red to consider the rea sonablene ss of Super Wash’s relianc e on the permit and the extent to which it had been in a position to avoid its plight. I t emphasi z ed t h at “while it is true the City issued the building permit in err or, the Ordinanc e was

a matter of public rec ord and discovera ble by Super Wash be fore it purcha sed the lot.” Id. at 775.
I t added that Super Wash was char g ed with constructive notice of the ordinanc e, citing an ea rl i er

case for the proposition that a “par ty seeking to estop city ’s enfor c e ment of zoning ordinanc e char g ed with constructive knowledg e of the ordinanc e and could there fore not rely o n b uilding permit issued by city in violation of the law.” Id. (citing Davis v. City of Abilene , 250 S.W .2d 685, 688 (T ex . C i v . App.—Eastland 1952, writ ref ’d))

. Earlier in its opinion, the Super W ash court had simil arly contra sted Roberts and Schautteet wit h prior decisions in which it had held that unauthorized acts of city g overnme nt officia ls g ener ally could n o t estop a municipality ’s enfor ceme nt of its zoning ordinanc es. See id. at 773. As an example, it cited Hutchins v. Prasifka , 450 S.W .2d 829 (Tex. 1970), in which the court held that a city was not estopped ag ainst enfor cing its zoning laws wher e a landowner had relied on a zoning map that a city employ ee had err oneously chang ed based on a planning commission resolution that did not have the lega l eff ect of chang ing the zoning ordinanc e. See Super W ash , 198 S.W .3d at 774 (citing Prasifka , 450 S.W .2d at 833-36). Finally , the supreme court also seeme d to consider the actions of the city in rec tify ing the situation. I t emphasized that “the City acte d quickly —within [4] day s of lear

ning of its err or—to

26notify

Super Wash of the Ordinanc e.” Id. at 775. The c ourt contra sted an e arlier case involving a city ’s failure to enfor ce a law for twenty y ear s. Id. (citing Krause v. City of El Paso , 106 S.W

. 121, 124 (Tex. 1907)).

Perhaps signific antl y , the Super W ash court did not expli citly consider whether Super Wash had incurre d any economic harm short of that which would have require d it to shut down. See id. (“The business has been opera ting f or y ear s without thi s second entranc e/exit, and there is nothing in the rec ord to indicate that it is nece ssary for its c ontinued opera tion.”). We

n ote that Super Wash lear ned of the ordinanc e and the city ’s interpre tation that it requir ed a continuous fenc e (and thus no second entra nce/e x it) while construction was still underw ay and that Super Wash was able to complete construction without the exit

. See id. at 7 7 2

. There is no indication that Super Wash had to tear down or re- do construction it had alre ady completed, nor did it attempt to estop the city from requiring it to do so. Rather, only afte r completing construction did Super Wash seek to invoke estoppel to permit it to construct the second entra nce/e x it in the future.
S ee i d

. at 7 7 5. Super W

ash is thus not a case wher e a landowner has completed construction in relianc e on a permit, then is told the permit is i n v al i d an d t h at it would be forc ed to “undo” its previous improvements. Severa l of our sister courts (albe it prior to Super W ash ) have held that municipalities are estopped to enfor ce ordinance s that would have barre d and required “undo i n g” of alre ady -complete d improvements made in relianc e on permits that municipalities issue and later claim are err oneous. See Bopp , 126 S.W .3d at 220-24 (prope rty owner constructe d sign in relianc e

on err oneously issued permit); Maguire Oil Co. , 69 S.W .3d at 368 (justice require d that city be estopped ag ainst enfor cing restric tions afte r oil company spent $190,000 prepa ring a d rill site

