Affirmed and Memorandum Opinion filed July 24 , 2014

.

In t he 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00443

- CV

FARABI, INC. , Appellant

V. HARRIS COUNTY, TEXAS , Appellee

On Appeal from the Co unty Civil C our t at Law No

. 4 Harris County, Texas Trial Cour t Cause No. 962 , 474

MEMORANDUM OPINION

This case arises out of the condemnation of a ppellant Farabi, Inc. ’s property by appellee Harris County. Farabi ap peals the trial court’s grant of the County’s
motion for partial summary judgment. Farabi argues th at the County failed to meet its burden to prove as a matter of law it was entitled to summary judgment because it did not establish that the condemnation of all of Farabi’s property was necessary for a public use and Farabi raised a fact issue as to the a rbitrary and capriciousnature of the County’s a ction

. Farabi also challenges the testimony of a County witness as conclusory and contradictory. We affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND In May 2001, the County nominated a pedestrian and bicycle trail project
known as the South Mayde Creek Pedest rian & Bicycle Facility Project to receive federal funding under a Texas Department of Transportation program. The County’s project was to extend and connect two pedestrian and bicycle trails, and
included an alignment along the frontage of Farabi’s property. In June 2001, the County contacted Farabi in an attempt to negotiate a voluntary easement consisting of 0.1545 acres

. In summer 2009, Harris County Right of Way began its voluntary acquisition of the subj ect tracts for the trail project. The Farabi easement was known as Tract 8E. Farabi rejected the County’s written offer for acquisition of the easement. Because the federal funding requirements did not allow for land acquisition through eminent domain
, the Farabi easement was removed from the TxDOT program. Instead, the County
and TxDOT agreed the County would exercise eminent domain to acquire the
Farabi easement and construct that portion of the trail. Paul Hawkins, assistant manager of engineering fo r Harris County Precinct 3 and project manager for the County’s trail project, called Darrell Toombs, administrative superintendent for Harris County Precinct 3 and manager of surveying and in

- house construction design and park design within Precinct 3 , to inform him that Harris County would need to acquire the Farabi easement through
eminent domain. Hawkins and Toombs then discussed the idea that if the County was going to need to condemn the property anyway, it should acquire the entire Farabi property c onsisting of 0.5779 acres for a pocket park or trailhead.

2Toombs spoke with Commissioner Steve Radack about the need to condemn the Farabi easement and suggested to him that the County acquire all the Farabi property , also for a pocket park or trailhead. The Commissioner agreed it was a good idea and instructed Toombs to “go ahead” and build a pocket park or trailhead on the entire Farabi property. In January 2010, b oth Hawkins and Toombs informed Tom Faulkner, acquisition manager for Harris County Right of Way, that the County should take the necessary steps to condemn the entire Farabi property. Faulkner asked Hawkins for a park or project name to reference when gaining the Commissioners Court ’s authority to purchase the entire Farabi property. Hawkins asked Faulkner whether it was possible to acquire the entire Farabi property with the sa me project name as the Farabi easement, and Faulkner responded that “he would do that.” On February 9, 2010, the Commissioners Court of Harris County entered a
resolu tion and order approving the plans for the alignment and construction of the public project known as the South Mayde Creek Pedestrian & Bicycle Facility Project and declaring that a public necessity existed for the South Mayde Creek Pedestrian & Bicycle Fa cility Project. In the resolution and order, the South Mayde Creek Pedestrian & Bicycle Facility Project was identified with
identification number HC

- 3273, which was the same number referenced by the County during its negotiation attempts with Farabi for the Farabi easement. The property to be condemned was described as Tract 8E and included the entire Farabi property. In May 2010, the County filed a statutory condemnation case. A statutory damages hearing was held, and the court

- appointed special commis sioners
awarded Farabi approximately $88,113 in damages. Farabi filed an objection to the award and a plea to the jurisdiction challenging the County’s right to take

3Farabi’s whole property on the grounds that the Commissioners Court failed to
determine a public necessity for the taking , and acted arbitrarily and capriciously in determining a public necessity for the taking of the entire property.
In June 2011, t he County moved for partial traditional summary judgment with regard to its “right to take” and attached various exhibits. Farabi filed a

response with various exhibits. The County filed a supplemental motion for summary judgment with additional exhibits. Farabi filed a supplemental response
with exhibits. Within its supplemental response, Farab i objected to the contradictory and conclusory nature of certain statements in Hawkins ’ affidavit. The record does not reflect a ruling on Farabi’s evidentiary objections. The trial court granted the County’s traditional motion for partial summary judgmen t on June 6, 2012. Trial was held on the remaining issue of the market value of the entire Farabi property as of the date of the taking. The jury determined the market value was $176
, 225. The trial court entered a final judgment in accordance with its s ummary judgment and the jury’s verdict , and Farabi timely appealed.

