13th Court of Appeals holds building and standards commission order was final, so could not be collaterally attacked under TOMA


Harker Heights Condominiums, LLC v. City of Harker Heights, Texas, 13-17-00234-CV (Tex. App. – Corpus Christi, March 28, 2019).

In this case the 13th Court of Appeals affirmed the granting of the City of Harker Heights’ plea to the jurisdiction dismissing a claim for injunctive relief to prevent the demolition of a building.

Harker Heights Condominiums (HHC) owns property on which thirty-three condominium units sit and that are leased to low income residents in need of housing. The City inspected the property, found defects and ordered repair.  The inspector found substandard conditions rising to such a level as to pose substantial danger to life, health and property.  The City’s Building and Standards Commission ordered certain properties repaired within ninety days or be demolished. HHC was able to bring one unit up to code, but was not able to timely repair the remaining units. After the City awarded a demolition contract, HHC sued to prevent destruction of the units. An initial temporary injunction was granted. After HHC added a claim for violating the Texas Open Meetings Act (TOMA) the City filed a plea to the jurisdiction which was granted. HHC appealed.

Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. The local government code provides for judicial review of any decision of a building and standards commission panel, but the “district court’s review shall be limited to a hearing under the substantial evidence rule.” To appeal an order of a building and standards commission, an aggrieved party must file a verified petition in district court within thirty days of the commission’s order.  HHC waited eighty days. HHC asserted the “decision” was actually the City Council decision to award the demolition contract, not the Commission’s decision. However, the City’s award was merely the granting of a contract, not an order outlined in Chapter 214 of the Local Government Code. The court noted that even if the HHC injunctive relief were interpreted to be a proper petition for review under Chapter 214, it was nonetheless untimely. This untimely filing also means HHC’s TOMA suit is untimely as holding otherwise would subject the commission order to impermissible collateral attack. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Contreras, Justice Hinojosa and Visiting Judge Dorsey. Memorandum Opinion by Visiting Judge Dorsey. The attorneys listed for the City are Charles D. Olson, Charles Alfred Mackenzie and Burk A. Roberts.  The attorneys listed for HHC are Brandy Wingate Voss,  Ryan D. V. Greene and  G. Alan Waldrop.

December 2018 Condensed Summaries

The problem with December is courts try to get cases off their desk prior to the holiday break. Clients like to get stuff resolved before the holiday break. Which means a lot of stuff happens in December preventing me from keeping up with all of the cases coming out related to governmental entities.  While I do not like to do it very often, I am having to provide a condensed version of the case summaries for December 2018.

  1. 1st District COA holds county courts at law in Harris County are the exception and have exclusive jurisdiction for inverse condemnation claims. San Jacinto River Authority v. Charles J. Argento 01-18-00406-CV (Tex. App. — Houston [1st] Dec. 4, 2018). Opinion click here.  This is 36 page opinion where the First District Court of Appeals in Houston consolidated several cases where homeowners brought takings claims due to flooding. The court held the Legislature gave the Harris County civil courts at law exclusive jurisdiction over inverse-condemnation claims under Texas Government Code § 25.1032(c). Therefore, the district courts lack subject-matter jurisdiction over those claims. The district courts do, however, have subject-matter jurisdiction over the homeowners’ statutory takings claims under Government Code Chapter 2007, the Private Real Property Rights Preservation Act.


  1. University’s plea to the jurisdiction granted as to ex-employee subject to RIF. Francisco Sanchez, Jr. v. Texas A&M University- San Antonio 04-17-00197-CV (Tex. App. – San Antonio, Dec. 12, 2018). For opinion click A University employee (Sanchez) was subject to a reduction-in-force and brought discrimination charges after being demoted. Sanchez had two positions, with one being a project lead. He filed his EEOC charge for one position after the 180-day deadline from the date of the adverse action and the other EEOC charge was filed within 180 days for the second position. The court held the continuing violation doctrine did not apply to Sanchez. Further, Sanchez could not establish discrimination through direct evidence. The RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence.


  1. Fact that attorney “sent” TTCA claim notice letter is irrelevant; TTCA requires notice to be “received’ within time period. City of San Antonio v. Gabriela Rocha 04-18-00367-CV (Tex App. – San, Antonio, Dec.12, 2018). For opinion click This is a TTCA police vehicle accident case. While the TTCA gives a plaintiff 180 days to provide written notice of claim to waive immunity, the City Charter only provided a 90 day window. And while the affidavit of Rocha’s lawyer notes he “sent” the notice timely, the plain language of the TTCA and Charter require the notice to have been “received” within the time period. So, formal written notice was not received timely. The court then analyzed whether the City had actual notice. After examining the record, the court held nothing indicates the City had actual notice of an injury or property damage. As a result, no waiver of immunity exists.