27in r eliance on city permits); see also Hooters, I nc. v. City of Texark

ana , 897 F. Supp. 946, 954-55 (E.D. Tex. 1995) (municip al ity estopped; emphasizing that plaintiff spent almost $100,000 in relianc e on per

mit).
On the other hand, Super W ash acknow ledg es that construction at the site was “for ty

five perc ent complete” befor e the city informed Super Wash that it could not instruct the second

entra nce/e x it. See Super W

ash , 198 S.W .3d at 772. Presumably , Super Was h i n cu rre d some
expenses pri o r t o t h at time rela ted to the second entra nce/e x it and having to eliminate it, y et the s upreme court never mentions these in its analy sis. Whether t his is beca use t he court deeme d it unrea sonable for S uper Wash to beg in constructing the second entra nce while having actua l and constructive knowledg e of the ordinanc e, becaus e t h e court considere d these expenses
neg ligible or Super Wash failed to prove them, or beca use the court considere d these ex penses irrele vant if they did not rise a level that would shut down the b u s iness, or some combination of these re asons, is unclea

r. We now apply these fac tors to the summary -judg ment rec ord here

. Trudy ’s estoppel theory is predic ated on the City ’s repe ated repr e s e n ta ti o n s a n d a s s u r a n ces that Trudy ’s could bring its improvements into compliance with City parking require ments by providing handica pped parking off- site. There is simply no ev i d en ce t h at the City direc tly benef itted in any way from inducing Trudy ’s t o pursue off-site parking

. See Super W ash , 198 S.W .3d at 775-7 6 ; cf. Roberts , 5 43 S.W .2d at 80; Schautteet , 706 S.W .2d at 105; Garza , 124 S.W .3d at 875. Altho u gh T ru d y ’s
prese nts summa ry -j udg ment evidenc e that it incurre d an ag g reg ate of $179,000 in expenses in pursuing off- site parking in relianc e on the City ’s repr esenta tions and assura nces, it does not identify

28any portion of this amount that it paid to the City or otherwise demonstrate any materia l b en ef i t the C ity rec eive d fr o m those expenditures. And i f any thing, the rec ord supports an inferenc e that the City did not benef

it from inducin g T ru d y ’s to pursue off- site handica pped parking

—the City wasted considera

ble employ ee time, money , and other municipal resour ces in connec tion with Trudy ’s ef

forts.
Nor does the summary -judg ment evidenc e support any rea sonable infere nce that the City ’s repr esenta tions and assura nces wer e delibera tely calc ulated to mislead Trudy ’s to some end.
See S u p er W ash , 198 S.W .3d at 774-75; cf. Roberts , 543 S.W .2d at 80; Schautteet , 706 S.W .2d

at 105. The evidenc e instead ref lec t s that for almost eig ht months the City had decide d to apply section 25-6-501( E) in a manner that would have permitted Trudy ’s to provide handica pped parking off- site, then suddenly

chang ed cour se and de cided to do the exact opposite. Whatever one might think of t he C ity ’s reversa l or t he circum stance s surrounding it, these facts alone do not support a

rea sonable infere nce that the City had been acting delibera tely to mislead Trudy ’s during the months prior to that time.

As for whether estoppel is Trudy ’s “only available re m edy ” as contemplated in Super W ash , see 198 S.W .3d at 775, Trudy ’s urge s that estopping the City from requiring on-site handica pped p arking is the only means at this juncture by which Trudy ’s could avoid having to demolish its deck for failure to comply with the City Code. The summary -judg ment evidenc e indeed supports s u ch an i n ference , but that does not mean that this critica l element of the Super W ash 8

As n o ted, the City ’s Boa rd of Adjustments has alre ady denied Trudy ’s reque st for 8 a varia nce from the parking require ments. Cf. City of W hite Settlement v. Su

p er W ash, Inc. , 198 S.W .3d 770, 775 (Tex. 2006) (“the re are other reme dies available to Super Wash—such as 29analy sis weig hs in estoppel’s favor here

