Takings claims need not be brought within 30 days of structural standards appeal and law-of-the-case does not apply says Fourth Court.

Chin Wu v City of San Antonio, No. 04-10-00836-CV (Tex. Civ. App. – San Antonio August 14, 2013)

This is a dangerous structure/takings opinion out of the San Antonio Court of Appeals.  This opinion withdrew the prior opinion issued on March 6, 2013.  For a summary of the prior opinion click here.  Essentially, in 2005 the City demolished a substandard apartment building owned by Wu after a hearing before City of San Antonio’s Dangerous Structure Determination Board (“DSDB”). The court of appeals initially instructed the trial court, via interlocutory appeal, that substantial evidence presented at the injunction hearing supported demolition and instructed the trial court to proceed under such a standard. However, that was before City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) which held an appeal of a nuisance determination from a structural standards commission must be reviewed de novo.  The City filed a motion for summary judgment asserting substantial evidence supported the DSDB’s demolition order which the trial court granted and Wu appealed.

The Fourth Court of Appeals held that the summary judgment was granted in error since the trial court reviewed the motion under the substantial evidence review standard. In this appeal, the City pointed to the injunction hearing evidence and transcript to support a de novo review a nuisance existed; however, the court notes the trial court did not have a trial or review de novo, but deferred to the DSDB’s determination and therefore was improper.  In the court’s withdrawn opinion it noted the City failed to raise the argument evidence supported a nuisance existed under a de novo review and was precluded from on appeal.  In this corrected opinion, the court does not procedurally preclude the City from making the argument but holds against the City based on the record.  The court seems to be disregarding the law-of-the-case doctrine which states a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716-17 (Tex. 2003).  The Fourth Court gave direction to the trial court on how to proceed in this case at the interlocutory appeal level.  However, Stewart, can be used to demonstrate that the originally holding was clearly erroneous.  It would have been nice for the City to know that before it demolished the building.  The interlocutory appeal was from the denial of an injunction to prevent the demolition.   The good news is that since the City is back in the trial court and can still present evidence for the trial court to review de novo.

The court also noted that even though Wu did not initially bring a takings claim in the trial court, she amended her petition adding it. According to the court, she need not bring the claim within the same 30 days as the appeal from the DSDB’s order, but must bring it in the same proceeding. As a result, the City’s summary judgment should have been denied, the trial court is to hold a de novo review, and the takings claims are permitted to go forward.

If you would like to read this opinion click here.