  1. Officer’s F-5 dishonorable discharged sustained since omission of material facts in report qualifies under a discharge for untruthfulness. Patrick Stacks v. Burnet County Sheriff’s Office 03-17-00752-CV (Tex. App. — Austin, 12, 2018). For opinion click here. This is an appeal from an F-5 determination that a sheriff’s deputy was dishonorably discharged. Stacks was terminated after a confidential information who personally observed a stop made by Stacks brought forth testimony of significant omissions by Stacks in his report. Stacks asserted the omissions did not amount to “untruthfulness.” The administrative law judge as the SOAH hearing disagreed and held Stacks was discharged for untruthfulness and therefore the dishonorable discharge should apply. The district court agreed. The court of appeals held the law recognizes the misleading effect of omissions. A failure to disclose a fact “may be as misleading as a positive misrepresentation…” As a result, for F-5 determinations, a discharge for untruthfulness includes a discharge for omitting material information or facts that rendered a statement misleading or deceptive.  The ALJ determination was sustained.


  1. Property Owners’ takings claims failed as Authority acted within its federal license under Federal Power Act. Jim Waller, et al v. Sabine River Authority of Texas 09-18-00040-CV (Tex. App. – Beaumont, Dec. 6, 2018). For opinion click This is a flooding/inverse condemnation case. During a federal license renewal process, residents who live downstream of the Toledo Bend Dam presented their suggestions about changing the regulations governing the hydroelectric plant to prevent flooding. The suggestions were not incorporated. Then a historic rainfall event occurred causing flooding and the residents sued for takings claims. The Authority acted within the terms of its license and the flooding was caused by the historic rain levels. Further, Plaintiff’s arguments would impose duties expressly rejected by the federal agency during relicensing. As such, the claims are preempted by the Federal Power Act.


  1. Supreme Court remands case to COA to reevaluate based on its holding in Wasson II. Owens v. City of Tyler, 17-0888, 2018 WL 6711522, at *1 (Tex. Dec. 21, 2018). For the opinion click here.  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to Wasson. Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the City after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court send remanded the case back to the court of appeals in order analyze the case under the four-part test.



  1. Declaratory Judgment action was first filed, so later filed negligent action must be abated. In re: Texas Christian University, 05-18-00967-CV, (Tex. App. – Dallas, December 21, 2018). For opinion click here. Two negligent/medical malpractice claims were filed, one in Tarrant County and one in Dallas County. The cases are inherently interrelated. The central facts to both lawsuits involve the circumstances surrounding a student athlete’s injury during the September 2015 football game, the subsequent treatment from JPSPG physicians, and the alleged harassment and pressure he felt from TCU’s coaching staff to return to play. To resolve uncertainties regarding the hospital’s liability regarding the athletic event, TCU filed its declaratory judgment action seeking declarations regarding the construction and validity of the Health Services Contract.  As a result, the “first filed” rule dictates the later filed lawsuit by the student must be abated.


  1. Texas Supreme Court details statutory construction to determine emergency medical response exception to liability. Texas Health Presbyterian Hospital of Denton, et al., v D.A., et al. 17-0256 (Tex. December 21, 2018). This is a medical malpractice case, but deals with the emergency medical responder provision of the Texas Medical Liability Act, similar in wording to the emergency responder provision of the Texas Tort Claims Act.  Utilizing statutory construction principals, the court noted punctuation and grammar rules can be crucial to proper construction. The Court focused on the prepositional phrase “in a” hospital, and determined the phrase placed before each contested text indicates the Legislature intended for each phrase to be treated separately. The Plaintiff’s construction argument would require the Court to ignore the second use of the prepositional phrase “in a” and renders that language meaningless. The Court declined to use external aides for construction (including the legislative history). While the Texas Code Construction Act allows a court to rely on such aides, even for unambiguous statutes, the Court held it is the Court, as the high judicial body, who decides when such aides will be used, not the Legislature. Further, statements explaining an individual legislator’s intent cannot reliably describe the legislature body’s intent. By focusing on the language enacted, the Court encourages the legislature to enact unambiguous statutes, it discourages courts from usurping the legislature’s role of deciding what the law should be, and it enables citizens to rely on the laws as published. As a result, based on the language in the statute, the Plaintiffs must establish willful and wanton negligence when their claims arise out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department or at some point later, after the urgency has passed.