II. A NALYSIS

A. Standard of review
Our review of a summary judgment is de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmo vant’ s favor. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). To be entitled to traditiona l summary judgment, a movant must establish that there is no genuine issue of material fact so that the movant is

4entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort
, 289 S.W.3d at 848. Once the movant produces evidence entit ling it to summary judgment, the burden shifts to the nonmovant to present evidence raising a genuine
issue of material fact. Walker v. Harris
, 924 S.W.2d 375 , 377 (Tex. 1996 )

. A fact issue exists if there is more than a scintilla of probative evidence. Buck v. Palmer
, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam)

. B. Texas condemnation law
The County had to prove three essential elements to prevail on its
condemnation claim for Farabi’s entire property

. See Whittington v. City of Austin
, 174 S.W.3d 889, 89 6 (Tex. App.

— Austin 2005, pet. denied) . First, the County
had to show that it satisfied various formal prerequisites necessary to proceed to
the trial court : it filed a petition in compliance with section 21.02(b) of the Texas Property Code; it made an of fer to purchase; special commissioners were duly appointed, sworn, and made an award; and the property owner filed objections.
See id.
Next, the County had to prove that the condemnation of the entire Farabi property was for a “public use.” See id. Th e two components of “public use” are the County must intend a use for the property that constitutes a “public use” under Texas law and the County must establish that the condemnation is a “public necessity.” See id. at 896

– 97. What constitutes public use is a question of law, which the Texas Supreme Court has liberally construed. Circle X Land & Cattle Co., Ltd. v. Mumford Indep. Sch. Dist. , 325 S.W.3d 859, 863 & n.4 (Tex. App.

— Houston [14th Dist.] 2010, pet. denied) ; Whittington , 174 S.W.3d at 897

. T he governmental agency’s determination of public necessity i s presumptively correct and is conclusive unless the property owner can show bad faith, arbitrary or capricious action, or fraud

. See Circle X , 325 S.W.3d at 864; Whittington , 174

5S.W.3d at 898. A s the objecting party, nonmovant Farabi has the burden to
demonstrate that the County’s action in condemning his entire property was arbitrary and capricious. See Circle X , 325 S.W.3d at 864. This showing requires negating any reasonable basis for determ ining what and how much land to
condemn. See id. Finally, the County has to have strictly followed the legal requirements governing condemnation proceedings. See Whittington , 174 S.W.3d at 899. Farabi attacks the County’s showing of public necessity in two separate issues, arguing (1) the County did not present conclusive evidence of public necessity and (2) even if it did, Farabi presented sufficient evidence to raise a fact issue on whether the County abused its discretion through its arbitrary and capricious action. 1

C. Public necessity

In its first issue , Farabi argues that the trial court erred in granting summary judgment to the County because it did not establish the Commissioners Court’s determination of public necessity. Farabi contends that bec ause the
Commissioners Court’s resolution and order refers to the “South Mayde Creek
Pedestrian & Bicycle Facility Project (ID No. HC

- 3273),” there is no evidence establishing the Commissioners Court’s determination of a public necessity for any portion of Farabi’s property for anything other than the trail project. Farabi asserts that, according to Hawkins, the Farabi easement was removed from the trail project. Farabi also points out that the trail project plans did not include any parks and did not req uire the acquisition of the entire Farabi property.

1 Farabi has not challenged the public use prong of the public use requirement; i.e., it has not argued that a trail, pocket park
, or trailhead does not constitute a public use. Farabi also has not challenged whether the County satisfied the formal prer equisites to be able to proceed to the trial court or strictly followed the legal requirements governing condemnation proceedings.

