Texarkana holds city properly supported its summary judgment to permanently enjoin mobile home park


Polecat Hill, LLC, et al. v. City of Longview, Texas, et al. 06-20-00062-CV (Tex. App. – Texarkana, December 2, 2021).

This is a nuisance/permit case brought under Chapter 54 of the Texas Local Government Code where the Texarkana Court of Appeals affirmed the judgment entered on behalf of the City.  [Comment: this is a long, 39-page opinion].

Polecat owned 5 acres of land within the City limits. Polecat received a notice of violation from the City asserting the property violated several health and safety ordinances and needed to be repaired. After receiving the notice, Polecat sued the City. The city counterclaimed against the corporate owners and sued the property in rem. Polecat asserted the property had operated as a location for manufactured dwellings to affix to real property and obtain connections since the 1960s. Polecat argued that the City refused to allow it to proceed with its plans to prepare the Property to be on public sewer service. Polecat argued that, instead, the City was requiring it to apply for a mobile home park license and comply with city ordinances by dedicating property to install fire hydrants, dedicating a turnaround space for fire trucks, and absorbing the cost of water flowing through the fire hydrants. The City asserted Polecat was illegally operating an unlicensed mobile home park and unlicensed travel trailer park in violation of the City’s code of ordinances.  The trial court granted the City’s traditional and no-evidence motions for summary judgment, resulting in a final judgment in favor of the City. The trial court’s order specifically found that the Polecat Defendants’ violations of city ordinances created a substantial danger of injury or adverse health impact and that a permanent injunction was necessary to prohibit the specific conduct that violated the ordinances and to require conduct necessary to comply with them. Polecat appealed.

The summary judgment evidence showed that the Property was continuously operated as a mobile home and travel trailer park. Polecat testified that the Property was a residential property that was eighty percent occupied, but admitted it housed rental mobile homes since the 1960s, as well as seven travel trailers.  The City’s appraisal district had labeled the Property as a mobile home park, and Polecat had never challenged that designation. Even the TNRCC sent notices of violations to Polecat related to improperly hooked up septic lines. The summary judgment evidence showed that the City was willing to work with the Polecat Defendants to obtain mobile home and travel trailer park licenses and would consider a site plan that complied with city ordinances, however, Polecat did not agree to comply with the ordinances.  During discovery, numerous other violations became apparent, including violations preventing fire trucks from being able to properly access or service the Property.  Polecat’s testimony established it never applied for a license to operate a mobile home park or travel trailer park.  The City’s traditional summary judgment motion established various violations of the City’s ordinances. The City also filed a no-evidence motion for summary judgment asserting that because the City was not requesting the dedication or transfer of any portion of the Property to the public for public use; the City had not deprived the Polecat Defendants of all viable use of the Property. Further, it was Polecat’s failure to apply for a site plan permit and a license that prevented the City from extending sewer services. Polecat also admitted it was not challenging the validity of any ordinances.

The court found Polecat failed to preserve its appellate points objecting to the City’s summary judgment evidence as they complained of only procedural defects and failed to obtain a ruling. Next, the court held the City was not required to prove continuing violations in order to be entitled to injunctive relief under Chapter 54. Polecat’s petition did not contain any challenge to the city ordinances themselves or allege that the ordinances did not apply to them and therefore was not entitled to any declaratory relief. The court also noted that there were multiple defendants, including the property in rem, but only Polecat responded to the summary judgment on behalf of itself alone. As a result, the other defendants could only attack the granting of the summary judgment by asserting the City failed to carry its burden of proof. The City met its burden to establish entitlement to summary judgment and permanent injunctive relief. Further, “[i]n a regulatory taking, it is the passage of the ordinance that injures a property’s value or usefulness.” Polecat does not challenge the passage of any ordinance. Instead, the petition focused on whether the City’s intentional actions resulted in inverse condemnation.  However, since the City did not destroy all economically viable use of the property, there can be no taking. Additionally, Polecat’s summary judgment evidence (which Polecat argued created a fact issue) contained mainly affidavits that were unsigned and unnotarized. As a result, Polecat failed to create a fact issue with proper summary judgment evidence. The trial court properly entered judgment for the City.

If you would like to read this opinion click here. Panel consists of Chief Justice Morris and Justices Burgess and Carter. Opinion by Justice Burgess.

