Ordinance 30 day limitation to appeal BOA determination was not a statutory prerequisite, so trial court retained jurisdiction of takings claim

Nancy Wedgeworth v. City of Amarillo, et al. 07-15-00301-CV (Tex. App. – Amarillo, May 17, 2016)

This is a structural standards case where the Amarillo Court of Appeals reversed the trial court’s granting of a plea to the jurisdiction.

Wedgeworth owned a house which was damaged by fire. The property was vacated and two years later the City informed Wedgeworth she had two months to repair the structure. The City posted the property for condemnation.  The City Council conducted a hearing at which Wedgeworth appeared and declared the structure a public nuisance. The City demolished the structure three months later. After demolition, Wedgworth sued alleging a takings claim. The City filed a plea to the jurisdiction asserting Wedgeworth did not appeal the demolition resolution to district court within 30 days as she was entitled to, therefore she did not exhaust her administrative remedies. The trial court granted the City’s plea and Wedgeworth appealed.

The Court of Appeals first determined its own jurisdiction noting that the City was served but not all defendants were served. This gives the appearance the order was interlocutory. However, the court held there was no indication (other than the petition) that Wedgeworth intended to proceed against the unserved individuals, so the court treated those claims as abandoned. Therefore, the order granting the plea is final and appealable. Next, even under a takings claim, immunity from suit is not waived by a governmental unit until a claimant complies with all statutory prerequisites to suit. See Tex. Gov’t Code § 311.034 (West 2013). However, the thirty-day window to file suit and challenge the Council’s determination is created by ordinance and does not qualify as a statutory prerequisite. Therefore, the trial court was not deprived of its jurisdiction and the plea should not have been granted as to those defendants who had entered an appearance.

If you would like to read this opinion click here. Panel: Justice Campbell, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Campbell.  The attorney listed for the City is Bryan McWilliams.  Wedgeworth appeared pro se.

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