  1. Dog owner could seek injunction stay of municipal dangerous dog court order in county court at law. The State of Texas by and through the City of Dallas v. Dallas Pets Alive, Nos 05-18-00084-CV and 05-18-00282-CV. For the opinions click here and here. Rusty, a pit bull/terrier mix dog, bit and injured a two-year-old child at an adoption event. The City determined Rusty was a dangerous dog under Texas Health & Safety Code § 822.002 in municipal court. The adoption center filed an appeal but also filed for injunctive relief in county court at law to stop the municipal court’s order, which the county court at law granted. The City filed a plea to the jurisdiction as to injunction order which was denied. The majority opinion held where the state initiates litigation, it has no immunity from suit. Further, the appellate court (i.e. county court at law) has jurisdiction to protect its own jurisdiction (i.e. involving the subject of a pending appeal). The court held the county court at law had jurisdiction to hear the dangerous dog appeal from municipal court and the injunction was propepr. Justice Lang dissented and would have held the county court at law would not have jurisdiction over the appeal.

City properly brought enforcement of junked vehicle ordinance in district court, but city ordinance did not properly adopt alternative administrative procedure


In re Philip T. Pixler, 02-18-00181-CV (Tex. App. – Fort Worth, July 26, 2018).

This is a mandamus suit where the Fort Worth Court of Appeals held the district court had jurisdiction over the City of Newark’s enforcement of its junk vehicle ordinance, but that the City ordinance did not properly create an alternative mechanism to allow for administrative penalties.

Pixler owns an auto-tech business and would sometimes store vehicles in parking spaces and on the neighboring property.  Pixler was given eight complaints which were submitted to an administrative board under the City’s ordinances. The board determined the vehicles were junk vehicles and assessed $8,000 in administrative penalties. Pixler did not challenge the board decision directly. The City then filed a petition in district court seeking (1) to enjoin Pixler from further violating its ordinances, (2) to collect the $8,000 in administrative penalties, and (3) to impose separate civil penalties against Pixler for continuing to violate its ordinances. The City won a partial summary judgment motion and awarded penalties totaling $80,000.00, but since the City’s Texas Uniform Fraudulent Transfers Act claim is still pending, no final judgment has been entered.  Pixler filed this mandamus proceeding challenging the district court’s subject matter jurisdiction over the matter.

The court divided the holding into roughly three parts: district court jurisdiction over junk-vehicle determinations, district court jurisdiction over administrative penalties assessed by the administrative board, and the district court’s jurisdiction over the additional civil penalties. Subchapter B of chapter 54 of the Texas Local Government Code addresses health and safety ordinances and allows a district court to have jurisdiction over enforcement of such ordinances. And §54.016 permits the municipality to obtain injunctive relief against the owner of the premises that is allegedly in violation of the ordinance. Since the City ordinance declares any junked vehicle visible from a public place to be detrimental to the safety and welfare of the public, enforcement is properly in the district court.  And since §54.017 allows civil penalties of no more than $1,000 per day, the district court has jurisdiction over the civil penalties. However, for administrative penalties assessed by the administrative board, the City’s ordinances did not comply with the statutory requirements. The City’s ordinances adopt the procedures established under the Texas Transportation Code chapter 683 for abatement of junked vehicles. But, the procedures adopted address enforcement in municipal court before a judge.  And while Subchapter E of Chapter 683 allows a city to adopt an alternative procedure for junked vehicles and §54.044 of the Local Government Code likewise allows a city to adopt a general alternative procedure, none of the City’s ordinances actually did that. The court acknowledged the City has the statutory authority to adopt an alternative administrative procedure, but to do so, the City must adopt a specific ordinance setting out the process. Simply because the City has a municipal court of record, does not, by default, mean it can utilize an alternative administrative procedure. Because the City utilized that procedure when its ordinances did not adopt one, the administrative board lacked authority to assess the $8,000 administrative penalty.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Walker and Justice Meier. Opinion by Justice Meier.  Attorneys listed for the City real parties in interest are William Andrew Messer  and William W. Krueger, III.  Pixler appeared pro se.

Property owners cannot sue on City’s right to amend deed restrictions on lots it owns or create City park; increased traffic and noise cannot be basis for inverse condemnation claim

The City of Friendswood and Kevin Holland v. Paul and Carolyn Horn, et al., 01-15-00436-CV (Tex. App. – Houston [1st Dist.], February 11, 2016).

This is essentially an inverse condemnation case where the First Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the Plaintiff’s claims involving converting adjoining property to a city park.