Tyler Court of Appeals holds a motion for new trial did not extend the time to perfect an accelerated appeal


SignAd, Ltd. V. The City of Hudson, 12-21-00056-CV, (Tex. App – Tyler, Sept. 15, 2021)

This case is mainly procedural, and the Tyler Court of Appeals held SignAd failed to timely file its notice of appeal, either as an interlocutory appeal or of a final judgment.

This is a billboard construction case where the City sought injunctive relief and civil penalties asserting SignAd violated its local ordinances. SignAd asserted counterclaims for declaratory judgment, compensation for loss of the billboard if ordered to remove it, inverse condemnation, unenforceability of the ordinance against SignAd, and 42 U.S.C. § 1983. The trial court issued various orders but the order of contention is a January 19, 2021 order granting the City’s first amended motion to dismiss for lack of subject matter jurisdiction. The parties disagree as to whether the January 19th order was a final order or is interlocutory. The order contained various findings including that SignAd lacks standing to bring its counterclaim for declaratory judgment, SignAd’s billboards exceed the size limitations for commercial signs, and that SignAd cannot maintain its billboards under the ordinance even if it achieved a total victory in this case.

The court of appeals held if the order is an appealable interlocutory order, the notice of appeal was due to be filed within twenty days after the judgment or order was signed, i.e., February 8.  SignAd filed its notice of appeal on April 13th.  SignAd’s motion for a new trial did not extend the time to perfect an accelerated appeal. But even if not interlocutory a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days after the judgment is signed if any party timely files a motion for new trial. However, any motion for new trial was due to be filed by February 18. SignAd filed its motion for new trial on February 22. The certificate of service attached to the motion for new trial reflects that it was served on February 16; however, the motion is file marked February 22. Thus, the motion was late and did not extend the time for filing the notice of appeal.  And an “order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period.”  As a result, the court of appeals dismissed the appeal for want of jurisdiction.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Dismissed for Want of Jurisdiction. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices


Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

If you would like to read this opinion click here. Panel consists of Justices Chapa, Rios, and Rodriguez. Memorandum opinion by Justice Rodriguez.

Beaumont Court of Appeals holds pro se Plaintiff did not establish entitlement to injunctive relief to prevent demolition of building


Rema Charles Wolf v. City of Port Arthur, 09-19-00047-CV, (Tex. App – Beaumont, Aug. 6, 2020)

This is an interlocutory appeal from the denial of a temporary injunction request by a pro se property owner.

Pro se Plaintiff Wolf sued the City seeking a temporary restraining order and temporary injunction relief asserting the City failed to grant her a permit to repair a building she owns after Hurricane Harvey.  According to Wolf, the building “was never hazardous for anybody[.]”  The petition made claims against the City for fraud, harassment, and trespass, and sought damages. She also sought a restraining order to prevent the City from demolishing the building. The trial court granted the TRO and set the temporary injunction for a hearing. The  City demolished the building. The City filed a plea to the jurisdiction asserting The City also alleged that § 214.0012 of the Texas Local Government Code provides the exclusive remedy and basis for judicial review of actions related to the City’s Construction Board of Adjustments and Appeals. In a second plea, the City produced evidence of a public hearing on the demolition and that Wolf signed in and presented.  After the public hearing, the Board entered a ninety-day raze-or-repair order and provided it to Wolf. According to the plea, the City sent Wolf a letter on October 25, 2018, that notified her of the upcoming demolition, demolition began on November 15, 2018, and the demolition was two-thirds completed when the City received notice of the TRO.  After a temporary injunction hearing, the trial court denied the temporary relief and finding the plea was moot.

For a temporary injunction, a review of a trial court order is limited.  In this case, several of Wolf’s issues on appeal complain about matters not within the scope of the order being appealed. The record includes no appealable ruling, order, or judgment granting or denying damages or some of the other relief requested by Wolf. As a result, the court of appeals lacks jurisdiction over such requests.  “An appeal from an order on a temporary injunction becomes moot when the act sought to be enjoined occurs.” In this case, the remainder of the building was demolished.   The trial court expressly stated at the conclusion of the hearing that it had not found sufficient evidence of irreparable loss. Deferring to the trial court as fact finder, the court of appeals held the trial court did not abuse its discretion in denying the injunctive relief.