. I n this equitable analy sis, we ca n n o t o verlook the role

of Trudy ’s own conduct that contributed to the situation in which it now finds itself. See id. at 775. Whatever one might think of the City ’s subsequent conduct, i t remains undisputed that Trudy ’s
constructe d its deck and other improvements without first obtai n i n g City approva ls and permits,

as the City Code require s. Although Trudy ’s prese nted evidenc e that it was misinformed b y a City employ ee and misunderstood (at least initially ) that no such approva ls would be require d befor e constructing the deck, it does not contend that the City is estopped from enfor cing the Code ag ainst it for this rea son. Having constructe d its im proveme nts in violation of t he C ode, Trudy ’s was, all other things being equal, subject to City enfor ceme nt measure s including, and not limit ed to, forc ing Trudy ’s to demolish the improvements. See Tex. L ocal Gov’t Code Ann. § 211.012(c) (West 2008). That situation—a product of Trudy ’s own actions—provides the context in which we must consider whether “justice re quires” e stoppel based on the City ’s ac tions. Al t h o u g h the City Code contemplates that persons will obtain required
proper t y d ev elopment approva ls and permits prospec tively , befor e beg inning construction, see City Code §§ 25-1- 6 1 , 2 5 -5-1, 25-11-32, 25-11-33, it is undisputed that the City has made a discretionar

y enfor ceme nt decision t o permit persons who h av e made improvements without first obtaining the require d approva ls to seek and obtain them a fter- the-fa ct. With Trudy ’s, in fac t, the City went even far

ther and bound itself con t rac tually , throug h the Rule 11 ag ree ment, to aff ord

seeking a varia

nce or a repe al of the Ordinanc e—that it has y et to pursue.” ). There is also evidenc e that the same neig hborhood o p p o s i tion that influence d the City ’s sudden reve rsal on off- site handica pped par king a lso contributed to the denial of Trudy ’s varia nce reque st. We conclude this evidenc e raises a fact i ssue as to whether i t wo u l d h av e been futi le for Trudy ’s t o seek leg islative chang e to the par

king or dinance

. Cf. id. 30Trudy ’s that opportunity

. I n implementing this discretionar y de fac to retroa ctive permitting reg ime, the C ity , in turn, nece ssarily had to make a number of disc retionar y decisions as to how it applied Code re q u irements that wer e intended to g overn planned future improvements retroa ctively to improvements that had alre ady been completed. These included wh et h er or how the City would replica te section 25-6-501( E) require ments with respe ct to alre ad y -c o mpleted but un-per mitted improvements. Would the improvements be considere d an “existi ng condition” prec luding on-site handica pped parking beca

use it was alre ady built by the time the City beg an apply ing the ordinanc e
retroa ctively ? Or, should the direc tor consider the state of the proper ty at the time the owner should have obtained the require d approva ls, befor e construction of the improvement b ega n? The City initially opted for the former approa ch, which would have allowed Trudy ’s to provide handica pped parking off- site, assure d and encour ag ed Trudy ’s to pursue that option for months, causing Trudy ’s
to expend substantial sums, then reve rsed its position even afte r having approve d Trudy ’s site plan. Whil e financ ially damag ing to Trudy ’s, the ultimate eff ect of the City ’s actions was to return Trudy ’s improvements to the same leg al status they wer e in befo re T ru dy ’s beg an seeking retroa ctive
approva l—they wer e vulnera ble to a City enfor ceme nt action forc ing Trudy ’s to demolish them. That under ly ing plig ht, ag ain, was Tr udy ’s own doing

. We also observe that Trudy ’s does not complain that the City ’s actions in inducing it t o pursue off- site parking cause d it to fore g o other alterna tives for curing its Code violations.
I n s t ead, Trudy ’s complains that the City ’s reve rsal on off- site parking deprive d it of i t s o n l y

rema ining cha n ce t o cu re its violations and save its improvements. The fac t that it even had the chance t o cure its violations, ag ain, was entirely a function of the City ’s discretionar y exercise of

31its enfor ceme nt power s, and the underlying violations wer e attributable to Trudy ’s alone.