After Tropical Storm Allison destroyed the Imperial Estates Section One subdivision, the City of Friendswood acquired most of the subdivision’s 42 lots through a federally-subsidized flooding mitigation program from FEMA.  The program required the City to leave the lots open for flood control, but the lots could be used for specific purposes, including a park.  Four property owners did not sell and rebuilt their homes. Ten years later, the City decided to develop the lots (consistent with federal guidelines) into a park and the home owners sued asserting the park was inconsistent with deed restrictions, was an inverse condemnation, and a nuisance. The trial court denied the City’s plea to the jurisdiction and the City appealed.

The 1958 deed restrictions dictated that lots were dedicated “for residential purposes only.” Since the City owned 38 lots, it had the ability to amend the restrictions under the express terms of the deeds and did so through a properly posted meeting. The City’s actions were in furtherance of flood control and public park development, which are governmental functions as a matter of law, not proprietary. As a result, immunity applies. Under the takings analysis, the court determined the City did not enter onto the Plaintiff’s property, but merely moved forward with developing the lots it already owns. The homeowners’ live pleadings does not allege that any diminution in the value of their lots occurred when the City acquired lots in 2001. Rather, the homeowners allege that the City’s decision to place a park adjacent to their property 10 years later impairs the peaceable use and enjoyment of their property. These allegations cannot support an inverse condemnation claim for compensation. “[I]ncreased traffic and noise to a community do not give rise to a compensable taking.” The homeowners’ nuisance claim is premised on the same allegations as their inverse condemnation claim and is also insupportable. Further, the City is immune from any declaratory judgment claims or contract claims arising out of its right to amend the covenants. To the extent the homeowners seek injunctive relief or specific performance to enforce the deed restrictions, these claims for relief may not be brought against a governmental unit. The City is immune from misrepresentation claims as such are intentional torts. Finally, the undisputed evidence established properly Texas Open Meetings Act postings, so the ultra vires claims against the Mayor are dismissed.

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Bland and Justice Huddle. Opinion by Justice Bland. The attorneys listed for the Plaintiffs are Aaron Mark Pool and James T. Sunosky. The attorneys listed for the City are William S. Helfand and Charles T. Jeremiah.

County did not abandon roadway and property owners’ erection of fence constituted nuisance per se

Gregory R. Mattox and Barbara Wilkerson v. Grimes County Commissioners’ Court, 01-14-00535-CV (Tex. App. – Houston [1st Dist.], August 27, 2015)

Mattox and Wilkerson own lots within a subdivision. They filed applications with the County to close a public roadway on the lots noting the County had abandoned the property. The County granted a different applicant’s request to a different part of the road but denied Mattox and Wilkerson’s requests. The County noted those sections were still in use and not abandoned. After various disputes, they constructed a fence across the road. The County sued alleging the fence was a “public nuisance per se” because it constitutes an “unreasonable” interference with the public’s use of the Hill Forest Lane and prevents the County from maintaining the road. Mattox and Wilkerson asserted the County never maintained that area of the roadway and therefore abandoned it. The trial court granted summary judgment for the County and declared the road public.

After a lengthy recitation of the evidence and record, the court noted the record clearly indicates the roadway was dedicated and public. It also indicates no evidence of abandonment by the County. The evidence clearly indicates Mattox and Wilkerson erected a fence blocking public access, which is a nuisance per se. Further the opening up of a dedicated street for the greater part of its length by a municipality constitutes an acceptance of the whole of the street as dedicated, in the absence of anything to show a contrary intent, and the “fact that a portion of the street is not capable of being traveled does not militate against acceptance.”

If you would like to read this opinion click here. Panel: Justice Jennings, Justice Bland and Justice Brown, Memorandum Opinion by Justice Jennings.  The attorney listed for the County is Jon C. Fultz.  The attorney listed for Mattox and Wilkerson is Gary L. Leonard.

City can sue for damages to property values due to nuisance for acts occurring outside ETJ says Amarillo Court of Appeals.



Town of DISH, et al v. Enbridge Gathering (North Texas) L.P., et al.,  07-13-00391-CV (Tex. App. – Amarillo, June 1, 2015)

This is a consolidation of three separate cases with multiple parties and multiple defendants with certain procedural complexities. For the government lawyer, the important thing to take away from the case is the ability of the City to sue for damages (lost tax values) due to nuisance and trespass.

Eighteen property owners and the City of DISH sued six different energy production companies (“Energy Defendants”) alleging noise, light, odors and chemical particulates emanating from the facilities constituted trespass and a nuisance and a decrease in property value. Essentially, the facilities were natural gas pipeline compressor stations near the outskirts of DISH. There appears to be no dispute the Energy Defendants were operating within federal and state regulations for production and emissions. Nevertheless, the City and property owners sued due to the damage in property values and loss of enjoyment of property. The trial court granted various motions ultimately dismissing the claims and the City and property owners appealed.

