Howeth Invst Inc, et al v. City Hedwig Village, et

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 31, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20162
Summary Calendar
HOWETH INVESTMENTS, INC,;
JACK HOWETH, as Trustee for the
881 Brogden Trust and the 901
Brogden Trust, assignees of
Howeth Investments, Inc.,
Plaintiffs-Appellees,
versus
THE CITY OF HEDWIG VILLAGE PLANNING
AND ZONING COMMISSION; S. FRANK WHITE;
NORMAN WARD; KATHY VASQUEZ; BOB WEINER;
CITY OF HEDWIG VILLAGE, TEXAS,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-4270
--------------------
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Howeth Investments and Jack Howeth, as trustee for two
family trusts, (hereinafter “Howeth”), sued the City of Hedwig
Village Planning and Zoning Commission and its chairman, Frank
White, (hereinafter the “Commission”) in state court, alleging

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No. 04-20162
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that the Commission had wrongfully refused to approve Howeth’s
plans for subdividing two existing residential lots into four
lots. The Commission removed the suit; Howeth filed a motion to
remand and sought an award of attorney’s fees pursuant to
28 U.S.C. § 1447(c). The district court found that the removal
was not timely filed, remanded the case to the state court, and
awarded Howeth attorney’s fees in the amount of $19,306.
Although 28 U.S.C. § 1447(d) precludes this court from reviewing
the remand order, this court has jurisdiction to review the
district court’s award of attorney’s fees and costs under
§ 1447(c). Miranti v. Lee, 3 F.3d 926-928(5th Circ. 1993).
The Commission argues that the removal was timely filed
because it was filed within four days of Howeth’s filing of its
sixth amended complaint, which was the first pleading filed
asserting claims giving rise to federal question jurisdiction.
Howeth responds that its initial petition and fourth amended
petition placed the Commission on notice that it was asserting
federal claims and, thus, the Commission should have sought
removal based on those earlier pleadings. The district court
agreed with Howeth’s argument.
A review of initial petition and the fourth amended petition
reflects that Howeth was seeking relief under the Texas
Constitution and state statutes. At that point in the
litigation, the Commission did not have an objectively reasonable

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No. 04-20162
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basis to seek removal to federal court. See Valdes v. Wal-Mart
Stores, 199 F.3d 290, 293 (5th Cir. 2000).
Howeth alleged a federal takings claim in his sixth amended
petition. However, that claim was not ripe for federal review
and could not serve as a basis for removal. See Samaad v. City
of Dallas, 940 F.2d 925, 933 (5th Cir. 1991).
Howeth’s substantive due process claims specifically alleged
in the sixth amended petition supported federal jurisdiction even
if the related takings claim was not ripe for federal review.
See Simi Investment Co. v. Harris County, Texas, 236 F.3d 240,
248-49 (5th Cir. 2000). Because the Commission did not have an
objectively reasonable ground for removal until it received
notice of the sixth amended petition, the district court’s award
of attorney’s fees was an abuse of discretion. See Valdes,
199 F.3d at 293. The judgment making the award attorney’s fees
is REVERSED.

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