Additionally , following Super W ash ’s g uidance , we must consider that Trudy ’s pre s en t ed no evidenc e that the survival of the South Congr ess Café depende d upon prese rving the improvements behind the restaur ant. See Super W ash , 198 S.W .3d at 775. I n sum, we cannot conclude that the
summary -judg ment evidenc e raises issues as to fac ts that would cause the “only available reme dy ” fac tor to weig h in favor of Trudy ’s.
On the other hand, other Super W ash fac tors do weig h i n T ru d y ’s favor

. As for whether it was rea sonable to rely on the City ’s initial application of section 25-6-501( E), see id. , we disag ree with the City ’s char acte rization of its sudden reve rsal as its corr ection of a “mistake of law” by a staffe r. This is not a case like Super W ash , wher e both the city and Super Wash ove rlooked a zoning ordinanc e, a matter of public rec ord with which Super Wash was char g ed with constructive knowledg e. See id. I nstead, as previously sug g ested, the City actions here impacted discretionar y enforceme nt decisions, specific ally , how the City administers a de fac to retroa ctive permitting
reg ime found nowher e in the City Code itself. Rather t h an re fl ecting the City ’s principled application of established leg al require ments, the summary -judg ment rec ord, viewed in Trudy ’s favor , ref lects that the City altere d the rules as it went along and abruptly chang ed them in the fac e of political pressure . Fur

thermore , neither the City nor Trudy ’s overlooke d s e c ti o n 2 5

- 6 -501(E) —there is evidenc e that it was a centr al fix ture of their common view for months that Trudy ’s could provide handica pped parking off- site. I nstead, the City simply decide d that section 25-6-501( E) would require one thing for e ight months, then abr uptly decide d that it required some thing e lse. Trudy ’s

32is not char g ed with constructive knowledg e that the City would unpredic tably chang e the rules in the

waning minutes of the g ame.

Additionally , the City did not “ac t[ ] quickly ” in rec tify ing the situation with Trudy ’s.
See id. Dra

wing infere nces in favor of Trudy ’s, the City induced Trudy ’s to labor for eig ht months in relianc e on the City ’s then-de cision that Trudy ’s could pro v i de handica pped parking off- site. There is also evidenc e that, once that application of section 25-6-501( E) beca me an issue, the City delay ed informing Trudy ’s for as much as six wee ks, “running out the clock” on Trudy ’s J une 2, 2006, deadline for comply ing with the Rule 11 ag ree ment, then acte d in a somewhat obstructionist, delay ing manner when Trudy ’s attempted to bring an administrative appea l from the “re scission.” Finally , we consider the economic harm to Trudy ’s attributable to the City ’s actions. Trudy ’s emphasizes evidenc e t hat, relying on the City ’s repr esenta tions and assura nces, it spent $179,000 in pursuing the off- site parking , only to have the City rene g e on its repr esenta tions. This is a considera

ble sum, in line with expenditures t h at p r e- S uper W ash court of appea ls case s h ave held to justify estoppel. Maguire Oil Co. , 69 S.W .3d at 368 ($190,000 spent in relianc e on city permit); Hooters, Inc

. , 897 F. Supp. a t 954- 55 ($100,000 spent in r eliance on permit). On the other hand, Super W

ash is unclea

r, as previously discussed, as to what weig ht, if any , we s hould place on this factor.

Even if we consider Trudy ’s larg e expenditures to be a fac tor favor ing estoppel, we

u l timately cannot conclude that Trudy ’s has prese nted evidenc e of the sort of “exceptiona l ca s e in which justice require s estoppel,” as the Texas Supreme Court seems to view that threshold in Super W ash

. Our conclusion is informed by the supreme court’s stron g em p h as i s on the “only

33available reme dy ” fac tor, whether the municipality b en ef i t ted from the complained- of conduct, and whether the municipality delibera tely misled the party seeking estoppel—all fac tors that weig h
ag ainst estoppel here

. See Super W ash , 198 S.W .3d at 774-75. This is not a ca s e wher e, for example, the City m i s l ed or harme d an innocent party , left it with no other reme dy , acte d delibera tely , or benef

itted in some way . Consequently , the district court did not err in g ranting
summary judgme nt as to Trudy ’s estoppel defe nse. We need not rea ch whether Trudy ’s raised a fac t issue as to the second element of the exception to the anti-estoppel rule, whether estoppel would not int er fe re with a g overnme ntal function. See Super W ash , 198 S.W .3d at 776-78. We overr ule Trudy ’s first issue.
Rule 11 agree m ent