The Amarillo Court of Appeals spent considerable time explaining why odors and particles can constitute trespass and a nuisance. The court then explained that simply because the Energy Defendants complied with regulations on emissions, does not mean they are immune from the consequences those emissions may cause. “Stated another way, just because you are allowed by law to do something, does not mean that you are free from the consequences of your action. … Regulatory compliance or licensure is not a license to damage the property interests of others.”  However the court also held that diminution in future value or a damage of $1,000 per day is more akin to a penalty or future regulation which is preempted by federal and state law. One Energy Defendant argued the City lacked authority to sue for actions taken outside of its extra-territorial jurisdiction (“ETJ”).  The court first noted the City has authority to sue for damages.  That is different than suit to enforce regulations or to attempt to regulate outside of its boundaries. “Here, DISH does not seek to regulate or abate any of Enterprise’s operations but, instead, seeks to recover damages allegedly resulting from lost tax revenues occasioned by the diminution in value of its tax base…” which is permissible. The court made other holdings which were specific to the property owner claims and are not addressed here.

If you would like to read this opinion click here. Panel: Chief Justice Quinn, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Pirtle.  The docket page with attorney information can be found here.



No-evidence summary judgment is improper vehicle to make jurisdictional challenge says 14th Court of Appeals

Frank and Shelley Thornton v. Northeast Harris County MUD 1, 14-13-00890-CV (Tex. App. – Houston [14th dist.], July 24, 2014).

This is an interlocutory appeal in a condemnation case where the property owner filed counter-claims. The Houston Court of Appeals for 14th District reversed in part the summary judgment motions granted for the MUD and affirmed in part with a remand.

After discovering during a project that the MUD did not have a recorded easement on certain land, the MUD filed an eminent domain suit to acquire part of a drainage easement on the Thorntons’ land. The special commissioners awarded Thorntons $2300 in damages. Thorntons objected to the award and refused to allow the MUDs contractors onto his property to complete the project already underway. The trial court granted the MUDs partial summary judgment motion regarding its “right to take.” Thorntons filed counterclaims for inverse condemnation, trespass, negligent trespass and nuisance. The MUD filed a plea to the jurisdiction and summary judgment as to the counterclaims. The trial court granted the MUD’s summary judgments and did not rule on the plea. The Thorntons filed an interlocutory appeal but the MUD argued that since the plea was not ruled upon, there was no right to interlocutory appeal.

The court first determined that the MUD’s traditional and no-evidence summary judgments made sovereign immunity arguments essentially the same as their plea and therefore the Thorntons had the right of interlocutory appeal from the ruling on sovereign immunity. The court next spent some time discussing the “negligent trespass” claim. After a detailed analysis the court determined the MUD maintained immunity for such a claim. Essentially, the only basis for waiver of governmental immunity the Thorntons alleged in their petition was article I, section 17, of the Texas Constitution. Because the Thorntons asserted no other grounds for a waiver of MUD’s governmental immunity, and a claim for constitutional taking cannot be based on mere negligence, the Thorntons’ pleadings failed to invoke and affirmatively negated the trial court’s jurisdiction. However, as to the inverse condemnation, trespass and nuisance, the Thorntons established jurisdiction through their pleadings. The MUD entered onto their property (presumably because it incorrectly believed it had a recorded easement) and began excavations and project development. The MUD had knowledge that its excavation process could lead to lead-contaminated soil which could destroy the property for purposes other than a drainage easement. As a result, the inverse condemnation element of intent was satisfied. Since the project was for a necessary drainage easement, the Thornton’s satisfied the “public use” requirement.

However, the most significant holding was when the court determined that it was improper to make a jurisdictional ruling based on a no-evidence motion for summary judgment. Adopting the reasoning of the 1st District’s holding in Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2012, no pet.) it held allowing defendants to challenge subject matter jurisdiction by way of no-evidence motion would force plaintiffs to “put on their case simply to establish jurisdiction” and would eliminate any burden on the defendant other than to identify the specific ground he believes to be lacking evidentiary support.  The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue.  Without analyzing whether the evidence submitted was sufficient, the court summarily determined the no-evidence summary judgment motion is simply improper to use.  As a result, the “negligent trespass” claims are dismissed and the remaining claims are remanded for trial.

