Friday, February 19, 2010 by Austin Monitor

Whittington prevails over city again in battle for downtown lot

Downtown property owner Harry Whittington has won what may be the final round in his quest to prove that he was right and the City of Austin was wrong in condemning his property, a city block bounded by Red River and Sabine streets between East Fourth and Fifth streets.

 

The 3rd Court of Appeals announced Thursday that it has affirmed a prior ruling in favor of Whittington and against the City of Austin. The city took Whittington’s property in condemnation in order to build a Convention Center parking garage and Austin Energy chilling plant.

 

City officials began trying to buy the lot from Whittington in 2002, at about the same time that an addition to the Convention Center and the Hilton Hotel were being built. Later, after negotiations with Whittington for the property failed, Council members voted to pursue getting the property through eminent domain. The city filed the suit in 2003, and lost an initial appeal to the 3rd Court of Appeals in 2005.

 

The case went back to the original court for a rehearing, and has once again come back to the 3rd Court of Appeals, for what appears to be a final ruling. In the midst of the appeals process, the city offered Whittington and his family more than $14 million to settle the matter, but he refused the offer.

 

It is not clear what will happen to the parking garage and energy apparatus now, although it is possible to move the chiller to another site.

 

Besides the Whittingtons, the other winners in this case are attorneys Mike McKetta and Bill Christian of Graves Dougherty Hearon and Moody, who tried the case.

 

The court found that the jury had a basis to find that the city acted in bad faith in the case. Judge David Puryear wrote, “Evidence introduced at trial showed that another plant had previously provided the water (for the chiller) and actually continued to do so after the Block 38 (Whittington’s) plant was built.”

 

“The evidence also showed that the author of the Final Offer letter knew as much,” the judge wrote, “having previously received an email from the City’s project manager stating that ‘this new plant is not absolutely necessary,’ but nevertheless decided to represent that the plant was necessary in the Final Offer letter. Such a knowing misrepresentation is more than a scintilla of evidence of bad faith.”

 

The court concluded, “The Whittingtons rightly prevailed because, at a minimum, their defense of bad faith was supported by legally and factually sufficient evidence. They were also entitled to recover attorney’s fees totaling $674,418.57.”  This is the only part of the judgment that is good news for the city, which previously had been ordered to pay more than $779,000 in attorneys’ fees.

 

Whittington is, of course, the famous hunter accidentally shot by former Vice President Dick Cheney while they were hunting quail in South Texas in 2006. He suffered minor injuries when Cheney fired his shotgun at a bird that flew near Whittington.

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