If you would like to read this opinion click here. Panel consists of Justices Kreger, Horton, and Johnson. Affirmed. Memorandum Opinion by Justice Johnson. Docket page with attorney information can be found here.

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals


Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

Trial court properly dismissed subsequent purchaser’s TTCA and Takings claims after City demolished house


Jorge Rodriguez v. City of Fort Worth, 07-16-00037-CV (Tex.App. – Amarillo, December 8, 2017)

This is a takings/condemnation and TTCA case where the Fort Worth Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Prior to Rodriguez’s ownership of a residential structure, the City’s Building Standards Commission found it to be substandard and hazardous to public health. A copy of the order was mailed to the then owner and filed in the deed records of Tarrant County on October 19, 2012.  Rodriguez purchased the property on December 12, 2012, without personal knowledge of the Commission’s order, but the court found Rodriguez possessed constructive knowledge due to the filing in the deed records. The property was demolished on June 28, 2013 by a contractor hired by the City.   Rodriguez brought suit, alleging the City intentionally destroyed the building (takings) or negligently destroyed it under the Texas Tort Claims Act. The City filed a plea to the jurisdiction which the trial court granted. Rodriguez appealed.

As to Rodriguez’ tort claims, nothing in the record shows City employees were involved with the demolition by “operating” or “using” motor-driven vehicles or equipment or by exercising any control over the independent contractor or its employees. No City owned motor-driven vehicles or equipment were used in the demolition.  As a result, the City has not waived its immunity under the Texas Tort Claims Act. As to Rodriguez’ takings claim, Rodriguez did not allege any facts demonstrating that demolition of his property was for public use.  The improvements on the property were found to be substandard and hazardous to public health; however, the owner was given the opportunity to bring those improvements up to code in order to prevent their demolition. When the owner failed to comply, the City removed the public health hazard. As such, Rodriguez’s claims do not allege a constitutional takings.   Rodriguez also asserted he requested leave to amend his pleadings and was denied. However, Rodriguez was given and took advantage of two prior amendments to address the City’s plea and supplemental plea. Because Rodriguez had a reasonable opportunity to amend he cannot now complain about being deprived of an opportunity to amend.  Furthermore, even if Rodriguez were afforded an opportunity to amend his live pleading indicates incurable defects – specifically, the use of an independent contractor of the tort claims and lack of a public purpose for takings. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Campbell and Justice Pirtle.  Memorandum Opinion by Justice Pirtle. The attorney listed for Rodriguez is Timothy E. Brown.  The attorney listed for the City is Harvey L. Frye.

Texas Supreme Court holds general law city cannot extend building codes into ETJ


Town of Lakewood Village v Bizios, 15-0106 (Tex. May 27, 2016)

This is an interlocutory appeal from a temporary-injunction order regarding whether a Type A general-law municipality has authority to enforce its building codes and building-permit requirements within its extraterritorial jurisdiction (“ETJ”). The Texas Supreme Court held it could not.

The Town’s ETJ encompasses part of the Sunrise Bay subdivision (the “Subdivision”). Harry Bizios purchased a lot in the Subdivision which is located entirely within the Town’s ETJ. The Town’s ordinances adopt building codes and make them enforceable within its ETJ. Bizios obtained all permits from the County and all other entities except the Town. The Town filed this suit after Bizios ignored its orders to stop construction. The trial court granted the Town’s injunction but the Court of Appeals reversed holding the Town did not have the legal authority to enforce its building codes in the ETJ.

The Texas Supreme Court first determined it had jurisdiction to hear the case since the Town presented an inconsistent opinion and split in the courts of appeals on the subject.  Next the Court went into an analysis of the differences between a general law and home-rule municipality. The Court held without statutory authority, a general law municipality cannot extend its building codes into the ETJ. Texas Government Code §§212.002 and 212.003 allow the extension of certain ordinances in to the ETJ that deal with plats and subdivisions. However, after a lengthy discussion of statutory construction principles, the Court held “building codes” do not relate to plats and subdivisions so cannot be part of that extension. The Court went through several other statutory references and determined none provide authority for a general law city to extent building codes into the ETJ. Additionally, the Court rejected the Towns’ argument that it had implied authority to extend such codes. Finally, the Court discounted the public policy arguments by holding “[w]e cannot judicially confer authority on general law municipalities, even if we believe there are compelling public policy reasons for doing so. We must leave that choice to the policymaking branch of government.” As a result, the Town cannot legally extend building codes into the ETJ.