If you would like to read this opinion click here.  Panel: Justice Boyce, Justice Christopher and Justice Brown.  Memorandum Opinion by Justice Brown. The attorneys listed for Thornton are Jonathan Scott Stoger and J. Marcus Hill.  The attorney listed for the MUD is Charles Black McFarland

Appellant did not submit court records, so waived takings and structural standards appeal

Samuel T. Russell v. City of Dallas, 05-13-00061-CV (Tex. App. – Dallas, May 16, 2014).

This is a substandard building case where Russell challenged the demolition of a building on his property and brought a takings claim against the City. The trial court issued a judgment for the City and the Dallas Court of Appeals affirmed.

The City sought and received a demolition order for a building on the property from its municipal court of record.  Russell filed suit asserting that since acquiring the property he had brought it up to code (or close enough), it was no longer an urban nuisance under the City’s Code, and he brought a takings claim.  The trial court entered a temporary order requiring Russell to do certain actions and make the property available for inspection.  However, after a trial to the court, the court ordered the building demolished and Russell appealed.

This holding is not of great significance because the court never really gets to the heart of the matter. It first notes that since Russell did not present a reporter’s record of the trial or request findings of fact, the appellate court must assume the record supports the judgment. Russell failed to properly preserve for appeal his challenge to the requirement of a verified pleading (because it can be waived). His takings claim focused on unpled claims and without a proper record to show otherwise, Russell waived this claim as well. The trial judgment was affirmed.

If you would like to read this opinion click here. Panel: Justice FitzGerald, Justice Fillmore, and Justice Evans.  Memorandum Opinion by Justice Fillmore. The attorneys listed for the City are Thomas P. Perkins Jr., Barbara E. Rosenberg, Christopher J. Caso, and Andrew M. Gilbert.  The attorneys for Russell are Samuel T. Russell and Timothy E. Baker.

Takings claim can be heard in appeal from demolition order says Waco Court of Appeals

City of Bryan/Building and Standards Commission v. Kenneth Cavitt, 10-13-00259-CV (Tex. App. – Waco, May 8, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a structural standards case. The Waco Court of Appeals affirmed the denial.

The City determined the Cavitt property was dilapidated, hazardous, and a public nuisance. In numerous public meetings Cavitt requested the ability to bring the property up to code. The Building and Standards Commission (“BSC”) issued a repair schedule and ordered the Plaintiff to attend each BSC meeting to demonstrate compliance with the schedule. When Cavitt failed to comply with the schedule without adequate explanation, the BSC ordered its demolition. Cavitt appealed the order to district court. In his appeal, he also brought a takings claim. The City filed a plea to the jurisdiction arguing no taking could occur since it was declared a public nuisance. The trial court denied the plea and the City appealed.

The 10th Court of Appeals held that this type of lawsuit is fundamentally a constitutional one and, pursuant to City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012), the determination of a nuisance ultimately must be determined by a court, not a commission. Before a nuisance determination will act as a bar to a takings claim, the determination must be reviewed de novo by a court. As a result, the trial court retained jurisdiction. Both the appeal from the demolition order and the takings claims can be heard.

If you would like to read this opinion click here. Panel: Chief Justice Gray, Justice Davis, Justice Scoggins.  Memorandum Opinion by Justice Scroggins. The attorneys listed for the City are Danielle Craig and William W. Krueger III. The attorney listed for Cavitt is Neeley C. Lewis.

Property owner’s suit frivolous after challenging nuisance and demolition determination

Marilyn Stewart v. The City of San Antonio 04-13-00720-CV (Tex. App. – San Antonio, April 30, 2014).

The underlying suit arises out of a structural standards commission determination a building is substandard and ordering its demolition. Stewart was a lienholder and possible property owner who appealed the determination but lost at the trial court. The court determined the appeal was frivolous since Stewart had no grounds, so she appealed to the San Antonio Court of Appeals.

While she asserted her appeal was not frivolous, her focus centered on the trial courts failure to address her ownership interest. However, she did not contest the nuisance finding. As a result, no substantial question exist for appellate review by the trial court.  It affirmed the determination the appeal was frivolous.

If you would like to read this opinion click here. Panel: Chief Justice Stone, Justice Angelini, Justice Marion. Memorandum Per Curiam opinion. Attorneys listed for the City are Savita Rai and Samuel Charles Wood Adams. Ms. Steward was pro se.