6The County responds that there is nothing defective or insufficient in the Commissioners Court’s determination of public necessity. According to the County, the Farabi easement was only removed from the particular TxDOT program for purposes of maintaining federal funding, but was still aligned within the planned trail and thus needed to be acquired to link together sections of the trail. Moreover, the County argues that its summary judgment evidence show ed
that the same name was used for both the trail and park projec ts, and the term “park” need not be expressly stated in the Commissioners Court’s resolution and
order. In pertinent part, the County’s summary judgment evidence included: the
Commissioners C ourt’s agenda, and resolution and order; Hawkins’ affidavit with
exhibits ; Hawkins’ deposition; Toombs’ deposition; and offer and counteroffer correspondence between Harris County Right of Way and Farabi. The resolution
and order states “ that public neces sity and convenience exist for the location, alignment, construction, operation, and maintenance of the public project known as the South Mayde Creek Pedestrian & Bicycle Facility Project (ID No. HC

- 3273).”
Exhibit A to the resolution and order includes a n abstract and map s d escribing the subject tract as consisting of 0.5779 acres. The County further presented evidence through its witnesses Hawkins and
Toombs that in addition to the public necessity for the Farabi easement as a critical component of the t rail project, the entire Farabi property was an ideal location for a pocket park as it was located across from a school and at the front entrance to a neighborhood
, or for a trailhead where joggers or bicyclists could exercise or “warm up

. ” Toombs discuss ed the availability of the undeveloped land and its suggested additional use s with Commissioner Radack, who agreed that the County should “build a pocket park and trail head there.” It is the condemnor that

7generally determines how much land to take. Cir cle X , 325 S.W.3d at 864 (citing Zboyan v. Far Hills Util. Dist. , 221 S.W.3d 924, 930 (Tex. App.

— Beaumont 2007, no pet.) ). Moreover, i n the absence of a condemnation statute requiring affirmative pleading and proof on the matter, the necessity of exercisi ng eminent domain for a public use and the extent to which property is to be taken are political or legislative

— not judicial

— question s

. See Whittington , 174 S.W.3d at 898.

Farabi takes issue with the County’s “attempt[] to bolster Comm i ssioners
Court’s re solution and order with the testimony of Hawkins and Toombs regarding their personal determinations of the suitability of Farabi’s property for a park.” However, this characterization of the testimony as merely “personal” fails to take
into account these individuals’ particular positions within the County. Hawkins was assistant manager of engineering for Harris County Precinct 3 and project manager for the County’s trail project, and Toombs was administrative superintendent for Harris County Precinct 3 an d manager of surveying and in

house construction design and park design within Precinct 3. It is entirely
reasonable that Hawkins and Toombs would discuss the suitability of particular property for a pocket park or trailhead along the trail project and wo uld be in position s to recommend such taking to the Commissioners as necessary. See City of Austin v. Whittington , 384 S.W.3d 766, 781 (Tex. 2012 ) (describing how City
convention center staff recommend ed taking of parking garage to City Council as

necessa ry to accommodate parking requirements for expanded convention center )

. In a related point, Farabi contends the County cannot act through or delegate its eminent domain power to Hawkins or Toombs, but there is no dispute here that
the Commissioners Court itself as a governing body of the County entered the

8resolution ordering the condemnation of the entire Farabi property. 2
And although Farabi argues that we only can consider orders, resolutions, and minutes as evidence of the County’s official action, this court has expressly rejected any such constraints on summary judgment evidence in eminent domain proceedings. Circle X , 325 S.W.3d at 865 & n.5 ; see also Hous

. Lighting & Power
Co. v. Fisher , 559 S.W.2d 682, 685

– 86 (Tex. Civ. App.

— Houston [14th Dist. ] 1977, writ ref’ d n.r.e.) (concluding that affidavits and depositions of condemnor

e ntity’ s of ficers demonstrated that entity’ s board of directors made requisite determination of convenience and necessity)

. Nor does this court require an express statemen t of the condemnation’s necessity within an official resolution, order, or minutes. See Circle X , 325 S.W.3d at 865. Rather, like the trial court, we properly consider all the evidence to determine whether the County in fact
determined that the condemnat ion was a necessity. See id. Farabi points to nothing in the eminent domain statute s , Tex. Prop. Code Ann. §§ 21.011