I n i t s second issue, Trudy ’s asser ts that the summary -judg ment evidenc e raises a fac t issue as to whether its “re quired approva ls, permits, ag reem ent, or inspections [were] substantially complete by J une 2, 2006,” as require d by the Rule 11 ag ree ment. Trudy ’s emphasizes that befor e the City ’s sudden reve rsal on off- site handica pped parking , t h e City had approve d its site plan with two wee ks rema ining befor e the Rule 11 deadline for Trudy ’s t o o b t ain the other require d approva ls and inspections for its i m p roveme nts. Trudy ’s prese nted summary -judg ment evidenc e that it could have obtained the rema ining require d permits and ins p ections befor e the deadline if the C ity had not “re scinded” its approva l and refused to rele ase the s ite plan. Be cause fac t issues rema in as to whether it br eac hed its oblig ation to “ substantially complete” the approva l
p ro ce s s , T rudy ’s further rea sons, the City did not establish its entitlement to summary judgme n t
reg arding another of T r

u d y ’ s a f f ir ma ti v e d e f enses—that the City did not satisfy a condition prec edent

34imposed by the Rule 11 ag ree ment on its rig ht to pursue its reme dies ag ainst Trudy ’s. Trudy ’s points

to the concluding sentenc e of the Rule 11 ag ree ment: “I n the event that the Def

endan t v i o lates the terms of this ag ree ment, the City may g o to district court and seek any and all reme dies available

to it under this ag ree ment, at law, or in equity .” Reading this provision in context with the Rule 11
ag ree ment as a whole, in Trudy ’s view, t h e City ag ree d to “stay ” its litigation eff

orts and not to
proce ed unless Trudy ’s first “violate [d] the terms of this ag ree ment.”

Relatedly , in its third issue, Trudy ’s contends that the summary -judg ment evidenc e rais es a fa ct i s s u e as to whether the City brea ched its duty under the Rule 11 ag ree ment to “re asonably work with [Trudy ’s] to come into compliance with the C i t y Code development
reg ulations and meet all application deadlines” stated in the ag ree ment. Evidence of this brea ch, Trudy ’s fu rt h er contends, raises a fac t issue as to both its brea ch-of -contra ct counter claim and its aff irmative defe nse that any failure on its part to “substantially complete” the permitting and
approva l proce ss by J une 2, 2006, was excused by the City ’s prior materia l brea ch of the ag ree ment.

Rule 11 ag ree ments are contra cts rela ting to litigation, subject, there fore , to g ener al rules of contra ct co n s t ru ct ion. See Dallas County v. Rischon Dev

. Corp. , 242 S.W .3d 90, 93 (Tex. App.—Dallas 2007, pet. denied) ; Disney v. Gollan , 233 S.W .3d 591, 595 (Tex. App.—Dallas 2007, no pet.). Our primary objective in construing a written contra ct is to asce rtain and g ive eff ect
to the intentions the parties have objectively manifested in the written instrument. Frost Nat’l Bank

v. L & F Distribs., Ltd. , 165 S.W .3d 310, 311-12 (Tex. 2005). Contract terms are g iven their plain, ordinary , and g ener ally acc epted meaning s, and contra cts are to be construed as a whole in an eff ort

35to harmonize and g ive eff ect to all provisions of the contra ct. Valence Operating Co. , 164 S.W .3d

at 662. I f a contra ct can be g iven a cer tain or definite leg al meaning or interpr et at i o n, it is not ambig uous and is construed as a matter of law. Coker v. Coker , 650 S.W .2d 391, 393 (Tex. 1983).