Sewer line suit dismissed for lack of jurisdiction

The City of Madisonville v. Theresa Murders and Martina Maldonado, 10-13-00234-CV (Tex. App. – Waco, April 17, 2014)

This is a Texas Tort Claims Act case where the Plaintiffs brought suit against the City and contractor alleging damages after the City replaced a sewer line in front of their business. The Waco Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

The court did not go into great detail regarding the underlying facts. It simply noted that “[e]ven giving the most liberal construction of the Murders’ and Maldano’s pleadings, there are no facts alleged” which establish a waiver of immunity under the Texas Tort Claims Act.  At most, they allege the City failed to simply maintain the system generally and negligent in its efforts to help the contractors locate the sewer line which needed to be replaced. Further, the Plaintiffs claims for mental anguish and nuisance do not fall under any waiver. As a result, the trial court erred in denying the plea.

If you would like to read this opinion click here. Panel: Chief Justice Gray, Justice Davis and Justice Scoggins. Opinion delivered by Chief Justice Gray. Attorneys for Appellant City of Madisonville are John Hightower and Brian Begle. Attorneys for Appellee Maldonado and Murders are Roger Knight, Jr. and Timothy Lee.

Knowledge of preventable damage does not equal intent to damage under Takings claim says 4th Court of Appeals



San Antonio Water System v. Robert Overby and Teresa Overby, 04-13-00364-CV (Tex. App. – San Antonio, March 19, 2014)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a flooding case which the San Antonio Court of Appeals reversed and rendered.

The Overbys allege their yard and home were flooded by rainwater and sewage over several years due to a deteriorated condition of an alleyway behind their home. They sued several entities including the San Antonio Water System (“SAWS”). Specific to SAWS, the Overbys  claimed it failed to maintain manhole covers and the sewer system and brought takings, negligence, declaratory judgment and nuisance claims.  SAWS filed a plea which the trial court granted in part and denied in part, dismissing the declaratory judgment action and negligence claims. After further discovery, SAWS filed a second plea which the trial court denied and it appealed.

The 4th Court first determined SAWS was a governmental entity subject to takings claims. Examining the evidence most favorable to Overby, it assumed SAWS knew it should have changed the grade in the alleyway.  However, such is not evidence of the necessary intent to form a takings claim. While SAWS may have known the damage was preventable, that does not equate to an intent to deprive the Overbys of their property. The takings claim should have been dismissed. As to nuisance, the Overbys claim the Texas Tort Claims Act waives immunity for such a claim. However, even if accurate, there is no nexus between the use of motor driven equipment and the alleged injury.  The injury related not to the use of equipment but to the state the alley was left. As a result the nuisance claim should have been dismissed. The order denying the plea was reversed and judgment rendered.

If you would like to read this opinion click here.  Panel: Justices Olvarez, Barnard, and Bryan Marion. Opinion by Justice Olvarez. The attorneys listed for SAWS are Patrick C. Bernal and Clarissa Rodriguez. The attorney listed for Overby is Robert Wilson.

Property owner can replead to fix flooding case petition defects

THE CITY OF CORPUS CHRISTI v. AGUIRRE PROPERTIES, INC., 13-13-00314-CV (Tex. App. – Corpus Christy, December 19, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a negligence, takings, and nuisance case involving three instances of flooding. The 13th Court of Appeals affirmed in part and reversed in part.

The property owners alleged in the petition that the City uncovered a damaged sewer line and initiated repairs with motor-driven equipment. A few weeks later the City ruptured a parallel line about ten feet away from the property.  As a result, the property was flooded through the lines as well as above ground flooding.  The City then “jetted” the line which the Plaintiff alleges damaged the line further exacerbating the flooding.  The court essentially reposted almost the entire petition language in an attempt to focus on the proper way to plead a cause of action and also several paragraphs out of the plea.

The court first noted that the City failed to provide any evidence to counter the pleading allegations so the court based its determination on the pleadings alone. The pleadings allege the use of motor driven equipment which ruptured the lines and proximately caused the damages for the second flooding event. As a result, the Plaintiffs met the “nexus” requirement between the use of motor driven equipment and the damage. However, for the first and third flooding events, the use of equipment to merely attempt a repair is not a proper nexus. But since a pleading defect such as this could be cured, the Plaintiff should be given the ability to replead and properly allege the nexus.

With respect to the taking’s claims, the court held the accidental occurrences of the three flooding events is not an “intentional” taking.  However, the to the extent the  City blocked access to the property for several months, created dirt banks and damaged the property while repairing the lines by tearing up the blacktop and replacing it with only dirt, such occurrences could be viewed as intentional and for public use so those claims were permitted to go forward. The nuisance claim as it related to the second flooding event was also permitted to go forward and the Plaintiff should be permitted to replead with respect to the other two.

If you would like to read this opinion click here.