– .016 (West 2004 & Supp. 2013) , or otherwise providing for any specific requirement as to the type of evidence necessary to prevail at sum mary judgment. See Circle X
, 325 S.W.3d at 865 n.5. I n addition to considering the deposition testimony of Hawkins and Toombs, wherein the County presented evidence of the necessity of condemning the entire Farabi property for the trail and for a pocket park or
trailhead , w e also consider Hawkins’ affidavit, wherein the County presented evidence that it request ed the Commissioners Court’s condemnation of the entire Farabi property for the trail and pocket park or trailhead using the same reference

name a s had been previously used for the attempted acquisition of the Farabi

2 Unlike in Burch v. City of San Antonio , 518 S.W.2d 540 (Tex. 1975), cited by Farabi, there is no question that the Commissi oners Court is an appropriate governing authority able to exercise eminent domain in Harris County. And unlike in Bevl y v. Tenngasco Gas Gathering Co. , 638 S.W.2d 118 (Tex. App.

— Corpus Christi 1982, writ ref’d n.r.e.), this record contains a formal resolu tion and order of public necessity as to the subject property

.
9easement for the trail project. 3

E ven considered in the light most favorable to Farabi and indulging all reasonable inferences in its favor, we conclude the evidence conclusively shows
the Commissioners Court in fact determined that condemning the entire Farabi property for the public use s of a trail and pocket park or trailhead was necessary. See id. at 867. We overrule Farabi’s first issue.

D. Arbitrariness and capriciousness

In its se cond issue , Farabi contends that even assuming a proper determination of public necessity , the trial court erred in determining that the County met its summary judgment burden to conclusively negate all elements of
Farabi’s affirmative defense that the Cou nty’s governing body acted arbitrarily and capriciously in determining a public necessity existed for acquiring the entire Farabi property. Farabi points to initial correspondence from the County and the County’s written offer regarding the Farabi easemen t; the trail project ’s finished design, which only called for a 30

- foot trail easement ; and deposition testimony
from Hawkins and Toombs that the only reason the County condemned the entire Farabi property was because the easement had to be condemned anywa y , and that
if Farabi had voluntarily conveyed the easement, the County would not have condemned the entire Farabi property

. The County first responds
, under the proper standard, it is not the County
tha t must conclusively negate Farab i’s affirmative defen se, but rather Farabi that
must meet its burden to come forward with more than a scintilla of evidence as to the County’s arbitrary and capricious action. We agree with the County. See id. at 8 67

– 68 (in review of traditional summary judgment, considering whether property

3 Farabi does not attack this portion of Hawkins’ affidavit as either conclusory or contradictory.

10owner’s evidence raised fact issue and met burden to show district’s taking was arbitrary and capricious). Simply because the focus of the County’s interest in Farabi’s property changed from an initial 30

- foot easement for a planned trail project to the entirety of his property
, also for a future intended pocket park or trailhead
, does not equate to arbitrary and capricious action. See id. at 864 , 867 (“[I] t is not arbitrary or capricious to base a condemnation on a reasoned prediction of future need or
demand .” ). Hawkins’ and Toombs’ testimony does indicate that perhaps the
additional poc ket park or trailhead use and condemnation of the entire Farabi property may not have arisen if Farabi had not contest ed acquisition of the
easement. H owever, there is no indication that after the County realized it would have to pursue formal condemnation proceedings, its actions in considering whether the entire Farabi property was suitable for a pocket park or trailhead
, which it was, and in deciding to request that the Commissioners Court condemn such property as necessary for such public use s were “willful and unreasoning
, ” “without consideration and in disregard of the facts and circumstances” at the time
, or “not made according to reason and judgme nt

. ” See City of Austin , 384 S.W.3d
at 782

– 83 ; Harris Cnty. Hosp. Dist. v. Textac Partners I , 257 S.W.3d 303, 316 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) (citing Wagoner v. City of Arlington , 345 S.W.2d 759, 763 (Tex. Civ. App.

— Fort Worth 1961, wri t ref’ d n.r.e.) )

. We conclude Farabi failed to satisfy its burden to raise a fact issue that the County’s taking was arbitrary and capricious. See Ci r cle X , 325 S.W.3d at 868.
W e overrule Farabi’s second issue.