Justice Boyd delivered the opinion of the Court.  The docket page with attorney information can be found here.

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.

City entitled to civil penalties for zoning code violations says Dallas Court of Appeals


Texas West End, Inc v. City of Dallas, Texas Historical Commission 05-11-00582-CV (Tex. App. – Dallas, March 9, 2016)

This is a civil enforcement case which is on remand from the Texas Supreme Court. After analyzing the case based on the Supreme Court’s order, the Dallas Court of Appeals switched its prior holding and upheld the award of civil penalties issued by the trial court. This is a long case with a lot of statutory construction involved. The main thing to take away is that the City can receive civil penalties for non-compliance with zoning ordinances such as those applicable in a historic overlay district.

The central issue is whether the City of Dallas may recover civil penalties from TCI West End, Inc. based on TCI’s demolition of the MKT Freight Station without prior approval. According to the City, prior approval of the landmark commission was required by city ordinance. The Dallas Court of Appeals original opinion held, among other things, the civil penalty provision for health and safety violations did not apply to zoning ordinances. The Texas Supreme Court disagreed, holding that the penalty provision could be applied.

TCI attempted to avoid enforcement in a variety of ways and arguments, mostly of technical challenges to ordinance wording. TCI would have the court read the cited case law “.. to mean that every requirement pertaining to ordinances, regardless of the language used in the requirement, must be rigidly performed or the ordinance is invalid.”  The court expressly declined to do so. The fact the City did not file a structure list with the County before enforcing the ordinance does not mean the ordinance is not effective. Using statutory construction principles, the court held the express language of the ordinance does not make enforceability contingent upon such a filing. TCI next contended the ordinance does not require landmark commission approval for demolition unless the building sought to be demolished is a “contributing structure.” TCI’s construction of the ordinances is incorrect. Whether a building is a “contributing structure” determines which of two application processes the property owner must follow. The property owner must still obtain the approval of the landmark commission before demolishing a building under either process. Next the court held the general rule is that when a statute is adopted by reference, the adoption takes the statute as it exists at that time, and the subsequent amendment of the statute is not incorporated into the terms of the adopting act. The phrase “as amended” has been found to incorporate future amendments to statutes adopted by reference.  However, such amendments apply to the sections referenced, in this case only to demolition and removal procedures. “The clear intent was that ordinance 22158 was to work in conjunction with the city development code. To hold that future amendments to the development code were not incorporated into section 7.1 would lead to unnecessary confusion in the application process and make it even more difficult for those seeking demolition or removal permits to determine what is required of them.” Having concluded that the jury properly found that TCI violated the ordinances, the court then examined once again whether the City was entitled to recover a civil penalty. The City’s only burden under the instruction given was to show that, after TCI was notified of its violation, TCI either committed acts in violation of the ordinances or took no action to comply with the ordinances. TCI argued that since it had already demolished the building when it received notice it could not do anything to cure or come into compliance. “Impossibility is a plea in avoidance on which the party making the plea bears the burden of pleading and proof.” Since TCI did not plead the defense at trial, the award cannot be reviewed based on the doctrine of impossibility. The $750,000 penalty in the trial court’s judgment does not hold TCI liable for the demolition itself, but for TCI’s post-demolition failure to take action to comply with the ordinance. This is an ongoing violation until TCI takes the required action. Because TCI never submitted an application to the landmark commission, (even after demolition) the possible daily penalty continued to accrue. Accordingly, the jury could have awarded over $1 million in penalties, but chose to award $750,000. The Court of Appeals appeared reluctant to accept the Supreme Court’s interpretation, but it sustained the civil penalty award in the end.

If you would like to read this opinion click here. Panel: Justice Fillmore, Justice Evans and Justice Whitehill. Opinion by Justice Evans. The attorneys listed for the City are Christopher J. Caso, Thomas P. Perkins Jr., James B. Pinson, Barbara E. Rosenberg, and Christopher D. Bowers. The attorneys listed for Texas West End are Thomas V. Murto III, Melissa A. Johnson, and Mitchell Madden.