The Rule 11 ag ree ment, as previously discussed, es s en tially replica ted the eff

ect of the temporar

y injunction the City was seeking to pr oscribe Trudy ’s use of its improveme nts. I n return, t h e City bound itself to g iving Trudy ’s approximately eig ht months to seek and obtain the require d approva ls and permits for its im p ro v em ents retroa ctively in acc ordanc e with an ag ree d timeline. The City further bound itself to “re asonably work with [Trudy ’s] to come into compliance

9 with the City

Code deve lopment r eg ulations a nd meet all application deadlines” in the ag ree ment. As the City points out, this provision did not require it nece ssarily to approve or issue permits if it turned out that Trudy ’s could not satisfy the applicable City Code require ments, and we do

not unders t and Trudy ’s to be advanc ing such a contention. Nonethele ss, it rema ins that the City undertook an obliga tion to “ reasonably work with ” Trudy ’s while Trudy ’s was attempting to obtain these a pprovals and pe rmits. The City dismiss es the notion that its ag ree ment to “re asonably work with” Trudy ’s has any signific ance beca use, it sug g ests, Ci t y em p l o y ees alway s act rea sonably or are at least supposed to. We express no opinion as to that asser tion beca use, true or false, it has no bear ing on

our construction of the Rule 11 ag ree ment. As with any other contra ct, we must construe eac h part

The City does not contend that its g overnme ntal immunit y bars Trudy ’s counter claims or 9 otherwise dis p u t e t h at t he Rule 11 ag ree ment binds it to the same extent as it would any other litigant. See Reata Constr. Corp. v. City of Dallas , 197 S.W .3d 371, 375-77 (Tex. 2006); Texas Co. v. State , 281 S.W .2d 83, 90 (Tex. 1955). 36of the Rule 11 ag ree ment in rela tion to the other so that no part will be rende red meaning less. Valence Operating Co. , 164 S.W .3d at 662. We cannot simply deem the City ’s contra ctual duty to “re asonably

work with” Tr

udy ’s to be re dundant surplusag e, as the City sug g ests. We are to g ive this lang uag e its plain, ordinary , an d gener ally acc epted meaning

. See id. “Rea sonable” denotes “[f] air, prope r, or moder ate unde r the c ircumstance s,” “[a]ccording

to r eason,” “[h] aving the fac ulty of rea son.” Bla ck’s L aw Dictionary 1379 (7th ed. 1999); see also Webster’s Third New I nt’l Dictionary 1892 (1986) (“be ing in ag ree ment with rig ht thinking or rig ht judgme nt,” “not conflicting with rea son,” “not absurd,” “not ridiculous,” “being or rema ining within the bounds of reason,” “not extreme,” “not excessive”)

. Reasonable ness, for example, is t he cor e

conce pt of neg lige nce l aw—one g ener ally has a duty of car e to act as an ordinary rea sonable
person under the same or simil ar circ umstances. El Chico Corp. v. Poole , 732 S.W .2d 3 0 6, 311 (Tex. 1987). Where a duty to act rea sonably exis ts, whether or n o t i t i s b re ac hed is g ener ally a question of fac t. Caldwell v. Curioni , 125 S.W .3d 784, 793 (Tex. App.—Dallas 2004, pet. denied)

.

I nformed by these definitions and conce pts, the summary -judg ment evidenc e, which

we have p reviously summarized, raises a g enuine issue of materia l fac t as to whether the City complied with its duty to “ reasonably work with [Trudy ’s]” in Trudy ’s eff orts to bring its improvements into compliance with t h e C ode. I n light of this holding, we conclude that the district court err ed in g ranting summary j u d gm ent that Trudy ’s take nothing on its counter claim
aga i n s t the City for brea ch of the Rule 11 ag ree ment. We simil arly conclude that this ev i d en ce
prese nts fac t issues prec luding summary j udg ment on Trudy ’s aff irmative defe nse that the City ’s

37brea ch was materia l and excused any failure of Trudy ’s to “substantially complete” the approva l and

permitting proce ss by the J une 2, 2006 deadline. See Mustang Pipeline Co. v. Driver Pipeline Co. , 134 S.W .3d 195, 198-200 (Te x . 2004).

