4th Court of Appeals holds City failed to raise Stewart defense in pre-Stewart MSJ

Chin Wu v City of San Antonio, No. 04-10-00836-CV (Tex. Civ. App. – San Antonio March 6, 2013).

This is a dangerous structure/inverse condemnation takings case where the 4th Court of Appeals reversed the order granting the City of San Antonio’s summary judgment motion.  Plaintiffs owned an apartment building which became dilapidated and the City’s Dangerous Structure Determination Board ordered is demolition. Plaintiff’s appealed the destruction order and sought a temporary injunction to prevent demolition.  Through interlocutory appeal, the Court of Appeals determined substantial evidence supported the demolition.  The injunction was denied and the building demolished.

After the demolition, Plaintiffs amended their petition to include inverse condemnation claims. City moved for summary judgment asserting the Board’s determination of nuisance collaterally estopped the takings claim.  [It is important to note that the trial court’s ruling and the appeal occurred before the Texas Supreme Court issued its opinion in City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012).  Briefing occurred in 2011, although supplemental briefing was permitted after Stewart].

The Court first determined that because the prior interlocutory appeal regarding the injunction was held under a substantial evidence review, which is incorrect under Stewart, that ruling is not preclusive. Since the City did not present evidence in the appeal of public nuisance it failed to establish the building was a public nuisance for purposes of the current appeal.

The City asserts Stewart holds that summary judgment was proper because Appellants did not file their takings claim in the appeal from the DSDB’s nuisance determination.  However, the Court of Appeals notes that since that argument was not raised in the summary judgment, it did not raise the issue and it could not bring it forward on appeal.

Comments: It seems a little unfair the City is penalized for moving forward and demolishing the building after it received an order from the trial court, court of appeals, and denial of writ by the Texas Supreme Court under the first appeal. It also seems a little unfair that the Court of Appeals held the City to a burden of properly raising a defense in the summary judgment which was not outlined until over a year and a half later in Stewart. Stewart clearly indicated a balance of allowing a takings claim after demolition, but only if the claim is brought within the time period of the original appeal to the trial court from the Board.  I guess the good news for the City is that even though it is back in the trial court, it can now follow the outline given by the 4th in proving and raising the Stewart defenses.   The case is not necessarily over.  The bad news is the City is back in the trial court under a de novo review.

If you would like to read this opinion, please click here.


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