11E. Hawkins’ affidavit
In its third issue, Fa rabi argues that certain statements in Hawkins’ affidavit are conclusory and not proper summary judgment evidence. We disagree. In particular, Farabi contends the following statements are conclusory:

• That in December 2009, Hawkins and Toombs “discussed an d mutually agreed that the Farabi parcel would be a perfect fit for a pocket park or trail head addition to the South Mayde Creek Pedestrian & Bicycle Facility Project”;

• That, on January 5, 2010, Hawkins told Faulkner “to take the necessary steps to purcha se the entire Farabi parcel in fee for a park”;

• That the Farabi parcel “was never removed from the South Mayde Creek Pedestrian & Bicycle Facility Project. It was only removed from the TXDOT project, which was that portion funded by STEP”; and

• That “[f]ro m the moment it was determined a public necessity to acquire the Farabi parcel, it was determined that this parcel would be a perfect location for a pocket park or trail head addition to the South Mayde Creek Pedestrian & Bicycle Facility Project.”

Conclus ory statements express a factual inference without stating the underlying facts on which the inference is based; they are not proper as summary judgment proof if there are no fa cts to support the conclusions. See Dolcefino v. Randolph , 19 S.W.3d 906, 930 (Tex. App.

— Houston [14th Dist.] 2000, pet. denied)

. Conclusory affidavits are not sufficient to raise fact issues because they are not credible or susceptible to being readily controverted. Ryland Grp

. v. Hood
, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam ). Hawkins’ challenged statements describe conversations that allegedly took place, what was allegedly discussed in those conversations , the alleged “removed”

12status of the Farabi parcel from the TxDOT project, and the alleged status of the Farabi parcel a s being “a perfect location” for a pocket park or trailhead. Each

stateme nt provides some factual information that could have been rebutted. Farabi argues that Hawkins failed to identif y who “determined” that the Farabi parcel

“ would be a perfect locatio n for a pocket park or trail head
, ” but although this statement could have been clearer, within the context of the affidavit, arguably it refers back to Hawkins’ and Toombs’ discussion regarding the need for
condemnation of the Farabi easement and their “d etermination” that the “Farabi parcel would be a perfect fit for a pocket park or trail head.” Moreover, even where a statement is to some degree conclusory, as long as it provides some factual information that could have been rebutted, it is not merely c onclusory and can support a summary judgment. See Pipkin v. Kroger Tex

. , L.P. , 383 S.W.3d 655, 670 (Tex. App.

— Houston [14th Dist.] 2012, pet. denied) (citing Rivera v. White
, 234 S.W.3d 802, 808 (Tex. App.

— Texarkana 2007, no pet.))

. Farabi further
insist s we should not “defer” to Hawkins’ and Toombs’ determination and
maintains a determination that a property is a perfect location for a pocket park or trailhead is not a determination that there is a public necessity for either use, but
we cannot see how s uch arguments render Hawkins’ statement s conclusory. Farabi also argues that Hawkins’ affidavit testimony is contradictory compared with the deposition testimony provided by Hawkins and Toombs. Farabi cites rule 166a(c), which permits granting summary jud gment on the basis of an interested witness’s testimony if such testimony is clear, positive and direct, otherwise credible, and free from contradictions and inconsistencies. See Tex. R. Civ. P. 166a(c). B ecause affidavits of interested witnesses present a defect of form rather than a defect of substance, preservation for our review requires an objection
in the trial court. Alaniz v. Rebello Food & Beverage, L.L.C. , 165 S.W.3d 7, 19

13n.19 (Tex. App.

— Houston [14th Dist.] 2005, no pet.)

. Further, even when a proper objection is lodged, affidavits remain part of the summary judgment record unless there is a written, signed order sustaining the objection. Id. In other words, failure to obtain a ruling on form objections waives them on appeal. Parkway
Denta l Assocs
., P.A. v. Ho & Huang Props

. , L.P. , 391 S.W.3d 596, 604 (Tex. App.

— Houston [14th Dist.] 2012, no pet.)

. Within its supplemental response to the County’s supplemental motion for partial summary judgment, Farabi objected to the contradictory nature of Hawkins’ affidavit. However, the record here does not reflect that the trial court ruled on Farabi’s objections to Hawkins’ affidavit. Because Farabi f ailed to obtain rulings on this evidentiary objection
, Farabi will not be heard to complain of them on appeal. See id.

We overrule Farabi’s third issue.

III. C ONCLUSION Having overruled all of Farabi’s issues, we affirm the trial court’s final judgment.

/s/ Marc W. Brown Justice

Panel consists of Justices Boyce , Christopher , and Brown

.

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