Fu rt hermore , apar

t from Trudy ’s aff

irmative defe nse of prior materia l breach ,

we conclude that the fac t issues as to whether the City acte d rea so n ab l y also prec lude
summary judgme nt on Trudy ’s aff irmative defe nse that the City failed to satis fy a co ndition
prec edent to pursing its litigation ag ainst Trudy ’s. As disc u s s ed , t h e C ity obliga ted itself in the Rule 11 ag ree ment to defe r litigation ag ainst Trudy ’s while aff ordi n g Trudy ’s an opportunity to bring its improvements into compliance with the Code. “I n the event that [Trudy ’s] violates the terms of this ag ree ment,” the City had the rig ht to “g o to district court and seek any and all reme dies available

to it under this ag ree ment, at law, or in equity .” The City insists that it conclusively established that Trudy ’s failed to “substantially complete” the approva l and permitting proce ss, espec ially since the parties ag ree d that “[t] he City will made the deter mination of what is ‘ substantially complete,’ not [Trudy ’s].” Howeve r, we cannot rea d this provision in isolation, but must construe it in light of the City ’s o b l i gat ion to “re asonably work with Trudy ’s to come into compliance with the City Code d ev elopment restric tions and meet all application deadlines.” See Valence Operating Co. , 164 S.W .3d at 662. I n other words, the fac t issues as to whether the City rea sonably

worke d with Trudy ’s also raise fac t issues as to whether the City acte d rea sonably in deter mining that Trudy ’s had failed to “substantially compl et e” the approva l proce ss and, thus, whether Trudy ’s brea ched that provision. This, in turn, raises a fac t issue as to T rudy ’s aff irmative defe nse that the City failed to

38establish a condition prec edent to pursuing its leg al reme dies ag ainst Trudy ’s. We sustain Trudy ’s

second a nd third issues.

Relief exce eding groun ds in summ ary-j udgme nt m otion

I n its fourth issue, Trudy ’s arg ues that the district court err ed in g ranting more relief than the City reque sted in its mot ion for summary judgme nt. The City

soug ht summary

judgme nt

on its decla

ratory and injunctive claims and Trudy ’s aff irmative defe n s es ag ainst these claims. I t also soug ht summary j u d gm en t on Trudy ’s counter claim that the City brea ched the Rule 11
ag ree ment. Howeve r, as Trudy ’s points out, the City did not expressly seek summary judgme nt on Trudy ’s counter claims for de clar atory , mandamus, and injunctive r elief.

The City ’s traditional m o tion did not state g rounds for summary judgme nt as to Trudy ’s claims for mandamus relief

. Consequently , the district court err ed in g rant i n g t h e C i ty
summary judgme nt on those claims. See Bandera Elec. Co-Op, Inc. v. Gilchrist , 946 S.W .2d 336, 336-38 (Te x . 1997) (pe r cur iam).

Whil e not expli citly addre ssed in the City ’s summary -judg ment motion, Trudy ’s decla ratory and injunctive claims wer e larg ely the conver ses of the City ’s decla ratory and injunctive claims. Thus, the City ’s motion for summary -judg ment on its own claims was potentially sufficie nt
to encompa ss the s ubstance of Trudy ’s claims as well. See O rtiz v. Coll ins , 203 S.W .3d 414, 423 (Tex. App.—Houston [14t h Dist.] 2006, pet. denied) (summary judgme nt may be g rante d on claims

not ex p ressly addre ssed wher e summary -judg ment motion is sufficie ntly broad to encompa ss the s ubstance of t he claims). W e n eed not deter mine whether it was, however, beca use assumi ng

39so, we wo u l d re verse summary judgme nt on those claims for some of the same rea sons we have

reve rsed the judg ment as to the City ’s claims.

We sustain Trudy ’s fourth issue.

CONCLUSION Whil e we have overr

uled Trudy ’s es t o ppel issue, we have sustained its other three issues challeng ing the district court’s summary judgme nt. We reve rse the judgme nt and

rema nd for f urther pr ocee dings c onsistent with thi s opinion.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice L aw, Justi ces Pembe rton and Waldrop; Chief J ustice L aw not par ticipating Affir med in part; Rever sed and Rema nded in par

t Filed: Mar ch 12, 2010

40