Court’s use of judicial notice establishes Plaintiff failed to act timely and therefore his inverse condemnation claims are dismissed
The City of El Paso v. John Fox, 08-12-00264-CV (Tex. App. – El Paso, October 8, 2014)
This is an interlocutory appeal from the denial of a plea to the jurisdiction in which the El Paso Court of Appeals reversed the denial and dismissed Fox’s claims.
The City issued an order removing the electric meters on an apartment complex which Fox owned jointly with Perkins. Perkins sued for due process violations and inverse condemnation and Fox intervened asserting he was the primary owner. The City filed a plea to the jurisdiction (among other things) but the trial court denied the plea.
The court first noted that Fox filed an amended petition seeking declaratory judgment and injunctive relief which sought only equitable damages, therefore he was not recasting a damages claim as a declaratory judgment action. Next, the court noted that Tex. Loc. Gov’t Code §214.0012 grants a party the right to file a verified suit to challenge an order like the one issued by the City, but only as a writ of certiorari to declare part or all of the order illegal. Interestingly enough, the court held it could take judicial noticed on appeal of the official minutes of the City Council meetings posted on the website even though the City’s counsel did not provide them to the court in its brief. It then noted the minutes reflect Fox’s appearance, the City’s proceedings, the City’s order giving Fox time to fix the problems and that the problems were not fixed. This essentially destroys Fox’s due process claims. However, the Court does not hold that. Instead it simply states that regardless of all of those facts, Fox did not file a verified pleading pursuant to §214.0012 and therefore did not invoke the court’s jurisdiction. Fox had filed a previous appeal on a collateral issue and the court took notice of the fact it had determined Fox failed to file a verified plea at that time. His claims were dismissed.
If you would like to read this opinion click here. Panel: Chief Justice McClure, Justice Rodriguez, and Justice Rivera. Opinion by Chief Justice McClure. The attorney listed for the City is John Gates. Fox represented himself.
