Failure to appeal Structural Standards Commission order precludes defenses in enforcement suit for civil penaliies
The Gold Feather, Inc. v. City of Farmers Branch, 05-13-01175-CV (Tex. App. – Dallas, Dec. 17, 2014).
This is a structural standards case where the Dallas Court of Appeals affirmed a summary judgment order in favor of the City for Gold Feather’s failure to comply with a commission order.
The City sent notices to Gold Feather of ordinance violations including a parking lot in disrepair, structural disrepair, improper signage, weeds, and more. Gold Feather asserted it recently purchased the property and intended to have it developed but was refusing to bring the property into compliance in the meantime. The Structural Standards Commission held Gold Feather was in non-compliance and assessed civil penalties if the violations were not repaired within 30 days. After giving substantial time for repairs, the City assessed civil penalties in the amount of $22,000 ($500 per day for each day of a continued violation) and brought suit to enforce and collect. Gold Feather asserts it was verbally promised an extension (which as later rescinded) so did not comply as quickly as it could have but should not have been assessed a civil penalty. The City filed a summary judgment which was granted and Gold Feather appealed.
The court first held that Gold Feather’s assertion of ineffective assistance of counsel does not apply to civil cases and the City’s penalties are civil in nature, not criminal. Next, Gold Feather failed to appeal the commission’s order so it could not raise a takings or due process claim by asserting the taking was performed by a non-judicial body. Without deciding whether such a defense/claim is even proper, it must still be raised in an appeal from the commission’s order, which did not occur. As a result, the summary judgment order is affirmed.
If you would like to read this opinion click here. Panel: Justice FitzGerald, Justice Lang, and Justice Brown. Memorandum Opinion by Justice Brown. The attorney listed for Gold Feather is Joyce Byrd. The attorney listed for the City is Whitt L. Wyatt.