Failure to appeal demolition order prohibits apartment owners from bringing a takings claim says Fort Worth Court of Appeals

1707 New York Ave., LLC v. City of Arlington, 02-14-00259-CV (Tex. App. – Fort Worth, October 22, 2015).

This is a structural standards/constitutional takings case where the Fort Worth Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

After notice and a dangerous-and-substandard-structure hearing, the City’s municipal court signed an order declaring the La Joya Arlington Apartments a nuisance. After the owners did not take advantage of the cure period, the court issued a demolition order. The apartments were sold.  The new owners did not appeal the municipal court’s demolition order but instead filed suit. The City filed a plea to the jurisdiction which the trial court granted.

The owners argued the exhaustion requirements under Dallas v Stewart does not apply since they are bringing claims only under the Texas Constitution and the City’s administrative process was a hybrid of statute and its own ordinance. The court held the Texas Supreme Court has “long held that the government commits no taking when it abates what is, in fact, a public nuisance.” City of Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012). A party must avail itself of statutory remedies that may moot its takings claim, rather than directly instituting a separate proceeding asserting such a claim.  Here, the prior owner of the apartments did not appeal the municipal court’s order authorizing demolition. As a result, the buildings were a nuisance as a matter of law. Because no one appealed the nuisance determination, the current owners cannot attack collaterally what was not challenged directly. So the plea was properly granted.  Justice Meier’s concurring opinion was aimed at a more detailed analysis of the reason why exhaustion is required, but he did not go into any of the facts, history, etc. present in the memorandum opinion. He tracked the language of the Texas Local Government Code as well as the City’s ordinances. He determined the final judgment is consistent with both Tex. Loc. Gov’t Code Chapter 214 and the City’s Dangerous Building ordinances and did not improperly authorize the City to assess a penalty of demolition against the apartment owners.

If you would like to read this opinion click here. The concurring opinion can be found here. Panel: Justice Walker, Justice Meier and Justice Gabriel. Memorandum Opinion by Justice Walker.  Concurring opinion by Justice Meier. The attorneys listed for the City are Melinda H. Barlow and J. Chad Arnette.  The attorney listed for the apartments is Frank Gilstrap

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.

Owner of demolished condo cannot piggyback on other owners’ attempts to appeal in order to obtain standing says Houston Court of Appeals

Lee Ann Wheelbarger v. City of El Lago and Richard Smith, 01-13-00704-CV (Tex. App. – Houston [1st Dist.], September 18, 2014),

Wheelbarger owned a condominium (built in 1970s) in a complex called the Landing which was severely damaged by Hurricane Ike in 2008. Smith was the City’s building official. The Landing was a non-conforming use under the City’s zoning ordinance, which stated no permit would issue for a non-conforming use repair which is damaged to an extent greater than 51% of its market value unless the repair brought the structure up to current building standards. Bringing the Landing up to current building standards (especially in common areas) would incur such a cost that it was not economically feasible. Therefore the Landing’s management council did not seek a repair permit. The City’s Structural Standards Commission declared the complex a substandard building and a nuisance and ordered it to be repaired or demolished. The Landing’s management council demolished the complex. Interestingly, Wheelbarger was on the management council.  In that role she obtained a report noting the complex had sustained only minor damage. The management council sued Wheelbarger for inciting litigation. Wheelbarger counterclaimed and added the City as a third-party. Her claims against the City and Smith assert she was deprived property without due process, essentially stating the complex was declared substandard by the building official without an opportunity to challenge. The trial court granted the City’s plea to the jurisdiction and summary judgment motion and severed the claims involving the City from suit.

The court noted that Smith’s determination the complex was substandard was superseded by the Structural Standards Commission’s order of repair or demolition, which Wheelbarger could have participated in, but chose not to. And while other condo owners attempted to appeal the determination, Wheelbarger was not one of them. She did not exhaust her options and never sought an appeal. She cannot piggyback on the attempted appeal of other property owners and has no standing on her own. As a result, the trial court properly concluded it had no jurisdiction over her claims.

If you would like to read this opinion click here. Panel: Chief Justice Radack,, Justice Jennings and Justice Massengale. Opinion by Justice Massengale. The attorney listed for the City is Arthur Val Perkins.  The attorney listed for Wheelbarger is William A. Taylor.

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.