Tort Claims Act does not permit partial community damage even if tangible personal property is used


 Port of Houston Authority v. Aaron, et al. No. 01-12-00373-CV (Tex. App. – Houston [1st Dist.] September 5, 2013).

This is one of two cases decided at the same time involving the same parties. This case is an interlocutory appeal from the denial of a plea to the jurisdiction in a suit where numerous property owners sued the Port of Houston Authority (“Port”) alleging a container terminal constituted a nuisance and violated noise ordinances. The First Court of Appeals reversed the denial and determined that no waiver of sovereign immunity exists for this type of case.

The Port is a complex of marine terminals and facilities including container docks. Ninety-five property owners sued the Port under the Texas Tort Claims Act (“TTCA”) alleging the excessive noise, light, and chemical pollution interfered with their use of their properties. The Port defended via plea that the TTCA requires physical damage to property and physical bodily injury, not the economic loss, diminution in value, and mental anguish asserted by the property owners. The court sidestepped the issue of the TTCA requiring a physical damage, and held the property owners did not suffer an indivisible injury apart from those generally surrounding the terminal. No one plaintiff alleges a particularized injury to property, but only general injuries suffered by anyone near the terminal. In the accompanying case, the court held the concept of community damage is not necessarily the location, but the nature/type of injury that is determinative. Pulling from case law on different types of constitutional takings claims, the court held the TTCA cannot be brought for injuries suffered by the community as a whole and can only be brought for particularized injuries. Further, no specific personal injury is plead. The mental anguish alleged in the specific live pleadings is a minor derivative symptom, not an injury in itself (both under common law and the T TCA). So no waiver of immunity exists.

If you would like to read this opinion click here.

If you would like to read the accompanying opinion involving inverse-condemnation and intentional nuisance (which holds exactly the same thing) click here.

Air quality ordinance is constitution; no preemption says 1st Court of Appeals


City of Houston v. BCCA Appeal Group, Inc., No. 01-11-00332-CV (Tex. App. – Houston [1st Dist.], August 29, 2013)

The Houston Court of Appeals was asked to determine the constitutionality of ordinances regulating air pollution (preemption). The ordinances were challenged by a group of business owners operating industrial facilities. The trial court granted BCCA’s summary judgment and denied the City’s; the City appealed. In this 34 page opinion the First District Court of Appeals reversed and granted the City’s motion dismissing the case.  In other words, the ordinances are constitutional and not preempted.

The City of Houston created an air quality program which, among other things, required facilities to register with the City and pay a registration fee. The City also criminalized the operation without such registration, which enforcement occurred in municipal court. The ordinances provided an affirmative defense if a facility can show it received a permit from the TCEQ. The ordinances incorporated TCEQ regulations by reference (ensuring that changes to TAC codes were automatically incorporated) and authorized the health inspector to carry out enforcement.

BCCA asserts the ordinances are preempted by state law since the Legislature granted such regulatory powers exclusively to the Texas Commission on Environmental Quality (“TCEQ”) in the Texas Clean Air Act (“TCAA”) and the provisions of the Texas Water Code (TWC) that govern enforcement of the TCAA. The TCEQ has the sole authority to authorize air emissions and issue permits. However, the TCAA also states municipalities retain power to abate nuisances and air pollution as long as such abatement does not prohibit something authorized by a TCEQ permit.

The court held preemption must be made with unmistakable clarity. State law grants the TCEQ power but does not expressly make it exclusive. To the contrary, the TCAA acknowledges a city’s retained power. And simply because a state law addresses a subject does not mean it implicitly precludes local governments for regulating the same subject as long as it’s consistent. The registration permit is not preempted. The fees are not preempted as long as there is a reasonable relationship with the administrative costs (where there are in this case since they are the same as TCEQ’s). Enforcement of the substantive quality provisions and incorporate TCEQ regulations are proper. (The court noted they could not be inconsistent unless the TCEQ regs were inconsistent with themselves). The City has the ability to enact and enforce its own ordinances which are consistent with state law.

At the risk of this summary being toooooo long, I would like to point out the BCCA made an interesting argument which was shot down, but was still interesting. It asserted that by incorporating by reference the TCEQ regulations, it unconstitutionally delegated to the TCEQ the ability to amend a City ordinance. The court noted it was unable to find any case law on this subject of incorporation by reference and all future references (so this is a first impression holding).  Luckily, the court held the ongoing “amendment” of the ordinance is meant to ensure the ordinance remains consistent with state law and not invalidated by a TCEQ amendment. As a result, it is permissible.  The end result of this opinion is the City can regulate air-quality consistent with state law and can require registrations.

If you would like to read this opinion click here.